NFA Lawsuit Filed – Holder, Jones Summonsed
UDATE 11/24/2014: The DOJ has filed an Entry of Appearance naming Eric J. Soskin as counsel for the defendants.
UPDATE 11/5/2014: Holder and Jones have both been officially served with their summons as of 5 November, 2014 at 5:22AM. The 60-day clock is ticking.
We recently posted about the Mississippi attorney who was seeking crowd funding for a lawsuit or lawsuits to challenge certain aspects of the gun control regulations laid out in the National Firearms Act, Gun Control Act and associated legislation, ATF rulings, etc.
The complaint for declaratory and injunctive relief in Hollis v Holder et al. was filed yesterday with the goal of either declaring the de facto ban on machine guns to be unconstitutional or finding that 922(0) does not prohibit unincorporated trusts from manufacturing or posessing a machine gun manufactured after the 1986 date created by the Hughes Amendment to FOPA. From the introductory section of the Hollis v Holder complaint:
1. This is an action seeking declaratory and injunctive relief from 18 U.S.C. §922(o), 26 U.S.C. § 5801 et seq. and the implementing regulations 27 C.F.R. § 479.105(a). These statutory and regulatory provisions generally act as an unlawful de facto ban on the transfer or possession of a machine gun manufactured after May 19, 1986. By imposing such a ban on an entire class of weapons, the statutes and regulations exceed the power of the United States under Article I of the United States Constitution; violate the Second Amendment rights of the Plaintiff and all similarly situated individuals; violate the Ninth and Tenth Amendments and the United States Constitution’s principles of federalism and dual sovereignty; by arbitrarily “disapproving” an already approved Form 1, Defendants’ actions violate Plaintiff’s Fifth Amendment right to due process and is an unjust taking; and violate the Equal Protection clause of the Fourteenth Amendment.
2. Plaintiff seeks declaratory and injunctive relief against the unconstitutional provisions contained in 18 U.S.C. § 922(o), 26 U.S.C. § 5801 et seq. and 27 C.F.R. § 479.105(a); declaring the ban on machine guns unconstitutional under the Second, Ninth and Tenth Amendments and in violation of Article I of the United States Constitution and declaratory and injunctive relief prohibiting Defendants from unjustly taking property without Due Process.
3. In the alternative, Plaintiff seeks declaratory and injunctive relief finding that 18 U.S.C. § 922(o) does not prohibit an unincorporated trust from manufacturing or possessing a machinegun manufactured after May 19, 1986 and/or that the Defendants lack the authority and are thus prohibited from revoking or denying the validity of Plaintiff’s approved tax stamp #RM34755.
The summons notifying recently-resigned Attorney General Eric Holder and BATFE directory B. Todd Jones of the lawsuit, has been issued and is available online specifying that if the defendants fail to respond within the 60 day deadline, judgment by default will be entered against them for the relief described above.
BATFE Q&A on AR15 Receiver Blanks
1. Is ATF aware of the receiver blanks, commonly referred to as 80% receivers?
ATF routinely collaborates with the firearms industry and law enforcement to monitor new technologies and current manufacturing trends that could potentially impact the safety of the public.
2. What is an “80%” or “unfinished” receiver?
“80% receiver,” “80% finished,” “80% complete,” “unfinished receiver” are all terms referring to an item that some may believe has not yet reached a stage of manufacture that meets the definition of firearm frame or receiver found in the Gun Control Act of 1968 (GCA). These are not statutory terms or terms ATF employs or endorses.
3. Are “80%” or “unfinished” receivers illegal?
Receiver blanks that do not meet the definition of a “firearm” are not subject to regulation under the GCA. The ATF has long held that items such as receiver blanks, “castings” or “machined bodies” in which the fire-control cavity area is completely solid and un-machined have not reached the “stage of manufacture” which would result in the classification of a firearm per the GCA.
See the photos below for a comparison of which partial receivers are firearms and which are not:
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- Receiver Blank: Not a Firearm
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- Receiver Blank: Not a Firearm
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- Receiver: Firearm
Mississippi Lawyer Accepting Crowd Funding Donations to Fight NFA
You may remember a while back when we shared some information about how the BATFE may have “accidentally” opened the machine gun registry.
This Prince Law Blog post provides most of the background, but the gist is this: Since 1986, thanks to the Hughes Amendment to the Firearm Owners Protection Act, “persons” have been disallowed from making new machine guns (922(o) reads, in part: “it shall be unlawful for any person to transfer or possess a machinegun [except] a machinegun that was lawfully possessed before the date this subsection takes effect“). In response to a request for clarification about a NICS check question, an ATF official noted that “Unlike individuals, corporations, partnerships, and associations; unincorporated trusts do not fall within the definition of “person” in the GCA.”
This caused Prince to reach the conclusion that “[P]ursuant to 26 U.S.C. 5812 and 5822, an unincorporated trust may lawfully transfer and make machineguns, as it is not a “person” for purposes of the GCA and Section 922 only applies to “persons” as defined by the GCA“. Word spread and some Form 1s were submitted on trusts to make new machine guns. For better or worse, the BATFE approved a number of them and, rumor has it, some of those approvals were acted on and new machine guns were made. And here we are today… with new Form 1s being categorically rejected, approved Form 1s (and, potentially, new machine guns) out in the wild with the BATFE saying “Oops! Our bad, can you send those back and not make machine guns with them?”
Now, Stephen D. Stamboulieh of Stamboulieh Law, PLLC has taken up the banner and is preparing to take the case(s) to court. Stamboulieh is seeking crowd funding donations through his GoFundMe effort titled Help Overturn 18 USC 922(o) & NFA. The effort has already raised nearly $29k of the $50k goal.
From the GoFundMe page: Continue reading
ATF Releases US Firearms Trace Data for 2013
Following the Bureau of Alcohol, Tobacco, Firearms and Explosives recently released 2013 international firearms trace data, the ATF last week released aggregated firearms trace data for all US states and territories for calendar year 2013. Firearm traces provide critical investigative leads to law enforcement and can link a suspect to a firearm in a criminal investigation, identify potential traffickers, and detect local, interstate and international patterns in the sources and types of crime guns. Traces provide information on the movement of a crime gun from the manufacturer or importer through distributors and ultimately to the retail point of sale and purchaser.
The 2013 report includes a state-by-state breakdown of types and calibers of firearms recovered and traced, source states, criminal offenses associated with the crime guns, time-to-crime, and age ranges of crime gun possessors at the time of recovery. Key findings of this year’s report include pistols as the most common firearm type recovered and traced, 9 mm as the top caliber recovered and traced, and 11.08 years as the average time-to-crime for crime guns recovered and traced in the U.S. and its territories. Continue reading
Pennsylvania Lawyer Claims ATF Determination Allows for New Machine Guns
Pennsylvania attorney Joshua Prince, Esq. is making a bold claim in his blog entry Did ATF’s Determination on NICS Checks Open the Door for Manufacture of New Machineguns for Trusts? that may be music to NFA enthusiasts’ ears.
In his post, Prince points out that, although the NFA regulations include language to include trusts under their purview, the 1968 Gun Control Act (GCA), codified in Title 18 of the United States Code, includes no such language. A 2013 inquiry by Dakota Silencer received an ATF response reading: “Unlike individuals, corporations, partnerships, and associations; unincorporated trusts do not fall within the definition of ‘person’ in the GCA.” As many already know, transfer by a person of a machine gun that was not registered before May 19, 1986 is forbidden by the Hughes Amendment to the Firearms Owners Protection ACT FOPA, which added subsection 922(0) to the law.
Prince’s conclusion is that:
[P]ursuant to 26 U.S.C. 5812 and 5822, an unincorporated trust may lawfully transfer and make machineguns, as it is not a “person” for purposes of the GCA and Section 922 only applies to “persons” as defined by the GCA.
This conclusion is Continue reading
Multi-Agency Gang (MAG) Unit Investigation Leads to Federal Indictment of FnD Gang Members, Including Two Who Are Charged with the Mother’s Day Shooting
NEW ORLEANS, LOUISIANA – U.S. Attorney Kenneth Allen Polite, Jr., announced the recent unsealing of a superseding indictment charging members of the Frenchmen/Derbigny gang, or “FnD,” with violating federal drug and firearm laws. A federal grand jury returned the superseding indictment on February 27, 2014, charging TRAVIS SCOTT, a/k/a “Trap” or “Slim,” age 29; STANLEY SCOTT, a/k/a “Stizzle,” age 22; SHAWN SCOTT, a/k/a “Shizzle,” age 25; AKEIN SCOTT, a/k/a “Keemy,” age 20; JEREMIAH JACKSON, a/k/a “Rocky,” age 23; GRALEN BENSON, a/k/a “Dooley,” age 26; BRIAN BENSON, a/k/a “Dub” or “Dubba,” age 24; CRYSTAL SCOTT, a/k/a “Chris,” age 32; and RICHMOND SMITH, a/k/a “Ace,” age 25, with various violations of the Federal Controlled Substances Act and the Federal Gun Control Act.
According to the superseding indictment, the Frenchmen/Derbigny gang conspired from 2006 through 2013 to violate federal drug distribution laws. The superseding indictment also alleges that some of the members, TRAVIS SCOTT, STANLEY SCOTT, SHAWN SCOTT, AKEIN SCOTT, JEREMIAH JACKSON, GRALEN BENSON, and RICHMOND SMITH, conspired to possess and use firearms in furtherance of the drug distribution operation. The superseding indictment specifically alleges that AKEIN SCOTT and his brother,SHAWN SCOTT, discharged firearms into a Mother’s Day second-line parade on May 12, 2013, in furtherance of that drug conspiracy. As part of this overall federal gang indictment and with the full cooperation of the Orleans Parish District Attorney’s Office, the United States Attorney’s Office will be adopting the firearms and drug charges that are currently pending in state court on the individual gang members in an effort to avoid a duplication of resources.
If convicted for violating federal drug conspiracy laws, the charged individuals face a maximum penalty of life imprisonment, a $10,000,000 fine, and at least five years of supervised release. Those individuals charged with conspiring to possess firearms in furtherance of the drug distribution conspiracy face a maximum twenty years in prison, a $250,000 fine, and up to three years of supervised release.
This superseding indictment represents a coordinated effort of federal and state law enforcement authorities within the Multi-Agency Gang (“MAG”) Unit. Federal agents and New Orleans Police Department officers assigned to the MAG Unit arrested GRALEN BENSON and JEREMIAH JACKSON on March 7, 2014. BRIAN BENSON was arrested by the MAG Unit on March 10, 2014. TRAVIS SCOTT is presently in federal custody, while STANLEY SCOTT, SHAWN SCOTT, and AKEIN SCOTT are currently in state custody. RICHMOND SMITH and CRYSTAL SCOTT are still at large.
U. S. Attorney Polite thanked all members of the MAG Unit for their contributions to this investigation and prosecution.
“Following one of the most despicable shootings in our city’s recent history, our federal, state and local law enforcement partners collaborated in an unprecedented fashion to identify the allegedly responsible individuals,” stated U.S. Attorney Polite. “This superseding indictment reflects the results of the MAG Unit’s outstanding work. Let this be a signal to the entire community: those who terrorize our streets through drug trafficking and gun violence will be brought to justice.”
ATF Special Agent in Charge Phil Durham stated, “Since the day of this horrendous crime where 19 people were shot while attending a parade celebrating Mother’s Day, ATF Special Agents assigned to the MAG Unit have worked around the clock with investigators and prosecutors to see that those involved are held accountable for their actions. ATF will continue to dedicate our resources to targeting and reducing violent crime in the City of New Orleans.”
NOPD Superintendent Ronal Serpas said, “The collaboration of all partners in the Multi-Agency Gang (MAG) Unit has proven to be undeniably effective in getting some of the city’s most violent criminals out of our neighborhoods. In some cases, innocent people felt they were being held hostage by fear of illegal activities that were prevalent in their communities. These indictments are proof that the game has changed. As a team – we are focused and we are unrelenting.”
U. S. Attorney Polite reiterated that the superseding indictment is merely a charge and that the guilt of the defendants must be proven beyond a reasonable doubt.
ATF Special Agents assigned to the MAG Unit are the lead case agents. The prosecution is being handled by Assistant United States Attorney Matthew Payne and Special Assistant United States Attorney Brian Ebarb, who is assigned from the Orleans Parish District Attorney’s Office.
