I'm not covered by LEOSA and I had that thought as soon as I saw the title of the thread.Originally Posted by TGS
I'm not covered by LEOSA and I had that thought as soon as I saw the title of the thread.
Recovering Gun Store Commando. My Blog: The Clue Meter
“It doesn’t matter what the problem is, the solution is always for us to give the government more money and power, while we eat less meat.”
Glenn Reynolds
As a LEOSA affected person I normally would be one of the first to say keep the BATFE out of any decision regarding LEOSA as it is not their area of operation or influence. However after reading the letter and attempting to understand the request I don't believe there is anything nefarious in the request nor anything overly problematic in including the BATFE in the issue of magazine capacity as it relates to LEOSA "IF" and that is the key issue, if they keep any opinion strictly related to magazine capacity.
The letter seems to look for clarification on magazine capacity in context of restricted magazine capacity locales and states. I believe the clarification is asked of the BATFE mainly to establish if a magazine is to be considered part of a weapon as a whole instead of separately. This issue has been discussed before as has ammunition.
My understanding is that if the BATFE advises that the firearm includes the magazine to be a complete package to be functional then this would give creedance to allowing officers to carry any normal capacity magazine they are legally allowed to carry within their home state even if they visit a state or locale where there is a lower magazine capacity restriction. To me it isn't like asking the BATFE to comment on the legality of LEOSA,how it is implemented or whether it is good, bad or indifferent only whether magazines are to be considered the firearm or separately in how they are applied to interpretation. If the BATFE says a magazine is a part of the firearm required to be a firearm in the functional state then an argument could be made that as long as an officer can legally carry a 15+ round capacity magazine they can do so in a state or locale where there is a restricted magazine capacity lower than that if they are carrying a handgun under the guise of LEOSA authority. Thus state or locales with restrictions cannot supersede part of LEOSA that allows for officers to carry a concealed handgun in the magazine capacity because the magazine is the weapon and vice versa. The only risk then would be if they(BATFE) advise that the magazine can be considered separately from the handgun. This would then restrict officers carrying under LEOSA to carry lower capacity magazines of 7,10 or 15 rounds where there are state or local restrictions.
Any other ruling,opinion or comment would be beyond the scope of the BATFE control or influence. Unless I am reading or understanding the intent incorrectly or the implications it will either leave things as status quo or improve the situation by allowing officers to carry higher capacity magazines in areas where there are restrictions currently in place.
I will attempt to address a few of the inquiries above.
Before I do that, let me note that posting this document allows people on the site who have at-hand information of the type the ATF might consider as to the impact of limits on magazines to share it with the ATF before it makes its determination. Forum participants can post it here, send it directly to the ATF or whatever you wish.
There is, of course, anecdotal evidence on this site concerning functionality problems with diminished-capacity magazines in the thread referenced in the letter. But, this wide group of people may have access to material that could be shared with ATF that would be more persuasive to the ATF. That could include, for example, a document that was prepared by your organization testing the performance of reduced capacity magazines or simply collecting its experiences. If none in this community are in a position to share that kind of information, the matter will be under consideration with the anecdotal information available at this time.
As noted in the letter, the context is not that the ATF has simply been selected to opine on this matter. Rather, the circumstances are that there are numerous reports, including statements by higher education instructors who would appear to teach law enforcement personnel and fraternal benefit organizations, that ATF already has announced an adverse position (albeit in a statement not identified as to time or place), and the question is what to do in response.
I will shortly, in a separate post, address circumstances in which the Federal government's views on the scope of LEOSA have, in fact, been solicited by the court in the course of a prosecution.
One supposes that, following Abramski v. United States, 134 S.Ct. 2259 (2014), the ATF's informal interpretation will not be subject to any deference if someone is prosecuted in a state proceeding and defends on the basis of LEOSA (although one might argue Abramski is not necessarily dispositive, for complex reasons). So, this inquiry does not invite to engage in any act that would curtail the rights available under LEOSA.
In the favorable camp, one might include one of the most-widely-referenced guidance of 2017, that on arm braces. I should also think that the 3/11/05 reply to Stephen Halbrook's inquiry stating the following is rather favorable, and perhaps unexpectedly so, "Therefore, it would not be unlawful to change the configuration of a handgun that was previously approved for importation based on the factoring criteria, and then lawfully marketed in the U.S., even if those changes would subsequently make it unimportable.”
Although many government agencies make their informal interpretations public, e.g., the SEC, because the ATF does not, it is difficult to assess the frequency with which the ATF's responses to the least formal guidance inquiries are over-reaching (or favorable). However, one can see numerous formal interpretations that might (or I suppose might not) be categorized as favorable, e.g., 2009-1 (re engravers not being required to be licensed as gunsmiths); 2009-2 (installation of drop-in parts does not make one a manufacturer); 2010-6 (rights of citizens residing outside the US); 2010 (re licensure as manufacturers of gunsmiths who work on firearms for importers).
But, in any case, the question is not whether it is desirable to prompt the ATF to address a matter for the first time. Rather, understanding that there are numerous sources, including by folks who apparently teach law enforcement personnel and by fraternal benefit organizations, that the ATF has in fact already addressed the issue, and done so adversely, whether it is suitable, for example, to have them consider that they are withdrawing all prior guidance.
Even without delegated rulemaking authority as to the matter, the Federal government's position on the issue can be relevant.
In Barbusin v. United States, cited in the letter, as to interpretation of LEOSA, a court "asked the United States to provide its position on the 'significant federal interests' implicated by [the litigation]." So, we can again be in a circumstance where a court asks for the government's views, and the extant views may well be informed by whatever ill-considered observations have previously been formed by the ATF. So even though the federal government does not enforce violations of the crimes for which LEOSA operates as a defense, the Federal government's views on this matter can be, and in fact have been, spontaneously solicited by a court construing the issue.
Let me share one other observation, State v. Stoll, 239 Ariz. 292, 297, 370 P.3d 1130, 1135 (Ct. App. 2016), states, "But, for example, As Justice Kagan noted in Heien, “an officer's reliance on ‘an incorrect memo or training program from the police department’ makes no difference” for purposes of our strictly objective inquiry. ––– U.S. ––––, 135 S.Ct. at 541." So, the promulgation of erroneous training information can put persons in difficult legal positions.
As the inquiry to the ATF notes, a finding that LEOSA does not preempt restrictions on firearm features will, because FOPA's statutory language is similar in this regard, result in state and local restrictions on firearms features not being preempted by FOPA. So, for example, it would be illegal to drive through Chicago, relying on FOPA, with a handgun with a laser.
I expect the most likely result is the ATF will effectively withdraw any prior statement, by simply stating that it expresses no opinion. This will allow a withdrawal of any prior informal statement without actually having to identify what positions it has taken in the past.
Hello:
You have, in the above post, quoted TGS to the following effect, "IMO, we don't need to be encouraging executive regulatory agencies to ordain us with more interpretations of laws....."
Let me share with you a different perspective.
Substantial problems arise where there are adverse law enforcement positions that are implemented but not actually memorialized in a policy. This may seem somewhat unexpected. Let me explain.
Let me first turn to Heller I, in the Federal Court of Appeals for DC (without trying to explain what other Federal Circuits do). The claims of all but one of the plaintiffs were dismissed. They alleged they wanted firearms, that their doing so would violate DC law, and they wanted the issue determined without their needing actually to be prosecuted. All those plaintiffs in Heller I were found unable to maintain a lawsuit challenging a ban on firearms possession, because the mere fact that DC generally enforced its firearms laws was not a proper basis for a pre-enforcement challenge. The lawsuit was only allowed to proceed because one party had applied for and been denied registration documentation. That type of act that would allow standing to sue in the courts would not be available to challenge the kind of restriction at hand.
To be clear, even though there have been numerous criminal prosecutions for violation of DC's firearms provisions, because those particular persons had not been singled-out in some way, they could not challenge them. For somewhat peculiar reasons, if the governmental approach, according to this circuit, is in a rule, the rule can nevertheless be challenged without a need to show someone has been singled-out.
At the state and local level as well, if someone wishes to make a pre-enforcement challenge, one will have substantial problems challenging an action under section 1983 unless there is a "policy". (I won't detour into what constitutes a "policy" for these purposes, because it is somewhat complex.)
There are a variety of reasons why pre-enforcement challenges are superior. Among other reasons, it does not result in the issue being litigated by persons who are more likely not to have adequate financial resources to mount a suitable challenge (e.g., may be represented by overworked public defenders).
So, insofar as there is a problematic interpretation of statutes that may result in criminal prosecution, it is much better, for one who wishes to challenge them, to have them memorialized in a policy.
Understood. I also recall some drooling mouthbreather specifically asking them about shouldering an arm brace, causing the BATFEIEIO to land on the side of "thou shalt not". Then issuing another letter saying "Okay, maybe so..."
I think the biggest issue is that some people need to just stick with crayons and trying to color inside the lines, rather than contacting regulatory agencies. When window-lickers get near a typewriter or computer, the rest of us suffer.
Reply With Quote