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Thread: ATF raids polymer 80.

  1. #151
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    Quote Originally Posted by DMF13 View Post
    I would suggest going to the link for the "Kent" case, in the thread I linked to, and reading the case. One of the key factors the Court used in deciding "Kent," was this:

    "Moreover, Kent has never contended that there was a pistol grip or any other piece that he could use to make a legal weapon from this short-barreled upper receiver unit. Indeed, it would not be possible to combine the short-barreled upper receiver unit with any kind of lower chamber or lower receiver unit, such as a pistol grip, to create a weapon that would not be a "firearm" for purposes of the NFA."
    I do think that the Kent court (and perhaps SCOTUS in the TC dicta) failed to correctly apply the "Congress acts intentionally" statutory construction principle. See Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). See also Bailey v. United States. 516 U.S. 137, 146 (1995) (distinction in one provision between "used" and "intended to be used" creates implication that related provision's reliance on "use" alone refers to actual and not intended use).

    Throughout the GCA, Congress included various "collections of parts" within certain specific definitions.

    "Destructive Devices" include "any combination of parts either designed or intended for use in converting any device into any destructive device . . . and from which a destructive device may be readily assembled." 18 U.S.C.A. § 921(a)(4)(C).

    Silencers include "any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer . . . ." § 921(a)(24).

    And, the incorporated by reference NFA definition of "machinegun" includes "any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person." 26 U.S.C.A. § 5845(b).

    When Congress wants "parts" to mean a specific type of firearm, they know how to do so.

  2. #152
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    Quote Originally Posted by joshs View Post

    . . . When Congress wants "parts" to mean a specific type of firearm, they know how to do so.
    Is it your contention that if someone has an AR-15 "rifle," as defined in 26USC5845, that every time the person merely removes the upper from the lower, they no longer possess a firearm that must be registered and taxed?
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  3. #153
    Quote Originally Posted by TC215 View Post
    Nothing wrong with saying you're going to attempt to get a warrant, or seek a warrant.

    I normally only mention it if someone asks what will happen if they refuse consent, and I feel like I have PC. I normally throw in a "I don't know if the judge will give me one..." or whatever. And I make sure the conversation is being recorded.
    I'm of the mind that once you mention a warrant, any capitulation to consent is coerced. Therefore, if you are asking for consent and it isn't given, either tell them you are detaining them based on reasonable suspicion and go for the warrant, or smile, say, 'Thanks for your cooperation, be safe...'

    If they say, 'I'm not going to wait for that you can search' explain 'too bad, so sad, can't let you consent after your refused. Kind of like if they invoke their right to counsel, that's it until counsel arrives.

    Likewise, on a vehicle stop, if you believe you have PC, don't ask for consent search. Otherwise, when the guy says 'sorry officer you cant search my vehicle' and you say 'alas, young scoundrel, you are mistaken, I have probable cause and I shall search forthwith' you are going to have some 'splaining to do if your case goes anyplace.

    The 4th Amendment is a cornerstone of our individual rights, too many officers feel inclined to trample it underfoot when it suite their needs.

    JMO Your opinions will likely vary.

  4. #154
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    Quote Originally Posted by DMF13 View Post
    Is it your contention that if someone has an AR-15 "rifle," as defined in 26USC5845, that every time the person merely removes the upper from the lower, they no longer possess a firearm that must be registered and taxed?
    Do you mean a "a rifle having a barrel or barrels of less than 16 inches in length" as included in the definition of "firearm?" 26 U.S.C.A. § 5845(a)(3). A "rifle," 26 U.S.C.A. § 5845(C), is not subject to the taxation or registration requirements of the NFA (although I guess if you consider the dealer record-keeping requirement "registration" and FAET, then it still could be considered to be "registered and taxed.")

    If you're talking about "a rifle having a barrel or barrels of less than 16 inches in length," then I think there should be evidence that it was actually assembled into the configuration in the definition unless the specific definition includes language similar to the above "collection of parts" examples. I realize that this is not how the cases on the issue come down, but my point was that this is not a correct application of one of the Court's often-applied principles of statutory construction.

  5. #155
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    Quote Originally Posted by DMF13 View Post
    I know you're a bit desperate to justify your previous incorrect use of constructive possession, and your false claims there was caselaw that supported your incorrect use. There really was no reason other than that for your anecdote about the person who argued the TC case, or this entire post, but give it up already. You got it wrong, and yet you continue to "double down" on that error. As I said earlier, you weren't the one who started the problem, in general, or on the other thread in particular, you're just the one who won't quit, despite clearly being wrong on this topic.

    The term "constructive possession" has a specific meaning. Anyone who actually believes things like that are important, like many here who claim they care about the "meaning" of things, such as those relating to legal issues, including the Constitution, should stop incorrectly using, or defending the incorrect usage of, a term that has a very clear, and widely accepted, definition, especially in places like the courts.

    Alternatively, you can just say words/terms mean whatever you want, and whatever is convenient for you and your every whim, and their actual and accepted definitions are unimportant. I swear I've seen some people here complain about that approach, especially as it applies to legal issues.

    You can continue to desperately try to justify your incorrect use of the term "constructive possession," and make snide comments about "Summon(ing) DMF13," or perhaps you could just admit you got it wrong, and the term "constructive possession" has nothing at all to do with the ability construct an object, and just let it go.
    You got me . . .

    I guess I'm just not as much of a stickler for 100% accurate language at all times, including Internet forums, as you are. I also don't really care when people use "clip" to mean "magazine" or "bullet" to meant "cartridge." My point in mentioning Steve was that he even committed this terrible inaccuracy, despite the fact that he managed to win the case that you mentioned. It also happened relatively recently, and I was reminded of the prior thread on the topic at the time.

    I'm sorry if I offended you with my "Summon DMF13" comment. I thought it was a pretty decent attempt at humor.

  6. #156
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    Quote Originally Posted by BehindBlueI's View Post

    The allegation is the kit is a firearm as it contains all the parts. The kit then gets transferred across state lines and with none of the requirements for an interstate transfer. Polymer80 is in trouble because all the parts are in one kit.

    You could buy all the parts separately but that's a "you" problem, not a Polymer80 problem. If I ordered the frame alone, they didn't transfer a firearm. If I then order everything else and build it, they still didn't send me a firearm across state lines.

    So when the parts come together seems relevant. If I'm a prohibited person, and this kit is a firearm, I would suppose I can't have it regardless of how I assembled it but that's back to a "me" problem and not a Polymer80 problem. If I'm not a prohibited person and the parts alone are not a firearm, and I order them separately, at no time did a firearm get transferred across state lines and it's a nobody problem.

    To be completely clear, I'm not saying the ATF is right. I'm just saying I think that's what they are saying the issue is and there would appear to be at least some related precedent, even if no direct precedent. I would not bet on a court outcome in either way, but I am certainly curious to see how it goes.
    That actually seems like a pretty good argument. Although I don't particularly like the conclusion, I can't fault your logic.

    So, should some of the big on-line sporting goods stores (including some of this forum's sponsors) be worried? If a customer orders a P80 frame, and then fills up his/her shopping cart with all the other components, is the retailer then shipping a firearm?

  7. #157
    Quote Originally Posted by Dan Lehr View Post
    I'm of the mind that once you mention a warrant, any capitulation to consent is coerced. Therefore, if you are asking for consent and it isn't given, either tell them you are detaining them based on reasonable suspicion and go for the warrant, or smile, say, 'Thanks for your cooperation, be safe...'

    If they say, 'I'm not going to wait for that you can search' explain 'too bad, so sad, can't let you consent after your refused. Kind of like if they invoke their right to counsel, that's it until counsel arrives.

    Likewise, on a vehicle stop, if you believe you have PC, don't ask for consent search. Otherwise, when the guy says 'sorry officer you cant search my vehicle' and you say 'alas, young scoundrel, you are mistaken, I have probable cause and I shall search forthwith' you are going to have some 'splaining to do if your case goes anyplace.

    The 4th Amendment is a cornerstone of our individual rights, too many officers feel inclined to trample it underfoot when it suite their needs.

    JMO Your opinions will likely vary.
    Luckily, the courts are not of that same mind. Bumper v North Carolina has never been interpreted to mean that.

    An approach suggested by at least one court is to look at the actual words spoken by the police officer to determine whether coercion is present. For example, if
    an officer says he will "get" a warrant rather than "apply for" a warrant, he may give the citizen the impression that the issuance of a warrant is a nondiscretionary process. The citizen's consent in such a case is given in response to an implicit claim of authority. The situation resembles cases where consent was vitiated by untruthful statements by police because the police officer's failure to communicate that the warrant process is discretionary deceives the citizen.

    Judge Newman of the Second Circuit best stated the rationale of the semantic distinction approach:
    [W]ords spoken in the process of obtaining consent to waiver of a constitutional right ought to be chosen with care. The officers are not proceeding in haste to make a split second decision of their au- thority to apprehend a fleeing suspect. They face a situation that normally calls for a delay necessary
    (Harlan, J., concurring). "The course of true law pertain- ing to search and seizure has not-to put it mildly-run smooth." Chapman v. United States, 365 U.S. 610, 618
    (1961) (Frankfurter, J., concurring). See, e.g., Delaware v. Prouse, 440 U.S. 648, 653-55(1979).

    Often the exclusion of evidence will result in an to obtain a search warrant. If they are to forego the requirement, it should not be too much to ask that they take care not to confront the accused with a choice that totally obliterates the important protective function of the warrant-issuing process.
    You just have to be mindful of how you word things, and make sure it’s recorded. A defense attorney will always attack consent, and it’s important to do things the right way and prepare for it. I’ve never lost a suppression hearing where consent was attacked, and take pride in doing things the right way.

    I generally agree about vehicle stops, though there have been a few times (when I worked full-time interstate interdiction) when I would ask for consent when I had PC, to see what kind of reaction/behavior change I would get from the driver or passengers. I’ve had them say no, and do a PC search anyway— easily explained on the stand, though defense attorneys obviously question it.

    I also used to have K9 do a free-air sniff after they arrived, even if I had consent, just in case the driver revoked it.

  8. #158
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    Quote Originally Posted by Dan Lehr View Post
    Likewise, on a vehicle stop, if you believe you have PC, don't ask for consent search. Otherwise, when the guy says 'sorry officer you cant search my vehicle' and you say 'alas, young scoundrel, you are mistaken, I have probable cause and I shall search forthwith' you are going to have some 'splaining to do if your case goes anyplace. . .

    . . . JMO Your opinions will likely vary.
    I have one of the varying opinions. If I think I have PC to search the vehicle, I may still ask for consent, likewise if necessary I will also articulate the need for an inventory search before a tow. All will get explained in my report. Its a belt and suspenders approach.

    In that situation if the defense wants to claim I was wrong to search, they have to show every justification I gave was wrong, not just one. Sometimes there is only one valid reason for a search, but if you have multiple valid reasons that just strengthens the case. I've never had a prosecutor complain that I did too much to justify the search, and I've never had a defense attorney claim that merely citing more than one reason for a search was improper.

    Further, getting consent is less confrontational than merely demanding someone submit to the search. Getting consent gives the suspect some feeling of participating in the decision (they don't need to know in the moment that it wasn't required), and it can sometimes keep things calm, or at least calmer, than just launching into a search without consent. I'd much rather have suspects stay as calm possible. Generally its safer for everyone that way.
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  9. #159
    Quote Originally Posted by DMF13 View Post
    I know you're a bit desperate to justify your previous incorrect use of constructive possession, and your false claims there was caselaw that supported your incorrect use. There really was no reason other than that for your anecdote about the person who argued the TC case, or this entire post, but give it up already. You got it wrong, and yet you continue to "double down" on that error. As I said earlier, you weren't the one who started the problem, in general, or on the other thread in particular, you're just the one who won't quit, despite clearly being wrong on this topic.

    The term "constructive possession" has a specific meaning. Anyone who actually believes things like that are important, like many here who claim they care about the "meaning" of things, such as those relating to legal issues, including the Constitution, should stop incorrectly using, or defending the incorrect usage of, a term that has a very clear, and widely accepted, definition, especially in places like the courts.

    Alternatively, you can just say words/terms mean whatever you want, and whatever is convenient for you and your every whim, and their actual and accepted definitions are unimportant. I swear I've seen some people here complain about that approach, especially as it applies to legal issues.

    You can continue to desperately try to justify your incorrect use of the term "constructive possession," and make snide comments about "Summon(ing) DMF13," or perhaps you could just admit you got it wrong, and the term "constructive possession" has nothing at all to do with the ability construct an object, and just let it go.
    I guess I need to return to law school and pick up the pedantry concentration. Maybe while I'm there, I'll learn that feigned righteous indignation thing that's so popular with the local bar.

  10. #160
    Quote Originally Posted by TC215 View Post
    Luckily, the courts are not of that same mind. Bumper v North Carolina has never been interpreted to mean that.
    Are you dyslexic? LOL The court ruled the search was not consensual due to them saying 'we have a warrant.' How that compares to 'I'll ask the judge if he'll issue a warrant" goes over my head.

    Quote Originally Posted by TC215 View Post
    You just have to be mindful of how you word things, and make sure it’s recorded. A defense attorney will always attack consent, and it’s important to do things the right way and prepare for it. I’ve never lost a suppression hearing where consent was attacked, and take pride in doing things the right way.

    I generally agree about vehicle stops, though there have been a few times (when I worked full-time interstate interdiction) when I would ask for consent when I had PC, to see what kind of reaction/behavior change I would get from the driver or passengers. I’ve had them say no, and do a PC search anyway— easily explained on the stand, though defense attorneys obviously question it.

    I also used to have K9 do a free-air sniff after they arrived, even if I had consent, just in case the driver revoked it.
    I'm generally not a fan of interdiction because I feel it has corrupted a lot of officers based on the cases that I'm personally aware of.

    Howsomeever, that has absolutely nothing to do with you, since it sounds like you were crossing the t's and dotting the i's.

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