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9/22/2017 12:11:25 AM
Posted: 3/7/2001 3:40:28 PM EDT
I own an Essential arms lower that I have built into a Pre-Ban M4 configuration. Collapsible stock, threaded barrell etc. I do not have a reciept! When I bought the lower, it was explained to me that all E.A. lowers were preban. If I were ever questioned where would the burden of proof lie? Does anyone know of anyone ever being questioned by the authorities about something like this?
Link Posted: 3/7/2001 6:22:52 PM EDT
as with all criminal cases the burden of proof lies on the defendant
Link Posted: 3/8/2001 4:31:42 AM EDT
You are!
Link Posted: 3/8/2001 4:49:03 AM EDT
has anyone ever heard of an incident where a LEO questioned or verified a weapon's status of pre-ban vs. post ban? (if it had a flash hider or colapsable stock, etc.)
Link Posted: 3/8/2001 4:58:01 AM EDT
Originally Posted By markm: has anyone ever heard of an incident where a LEO questioned or verified a weapon's status of pre-ban vs. post ban? (if it had a flash hider or colapsable stock, etc.)
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Based on that suspicion alone? NO, and I deal with these guys a lot (at least in the Eastern District of the 4th Circuit). However, don't ever take any chances on an illegal configuration, it's just not worth the risk for a couple of kewl features.
Link Posted: 3/8/2001 8:42:13 AM EDT
18 USC 922(v)(1) bans [b]ALL[/b] assault weapons. 18 USC 922(v)(2) exempts those weapons legally possessed prior to 9/13/94. Since ALL assault weapons are banned, and the US Attorney only has to show that the weapon is an assault weapon, it is up to the owner/defendant to provide proof that the weapon was assembled as an assault weapon, or complete weapon kit, prior to 9/13/94. A prosecution under this section will almost always be an additional charge to some other violation(s). I really don't expect this as the sole charge unless you are dumb enough to display an illegal weapon at a range in front of a Federal LEO.
Link Posted: 3/8/2001 9:21:49 AM EDT
On a side note, I've heard of a 'situation' (from a reliable source) of a LEO trying to confiscate a pre ban AR by saying it was illegal and hence contraban. This AR was set up w/ the collapsable stock, 16" upper, bayonet lug, flash hider and the barrel has the step down for the launcher. (looks just like the one on the upper corner, the AR logo). The LEO said that it was an illegal configuration. As the story goes, the owner informed the LEO it was legal because it was a pre ban weopon which allowed those features to be present. The LEO kept on insisting that it was illegal and was going to take it. Eventually, the LEO gave up...since the owner (staying calm) repeate the same information, it was pre ban, it was legal. But if an LEO wanted to be a "butt head" (excuse me to any LEO's...I have LEO friends) they could say that the indiviual became "aggitated" or something, charge them w/ some thing and take the weopon. And you end up paying a load to try to clear up the mess. I know LEO's that say there are people out there like this. Just a FYI.
Link Posted: 3/8/2001 4:33:46 PM EDT
hmmmm... what ever happened to "innocent until proven guilty"??? The fact that an individual must present proof that they are NOT breaking the law, as opposed to the government having proof that the individual IS breaking the law doesn't sit right with me. To use an analogy, let's say that we were not required to register our vehicles (like most of us aren't required to register AW). Using the same logic applied to firearms, any officer could arrest you and confiscate your vehicle on the spot because you don't have proof that the vehicle isn't stolen, even though the law didn't require carrying such proof!!??!? Well guess what, there is no legislation (at least where I'm from) that says you need to register and/or carry proof of pre-ban AW status, like you would a vehicle registration. Constitutionally or ethically, is anyone else bothered about this? Where are our proscribed freedoms and rights of due process going????
Link Posted: 3/8/2001 5:24:06 PM EDT
[Last Edit: 3/8/2001 5:36:37 PM EDT by Steve-in-VA]
Originally Posted By zol: Constitutionally or ethically, is anyone else bothered about this? Where are our proscribed freedoms and rights of due process going????
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Relax, despite what anyone says, the BURDEN OF PROOF IS ON THE GOVERNMENT. If you are charged with an illegal configuration, they must at least prove their prima facia case, that the configuration is illegal as a matter of probable cause. If they do, the burden then, and only then, shifts to you. The burden does not shift (as to proof of essential elements) in criminal cases with very limited exceptions, but those are what's called strict liability crimes. This crime does not fall within that catagory. Dave G, right on the law, wrong on the burden of proof question. The indictment/information would have to allege "possession of an assault weapon in violation of 18 USC 922". Since the illegality rests on the [i]time[/i] of configuration (that is the graveman of the offense itself!), to prove their case in chief, I believe they would have to show, through an ATF expert (or otherwise), that the weapon was not exempted- ie. configured after 9/13/94. Why, because it is an essential element and further since Congress codified the exemption within the Code section. Otherwise, on a motion to strike, the government loses since the court has no way of knowing when, exactly, the configuration took place and therefore cannot find, even as a matter of probable cause, that it was configured in violation of the Code section.
Link Posted: 3/8/2001 6:22:47 PM EDT
Originally Posted By Steve in VA: I believe they would have to show, through an ATF expert (or otherwise), that the weapon was not exempted- ie. configured after 9/13/94. Why, because it is an essential element and further since Congress codified the exemption within the Code section. Otherwise, on a motion to strike, the government loses since the court has no way of knowing when, exactly, the configuration took place and therefore cannot find, even as a matter of probable cause, that it was configured in violation of the Code section.
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Thanks for the input. So if I understand you correctly Steve, they would have to prove that the gun was not assembled before the ban. Wouldn,t that be fairly easy to do? I know the ATF has all serial numbers, couldn't they just look up the # and determine the date of the configuration of the gun? Specifically in my case, wouldn't they be able to tell if it was not assembled into a rifle before the ban. I am not saying that my AR15 is illegal, the fact is I guess I really don't know. I was new to the AR scene when I bought it and now I am wondering if I should spend the money to have the ATF do a check!
Link Posted: 3/8/2001 8:20:04 PM EDT
dpms took over EA after they folded...if you need anything verified you just ask them
Link Posted: 3/8/2001 9:36:02 PM EDT
BESAFE, The ATF does not have a COMPLETE list of firearms. They probably wish they did have one, but they don't. It all depends how EA went out of bussisness. If they closed up shop before DPMS bought them out then their books would have gone to the BATF. If DPMS bought them out before the doors closed then the books would go to DPMS. It's next to impossible for the ATF to trace a firearm once it has left the manufacturer, unless it has been sold by a FFL liscense holder who has gone out of busisness and has sent their books to the ATF. I think more than anything this lack of the ablility of the ATF to trace firearms is what's going to bring about manditory firearms registration. Too many people have twisted the truth to the point where the sheeple think it makes perfect sense to be able to track where each and every firearm is in America.
Link Posted: 3/8/2001 10:48:22 PM EDT
OK Steve, ya got me. I left out the part about the US Attorney/BATF likely not filing unless they could prove that, at the absolute minimum, that the weapon left the factory in a configuration other than that of an assault weapon on rifles/receivers shipped prior to 9/13/94. If they can prove non-preban status, all the better for them. They have the assets and the authority to trace the weapon at least as far as the first FFL holder and first buyer. If it is important to them, they will make their best effort. There is one thing you have to remember about prosecutors. They will pile on every last charge they can in order to encourage the defense to cop to something less than the jackpot just to get a conviction. Can you say, "Plea Bargain?" Here's an interesting one for you to think about. Eagle Arms/ArmaLite still had brand new, pre-ban EA-15 carbines to sell into late 1999. I was told by someone there that the receivers were documented as complete "kits" prior to the date. All that would have been required for that would be one box with all the parts required to make one pre-ban assault weapon. Place the lower receiver in the box, record the serial number, replace the lower receiver in the box with another one, record the serial number...You get the drill. Once recorded as a pre-ban receiver...Even receivers with defective finishes "went in the box." I also was informed that BATF is aware of the identity of Eagle Arms rifles that left the factory in non-assault weapon configuration prior to the ban. My memory isn't perfect on this, but if they have already firmed up their records with one manufacturer in business on 9/12/94, you can bet they did it with others, too. So don't be too sure that they haven't built up a database already.
Link Posted: 3/9/2001 3:34:59 AM EDT
Originally Posted By Dave G: There is one thing you have to remember about prosecutors. They will pile on every last charge they can in order to encourage the defense to cop to something less than the jackpot just to get a conviction. Can you say, "Plea Bargain?"
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Amen! And in federal court, it's always a "race to plea" given the point reductions for acceptance of responsibility under the guidelines and the potential for a sentence reduction under Rule 5K.1 or 35B (which can be hefty if your client plays his cards right). I did not know that about the Eagle Arms kits- I'm sure the ATF guys have all the numbers- sounds like a lot of fun (eyes rolling).
Link Posted: 3/9/2001 4:34:16 AM EDT
They didn't have any trouble finding an "expert" to declare the Maadi-Griffin kits as "firearms," although all the "expert" would do is fire a blank cartridge in the "easily assembled" kit, not a real cartridge. He still had work to do, and hadn't even begun to work on headspace! The point is, they have UNLIMITED resources, and have proven that they WILL do things that we would consider unconstitutional and ethically wrong. I don't agree with the principle of having to "prove" pre-ban status any more than the rest of you. However, I know that, unless G. W. turns things around, that the ATF has acted, in several situations, like a rogue agency that should be reigned in for some "civility" and "constitutional law" instruction, and told that they WILL tone it down, or there will be consequences. JMHO
Link Posted: 3/9/2001 6:34:50 AM EDT
A blank cartridge [b]IS[/b] a real cartridge, though not one with a projectile. It was real enough. Also, the moron in question was a convicted felon. He should have known better than to publicly "flip-off" the BATF.
Link Posted: 3/9/2001 9:00:49 AM EDT
the ATF has acted, in several situations, like a rogue agency that should be reigned in for some "civility" and "constitutional law" instruction- Hambone
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Hambone, this is what I was hinting at in my first post. I agree with Steve's reassurance to my original message, but that was not my point. If anything did go to court because the DA was an a-hole/incompetent/anti-gun, and you end up winning because the ATF couldn't win the "guess the date" game, where does that leave you? Your AR-15 and now possibly other weapons have been confiscated as evidence for god-knows-how-long, you've spent everything you've got to hire a good lawyer to keep yourself a rightfully free man, your family life is no doubt now under terrible strain if not to the breaking point, and now you have been dragged around in public as some kind of weapons-building terrorist. All because allegedly your receiver wasn't a complete rifle before the ban but they couldn't prove it, or a number of other myriad scenarios. You call this winning?
Link Posted: 3/9/2001 9:40:50 AM EDT
Originally Posted By zol:
the ATF has acted, in several situations, like a rogue agency that should be reigned in for some "civility" and "constitutional law" instruction- Hambone
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Hambone, this is what I was hinting at in my first post. I agree with Steve's reassurance to my original message, but that was not my point. If anything did go to court because the DA was an a-hole/incompetent/anti-gun, and you end up winning because the ATF couldn't win the "guess the date" game, where does that leave you? Your AR-15 and now possibly other weapons have been confiscated as evidence for god-knows-how-long, you've spent everything you've got to hire a good lawyer to keep yourself a rightfully free man, your family life is no doubt now under terrible strain if not to the breaking point, and now you have been dragged around in public as some kind of weapons-building terrorist. All because allegedly your receiver wasn't a complete rifle before the ban but they couldn't prove it, or a number of other myriad scenarios. You call this winning?
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BESAFE, I hope these experts are going to be at your trial to help you "win" this case...How much is it going to cost you? ZOL, I have to agree with you about the length and cost of such a BS trial. FACT: You will spend several $$$ trying to prove your innocence. It is guilty unless you can prove you are innocent! Just take all your ID and leave it at home...Take all your license plates and serial #'s off your car and go through town at the posted speed limit and pass several LEO's. Just see how "innocent" you are! EA lower = $600. BM, Colt or Eagle Arms lower = $900. Letter from one of these manufacturers proving gun was Pre-Ban = Priceless!!! As for myself I will stay legal beyond a shadow of a doubt. Lynn [uzi]
Link Posted: 3/9/2001 11:44:56 AM EDT
BD66, do you trust the government agencies to be fair in all cases? I said I don't agree with the law. I don't agree with the way regulatory power is being abused. I'm like you. I choose to be far, far, far over on the safe side of the law. Past events have proven that, even though our constitution says "innocent until proven guilty," the opposite is how some situations are usually handled. Did you know that they confiscated all of the firearms from the father of the kid who shot the school up in CA with a .22 revolver? Does that sound like "innocent until proven guilty?" The father said the pistol was locked up. Do we know for sure? NO. Is he guilty? NO. Not unless the prosecutor can convince a jury that the pistol was NOT locked up. Should they confiscate ALL of his legally owned firearms? HECK NO! Just the one used in the commission of the crime, as evidence. In most cases, it's CONFISCATE NOW, and let the poor guy with a job, family, house payment, and grocery bill try to find enough money to hire a lawyer to get his PERSONAL PROPERTY, ILLEGALLY CONFISCATED BY THE FED. GOVT back for him. I think we agree here that the safe road is the best road. I think we both agree that the regulatory agency in this case would choose to err on the "oppressive" side and confiscate now, ask questions later. However, I don't get the crack about "these experts" being with him in court. I never stated that I was an expert, or even a lawyer. I simply stated my opinion based on extensive research into the Assault Weapons Ban. For a bill written by a bunch of politicians, it is pretty simple to read and understand, even if it is a stupid way to approach something. IMHO, it's a solution looking for a problem, but we must live with it until someone is able to do something about it. And I admit that, unless you make a big booboo, you probably won't ever be checked for "Semiautomatic Assault Ban Compliance." It's a decision each individual must make based on how much they put at risk by being in the "gray area." I hope the ban sunsets in 2004. Until then, I'll err on the safe side of the law, and grit my teeth the whole time I am doing so. Steve, I understand the way things "should" be, but isn't it obvious that some regulatory agencies "go a little overboard" in their enforcement tactics? Is it possible that an agent and prosecutor could stretch the limits of their authority and make it a bloody hell trying to get private property back, even though the person is innocent of any crime? Doesn't it stand to reason, then, that it's better to err on the safe side and humor this stupid, unconstitutional law until something can be done about it? To each his own, YMMV, INALBIPOOTV, yada, yada
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