Formerly the Firearms Technology Branch (FTB) of the Bureau of Alcohol, Tobacco, Firearms and Explosives, now the Firearms Technology Industry Services Branch (FTISB), has brought us such hits as “a shoestring is a machinegun” (for which I wish Nike had sued ATF over) and “a silencer wipe isn’t a silencer part, then it was, until it wasn’t anymore.” But today marks a new era on hits from the FTISB given its November 10, 2014 determination that was just posted by an individual over Christmas, finding that the misuse of a company’s product (the Sig Brace) can transform a non-NFA firearm into an NFA firearm.
Firearm Industry Consulting Group (FICG) attorney Adam Kraut has been following the Sig brace determinations by ATF and originally wrote Black Aces Tactical, the SigTac SB15 arm brace and ATF’s misguided determination letter, wherein he cautioned on what seemed (and has now been verified) to be a change in position by the FTISB regarding the use (or more appropriately, improper use) of such a brace. Thereafter, based on an FTISB determination letter regarding the Blade AR Pistol Stabilizer, he wrote Abrakadabra from Pistol to Short Barreled Rifle and ATF’s Magical Nonsense. Most recently, after the posting of ATF’s Nov 10th determination, he posted his article Cinderalla and ATF’s Determination: The Fairy Tale of an AR Pistol to SBR through Magic, where he again reviewed the applicable law and drew into question ATF’s logic, as it clearly seems arbitrary and capricious.
But is it even more arbitrary and capricious? Let’s take a short trip down memory lane.
In March of 2014, Sergeant Bradley of the Greenwood Police Department requested a determination of whether “firing an AR-15 type pistol from the shoulder … would cause the pistol to be reclassified as a Short Barreled Rifle (SBR).” FTISB correctly responded “we have determined that firing a pistol from the shoulder would not cause the pistol to be reclassified as an SBR.” (emphasis in original). The determination letter goes on to declare, citing to FTB # 99146, that “firing of a weapon from a particular position, such as placing the receiver extension of an AR-15 pistol on the user’s shoulder, does not change the classification of the weapon.” This is the proper analysis of the law, as the definition for a rifle requires that it be “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder,” and the brace was not “intended” for purposes of shoulder firing. 18 U.S.C. § 921(a)(7); 26 U.S.C. § 5845(c).
In fact, in the Nov 10th determination, ATF specifically finds, “a Sig SB-15 shooting brace is not designed or intended for firing a weapon from the shoulder.” Whoopsie!
Since ATF readily (and correctly) acknowledges that the Sig SB15 was not designed or intended for purposes of shoulder firing, it cannot, contrary to its determination, constitute an SBR because of improper use. As Attorney Kraut correctly points out, by simply placing the Sig Brace (or other similar brace) to one’s shoulder does not result in the firearm being designed or redesigned or made or remade. While there may be an argument if the Sig Brace was modified in some way, such as adding a buttstock or cushioning pad to it, that it thereafter would fit the definition, it clearly cannot be an SBR absent any modifications, as ATF has already found that it was “not designed or intended for firing a weapon from the shoulder.”
More importantly, if ATF’s twisted logic is upheld, it would transform any handgun, for which someone uses two hands, into an AOW, because a handgun “is designed to be held and fired by the use of a single hand” and ATF has held that a handgun that is designed for requiring two hands is an AOW, in relation to vertical front grips.
It is also interesting to point out that both letters, where actually signed by the same individual at ATF. While the March 5, 2014 Bradley letter reflects the typed name of Earl Griffith, it is clearly not the signature of Earl Griffith and reflects that Max Kingery was signing on behalf of Early Griffith. When comparing the Nov 10, 2014 letter, which reflects the typed name of Max Kingery, to the Bradley letter, the signatures are identical.
So, the question is, on what legal and reasoned basis did Acting Chief Kingery go from finding that “we have determined that firing a pistol from the shoulder would not cause the pistol to be reclassified as an SBR” to “if this device, un-modified or modified, is assembled to a pistol and used as a should [sic] stock, in the designing or redesigning or making or remaking of a weapon designed to be fired from the shoulder, which incorporates a barrel length of less than 16 inches; this assemble [sic] would constitute the making of ‘a rifle having a barrel or barrels of less than 16 inches in length’; an NFA firearm as defined in 26 U.S., Section 5845(a)(3)”?
While an administrative agency, such as ATF, is permitted under the law to change positions in relation to a prior determination, under the Administrative Procedures Act, it must provide a reasoned explanation, which is noticeably absent, especially in light of ATF’s prior determinations, including that “placing the receiver extension of an AR-15 pistol on the user’s shoulder, does not change the classification of the weapon.”
Or, is it not as bad as it seems? If one reads the tortured text in the 6th paragraph of the second page of the Nov 10 letter, is it possible that ATF is attempting to limit the determination to a scenario where the person purchases a virgin receiver and forearm brace with the intent, at the time of building the firearm, to use the forearm brace to shoulder fire the firearm; thereby, resulting in a weapon being made and intended to be fired from the shoulder? This would be extremely difficult for ATF to prove in a court of law, if it would not be a violation for someone to purchase an AR-15 style pistol with the brace already affixed and misuse the firearm by shoulder firing it, since the firearm was never intended to be shoulder fired when made. If this is ATF’s position, it is EXTREMELY important to follow Rule # 1 – NEVER speak to law enforcement, as the Government would need to prove that you intended it to be shoulder fired when you made it. However, this argument overlooks the fact that the 6h paragraph of the letter never addresses the “intent” aspect, as required by the definition of a rifle. ATF conveniently glosses over this issue, maybe due to the fact that it already held that the Sig Brace was “not designed or intended for firing a weapon from the shoulder,” which further draws into question the status of the Sig Brace, as well as, other forearm braces.
As more comes to light regarding this recent determination, as well as any further determinations from ATF regarding forearm braces, we will keep you apprised. While there is some conjecture on the internet that the Nov 10th letter is a forgery, I have not seen anything to support this conclusion. If someone did forge the ATF’s letterhead and Acting Chief Kingery’s signature, the Industry response, although massive, will not be anything in comparison to the response brought by the Government through criminal charging. If you have any evidence to support that this is a forgery (as we all can only wish for) or if you are contacted by law enforcement regarding your alleged misuse of a forearm brace, please feel free to contact us – 888-313-0416 or email.
UPDATE: There was something bothering me about this determination and I couldn’t put my finger on it…then I remembered. It is the place that 99% of lawyers overlook, the definition section. Very few people take notice that the definition of a handgun includes as part of the definition a “short stock”. Section 921(a)(29) declares that the definition of a handgun is “(A) a firearm which has a short stock and is designed to be held and fired by the use of a single hand.” I am not sure if there has been any litigation or court decisions over what constitutes a “short stock” but it is something that needs to be investigated.