Photo provided courtesy of Unsplash.com
By Matthew Naum, Staff Writer
Beginning in 2014, a string of attempted federal prosecutions has left the Department of Justice’s gun control efforts in jeopardy. Since the passage of the Gun Control Act of 1968, the United States government has deemed a single component of all firearms in this country subject to regulation: the frame or receiver of the firearm. [1] The frame or receiver is defined as the part of a firearm that contains “the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward position to receive the barrel.” [2] Thus, since 1968, the part of the gun that houses the trigger is legally deemed a “firearm” in the United States and subject to the same regulations as a fully intact weapon. [3] In part, this definition of a firearm was intended to keep felons and others prohibited from firearms ownership from building a fully functioning firearm piece by piece. [4] However, according to a former agent at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the ATF has been deliberately misinterpreting this definition for decades to prosecute individuals for possessing or selling receivers for AR-15 rifles and other firearms.< [5]
Dan O’Kelly spent 23 years with the ATF as the Lead Instructor of Firearm Technology and co-wrote the curriculum for incoming agents. [6] [7] Since O’Kelly left the ATF eight years ago, he has testified for the defense in several federal prosecutions and investigations and stated that roughly 60% of guns in the United States do not have a single part falling under the definition in the US code. [8] The issue is that the AR-15, which was designed by Eugene Stoner in 1959, has a receiver that is split into upper and lower parts, and therefore does not neatly fit the definition set forth in US code. [9] O’Kelly’s first worked on a case involving this definition in 2014, where the owner of a California-based company had roughly 6,000 parts taken by the ATF that were deemed “receivers” because they lacked the requisite license to sell firearms. [10] The owner was ultimately never charged with a crime and his lawsuit to have his property returned was successful with the help of a declaration of support submitted by O’Kelly. [11] O’Kelly assisted in another case in 2016, in which a convicted felon was arrested for purchasing an AR-15 lower receiver. [12] With the help of O’Kelly, the indictment was dismissed under the theory that the defendant possessed a firearm or receiver under the relevant statutory and regulatory framework.< [13]
In 2018, O’Kelly testified for the defense in a trial concerning possession and manufacture of AR-15 lower receivers. In this case, Joseph Roh ran a company that manufactured unfinished lower receivers into finished receivers and assembled them into functioning AR-15s without a federal firearms license. [14] After a bench trial, Judge James Selna, for the U.S. District Court for Central District of California, issued a tentative order in 2019, after one year of deliberation, in which he determined that the ATF had improperly classified AR-15 lower receivers as firearms and that the combination of federal law and regulation governing the manufacture of receivers is unconstitutionally vague. [15] Roh was found to have sold complete firearms without a license, but ultimately took a plea deal in which Roh to plead guilty to the charge against him in exchange for staying out of legal trouble for one year; then he could withdraw the guilty plea and the case would be dismissed. [16] According to CNN, sources familiar with the agreement stated that the intent of the deal was to avoid the judge’s order becoming permanent, creating caselaw and drawing publicity that would undermine gun control efforts. [17]
In 2019, O’Kelly testified in another case concerning lower receivers that resulted in charges being dismissed by a federal judge for two individuals indicted for illegally acquiring and possessing lower receivers. [18] Judge James Carr of the Northern District of Ohio held that it was apparent that the ATF’s interpretation of the definition of receiver is inconsistent with the language of the regulation and that lower receivers do not fit within the definition of “frame or receiver” as set out by the statute. [19] Furthermore, he wrote that the problem the split design of the AR-15 receiver posed to regulation under the relevant statutory definition has been apparent since the early 1970’s when the IRS was responsible for firearms regulation. [20] Additionally, O’Kelly testified in court that during his employment, he warned ATF officials that lower receivers did not fit the statutory definition of a receiver, but his warning was ignored. [21]
To date, neither the ATF nor the Congress has made any moves to correct the regulatory scheme and individuals continue to be prosecuted for illegal possession of lower receivers. [22] In the meantime, O’Kelly posits that “a lack of logic and consistency . . . has created a climate in the firearm industry wherein it is nearly impossible for the reasonable man to be able to operate in good faith with the law.” [23] Dan O’Kelly will continue to testify in similar cases because he states that he is only telling the truth about these laws and regulations, and in his own words: “If you have a problem with the truth, who’s the bad guy?” [24]
[1] https://www.cnn.com/2020/02/07/us/ex-atf-agent-ar-15/index.html
[2] 27 C.F.R. § 478.11 (2019)
[3] Id.
[4] https://www.cnn.com/2019/10/11/us/ar-15-guns-law-atf-invs/index.html
[5] https://www.cnn.com/2020/02/07/us/ex-atf-agent-ar-15/index.html
[6] Id.
[7] https://www.gunlearn.com/staff/dan-okelly/
[8] https://www.cnn.com/2020/02/07/us/ex-atf-agent-ar-15/index.html
[9] 27 C.F.R. § 478.11 (2019).
[10] Id.
[11] Id.
[12] United States v. Jiminez, 191 F.Supp.3d 1038, 1039 (N.D. Cal. 2016)
[13] Id. at 1046.
[14] https://ktla.com/news/feds-fear-prosecuting-la-habra-based-gun-dealer-would-hurt-gun-control-efforts/
[15] Id.
[16] Id.
[17] https://www.cnn.com/2020/02/07/us/ex-atf-agent-ar-15/index.html
[18] United States v. Rowold, No. 3:18CR387, ___F.Supp.3d___ , 2019 WL 6888154 (Dec. 18, 2019)
[19] Id. at 6-7.
[20] Id.
[21] https://www.cnn.com/2020/02/07/us/ex-atf-agent-ar-15/index.html
[22] https://apnews.com/396bbedbf4963a28bda99e7793ee6366
[23] https://www.cnn.com/2020/02/07/us/ex-atf-agent-ar-15/index.html
[24] Id.
