OSD 244: You’re so vague you probably think this law is about you

Larry Vickers pled guilty last week to a set of federal charges related to the importation and transfer of various firearms:

This settles the mystery of why the ATF seized his collection two years ago. It also highlights something interesting about the way federal law works.

18 USC § 922(o) reads:

(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to—

(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

Since 1986, that section of law has prevented the purchase of new machine guns. Subsection (2)(A) creates an exception to that for government agencies, including law enforcement, and that’s what Vickers is charged with conspiring to violate. The way the exception works is that if you’re an appropriately licensed FFL, you can import or buy a machine gun if a law enforcement agency asks you to demo it for them. Vickers was himself an appropriately licensed FFL and had a buddy who was also such an FFL. Vickers also had some buddies who were chiefs of their local police departments.

According to the plea agreement, from time to time Vickers would text one of his chief-of-police buddies and say, in effect, “Hey there’s this cool machine gun out there. If you jump through the hoop of writing me a letter saying that you’re at least theoretically interested in testing it out for your department, then I can order it and we can play with it.”

Which seems … perfectly legal? Sure, it’s not the spirit of the law, but in court the letter of the law is what counts. As is tradition, Congress left it up to an administrative agency to write the actual details that matter. The ATF did so in 27 CFR § 479.105(d):

Subject to compliance with the provisions of this part, applications to transfer and register a machine gun manufactured or imported on or after May 19, 1986, to dealers qualified under this part will be approved if it is established by specific information the expected governmental customers who would require a demonstration of the weapon, information as to the availability of the machine gun to fill subsequent orders, and letters from governmental entities expressing a need for a particular model or interest in seeing a demonstration of a particular weapon.

So if the police chief writes you a letter saying he’s interested in demoing a particular machine gun, you can buy it. Hmm, sounds like Vickers is still in the clear.

The law is so vague that the ATF has had to release open letters explaining what they really meant when they wrote the regulation (which regulation was itself written by the ATF to explain what Congress really meant when it wrote the law). The latest open letter, from January 2023, says among other things that the police demo letter has to be “written on the government entity’s letterhead” and “dated within one (1) year of the date of the receipt of the application”. These are the formatting details that the ATF uses to discern your true intent.

Another fun fact: the letter gets submitted to the ATF along with your application to transfer the machine gun. So Vickers got his demo letters over the years, submitted them to the ATF, the ATF approved them, and then years later the ATF looked into it and decided that when the police chief said he was potentially interested in demoing the guns, he wasn’t really interested enough. How much interest is enough? How serious does the police chief have to be? How would you even measure his seriousness? Can he change his mind later? It doesn’t say anywhere in the law, but the ATF is free to decide on the answer years after your purchase and then prosecute you accordingly.

That raises the obvious question here: if this law is so indefensibly vague, then why did Vickers plead guilty?

It turns out that the better question is why wouldn’t he plead guilty. For prosecutors, the broadness and vagueness of federal law is a feature. It means that everybody is guilty of violating a bunch of laws — especially in a domain as heavily regulated as machine gun imports — and prosecutors can simply decide who to charge.

In practice, the way this works is that prosecutors get a hook into someone (for Vickers it was perhaps the sanctions violations) and then go looking for additional charges. Those will be easy to find, and then prosecutors come to the defendant and say, “We have 20 charges against you. Each one is punishable by five years in prison. You can go to trial and risk a 100-year prison term, or you can plead guilty and we’ll ask the judge to let you off with a one-year stay at Club Fed.”

Even a clearly innocent person (let alone a defendant who isn’t squeaky clean) would be crazy not to take that deal. And that’s the way it shakes out in real life — 98% of federal convictions are obtained through plea bargains. On paper there’s a right to a trial by jury. But in practice, 98% of convicts (including, now, Larry Vickers) were extorted into giving up that right. (A more famous, non-gun-related example is the celebrity college admissions scandal. Lori Laughlin of Full House fame initially refused to plead guilty, insisting on her right to a jury trial. Prosecutors then retaliated by filing additional charges against her punishable by up to 45 years in prison. Lo and behold, she then “voluntarily” forfeited her right in exchange for getting just two months in prison.)

There’s a lot of bravado in the gun community about civil disobedience. We wrote about the value of that in “OSD 114: One size fits each”. But a case like Vickers’s illustrates that in this space, the government has much more leverage than you do. It’s important to know the law and to know that even when the government’s view of the law is wrong, they have a lot of ways to win anyway.

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This week’s links

Washington state senator accidentally brings a gun to Hong Kong and now can’t leave

“Now youse can’t leave.”

“Criminal Use of Firearm Silencers”

h/t Discord user @Desolator

One of the harshest penalties in the federal system is a 30-year mandatory minimum sentence for possession of a silencer (used to reduce the noise of a gunshot) during a “crime of violence” or drug trafficking.

…

This can result in lengthy prison sentences for otherwise minor crimes. Consider the case of Edward Thompson who received three years for drug trafficking but additionally was convicted of possessing a firearm equipped with a silencer and possession of an unregistered silencer (U. S. v. Thompson, 82 F.3d 849 (9th Cir. 1996)). Possession of a firearm with a silencer increased Thompson’s penalty for drug trafficking from three years to forty years. This is a more severe penalty than is received by many defendants convicted of homicide or rape.

The basic assumption behind the statute appears to be that 1) firearms with silencers attached are more deadly than ordinary, non-suppressed firearms, and 2) silencers are likely to be used by professional criminals who deserve to be severely punished. This paper seeks to examine those assumptions and explore exactly how silencers are, or are not, used by criminals.

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