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Ares Armor and ATF hearing taken off calendar as more questions emerge

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The United States District Court, Southern District of California on Wednesday granted a joint motion filed earlier in the day by attorneys for Ares Armor and the Department of Justice. The order vacated as moot a preliminary injunction hearing scheduled for Thursday, vacated the Temporary Restraining Order issued on March 11 (and the modification issued on March 14), and affirmed Ares Armor’s rights to file an amended complaint and to seek further injunctive relief.

“In consideration of the specific injunctive relief requested by the [temporary restraining order obtained by Ares Armor on March 11] to prevent the seizure of the Property [i.e., the precursor receivers and customer information], the Court’s modification of the TRO on March 14, the issuance of a search warrant and the subsequent execution of that warrant and seizure of the Property by the Defendants on March 15, 2014, the request for injunctive relief to prevent the seizure of the Property appears moot,” the motion explained. “Judicial economy and the parties’ interests in preserving resources for litigating the actual merits of this case are furthered by dropping the preliminary injunction issue at [t]his time.”

“[T]he requested injunctive relief is now moot, and ... going forward with the hearing would be a waste of resources,” the court agreed.

Today’s motion and order marks the bringing out of the big guns, as Ares Armor was represented by Chuck Michel of Michel & Associates, P.C. Michel’s clients include the National Rifle Association and its state affiliate, the California Rifle and Pistol Association. Additionally, NRA’s lawyers and experts are assisting on the specific legal and technical issues.

Michel’s firm has litigated literally hundreds of firearms cases involving constitutional issues, including Second Amendment challenges, in both state and federal trial and appellate courts, and over the years Michel has helped both draft as well as advocate against ill-conceived legislation in order to protect California gun owners. Most recently, Michel’s firm brought us the tremendous win in the NRA-sponsored Peruta case which, if it withstands further Ninth Circuit or Supreme Court review, will bring shall-issue to California.

In related developments, legal sources advise Gun Rights Examiner that actions against EP Armory and Ares Armor were initiated in large part because of law enforcement interest in so-called “build parties,” including when such collaborative efforts would legally be considered “manufacturing firearms.” Concerns expressed by the California Department of Justice were also said to play an influential role in ATF’s decision to assert itself through the recent investigations and seizures.

One source gave strong warning that owners of facilities where equipment and guidance are provided must exercise caution to keep things legal. Law enforcement agents have reportedly conducted stings resulting in prosecutable arrests merely by requesting assistance or feigning lack of operating skill to complete metal or polymer precursor receivers like the ones sold by Ares. Well-meaning proprietors and employees could then be caught up along with those knowingly and actively skirting the rules, it was emphasized.

Speculation is also rampant as to the legal status of the precursor receivers, commonly though from a legal perspective not really accurately referred to as “80 percent lower receivers.” EP Armory is said to have submitted their polymer precursor receiver to ATF’s Firearms Technology Branch, which concluded that it was a “firearm” under the law based on a misunderstanding of the sequence of the manufacturing process. Per BearingArms.com, “EP Armory’s lowers are injection-molded ... and they claim that their build order [has] the sprue in the fire control group area constructed first, and the rest of the receiver molded around it, which would seem to make it compliant as constructed.”

EP Armory was (and still is, now represented by the Michel firm) contesting that FTB determination and seeking a correction when ATF opted to take action. EP's lawyer at the time contested the FTB's initial determination, and the Michel firm is now continuing to pursue a correction from the FTB.

At this point it is unknown if FTB will reconsider based on the clarified manufacturing process, or whether FTB might consider the precursor receiver a “firearm” regardless based on the effort and sophistication necessary to complete the receiver and make it functional. Also at issue is whether ATF agents relied on the FTB assessment or had subsequent information leading them to question it, which could have implications on sworn “probable cause” statements they submitted to the court in order to obtain warrants for seizures from Ares, EP Armory, and other suppliers.

A final caution expressed to this correspondent deals with Ares Armor customers who may be approached by law enforcement investigators. First is the admonition to not speak with authorities, something gun owners ought to be aware of without needing to be reminded, to not consent to any searches without warrants, and to demand to speak with an attorney. They can also email Michel’s firm at HELPDESK@MICHELLAWYERS.COM.

That said, because simply purchasing a “firearm” (assuming the precursor receivers are “firearms under the law) from a non-dealer is not a federal crime, the feeling is individuals who purchase a single EP lower may be viewed more as witnesses, as opposed to suspects, although that should not be assumed and all cautions apply. Expect law enforcement, for obvious reasons, to focus on those who bought these lowers in quantity.

How ATF will determine who those people are is still unclear. Perhaps receipts will indicate part numbers and credit/debit accounts used will tie that in to the individual. Perhaps there is a mailing list, and/or a combination of other records.

This column will continue to monitor the situation for breaking information and bring updates as warranted.

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