Here we have the case of U.S. v. James Vest (Case No. 06-cr-30011-DRH), US District Court for the Southern District of Illinois, HERNDON, District Judge.
In this case, an Illinois State Policeman is being prosecuted by the US Government (BATF&E) for unlawful possession of a machine gun in violation of 18 U.S.C. §§ 922(o) and 924(a)(2) and for possessing a machine gun transferred in violation 26 U.S.C. §§ 5812, 5861(b) and 5871.
The defendant has made the pretrial motions to dismiss on the grounds that the laws are unconstitutionally vague "as applied" to this case.
During the course of the briefings (and a careful reading of the 26 page Dismissal) the sole objection of the Government was that the officer had the weapon at home. It was noted by the Government that the officer never used the weapon for anything other than official police business. The Government was caught in its own complicity when questioned by the court as to certain hypotheticals. i.e., that Vest, as a Lead Rifle Instructor had lawful authority to issue like weapons to other officers on a firing range, who could not be prosecuted, but that his superiors had no lawful authority to issue the weapon to him. That as the Equipment Officer, he had lawful authority to issue like weapons to the Illinois TRT (which were kept at home) but that his superiors had no lawful authority to issue said weapon to Vest.
This led the court to believe that the Government could, and in this case did, arbitrarily prosecute any officer. A requisite for vagueness.
Another argument of the Government was that the institution itself was the holder of the weapon and not the individual actors. The Court itself demolished this argument, as who is the lawful authority of the institution, if not the actors themselves! Under this interpretation, even a BATF&E agent who takes possession of an unlawful weapon then becomes an instant felon as the agent is not the lawful authority, under the Governments definition. Again, another criteria to "as applied" vagueness.
A look at the offending statutes as supplied by the court:
The court inquired:
In conclusion:
What does this mean for the everyday citizen? Not a whole lot. But I suspect, any chink in the armor of 922(o) is a win for us all, nonetheless!
Since the District Court was reduced to ascertaining legislative intent and quoted passages of the Senate in enacting the FOPA, it may well be that such can be done in another well crafted and not too dissimilar case.
In this case, an Illinois State Policeman is being prosecuted by the US Government (BATF&E) for unlawful possession of a machine gun in violation of 18 U.S.C. §§ 922(o) and 924(a)(2) and for possessing a machine gun transferred in violation 26 U.S.C. §§ 5812, 5861(b) and 5871.
The defendant has made the pretrial motions to dismiss on the grounds that the laws are unconstitutionally vague "as applied" to this case.
During the course of the briefings (and a careful reading of the 26 page Dismissal) the sole objection of the Government was that the officer had the weapon at home. It was noted by the Government that the officer never used the weapon for anything other than official police business. The Government was caught in its own complicity when questioned by the court as to certain hypotheticals. i.e., that Vest, as a Lead Rifle Instructor had lawful authority to issue like weapons to other officers on a firing range, who could not be prosecuted, but that his superiors had no lawful authority to issue the weapon to him. That as the Equipment Officer, he had lawful authority to issue like weapons to the Illinois TRT (which were kept at home) but that his superiors had no lawful authority to issue said weapon to Vest.
This led the court to believe that the Government could, and in this case did, arbitrarily prosecute any officer. A requisite for vagueness.
Another argument of the Government was that the institution itself was the holder of the weapon and not the individual actors. The Court itself demolished this argument, as who is the lawful authority of the institution, if not the actors themselves! Under this interpretation, even a BATF&E agent who takes possession of an unlawful weapon then becomes an instant felon as the agent is not the lawful authority, under the Governments definition. Again, another criteria to "as applied" vagueness.
A look at the offending statutes as supplied by the court:
and
In the above, the Court noted that the Law Enforcement Exemption of 922(o) was not to be found in the registration section of the NFA. Yet another test of vagueness met.
The court inquired:
In conclusion:
The Government will undoubtedly appeal (7th Circuit), but may not get any further than they did with the District Court. Since on appeal, they can not use any new arguments, only embellish the arguments used at trial, it leaves one to wonder what the Government may hope to accomplish!
What does this mean for the everyday citizen? Not a whole lot. But I suspect, any chink in the armor of 922(o) is a win for us all, nonetheless!
Since the District Court was reduced to ascertaining legislative intent and quoted passages of the Senate in enacting the FOPA, it may well be that such can be done in another well crafted and not too dissimilar case.
At least that would be the first 'baby step' in getting the GCA lifted.