United States Of America v Vector Arms INC V-47 rifle CAL: 7.62 SN: 0048, et al

Filing 14

OPINION and ORDER granting 10 Motion for Summary Judgment. Signed by Judge James P. Jones on 6/30/17. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
VECTOR ARMS INC V-47 RIFLE
CAL: 7.62 SN: 0048, ET AL.,
Defendants.

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Case No. 1:14CV00046
OPINION AND ORDER
By: James P. Jones
United States District Judge

Kartic Padmanabhan, Assistant United States Attorney, Roanoke, Virginia,
for Plaintiff; Mark David Bailey, Pro Se Claimant.
In this civil action, the United States seeks the forfeiture of two firearms
pursuant to 18 U.S.C. § 924(d). Mark David Bailey has filed a timely claim to
property and the United States has moved for summary judgment. After reviewing
the evidence in the light most favorable to the claimant, I conclude that the Motion
for Summary Judgment must be granted.
I. FACTUAL SUMMARY AND PROCEDURAL HISTORY.
The undisputed facts, taken from the Verified Complaint and the summary
judgment record, are as follows.
Claimant Bailey owns Bailey’s Gun Supplies, a business located in
Tazewell, Virginia, in this judicial district. On June 27, 2013, the Bureau of

Alcohol, Tobacco, Firearms and Explosives (“ATF”) revoked Bailey’s Federal
Firearms License (“FFL”). Four months later, on October 25, 2013, officials at
ATF determined that Bailey was in possession of two machineguns. 1 Bailey, as
the owner of Bailey’s Gun Supplies, had lawfully obtained the machineguns from
the manufacturer, Vector Arms Corporation, in March 2011 and April 2012. That
same day, ATF agents met with Bailey near his business in Tazewell. They told
him that, because he had lost his FFL, he could no longer lawfully possess the
machineguns. Bailey produced the guns, and the agents seized them.
On July 3, 2014, the United States filed this action in rem against the
machineguns and obtained a Warrant of Arrest in rem.

The United States

published notice of the action as required by Federal Rule of Civil Procedure
Supplemental Rule G(4)(a). It also served Bailey with notice as required by
Supplemental Rule G(4)(b).

In response, Bailey filed a Claim for Return of

Property and an Answer, both of which he subsequently amended to comply with
Supplemental Rule G(5)(a). On October 14, 2014, the United States learned that
the defendant machineguns were already in the possession of the ATF. Six months

1

A “machinegun” is defined as “any weapon which shoots, is designed to shoot,
or can be readily restored to shoot, automatically more than one shot, without manual
reloading, by a single function of the trigger.” 18 U.S.C. § 921(a)(23) (referring to 26
U.S.C. § 5845(b).) There is no question but that the firearms sought to be forfeited meet
this definition.

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later, on April 14, 2017, the United States filed a Motion for Summary Judgment.
The motion has been fully briefed and is ripe for decision. 2
II. APPLICABLE LAW.
Federal Rule of Civil Procedure 56(a) requires a court to grant a motion for
summary judgment “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The party seeking summary judgment bears “the burden of showing
the absence of a genuine issue as to any material fact.” Adickes v. S. H. Kress &
Co., 398 U.S. 144, 157 (1970). However, the party opposing summary judgment
must nevertheless “properly address [the movant]’s assertion of fact” in order to
proceed to trial. Fed. R. Civ. P. 56(e).
Where a firearm is “involved in or used in” the violation of any federal
criminal law, that firearm is “subject to seizure and forfeiture.”

18 U.S.C.

§ 924(d)(1). It is a federal criminal offense for a person to possess a machinegun
unless he (A) possesses it “under the authority of” a federal or state government
agency or (B) lawfully possessed it “before the date this subsection takes effect.”
18 U.S.C. at § 922(o)(2)(B).

2

I will dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument would not
significantly aid the decisional process.

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III. ANALYSIS.
In his Amended Answer, Bailey asserts that, because the machineguns in
question were purchased before his FFL was revoked, his possession of the
machineguns falls within § 922(o)’s second exception for lawful possession
“before the date this subsection takes effect.” Am. Answer 1, ECF No. 8 (quoting
18 U.S.C. § 922(o)(2)(B)). The United States asserts that this exception does not
apply to Bailey’s situation because § 922(o) took effect “long before” the
machineguns were confiscated in October 2013. Mem. Supp. Summ. J. 4-5, ECF
No. 11.

It also asserts that once Bailey’s FFL was revoked, his “continued

possession” of the machineguns was a “clear violation of § 922(o), which flatly
prohibits the possession of machineguns by any person.” Id. at 4. In response,
Bailey asserts that the machineguns were “issued to [him] by the United States
Department of Justice and registered under the National Firearms Act.” Mem.
Opp’n. Summ. J. 1, ECF No. 13.
When Bailey obtained the machineguns from the manufacturer in March
2011 and April 2012, he did so using his FFL, which was issued to him by the
ATF. While he retained that license, he lawfully possessed the machineguns
pursuant to § 922(o)’s first exception: “possession . . . under the authority of, the
United States or any department or agency thereof.” 18 U.S.C. § 922(o)(2)(A). In
short, the FFL allowed him to possess the machineguns “under the authority of”

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the ATF. After Bailey lost that license in June 2013, he no longer had that
authority to possess the machineguns.
Bailey asserts in his brief that the machineguns were “issued to [him] by the
. . . Department of Justice.” Mem. Opp’n. Summ. J. 1, ECF No. 13. He points to
the applications showing that the ATF approved the transfer of the machineguns
from the manufacturer to Bailey’s Gun Supplies, stating that he was “approved . . .
to own” the machineguns pursuant to the Second Amendment. Id. Bailey is
correct that the applications show that he obtained the machineguns lawfully and
that the ATF approved his possession of the guns. However, that approval was
based on, among other things, Bailey’s FFL — not the Second Amendment. The
approved applications do not grant Bailey the authority to continue to possess the
machineguns after losing his license. Furthermore, the Second Amendment does
not permit a person who loses his FFL to continue to possess a banned machine
gun. District of Columbia v. Heller, 554 U.S. 570, 624-25 (2008) (stating that “the
Second Amendment does not protect those weapons not typically possessed by
law-abiding citizens for lawful purposes,” including “short-barreled shotguns” and
“machineguns”); Kolbe v. Hogan, 849 F.3d 114, 131 (4th Cir. 2017) (same); see
also Hamblen v. United States, 591 F.3d 471, 474 (6th Cir. 2009) (holding that the
Second Amendment “does not authorize an unlicensed individual to possess
unregistered machine guns for personal use”). Finally, the applications do not

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show that the machineguns were issued to Bailey by the Department of Justice; on
the contrary, they show that the machineguns were transferred to Bailey by the
manufacturer, Vector Arms Corporation. Am. Answer 3, ECF No. 8.
Bailey also asserts that his possession of the machineguns is lawful under
§ 922(o)’s second exception, which allows a person to possess a machinegun
where he lawfully possessed that machinegun “before the date this subsection takes
effect.”

18 U.S.C. § 922(o)(2)(B).

He states that, because he purchased the

machineguns before his license was revoked, his continued possession of the
machineguns is lawful under this exception.

The “date” referenced in that

exception, however, is not the date he lost his license — it is the date that provision
of the law took effect. Subsection 922(o) went into effect on May 19, 1986.
Firearms Owners’ Protection Act, Pub. L. No. 99-308, ch. 44, sec. 102, § 922, 100
Stat. 449 (1986). Thus, a person may retain possession of a machinegun only
where he lawfully possessed the machinegun before May 19, 1986. The approved
applications for the transfer of the two machineguns at issue here clearly show that
Bailey obtained them in March 2011 and April 2012, so the second exception of
§ 922(o) does not apply.
IV. CONCLUSION.
Neither party disputes that Bailey lost his FFL, that he continued to possess
the machineguns after losing his license, and that he obtained the firearms after the

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ban took effect in May 1986. Moreover, the documentation provided by Bailey
does not rebut the United States’ contention that there is no genuine dispute of fact
to be resolved in this case. It is therefore clear as a matter of law that Bailey
violated 18 U.S.C. § 922(o).

Because he violated a federal criminal law by

possessing machineguns without a FFL, the machineguns were “involved in or
used in” the violation of the law, and are therefore “subject to seizure and
forfeiture.” 18 U.S.C. § 924(d)(1). I therefore find that the United States is
entitled to summary judgment as a matter of law.
In light of the foregoing, it is ORDERED that the United States’ Motion for
Summary Judgment (ECF No. 10) is GRANTED. A separate judgment consistent
with this opinion is being entered herewith.
ENTER: June 30, 2017
/s/ James P. Jones
United States District Judge

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