NFA Prosecution Shows ATF Still Determined to Imprison Americans for Braced Pistols

Opinion

Documents filed in an ongoing prosecution for illegal possession of a short-barreled rifle are raising new concerns about ATF’s enforcement policy concerning pistols with attached stabilizing braces.

The government’s assertions of authority are truly breathtaking, claiming they can use the terms of an invalid rule to interpret the underlying statute and enforce it against U.S. citizens in felony prosecutions.

We have been reporting on the saga of ATF’s ill-fated 2023 administrative edict, Factoring Criteria for Firearms with Attached “Stabilizing Braces,” ever since the rule was proposed. The final version of that regulation reversed more than a decade of prior statements by ATF that attaching a stabilizing brace to a pistol did not create a short-barreled rifle (SBR) regulated under the National Firearms Act (NFA). Instead, ATF would use a series of vague and open-ended criteria to determine if the braced pistol was intended to be fired from the shoulder. But the rule provided no guidance to owners of such pistols how the criteria would be applied. Instead, ATF essentially claimed, “We’ll know an SBR when we see it.”

The pistol brace rule drew numerous legal challenges – including by the NRA – and several different courts found it defective on various grounds. A series of injunctions against its enforcement issued until, on June 13, 2024, a federal judge in Texas vacated the rule altogether. Owners of braced pistols breathed a sigh of relief, the threat of felony prosecution seemingly abated.

Last month, however, we reported on an alarming email to a gun owner sent by ATF’s Firearm Industry Programs Branch (FIPB). The owner had asked ATF if attaching a stabilizing brace to a CZ Scorpion pistol would turn it into an SBR subject to the NFA. FIPB’s reply stated: “Federal law requires a pistol with an attached stabilizing brace or stock be registered as a short barreled rifle (SBR).”

The FIPB response also acknowledged that enforcement of ATF’s pistol brace rule was enjoined, and asserted, “While the appeal is pending, ATF is complying with the Court’s order.”

Yet ATF’s idea of “compliance,” according to the email, was to assert an even broader authority to treat ALL braced pistols as SBRS (not just ones fulfilling the “factoring criteria” specified in its rule), based on the agency’s reading of the underlying statutes.

After our reporting on that email, ATF quickly issued another statement, walking back the categorical statement about braced pistols. “ATF agrees that the statement ‘Federal law requires a pistol with an attached stabilizing brace or stock be registered as a short barreled rifle (SBR)’ is overbroad.” But the follow-up also continued to assert that ATF remained responsible for enforcing the underlying statutes. “A firearm designed and intended to be fired from the shoulder that meets the statutory definition of a short-barreled rifle contained in the NFA must be made and transferred in accordance with the requirements of the NFA,” it stated. It did not, however, elaborate on how the agency would make this determination with respect to braced pistols or how owners of such guns might know whether ATF considers their firearms SBRs subject to the NFA.

Last week, however, NRA was made aware of a pending prosecution for illegal possession of a short-barreled rifle that answers this question in a shocking way.

Documents the government filed in that case acknowledge ATF’s enforcement of the underlying statute continues to be informed by the terms of the agency’s illegal rule. The case is U.S. v. Taranto in the U.S. District Court for the District of Columbia.

Taylor Taranto was charged, among other things, with illegal possession of a short-barreled rifle under the NFA for having a CZ Scorpion EVO 3 S1 pistol with an attached SB Tactical stabilizing brace. The firearm was submitted to ATF’s Firearms & Ammunition Technology Division, Field Response Branch, for a “technical examination,” which determined it was an SBR. In doing so, the examination used several of the “factoring criteria” in ATF’s invalidated rule, including the pistol’s weight, its surface area for shouldering, its length of pull, and its sight configuration.

Taranto moved to have the SBR count dismissed, noting that the ATF rule on which it was based had been enjoined and vacated.

The government’s opposition to this motion – filed on July 25, 2024 – indicated that it did not cite the rule in it charges against Taranto and was instead relying on its authority to enforce the underlying statute. Yet, incredibly, it admitted that it was still using the rule’s criteria in its statutory analysis. It stated:

Although the rule is stayed (and, now, vacated), ATF is not barred from continuing to enforce the underlying statute as it always has: by making case-by-case determinations about whether particular braced firearms constitute “rifles” under the statute. And of course, because the rule reflects ATF’s best understanding of the statute, those determinations will naturally tend to look substantially like the determinations that would follow from applying the clear framework outline in the rule.

Taranto’s attorneys were incredulous in their reply to the government’s filing, stating: “The government’s opposition has taken a truly astonishing position.” They continued:

Notwithstanding these repeated losses [on the validity of the braced pistol rule], the government believes it can continue with this prosecution because it is purportedly not relying on the now-vacated Rule, just relying on the legal conclusions embedded in it. Yet, in the next breath, it claims that Mr. Taranto had fair notice that he had to register the braced pistol because of that very Final Rule. The government’s positions are contradictory, unfair, and most importantly not legally sound.

To date, the motion to dismiss remains unresolved. Nevertheless, Matthew Graves, the U.S. attorney under who’s authority the government filed its July 25, 2024, opposition, has since resigned. Graves had also charged Taranto with offenses related to the events of Jan. 6, 2021, in Washington, D.C. Those charges have since been dismissed.

As Taranto’s attorneys note in their briefs, there is nothing in the NFA’s statutory text about braced pistols. ATF’s authority over such items arises purely from ATF’s own extrapolations, memorialized in its rule, and found invalid by multiple courts.

It is outrageous that ATF is now thumbing its nose at the federal judiciary by claiming that its faulty reasoning is still operable, so long as ATF doesn’t cite the rule itself as authority for that reasoning. Federal courts have held the reasoning and methodology of the rule was arbitrary, capricious, and unconstitutionally vague. Thus, that same reasoning cannot be used to prosecute Americans for made-up felonies under the pretext that it’s a faithful reading of the statute.

Matthew Graves was infamous for his strained interpretations of the law in his zeal to prosecute political protestors present in Washington, D.C. on Jan. 6, 2021. One of his tactics was invalidated by the U.S. Supreme Court itself. His offices interpretation of the NFA fares no better.

To date, there has not been a ruling on Taranto’s motion to dismiss his SBR count. Whether the government will continue pushing this legal theory remains to be seen. In the meantime, this episode shows the continued need for reform at ATF, which under the prior administration internalized the role of anti-gun enforcers.

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