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United States v. Vector Arms Inc V-47 Rifle Cal: 7.62 Sn: 0048

United States District Court, W.D. Virginia, Abingdon Division

June 30, 2017

VECTOR ARMS INC V-47 RIFLE CAL 7.62 SN 0048, ET AL., Defendants.

          Kartic Padmanabhan, Assistant United States Attorney, Roanoke, Virginia, for Plaintiff; Mark David Bailey, Pro Se Claimant.


          James P. Jones United States District Judge.

         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 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).

         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” 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 ...

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