Daniel Butcher is the Assistant U.S. Attorney that filed a response to temporary restraining order (TRO) obtained by Ares Armor against the ATF. He filed the response with federal magistrate judge Bernard G. Skomal, who allowed the raid to proceed.

Butcher conveniently “forgets” that the 80% lower receivers stocked and sold by Ares Armor are not generally considered firearms, according to the ATF’s own determination letters sent to numerous manufacturers over the years. As 80% receivers are not firearms, they are therefore not subject to the ATF’s jurisdiction.

Nor does he mention that the ATF’s claim that EP Armory’s 80% receivers are manufactured differently hasn’t been proven even once by the agency.

The only difference between the EP Armory lower receiver and other 80% lower receivers on the market is that EP Armory’s lowers have a polymer core formed first, and then the rest of the polymer receiver is made around the core. Most metal 80% lowers are made as a solid unit.

Somehow, the all-important detail that EP Armory’s 80-percent poymer lower receivers have not been proven to be firearms didn’t seem to work it’s way into the DOJ’s “Factual Background” section of their response (PDF):

The United States Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) is conducting a lawful criminal investigation of the illegal manufacture, distribution, sale, and possession of AK-15 [sic] variant lower receivers, which are considered firearms under the Firearms Control Act, 18 U.S.C. § 921(a)(3).

An AR-15 is the semi-automatic, civilian version of the .223 caliber M-16 machine gun used by the United States Military. The receiver is the only part of the weapon that is considered a firearm; therefore, it is the part of the weapon that must bear a manufacturer’s mark and a serial number. (All other parts of the AR-15 are considered parts, not firearms.) But the lower receivers at issue in ATF’s investigation do not bear either a manufacturer’s mark or serial number.

Dealing in firearms without a license is illegal under 18 U.S.C. § 922(a)(1)(A).Dealers of firearms are required to conduct a background check prior to transfer under 18 U.S.C. § 922(t)(1). And, because these firearms were manufactured for sale, they are required to have a manufacturer’s marking and a serial number. 18 U.S.C.§ 923(i). Otherwise, there is no way to track them if they are involved in a crime. Plaintiff Lycurgan Inc, dba Ares Armor (“Ares Armor”) is part of ATF’s investigation because it is in possession of approximately 6,000 of these unserialized AR-15 lower receivers. Further, Ares Armor is not a federal firearms licensee, so it cannot legally engage in the business of dealing in these firearms, let alone ones that do not bear the required manufacturer’s mark and serial number. On March 10, 2014, ATF Division Counsel Paul Ware contacted an attorney representing Ares Armor about the AR-15 lower receivers and requested that Ares Armor agree to voluntary surrender them to ATF. See Declaration of Paul Ware. This request was in lieu of obtaining a search and seizure warrant for these items pursuant to Fed. R. Crim. P. 41. Id. Ares Armor’s attorney agreed that it would turnover the firearms on March 12, 2014. Id. This agreement was confirmed at 5:00 p.m. on March 11, 2014.

But, while using one attorney to lull ATF into believing that it would voluntary surrender the firearms, Ares Armor was, through another attorney, simultaneously preparing a lawsuit and applying for a temporary restraining order preventing ATF from taking possession of this contraband. Indeed, Ares Armor’s CEO freely admits to this ruse. See Declaration of Dimitrios Karras (ECF #1-2 at 2, par. 9(b) (“I agreed to their terms in order to delay an impending and unjust raid against Ares Armor long enough to obtain legal protection under the law.”). When an ATF agent appeared to take possession of the illegal firearms as agreed on March 12, 2014, the ATF agent was informed about the Temporary Restraining Order issued by the Court on March 11, 2014.

On March 14, 2014, this Court issued and order (1) extending the injunction to prohibit Ares Armor from divesting itself of the subjejudge Bernard G. Skomalct matter of the Temporary Restraining Order, (2) clarifying that the Temporary Restraining Order does not restrain lawful criminal proceedings, and (3) modifying the schedule for briefing the injunction. A search warrant for was issued on March 14, 2014, by Hon. Bernard G. Skomal, and executed by ATF agents on March 15, 2014.

Apparently, being outmaneuvered by Karros is justification enough for the Department of Justice to play fast and loose with the facts in order to raid a non-firearms retailer and obtain both customer data and thousands of 80% receivers, which have not been proven to be firearms.

Stated clearly, Ares Armor is not involved in the “illegal manufacture, distribution, sale, and possession of AK-15 [sic] variant lower receivers,” because until the ATF proves that the EP Armory 80% lower receivers are not manufactured as the company claims, then they are not, by the ATF’s long-standing determination, firearms.

Do you feel used and abused, Judge Bernard G. Skomal?

You should.