DD illegal now?

[printcraft]

More comments from the peanut gallery......

IC 35-47-1-10
"Sawed-off shotgun"
Sec. 10. "Sawed-off shotgun" means:



(1) a shotgun having one (1) or more barrels less than eighteen (18) inches in length; and



(2) any weapon made from a shotgun (whether by alteration, modification, or otherwise) if the weapon as modified has an overall length of less than twenty-six (26) inches.



Read these as independent statements, because that is how the prosecutor will read them.

The opinion of the ISP does not really matter,
the opinion of a lawyer does not really matter either.

There have been cases
(no I don't have the particular cite)
where a client has asked a lawyer for clarification of a law.
Said lawyer gave the client advice which the client followed.
Client was subsequently arrested and charged with a violation of the law the lawyer said was not applicable.
Client said lawyer told him it was ok....... judge said "You asked the wrong lawyer".

Don't ask a bunch of average Joe's.
Go and ask the ATF for a letter of clarification.
Again, this is not fear mongering, but there is disagreement and
uncertainty in this very thread, I don't want to see anyone get their
butt hung on a hunch.
Firearm laws are nonsensical and annoying and I don't really have any I can truly agree with.
Guns are an tool, an inanimate object, nothing more.

BUT, the laws are currently out there
Ignorance of the law is not an excuse.

 

[CountryBoy19]

The letter I read (IIRC) says that a firearm like we are describing (12ga, 14.5" barrel, 26.5" OAL, PG-only) is not a firearm at all by definition as it doesn't fall into a proscribed category. The Indiana statute, as well as the Federal one, describe a SBS as having barrels less than 18" AND an OAL of less than 26". If your barrel is 14.5" but the OAL is still greater than 26" it doesn't meet the definition of SBS because it doesn't have both short barrels AND short OAL.

Hmmm... interesting... but I do see one difference.

IANAL, and I am also not an expert at the english language, but I'm also not an idiot, so I'm going to give it a shot to explain this.

US definition

(6) The term ``short-barreled shotgun'' means a shotgun having one
or more barrels less than eighteen inches in length and any weapon made
from a shotgun (whether by alteration, modification or otherwise) if
such a weapon as modified has an overall length of less than twenty-six
inches.

What I read here, because the definition is proposed in one full sentence is , "The term sbs means a shotgun with barrels less than 18 inches, and it also means a shotgun with an oal less than 26 inches." (paraphrased)

IC 35-47-1-10
"Sawed-off shotgun"
Sec. 10. "Sawed-off shotgun" means:
(1) a shotgun having one (1) or more barrels less than eighteen (18) inches in length; and
(2) any weapon made from a shotgun (whether by alteration, modification, or otherwise) if the weapon as modified has an overall length of less than twenty-six (26) inches.

What I read here, however, is, "A sawed off shotgun means a shotgun that has a barrel less than 18 inches and an overall length of 26 inches."


I know we have a few lawyers on this board, maybe they can clarify if I am reading the statute properly. I am not asking you to tell me it is ok, just tell me if the statute is being read properly.


With all that being said, assuming we are reading the statute properly, it seems that somebody screwed up when they tried to copy the US code on SBS and make the IN code on SBS. They wrote it in a way to "transpose" the meaning of the and, and therefore, unknowingly permitted sbs's that still meet the requirements of OAL not less than 26 inches.

Read these as independent statements, because that is how the prosecutor will read them.

It really doesn't matter much how he reads them, it's pretty clear how it is written (if I'm reading it right) and I'm sure a judge/jury, with the proper defense lawyer's explanation will understand how it is written. If the prosecutor reads it wrong that's his own fault, afterall, aren't lawyers supposed to know how to read this stuff? And shouldn't good prosecutors be lawyers?

Not really looking for an argument, just pointing out that any prosecutor can read any statute any way he wants, but if he is reading it wrong then he is still reading it wrong, and if justice prevails, then it will all come to light in the end.

 

[Bill of Rights]

I just went and measured my Remington 870. Granted, the measure will not be exact, but fairly close. From the buttstock to the frontmost point on the ejection port is 19". Solely for ease of measurement, if that is the point of the breech face, I have to have a barrel length of 7.5" or so to have this not be a SBS. (This is all hypothetical; other than adding a sling, my 870 is as delivered from Remington.) I cannot imagine that if I was to cut the barrel of that shotgun down to 8", it would be accepted as being within the law.

This whole discussion could be obviated if the law was changed to ignore possession and address only misuse of the firearm... or any item someone picks up and uses as a weapon. Oh wait, those laws already exist.

Blessings,
Bill

 

[VUPDblue]

Part of the point that led to the recent ATF letter is the fact that the guns in question were made from bare receivers, thus they are not "made from a shotgun" because a shotgun must be shoulder fired. If they are not made from shotguns, then they cannot be short barreled shotguns. The US code says that a SBS must be "made from a shotgun" so a 14.5" barreled, pistol grip only, 26.5" OAL gun is not a SBS. Indiana code has that pesky "and" in there that could also negate the gun in question. The IC quoted by printcraft above reads:

IC 35-47-1-10
"Sawed-off shotgun"
Sec. 10. "Sawed-off shotgun" means:

(1) a shotgun having one (1) or more barrels less than eighteen (18) inches in length; and

(2) any weapon made from a shotgun (whether by alteration, modification, or otherwise) if the weapon as modified has an overall length of less than twenty-six (26) inches.

items (1) and (2) are not separate statements, that is why there is an "and" and a ";" in there. A gun must meet both of those requirements to be applicable under the statute. IANAL but I did retain quite a bit from my law classes

 

[VUPDblue]

I just went and measured my Remington 870. Granted, the measure will not be exact, but fairly close. From the buttstock to the frontmost point on the ejection port is 19". Solely for ease of measurement, if that is the point of the breech face, I have to have a barrel length of 7.5" or so to have this not be a SBS. (This is all hypothetical; other than adding a sling, my 870 is as delivered from Remington.) I cannot imagine that if I was to cut the barrel of that shotgun down to 8", it would be accepted as being within the law.

This whole discussion could be obviated if the law was changed to ignore possession and address only misuse of the firearm... or any item someone picks up and uses as a weapon. Oh wait, those laws already exist.

Blessings,
Bill

Not accurate bill, your 870 is cut-n-dry as to what would define it as a SBS. It is shoulder-fired so it fits the "made from a shotgun" requirement. This is the major difference. The item in question in this thread is pistol grip only 12ga guns. They were never "shotguns" in the first place so the SBS statute does not apply.

 

[printcraft]

Not accurate bill, your 870 is cut-n-dry as to what would define it as a SBS. It is shoulder-fired so it fits the "made from a shotgun" requirement. This is the major difference. The item in question in this thread is pistol grip only 12ga guns. They were never "shotguns" in the first place so the SBS statute does not apply.

Agreed.
There is a difference from never being a shotgun via a virgin receiver and "creating" a SBS out of an existing shotgun.

Cutting down your shotgun as it existed as a longgun before would make it a SBS and a violation of the law.

 

[CountryBoy19]

Not accurate bill, your 870 is cut-n-dry as to what would define it as a SBS. It is shoulder-fired so it fits the "made from a shotgun" requirement. This is the major difference. The item in question in this thread is pistol grip only 12ga guns. They were never "shotguns" in the first place so the SBS statute does not apply.

Oh, I thought we had sidetracked to whether or not we could own/possess SBS in IN because of the seemingly, poorly written statute. That was the point of my posts, sorry for further side-tracking it.

But I think it is definitely a worthy discussion. Should I start another thread or have we already come to a conclusions?

IE. Based upon the above statute, could a person theoretically legally purchase a Remington 870 shotgun with a full, length stock (OAL 26+") and 12" barrel in IN if they transfer it on a Form 4 or build it on a Form 1?

 

[VUPDblue]

IE. Based upon the above statute, could a person theoretically legally purchase a Remington 870 shotgun with a full, length stock (OAL 26+") and 12" barrel in IN if they transfer it on a Form 4 or build it on a Form 1?

No because it meets the Indiana definition of a "Sawed Off Shotgun". It meets the definition because it has a barrel less than 18" in length AND was "made from a shotgun"

 

[VUPDblue]

http://www.nfaoa.org/documents/testttt20001.pdf

Here is the ATF letter referencing the subject.

 

[jedi]

VUPBlue the letter you have from ATF is that somewhere online? Or was it sent to you as you asked for clarrification. Looking back in the 6 pages I don't see if this was covered. No it does not related to the topic but just wanted to see the letter myself.

So what I'm reading is ATF (FEDs) are saying the firearm is not a SBS (thus no stamp). FIREARM = 12g, less than 18" barrel, overall lenght 26+", pistol grip only as in firearm came with pistol grip only from factory).

IN LAW saying (how we are reading it) that it's not a sawed off shotgun thus OK as well to own in Indiana.

Plus there is no current case law to back any of this in Indaina. RIght? is that the summary?

 

[VUPDblue]

Someone from Classic Arms wrote the letter and submitted the sample to ATF for clarification. Your summary appears to be correct. There is no case law, yet, but Classic Arms plans to begin selling this type of firearm very soon so we'll see

 

[CountryBoy19]

No because it meets the Indiana definition of a "Sawed Off Shotgun". It meets the definition because it has a barrel less than 18" in length AND was "made from a shotgun"

I'm not following you.

Based upon item #2 in the IC for the definition of a sawed-off shotgun

(2) any weapon made from a shotgun (whether by alteration, modification, or otherwise) if the weapon as modified has an overall length of less than twenty-six (26) inches.

The statement regarding being made from a shotgun is conditional upon the overall length of the weapon being less than 26".

Since the length of the weapon is greater than 26" item #2 in the definition is not satisfied and therefore the definition of a "sawed-off shotgun" is not satisfied, and the resultant weapon would not be illegal in IN.

Where did I go wrong?

 

[VUPDblue]

It appears that you didn't go wrong....

 

[CountryBoy19]

It appears that you didn't go wrong....

That's what I thought.... so now I have to wonder... have we been permitted to own/possess SBS all along now?

Should we start a new thread about this?

Does anybody want to be a test case? I would but I didn't really have the desire to have an SBS even when I thought it was illegal, I still don't have the desire.

Maybe we could talk to one of the pro-gun IN legislators and see what they think of the wording? I know my rep was one of the original sponsors of HB1065 and he's been great to deal with on firearms issues. Maybe we could get his opinion on the matter before having a test case?

 

[printcraft]

I will admit I do not know 100% what I am talking about .......

Here is the actual case law as provided by Wink and the Gun
Reps due to Wink and the Gun - everyone please hit him up when you get the chance.

https://www.indianagunowners.com/forums/class_iii_nfa/121442-sbs_legal_in_in.html#post1483471

Actually, I found some Indiana case law on this exact topic. The arguments are pretty similar to ours. It's a little long, and the case is from the Indiana Court of Appeals, 1983 (Brook v State, 448 N.E.2d 1249). Relevant section is below:


*bold formatting added

Brook contends his shotgun was not “sawed-off” because it did not have a barrel length of less than eighteen inches and an overall length of less than twenty-six inches as required by the statute. Brook's reading of the statute is erroneous.

[1] Brook relies on the use of the conjunction, “and,” within I.C. 35-23-9.1-1. Brook is correct in his assertion the conjunctive*1251 “and” and the disjunctive “or” are not interchangeable. Barr v. Sun Exploration Co. (1982) Ind.App., 436 N.E.2d 821. If the statute defined sawed-off shotgun as “a shotgun having one or more barrels less than eighteen inches in length and an overall length of less than twenty-six inches” we would agree with Brook's interpretation of the statute as containing dual requirements of barrel length and overall length.

[2] [3] However, the conjunction “and” is immediately followed by the phrase “any weapon made from a shotgun (whether by alteration, modification or otherwise)....” All statutory language is deemed to have been used intentionally and words or clauses in a statute are to be treated as surplusage only in the absence of any other possible course. Sidell v. Review Bd. (1982) Ind.App., 428 N.E.2d 281. Therefore, although the conjunctive “and” is used, it is evident from the plain language of I.C. 35-23-9.1-1 the statute is not, as Brook contends, setting forth a single definition of sawed-off shotgun which contains two requirements. Rather, I.C. 35-23-9.1-1 provides two definitions: 1) a shotgun having one or more barrels less than eighteen inches, and, 2) any weapon made from a shotgun if its overall length is less than twenty-six inches.

[4] [5] In reading the plain language of the statute we carry out our primary duty of giving effect to the intention of the legislature. Marion County Dep't. of Public Welfare v. Methodist Hosp., (1982) Ind.App., 436 N.E.2d 123, 126. Indispensable to the determination of legislative intent is a consideration of the reasons and policy which underlie the statute and the goals sought to be attained. Frost v. Review Bd., (1982) Ind.App., 432 N.E.2d 459. We believe a careful reading of the definitions of sawed-off shotgun provided in I.C. 35-23-9.1-1 reveals two legislative intentions. The overall rationale for the legislative ban of sawed-off shotguns centers on their concealability and therefore likely use for criminal purposes rather than for sport or hunting. The statutory scheme precludes “any weapon made from a shotgun... if such weapon as modified has an overall length of less than twenty-six (26) inches” because such a shotgun is considered concealable and therefore, undesireable by the legislature, notwithstanding any possible use for hunting.

Secondly, we believe the legislature, while condemning sawed-off shotguns when used as weapons, recognized the legitimate use of shotguns for hunting and sporting purposes. Thus, “a shotgun having one (1) or more barrels less than eighteen (18) inches in length” is forbidden because with such a barrel length a shotgun has a decreased range and therefore minimal utility as a hunting and sporting tool. Its chief value is as a weapon, regardless of its overall length and concealability.

[6] Brook's shotgun, with its barrel length of less than eighteen inches, comes within one of the statutory definitions of sawed-off shotgun. The overall length of his shotgun is irrelevant.

 

[ssgjason]

Here is the actual case law as provided by Wink and the Gun
Reps due to Wink and the Gun - everyone please hit him up when you get the chance.

https://www.indianagunowners.com/forums/class_iii_nfa/121442-sbs_legal_in_in.html#post1483471

Rep and an apology.

Too bad IN definitions do not always fall in line with the ATF's...

 

[koveras225]

Rep and an apology.

Too bad IN definitions do not always fall in line with the ATF's...

It actually falls right in line with the Federal definition of an SBS. Indiana's interpretation of an SBS is identical to the ATF's; and with the exception of that semi-colon and formatting, the language is identical. They're both two part definitions where it only has to meet one or the other to be a SBS.

 

[jedi]

So now that we know SBS are illiegal in IN as they are "sawed off shotguns" how does that affect the gun that was sumbitted to ATF by "??? arms" (pic someowhere above in this thread)? Since the ATF said that firearm is not a shotgun.

 

[CountryBoy19]

So now that we know SBS are illiegal in IN as they are "sawed off shotguns" how does that affect the gun that was sumbitted to ATF by "??? arms" (pic someowhere above in this thread)? Since the ATF said that firearm is not a shotgun.

I would say that IC definition also says that it isn't a shotgun, and therefore does not fit the sawed off shotgun definition because it's not made from a shotgun.

IC 35-47-1-11
"Shotgun"
Sec. 11. "Shotgun" means a weapon designed or redesigned, made
or remade, and intended to be fired from the shoulder and designed
or redesigned and made or remade to use the energy of the explosive
in a fixed shotgun shell to fire through a smooth bore either a number
of ball shot or a single projectile for each single pull of the trigger.
As added by P.L.311-1983, SEC.32.

 

[jedi]

So if it's not a shotgun per ATF its also not a SBS and/or "sawed off shotgun" so what is it then?