Tennessee AK-47 Pistol Open Carry Incident – Another Viewpoint

You have already heard my point of view on the incident HERE and HERE.

Josh from Iowa, who frequently comments on this Blog, has this to say:

In response to the news about the lawsuit filed by the owner of the AK-47 pistol, we may have to agree to disagree. I think this guy got exactly what he was asking for. Notice that I said “asking for.” I believe this guy went out with the intention and the hope of provoking a reaction from the public and a response from the authorities. Let’s not forget he was dressed in camouflage clothing. I imagine dressed in woodland camo with an AK-47 (pistol or not) slung across his body he looked more like an Afghan militia member than the upstanding, law-abiding citizen he will be portraying in court. Worth noting also is that he had painted the end of the barrel blaze orange, seemingly in an attempt to make it look like a harmless toy. At the very least I think that he demonstrated a lack of maturity and showed a sense of irresponsibility that law-abiding gun owners and gun rights activists should be ashamed of. This is not the image of gun owners I want popping into peoples’ minds when they pause to think about the second amendment.

Admittedly, whether or not he was trying to provoke a response from the authorities, and regardless of the fact that in doing so he may not have been acting in the most responsible and civilized way, it seems that nothing he did was illegal. Let’s examine that though. It seems that his weapon is legal by the slimmest of margins. The U.S. Code of Federal Regulations, section 479.11, defines a pistol as:

“A weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand, and having (a) a chamber(s) as an integral part(s) of, or permanently aligned with, the bore(s); and (b) a short stock designed to be gripped by one hand and at an angle to and extending below the line of the bore(s).”

It seems to me that it wouldn’t be much of a stretch to argue that his weapon was originally designed as a rifle, not a pistol, and therefore does not meet the requirements to be classified as a pistol. I know this isn’t the case, but I think this weapons classification as a pistol is a bit shaky. I have yet to see one of these things being fired from one hand either; that certainly seems improbable, and certainly not how it was intended to be fired. Its legitimacy as a pistol is, I think, questionable to begin with.

All of that aside, let’s look at why he’s filed a lawsuit. I haven’t seen the actual lawsuit, but according to the story that was linked to, his civil rights were violated by, “detaining him on Dec. 20, 2009 without probable cause and for longer than was necessary to determine he was not committing a crime.” The officer acted in good faith while performing his duties in stopping him to determine whether he was acting within the law or not. As a combat veteran infantryman, I’ve spent enough time in Afghanistan to recognize an AK-47 (or its variants) when I see one. I certainly would not have thought this to be considered a pistol by any means. He had probable cause to detain him, that’s clear. To release him without verifying the legality of a weapon that does not appear to be a pistol would have been irresponsible on the part of authorities. The only real question seems to be whether or not he was detained for an unreasonable amount of time. It seems that will be left for a judge to decide. I’ll say this though, if I were the authorities detaining him, once I determined that it was technically a pistol, he would remain detained while I determined whether or not he violated any laws by painting the end of the barrel orange to make it look like an airsoft toy. I believe that’s illegal in some jurisdictions, and I think rightfully so.

In the end I think (and hope) that this case will be dismissed; nothing awarded to the plaintiff.  I feel no sympathy for his predicament. I do, however, feel sorry for the fact that he must go through life operating with a sub-standard level of maturity, and am regretful that he feels compelled to act out in ways that bring negative attention to the firearm rights he purports to hold so dear.

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What do you guys think?

36 COMMENTS

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Fred February 10, 2010 at 04:36 pm

I have to agree, the combination of that particular pistol, a camo field coat, and (especially) painting the muzzle orange only go to show the guy was looking for a response. As soon as I found those facts out, I lost all sympathy with the guy.
I’m all for open carry (I live in Wisconsin…), but going out and pushing the boundaries like this isn’t helping anybody.

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HR February 10, 2010 at 05:13 pm

I must disagree with the letter writer and the previous comment. Just because we don’t like what someone is doing gives NO ONE the right to infringe upon their civil rights. Any half way decent lawyer will argue that the end painted is irrelevant (as it should be, the only person who cares about paint jobs is Michael Bloomberg). I would disagree with his choice of ward robe but others would probably disagree with my kilt.

Rights are not rights if they are only there for convenience or until someone else disagrees with them.

Just because a LEO’s is inept does not give them the right to infringe upon others rights, see the police officer who handcuffed the law abiding citizen in Vegas. See the Virginia police officers who detained legally OC’ing individuals in I believe Richmond. Sometimes a statement must be made.

And to the original letter writer who says that he spent enough time in Afghanistan to recognize an AK. Good for you, do you want a cookie? But I find it interesting your contrast between knowing an AK versus confusing him in camoflauge with Afghan fighters.

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Josh February 10, 2010 at 05:46 pm

I don’t want a cookie. My sweet tooth fell out when I was about 12; I don’t eat the things. The statement was made that I’m familiar with the AK-47; probably more familiar with weapons of that type than most law enforcement. My point is that as a person who is reasonably knowledgeable about firearms, I would have concluded that this was illegal. I certainly wouldn’t have taken the word of the person in possession of it that it was OK. “Don’t worry about it officer, it’s OK, I said so.” Good luck with that. I also never claimed that I would have mistakenly identified him for a foreign soldier. Please reread. What I was saying was that dressed the way he was, and carrying his choice of weapon, he more closely resembles a militia soldier than a law-abiding citizen. A dog more closely resembles a horse than it does a duck, but it doesn’t mean I confuse a dog for a horse. Don’t misinterpret what is plainly worded.

As to the claim that his civil rights were infringed, what would you suggest law enforcement do in such a case? Release him without verifying the legality of the weapon he was in possession of? Sure, it would be ideal that every officer, hell, every citizen for that matter, be fully cognizant of every conceivable law that exists. That’s just not practical though, is it? It seems that this “pistol” falls into that category by the narrowest of margins. Life isn’t fair, and sometimes the police will hassle you simply because you appear to be doing something illegal (and it certainly seems like this guy was looking to get hassled). They did detain him, but they did not do so maliciously. They did what was reasonable: to detain him until they could verify the legality of what he was doing.

It’s no different than if you were pulled over because you and/or your vehicle matched the description of someone the police are looking for. It’s unfortunate for you that they have to verify you’re not who they are looking for, but an honest, good-faith, mistake made by police in the performance of their duties is not a civil rights violation to scream about. These things happen from time to time. They are more likely to happen when you intentionally set out to raise suspicion. The fact that something is legal does not, in and of itself, make it a prudent thing to do.

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BillyBobsGirl March 21, 2010 at 10:31 am

Bull hockey ShIza…Rights are limited. You have no rights once you have infringed upon the rights and freedom of others. If I saw some dumb a** dude coming at me in camo in a federal park, I would wonder if they were poaching (hunting in parks is illegal) or in the process of hunting down a person or persons. Altering the item to look like a toy should have got him real time. There is a line between “rights” and “criminality”; and this guy seems to be leaning towards the c word. You only have rights as long as you don’t ignore the responsibilities that the privilege of gun ownership entails. I think you would agree if dude had shot someone…that violates the other person’s rights. How about in the era of school and workforce and public marketplace shootings, that some areas limit WHERE your rights are and should be enacted. Soldiers at Fort Hood faced a lone gunman without their weapons, and a good number were shot and killed. Where were their rights? Posts and Bases don’t allow weapons openly carried without a reason and they are our military…and for a reason….people are more tempted to take the easy way out of problems and resolve issues half-a$$’d when they are toting a gun around their necks. It’s opportunity to quickly take advantage of others. How was the ranger to know that it wasn’t adapted. Guns can be made with anything, and adaptations can be made with the right knowledge to ANY weapon. I’ve worked in prisons…believe me, the people there can make weapons out of anything. With a regular gun, just think of what they could do….and some of those people have the mentality of Taliban fighters. I think they should have seen what they could charge the SOB with and acted accordingly. He was probaby looking for some frivilous lawsuit material, or something to support his sociopathic values in league with USA extremist right wing groups. And, by the way, I support gun rights and responsible carrying of them, support reasonable gun control legislation; just don’t want our country to turn into something like a third country where everyone has to carry a gun because all kinds of idiots are carrying them everywhere. I’ve seen some pretty dumb people on public shooting ranges, who could have put slugs in my family because they didn’t know how to be responsible with firearms too….pretty scary too….By the way, there is a growing number of challenges to Tennessee’s gun control from Right wing activists….they want to carry in bars (can you imagine Bubba drunk, angry about Bob stealing his girlfriend, shooting him and everyone else that was in the path of his drunken bullets?), parks, public places now restricted. I guess they’ll challenge the right of Bubba Junior next, wanting him to be able to take his full auto to school…just in case there’s a terrorist. :)!

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jon July 12, 2015 at 09:57 pm

That sounds more like alcohol should be banned, not the right to protect. Alcohol isn’t illegal but should be, in comparison.

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HR February 10, 2010 at 05:19 pm

Another thought, according to this logic, I’d be a militant for wearing my $200 hand made custom kilt.

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Josh February 10, 2010 at 05:49 pm

You either didn’t understand what I was saying, or you don’t understand logical reasoning… maybe both. In either case, I wouldn’t consider you a militant for wearing a custom kilt. You’d be different, I’ll give you that, but not necessarily a militant.

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BillyBobsGirl March 21, 2010 at 10:41 am

No, you’d either be Irish or Gay….

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Michael February 10, 2010 at 05:40 pm

While legal by the letter of the law, I’d place in the catogory of “not helping” and “being a smart ass”. Nobody likes a smart ass by the way.

If you are going to promote the pro-rights agenda then try to use the brains and common sense God gave you to do it.

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BillyBobsGirl March 21, 2010 at 10:43 am

Amen…and Tennessee is fairly lax in gun control, compared to Utah, and many Northern States…we REALLY don’t need any more relaxed laws because regulations aren’t that tight, and often aren’t enforced when they are….

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Ty February 10, 2010 at 05:59 pm

Okay I understand it now, we have a second amendment right to carry non-threatening looking guns. I must have been mistaken the last time I read the constitution I thought it made no mention of the type of arms that could be carried. I stand corrected!

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BillyBob'sGirl March 21, 2010 at 10:48 am

Common sense, there mistaken. Wouldn’t you feel threatened if some idiot brought a full auto into McDonald’s? What if he was of Middle Eastern descent? I guess you’d be yelling out at that one. I think some everyday Bubbas can be just as deadly….mistakenly sometimes, but nonetheless….Some places should be gun-free. (Doctor’s offices for one…) We as everyday citizens, shouldn’t have to flinch in EVERY location, or carry everywhere so you can have the right to form a militia and bear arms. I don’t think that the founding fathers took guns EVERYWHERE…as Red Foreman says, “don’t be a duma$$…”

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Nate April 6, 2012 at 03:28 pm

WOW, you really need to get bent. The meer fact someone has a gun doesn’t “threaten” me, increase my level of awareness, yes, threaten, no. I think you outta take your bigotted ass back to the hills, Billy.

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Fred February 10, 2010 at 07:00 pm

Yet they could possibly charge him with attempt to breach the peace or something similar. I find it hard to believe that you would go about armed in such a way with out wanting the attention. I openly carry quite regularly, and while wearing a “tactical” softshell jacket with a freakin’ Zombie Hunter patch on the sleeve, but the little Sig in a plain old Serpa holster, or occasionally the 1911 in a tan Serpa, have yet to get the police called on me.
The choice in firearm was poor, and compounded by the attire. At this point, my thoughts are “yeah, it was kind of stupid of him, but…”

..But then I found out about the orange tip. (I found out about the story after he had posted, and then taken down pictures of it on ARFCOM, so it’s kinda second hand-ish) I understand that at one point he stated that he did it so people would assume it’s just an airsoft and not bother him.( http://thehighroad.org/showpost.php?p=6120913&postcount=26 ) In other words, he considered the fact that an AK, even a pistol type, is a bit over the top, and in order to quell the sheep, decided to disguise it. I suppose just thinking to carry something else was just too obvious. Or… where’s the fun in not pushing the limits? Just because you can doesn’t mean you should. That is a definite lack of maturity, right on par with a stereotypical teenager. Then, as stated in his story of the events, “As I reached the end of the trail I made sure no one was close by and shifted the ak-47 pistol to the front of my body.” How is that in anyway a smart idea?

Was the police response to the event over the top? Maybe, but what would most of us think of coming across some guy in camo with an AK of any shape or form strapped across his chest? He doesn’t state that he moved it back to his back, so I can only assume it was still across his chest. Stupid idea there, and would be a great explanation of why the officer felt is was necessary to meet him with a shotgun. Then when asked for his drivers license he didn’t want to show it. I’m not familiar with the TN handgun permit, but I doubt it’s got a photo of the carrier on it, so unless the officer knows you by name and face, he’s gonna want a photo ID to verify that the permit is yours. Could have been in his rights (some states you actually are required to provide ID when asked, look it up), but it’s not gonna win you any brownie points.

The ultimate outcome of events were him being released from the scene, with his gun and ammo, and no citations, just some annoyance and a bruised ego. On the other hand, given previous statements from the guy (that post on thehighroad is from before the park event), if the cop had drilled him he’d probably be up for a Darwin Award. I guess he can sue all he wants, and it’s well within his rights, but I’m not gonna be cheering for him. My sympathy for stupid people is pretty low.

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Josh February 10, 2010 at 08:10 pm

That’s a good link. If you click on the rest of the thread and read it, he has this gem in there as well:

“If the tip won’t make a cop think twice why do toys have orange tips mandated by federal law and why does CA ban real firearms which are painted orange and green?”

How anyone can, with a straight face, say this guy didn’t deserve all the hassle he got is beyond me.

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Fred February 10, 2010 at 08:57 pm

If you dig around a little there’s multiple threads on multiple forums by this guy. As some people in a few of them mention “obvious troll is obvious.”

Ever thread I’ve seen in regards to the issue are locked, but the internets are forever. I wouldn’t be at all surprised if the threads were used as evidence in the case.

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Fred February 10, 2010 at 08:59 pm

*Every thread

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Tim June 11, 2010 at 07:51 am

Actually, Tennessee’s handgun carry permit is issued by the department of safety (the same who issue driver’s licenses) and are a portrait version of the drivers license, picture and all. Also, the permit number is the same as the drivers license number so checking it is ease for law enforcement. As for painting a gun, as far as I can find, there isn’t a law against it. Tennessee’s carry permit isn’t a concealed permit. With it, we have the right to carry a handgun open or not. Determining if this firearm was a handgun wouldn’t be that difficult. Call TBI and ask. If the barrel is less than 16″ then it is either a handgun or he had better have a special permit for it from the feds.

This all said, if the man was a carry permit holder, he is giving the rest of us a bad name. This was obviously a stunt to get attention, and we are all giving it to him.

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Bryan Spiegel February 10, 2010 at 08:06 pm

Putting all of those arguments aside, the weapon in question is a pistol, as approved by the BATF. Just as an AR pistol exists, this and many other rifle actions have been fitted with a sling placement in lieu of a shoulder stock, and have a pistol legal length barrel. The weapon was designed as a pistol, which means attaching a shoulder stock would now constitute the creation of an NFA weapon, an SBR (short barred rifle).

So the position of “is it a pistol or not” is moot, as it has been sold, transferred and treated as a pistol beginning with the receiver, which in all legal ways, is the actual firearm, and was designed with the intent of making this weapon in the first place.

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Jeff February 10, 2010 at 08:06 pm

Josh is right on this one; the guy was looking to make a point, and he was willing to go out there and invite controversy to do it. I don’t think he should be brought up on charges, but that doesn’t mean it was a GOOD idea. In fact, I think it was a downright BAD idea. “Smartass” is a good way to put it.

Those who respond by misrepresenting what Josh was saying are doing no one any good. Address the points that Josh really did make, not ones he didn’t, like “we have a second amendment right to carry non-threatening looking guns” and “I’d be a militant for wearing my $200 hand made custom kilt.”

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cavalier February 10, 2010 at 08:48 pm

I just want to thank Josh for presenting a ‘loyal opposition’ response and Mike for allowing him the space.

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Josh February 10, 2010 at 09:11 pm

I’d like to take the opportunity to thank Mike publicly as well for allowing me the opportunity to voice my take on the matter and post it on the front page rather than just having me comment on the other story. Mike deserves much credit for allowing, even encouraging, other sides to be heard.

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Admin (Mike) February 10, 2010 at 10:13 pm

You’re welcome. I am always interested in hearing what you guys have to say. It’s great to hear other opinions and ideas.

Heck, if someone from the Brady campaign wanted to write an article I would let them. I wouldn’t expect that to be very well received here though :D

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Fred February 10, 2010 at 11:11 pm

That would make my day though. Maybe even my week.

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Dom February 10, 2010 at 09:01 pm

I don’t see a Second Amendment issue here. The guy was (maybe barely) legal in his actions – there is no disagreement about that, so the arm and the way in which it was borne is not at issue. This is more about the Fourth – which is, of course, no less important.

I think the argument pertaining to whether this guy should win civil damages boils down to a evaluation of two things. First, whether the actions taken by police amounted to an arrest or mere detainment, and second, whether the circumstances leading up to the action warranted an arrest (probable cause) or mere detainment (reasonable suspicion). If they stopped him without reasonable suspicion, or arrested him without probable cause…he probably has a case.

I think without the police report telling their side of the story, we really don’t know enough to say. Usually police reports are public record; maybe a local journalist will have dug it up?

I will say that “reasonable suspicion” is determined based on a judge/jury’s perception of what a “reasonable person” would think. I’m not sure what the expectation is a of a “reasonable person’s” knowledge of firearms & firearms law is, though…in my personal view, it would not include knowing the difference between a (very visually similar) illegally modified AK rifle and legally-produced AK pistol at first glance. I think comments here are showing that even we firearms enthusiasts are unsure of what to make of it at first.

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Josh February 10, 2010 at 09:35 pm

I believe that an unlawful detainment is sufficient for the civil tort of “unlawful arrest.” I think you’re on the right track with the reasonable suspicion/probable cause though. In general, law enforcement is pretty well shielded from claims of unlawful arrest. I think that in order to come out on top of this lawsuit, he is going to first have to show that the ranger didn’t have the authority or reason to detain him. That seems like it will be tough to argue. If he can prove that there wasn’t enough reason to detain him he could win compensatory damages. That’s not going to amount to much since he was only detained for 3 hours. Unless he was supposed to be at work for those three hours, there isn’t going to be much in the way of damages. In order to really get anything, to get punitive damages, he would have to prove that the park ranger maliciously held him without reason. As I outlined before, I think this was, at the very worst, a good-faith mistake by the officer(s), no malice involved whatsoever. And I think you’re absolutely right on with the concept of what a “reasonable person” would think or how they would act.

This lawsuit appears to be nothing more than the original act was – an attempt to gain attention.

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Ryan February 11, 2010 at 03:04 am

I live maybe 5 miles from this park. I carry open in this park, and this guy is making things worse not better. I don’t need to know the specifics to say this is not your run of the mill public park. This is a small park in a very high rent district (probably 80% republican) where people walk with their dogs and kids to enjoy the peaceful little lake (not much more than a pond). You are more likely to see someone in a three piece suit than camo and an AK “pistol”. If I had been at this park on this day I would have been seeking out a ranger, and asking if he need help with the straight jacket for this nut job.

Don’t get me wrong I applaud people who carry open legally and responsibly. I carry concealed because some idiot are afraid of guns, and I’m not trying to distract law enforcement from protecting said idiots. It is sad to say, but come on… chose your battles a little more wisely.

Point being I agree with Josh in that this guy was looking for trouble and he got it. This can in no way help with the negative perception that gun haters have in this country.

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Jim February 11, 2010 at 07:24 am

I’d have to agree with Josh that the guy in question was just being a dillhole for the sake of being a dillhole. He compounded his problems by carrying an awfully unreasonable weapon, in camouflage, with deceptive paint.

I also can’t blame the officers for doing their due diligence. Watch an episode of Cops just to see the kind of morons they have to put up with on a regular basis, they don’t have an easy job.

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Phil February 11, 2010 at 07:41 am

Josh, and everyone that thinks like him is part of the problem.

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Dom February 11, 2010 at 04:17 pm

“Obvious troll is obvious,” but…were you going to finish that thought?

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Vibe February 11, 2010 at 11:38 am

A reasonable argument could be made that this weapon really does not meet the definition of a pistol – in that it is really not designed to be fired when held in only one hand. Probably be much more close to the BATF definition of a “pistol gripped weapon” similar to what shotguns with only pistolgrips are considered – and the BATF is on record as saying that those do not fit the shotgun definition.

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Josh February 11, 2010 at 11:59 am

That was certainly part of my original contention. Perhaps in the end what he’ll succeed in doing is prompting the ATF to examine these weapons and rule that they do not meet the requirements to be classified as a pistol.

Maybe that was his intent the whole time. Maybe this whole thing was a ruse to make the ATF pay attention and reclassify these weapons. How clever would that be?

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Vibe February 11, 2010 at 12:56 pm

I hope not. Under current NFA/BATF regs – cutting a “pistol gripped” 12 gauge to a 14″ barrel requires only a $5 transfer tax for an AOW…Whereas cutting a full stocked 12 gauge to the same barrel length requires a full $200 transfer tax for an Sawed off shotgun. Not exactly a step in a 2nd amendment friendly direction.

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Brian May 29, 2013 at 07:33 pm

As a combat veteran, you should know that this weapon is not an “AK47.” It is a PAPM92 PISTOL, It doesn’t matter what you think it looks like. I have a ruger 10/22 that looks like an AK47. His weapon is Classified as a pistol by the ATF…….By the Federal Bureau Of Alcohol And Firearms………. and should be treated as such. It’s not his fault the dumbass cops don’t know the laws….period.

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paul kimble May 29, 2013 at 08:01 pm

Actually it is very rare for anybody to properly identify an AK-47.

An AK-47 has a milled receiver.. If its stamped its an AKM.

If the selector doesn’t have the 3rd position its neither.

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Anon September 9, 2013 at 03:46 am

What do you mean what I think? The man’s innocent until proven guilty. And he indeed was always innocent. Anything more would be a pointless convolution.

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