Nfa question for attorneys

[JG007]

on a slightly related note, I have always found it very odd that when an item is registered to an individual alone it has always been cool with the ATF if you go out to a range, etc., and let people use it

[scottryan]

Constructive possession applies to a person owning a set of parts that can be assembled into an NFA firearm that is not registered. That is a completely different topic than what the OP is asking about.

I have never heard of a case where a wife/kid was charged with illegal possession of their husband's/dad's lawfully owned NFA firearm, provided these people were not involved in other criminal activity.

Your wife having the combo to your safe does not make her in illegal possession of a lawfully owned NFA firearm, that is not registered to her. This lore comes from internet gunboard bullshit and gun culture morons.

99% of the people that spout this shit don't even own an NFA firearm.

[223to45]

on a slightly related note, I have always found it very odd that when an item is registered to an individual alone it has always been cool with the ATF if you go out to a range, etc., and let people use it

Why is that odd, it is your property not theirs.

[jmoney]

Constructive possession applies to a person owning a set of parts that can be assembled into an NFA firearm that is not registered. That is a completely different topic than what the OP is asking about.

I have never heard of a case where a wife/kid was charged with illegal possession of their husband's/dad's lawfully owned NFA firearm, provided these people were not involved in other criminal activity.

Your wife having the combo to your safe does not make her in illegal possession of a lawfully owned NFA firearm, that is not registered to her. This lore comes from internet gunboard bullshit and gun culture morons.

99% of the people that spout this shit don't even own an NFA firearm.

Source?

Because the first bolded part is flat out wrong regarding constructive possession.

[scottryan]

Source?

Because the first bolded part is flat out wrong regarding constructive possession.

No it isn't. If you have an unregistered M16 lower and all the parts to assemble the rifle, you are in possession of an illegal machinegun. It says this right in the USC.

Read this:

http://www.atf.gov/content/firearms/...act-machinegun

Machinegun

26 U.S.C. § 5845(b)

For the purposes of the National Firearms Act the term Machinegun means:

Any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot without manual reloading, by a single function of the trigger
​
The frame or receiver of any such weapon
​
Any part designed and intended solely and exclusively or combination of parts designed and intended for use in converting a weapon into a machinegun, or

Any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

[jmoney]

No it isn't. If you have an unregistered M16 lower and all the parts to assemble the rifle, you are in possession of an illegal machinegun. It says this right in the USC.

Read this:

http://www.atf.gov/content/firearms/...act-machinegun

Machinegun

26 U.S.C. § 5845(b)

For the purposes of the National Firearms Act the term Machinegun means:

Any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot without manual reloading, by a single function of the trigger
​
The frame or receiver of any such weapon
​
Any part designed and intended solely and exclusively or combination of parts designed and intended for use in converting a weapon into a machinegun, or

Any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

yes, thats a statutory possession clause relating to possession, which may be actual or constructive(there is a constructive case involving this statute out of florida i believe around 2008-2009). However, the general definition of construction possession, which is in fact a legal fiction(not codified),

Constructive possession is defined as “ownership, dominion or control over the [shotgun] itself or dominion or control over the premises in which the [shotgun] is concealed.”41 However, where two or more persons jointly occupy the place where a firearm is found, mere control or dominion of that place is, by itself, insufficient to establish constructive possession.42 Evidence showing at least a plausible inference that the defendant had knowledge of and access to the weapon is necessary to establish constructive possession.

United States v. Fields, 72 F.3d 1200, 1212 (5th Cir. 1996)

I pulled that definition for another member from doing a quick search on our legal database. I followed up with a more in depth search and find that definition to be valid for purposes of criminal prosecution. Unless your jurisdiction adds a knowledge requirement, that definition applies.

[scottryan]

yes, thats a statutory constructive possession. However, the general definition of construction possession, which is in fact a legal fiction(not codified),

Constructive possession is defined as “ownership, dominion or control over the [shotgun] itself or dominion or control over the premises in which the [shotgun] is concealed.”41 However, where two or more persons jointly occupy the place where a firearm is found, mere control or dominion of that place is, by itself, insufficient to establish constructive possession.42 Evidence showing at least a plausible inference that the defendant had knowledge of and access to the weapon is necessary to establish constructive possession.

United States v. Fields, 72 F.3d 1200, 1212 (5th Cir. 1996)

I pulled that definition for another member from doing a quick search on our legal database. I followed up with a more in depth search and find that definition to be valid for purposes of criminal prosecution. Unless your jurisdiction adds a knowledge requirement, that definition applies.

Is there a case example of a wife/kid being charged with possession of an NFA firearm by having the combo to the safe, who otherwise were not engaged in other criminal activity?

[jmoney]

Is there a case example of a wife/kid being charged with possession of an NFA firearm by having the combo to the safe, who otherwise were not engaged in other criminal activity?

I didn't see one in the fifth circuit or my state of practice. However, like the probate attorney also said, legal decisions come from appellate cases, very few cases ever go to trial and even less go to appeal. I'm not surprised that none show up because: (1) this is a pretty clear cut issue; (2) fact that NFA items really are not that prevalent in the grand scheme of things; (3) the situation where a spouse would be charged would probably involve the commission of some other crime (Unless the ATF has started home checks and nobody is talking about it ).

However, there are tons of cases involving felon in possession of a firearm for firearms in the house; lockbox; or safe. LEOs have discretion for making an arrest, arresting a kid because dad left his can in the nightstand would be very poor discretion and not plausible because the child does not exercise the dominion and control (he's a kid). These are terms of art and people often fall into the trap of thinking semantically about them and that causes a lot of confusion. Furthermore, the same principal would also apply if a state LEO wished to affect an arrest for constructive possession. Most states have a codified offense for the possession of a suppressor or NFA item, with a codified defense to prosecution specifically stating the NFA. A spouse not entitled to the legal possession of the item would lack the defense to prosecution.

Like I said before, the burglary example is not a bad one. Lets say husband and wife arrive home to discover that they have been burglarized, police show up to conduct the investigation. During their investigation, walk through, and complaining witnesses inventory of their lost property the officers discover a locked closet/safe/or just under the bed, an NFA item. Husband says that mine, I have a tax stamp, etc etc. Now this can go two ways, the officers can look at the paper and go no further, or, they can arrest the wife if they have the ability to show the wife has knowledge and access to the weapon + dominion and control. Constructive Possession issues are FACT driven, which means a totality of the circumstances can be used to establish the possession(circumstantial evidence). In some cases just knowledge of a weapon in a safe with knowledge of the combination has been enough to convict a felon. I think a housewife has a better chance, but this is going to be argued in the prosecutor's office, or in front of the jury.

Probable cause is a LOW standard (less than 50% certainty) and even though I can't imagine a case like this going very far just the arrest itself can have serious financial/legal consequences. However, this is all after an arrest, bond, hired lawyer to point all this out, more cash to expunge the arrest (assuming the case is dismissed). Believe it or not, there are many sheriffs in gun friendly states that HATE NFA items. This area of law is very vague, and I don't like it. What makes it worse is the constant misinformation that gets spread around the internet. The reason probate lawyers have to mention this is because it IS a possibility and not disclosing it could cause them problems much the same way not disclosing the risks of a surgery could cause a doctor problems (even if everything goes fine).

Food for thought.

[ndmiller]

on a slightly related note, I have always found it very odd that when an item is registered to an individual alone it has always been cool with the ATF if you go out to a range, etc., and let people use it

I was advised by my attorney against this exact situation before I went the trust route. Is this true, the ATF is cool with others using an individuals NFA items? What if the user is a felon and you don't know?

[jmoney]

I was advised by my attorney against this exact situation before I went the trust route. Is this true, the ATF is cool with others using an individuals NFA items? What if the user is a felon and you don't know?

Technically, you cannot let someone else use the item, even if you are standing there. As far as the felon issue it might be an issue of knowledge (pretty sure).