View Full Version : Nfa question for attorneys
I know it's "common knowledge" among most gun trust attorneys, and the 'big two' both claim it, but, I recently disagreed with an attorney that claimed in the commonly used hypothetical where the item is registered to the husband alone, either with no trust or generic trust, and the wife knows the combination to the safe, that they are both felons under constructive possession, and that people have been arrested and charged in this situation.
I believe it is not felony constructive possession, for both, and have never heard of nor could I find any instance of this actually happening
I know it's "common knowledge" among most gun trust attorneys, and the 'big two' both claim it, but, I recently disagreed with an attorney that claimed in the commonly used hypothetical where the item is registered to the husband alone, either with no trust or generic trust, and the wife knows the combination to the safe, that they are both felons under constructive possession, and that people have been arrested and charged in this situation.
I believe it is not felony constructive possession, for both, and have never heard of nor could I find any instance of this actually happening
There are several cases of felons being arrested under the same theory for a firearm being present in the house. In fact if I remember right there is one in my criminal law textbook from law school. Google is bad source for the kind of information you are seeking, westlaw and lexisnexis are the proper place to be looking. Also, most of the time these things happen, it never goes to the appellate court, which means most are never going to be case law. Because this issue has been beaten to death in the courts since the 80s, it just doesn't pop up anymore.
In short, your attorney friends are right, you are wrong. I would be curious as to why they think both are breaking the law, as only one of them isn't allowed to be in possession of the restricted item(unless your local jurisdiction considers it aiding in some fashion), unless it is the federal law he is talking about.
Also, I should add. In some states, depending on your local prosecutor and local laws, I don't think it matters whether or not the wife knows the combination or has a key. It is generally presumed that husband and wife share these things and I think you would have a heck of a hard time trying to prove otherwise.
Inkslinger
02-22-15, 16:12
I'm curious, how would anyone know if a situation like this existed? If said wife could access a NFA item, who besides her or her husband would know. Outside of committing a crime and having LEO going through your house, I would think this is a non-issue. It reminds me of the "constructive intent" argument when people buy an upper before they get their stamp back.
Outside of committing a crime and having LEO going through your house, I would think this is a non-issue.
Bingo. It usually comes up during the investigation of another crime.
Inkslinger
02-22-15, 16:29
Bingo. It usually comes up during the investigation of another crime.
OP, do you live a life of crime? Does your wife? My point is if you're being charged with constructive possession, you've probably got bigger fish to fry.
I know of the original 'constructive possession' case where the court said the drug dealer was justifiably charged with possession of the firearm with serial number removed, and the Florida case where the guy sold an illegal sbr to a cop, but removed the stock and vert grip while still selling them as one bundle, but that's it.
I'm going to need some evidence or I can only conclude that the wife knowing the safe combo is both false, and also the claim that couples have been charged is also false
It's doctrine for gun trust attorneys, but I can't find any basis
** hypo is that 'you' facilitated, assisted, etc her possession-crime
I know of the original 'constructive possession' case where the court said the drug dealer was justifiably charged with possession of the firearm with serial number removed, and the Florida case where the guy sold an illegal sbr to a cop, but removed the stock and vert grip while still selling them as one bundle, but that's it.
I'm going to need some evidence or I can only conclude that the wife knowing the safe combo is both false, and also the claim that couples have been charged is also false
It's doctrine for gun trust attorneys, but I can't find any basis
** hypo is that 'you' facilitated, assisted, etc her possession-crime
Do a westlaw search or have your attorney friend do it for you it. It is not false. The case I'm thinking about is an old one where a felon is home from prison and his wife stores her pistol inside a safe and doesn't tell her husband the combination. The court concluded the felon had constructive possession of the firearm and he went back to prison, plus an additional ten years.
I'm telling you, this stuff does happen. I'm not sure what kind of proof you are wanting...you can always test it out for yourself and report back :D .
I'm not sure if the assistance would be an issue under texas law(I've never seen one where it was an issue), and I don't practice federal. If the arrest occurred in Texas though under state law, the wife would lack the statutory defense provided under texas law to possession of a suppressor though, whether she knew the combination or not. In federal court If there is a crime in regards to the facilitation of possession then I would absolutely assume the AG would file the charge against both parties.
Constructive Possession is a fact driven issue, and an expensive one as you will likely be arguing it in front of a jury.
Are you talking about the case I mentioned? Drug dealer staying with his girlfriend and her child, he says you can't change me for the gun with serial numbers removed, lower court says yes, and hypothetically all of you could be charged.
To get from there to your wife knowing the combination of the safe is......... Questionable
That's also part of the reason I think it may be unfounded, that's the whole foundation of their argument
I've mentioned it in the past, I'm a police officer and attorney, with some prosecution experience, so I have a basis for questioning their doctrine
Are you talking about the case I mentioned? Drug dealer staying with his girlfriend and her child, he says you can't change me for the gun with serial numbers removed, lower court says yes, and hypothetically all of you could be charged.
To get from there to your wife knowing the combination of the safe is......... Questionable
That's also part of the reason I think it may be unfounded, that's the whole foundation of their argument
I've mentioned it in the past, I'm a police officer and attorney, with some prosecution experience, so I have a basis for questioning their doctrine
I don't think I've read the one involving serial numbers, the one I'm talking about is different and from minnesota I think (its been several years since I've read it). You are right to question the doctrine, as a lot of people don't like it and I know it can vary from state to state. The point of constructive possession is dominion and control. I think in some jurisdictions intent also comes into play. Frankly, just from taking a quick search it appears that even if the wife DOES NOT know the combination, the mere presence of the contraband, even in a locked safe, can give rise to constructive possession as there is a presumption the wife and husband would share that.
an attorney that claimed in the commonly used hypothetical where the item is registered to the husband alone, either with no trust or generic trust, and the wife knows the combination to the safe, that they are both felons under constructive possession, and that people have been arrested and charged in this situation.
Complete nonsense borne from Internet idiots. Ask them to cite this safe combination case. How does a registered owner get charged with constructive possession (no such law), when he in fact owns the firearm, and it is registered to him...
When is access alone enough?
Complete nonsense borne from Internet idiots. Ask them to cite this safe combination case. How does a registered owner get charged with constructive possession (no such law), when he in fact owns the firearm, and it is registered to him...
Constructive possession is what is known as a legal fiction, as in it was created by case law. I don't think the issue is in regards to the actual registered owner, but as it would affect the person who is not.
When is access alone enough?
I don't think access is enough. The government would have to establish knowledge of the item as well.
Not sure this was posted to the thread, apologies if it shows up twice.
JG007 asked that I reply after my reply to the other trust question thread, so I will try. What you are getting is my opinion based on 30 years of practicing law, the last 15 of which have been exclusively trust based planning. My criminal law attorney days were a long time ago nor do I litigate any more, so give it what value you see fit.
jmoney is right, constructive possession is a potential problem. Do I expect the ATF to be checking house to house to see if there are people living in your house who are not properly included on your Trustee list? I hope not in this lifetime. Do I think it could happen that the question comes up, absolutely. If someone breaks into your house and steals your collection, guess who is going to show up. Do you want to be the newest case to be listed as an appellate opinion? I don't and don't want it to be my client.
There are so many other good, legitimate reasons to do a quality trust that constructive possession concerns, real that they are, become a secondary benefit of having a properly drafted trust.
Look at it from my side as I sit down to work with a client (yep, I do that before I draft a gun trust), my job is to point out and discuss the POSSIBLE risks, I am not guaranteeing they will happen on a regular basis to honest people, but I have not done my job if I don't bring it up and say be careful about this. I have a concealed weapon permit, I don't carry a handgun because I am certain I am going to need it, I carry it because of the remote possibility I might need it. What probability of occurrence does a risk have to have to make you want to prepare for it? Constructive possession concerns, and I believe they are real, are so cheap and easy to fix why would you waste your time and your attorney's time arguing about it.
If all you want is to have ATF issue the paperwork to allow you to possess a restricted item, go get the cheapest trust you can find on the internet. If you have any concerns about what possibly could go wrong, or if you are concerned about your spouse or kids when you die, you need to do it right and the junk floating around is not adequate.
Good luck with your choices.
what led to me questioning a different gun trust attorney was his claim that people have been charged in that scenario, if he would have said that a properly drafted gun trust helps avoid a hypothetical situation like that, I would not have given it any notice
what led to me questioning a different gun trust attorney was his claim that people have been charged in that scenario, if he would have said that a properly drafted gun trust helps avoid a hypothetical situation like that, I would not have given it any notice
Ehh, I have seen a lot of felons in possession of a firearm in that scenario, but I have yet to see an NFA case. There are several NFA constructive possession cases, mostly involving "parts", but I didn't see any pop up for the hypo yet.
However, keep in mind, that doesn't mean they aren't there. Doing a law search is only going to show appellate decisions, individual prosecutions, especially ones where the individual plea bargains (which 98%) are not going to show up.
I think WCJMT's example involving burglary is very on point.
I don't think the burglary example could happen. From my research, the entire constructive possession premise is based on a criminal, a NON REGISTERED /illegal nfa item, and an absence of anyone actually being charged.
If this was reality, wouldn't the atf have addressed it at some point in the Nfa handbook? (which most gun trust attorneys have never read and may not even be aware of)
Also, wouldn't every military or police member with an NFA item be informed of this and instructed to prevent it (neither happens)
And, in addition to myself, the atf agents, prosecutors, and police legal advisers I've run it past have also all said no.
Because I'm cautious and meticulous, I have not reached one hundred percent certainly that it's unfounded, but I've apparently done more research than most and I found nothing
One more comment then I will be quiet. This discussion has been interesting, but is turning into a 45 vs 9mm type debate, different agendas not likely to reach a common agreement.
I have not researched the court decisions for constructive possession cases in NFA matters because for my clients it doesn't matter. I set them up so that it is not a problem and never should become an issue. Assuming that there are no reported appellate cases, that changes absolutely nothing. Constructive possession is a real issue, however rarely encountered in NFA matters. The lack of appellate cases has no bearing on what is done at the field level between agents and NFA owners or with prosecutors. It could still be an issue, plan around it and move on. The lack of appellate decisions on point does not mean it does not exist as an issue or concern. The lack of reporting at the trial court and enforcement level also means you cannot prove it is an issue, so we are back to 45 vs 9mm.
The only appellate case that will change my practice is a US Supreme Court decision on point dealing with NFA constructive possession. Don't hold your breath waiting on it. From a practicing attorney viewpoint if I don't address constructive possession concerns I am probably negligent, so I deal with it and don't worry about it. Maybe you are right and this is a non issue, but I KNOW it is a non issue with proper planning, so I move on to more important concerns.
One last point on the NFA handbook, be careful what you assume. I have a PDF copy on my desktop, a mouse click away, and I don't think I am unique. I also seriously doubt you would ever see this issue addressed in the handbook, that is not its purpose.
The discussion has been enlightening, have fun with it.
Regarding the Nfa handbook point, that's addressing the huge number of new attorneys doing gun trusts in the last year or two after doing a seminar and using that attorneys software. They are jumping right in like you saw with bankruptcy a few years ago. Same thing as a new realtor (non attny) or tax guy at h and r block
I also can't compare the (mis) information of "if you do this then you and your wife are felons" to 9 vs 45
So basically anyone who has ever purchased NFA items as an individual vs corp or trust is condemning their entire family to prison?? While I can see the potential for that kind of abuse from our masters, I'd really like to see some cases where this hypothetical offense was a primary charge brought against otherwise law abiding folk.
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
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.
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.
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.
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/firearms-industry/guides/national-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.
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/firearms-industry/guides/national-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.
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?
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 :cool:).
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.
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?
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).
Jmoney, what business does a LEO has going through a locked closet or locked safe in the first place?
And how would they know who was on the trust( if there was one) ?
What if one doesn't have safe, is everyone in the house a felon??
So what you are saying if someone has a NFA item in their safe they must deprive there wife of their 2nd Amendment rights by denying access to the safe?
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Jmoney, what business does a LEO has going through a locked closet or locked safe in the first place?
And how would they know who was on the trust( if there was one) ?
What if one doesn't have safe, is everyone in the house a felon??
So what you are saying if someone has a NFA item in their safe they must deprive there wife of their 2nd Amendment rights by denying access to the safe?
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1. its a hypo. Maybe it was open and they see it, who knows. If they have a warrant for a unrelated issue to get into the safe they might get another warrant upon discovery of the item, etc etc.
2. well you would need to prove it (the trust grants you a defense to prosecution as it establishes who may lawfully be in possession of the item) you need to be able to prove the lawfulness of your possession at all times.
3. Potentially depending on the circumstances, as I said constructive possession is a fact driven issue
4. potentially...yes. You would need a second storage space (and there is even some suggestion that this may not be sufficient)...or you could just get a properly drafted trust i guess.
OP, do you live a life of crime? Does your wife? My point is if you're being charged with constructive possession, you've probably got bigger fish to fry.
One would hope this were true, but this is ignoring the ultimate aim of these laws. The biggest fish, as far as the bureaucrats are concerned, are uppity citizens with all their unnecessary and annoying Constitutional rights.
The case it cites is more interesting
http://openjurist.org/4/f3d/337
Technically, you cannot let someone else use the item, even if you are standing there.
Based on which Case Law case do you come to this conclusion?
By your logic, I am also not allowed to hold weapon in store to see if I want to buy? I am not allowed to give it to common carrier for shipment? When I die, executor cannot touch it either? The fact is, there is either Case Law, Revenue Rules or CFR regs over the past 80 years that allow all of these things to happen.
The concept of constructive possession being interpreted and simply being in the same home as an item is pretty stupid. Doesn't mean that if some hack develops and axe to grind they can't come at you with it though; so in that sense I'd like to see it cleared up NOT via case law gyrations, but rather vial legislative changes that clearly define what is means.
Technically, every single NFA item owner or even common firearm owner and their families are guilty of constructive possession. Do you have a minor living in your home who knows where the safe is?? If so then I guess you are technically guilty of constructive possession cause they have control of the guns. What if one of your family members is visiting the house. Are they a felon while you're at work and they know the location of your safe and you keep your NFA items in it??? It's pretty retarded. Especially since their is absolutely NO way to protect against it if it's as simple as someone knew you had X and where you stored it.
I still want to see 1 single solitary case where constructive possession was a primary offense brought against folks instead of just plea bargain chips or sentencing enhancements for other criminal activity.
Is it a possibility that someone might have a go at you. Sure, but then so is getting struck by lightning; yet we don't seem to be running around like headless chickens about it.
Here is the latest case that comes up on my quick search, United States v. Griffin, 684 F.3d 691 (7th Cir., 2012). Not an NFA case, but a firearms case. The case has something for everybody in this thread, charged with constructive possession the defendant won on that count, reasonable decision requiring intent to be shown. With that said, he was still charged, and the case cites numerous other cases from other circuits, this case is not unique. An over zealous prosecutor or agent can still make life miserable and expensive which has been my point all along. Eliminating the potential for problems with a well drafted trust beats the hell out of winning on an appeal, unless you just want to spend a lot of money.
I think the quote is "an ounce of prevention is worth a pound of cure".
Here is the latest case that comes up on my quick search, United States v. Griffin, 684 F.3d 691 (7th Cir., 2012). Not an NFA case, but a firearms case. The case has something for everybody in this thread, charged with constructive possession the defendant won on that count, reasonable decision requiring intent to be shown. With that said, he was still charged, and the case cites numerous other cases from other circuits, this case is not unique. An over zealous prosecutor or agent can still make life miserable and expensive which has been my point all along. Eliminating the potential for problems with a well drafted trust beats the hell out of winning on an appeal, unless you just want to spend a lot of money.
I think the quote is "an ounce of prevention is worth a pound of cure".
Exactly. There just isn't a bright line rule and constructive possession has a wide latitude as it is a FACT DRIVEN ISSUE. As in the trier of fact will interpret the facts at hand to reach a conclusion and that can go any way, the law on constructive possession is vague, and ranges from circuit to circuit. The selling point on the trust as it completely removes that problem. Which was the point in the beginning.
The concept of constructive possession being interpreted and simply being in the same home as an item is pretty stupid. Doesn't mean that if some hack develops and axe to grind they can't come at you with it though; so in that sense I'd like to see it cleared up NOT via case law gyrations, but rather vial legislative changes that clearly define what is means.
Technically, every single NFA item owner or even common firearm owner and their families are guilty of constructive possession. Do you have a minor living in your home who knows where the safe is?? If so then I guess you are technically guilty of constructive possession cause they have control of the guns. What if one of your family members is visiting the house. Are they a felon while you're at work and they know the location of your safe and you keep your NFA items in it??? It's pretty retarded. Especially since their is absolutely NO way to protect against it if it's as simple as someone knew you had X and where you stored it.
I still want to see 1 single solitary case where constructive possession was a primary offense brought against folks instead of just plea bargain chips or sentencing enhancements for other criminal activity.
Is it a possibility that someone might have a go at you. Sure, but then so is getting struck by lightning; yet we don't seem to be running around like headless chickens about it.
constructive possession is not an offense, and there are TONS where it is the sole means to establish a criminal case, especially on felons in possession of a firearm or drugs
Eliminating the potential for problems with a well drafted trust beats the hell out of winning on an appeal...
I think the quote is "an ounce of prevention is worth a pound of cure".
The selling point on the trust as it completely removes that problem. Which was the point in the beginning.
I'm not trying to be argumentative and am by far a proponent of using trusts for NFA items. It's the route I am going.
With as much latitude that constructive possession seems to have how does a trust protect against it. It would only protect those listed on the trust as trustees NO?? In my case my wife and I would be trustees and my minor son would be in there as next in line when he becomes old enough (not sure what the term is). I'd also add anyone listed in my will as guardian of my son to cover them in the unfortunate event of our death. So what happens to my mother in law who moves in with us when she retires? I certainly don't want her on the trust so is she guilty? What happens if I go to Timbuk-Too to go skiing and I'm cheap and crash at a friends house for the week. He has NFA items in his safe and I know where it is and what's in it cause we are shooting buddies. Am I guilty?
By the sounds of all the definitions of constructive possession there is absolutely nothing that you can do to protect against it.
How many cases exist where it was the only offense in criminal prosecution for an otherwise law abiding person? All the cases seem to involve felons involved in criminal activity or associating with criminals.
TAZ, your questions are the heart of this discussion. I have clients waiting, I will get back with some perspective from the attorney side latter this morning.
Thanks
TAZ, your questions are the heart of this discussion. I have clients waiting, I will get back with some perspective from the attorney side latter this morning.
Thanks
So, now legal theory has to meet up with reality, this is always the fun part working with clients. Your attorney can tell you what the legal rules are, now we have to live with them. This is the area I have been trying to talk about in the previous posts. The practical, real life side is you prepare and plan for what you can and then use your common sense.
People want me to give them black and white answers, unfortunately when people are involved I cannot always do that. Your questions are the real life practical application. My trust is drafted with myself and wife as Trustees, we are covered. My kids are gone, but listed in the trust as beneficiaries, again I am comfortable with that. My trust names the kids as successor trustees, I die they don't have a problem, no new form 4s, etc. My trust provides for a trust protector, a person with the power to modify an irrevocable trust ( which my revocable trust becomes when I die) to accommodate changes I don't know about now. My trust allows me to appoint a special trustee for a limited time. If my buddy comes for the week of shooting gophers with the suppressor on the .17, I make him a special trustee for the week, problem solved.
Practicality kicks in at some point, we have dinner guests over, I am not worried about it. The cases (including the cite I posted yesterday)generally show a requirement for knowledge, access, etc. for constructive possession to kick in. My dinner guests, I don't worry about, the guy riding in my Truck and in arms reach of the gun, and maybe shooting the gun, I like being able to make a special trustee for the week.
Do what you can to prepare, take a deep breath and use some common sense. These problems then become an insignificant risk. From my side, I have a duty to my client to discuss and plan for problems, however theoretical. Courts generally apply a "reasonable person" standard to their evaluations. Learn the rules, apply common sense and be reasonable. If your actions and behavior match that, you have little to worry about.
You are on the right track.
threeheadeddog
02-26-15, 16:09
Forgive my ignorance, I am currently in the starting stages of creating a trust(have contacted a lawer, finished filling out questionare). You mention adding a trustee for a week. My question is what form does a trust take after it is made. Is it a piece of paper at my house, a legal document held by the lawer, something else? When I go to add a trustee do I simply scribble in the name and dates the person will be a trustee? Do I have to get it notorized, ect?
Realize that at this time a "trust" is little more than an abstract thought to me with no form. I have previous individually owned NFA items, they all have papers attached to them. This trust thing is simply foreign to me.
The trust is a written document that you keep with you and a copy with you when out with the NFA item. My trusts are set up to allow addition of a special trustee with a one page form signed by the current trustee. That addition then goes with the original trust with theNFA item if the special trustee is using it. The lawyer drafting the trust should be able to walk you through the operational details. Really pretty simple.
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