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cptsplashdown
November 28, 2009, 08:59 PM
I was at the Markham Park shooting range today in South Florida. I was shooting an MP-5SD (RDTS conversion) and after shooting it for some time was approached by a range officer who asked if I had my NFA paperwork. I said I did not. He told me I was violating federal law and that any police officer who asked me for my paperwork would arrest me on the spot. He told me I had to pack up and leave the range, which I did. I did not think this was correct, but I have had trouble finding any appropriate legal references to this issue. I know there are a lot of opinions out there, but I was hoping someone could give me a specific reference in the law that I could refer to in the case that this happens again. On the other hand, if the range officer was correct, I suppose I would like to know that as well. Anyone?

isanchez2008
November 28, 2009, 09:17 PM
You didn't have to jump through hoops to get a suppressed MP5? :confused:

cptsplashdown
November 28, 2009, 09:21 PM
No more hoops than usual.:D

cptsplashdown
November 28, 2009, 09:23 PM
Not sure if it makes a difference, but this is a semi, not full auto...

isanchez2008
November 28, 2009, 09:31 PM
Sorry I can't help with your states laws. You might post in the Laws section here. In WA you have to have a trust set up to purchase a supressor.

cptsplashdown
November 28, 2009, 09:38 PM
Sorry, maybe I'm not being clear on my question. This is a legally owned and registered (SBR and Suppressor) firearm, and I have all applicable documentation. My question is whether or not I am legally required to have this documentation with me when I am at the range with the weapon. In other words, was the range master correct in telling me that I was violating federal law by not having the BATF paperwork with me at the range, or was he just on a power trip disseminating mis-information?

isanchez2008
November 28, 2009, 09:42 PM
I'm sure theres gotta be someone floating around here that knows. If he was power tripping I hope you go back and give him an earfull. Good luck. :)

Ridge_Runner_5
November 28, 2009, 09:48 PM
You are only required by federal law to show it to an ATF agent. That said, I'd still bring a copy whenever I took it somewhere, lest I end up in jail by some cop unfamiliar with the laws...

LukeA
November 28, 2009, 09:54 PM
A local cop couldn't arrest you for it, an ATF agent would have to. I'm not really sure what can happen if an ATF agent comes knocking and you can't produce the necessary documents (that you do possess). There's probably some measure of "Innocent until proven guilty."

I have heard of people making miniature certified copies of their tax stamps and keeping them with their NFA items to prevent anybody on their high horse from going on a power trip and making the range trip a PITA (like the one you experienced).

cptsplashdown
November 28, 2009, 10:02 PM
I understand that it would be easier on me to carry at least a copy of these papers with me in order to keep the wolves at bay, but my question is really more about what the law actually requires, not what would be easiest for me. I would like to know if this is a legal requirement or not (having the paperwork with the weapon, vice simply keeping it safe at home.) I have heard that the tax stamp on the form makes it a tax document and as such these documents are subject to privacy laws which would preclude any law enforcement officer from demanding said document without a warrant or probable cause... In any case I was hoping for a legally definitive answer from someone who really knows the NFA inside and out...

AK103K
November 28, 2009, 10:43 PM
well, since it got closed on the other side.....


This is the closest I could find with a quick search....

The link is here...

http://www.atf.gov/firearms/nfa/nfa_handbook/index.htm

CHAPTER 12. RECORDKEEPING
Section 12.1 Maintaining proof of registration. The NFA requires that a person possessing a firearm
registered in the National Firearms Registration and Transfer Record (NFRTR) retain proof of
registration which must be made available to the Attorney General, specifically an ATF agent or
investigator, upon request.184 Proof of registration would be on a Form 1 registering a firearm to its
maker, Form 2 registering a firearm to an importer or manufacturer, or a Form 3, 4, or 5 showing
registration of a firearm to a transferee.


Most of this all deals with federal law and the ATF. You may or may not be required by your states laws to provide the same info, but I dont know, you'll have to look at that end with your state.

The range is probably more concerned with their liability than anything else. From experience, many havent any idea as to what is or isnt legal, but it is their range, so you have to choose what you want to do. Many if not most ranges these days, wont even allow them on the range, which can be frustrating, especially when the reasons they give are total BS and incorrect. Insurance also has a lot to do with it. Oh well, such is life for a tax stamp holder in the world of know it alls. :)

flight954
November 28, 2009, 10:43 PM
In Texas I've been told you have to have the original NFA stamp/paperwork w/ the NFA item while transporting.

Bud Helms
November 28, 2009, 10:44 PM
Just to add to this discussion, cptsplashdown inadvertently opened three discussions in separate forums. I'd like to bring them here, but the time tags on the posts would mingle those discussions here and nonsense might result, So, instead, I give you the links to those other discussions, which have been closed, but remain in view:

Law & Civil Rights (http://thefiringline.com/forums/showthread.php?t=386684)

General Discussion (http://thefiringline.com/forums/showthread.php?t=386687)

LukeA
November 28, 2009, 11:11 PM
I understand that it would be easier on me to carry at least a copy of these papers with me in order to keep the wolves at bay, but my question is really more about what the law actually requires, not what would be easiest for me. I would like to know if this is a legal requirement or not (having the paperwork with the weapon, vice simply keeping it safe at home.) I have heard that the tax stamp on the form makes it a tax document and as such these documents are subject to privacy laws which would preclude any law enforcement officer from demanding said document without a warrant or probable cause... In any case I was hoping for a legally definitive answer from someone who really knows the NFA inside and out...

Do you want to be technically in the right or do you want to be shooting?

cptsplashdown
November 28, 2009, 11:28 PM
Frankly, I would rather be at a range where the people respect the law and my second and fourth amendment rights. I can always find a place to shoot, and I won't tolerate certain behavior just to get in a session at the range. So I guess I would rather be right.

Bill DeShivs
November 28, 2009, 11:29 PM
A local cop CAN arrest you. It would be up to you to provide proof the item is legal.

cptsplashdown
November 28, 2009, 11:30 PM
Roger that Bud, sorry for the multiple postings, my first time on the site and it was suggested by another member to try multiple forums to increase the potential of reaching a successful responder. Won't happen again.

cptsplashdown
November 28, 2009, 11:33 PM
Bill, how can a local cop arrest me if I'm not breaking the law? Of course I understand that he could arrest me for spitting on the sidewalk, but really, are you saying that you believe it is in fact a violation of federal law to have a properly registered NFA firearm (SBR, Suppressor) at the range but not have the registration forms with you? That was my original question, and I appreciate AK for posting the link which I will be reading asap. Cheers man.

Accoster
November 28, 2009, 11:37 PM
Being a LEO who deals with these types of firearms on an infrequent basis, I would say that the burden of proof is on you to prove that the guns are legal, not the officer. NFA weapons are always registered with the ATF and maybe the police department where (and if) you had the head LEO sign off on it, but other jurisdictions won't have access to the info right away. Every short barrelled weapon or homemade silencer I have ever dealt with has been illegal, but the suspect will claim they didn't know or have the paperwork at home. I have seen people with registered NFA weapons "lend" them to their friends for extended periods of time, which we know you cannot do. I have even seen fake NFA paperwork for an unmarked auto sear. But the suspects usually have no idea how the NFA process works, where a legitimate person knows the process very well. Most states have laws outlawing NFA weapons without federal approval (ie tax stamps), so an officer does have the duty to fully investigate. Basically my point is that just saying you have the paperwork won't work in most cases. If you were an officer, would you like to be known as the guy who got duped into letting a "dangerous" silenced weapon walk when in fact it turned out to be illegal?

My suggestion to you would be to have a copy of your paperwork handy. In reality, an officer could arrest you for not having it, but could very easily just impound the weapon and hold it until the paperwork is presented. It took alot of effort to get the weapon, don't risk it by not having a simple piece of paper saying its OK.

Willie Lowman
November 28, 2009, 11:40 PM
Have a color copy, front/back of your form 4. Keep it with the gun.

Technically only an ATF agent has the authority to hassle you over your NFA item but that won't stop cops and rangemasters.

Keep a copy with the gun.

In WA you have to have a trust set up to purchase a supressor. Not true. If a local CLEO won't sign for a suppressor you will need a trust. Unfortunately, while it is legal to own a suppressor in Washington, it is not legal to put it on a gun...

B. Lahey
November 28, 2009, 11:43 PM
how can a local cop arrest me if I'm not breaking the law?

Well, he would slap handcuffs on you, say "you're under arrest, these things are illegal!" and haul you off. Then, days or months later, when somebody who knows the law (or knows enough to bother looking it up) looks at the case, they will say "you dolts arrested this guy for a legal gun!". Then the charges will go away and you will get your super awesome gun back.

You are right, they are wrong, but that won't always keep you out of trouble. Particularly if you have an attitude and try to preach/screech at dimwits who think your sweet sweet rifle is illegal/improper/needs a permission slip from the pope.

Find a range that is familiar with NFA items or go shoot in the swamp (or on the ocean, I think there's a bit of water down there).

cptsplashdown
November 28, 2009, 11:45 PM
Accoster, I think your response brings me back to the crux of the question. If I am not committing any type of crime just by being at the range with my legally owned weapon, why would any LEO be investigating the situation at all. Would you investigate every car in the parking lot of the range just to be sure that one of them wasn't stolen? There is no probable cause to believe that a crime has been committed. Isn't there some sort of necessity for probable cause in a case such as this (exempting BATF agents who are afforded the right by law.) Yes, I understand that most LEOs don't know the law or deal with these weapons on a regular basis, but it sort of scares me that you would then put the "burden of proof" on the citizen, rather than on the LEO to go and actually know the law he is accusing you of breaking. Just food for thought, I have all the respect in the world for the boys in blue, but it reeks of Big Brother to me.

cptsplashdown
November 28, 2009, 11:51 PM
And of course all who point out that police officers can arrest you even for a crime you didn't commit are correct, which is why I am hoping to find the specific legal citation. I don't imagine any LEO who was presented with a copy of the written law in lieu of a Form 4, upon seeing the error of his ways, would arrest you just out of spite. I also don't think that it needs to be a butting of heads, just a citizen explaining to a misinformed LEO or RSO that he or she is mistakenly applying their authority or misinterpreting the law.

Lurch37
November 29, 2009, 12:04 AM
I was informed to make a copy of my original Form 4 and carry it with me whenever I was in possession of my NFA item. The copy is in a ziplock bag and stays in my range bag so it's always there if by chance I get asked about it at any of the ranges I go to.

You may know that the SBR, Full Auto, or Suppressed weapon is totally legal. Your shooting buddy may know the same thing. But the range officer or local Policeman may not, or may think your supposed to have the Form 4 with you at all times.

I'm not sure what the actual "law" is regarding having the From 4 with you is, but to be honest, it's way too easy to make a copy and carry it with me than to cite legal statues to some concerned officer.

Frank Ettin
November 29, 2009, 12:05 AM
...There is no probable cause to believe that a crime has been committed....Actually, I suspect that a judge would say that there is probable cause. Fully automatic firearms, short barrel rifles, suppressors, etc., are, in fact, illegal, UNLESS they have been properly registered under the NFA. Therefore it could easily be argued, that an LEO seeing you with an NFA firearm has reason to believe that you are in possession of contraband if you can't show that you have complied with the requirements of the NFA.

"Probable cause" is "sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime...." Possession of an NFA weapon or device without having satisfied the NFA formalities is a crime. An LEO seeing an individual with an NFA weapon or device has no way of knowing if the necessary formalities have been satisfied (unless the person in possession can produce the appropriate paperwork) and therefore has reason to believe a crime has been committed. (And no, he doesn't have to take your word for it.)

cptsplashdown
November 29, 2009, 12:22 AM
Once again, I think the logic is faulty. The fact is you need a license to drive a car, but that doesn't mean that being in possession of a car constitutes probable cause for an officer to start an investigation simply because driving a car is illegal without a license. Just doesn't add up to me. Being in possession of a legally owned weapon that would be illegal without a license would appear to be a similar situation. LEOs can't pull you over just for driving a car on the premise that not everyone has a license, so why would they rock up on you at the range and start investigating? The burden of proof is in fact usually on the LEO to prove that a crime has been committed, aka: the presumption of innocence. Yet many seem quite willing to subject themselves to what may be an illegal search and seizure with nary a thought to their constitutional rights, all to make their lives a bit less stressful. Sorry I just think differently.

Sasquatch in MN
November 29, 2009, 12:35 AM
strikes me as a bit easier to merely keep a copy of the NFA documentation in your range bag or gun case and avoid a sticky mess.

Don

Frank Ettin
November 29, 2009, 12:42 AM
...The fact is you need a license to drive a car, but that doesn't mean that being in possession of a car constitutes probable cause for an officer to start an investigation simply because driving a car is illegal without a license....Bad analogy. The car itself isn't illegal without something else. But if the car doesn't have current registration tags, that's another matter.

In the case of, for example, a machine gun, you are openly holding an object which is inherently illegal to possess, unless certain non-obvious conditions have been satisfied. It is, effectively, presumptively illegal. You, and only you, can show that you are in lawful possession of this item, and only by showing the proper paperwork.

...The burden of proof is in fact usually on the LEO to prove that a crime has been committed, aka: the presumption of innocence....No, an LEO doesn't need to prove that a crime has been committed, and that you did it, in order to legally arrest you. He only needs probable cause. The presumption of innocence arises in the court room.

...Yet many seem quite willing to subject themselves to what may be an illegal search and seizure with nary a thought to their constitutional rights,...This is not about a search. You have in your possession, in plain sight, an object which is contraband unless you have some paperwork to show that you have gone through the hoops necessary to lawfully possess it. An LEO doesn't have to assume that you have gone through those hoops.

...Sorry I just think differently. Perhaps, but how you think really doesn't matter. What matters is how judges think. I know something about that, because knowing such things is how I made my living for over 30 years.

James K
November 29, 2009, 12:44 AM
We have here an example of an argumentative person simply trying to impress us with his knowledge of the law. I suggest that if he tries out some of those arguments on a police officer, he just might be spending some time in jail. Maybe for telling a police officer that he has no authority to check the license of a person driving a car.

Jim

cptsplashdown
November 29, 2009, 12:54 AM
Thanks for your support Jim. In fact, I gave no argument at all to the gentleman that approached me at the range. I simply went out in search of an answer to why someone would attempt to accuse me of a "violation" that I didn't commit. In case you missed it, this is a forum where people make posts to discover answers, learn about issues, and make comments exactly like the ones being made here. I made no statements about any impressive knowledge I have about the law, and in fact none of the other comments with the exception of AK have actually attempted to even address my original question. All fine by me because I enjoy a good discussion (or in your vernacular "argument") about these very important issues that relate to all of our rights as citizens. I don't agree with the suggestion that I should have to submit to this search, and in fact reading AK's link appears to show that I am correct. However, if you don't enjoy the thread or have anything to contribute, feel free not to post at all. I for one have enjoyed and learned from every other post here except yours.

Frank Ettin
November 29, 2009, 01:01 AM
...Maybe for telling a police officer that he has no authority to check the license of a person driving a car.Just for the record, it wasn't I who suggested that a police office wouldn't have the authority to check the license of a person driving a car.

cptsplashdown
November 29, 2009, 01:07 AM
And Jim, I don't know you from Adam and certainly wouldn't go out of my way to "impress" you even if I did. Glad to know you think yourself worthy of the effort though. Amicalement.

Atroxus
November 29, 2009, 01:27 AM
I think what ppl are saying to the OP is that regardless of what the technical legality of it is, a range officer or police officer can still give you a bad day for not having the paperwork along for the ride. The range officer can kick you out regardless since most businesses reserve the right to refuse service to anyone. Many well-intentioned police have and still do arrest people for things that technically are not illegal.

Some people have posted what the federal laws are, but how badly do you want to be right? Are you willing to take it to the mat and possibly shell out legal fees to defend yourself if you are wrongfully arrested? If so, more power to ya, though you should be consulting an attorney to make certain of your legal standing not an internet forum if thats the case. Me, I can't afford to make those kinds of stands, so I pick my battles a bit more carefully. I have a lot of respect though for those that can and do take that extra step to defend our rights.

cptsplashdown
November 29, 2009, 01:35 AM
Well thanks to all who contributed to the discussion. I am totally in agreement that there are ways to deal with the reality of the situation that can make your life a lot easier, however I also don't see a problem with engaging any range or law enforcement authority over the specific legal aspects of NFA laws. I think if I had been able to speak more clearly to the exact nature of the statute earlier today, I might have saved myself, the RSO, and many other customers from future unnecessary complications. Perhaps not only carrying copies of your NFA paperwork to satisfy authorities in that instance, along with a copy of the NFA law relating to the inspection of such weapons would be the best solution. Particular thanks to the LE guys who gave their personal perspectives and thoughts. Regards and happy hunting.

Don H
November 29, 2009, 01:42 AM
FWIW, this is what BATF has to say on the issue:
(M25) Does the owner of a registered NFA firearm have to have any evidence to show it is registered lawfully to him or her?

Yes. The approved application received from ATF serves as evidence of registration of the NFA firearm in the owner's name. This document must be kept available for inspection by ATF officers. It is suggested that a photocopy of the approved application be carried by the owner when the weapon is being transported.


http://www.atf.gov/firearms/faq/faq2.htm#m25

Accoster
November 29, 2009, 01:42 AM
The point is that it ultimately falls upon a citizen to prove that they are indeed legal. Most if not all states have a law that a person must present a drivers license if it is demanded by a police officer. I know your argument is that an officer can check it in the computer, but what happens if the computer is down? An officer now cannot check if you indeed have a license, but the law says you must have a license on you, guess who gets a ticket.

In Nevada, NRS 202.350 states in part: or expose for sale, or give, lend, possess or use a machine gun or a silencer, unless authorized by federal law. Short barreled weapons have a similar clause.

Now back to my point, without a system for an officer to check, it is up to the person to show they have permission by the feds. If you get caught with marijuana, do you really think an officer is going to assume you have a medical permit for it? It is a law of numbers; NFA weapons are rare when compared to the numerous illegal weapons out there.

I pull over alot of cars at work, but I rarely give people any tickets. I am a supervisor and have other things to worry about, but feel a duty to at least stop an offender for an obvious violation in front of a marked police vehicle. If the person cooperates and has no warrants, a clean record and a good attitude, they usually get a warning. But with a NFA weapon like yours, there is a ton of liability for an officer. If that weapon was used in a mass shooting and it was learned that it had been examined by the police earlier and it could not proven it was legal at the time and released anyways, that officers career and financial future are over.

Owning an NFA is a privilege, not a right. It is up to you to prove you are allowed to have it.

sectshun8
November 29, 2009, 01:45 AM
This was a great thread to read just waking up. To the OP, honestly, I feel you 100% and would be asking the same questions as you. I probably would have addressed those questions to the RO before leaving as well, but then, that could have very well escalated things and made it more an issue. In that respect he was doing you a favor by just asking you to leave.

In hindsight, and to anyone who reads this, it's in all our best interest just to keep a copy of the documents with the weapon, saves everyone a headache ;)

dogtown tom
November 29, 2009, 02:05 AM
Willie Lowman: ...Technically only an ATF agent has the authority to hassle you over your NFA item ...

Not true.
Many states have their own laws regarding NFA firearms. Here in Texas, state law prohibits NFA firearms, BUT- it is "a defense to prosecution" to be in possession of a properly registered/taxed NFA firearm. It's a weird Texas thing, meaning you "could" be arrested, but not prosecuted. Most police officers know what "defense to prosecution" means, but I'm sure there are some who do not.

Remember the old saying: "You might beat the rap, but you won't beat the ride".

I have an Inglis Hi Power with detachable shoulder stock/holster. It would be a SBR under the NFA, but was removed due to it's curio & relic status. I keep a copy of the C&R reference that exempts it from the NFA as well as a copy of the ATF Technical Branch letter authorizing the stock holster- both folded and stoed inside the stock.

JohnKSa
November 29, 2009, 02:11 AM
The fact is you need a license to drive a car, but that doesn't mean that being in possession of a car constitutes probable cause for an officer to start an investigation simply because driving a car is illegal without a license.This is a poor analogy. You don't need a license to possess a car, only to drive one. So you are correct that it wouldn't be right for an officer to investigate you for possessing a car without a license. On the other hand you DO need paperwork to possess an NFA item, so if an officer thought you were in possession of an NFA item (as in he looks over and sees you with one) and you fail to present the documentation showing that you are in legal possession then he has every right to arrest you.Bill, how can a local cop arrest me if I'm not breaking the law?Ok, here's an analogous situation.

A guy attacks me with a pistol and I am left with absolutely no alternative but to shoot him to prevent him from seriously injuring or killing me. When he falls, dead, from my shot, his pistol slips from his hand and into a storm drain. There are no witnesses.

When the officer arrives he asks me what happened but I exercise my legal right to remain silent and I do not speak to him at all.

Now, I have not broken the law, (just as you haven't broken the law) but still any law enforcement officer with jurisdiction has every right to arrest me.

He can arrest me for the same reason he can arrest you--because in both your case and mine all the evidence points toward the fact that a crime has been committed. In my case murder, in your case illegal posession of an NFA item without the proper paperwork.

In both cases we can prove our innocence and probably avoid arrest, but in both cases we're shooting ourselves in the proverbial foot by withholding the pertinent evidence from the officer.

Bill DeShivs
November 29, 2009, 02:11 AM
There is an old saying in LE- "You can beat the rap, but you can't beat the ride."
I'm not saying it's illegal for you to not have a copy of your paperwork. I don't know if it is or not. I AM saying to not have it is imprudent, at best.

cptsplashdown
November 29, 2009, 02:33 AM
There is an old saying in LE- "You can beat the rap, but you can't beat the ride." Exactly what my friend told me as we left the range Bill. Excellent points gents, and well taken. Of course in the future I will be carrying copies of these docs with me. I'm glad to see and hope that all understood my interest in the finer points of the law in terms of what the law actually requires vs. what you may run into out in the real world. I can certainly understand any LEOs concern with illegal weapons on the field of play. I suppose we could all forget to bring our paperwork with us at one time or another and I think it worth exploring the potential consequences as well as understanding what your actual obligations are under the law. My question about "how can an officer arrest you..." should probably have read "why would an officer arrest you...", assuming he understood that you were not in fact in violation of any law. Certainly any officer CAN arrest you, I more specifically was thinking of whether or not you SHOULD be arrested given this particular set of circumstances (having a legally registered weapon at the range, but having the paperwork at home.) I would liken this to the fact that some states that allow CCWs require that you have the license on your person, and some do not, and not having your CCW is not always a violation. It is my belief from reading AK's link and other info (http://www.titleii.com/BardwellOLD/nfa_faq.txt) that in fact simply not having the paperwork on you does not put you in violation of any federal or state law (in FL anyway.) I have not seen or read anything that would contradict my conclusion. Does that mean that I would get into a protracted argument with a LEO or RSO over this issue without any supporting documentation. Certainly not. I would however be happy to carry both my NFA paperwork, as well as a copy of several of these references, and perhaps be able to clarify the issue amidst a situation that might otherwise escalate to a confiscation and/or arrest. Great discussion and cheers again to all.

pichon
November 29, 2009, 04:18 AM
I'm sure medicinal pot smokers would agree with you when they can't produce a prescription for an observant LEO who sees them getting high in the park. Would they get away with it? I seriously doubt it.

In my experience most LEO's don't want to be jerks but I would rather they hassle everyone about it than let the local hooligans run around with sbr's.

You have to admit that there is a preponderance of evidence that you are doing something wrong when you are in possession of a restricted weapon and you are unable to produce proof of its legality. I am also sure you would agree that you would rather resolve the misunderstanding with the LEO than have the ATF called. I doubt they are very tolerant of noncompliance.

Remember, when enough people think that they can justify crappy behavior by hiding behind the second amendment all gun owners suffer in the court of public opinion. You can poo poo that as much as you want but I believe we are on thin ice with the current administration as it is. You can play the martyr as much as you want but it will end up hurting us all in the end.

cptsplashdown
November 29, 2009, 04:56 AM
I think you miss my point pichon. You are basically suggesting that you consider it acceptable to submit yourself to the whims of a non existent law because you believe that to resist a government agent who (for perhaps innocent reasons) is imposing an illegal restriction on you is being a "martyr." You then go on to suggest that it would be better for me to submit myself to this non existent law in order to preserve my second amendment rights. What about if an agent decides to come into your home and search it whenever he wants. This is simply an extension of your attitude. You would submit to such a search, even though there is no law permitting it, because in the end you would rather the LEO or whomever catch one or two criminals rather than respect the rights of the other 90% of the population. All well and good, and I think it just comes down to your personal philosophy. Some people are willing to sacrifice more of their personal freedoms for the security that society provides. I on the other had would rather keep my personal freedoms and provide for my own security to a certain degree. In either case, I will not be submitting myself to any illegal searches just to make life easier on anyone, yourself included (sorry,) and if that makes me a martyr so be it. I don't really believe it does, but your opinion is respected none the less, even though I respectfully see things differently.

cptsplashdown
November 29, 2009, 05:06 AM
On the medicinal marijuana issue, I don't know the laws, but I would expect that the LEO that arrests someone for using drugs illegally would know the law, just as I expect anyone who would arrest me for violation of the NFA to know the respective laws relating to these weapons. The whole point of my post was that I have not been able to find any part of the NFA that would have put me in violation during my encounter at the range. Everyone has been expressing some very well thought out opinions, but no one has pointed to one word of the NFA that has made my actions illegal in any way shape or form. There is simply nothing in the NFA, or any other body of law that I have been able to find or that has been shown to me, that says unequivocally that I need to have my NFA paperwork with me at the range. So I just don't get the attitude that it is okay to be detained, arrested, or kicked off of a firing line because a law enforcement officer or civilian RSO thinks he knows the law and doesn't. To me that is a violation of my liberties, which are somewhat important to me. I'm not gang-banging in the hood mind you, I'm just at the range plinking away, and I don't believe it to be fair or legal to arrest me for forgetting a few pieces of paper.

JohnKSa
November 29, 2009, 05:58 AM
In either case, I will not be submitting myself to any illegal searches...What is this/these illegal search(es) you keep referring to?

Since you are openly displaying the NFA item at the range, no search is necessary to discover it.

If you're saying that being asked to present your NFA paperwork is a search, then you're under no obligation to submit to it. But if you don't you're subject to arrest--just as I am in my analogy above. NOT for failing to submit to the search but rather because if you do not present your NFA paperwork you are, in the view of the arresting officer, committing a felony by illegally possessing NFA items. Just as in my analogy I am not subject to arrest for failing to talk to the officer but rather because if I do not present any evidence to justify shooting my attacker I am, in the view of the arresting officer, guilty of committing murder.It is my belief from reading AK's link and other info (http://www.titleii.com/BardwellOLD/nfa_faq.txt) that in fact simply not having the paperwork on you does not put you in violation of any federal or state law (in FL anyway.)Ok, for the sake of argument let's say this is true. That doesn't mean that you aren't still subject to arrest if you are found with an NFA item in your possession and can't/won't prove that you possess it legally.

Again, as demonstrated by my analogy, it is clearly possible and reasonable for an innocent person to be subject to arrest if the evidence points toward their being guilty and they decide to present nothing concrete in their defense.

What you're essentially saying is that anyone found to be carrying a handgun should be allowed to go free if they merely tell the officer that they are carrying the handgun legally. That the officer's asking them to see their permit constitutes an illegal search and that arresting them is unreasonable unless there is a law that states that they must have their permit in their possession at all times when carrying.

I'm saying that if there's no law that thay must have their permit on them at all times while carrying then they are under no obligation to present the permit. BUT if they don't they are clearly subject to arrest and such an arrest would be perfectly reasonable given that they were found apparently committing a crime and refused to present any real evidence that they were, in fact, innocent.

If that happens, they are not being arrested for failing to present their permit upon request, they're being arrested for illegally carrying a handgun.You are basically suggesting that you consider it acceptable to submit yourself to the whims of a non existent law...The agent isn't enforcing a non-existent law, he's merely asking you if you have any concrete evidence that you're innocent of the crime of illegally possessing NFA items.

If you won't or can't present the evidence then he's not arresting you for failing to present your papers, (for failing to submit to a non-existent law, if you will), he's arresting you for illegally possessing NFA items.

p99guy
November 29, 2009, 06:01 AM
splashdown, You are failing to take state law into account, it is what the officer will be approaching you will be basing his actions on( not federal).
I have been a NFA dealer, NFA owner, AND a Peace Officer.

Knowing full well the ins and outs....I too would take a Person in, if the situation warrented it. (based on State Law, which is what Peace Officers enforce for the most part) A registered machinegun or suppressor can be stolen, and in the wrong hands( my father had a couple of MG's stolen and were recovered after 6 years) Or in the hands of a person other than the registered owner.

That form 4 may endeed be a tax document, but if its the only thing showing
that you arent commiting a felony under state law...you might want to show it.
A gun range, being private property...and you being there is at the owners descression, you also must conform with thier policy.


A registered MG looks much the same as a unregistered one.....a stolen one, looks much the same as when shouldered by its registered owner, just as medical marijuana looks much like the illegal kind( and when you have either your MG or your doobie in public, you are probley going to have to show you can legally possess that item at some point, or prove it to a judge after your strip search) If its misery you wish to cause yourself because your beliefs dont match the legal system, Misery you shall end up with.

pichon
November 29, 2009, 06:04 AM
I am not saying I disagree with your principals, just your methods. Anti-gun nuts already think we are all anti-authoritarian. Arguing the law with range officers and LEO's just affirms that belief.

What I am trying to say, and perhaps not very well, is that the range officer and the policeman are convenient if you want to debate the law with someone at the range but aside from making you feel better it wont do you any good.

Present your paperwork and then go home and make a phone call or send an email to the appropriate official or range manager saying that their employees are overstepping their bounds if you feel you must.

In my opinion, when the line between legal and illegal is so unclear, make sure that you are unquestionably on the correct side, especially if it is as simple as making a photocopy.

AK103K
November 29, 2009, 08:54 AM
Owning an NFA is a privilege, not a right.
I disagree. While they would have preferred to relieve us of that right, I believe the NFA was the only way that they could "legally" try to ban the weapons in question. But that pesky Constitution and the 2nd Amendment got in the way.

The NFA was basically an end run around it, and "tax" was how it was accomplished. They never said you couldnt own one, you simply have to pay the tax on the item. The fact that the tax was $200, at the time a new car cost $500, and most people only made a few dollars a week, has been lost in these times, where $200 isnt that big a deal.

Dragon55
November 29, 2009, 09:27 AM
FWIW, this is what BATF has to say on the issue:
Quote:
(M25) Does the owner of a registered NFA firearm have to have any evidence to show it is registered lawfully to him or her?

Yes. The approved application received from ATF serves as evidence of registration of the NFA firearm in the owner's name. This document must be kept available for inspection by ATF officers. It is suggested that a photocopy of the approved application be carried by the owner when the weapon is being transported.

musicmatty
November 29, 2009, 10:37 AM
I dont think you are going to find that one piece of definitive language that states You Do Not have to carry your paper work with you at all times.

The fact is this, not every Lawyer, Law Officer or Judge is totally versed in every article of every law ever written...especially on the spot of the momemt without any reference material and legal book searching.

You may be in the right 100% to carry your firearm without any paperwork, but in reality where there is a Lot of Gray area, you may be confronted and challenged on this. You being in the right, will not win you any lawsuites in my opinion if your rights are violated. Too many killings and sympathy would be enough for the Courtroom to vendicate someone for violating your rights on the side of caution. Sure, you could fight this and take this to a new level, but it would take more money than anyone combined on this forum for such a fight in this new age USA that we live in. ;)

olddav
November 29, 2009, 10:39 AM
cptsplashdown,

I know this is not going to answer your question but, here it is anyway.

You may not be required by law to show the range officer any paperwork regarding your weapon, but as a priviately owned business they have the right to refuse entry to anyone. So you can either stand up for your rights and find another place to shot, or offer a small peace offering and provide them with what they ask for. I'm not big on compromises, but is this battle realy worth your time?

Hope you find the answer to your question and good luck.

cptsplashdown
November 29, 2009, 02:40 PM
Wow, so many good pointe being made by all. Perhaps the scope of the thread has gone a bit haywire, but to be honest I have enjoyed the discussion more anyway. The original question was about what the law requires. I think it a specious argument to say that you can't do something because the law doesn't say you can do it musicmatty. The law doesn't specifically give you permission to do a lot of things, and those things are generally considered to be legal. Maybe not correct to do, but legal none the less. It is the nature of our laws that they are put in place to stop specific behaviors, not dictate what behaviors are unacceptable through omission of giving you permission. In any case, I think that we have really gone away from the legal answer into what could better be described as a discussion of personal freedoms and responsibility. Great move in my opinion and far more interesting.

My basic premise here is that although the police are a vital and critical part of our society, I don't want to live in a police state where a LEO can violate my rights simply because HE doesn't know the law. I served our country in the military, and I have the utmost respect for all who serve, but that doesn't mean I want to live under a military dictatorship. It seems as though some are taking my questions about whether or not a LEO or RSO is legally correct in behaving in a certain way as proof that I am some type of anarchist who would prefer we have no laws at all. Not the case, though I do believe that the government should be as unintrusive as possible. The line should certainly be drawn at enforcing a law or code which in fact does not exist (I'm speaking generally gents, not referring to this specific incident about which our opinions so widely vary.)

I worry about the state of things when so many seem quite happy to "make things easier" on themselves by submitting to a violation of their rights and perhaps the law (again speaking generally,) rather than at least engage the authorities in a discussion of whether what they are doing is "right," if not illegal. Someone posted earlier that it doesn't matter what YOU think, only what a judge thinks. I've seen some cynical responses, but man... I would submit that what YOU think is exactly what matters. It may not get you out of jail, but this is where men need to decide what matters more, spending some time in the clink, or your principles and values. Some of the posts I've seen have answered that question quite clearly. Thanks again to all who posted, whether you're a wolf, or a sheep.

ssmdive
November 29, 2009, 04:15 PM
I was there as well when this happened.

Federal: Legally, you don't have to show the form to anyone but the DoJ and the ATF. Captslashdown.... I was wrong about the IRS.... The form *IS* a tax form, but in 2002 the authority to persecute was turned over to the DoJ.

http://www.atf.gov/firearms/nfa/nfa_handbook/appendix_a.pdf

Relevant section:
The National Firearms Act (NFA) is part of the Internal Revenue Code of 1986. The Internal Revenue Code, with the exception of the NFA, is administered and enforced by the Secretary of the Treasury. When ATF transferred to the Department of Justice under the Homeland Security Act of 2002, all its authorities, including the authority to administer and enforce the NFA, were transferred to the Attorney General In order to keep all the references throughout the Internal Revenue Code consistent, references to the Secretary of the Treasury in the NFA were left unchanged by the Homeland Security Act.

And this issue in particular:
§ 479.71 Proof of registration. The approval by the Director of an application, Form 1 (Firearms), to make a firearm under this subpart shall effectuate registration of the firearm described in the Form 1 (Firearms) to the person making the firearm. *****The original Form 1 (Firearms) showing approval by the Director shall be retained by the maker to establish proof of his registration of the firearm described therein, and shall be made available to any ATF officer on request****.

So, according to FEDERAL LAW... The only person you need to show the Forms to is an ATF agent.

Local: Well, most local jurisdictions have laws that say that the possession of such weapons are illegal UNLESS you are following federal law.

For example Florida:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0790/SEC221.HTM&Title=-%3E2000-%3ECh0790-%3ESection%20221#0790.221

790.221 Possession of short-barreled rifle, short-barreled shotgun, or machine gun; penalty.--

The relevant portion is the third section:

(3) Firearms in violation hereof which are lawfully owned and possessed under provisions of federal law are excepted.

So, it could be argued that Jim Bob local Po-Po can ask to see your Form....

Long story short.... Really only the ATF can ask by Federal Law....

But the locals could cuff and stuff you and it would be up to YOU to prove you own the weapon legally.

You can beat the rap, but you can't beat the ride.

The RO can ask anyone to leave whenever.... He was ate up like a soup sandwich saying it was "illegal to have the weapon without the paperwork", but he could ask you to leave for any reason.

So a best practice is to carry a COPY of the forms with you. You ARE NOT required to carry the originals AT ANY TIME. And to do that would be stupid since if you lose it, you will have a hard time getting another from VA.

ssmdive
November 29, 2009, 04:25 PM
Owning an NFA is a privilege, not a right. It is up to you to prove you are allowed to have it.

Respectfully disagree. While it has to be registered (which if you have read up on the Miller case they should not be, but critical evidence was not presented due to not having representation) it is still a firearm and it is still under the 2nd.... The SC has said that we have to jump through more hoops to own them (reasonable restrictions), but that does not make ownership a "privilege" IMO.

Tommy Vercetti
November 29, 2009, 04:48 PM
I have to have my paperwork with me wherever I take the weapon

Rollin Thunder
November 29, 2009, 06:18 PM
For a view to broaden the perspective, Markham Park is a county (Broward) owned park. It's in South Florida, west of Fort Lauderdale and a couple of miles north of the(Miami) Dade/ Broward county lines.
The Range Officer's are current or retired Broward County Sheriff Deputies. They have a training area for the Sheriff's dept. and other local, perhaps Federal LEO's.

I personally don't know the specific law. I do know there could very well have been a ATF agent there, that particular day.
What I will say is, if the op has a firearm that requires BATF documentation/stamps, he should know what is required of him before he takes the firearm anywhere.
As many people have posted, it could have made for a very long day..... regardless of who is right or wrong.

Frank Ettin
November 29, 2009, 09:02 PM
...I don't want to live in a police state where a LEO can violate my rights simply because HE doesn't know the law....It is not a question of the LEO not knowing the law. It is a simple fact that possession of an NFA weapon is illegal, under federal and most state laws, at least unless the federal requirements have been satisfied. If you're standing there in broad daylight, in front of God and everyone, with a SBR in your hand, you are, prima facie, in violation of the law. That is probable cause for your arrest. The fact that you have your valid NFA paperwork back at your house isn't tattooed on your forehead, nor is it apparent from the gun or anything else in plain sight. The LEO doesn't have to assume that you've got the proper documentation, nor does he have to take your unsupported word for it. On the face of things, you're in violation of the law, and that's good enough to support your arrest.

You of course can defend the charge because you do have the paperwork. That is what is called an affirmative defense. Not the LEO, nor anyone else, has to prove that you don't have the paperwork (among other things, one can't prove a negative). You have to affirmatively show that you are legal. That's why it's called an affirmative defense.

...I worry about the state of things when so many seem quite happy to "make things easier" on themselves by submitting to a violation of their rights and perhaps the law (again speaking generally,) rather than at least engage the authorities in a discussion of whether what they are doing is "right," if not illegal....This has nothing to do with just making things easier. It's a matter of how things are in real life.

This has nothing to do with submitting to a violation of your rights. On the face of things you are publicly possessing something that in general is illegal. An LEO has no way of knowing that in your case your possession is legal unless you can show him your documents.

...Someone posted earlier that it doesn't matter what YOU think, only what a judge thinks. I've seen some cynical responses, but man... I would submit that what YOU think is exactly what matters....On the other hand, some of us live in the real world.

...It may not get you out of jail, but this is where men need to decide what matters more, spending some time in the clink, or your principles and values....If you really want to go to jail rather than carry around a copy of your NFA paperwork, be my guest. But if you are arrested for possession of an NFA weapon, you will ultimately have to produce your paperwork to successfully defend the charges against you. If that's your idea of being a "wolf", knock yourself out.

NESHOOTER
November 29, 2009, 09:06 PM
Willie Lowman
Senior Member


Join Date: March 5, 2009
Location: Behind a gun
Posts: 699 Have a color copy, front/back of your form 4. Keep it with the gun.

Technically only an ATF agent has the authority to hassle you over your NFA item but that won't stop cops and rangemasters.

Keep a copy with the gun.

sectshun8
Senior Member


Join Date: July 23, 2007
Location: Virginia Beach, VA
Posts: 206
This was a great thread to read just waking up. To the OP, honestly, I feel you 100% and would be asking the same questions as you. I probably would have addressed those questions to the RO before leaving as well, but then, that could have very well escalated things and made it more an issue. In that respect he was doing you a favor by just asking you to leave.

In hindsight, and to anyone who reads this, it's in all our best interest just to keep a copy of the documents with the weapon, saves everyone a headache






My seller stated for the sake of complications do get a color copy front and back of NFA and mini it 3x5 keep a copy with each of the guns the can will fit on so when you go out you will not have to worry about if you got you paperwork or not. As stated you only want info what the law requires but to best keep it as an dutiful owner why would I want to express to the LEO I know more than he in this matter. What I want is to enjoy my ownership of said rifle,srb.can.c&r, so required or not I want best to be prepared for any and all questions from RO, OR LEO...regardless and once I make them feel at ease then they know I'm not a knucklehead just being an A$$ because I CAN because I am in the right.... I desire the next time the RO OR LEO request infor and paperwork from another person he/she will be better prepared with knowledge of crossing this street before and When I'm civil about it.... it may go better for the next guy that owns something like my toys....

hknut
November 29, 2009, 10:42 PM
Willie that is not completely true. You can mount the suppressor to a weapon in Wa. You just can't shoot it.

JohnKSa
November 30, 2009, 12:08 AM
I don't want to live in a police state where a LEO can violate my rights simply because HE doesn't know the law.Being asked to show proof that you are in legal possession of NFA items doesn't violate your rights because you are under no obligation to comply. Of course, if you don't comply then there is no evidence to refute the charge and you will be arrested and prosecuted.

Being arrested for possessing NFA items (in the absence of any paperwork showing that you have them legally) doesn't violate your rights because possessing NFA items (in the absence of any paperwork showing that you have them legally) is sufficient evidence for a legal arrest and prosecution.

Tom Servo
November 30, 2009, 12:57 AM
[collected from three threads] it would be easier for all of us to just give Barry all of our weapons and call it a day (...) I don't want to live in a police state (...) that doesn't mean I want to live under a military dictatorship (...) whether you're a wolf, or a sheep
Please.

I've been an RO, and when someone brought an NFA weapon to the range, I asked to see the tax stamp. 99% of folks had it. Most offered it up front. I never even really checked the slip closely. If they had the stamp, they'd jumped the hurdles. Neat gun, must've cost a pretty penny...enjoy shooting it.

The other 1% are the ones to worry about. These guys would usually get very irate and argumentative about government conspiracies or somesuch. They were booted immediately. Maybe a few were just being obstinate or self-righteous, but we didn't take the risk.

(As those old "pre-82" auto sears have dried up, I've noticed a lot less of that in recent years)

If someone's walking around with an unregistered NFA weapon, what else do I need to worry about with them?

Call me a fascist or a turncoat to the 2nd Amendment, but NFA laws are nothing to play around with, and the last thing I'd have wanted is an LEO tearing me a new one for allowing an unregistered NFA weapon on the range. By allowing it, I could potentially get snared into some sort of liability.

You raised an interesting point about tax forms and privacy. It's well worth following up, and would make an interesting thread in its own right.

As it stands now, it's simply much easier to carry a copy of the stamp and live with the minor inconvenience. Is it right? No, but it beats the monumental amount of hassle that could be the alternative.

Trust me, if I were President (Vote Servo 2012!), I'd sign an executive order suspending enforcement of the NFA. Until then, we have to deal the hand we're dealt.

cptsplashdown
November 30, 2009, 01:35 AM
Sorry fiddletown,

I think you completely forgot to read the part of my post that said I was not referring to this particular situation, but that the thread had gone off course towards a more general discussion of rights and freedoms. My comment about a LEO not knowing the law would apply to any LEO that DOESN'T know the law, no matter the circumstances. It has everything to do with the knowledge of the officer. A nice time to start a thread on how ridiculous it is to have so many laws that even a police officer can't know them all...

In specific response, the NFA weapon was not illegally possessed, which you just can't seem to wrap your head around. Many people MAY be breaking the law at the range, would you run a background check on all of your customers to ensure that they were not felons? Being a felon at the range would be a violation of the law and perhaps expose the range to liability as well... Just a slippery slippery slope. And sorry, but everything you have pointed to seems to be purely for the purpose of making things easier on yourself, as opposed to really getting to the bottom of the actual law. Which is all beside the point that it is in all probability legally improper for a local LEO or RO (at a public range) to ask for your papers anyway, in the same manner that not all LEOs are allowed to ask for immigration documentation, even from people that they are quite certain are breaking the law.

So my position would be that: 1. You are not committing a crime simply by being in possession of an NFA firearm, so long as it is registered, even if the paperwork is not in your immediate possession. 2. It is not appropriate for anyone other than a BATF or DOJ agent to even ask you to produce that paperwork, as it is beyond the scope of the laws that any other LEOs are chartered to enforce. Yes, it is true, not all LEOs are certified or permitted to enforce every law in existence, and it should be up to the LEO, as well as the citizen, to know which is which (coincidentally the exact reason I started this thread, to increase my own knowledge of the law.) If you are a LEO or RO who thinks you should be allowed to inspect NFA paperwork, go to your congressmen and get them to change the law to make it legal, don't invent powers for yourself, you are simply not entitled to enforce some laws even if they are being broken. You are certainly not entitled to arrest someone for NOT breaking the law, even if you can get away with it.

We all live in the real world, some of us just don't allow that to stop us from standing up for our rights. The little inconvenient freedoms that you willingly give up today lead inexorably towards the diminishment of ALL freedoms. That's just how the cookie crumbles. I certainly would suggest that anyone in this day and age that has the courage to stand up to our increasingly authoritarian government is a wolf in his own right.

JohnKSa
November 30, 2009, 01:59 AM
In specific response, the NFA weapon was not illegally possessed...You're (intentionally?) missing the point. It goes back to my self-defense analogy. In that analogy I had not broken the law but the evidence made it appear that I had. Since I chose (legally) not to provide the evidence which would have showed my innocence I should expect to be treated like a murderer--arrested and prosecuted. Any LEO who let me go just because I claimed I was innocent would be terribly negligent.

Possession of an NFA weapon is illegal without the proper paperwork (just as shooting someone is illegal without the proper justification) and so in both cases (without the proper paperwork/justification) the persons in question should expect to be treated as if they have committed a crime.Many people MAY be breaking the law at the range...If any of them APPEARED to be breaking the law then I would DEFINITELY expect any LEOs present to act appropriately.

What you are refusing to acknowledge is that this is not about someone who "may be breaking the law", it is about someone who is giving every appearance of breaking the law.1. You are not committing a crime simply by being in possession of an NFA firearm, so long as it is registered, even if the paperwork is not in your immediate possession.Even assuming that's true, that doesn't mean you will not/should not be TREATED as if you have committed a crime until you present your defense--i.e. your paperwork.2. It is not appropriate for anyone other than a BATF or DOJ agent to even ask you to produce that paperwork, as it is beyond the scope of the laws that any other LEOs are chartered to enforce.Assuming that there is no state law that is appropriate--and in many states there are laws which "back up" NFA laws.You are certainly not entitled to arrest someone for NOT breaking the law...You don't get a trial right on the spot. LEOs do not determine guilt nor are they required to determine guilt in order to fine/arrest. They operate based on probable cause. If you provide probable cause (and give them no evidence to prove that you are innocent) then you will be fined/arrested.

You're treating this like police have some magical guilt determination equipment available to them--that they can somehow look at you and tell you're innocent even though you appear to be committing a crime. How, exactly is that supposed to work?...you are simply not entitled to enforce some laws even if they are being broken.I don't think that's entirely true. I believe you will find that in many cases it is completely legal and proper for one LE organization to apprehend and hold a person for crimes committed under the jurisdiction of another LE organization. They just can't prosecute them--they can only turn them over (per the proper procedures) to the LE organization with jurisdiction.

Frank Ettin
November 30, 2009, 02:22 AM
Sorry cptsplashdown, you're just completely off base.

...In specific response, the NFA weapon was not illegally possessed, which you just can't seem to wrap your head around....What you can't seem to get your head around is that it's your responsibility to show that the NFA weapon was legally possessed. What you can't seem to understand is that it is prima facie illegally possessed unless it has been properly registered. Registration is an affirmative defense and thus your burden to demonstrate. That's simply what the law is, whether you like or understand it or not.

...Many people MAY be breaking the law at the range,...Perhaps, but unless their violations are open or there is otherwise a reason to believe they are violating the law, there's nothing to do.

But on the other hand, openly having an NFA weapon in your possession is, on its face, illegal. It is only legal if you have properly registered it, and that is not something that is obvious. Your proper registration is something that you must show.

...it is in all probability legally improper for a local LEO or RO (at a public range) to ask for your papers anyway,...It is legal for the RO to ask you anything he wants. It is legal for him to ask you the most personal or embarrassing questions you can think of. He may not be entitled to an answer, but he can ask. And it would be within his discretion to eject you from the range. (Whether you'd have grounds for a civil suit depends on the exact situation. And it's also possible that the range itself had rules about possession of NFA weapons and a need for the user to show compliance with federal and/or state law. We don't know if that is the case here, but it's something I would certainly recommend to range management if NFA weapons were allowed.)

And it would be entirely proper for an LEO to arrest you if you could not show, with proper documentation, that your possession of the NFA weapon was lawful.

...in the same manner that not all LEOs are allowed to ask for immigration documentation, even from people that they are quite certain are breaking the law....An LEO doesn't have to be "quite certain" one is breaking the law. He only needs probable cause, i. e., a reasonable belief.

...You are not committing a crime simply by being in possession of an NFA firearm, so long as it is registered,....But your open possession of an NFA weapon is probable cause to arrest you unless you can show that you indeed are in lawful possession. The fact that you may have properly registered the weapon is not obvious, and an LEO has no obligation to assume that it has been properly registered. You will need to demonstrate that it has been.

...You are certainly not entitled to arrest someone for NOT breaking the law,...But an LEO is entitled to arrest someone who reasonably appears to be breaking the law. Again, that's what probable cause means.

...We all live in the real world,...Really? JohnKSa and I (as well as perhaps some others) have repeatedly and in detail explained why you are wrong. I think John may have a law enforcement background, but I'm not positive. In any case, I know from reading his posts over the years that he understands the law and how it works.

I understand the law and how it works because I'm a lawyer and have practiced law for over 30 years.

You might want to consider, given what JohnKSa and I have written, that there are perhaps some things about the law and how it works that you don't understand.

saboteur
November 30, 2009, 02:22 AM
Props to JohnKSa for his well-thought out and articulated comments. He is correct on his knowledge of the law and issues of probable cause.

In TX there is a law on the books called 'Prohibited Weapons,' which covers most of the NFA goodies suchs as SBS, SBR, auotmatic fire, and suppressors.

It's hard to see where you're going with this "police with no knowledge of the law" remark when I, as a police officer and NFA owner, would do exactly as JohnKSa describes and arrest you if you fail to produce the tax stamp. (Not that I too wouldn't like to see NFA rules relaxed, it's just that it would be a major liability issue given the current laws and the rarity of the items).

The way the laws and regulations are written in TX, you give officers probable cause to believe you are committing the offense of possessing a "Prohibited Weapon" unless you can show a defense to prosecution, i.e. your tax stamp. As stated before, technically even then you could be arrested temporarily since it is only "a defense to prosecution," not arrest.

cptsplashdown
November 30, 2009, 02:37 AM
Pretty good points John. I think this one could be batted around ad infinitum. I would suggest the mere presence of an NFA firearm should not set off the emergency call out alarm for the RSO. They are in fact quite common in FL, owned legally by many many citizens, and I don't believe that simply having one is either cause for concern or should constitute probable cause for anyone to give you a hard time.

I would further suggest that NFA firearms are in most cases not any more inherently dangerous than any of the other weapons at the range and are frankly not that big of a deal. A novelty perhaps, but not one that should instantly draw the attention of every RSO within a 100 mile radius. I understand you don't get a trial on the spot, I just don't think that changes the fact that if a LEO knows that you are not violating a law, he should leave you alone, period.

I understand what you are saying about the LEO not knowing if you are in violation, but I would point to the NFA as the final arbiter of what a LEO is allowed to pursue or not. It just comes down to knowing the law. I'm not going to argue what a LEO should or shouldn't do if he doesn't know with certainty what is going on (other than to say he should know the law better than most,) and of course he should act to promote the public safety. I would just argue that having a gun at a gun range that happens to be an NFA weapon should not constitute evidence that a crime is being committed. I know you may not agree, it's just my opinion (supported by the fact that still, after all these posts, not a single LEO, RSO, or other poster has pointed to any section of the NFA that makes it so.)

Just because bugging law abiding citizens with legally owned firearms at the range is what many LEOs or RSOs happen to do, my point is that they are essentially going beyond the scope of their powers. If someone has a specific reference to a law that makes it otherwise, please share (I'm sure in some states such laws do exist, and it would probably be very helpful for all of us to know which states do have such laws.) Still, all I have heard is what many people THINK should be done, and much discussion about what LEOs are doing in practice. None of these things make it legally or morally correct for them to do so.

cptsplashdown
November 30, 2009, 02:43 AM
Great post Saboteur. Very helpful indeed. My reference to any LEO that didn't know the law should be read as "a LEO should not arrest someone who is not committing a crime." Again, not a statement specific to this discussion, just a comment on what I believe would be a great LEO SOP.

Tom Servo
November 30, 2009, 02:44 AM
And sorry, but everything you have pointed to seems to be purely for the purpose of making things easier on yourself, as opposed to really getting to the bottom of the actual law. Which is all beside the point that it is in all probability legally improper for a local LEO or RO (at a public range) to ask for your papers anyway,
I wasn't law enforcement; I was placed in charge of private property by the owner. I had a legal right (and obligation) to refuse service to anyone, including people who were just too uptight. I also booted people, at various times, for wearing offensive clothing, having swastika tattoos, being intoxicated or acting irresponsible.

Not having documentation for an NFA weapon? That was also on the list. File it under, 'covering one's posterior.'

There is an alternative to complaining, which rarely changes anything. It involves getting politically active and doing something about the issue. Develop a relationship with your congressman. Consider joining any of the 2nd Amendment groups active in your area.

I happen to be intimately familiar with the NFA and its history. It's bad law on many levels, and it needs to be challenged. In the meantime, we're left with an oppressive system that assumes criminal wrongdoing in the absence of a plausible defense. The best defense is to simply have your paperwork on you.

Frank Ettin
November 30, 2009, 02:51 AM
...if a LEO knows that you are not violating a law, he should leave you alone, period....Yes he should. But the point is that if you are openly in possession of an NFA weapon, the LEO has no way to know that you aren't violating the law (unless you can produce your tax stamp and show him that you aren't).

cptsplashdown
November 30, 2009, 03:02 AM
Great responses gents. Thanks again for sharing all of your knowledge as LEOs, RSOs, and concerned citizens. I have learned a lot and hope to be better prepared to deal with these types of situations the next time they arise. Cheers.

blume357
November 30, 2009, 07:07 AM
I see is at least on paper, you are only required to show the paper work to an ATF agent... the one thing I see is, what is to stop a local LEO from 'detaining' you until an ATF agent shows up?

I believe a law enforcement officer has that right....

fineredmist
November 30, 2009, 09:04 AM
Just look at it this way, if you are stopped for a vehicle violation and you cannot present a valid drivers license it is prima facia evidence that you are unlicensed and you will be arrested. You will not be allowed to continue your trip as the officer will be responsible for "permitting the unlicensed operation of a motor vehicle" and if you are involved in a accident after he permits you to continue he is cupable. This also applies to a officer who has prima facia evidence that the device is illegal and does not take approiate action. Carry your driver's license when you drive, carry your NFA paperwork when you are in possession of the device. It is really simple, don't look for problems as there are enough that will find you.

Powderman
November 30, 2009, 09:07 AM
So my position would be that: 1. You are not committing a crime simply by being in possession of an NFA firearm, so long as it is registered, even if the paperwork is not in your immediate possession. 2. It is not appropriate for anyone other than a BATF or DOJ agent to even ask you to produce that paperwork, as it is beyond the scope of the laws that any other LEOs are chartered to enforce.

So, let me break this down for you...according to the laws in the State of Washington, aka the Revised Code of Washington...

You show up at a range in our State. I just happen to be there, throwing some lead downrange when lo and behold! I hear the unmistakable sound of a giggle switch being engaged (read as: full-auto or burst fire).

I discreetly walk over, and first look for a legal trigger attachment, such as a Hell-Fire or similar device. I see none.

I then look carefully to see if you're bump-firing. If you are, kewl beanz! If not...I contact the RSO, identify myself, and tell him that I am going to contact you. I then walk up while you change targets, and I ask to talk to you. I show my credentials, and ask you if you are a law enforcement officer.

You say no.

I then ask if you are a licensed manufacturer/SOT, and if that is a dealer's sample.

You say no, you are a private citizen, and that the firearm is registered to you.

I say, OK. I will then ask you to turn around quietly and place your hands behind your back. I will handcuff you, and tell you that you are being detained, because you are now the focus of my investigation into a possible violation of RCW 9.41, which states specifically that full auto and SBS/SBR are ILLEGAL in the State of Washington. I then read you the Miranda admonishment, and ask you if you have your tax stamp.

It really doesn't matter, because you've broken the law. I will contact the parent jurisdiction, and they'll take it from there.

Any questions?

Conn. Trooper
November 30, 2009, 09:18 AM
Here our state laws are an almost exact duplicate of NFA laws, and people are allowed to have properly registered NFA weapons. If they are not legally owned NFA weapons ( tax stamps, etc.) there is a state charge for that. Don't need an ATF agent to enforce state law.

I always carry a copy of my stamps.

I think I get what the OP was trying to say, I know I am legal, why do I have to prove it? And at face value I take his point, why indeed? But, in the real world nobody knows you are legal and there are some boneheads running around with illegal weapons. How do you tell a legally owned weapon from an illegal one?

ssmdive
November 30, 2009, 12:06 PM
Even assuming that's true, that doesn't mean you will not/should not be TREATED as if you have committed a crime until you present your defense--i.e. your paperwork.

WOW!!! really? I thought in the US you were innocent till PROVEN guilty?

Frank Ettin
November 30, 2009, 12:17 PM
...I thought in the US you were innocent till PROVEN guilty? Yes, there is the presumption of innocence. But it really works out to be more complicated that you seem to think. It's really all explained in detail in this thread, so you might want to read it carefully.

ssmdive
November 30, 2009, 12:24 PM
and the last thing I'd have wanted is an LEO tearing me a new one for allowing an unregistered NFA weapon on the range. By allowing it, I could potentially get snared into some sort of liability.

Do you run the serial numbers of all guns to see if they are reported stolen?
Do you run background checks on people to see if they are felons?
All of those could also make you liable as well, but you don't do all that do you?

The point being that you assume that title I guns are legal, you assume that shooters are all not felons, but you assume that all title II arms are illegal. While you have that right.... That does not make it true, nor logical to think that way.

As it stands now, it's simply much easier to carry a copy of the stamp and live with the minor inconvenience. Is it right? No, but it beats the monumental amount of hassle that could be the alternative.

True, and that is what I told splashdown.... But the fact remains that the possession of a title II weapon is not automatically illegal, yet you and others are fine with people thinking that.

Trust me, if I were President (Vote Servo 2012!), I'd sign an executive order suspending enforcement of the NFA. Until then, we have to deal the hand we're dealt.

While I also think NFA laws are unconstitutional... The problem is that "dealing with the hand we are dealt" is different than what is going on here. Dealing with the hand we are dealt would be following the law, yet you and others seem to be supporting an opinion that title II arms are illegal till proven legal and you don't hold that same stance with title I items.

Not bashing you... just pointing out what I see is an error in consistency.

You don't check to see if the 600.00 semi auto AR on the range has been stolen or is being shot by a felon... You assume they are legal. But the 6,000.00 HK94SD is automatically assumed to be illegal?

The problem is not only in the public's perception, "MG's, suppressors..ect are ILLEGAL, unless you are LEO/have a license...ect"

But also OUR perceptions such as the ones that are being shown here.

Fact: The law says that only the DoJ or the ATF can ask to see your Forms.

But people in this thread have stated you have to have the originals with you, have to have the forms all the time.... ect. YES, it is a damn smart move to have a COPY of the forms... But you are not required by law, yet even some of us think you are.

That IMO is a way of thinking that automatically puts us at a disadvantage. Fact is that as long as WE tend to think title II items are inherently illegal... then the public's opinion just gets stronger.

Idiot RO's like the one at Markham that tried to say splashy was "a felon for not having the paperwork with him"... just feed the public's wrong opinion... WE should know better and not just accept it and encourage the stupidity.

Claude Clay
November 30, 2009, 12:33 PM
i keep with each item a notarized copy of its paperwork
just because it is easier
notary is free at my bank and 5 minutes of my time vs being hassled--
rightly or wrongly--
its a no-brainier.

ssmdive
November 30, 2009, 12:35 PM
Yes, there is the presumption of innocence. But it really works out to be more complicated that you seem to think. It's really all explained in detail in this thread, so you might want to read it carefully.

Sorry, my reply was sarcasm.

What you can't seem to get your head around is that it's your responsibility to show that the NFA weapon was legally possessed.

Is it your responsibility to prove you are not a felon to shoot at a public range? Is it your responsibility to prove that AK was not stolen? Is it your responsibility to prove that gun was not used in a crime?

Title II items are not illegal. Why do you want people to automatically assume they are?

I compare this to a cop pulling over a guy only to see if he has insurance. Yes, they law might state that he has to have insurance, but the cop does not have the right to pull a guy over ONLY to check his insurance.

It seems to be a case of you wanting people to automatically think they are illegal, and we want people to assume that they are legal unless they have other reasons to think they are not.

OUR attitudes sometimes hurt us more than we think.

Frank Ettin
November 30, 2009, 01:16 PM
Sigh....

...the possession of a title II weapon is not automatically illegal......Title II items are not illegal. Why do you want people to automatically assume they are?...Title II weapons are automatically illegal unless you have the tax stamp. The fact that it is a Title II item is open and obvious. Your possession of the proper tax stamp, if you do have it, is not open and obvious. Therefore, holding, for example, a sbr in your hand where an LEO can see it is probable cause to believe you are committing a crime. That is sufficient reason for him to arrest you, or at least detain you for investigation (see Powderman's excellent post 73).

You can of course, immediately resolve the issue by showing your proper documentation. The elements of the crime of illegal possession of a Title II weapon are satisfied by simply having it in your possession. Your defense, having a proper tax stamp, is an affirmative defense that you must raise.

...I compare this to a cop pulling over a guy only to see if he has insurance....A false analogy. There's nothing about driving a car that suggests (or might constitute probable cause to believe) that you don't have insurance.

A better analogy would be marijuana. You're sitting in your front yard, near the sidewalk. An LEO walks by and observes you with a plastic bag containing greenish, leafy material. He also observes you smoking what appears to be a hand rolled cigarette. He also notices that the smoke from that hand rolled cigarette has a distinctive oder he has been trained to recognize as that of burning marijuana.

He now has reason to believe, from what's in plain sight, that you are in possession of marijuana. Marijuana is a controlled substance, and its possession is illegal except under some very narrow circumstances not immediately apparent. So he detains you.

You tell him that you have a state issued medical marijuana card permitting you to possess and use marijuana. He doesn't have to believe you. But if you can produce the card, the issue can be resolved.

...we want people to assume that they are legal ....I don't see any way that can happen.

ssmdive
November 30, 2009, 01:31 PM
Sigh....

OUR attitudes sometimes hurt us more than we think, and more than our worst enemy.

Title II weapons are automatically illegal unless you have the tax stamp.

Then my point that they are not automatically illegal is proven; You may have the tax stamp.

The point is you and others seem to support the notion that ALL title II items are illegal and until you have proven otherwise. You automatically assume the person is a criminal.

IMO that just plays to the anti gunners. WE provide them the ammo to perpetuate the public perception that title II items are illegal by taking that as a default position ourselves.

Frank Ettin
November 30, 2009, 01:53 PM
OUR attitudes sometimes hurt us more than we think, and more than our worst enemy. It has nothing to do with attitudes. It's the way the law is and works in real life.

p99guy
November 30, 2009, 02:04 PM
Guys, I have seen this very subject hashed out many times, even on nfa websites. Somebody grabs on to this one little tidbit of law to the exclusion of anything else that may also be in effect at the same time.....the result
is the same as 5 years ago, and 10 years ago. You WILL have to carry a photocopy of your form 1 or 4 when in public view, just as you carry your CHL
when you have your handgun on you. Just because you just got finished reading "the turner diaries" and watching a Waco stand off documentery
doesn't change a thing.

When you own NFA items and act really weird and uncooperative around other shooters, you only reinforce what they may have been taught wrongly by the media( only a oddball hothead owns something like that)

From thier limited contact with a NFA owner...well they would be right. And the next person that comes up with a NFA item is going to in some way pay for the previous guys attitude.

Be proud of your NFA device, and be a model for other shooters...edjucate and promote good will with fellow shooters and range officers and police.
(don't be a sullen uncooprative poster-boi for some fringe group, that forces
an officer to take you in) working in a gunshop I seen my share of intense gun toting loners lol

cptsplashdown
November 30, 2009, 02:25 PM
Fiddletown,

Making some interesting points, and I see what you're saying about the SBR situation. However, I hope you would agree that there is a very simple way to make people presume that these weapons are legal, simply write it more clearly into law. Why not make it a presumption that NFA weapons are legally in possession of the citizen unless there is reason to believe that they are illegally possessed (other than their mere existence and presence at the range.)

I do believe this is very similar to the car issue. You could argue that driving a car is a privilege, which in theory would be a more restrictive situation than owning a firearm, which is covered under the second amendment. So in theory you could argue that the mere possession of a car would allow you to pull that person over and check that they were legally in possession of their paperwork confirming their driving privilege.

Sure, maybe there are no perfect analogies, but when you get right down to it, the law certainly does not require any LEO or RSO (excepting the BATF or DOJ, and where state laws apply) to check the paperwork of any person holding an NFA firearm to ensure it's legality. So IMHO, any who do so are in effect taking liberties with their authority. I would also argue that there are NO documented cases of a RSO or LEO being held liable for not checking an NFA weapon at a range, at least none that I have ever heard or read about. Someone please feel free to prove me wrong. Are you really making the world a safer place by checking my MP-5SD?

In any case, if the facts of the situation are that asking for NFA paperwork is beyond the purview of all but BATF or DOJ LEOs, then I would imagine it would make a local cop's life easier to give the citizen the benefit of the doubt, since it is really beyond the scope of his duties to enforce this particular federal law (which again may be subject to debate, though I would ask for citations of law, not another list of LEOs saying what they WOULD do, regardless of the legality.)

I agree with SSM, I think far too many of us who purport to be in favor of less government intervention in the case of firearms ownership show an incredibly odd view of the same issue when the firearm just happens to be an NFA weapon. It really isn't that much different from the "good gun, bad gun" view of the Brady Bill supporters. That is a fine line I don't want to get anywhere near. My NFA firearm is really not that evil, and just because it is an NFA weapon should not draw the attention of the RSO in any undue fashion.

This particular Markham Park incident was just a bit over the top for me, and frankly reeked of an old codger who had a bit of power and wanted it to go a long way. And by the by, I did not have any sort of confrontation with him at all, being that he was so adamant in his view that I was a federal felon, I actually started to question whether or not I had all the right info, hence this thread. In any case, I'm a safe and legal owner of a NFA weapon, a former serviceman, an American citizen, and extremely handsome to boot, and I just didn't appreciate being accused of committing a felony is all.

Frank Ettin
November 30, 2009, 02:26 PM
...Then my point that they are not automatically illegal is proven; You may have the tax stamp....No, it's not enough that you may have a tax stamp. You must have a tax stamp for it to be legal.

And no one has to prove that you don't have a tax stamp. It's impossible to prove a negative. Having the required tax stamp is an affirmative defense. Showing that you have it is up to you.

That is how the law works. You may not like it, but your not liking it doesn't change it.

...The point is you and others seem to support the notion that ALL title II items are illegal and until you have proven otherwise. You automatically assume the person is a criminal....Yes, that is in fact how the law works. Having a Title II weapon in your hand is on its face illegal unless you can show that you have the necessary documentation. That is the legal reality.

It's the same as smoking your doobie on the street corner. That's presumptively illegal possession of marijuana, at least until you show the nice officer you medical marijuana card.

...WE provide them the ammo to perpetuate the public perception that title II items are illegal by taking that as a default position ourselves...It is nothing at all like that. It is the reality of the way the law works.

Some things are presumptively, on their face, illegal. You may have an affirmative defense, but presenting that defense is up to you.

Another example is shooting someone. That is, on its face, a crime. It's going to be up to you to present sufficient evidence from which can be inferred that your use of lethal force was justified self defense.

This is the way things are in the real world.

Frank Ettin
November 30, 2009, 02:52 PM
...However, I hope you would agree that there is a very simple way to make people presume that these weapons are legal, simply write it more clearly into law. Why not make it a presumption that NFA weapons are legally in possession of the citizen unless there is reason to believe that they are illegally possessed (other than their mere existence and presence at the range.)...In theory, the law could be changed as you describe. Write your Congressman. In reality, I think the likelihood of getting federal law changed this way is pretty small, but you have the right to try.

...So IMHO, any who do so are in effect taking liberties with their authority....Yes, I understand that's your humble opinion. But I suspect that LEOs would disagree, and I'm further confident that judges will support the LEOs' view rather than yours.

...In any case, if the facts of the situation are that asking for NFA paperwork is beyond the purview of all but BATF or DOJ LEOs, then I would imagine it would make a local cop's life easier to give the citizen the benefit of the doubt, since it is really beyond the scope of his duties to enforce this particular federal law...I don't necessarily agree that the NFA paperwork is beyond the purview of local LEOs, for the various reasons I and others have described. Among other things, they may enforce federal law. In addition, there are usually state laws relating to possession of Title II weapons.

I'm sure that those of the law enforcement community are grateful for your interest in making their lives easier, but they have their jobs to do. And while it's one thing to give a citizen a break of going 5 mph over the speed limit, I suspect that an LEO and his agency would come under severe community criticism for winking at Title II weapons. (And subjecting a cop to that sort of hassle isn't making his life any easier.)

...It really isn't that much different from the "good gun, bad gun" view of the Brady Bill supporters. That is a fine line I don't want to get anywhere near. My NFA firearm is really not that evil, and just because it is an NFA weapon should not draw the attention of the RSO in any undue fashion....Swell, but none of this changes the legal reality.

mavracer
November 30, 2009, 03:23 PM
I do believe this is very similar to the car issue. You could argue that driving a car is a privilege, which in theory would be a more restrictive situation than owning a firearm, which is covered under the second amendment. So in theory you could argue that the mere possession of a car would allow you to pull that person over and check that they were legally in possession of their paperwork confirming their driving privilege.
the problem is your compairing a SBR-NFA weapon to a car is ok but you can't use just any car take my Street-Strip albut legal car out on the road and you better belive I have my insurance and registration at the ready.

ssmdive
November 30, 2009, 03:24 PM
No, it's not enough that you may have a tax stamp. You must have a tax stamp for it to be legal.

But having an NFA item !=illegal

You are saying that having an NFA item = illegal.... and that is just not true in any way shape or form no matter how many people *think* it is true.

And no one has to prove that you don't have a tax stamp.

So you DO suggest that in regards to NFA that we are in fact guilty till proven innocent? When did we give up Ei incumbit probatio qui dicit, non qui negat?

It's impossible to prove a negative.

BTW, that is not true. Not really important here, but not true.

http://departments.bloomu.edu/philosophy/pages/content/hales/articlepdf/proveanegative.pdf

That is how the law works. You may not like it, but your not liking it doesn't change it.

The LAW actually say's that I don't have to show it to anyone but the ATF. That is CLEARLY written out in NFA, 26 U.S.C. Chapter 53 § 479.71. Local laws say that I am fine as long as I am following FEDERAL law. What you are stating is not LAW, but practical application or "best practice".

Yes, that is in fact how the law works. Having a Title II weapon in your hand is on its face illegal unless you can show that you have the necessary documentation. That is the legal reality.

Respectfully, the law does not say anyone has to CARRY NFA paperwork and the law does not say having a title II item removes my right of being innocent till proven guilty. So that is not how the law IS, although it might be how it "works".

Please cite the LETTER of the law that says you MUST have the forms with you?

If you can't, then you must admit that what you are claiming is NOT law, but an incorrect application that is widely accepted....

Some things are presumptively, on their face, illegal.

Only because you and others gladly accept they are "presumptively, on their face, illegal". And that's my point. People like you and others just accept that you must have the form, so Johnny Law and Ricky the RO just accept it.

Like I said, please quote FEDERAL law (Like I have) that supports your position that you MUST have the paperwork with you, and that you MUST show it to any Tom, Dick, and Harry that asks for it. I'd really like to know, all I can find is you must register the items and have to show the forms to the ATF.

No one is arguing that it is not a damn good idea to have the forms to avoid the hassle. This is really about people not knowing the law and just incorrectly thinking that a "best practice" is the law thus diluting the actual law.

The case here is Ricky the Range Officer tried to say that unless the paperwork was with the weapon that splashy here was a felon.... and that dog will just not hunt.

Does Ricky the RO have the RIGHT to deny splashy the use of the range? Of course! He can tell anyone to pound sand based on not liking the guys haircut.

Does the local LEO have the right to ask to see the forms? They can always ask, and it would be a damn good idea to produce them. But FEDERAL law says that you only need to produce them to the ATF. Will Johnny law arrest splashy? Most likely, but I have heard of people being arrested even WITH the forms since most LEO's have no clue what a Form 4 is and "knows" that MG are illegal.

Is it easier to just carry a damn copy of the forms to prevent the BS? Of course!

But I am gonna need to you cite law where it shows ownership of NFA removes the individuals right of innocence till proven guilty.

And I am gonna need you to cite LAW where it says that you have to produce the form to anyone that asks.

Maybe you are getting my point that while you are claiming these things are "law", they are in fact just an accepted practice perpetuated by people who don't know the real law, or just are not bothered to really care. That is attitude, not law.

Or, you could cite where I give up my rights when I own title II items, and cite where the laws says I have to have the forms with me.

azredhawk44
November 30, 2009, 03:45 PM
Being asked to show proof that you are in legal possession of NFA items doesn't violate your rights because you are under no obligation to comply. Of course, if you don't comply then there is no evidence to refute the charge and you will be arrested and prosecuted.

Being arrested for possessing NFA items (in the absence of any paperwork showing that you have them legally) doesn't violate your rights because possessing NFA items (in the absence of any paperwork showing that you have them legally) is sufficient evidence for a legal arrest and prosecution.

Except.... NFA paperwork is technically tax paperwork and it is mandatory for law enforcement to get a warrant to demand it from the owner.

After all, police don't just run around demanding that, since you have a $20 bill in your back pocket, that you must not have paid your taxes this year.... show me your 1040 form!

The only LEO's that don't require a warrant for NFA paperwork are department of treasury agents... IRS and ATF agents. Now that ATF is under DOJ rather than treasury they have some sort of administrative loophole, IIRC. But they can still demand them. FBI/DEA/ local police cannot demand your tax forms without a warrant.

cptsplashdown
November 30, 2009, 03:49 PM
Yes, what he said...

But seriously, SSM very clearly spelled out my position: Life can always be made easier by giving up or giving in to authorities of any type who have powers of arrest. What far too many on this thread are suggesting is that they are okay with jumping through hoops for a LEO that is not in fact following the letter of the law. An extension of this attitude can be extremely detrimental to your civil liberties.

If you are okay with LEOs who are enforcing made up laws about NFA weapons, then what's to stop them from making up laws that infringe on other aspects of your life? It would certainly be easier to catch criminals if there was no need for probable cause, no rules against "profiling," no need for LEOs to adhere to the bill of rights... All of these things would make you safer (perhaps,) but the end result would be like living in China, North Korea, Iran, etc. If ignorance of the law is not a defense for a citizen who violates said law, then it surely should not be a defense for a LEO who does the same.

I hear you guys, the REAL WORLD works this way. Well great, but the real world, particularly when it comes to enforcement of the law, is more or less created by LEOs, and to be honest some who are apparently LEOs who have posted seem disturbingly unconcerned with the law. Call me crazy, but shouldn't the law be the way the REAL WORLD works?

Yes, there are situations like this which are out of the norm and difficult to interpret, which is why I was pleased to see posts by SSM and AK (and one or two others) which actually refer to written law. Some of you guys are going on and on about reality vs. perception, and it is you (all of us) who create the perception.

For example, if a local LEO or RSO knows he is out of line (as the RSO was in the Markham Park case,) and treats the citizen not just with respect but with the law in mind, then there is no problem to begin with. I shoot my SD, which is legal, for which I do have paperwork that can be provided to the BATF, everyone has a great day, end of story. Instead, former LEO and current RSO who doesn't know the law accuses yours truly of being a federal felon, maybe calls local or federal LEOs, and I get unnecessarily (and perhaps illegally?) hassled for no reason at all.

Your Solution: Conform to the demand to produce paperwork-"SHOW ME YOUR PAPERS"-despite the law not requiring it, to avoid a hassle.

My Solution: Do what you have to do to deal with the situation, but at least make an attempt to show the LEO or RSO the error of his or her ways so they don't act inappropriately next time around.

Frank Ettin
November 30, 2009, 04:30 PM
....You are saying that having an NFA item = illegal.... and that is just not true in any way shape or form no matter how many people *think* it is true...Of course I never said that. What I have written is on this board for all to see.

Legally, it is presumptively illegal. The presumption may be rebutted. You have control of the best evidence rebutting that presumption -- your tax stamp.

...So you DO suggest that in regards to NFA that we are in fact guilty till proven innocent?...Okay, here's how it works in real life.

Evidence establishing probable cause to believe a crime has been committed and that you committed it is usually readily apparent (openly holding a Title II weapon, smoking your joint on the street corner, standing over a body with a smoking gun in your hand) or available to law enforcement using its various investigative tools (interviews, forensics, search warrants, etc.). Probable cause will support your arrest. It will also support charging you with the crime.

The prosecutor evaluates the evidence and decides if he has sufficient evidence to convince a jury beyond a reasonable doubt that you committed the essential elements of the crime (you possessed a Title II weapon, you possessed marijuana or you intentionally shot a particular person). If he decides he does, he goes to the grand jury and seeks an indictment (the expression of the grand jury's opinion that probable cause exists to believe you committed the crime) or he files a bill of particulars (or something similar called by a different name in the particular jurisdiction); and you are bound over for trial.

You go to trial presumed innocent. That means that it's the burden of the prosecutor to overcome that presumption of innocence by proving beyond a reasonable doubt that you committed the essential elements of the crime (you possessed a Title II weapon, you possessed marijuana, you intentionally shot a particular person). If he can't meet his burden of proof, you are entitled, under your presumption of innocence, to an acquittal.

So the normal defense tactic is to try to create a reasonable doubt that it was you, that you did it or that you did it intentionally. That will be pretty hard to do when you were seen holding the sbr, or when you were out in public openly smoking your doobie, or when you claim you had to shoot in self defense.

There is another class of defenses. These are called affirmative defense. If you are asserting one of these defenses, you are saying that you aren't guilty because you were legally entitled to do what you did. You were legally entitled to possess this Title II weapon or marijuana. You were legally justified in shooting this person who attacked and would have killed you if you had not used lethal force to stop him.

The principal evidence supporting your affirmative defense is within your control (your tax stamp, your medical marijuana card, your testimony about how you were attacked). And since this evidence is within your control, the law requires that you raise your affirmative defense and put forward the evidence to support it.

Does that clear things up for you?

...If you can't, then you must admit that what you are claiming is NOT law,...What I am claiming is that if you have open possession of an obvious Title II weapon, it would be probable cause for your arrest. Give it a try.

...My Solution: Do what you have to do to deal with the situation, but at least make an attempt to show the LEO or RSO the error of his or her ways so they don't act inappropriately next time around....Have fun.

SAIGAFISH
November 30, 2009, 04:34 PM
dont go to ranges

Powderman
November 30, 2009, 05:26 PM
Why not make it a presumption that NFA weapons are legally in possession of the citizen unless there is reason to believe that they are illegally possessed (other than their mere existence and presence at the range.)


Because until we, as the American people, CHANGE the law, or exercise our three legislative avenues (petition, referendum or recall), it IS the law.

Read this carefully.

If you have something IN YOUR HAND or in your immediate area of control (see: Chimel v. California) that is highly regulated, or deemed to be contraband by existing law, you are BEGGING to have that item inspected or checked.

And by posing the point of view that police officer can NOT enforce Federal law is dead WRONG. Even if we are out of our jurisdiction, but within the same State, we can detain for the proper jurisdiction.

So go ahead, and wave your SBR/SBS/AOW/Title II around at the range all you want. I guarantee that sooner or later you WILL be contacted by an officer--whether that officer is municipal, county, State or Federal.

Go ahead and give the officer some guff about jurisdiction. We love to hear that one. You might want to read up on mutual aid agreements and/or policies concerning your State before you do so, though.

AK103K
November 30, 2009, 05:29 PM
dont go to ranges
Thats been my solution for the most part, or at least ranges that dont have many people there, and who dont care if you shoot these types of weapons there. Lucky for me these days, I rarely see a soul at the range when I shoot, and its nice not to have the attention and hassles.

I've actually had more contact with the police when not at a range though, especially when we lived in a more suburban area, even though it was still rural. People have been told and conditioned that machine guns are all illegal, and it wasnt long before the police showed up the first couple of times. Most of the encounters were cool, and a couple even stayed and shot a little (I always kept a couple of mags just in case they showed up :) ), but most didnt.

For the most part, the ranges are just a source of people who dont have a clue as to what is legal and what isnt, but even so, they seem to know it all. I've been told on more than a few occasions that my guns were illegal and I was going to be arrested, and this was by people who were shooting at the range. I've also been chastised by shooters who thought I shouldnt be able to own them, as they gave us all a bad name. Todd forbid, they associate my machine gun with their fancy sporting clays gun or benchrest rifle. We are actually our own worst enemy most of the time.

I've always carried a copy of my paperwork with me, and have only had to show it to someone a couple of times. If you want to shoot at a range, and they will even let you, they usually require you have it along. Its their rules, and it gives the boy at the counter that little extra authority that so many of the employees and RO's at these type places seem to need and thrive on. You just made their day coming in with something that they can challenge you with. These days, I try my best to avoid them all like the plague. Actually, I'm starting to think I'm still in the 4th grade, and these are all the people wanting to be on the safety patrol and cant wait to run to the teacher to turn me in and get a gold star. :rolleyes:

I understand perfectly cptsplashdown's question and plight, and do agree with him. I also understand how things work, and I'm tired of butting heads with nit wits and those on power and authority trips, so I just try to lay low anymore and try to have some fun. So far...life is good, and layoff (with lots of range time) is just around the corner. :D

mskdgunman
November 30, 2009, 08:50 PM
Florida at least has State statutes regarding automatic weapons and SBR/SBS so locals can take enforcement action. I always carry copies of all my Form 4's when ever I have one of the weapons in my possession. I think to do otherwise is silly. As a cop, I know that most cops have no clue what a Form 4 is and think that machine guns are illegal. They way I look at it I'd rather show the paperwork and avoid a problem. If the cop ignores the paperwork and arrests me, I've got two solid legs to stand on and as soon as that case hits the ASA's desk, it'll get tossed. Then my attorney will get involved.

I'm lucky enough to have a private range to shoot at so I've never taken any of my NFA stuff to a public range. Were I to do so, you can bet that my paperwork would in the case with the weapon. Thats just common sense.

Accoster
December 1, 2009, 12:30 AM
Technically under the "only the ATF" can see my paperwork ideology, the presiding state judge is not an ATF agent, so he has no right to see it either. Good luck with the case after that...:)

JohnKSa
December 1, 2009, 01:35 AM
WOW!!! really? I thought in the US you were innocent till PROVEN guilty?So you DO suggest that in regards to NFA that we are in fact guilty till proven innocent?You are innocent until proven guilty during your trial. If everyone were truly innocent until proven guilty no one could ever be arrested and jailed until trial because innocent people shouldn't be arrested and can't be placed in jail.

This goes back to the "magic guilt determiner" that doesn't exist. Police don't determine guilt, they don't operate based on the idea that you are innocent until proven guilty nor do they operate based on the idea that you are guilty. They merely evaluate the situation to determine if there's enough evidence to justify an arrest. If there is, they're taking you downtown even though you are innocent until proven guilty.

If you have an NFA weapon and can't/won't prove that you have it legally then there is enough evidence to justify an arrest.

If you just shot someone and can't/won't prove it was self-defense then there is enough evidence to justify an arrest.

If you are carrying a concealed handgun and can't/won't present your permit then there is enough evidence to justify an arrest.

You may have been acting legally in all the above cases but without proof the officer is going to act based on the evidence available to him. You can't ask any more of him!....You are saying that having an NFA item = illegal.... and that is just not true in any way shape or form no matter how many people *think* it is true...NO, that is not what anyone is saying. Go back and look at my analogy where I shot someone in self-defense.

I did nothing illegal and yet there is EVERY indication that I am guilty of murder. Are you REALLY saying that I should be allowed to go free because I am innocent until proven guilty? That I shouldn't have to present the evidence showing I acted in self-defense because my actions were legal?

That is not even remotely realistic. If you present the appearance of breaking the law (by possessing NFA items, by carrying a concealed handgun, by shooting someone) then you had better be ready to prove your innocence (by showing your tax stamp, by showing your CHL/CCW permit, by presenting evidence that you acted in self-defense).FBI/DEA/ local police cannot demand your tax forms without a warrant.1. That assumes that there are no state laws that "back up" the NFA laws. If there are, they may not be able to demand your forms but they can arrest you and prosecute you under the state laws.

2. Even if they can't demand your forms and there are no state "back up laws" I believe you will find that they can detain you until such time as you can be turned over to the ATF....make an attempt to show the LEO or RSO the error of his or her ways so they don't act inappropriately next time around.This would be analogous to my self-defense shooting where I refuse to present evidence to the officer proving my innocence. After the trial, where I finally cough up the evidence that shows I really shot in self-defense, what do you think would happen if I then admonished the arresting officer that he shouldn't arrest people in the future for shooting others because they could be innocent like I was?Please cite the LETTER of the law that says you MUST have the forms with you?Having the forms protects you--it prevents your being arrested. If you don't want to have them with you and the law says you don't have to have them with you AND you don't mind being arrested then you don't have to have them with you.

If you want to avoid being arrested, having your NFA items confiscated and having to reclaim them from the police then having your forms with you seems like a pretty good idea.

Sort of like my presenting evidence that I shot in self-defense seems like a good idea even though the law doesn't say I have to talk to the officer.

Powderman
December 1, 2009, 01:45 AM
Having the forms protects you--it prevents your being arrested. If you don't want to have them with you and the law says you don't have to have them with you AND you don't mind being arrested then you don't have to have them with you.


Thank you, SIR!!!

This is what I--and every other poster--has been trying to say, reduced to its barest and purest essence.

I am not the trier of fact--the Court is. However, when I have probable cause--which has been defined as believing that a crime has been/will be/is being committed--I am empowered by the law to arrest the person (arrest meaning to restrict your freedom of movement), and to deliver them to the trier of fact.

I firmly believe that any man or woman who is not a felon should be able to have, keep, shoot and bear the arms they want, in any WAY that they want. I don't have a problem with inanimate objects.

But until the law is changed, IT IS THE LAW. And I--and others who wear the uniform, carry the badge and have taken the oath--will enforce that law.

Does this make sense?

ssmdive
December 1, 2009, 09:32 AM
I understand what all of you are saying.... You all seem to be missing my point. I will try one last time.

It is the attitude that has been expressed time after time that it is just fine to arrest someone that is actually within the law (no one has show a single cite of law that says anything other than you have to show the form to the ATF) because it is the easier thing to do, and the "normal" thing.

This type of attitude hurts our position more than the actual law.... We breed a society that thinks NFA = illegal. As some have posted that police don't even know about tax stamps.... Much less the average citizen.

How can WE expect them to know the law when WE don't know it, or don't bother to actually follow the law ourselves?

It is crystal clear that most are willing to play along with the new set of made up rules..... But that is not the law no matter how many people *think* it is the law.

Said in this thread:
1. You have to have the forms with you or you are a felon.... BS
2. You have to have the ORIGINALS... BS.

Having the forms protects you--it prevents your being arrested. If you don't want to have them with you and the law says you don't have to have them with you AND you don't mind being arrested then you don't have to have them with you.

And this is the attitude I am talking about. You are fine with legal citizens exercising 2nd Amendment rights being arrested based on nothing more than suspicion.

The law also says that felons are not allowed to own guns... So are you fine with the police arresting the guy that LOOKS like a gangbanger just to see if he is a felon?

Our worst enemy is not the Brady group... It is the gun owner that thinks assault weapons should be banned, and that MG's are illegal. And saying it is fine to arrest someone just because they have a title II item and not following some made up "law" is perpetuating that stereotypical thought process.

saboteur
December 1, 2009, 09:58 AM
The way the law is written in TX, and likely many other states, these items are illegal ... except for when they are not. This exception would be the tax stamp, and the burden of proof would be on the owner.

I understand the point trying to be made, it's just that that is not the way the law currently reads (again, in TX at least).

If you don't like it, write your local lawmakers.

Frank Ettin
December 1, 2009, 10:23 AM
...It is the attitude that has been expressed time after time that it is just fine to arrest someone....What you don't seem to get it that I, at least, really don't care what you do. I have no problem with the lawful possession of NFA weapons, I fully understand that private citizens can legally own them. What I have described in numerous posts here is simply the way the law in fact works.

If you are openly and obviously in possession of an NFA weapon and can not show an LEO that you are in lawful possession of that item, he will have probable cause to arrest you. And if you were to complain to a judge, the judge will support the LEO. That is just reality.

I make no judgment about whether that is good or bad. It's the way it is.

I don't care what you do with that information. You might conclude that it would be in your best interest to carry a copy of you NFA paperwork with the weapon. In that way, if you are contacted by an LEO about the weapon you can quickly and easily establish your lawful ownership and go on about your business. But if your idea of a good time is to spend the day getting handcuffed, stuffed into the backseat of a police car and driven "downtown" where you can continue to hassle with the cops, that's fine too. It's your choice. My only interest is that it be an informed choice.

I've never said there is any statute that requires you to carry your paperwork with you when you have the gun in your possession. I've never said that there's any statute that requires you to display your paperwork to anyone other than an ATF agent.

What I have done is explain how probable cause works, how the presumption of innocence works, and what an affirmative defense is and how it works. This is all basic law of general application that I first learned over 30 years ago in my Criminal Procedure class in law school.

It's the way it is. Do what you please with the information.

If you don't like what the law is, write your Congressman.

...It is crystal clear that most are willing to play along with the new set of made up rules..... But that is not the law no matter how many people *think* it is the law....What new rules?

Probable cause, the presumption of innocence, and affirmative defenses are as I've described. These aren't new rules. Things have been done that way, and the law has been thus, for a long time. It works that way for everything -- not just Title II weapons.

I don't know where or how you've learned what you think is the law. I've learned what I know of the law in law school and by being a member of the bar and practicing law for over 30 years. As a shooter and firearms instructor, I have a special interest in gun law and use of force law.

...You are fine with legal citizens exercising 2nd Amendment rights being arrested based on nothing more than suspicion....An LEO in general has the power to arrest someone when he has probable cause to believe that person has violated the law. "Probable cause" is "sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime...."

Yes, I'm okay with that. It's been that way for a very long time and makes good sense.

...Our worst enemy is not the Brady group... It is the gun owner that thinks assault weapons should be banned, and that MG's are illegal. And saying it is fine to arrest someone just because they have a title II item and not following some made up "law" is perpetuating that stereotypical thought process....And this is of course utter nonsense. It's clear that you haven't really been paying attention. You want things to be a certain way. They aren't the way you want them to be. Sorry, but that's life.

cptsplashdown
December 1, 2009, 01:39 PM
Again, the thinking is a bit strange to me. Of course it is illegal to possess ALL firearms unless you follow certain administrative procedures (background check, ID check, etc., depending on applicable state laws, some being more restrictive than others). The only difference between my NFA weapon and all the other weapons at the range (besides it's length, rate of fire, or decibel level) is that I had to pay an additional $200 bucks to own it. So all this probable cause is really in relation to your belief that I couldn't afford a $200 tax stamp and this gives the LEO his justification to begin an investigation. Again, you could argue that everyone at the range is in illegal possession of a firearm unless they can produce evidence that they are not...

KLRANGL
December 1, 2009, 01:56 PM
Again, you could argue that everyone at the range is in illegal possession of a firearm unless they can produce evidence that they are not...
You could make that argument, but you would have no probable cause for an arrest...
Possession of an NFA item is probable cause for an arrest, just as it would be if a cop saw someone who appeared to be underage in possession of alcohol. Should you just be able to tell the officer: "you have to show proof that I'm underage before you can arrest me!" No, you shouldn't... He will arrest you for underage possession unless you can prove to him (with an ID) that you are over 21... That's how it is, and that's how it should be... Its not a police state. Its simply giving law enforcement the ability to enforce laws written by your elected representatives. You don't like the laws, get them changed. But don't handicap the ability of law enforcement to do its job... That's just silly...

cptsplashdown
December 1, 2009, 03:56 PM
I guess my confusion comes in at why there is probable cause for an arrest in the case of an NFA weapon, and there isn't in the case of any other weapon, which you must also meet certain criteria to possess. I have a big problem with the poster who alleged that this was a "presumptively illegal" weapon to begin with. Not being versed in the specifics of the law, I asked several attorneys, including a PD, for their take on LEOs using this assertion to generate probable cause for a search. None of these legal professionals had ever even heard of the term, nor could they locate "presumptively illegal" in any legal database. In other words, it is complete crap, a facade that can be used to justify whatever search or investigation the officer feels like pursuing, and hoping that a judge will back him up later in court.

Sorry, but to me that is an abuse of your power. You are not serving the public interest, and you are not following the letter of the law. I agree with your assertion that there is no reason to handicap law enforcement from enforcing the law, but my argument is that there is no evidence to support that there is a violation of the law here, any more than there is prima facia evidence to support the theory that everyone at the range should be subject to the LEOs inquisition simply because they have a gun. I guess LEOs can make up any legal-ish term they want and get away with it, but that doesn't make it correct.

I don't disagree with the logic of anyone here, and Fiddle has done an excellent job of explaining the various stages of procedure, it is just that I disagree with the assertion that there is a crime being committed, or that the mere possession of an NFA weapon constitutes probable cause. There is no legal foundation for this, as these weapons are not illegal to possess, they are simply restricted to those who have paid the appropriate tax. You are essentially auditing my tax records on suspicion of what? Tax evasion? Sure, I get it, ME HAVE BADGE, YOU GO JAIL. Hope that shoe doesn't ever end up on the other foot gents.

p99guy
December 1, 2009, 04:18 PM
The most basic thing is that states are allowed to enact more resrictive laws than the federal standard (but not more lax) hense every single one of them to my knowledge have done so in this case, with a few not allowing any NFA items even with a tax stamp....while others allow full auto , but not suppressors( or suppressors but not full auto etc)
Every state that allows NFA items, do so in a mannor that states that having a tax stamp is a defense to prosecutionfor having a otherwise state felony item(yes the item is illegal to possess,unless you meet one of the exemptions- so you either have an exeption,and be able to prove it, or your in trouble)...so it is state law that you must contend with on a dayly basis. And it OVERLAYS the federal standard.

cptsplashdown
December 1, 2009, 04:28 PM
Another great point. Well thanks again to everyone who responded, I certainly wasn't expecting so much interest. Hopefully everyone learned a little bit from this thread, I know I did. At the very least we can all learn to "agree to disagree" without any bad feelings. I suppose a call to the BATF is in order, I will post again when I hear it from the horse's mouth. Until then, best to all.

For any interested: http://oathkeepers.org/oath/

Quis custodiet ipsos custodes?

DRice.72
December 1, 2009, 04:42 PM
Doesn't the NFA registry exist to allow citizens to legally posses the weapons on that list? If so, then wouldn't it be reasonable to assume that someone who possess a weapon on the list does so legally?

The car analogy keeps being brought up, paper work and all. LEO's don't stop everybody, the assumption exists that motorists are operating the vehicles legally right? If not then we would have license checks on every state road everyday, forcing us to produce our paperwork.


What is the role of a LEO? To prevent crime by making an arrest based on generalizations, or to make an arrest after a crime has been committed based on evidence that leads to identifying a specific law that has been broken, and a specific individual that has broken that law?

Frank Ettin
December 1, 2009, 06:24 PM
Of course it is illegal to possess ALL firearms unless you follow certain administrative procedures (background check, ID check, etc......)....I guess my confusion comes in at why there is probable cause for an arrest in the case of an NFA weapon, and there isn't in the case of any other weapon, which you must also meet certain criteria to possess.....The primary reason for your confusion is that those administrative procedures you cite aren't criteria to possess. They are requirements for transfer.

Federal law and some state laws require that licensed firearms dealers comply with certain administrative requirements, like perform a background check, in order to lawfully transfer a gun to the buyer. If the rules aren't properly followed, the liability falls on the dealer. Federal law and the laws of many states permit the transfer of a firearm without formalities in a private transaction between residents of the state.

The only federal restriction on possession (other than under the NFA) is that certain classes of persons (felons, certain drug users, etc.) are prohibited from possessing a firearm. Such disabilities aren't open and obvious, unless you're the guy smoking the joint on the street corner while openly packing heat.

Some jurisdictions may possibly have certain requirements regarding possession (like perhaps the FOID card in Illinois, or New York City requirements -- I'm not going to research the details). It's entirely possible that law enforcement agencies in those jurisdictions may have established procedures for verifying compliance.

...Not being versed in the specifics of the law, I asked several attorneys, including a PD, for their take on...Of course we don't know exactly what or how you asked them, and they're not here, so this isn't worth discussing.

And "presumptively illegal" isn't a legal term of art. It's ordinary English.

...Sorry, but to me that is an abuse of your power. You are not serving the public interest, and you are not following the letter of the law.....And maybe someday you'll be lucky enough to be a test case.

...it is just that I disagree with the assertion that there is a crime being committed, or that the mere possession of an NFA weapon constitutes probable cause. There is no legal foundation for this,...You're of course entitled to your opinion.

...If so, then wouldn't it be reasonable to assume that someone who possess a weapon on the list does so legally?... Why would it be reasonable for an LEO to assume such a thing? Should an LEO assume that guy he sees smoking a joint on the street corner has a medical marijuana card? Is a cop supposed to assume that the man who just shot someone did so in self defense? Do you expect a police office to assume that the person tearing down the street at 90mph is rushing his pregnant wife in labor to the hospital? I don't think it would be at all appropriate for an LEO to make any such assumptions.

...The car analogy keeps being brought up, paper work and all. LEO's don't stop everybody,...The car analogy has been addressed several times, and it's been explained several times why it's nonsense. There's no need to repeat those explanations again.

cptsplashdown
December 1, 2009, 06:51 PM
I think we're back to "agree to disagree." Thanks though.

RAnb
December 1, 2009, 06:56 PM
It has been claimed here several times that possession of a title 2 weapon is prima facia evidence (self-evident from the facts) that a person is doing something illegal. There must be some law, regulation or court ruling that says this is so. So where is it? Anyone have a link? Fiddletown, you should have a link to provide us to back up your claims.

I have read enough of the NFA law to know that it says a person must obtain authorization from the ATF before possessing a title 2 weapon. I do not think this is why mere possession is evidence of a crime.

Has the ATF ever denied authorization to transfer or make a title 2 weapon when the person properly submitted the forms? As far as I know, they can not or will not deny authorization to anyone who is not a prohibited person. If authorization is a very routine matter, then why would mere possession be evidence of a crime? It really does not make any sense to me.

Texas is the only state I know of that has a law stating certain title 2 weapons are illegal, but that registration is an affirmative defense to prosecution. I know that several other states require registration in accordance with federal law to be legal.

I always have a copy of my ATF form 1's when traveling with my title 2 weapons or using them at a range. Private ranges are completely within their rights to deny range use to anyone. It also helps educate the TSA when they object to someone traveling with title 2 weapons for some reason.

Ranb

cptsplashdown
December 1, 2009, 07:01 PM
Oh, my point about "presumptively illegal..." The poster said that having the NFA firearm was "legally presumptively illegal." I simply asked several legal experts what it meant for a LEO to say that an act was "presumptively illegal." Their response was simply that it means nothing in a legal sense, which you may not consider worth discussing, and of course you are entitled to your opinion, but I thought it was worth mentioning is all.

IMHO, a police officer should know if something is illegal or not, and address only those people who are committing a crime, and our entire thread has covered whether or not the case of a NFA weapon would fit this criteria. Obviously we have come to an impasse on this issue. However, I would say that just because I PRESUME something doesn't make it true, and when the poster used the term, it was clearly not meant as ordinary english, but as a legal criteria to conduct an investigation. It is in fact not a legal term, hence the use of "legally presumptively illegal" is in fact a bunch of crap. Again, I would suggest that this was an attempt to justify a search with no basis in law. Opinions may vary.

We can continue to agree to disagree though, even if I'm right :-).

Frank Ettin
December 1, 2009, 07:49 PM
It has been claimed here several times that possession of a title 2 weapon is prima facia evidence (self-evident from the facts) that a person is doing something illegal. There must be some law, regulation or court ruling that says this is so. So where is it? Anyone have a link? Fiddletown, you should have a link to provide us to back up your claims....Nope, no citation, but an opinion based on professional training. AFAIK, it's never even come up in real life. Do you want to be the test case?

Of course there's federal statutory and case law, as well statutory and case law in each state, bearing on probable cause, presumption of innocence and affirmative defenses. I'm not going to do the research to write a law review article. But I've outlined my reasoning throughout this thread.

But I'll lay it out once again:

[1] An LEO may arrest someone, or detain the person for investigation, if the LEO has probable cause to believe the person has committed a crime.

[2] "Probable cause" is "sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime...."

[3] An NFA weapon may only be lawfully possessed by an LEO, licensed dealer/manufacturer or an individual who has satisfied the requirements of the NFA for private ownership and who has properly registered the firearm as required under the NFA. Except for such persons, possession of an NFA weapon is a crime.

[4] If a person has in openly in his possession a weapon that is obviously an NFA weapon, he is committing a crime, unless he satisfies the requirements for lawful possession of the NFA weapon.

[5] The fact of the person's possession of the weapon are open and obvious. Any fact that might suggest that such person's possession is lawful, are not open and obvious.

[6] The facts known to an LEO observing such person, i. e., the possession of an NFA weapon, can reasonably cause the LEO to believe that a crime is being committed, i. e., the unlawful possession of an NFA weapon. Any facts which could possibly lead the LEO to conclude that the possession of the NFA weapon is actually lawful are hidden and therefore not known to the LEO.

[7] Therefore, based on the facts known to the observing LEO at the time. he has been led to believe that the person in possession of the NFA weapon is committing a crime, i. e., unlawful possession of an NFA weapon.

[8] If the LEO detains the individual possessing the NFA weapon, and that person cannot provide evidence of the lawful possession of the NFA weapon, based on the known facts, the LEO continues to have reason to believe the person is illegal possession of an NFA weapon. That constitutes probable cause for arrest.

[9] If the person can supply evidence that he is in lawful possession of the NFA weapon, the known facts no longer support the belief that the person has committed a crime. Now the LEO would no longer have probable cause for arrest.

RAnb
December 1, 2009, 08:05 PM
[4] If a person has in openly in his possession a weapon that is obviously an NFA weapon, he is committing a crime, unless he satisfies the requirements for lawful possession of the NFA weapon.

I disagree. A person with an NFA weapon is not obviously breaking the law any more than a person driving a car on a public road is. Government authorization is needed for possessing an NFA weapon and driving on public roads.

Authorization for the NFA weapons is arguably much easier to obtain than a driver's license. No written test, no practical exam, and no physical required for obtaining an NFA weapon. A few forms, a fee, a background check and minimum age requirement are it.

Ranb

ETA; I sent you a PM requesting a reply. Thanks for answering here.

DRice.72
December 1, 2009, 08:40 PM
Actually the pot analogy makes no sense to me simply for the fact that in most of the country possession of pot in ANY amount for ANY reason is illegal. That is also the view of the federal govt. Speeding is illegal everywhere. Even taking your dying mother, pregnant wife or other emergency to the hospital. In NC it is illegal for any agency to exceed the posted speed limit by more than ten miles per hour unless in direct pursuit. Those are all examples of crime. Any act of crime should be dealt with.
The fact is if I'm carrying any kind of weapon, there is NO reason to approach me unless I commit an act that rasies probable cause. If I am harassing people, or loitering while carrying. That gives a LEO cause to approach me, ask for proper identifaction, and make an attempt to determine my intent. If I am carrying a weapon. Then at that time I should be asked for proper paperwork. If there is no law to enfocre aginst me there is no reason to confront me. Even if I have a weapon.
To me it comes down to my signature. If I allow you to question me, in order to keep me "safe". I am forfeiting my essential Liberty.
I understand that this isn't how it works in the real world. That is why I keep my drivers license and registration readily available and produce it. Even though no LEO has reasonable cause to ask for it when I'm in the license check line.

Frank Ettin
December 1, 2009, 10:50 PM
I disagree. A person with an NFA weapon is not obviously breaking the law any more than a person driving a car on a public road is....You're welcome to disagree, and I have no intention of further discussing the car analogy.

In any case, I'm confident that if I had to argue the Title II situation before a judge, the judge would find the actions of the LEO to have been proper. Among other things, unlawful possession of a Title II weapon is a felony. (Driving without a license is at best a misdemeanor.)

Actually the pot analogy makes no sense to me simply for the fact that in most of the country possession of pot in ANY amount for ANY reason is illegal. That is also the view of the federal govt....But that is not the case in a number of state that now allow prescription of marijuana for medical purposes. In those states possession of marijuana is legal for someone having a valid medical marijuana card. And current federal policy, announced by Obama, is to not pursue federal prosecution for marijuana use by persons having valid state medical marijuana cards.

...Speeding is illegal everywhere. Even taking your dying mother, pregnant wife or other emergency to the hospital.... Except under the doctrine of competing harms (sometimes referred to as the doctrine of necessity or by, perhaps, other names in various jurisdictions) certain criminal acts, such as exceeding the speed limit, may be excused when necessary to save a life.

...If I allow you to question me, in order to keep me "safe". I am forfeiting my essential Liberty.... There are any number of circumstance under which you may need to forgo insisting on a right in order to benefit in some way.

Your medical information is confidential. But if you want a pilot license, you will need to submit to a medical examination, the finding of which will be supplied to the FAA.

Your financial information is confidential. But if you want a loan, you will need to disclose otherwise confidential information to the lender.

You have "the right to remain silent." But if your defense to a charge of manslaughter is self defense, you will need to tell your story and submit to cross-examination.

We're not going to resolve this here. We'll just have to wait for someone to be arrested for possession of a Title II weapon because he could not show the arresting officer evidence of proper NFA compliance and see what happens. The outcome should demonstrate which of us has done the better analysis. Any volunteers?

WOTAC
December 1, 2009, 11:24 PM
In response to cptsplashdown's original question which basically was, "Is there any law requiring paperwork to be carried with NFA weapons?"

To answer that question and just that question - no, there is no law requiring paperwork (i.e. Form 1, Form4, etc.) to be carried with an NFA weapon.

The discussion quickly became a debate over LEO's outside of ATF asking to see your NFA paperwork.

I agree that only ATF agents can ask specifically for your NFA paperwork. On the other hand, a state and/or local LEO can ask you for proof that your NFA item is properly registered. Your only proof that your NFA item is properly registered is your NFA paperwork. The state and/or local LEO did not ask you specifically for your NFA paper, but simply just for proof of proper registration.

Since we all seem to like analogies in this thread, I give you this analogy:

In some states, LEO's cannot ask for your driver's license unless it is in connection with a traffic violation. For example, in Tennessee only the Tennessee Highway Patrol can check your driver's license when no traffic violation has occured.

So if a LEO says, "Show me your identification," you can identify yourself with a passport, a state issued ID, or your driver's license, etc. because in this scenario you have many choices to satisfy the LEO's request.

In the NFA situation, there is only one way to prove that your NFA item is properly/legaly registered - that is your NFA paperwork.

I think this has been covered, but I'll re-hash it again. You cannot be arrested solely for not having your NFA paperwork with your NFA item. What you can be arrested for is for the state or local violation of possessing a SBR, SBS, MG, etc. These are state/local laws that are not "made up."

The next debate was whether when observing someone with an NFA item if they should automatically be considered to be breaking the law or presumed lawful.

I agree with automatically be considered to be breaking the law. I think all 50 states have a statute stating the effect that SBS, SBR, MG, silencers, etc. are illegal to possess. As for the states that do allow one or more of those items, the statutes are usually written "it is illegal to possess UNLESS properly registered with ATF." So by the way the statute is worded, then someone can be assumed to be breaking the law UNLESS proof is given that they are not. I know that I did not cite actual state laws in this one.

I like the analogy of the marijuana. I would think that in all 50 states, it is illegal to possess/smoke marijuana. If a state allow medicinal use of marijuana, then it still illegal to possess/smoke it UNLESS you have a prescription. So subject possessing/smoking marijuana can automatically be considered to be breaking the law UNLESS the subject can give proof that it is medicinal.

My final opinion - I think cptsplashdown has made up his mind that he is right and there is no changing it.

Yes, this is my first post. I registered just to reply to this thread. Flame away...

Accoster
December 1, 2009, 11:57 PM
Florida law states:

790.221 Possession of short-barreled rifle, short-barreled shotgun, or machine gun; penalty.--

(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any short-barreled rifle, short-barreled shotgun, or machine gun which is, or may readily be made, operable; but this section shall not apply to antique firearms.

(2) A person who violates this section commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) Firearms in violation hereof which are lawfully owned and possessed under provisions of federal law are excepted.

This thread started from a Florida incident, and if LEO did respond they could investigate and either arrest or impound the weapon.

JohnKSa
December 2, 2009, 12:18 AM
It is the attitude that has been expressed time after time that it is just fine to arrest someone that is actually within the law...Sure it is. If the appearance of breaking the law is there (as in my self-defense shooting analogy) and there is no evidence proving innocence then it is fine (advisable in fact) for the police to make an arrest.

The alternative is that the police can't arrest anyone as long as there's the slightest doubt existing that they might be innocent. Can't arrest that guy for having a machine gun because he might own it legally. Can't arrest that guy for shooting someone because it might have been self-defense. Can't arrest that guy for taking that car because he might be a repo man.

That's pure craziness. Police don't arrest based on guilt or innocence, they arrest based on the circumstances. If you appear to be breaking a law that justifies arrest then you will get to take the ride unless you can prove that you are innocent.Of course it is illegal to possess ALL firearms unless you follow certain administrative procedures (background check, ID check, etc., depending on applicable state laws, some being more restrictive than others).No it's not except in a few states and in those states you could expect to be required to show your registration if you show up at a range with a firearm or if you encounter an LEO. The laws you refer to relate to the transfer of guns through FFLs but there are, in most states, other legal ways to acquire guns.

The possession of a firearm at a shooting range by a person over 18 does not present any appearance of illegality.I disagree with the assertion that there is a crime being committed...No one's saying a crime is being committed. They're saying that there is the APPEARANCE of a crime being committed (as in my self-defense analogy) and in the absence of evidence to suggest otherwise there is probable cause for an arrest.I disagree with the assertion that ... the mere possession of an NFA weapon constitutes probable cause.I don't really understand what you mean. If you mean that you don't think that's how it SHOULD be then I understand. If you mean that you don't think that it really constitutes probable cause then you are simply mistaken. It does and there's really no legal basis to believe otherwise.I guess my confusion comes in at why there is probable cause for an arrest in the case of an NFA weapon, and there isn't in the case of any other weapon, which you must also meet certain criteria to possess.Because NFA items are illegal to possess without the proper paperwork while most firearms in most states are legal to possess at a range without any paperwork whatsoever. I don't see how that can possibly be confusing.The car analogy keeps being brought up, paper work and all. LEO's don't stop everybody, the assumption exists that motorists are operating the vehicles legally right? If not then we would have license checks on every state road everyday, forcing us to produce our paperwork.The point is that they CAN stop everybody on the road and ask for a drivers license. The fact that they don't do it EVERY day is no evidence that they can't. In fact occasionally they actually do.

Yes, it's a reasonable analogy. If you are operating a vehicle on a public road a police officer can stop you and ask to see your license. If you don't present it you will very likely get to take a ride in the back of his nice cruiser.It has been claimed here several times that possession of a title 2 weapon is prima facia evidence (self-evident from the facts) that a person is doing something illegal. There must be some law, regulation or court ruling that says this is so.You are clearly aware of the laws that make it illegal to possess NFA items without the proper "paperwork". If a person is in possession of NFA items and doesn't have or won't show the paperwork then he is presenting every appearance of breaking those laws and has given an LEO sufficient reason to arrest him and confiscate his firearms.I disagree. A person with an NFA weapon is not obviously breaking the law any more than a person driving a car on a public road is.It's somewhat different, but the point remains that an LEO can stop anyone on a public road and ask to see their license (paperwork) and may arrest them if they fail to comply. Similarly an LEO can ask a person possessing NFA items to prove that they possess them legally and arrest them if they fail to comply.Has the ATF ever denied authorization to transfer or make a title 2 weapon when the person properly submitted the forms? As far as I know, they can not or will not deny authorization to anyone who is not a prohibited person. If authorization is a very routine matter, then why would mere possession be evidence of a crime?Because the law says it's a crime if the possessor doesn't have the proper paperwork. It doesn't matter how easy to the paperwork is to acquire, if you don't have it/won't show it an LEO has no alternative but to believe you are breaking the law and has justification to make an arrest.

cptsplashdown
December 2, 2009, 02:40 AM
More great info. To be fair the only things that I have made up my mind about are:

1. There was no violation of the law in my case.

2. It should not be common practice to bug me simply because I am in possession of a NFA weapon, regardless of what usually happens.

I certainly didn't ask the question having already possessed the answer. I think the question has been resolved as I thought it would, and the vast majority of the thread ended up delving into areas that are somewhat grayer than one might think, evidenced by the 100+ posts and several thousand inquiring minds who have been following along.

I will happily carry my forms with me from now on, and present them when asked, as I do believe that Fiddle and others have made great points that would support an arrest in this case, though I still don't believe that it would perhaps be the correct course of action for a LEO to take. Just because something might be legally permissible, doesn't make it the right thing to do (as in the case of pulling over everyone who drives just because you can.)

In any case, we are all absent minded at times, and I think it is not appropriate that forgetting the paperwork for a legally owned firearm should lead to an arrest on a felony charge, regardless of whether your affirmative defense would get you off the hook eventually. I think everyone would agree that what would make this situation a non issue would be an accessible database for law enforcement that would allow them to check the status of a weapon in the same manner as they can check for your driver's license.

However, now we get back to the issue of what the federal government really meant to achieve with the registration of the NFA firearm through the issuance of a tax stamp. End run around the second amendment maybe? I think this is such a unique situation that no analogy really fits exactly, be it the car or the marijuana case, so yes I suppose we will have to wait and see what happens when such an arrest goes down, though I find it hard to believe it hasn't already happened.

In any case, I have found this to be a great exercise in working out the details of the situation through the open exchange of ideas between people who have been on all sides of the situation, hopefully to the benefit of each one of us.

Amicalement

SeekHer
December 2, 2009, 06:10 AM
fiddletown --
[1] An LEO may arrest someone, or detain the person for investigation, if the LEO has probable cause to believe the person has committed a crime.

[2] "Probable cause" is "sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime...."

[3] An NFA weapon may only be lawfully possessed by an LEO, licensed dealer/manufacturer or an individual who has satisfied the requirements of the NFA for private ownership and who has properly registered the firearm as required under the NFA. Except for such persons, possession of an NFA weapon is a crime.

[4] If a person has in openly in his possession a weapon that is obviously an NFA weapon, he is committing a crime, unless he satisfies the requirements for lawful possession of the NFA weapon.

[5] The fact of the person's possession of the weapon are open and obvious. Any fact that might suggest that such person's possession is lawful, are not open and obvious.

[6] The facts known to an LEO observing such person, i. e., the possession of an NFA weapon, can reasonably cause the LEO to believe that a crime is being committed, i. e., the unlawful possession of an NFA weapon. Any facts which could possibly lead the LEO to conclude that the possession of the NFA weapon is actually lawful are hidden and therefore not known to the LEO.

[7] Therefore, based on the facts known to the observing LEO at the time. he has been led to believe that the person in possession of the NFA weapon is committing a crime, i. e., unlawful possession of an NFA weapon.

[8] If the LEO detains the individual possessing the NFA weapon, and that person cannot provide evidence of the lawful possession of the NFA weapon, based on the known facts, the LEO continues to have reason to believe the person is illegal possession of an NFA weapon. That constitutes probable cause for arrest.

[9] If the person can supply evidence that he is in lawful possession of the NFA weapon, the known facts no longer support the belief that the person has committed a crime. Now the LEO would no longer have probable cause for arrest.

Well put sir as all your previous postings have been...

I only have one problem with number 1 and that is a cop (usually a SOB PIG) can do whatever they feel like doing to you whether they have justifiable or probable cause if they feel like it, they had a bad day, they're hungover, they're the only law in the land i.e. small town sheriffs or marshals and it's now up to you to prove your innocence not them proving your guilt...Presumption of Innocence is a thing of the past…Think pre Miranda, TN/MS/AR local yokel/county mountie…

Guys, if you're at the range and shooting a sub-machine gun (legal of course) and a fully uniformed LEO is at the slot three over and decides that he wants to hassle you--because your ejected cases have been bouncing into his space and asks you for proof of legal ownership/possession what do you say? "Sorry, I only have to show that to a BATFE agent" You could well end up cow hopping back to the front door, handcuffed and taken to the station house and possibly booked with possession of a illegal firearms, machine gun or whatever damn term your state/county/city uses...Are you innocent, yes, but you’ll still probably have to retain counsel to get your (legal) gun back…Read Numbers 4 through 7 above…

Same range and the Range Master, manager/owner comes over as says (for whatever, valid to him, reasons) “unless you have proof of legal ownership of said weapon, I’ll have to ask you to leave”, how hard is it to have a copy of the papers with you to continue shooting…Is he just supposed to take your word for it that it’s properly licensed and registered—maybe not you but other people have been known to lie!

You have to have proof of registration and insurance when you drive a vehicle, oh, and a valid license as well otherwise the officer can and will tow your car away, whether you’re the legal owner or not…You don’t even have to be pulled over for cause but just driving through one of these, now common, roadside alcohol testing stations…I got pulled over by a State Highway Patrol, lights flashing, for driving a stolen car, guns pointed at me, screamed at to get out of the car, handcuffed, all because someone transposed a couple of letters in my license plate—make matters worse, not only was I from out of state but out of country…Showed them my proofs of ownership, insurance and license and I was on my way but I still had guns pointed at me just because we used the same number/letter system of registering vehicles…

DRice.72
December 2, 2009, 08:02 AM
Let clear something up. I DO understand how the law works as it is written. I understand I WILL be approached and asked about a NFA weapon, and when I am approached if I don't have my paperwork with me I WILL be arrested.

I do understand that.

I believe its WRONG. The reason the registry exists is listing weapons that I can LEGALLY own.

The reason I believe that is in all of the scenarios we have put forth, ONLY the scenario of gun ownership is a protected constitutional right. EVERTHING else mentioned is a privilege. Driving a car is a choice, its necessity is one that the owner of the car perceives. When you are exercising a privilege, you have made the choice to submit any information required. Since it is not a right you have the CHOICE not to provide information and not to take advantage of the privilege. My example. I went to buy a home a couple of years back. Part of the mortgage application is a from allowing the federal gov't to perform a background check on me. This is part of the Patriot Act. The gov't wants to determine if I will in fact use the money for the purchase of a home, or if I am going to send the money to finance terrorism. Since home ownership is NOT a constitutional right, but a privilege, I submitted to the check. I do not believe that there was anything wrong in doing so. As I said. If you take advantage of a privilege, you must be prepared to submit to the rules surrounding that privilege. However gun ownership is a constitutional right. Asking for information about that gun is wrong, unless you are in the act of committing a crime, or perceived as a threat to the general population.
I know this isn't how state laws are written, and I know that isn't how it works, but that is how it SHOULD work.

ssmdive
December 2, 2009, 08:21 AM
And it should be noted that this thread was started due to a RA who "knew" the law and stated that splashy was a felon for not having his paperwork with the firearm. Splash was concerned because for all he knew, it might be true.... And for some damn reason he didn't want to listen to his much smarter and better looking buddy.

Splashboy started this thread to get an answer to that question.... and he has.

The thread has drifted.... But that's not really bad, it was/is a fun discussion. And I am willing to bet someone has learned something that they didn't know before.... Such as not needing the original forms, it is not illegal to not have the forms...ect.

I think some people might have gotten the wrong idea.... I don't doubt how the current situation *IS*.... I just think it is a damn shame that most people seem to think the mere possession of a title II item is worthy of possible arrest.

Skans
December 2, 2009, 11:28 AM
The bottom line:

1. You are not breaking the law by not keeping keep the NFA paperwork with the NFA item.

2. It's a very good idea to keep the NFA paperwork with the NFA item to avoid problems

3. The range officer was justified in kicking someone off the range who doesn't have the proper NFA paperwork. Private organization, private rules - it could require more than a minimal compliance with NFA laws, i.e. you must have the NFA paperwork to bring NFA items to the range.

KLRANGL
December 2, 2009, 11:37 AM
I think some people might have gotten the wrong idea.... I don't doubt how the current situation *IS*.... I just think it is a damn shame that most people seem to think the mere possession of a title II item is worthy of possible arrest.
Well if its one thing I haven't figured, it's how you can make an argument supporting the statement that you shouldn't be arrested over possession of a title II item without the paperwork showings its legality...
First off, I'd agree that title II items should no longer be criminalized by getting rid of the NFA and all applicable state laws. Failing that, I totally agree that a searchable database could be used to check title II weapons on the spot as cptsplashdown mentioned. That's a very good idea. But failing that, there is nothing to prove that the title II would be legally owned other than your documentation. Not only is it probably cause for an arrest, but it should be probably cause for arrest until those misguided laws are taken off the books.

Skans
December 2, 2009, 01:33 PM
The NFA is really a stupid law. The problem with having a searchable data base is that the entire premise of NFA is to collect a simple transfer tax. It's nothing more than a stamp tax. I guess the legislators who drafted and voted on this POS law figured the only way it would pass contitutional scrutiny was by making it a transfer tax regulated by the treasury.

AK103K
December 2, 2009, 01:49 PM
Taxing them was the only way it could pass the constitutional scrutiny at the time. I suppose later on, they figured, and seem to have been correct in their assumption, that the BS fed the general population from 34 on to 68, and then for sure in 86, would (and did) allow them to ignore it altogether.

If it were really about tax, it would be an open registry.

Skans
December 2, 2009, 02:26 PM
If it were really about tax, it would be an open registry.

If it was really just about tax there would be no photographs, no fingerprints, no CLEO sign-off, no restrictions on transporting them between states - just a revenue stamp, like the ones they put on liquor bottles.

Conn. Trooper
December 2, 2009, 03:35 PM
I probably wouldn't mind any of the NFA headaches if transfers moved a little quicker.:D

Skans
December 2, 2009, 04:28 PM
I probably wouldn't mind any of the NFA headaches if transfers moved a little quicker.

The biggest PITA for me is getting a CLEO signoff. Not impossible, just a PITA!

Hkmp5sd
December 2, 2009, 05:34 PM
Pay a lawyer to create a Living Trust. No more CLEO, fingerprints or photos. Very fast form approvals.

RAnb
December 2, 2009, 06:48 PM
I think all 50 states have a statute stating the effect that SBS, SBR, MG, silencers, etc. are illegal to possess. As for the states that do allow one or more of those items, the statutes are usually written "it is illegal to possess UNLESS properly registered with ATF." So by the way the statute is worded, then someone can be assumed to be breaking the law UNLESS proof is given that they are not.

Not all states say that. FL only mentions silencers to define them. WA only mentions them to ban use. TX bans possession, but makes registration an affirmative defense to prosecution. I have not read all of the states title 2 weapons laws, but they vary a lot.

Ranb

Skans
December 3, 2009, 08:43 AM
Pay a lawyer to create a Living Trust. No more CLEO, fingerprints or photos. Very fast form approvals.

I know folks who have done this. It seems to work. But, I'm skeptical of it because in the back of my mind all it takes is one of BATFE's "special" rulings to nullify that.

BATFE is real good at ignoring the law and simply restating it in the form of rulings to make the law whatever it wants it to be. Examples: catagorizing ordinary 12 gauge shotguns as DD's in the 1990's; labling the Akins Accelerator as an "illegal machinegun" eventhough the gun fires one shot per trigger pull.

I never liked or trusted Janet Reno. How do you feel about Eric Holder?

dogtown tom
December 3, 2009, 09:41 AM
Skans ... But, I'm skeptical of it because in the back of my mind all it takes is one of BATFE's "special" rulings to nullify that.

And......somehow an individual registration NFA will never have a chance of a "special ruling"?

Federal law clearly allows the use of a trust in regard to NFA firearms.



Way too much BATF paranoia.

Skans
December 3, 2009, 10:28 AM
Federal law clearly allows the use of a trust in regard to NFA firearms.

Way too much BATF paranoia.

Federal law also clearly defines a semi-automatic as one trigger pull per round fired. That didn't stop BATFE. Someone made a "trigger activator" type device that actually worked, and BATFE simply took the position that it was illegal, demanding that everyone who had them turn in their springs. I suspect that if someone came up with a gat trigger device that worked too good, then BATFE would outlaw those as well.

Regardless, State law could also prohibit the use of Trusts, or impose additional CLEO sign-off requirements even for Trusts, regardless of what NFA/GCA says.

I'd use a trust to purchase a can if I wanted one - not much to lose there. And, if I absolutely had to use one to get a machine gun, I'd probably do that as well. But, I can get a CLEO sign-off for machine guns - it's just a PITA, that's all. I'm not saying "don't use Trusts, LLC's, or Corps." All I'm saying is that if you can get a CLEO sigh-off, then there's no need to bother with this. And, there may be some reasons not to go the Trust route if you can get a CLEO sign-off.

Conn. Trooper
December 3, 2009, 08:09 PM
I belive with a trust you can list "Officers" of the trust/corporation, and they can also be in possession of your Class 3's? Correct?

Willie Lowman
December 4, 2009, 11:07 AM
Trustees or officers can be in control of NFA items held by the trust or corp.

There are advantages and disadvantages to this.

The advantage I see is if I have a heart attack at the range and am rushed to the hospital, my wife wont be committing multiple felonies by taking my(our, the trust's) silencers home.

Skans
December 4, 2009, 12:07 PM
I belive with a trust you can list "Officers" of the trust/corporation, and they can also be in possession of your Class 3's? Correct?

Trusts have "Trustees" and Corporations have officers. It would be the Trustees that would have the right to possess the machinegun. I'm not entirely sure what would give a Trustee the right to shoot it, though. What purpose could it possibly serve the Trust for a Trustee to fire a machinegun owned by the Trust? If anything, it would devalue the gun, slightly, and Trustees are generally charged with the requirement of trying to enhance the value of the contents of the Trust.

Just saying - I don't really trust trusts.

dogtown tom
December 4, 2009, 01:01 PM
Skans Quote:
Trusts have "Trustees" and Corporations have officers. It would be the Trustees that would have the right to possess the machinegun. I'm not entirely sure what would give a Trustee the right to shoot it, though. What purpose could it possibly serve the Trust for a Trustee to fire a machinegun owned by the Trust? If anything, it would devalue the gun, slightly, and Trustees are generally charged with the requirement of trying to enhance the value of the contents of the Trust.

Just saying - I don't really trust trusts.

I don't think you have any idea of what a trust actually is or does.

You need to go here:http://www.guntrustlawyer.com/

excerpt from above link
Co-owners and Authorized Users

If an individual purchases Title II firearms then he or she is the only one permitted to use or have access the firearms. Many people incorrectly believe that it is ok to let others use their NFA firearms when in their presence. However, the NFA would consider this a transfer and be a violation of the law. When your spouse or someone else knows the combination to your firearms safe, you may be violating the restriction on letting others access or possess your firearms. Improper possession through constructive possession is a form of unauthorized possession, and a violation of the NFA.

If you use an NFA Firearms Trust to purchase Title II firearms, you can designate additional owners and authorized users. You can eliminate the risk associated with an improper constructive possession with a simple signature authorizing that person to be in legal possession of the items. This can help protect you and your family from the penalties of violating the NFA.

Frank Ettin
December 4, 2009, 02:01 PM
But in any case, a trust doesn't have officers. A trust has trustees.

A trust is not an entity. It is a device for owning things (including money). In such an arrangement, there are one or more natural or artificial persons (a trustee can be a corporation, and a corporation has officers) called trustees who legally own things for the benefit of someone else, called a beneficiary. The rights and obligations of trustees and beneficiaries are written out in a document called a trust or a trust indenture or a trust document. The person who creates the trust is called a settlor, a trustor or a grantor.

Of course the trust document has to be carefully written to structure the trust in a manner appropriate for the type of things the trustees will own, the purposes and goals of the trust arrangement and applicable state and federal laws. And so an NFA firearms trust would need to be uniquely structured to properly serve its purposes and goals.

Skans
December 4, 2009, 02:27 PM
If an individual purchases Title II firearms then he or she is the only one permitted to use or have access the firearms. Many people incorrectly believe that it is ok to let others use their NFA firearms when in their presence. However, the NFA would consider this a transfer and be a violation of the law. When your spouse or someone else knows the combination to your firearms safe, you may be violating the restriction on letting others access or possess your firearms. Improper possession through constructive possession is a form of unauthorized possession, and a violation of the NFA.

If you use an NFA Firearms Trust to purchase Title II firearms, you can designate additional owners and authorized users. You can eliminate the risk associated with an improper constructive possession with a simple signature authorizing that person to be in legal possession of the items. This can help protect you and your family from the penalties of violating the NFA.

Let me guess - this comes from some lawyer who sells trusts for NFA purchases. What a load of BS - if my wife knows the combination of my safe, which holds my registered machinegun, she and I are violating the NFA??? Or, if I let someone else shoot it in my presence, that's a violation of the NFA???

Yeah - I'm going to be buying one of those trusts from whatever lawyer said this crap over this kind of scare tactic BS!

Look, it's one thing if you need to use Trusts, etc. because your CLEO won't sign off on your Form 4, but I ain't buying this other stuff. Not one bit.

Skans
December 4, 2009, 02:34 PM
And so an NFA firearms trust would need to be uniquely structured to properly serve its purposes and goals.

Fiddletown, I don't dissagree with anything you've said. But, I do have a question for you. What would be the stated purpose of a trust established for the ownership of NFA items? Investment? If that's the case, then don't shoot the machinegun, because that has noting to do with investment.

I can't see how it could be defense related, or "just for fun". From the little I know, these purposes wouldn't jive with what trusts are for. Tell me, how do you grant the Trustee or beneficiary the power, under a trust, to take the trust asset (machinegun) to a range and shoot it just for kicks and giggles? Who pays for the ammunition if you do this? The trust? Who pays the range fees? The trust? Surely, the trustee isn't going to use his own funds for this and the trust asset for his own kicks and giggles, now is he?

Frank Ettin
December 4, 2009, 07:19 PM
..,I do have a question for you. What would be the stated purpose of a trust established for the ownership of NFA items? Investment?...Beats me. I chimed in to offer some background on the general nature of a trust. I have no experience specifically with NFA firearm trusts. I would expect that the lawyers who do that sort of work have good answers.

I know it's very common and fashionable to mistrust lawyers. And there certainly are plenty who are on the smarmy side. Also, if you're dealing with one who is actually representing someone you're dealing with, he doesn't owe you anything. But at the same time, bar associations don't have any more sense of humor than ATF when it comes to lawyers who take on stuff they're not qualified to handle.

Hkmp5sd
December 4, 2009, 07:37 PM
What would be the stated purpose of a trust established for the ownership of NFA items? Investment?...

There are three primary reasons for getting a trust. One is for those people that cannot obtain a CLEO autograph. Second is for those that frequently buy NFA items and want to simplify the paperwork.

The important reason for a trust is to ensure the proper distribution of your NFA items upon your death. With common M16s and MP5s selling for $20,000 these days, it is important that you plan ahead for your demise.

Willie Lowman
December 4, 2009, 08:05 PM
Who pays for the ammunition if you do this? The trust? Who pays the range fees? The trust? Surely, the trustee isn't going to use his own funds for this and the trust asset for his own kicks and giggles, now is he?Yes, the trust does pay for it. From a bank account in the name of the trust that the trustees put money into. Same way tax stamps are paid for.

Skans
December 5, 2009, 10:00 AM
I know it's very common and fashionable to mistrust lawyers.

I don't have a beef with lawyers, per se. I simply think that the use of a trust or corp to purchase NFA comes with some real problems. Recreational use of firearms by individuals seems contrary to what trusts are set up for - i.e. the preservation of assets or distribution upon death. How many folks who have these trusts actually set up bank accounts in the name of the trust for the purpose of paying all related costs to shooting NFA item?

But, the bigger question is really what purpose does it serve for the trustee of such a trust to take the gun out to the range and do mag dumps with it. A trust might work fine for guns that are nothing but safe queens, but I think there is a real contridiction using them for guns you want to use and shoot. I think it would way too easy for BATFE to simply declare by "special ruling" that all NFA guns in trusts can only be kept for investment purposes - not used for target practice, etc. If everyone started putting their NFA items in trusts, it sure would be an easy way for BATFE to prohibit people from ever using them.

Powderman
December 5, 2009, 01:48 PM
And this post hits at the heart of the problem.

Why on earth do we have to duck and go through all kinds of twists and turns to exercise a right? Why?

It seems that the answer is that we haven't gotten mad enough yet. We, as a nation, are like the frog in the pot of slowly heating water. We aren't at the tepid stage--far from it! We are in the rolling boil, and we don't seem to care about it.

How did we get here? Simple. Look at the last election.

"I'll never vote for Palin."
"I hope Obama gets elected."
"Maybe this will be a wake-up call."
"I'm not voting this year."
"I'm going to vote for_____."

The Obama crowd didn't even have to fight to defeat us. We whacked ourselves in the head quite nicely, thank you very much. And still, it was a very close thing.

We haven't gotten mad enough yet to seriously ask questions like, "Why do I have to jump through these hoops? Why do I have to twist and turn and go into convulsions to own a fully automatic firearm?"

"Why does one inch of barrel even make a difference?"

We as a Nation have just sat by and let it happen. We have the most powerful weapon imaginable--the VOTE--and we waste it, squander it away on candidates who don't have a chance of winning, withhold it.

And we get what we deserve. After the election, what happened?

Panic buying. Primer and powder shortages.

A general air of defeat.

Elected officials giving voice to ideas that are the stuff of nightmares--registration schemes, confiscation, submission to UN control, outright bans--all open discussions; things that should not even be spoken of in a free Nation.

And we let it happen.

I see posts on the forums stating: "If you are a true patriot, you won't enforce this law. You'll turn a blind eye to this."

Wrong.

We, as a Nation, have allowed these laws to exist. We, as a Nation, have allowed officials to be elected that will eventually take our rights and strangle our freedoms into subjugation.

And then there is a lot of empty rhetoric about what will happen "if they come to take our guns away".

Why will we let it come to that? Why do we not unite, on a solid front, and come Election Day--starting with the mid terms, coming up next year--and VOTE THESE BUMS OUT OF OFFICE?

Until we DO wake up, let's try to stop having angels dance on the head of a pin.

And just to be safe, have your NFA paperwork with you when you go to the range.

LukeA
December 5, 2009, 07:08 PM
Does any evidence corroborate any of the above claims?

ssmdive
December 5, 2009, 09:31 PM
Let me guess - this comes from some lawyer who sells trusts for NFA purchases. What a load of BS - if my wife knows the combination of my safe, which holds my registered machinegun, she and I are violating the NFA??

Like it or not, that is the way the law is written.

gyvel
December 6, 2009, 07:57 AM
I was at the Markham Park shooting range today in South Florida.

The ultimate irony is that C. R. Markham was one of the biggest anti-gun politicians in Broward County and they named a park/shooting range after him:D

gyvel
December 6, 2009, 09:09 AM
Perhaps I am being overly simple minded, but NFA Regs regarding Form 4s clearly state that it is SUGGESTED to carry a copy. SUGGESTED does not mean REQUIRED.

Now, assuming there are no state or local ordinances to the contrary and some LEO, going on the basis of prima facie evidence, actually arrests (NOT detains) you for possessing the weapon, and you do not have your stamped paperwork with you, which, BY LAW you are NOT required have in your immediate possession, wouldn't you have a whopper of a case for false arrest once you go to court and produce said documentation?

For that matter, since the only law/regulation governing such an incident clearly states that the document is only required to be surrendered to the Attorney General or ATF officers, would you have to produce it in court at all? At that point would it become incumbent on the prosecution to prove otherwise?

The only parallel I have for this is a former acquaintance who was stopped by a Chandler, AZ LEO one night while walking with his girlfriend.

He refused to produce identification upon demand of said LEO, was arrested, jailed overnight, and, when brought before the judge was immediately exonerated due to the fact that there is no legal requirement (in AZ, at least) to show identification when walking in a public place upon demand of an LEO.

He did receive an out-of-court settlement of $10,000.00 from the City of Chandler.

Assuming no such requirement exists in Broward County or Florida, wouldn't the arrest of a person for simply refusing to produce NFA docs be the same principle?

Frank Ettin
December 6, 2009, 11:58 AM
....some LEO, going on the basis of prima facie evidence, actually arrests (NOT detains) you for possessing the weapon, and you do not have your stamped paperwork with you, which, BY LAW you are NOT required have in your immediate possession, wouldn't you have a whopper of a case for false arrest once you go to court and produce said documentation?...Nope. It would be a lawful arrest. Prima facie evidence constitutes probable cause, and an LEO is entitled to arrest on probable cause.

See posts 91 and 112.

....The only parallel I have for this is a former acquaintance who was stopped by a Chandler, AZ LEO one night while walking with his girlfriend...Not at all parallel. You've stated nothing that could be probable cause for arrest. Walking at night is not, in and of itself, a crime. Possession of an unregistered NFA weapon is a crime, and the only way a person in possession of such a weapon can demonstrate he's in lawful possession is by producing a copy of the NFA paper work.

Powderman
December 6, 2009, 12:13 PM
Now, assuming there are no state or local ordinances to the contrary and some LEO, going on the basis of prima facie evidence, actually arrests (NOT detains) you for possessing the weapon, and you do not have your stamped paperwork with you, which, BY LAW you are NOT required have in your immediate possession, wouldn't you have a whopper of a case for false arrest once you go to court and produce said documentation?


Suggestion: See Terry v. Ohio, cert. to the Supreme Court of OH, 392 US.

Hkmp5sd
December 6, 2009, 01:46 PM
Here is my take on the issue. Under Florida law, a machinegun is only legal if registered under federal guidelines.

790.221 Possession of short-barreled rifle, short-barreled shotgun, or machine gun; penalty.--

(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any short-barreled rifle, short-barreled shotgun, or machine gun which is, or may readily be made, operable; but this section shall not apply to antique firearms.

(2) A person who violates this section commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) Firearms in violation hereof which are lawfully owned and possessed under provisions of federal law are excepted.

If you are stopped by a Florida LEO with a machinegun, you must show proof that the machinegun is owned under federal law. If you want to do that at the police station in the presence of an ATF agent, go for it. If you want your $20,000 machinegun bouncing around in the trunk of a patrol car for the trip, go for it. If you think you can hit the lottery on a false arrest lawsuit, go to it. If you have any common sense, put a copy of your forms in the case with your machinegun.

Powderman
December 6, 2009, 05:11 PM
And, with that in mind, let's take this to another level.

Suppose that you are at home. You have just moved into a nice, quiet neighborhood. You also live in a State like Alaska or Vermont--open carry/concealed carry/etc.

Now, you're standing outside and you notice that a guy is standing by a vehicle. He is carrying a firearm that you KNOW is a submachine gun. At the same time, I come cruising through in my patrol unit. I also see the weapon; you see me stop and make contact with the guy.

Would you still say that I was wrong is asking the guy to produce his NFA paperwork?

Hkmp5sd
December 6, 2009, 06:14 PM
Would you still say that I was wrong is asking the guy to produce his NFA paperwork?

No, I would not say you were wrong.

Unlike common, Title 1 weapons, machineguns are restricted. They are totally illegal unless registered. You can cry 2nd Amendment, invasion of privacy or false arrest until the cows come home, but keep a copy of your forms handy.

Johnny Guest
December 6, 2009, 06:14 PM
Friends, I believe each and every permutation of the law has been discussed at least once. Yeah, we can keep coming up with off-the-wall scenarios, but it wouldn't much alter the facts. Even the OP, cptsplashdown, has repeatedly stated that the question has been answered.

We can all agree that the laws concening NFA items are imperfect, and surely imperfectly administered. Unless and until you --WE, actually-- can convince a majority of voters that such federal laws should be voided or massively modified, we have little or no chance at making things better. THEN, you'll notice, NFA-weapons enthusiasts will need to go the individual states and work to have THEIR laws changed.

This last is not truly beyond hope. I personally remember when federal law allowed for registration of machine guns, but TEXAS law forbade personal ownership. After considerable hassle, state law was changed to allow for possession/ownership IF federal registration was accomplished.

Anyhow, rather than see this entire topic beaten to death again and again, the thread is - -
CLOSED.

Johnny