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Old December 1, 2009, 10:23 AM   #101
Frank Ettin
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Quote:
Originally Posted by ssmdive
...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.

Quote:
Originally Posted by ssmdive
...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.

Quote:
Originally Posted by ssmdive
...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.

Quote:
Originally Posted by ssmdive
...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.
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Old December 1, 2009, 01:39 PM   #102
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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...
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Old December 1, 2009, 01:56 PM   #103
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Quote:
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...
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Old December 1, 2009, 03:56 PM   #104
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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.
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Old December 1, 2009, 04:18 PM   #105
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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.
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Old December 1, 2009, 04:28 PM   #106
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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.

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Old December 1, 2009, 04:42 PM   #107
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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?
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Old December 1, 2009, 06:24 PM   #108
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Quote:
Originally Posted by cptsplashdown
Of course it is illegal to possess ALL firearms unless you follow certain administrative procedures (background check, ID check, etc......)....
Quote:
Originally Posted by cptsplashdown
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.

Quote:
Originally Posted by cptsplashdown
...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.

Quote:
Originally Posted by cptsplashdown
...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.

Quote:
Originally Posted by cptsplashdown
...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.

Quote:
Originally Posted by DRice.72
...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.

Quote:
Originally Posted by DRice.72
...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.
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Old December 1, 2009, 06:51 PM   #109
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I think we're back to "agree to disagree." Thanks though.
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Old December 1, 2009, 06:56 PM   #110
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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.

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Old December 1, 2009, 07:01 PM   #111
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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 :-).
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Old December 1, 2009, 07:49 PM   #112
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Quote:
Originally Posted by RAnb
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.
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Old December 1, 2009, 08:05 PM   #113
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Quote:
[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.
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Old December 1, 2009, 08:40 PM   #114
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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.
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Old December 1, 2009, 10:50 PM   #115
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Quote:
Originally Posted by RAnb
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.)

Quote:
Originally Posted by DRice.72
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.

Quote:
Originally Posted by DRice.72
...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.

Quote:
Originally Posted by DRice.72
...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?
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Old December 1, 2009, 11:24 PM   #116
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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...
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Old December 1, 2009, 11:57 PM   #117
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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.
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Old December 2, 2009, 12:18 AM   #118
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Quote:
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.
Quote:
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.
Quote:
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.
Quote:
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.
Quote:
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.
Quote:
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.
Quote:
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.
Quote:
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.
Quote:
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.
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Old December 2, 2009, 02:40 AM   #119
cptsplashdown
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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
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Old December 2, 2009, 06:10 AM   #120
SeekHer
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Quote:
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…
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Old December 2, 2009, 08:02 AM   #121
DRice.72
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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.
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Old December 2, 2009, 08:21 AM   #122
ssmdive
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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.
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Old December 2, 2009, 11:28 AM   #123
Skans
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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.
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Old December 2, 2009, 11:37 AM   #124
KLRANGL
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Quote:
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.
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Old December 2, 2009, 01:33 PM   #125
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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.
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