View Single Post
Old December 1, 2009, 07:49 PM   #112
Frank Ettin
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,702
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.
Frank Ettin is offline  
Page generated in 0.06036 seconds with 7 queries