Defaced gun

[JoeSixpack]

Ok so here's a question for ya.

I was watching Live-PD tonight and a car thief was caught and had a defaced gun.. looked like a J22.

Anyway I know that's a crime.. but what if it was by accident? what happens then? what do you do if a gun becomes accidentally defaced?

I remember a story I heard some years back about a guy carrying a Beretta Cougar while riding a motor cycle.. he was in a wreck and the gun came dislodged and took quite a beating on the road.

The soft aluminium frame was especially banged up.. just cosmetic damage that was able to be buffed or smoothed with a file and the gun lived to shoot again.

The gun was not defaced in that incident but what if it had been?
Where does that leave the honest citizen in such cases?

[tangolima]

Defaced as serial number removed? That's a good question. I think I would have no choice but to destroy the gun. Take pictures of it before and after I hacksaw the receiver / frame. The rest of the parts I will sell them.

It is an accident. But accident causes loss to property. Gun is property that can be lost. A gun with serial number removed is a no good. Take the loss and stay away from trouble. Perhaps you can claim against your insurance.

-TL

[g.willikers]

As long as the serial number can still be read, it's probably ok.
Reality shows depend on exaggerating everything to make more drama.

[44 AMP]

Defaced as serial number removed? That's a good question. I think I would have no choice but to destroy the gun. Take pictures of it before and after I hacksaw the receiver / frame. The rest of the parts I will sell them.

Sorry, but that's a bad idea. Possibly criminal. Those pictures would be prosecution's exhibit A.

A gun that has had the serial number deliberately defaced (including removed) is a prohibited item under the law. There is NO WAY to make it legal again. Doesn't matter who did it, or when, if you have such a gun in your possession, there is only ONE course of action legally available to you, and that is to surrender the gun to law enforcement. Period.

Destroying the gun is, literally destroying evidence of a crime. This is a separate criminal act. Pictures proving you destroyed the gun are proof of a criminal act. Same applies to throwing the defaced gun the lake. Don't DO IT!!

Now, a gun that has suffered DAMAGE due to an accident rendering the serial number unreadable is a different matter. A licensed gunsmith CAN re-apply the serial number in a different place. There is a legal process to be followed, but is it legal when done in the approved manner.

A gunsmith can also apply the serial number in a different location on the gun, if repair or customization will deface the factory applied number.

These are the only exceptions I am aware of.

Most people know having a gun with serial # defaced/removed is a crime. Most think destroying it, cutting it up, getting rid of it, throwing it in the lake, etc. solves the issue. It does not.

All the honest citizen can do with a deliberately defaced gun is turn it in. If damaged due to accident (and you can prove it) the gun can be legally repaired and kept. IF you can't prove the accident, the law assumes it was deliberate. Likewise, the law assumes that if the gun is in your possession, YOU are the one who defaced it. Not fair, but it IS the law.

Doesn't matter if the serial # was defaced 50 years ago, you're the one possessing it today, you're the one on the hook for the crime.

Hope this answers your questions.

[tangolima]

If a gun is damaged during accident, which I can prove, I think I can destroy it. That's what I meant. Turning it in to the police is certainly an option. I won't bother to have it restamped. Take the loss and move on.

-TL

[Jim Watson]

It would take strange accidental damage that would obliterate the serial number. There was the guy whose gun was shot, I guess if the bullet had landed on the serial number, we would have an example.

There was a thread on another board about a motorcycle crash gun.
It probably cost as much as a new gun to have it rebuilt, but it was a personal pet thought worth the trouble.

I have a gun built on a receiver that was damaged by a broken mill bit. The gunsmith tossed it and started over. I got it cheaply out of the junk box and my FLG turned it into a very nice pistol.

[FrankenMauser]

A gunsmith can also apply the serial number in a different location on the gun, if repair or customization will deface the factory applied number.

I recently did the rounds with the ATF on this.
Their current position is that obliteration or alteration of the original serial number, in any way, and for any reason, is defacement and a crime.

Duplicating the serial number in an additional location (as described in the statement above what I quoted) is allowable; but the original must remain intact and readable.



What gets really fun is when the only serialized part on a firearm is something other than what the ATF typically recognizes, but that part needs to be replaced or repaired in a manner that will obliterate or damage the serial number. That's how I got into this poop storm:
A serialized trigger plate for a Marlin rifle, with only a partial serial number on the receiver.
If I duplicate the serial number and have the receiver marked, I'm "manufacturing" the firearm. If I add the omitted digits to the existing, partial serial number, I'm altering. If I do nothing, the rifle is dead.
It's a lose-lose-lose situation.

[Jim Watson]

Winchester Single Shot ("Highwall") has the serial number only on the separate lower tang, not the receiver. Wonder what the feds would think if you wiped out that number in the process of bending the tang for a pistol grip or welding in a through bolt block. It is the only serial number the gun has, but it is not on the specified part, so is it really a "Serial Number?"

Worse, unscrupulous persons have been known to buy a tang, letter the serial number, and scrounge parts to assemble a gun in the original configuration that tang came from.

[JoeSixpack]

It would take strange accidental damage that would obliterate the serial number.

I would normally agree, But like I said it got me thinking about that motorcycle accident with the Cougar, The soft aluminum frame took a hell of a beating on the road.. the SN being on the same soft frame if had "slid" rather than tumbled I could see the SN becoming damaged.

The gun was able to be salvaged by smoothing out the damaged areas with a file, buffing etc, it never looked the same again but it lived to shoot again.
But there would be no fixing the SN if it got ground off road rash style.. I'd assume even loosing 1 digit would qualify as defaced.

[Frank Ettin]

It is generally a violation of federal to have a gun on which the manufacturer's (or importer's) serial number has been "removed, obliterated, or altered." (18 USc 922(k)):

(k) It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.

The statute doesn't say anything about who removed, obliterated or altered the serial number or how the serial number got removed, obliterated or altered. So if you're holding a gun in your hand and know that the manufacturer's serial number on that gun has been removed, obliterated or altered, by anyone in any way, you're violating federal law.

Originally Posted by g.willikers

....As long as the serial number can still be read, it's probably ok....

Well let's look at what some courts have said:

• U.S. v. Horey, 36 F.3d 1106 (C.A.10 (Okl.), 1993):

  ...We turn to defendant's argument that his conviction for violating 18 U.S.C. 922(k) was also based on insufficient evidence. Defendant argues the government failed to sufficiently show that the revolver's serial number was removed, obliterated, or altered. He asserts the statute does not reach serial numbers that are still readable.
  
  Police officers testified that the serial number was obliterated. In addition, an expert in firearms and tool mark examination testified the revolver's serial number was partially obscured or obliterated. The examiner also noted that it was possible one or two additional serial numbers were completely obliterated. Based on the clear language of 922(k), we reject defendant's argument that the statute does not reach the firearm recovered by the police in this case. The evidence is sufficient to sustain the conviction, and we AFFIRM the jury's verdict....

• See also U.S. v. Adams, 305 F.3d 30 (Fed. 1st Cir., 2002)(emphasis added):

  ...As for the evidence, that was clearly sufficient once it is understood that any alteration that works against legibility is enough; ...The pistol was presented to the jury. The case agent testified at trial that he could read the six digits of the serial number but with difficulty. At oral argument, Adams's counsel asked that this court examine the original pistol, and we now report the results.
  
  ...
  
  Of course, judgment as to the degree of impairment was for the jury. But a reasonable jury could easily conclude that this pistol had been altered so as to make it appreciably more difficult to read the serial number. Indeed, a reasonable jury could hardly reach any other conclusion...

Originally Posted by JoeSixpack

....Where does that leave the honest citizen in such cases?...

In a serious pickle.

If someone finds himself in possession of a gun with a removed, obliterated, or altered serial number, his safest course of action would be to arrange as soon as possible to turn it into the police. In general, if someone innocently finds himself in possession of contraband and without delay makes arrangements to surrender that contraband to the police, he's unlikely to have any liability. But the longer one retains possession of contraband the more difficulty he will have getting things squared away.

From time to time I hear anecdotally about gunsmiths restoring serial numbers with ATF's blessing. I've also heard that ATF isn't doing that anymore (see post 7). I'd love to see some actual documentation of ATF's policy But it looks like one can't count on being able to restore a serial number to allow keeping a gun.

Originally Posted by JoeSixpack

...I'd assume even loosing 1 digit would qualify as defaced.

Agree.

[tangolima]

Hmm. Mr. Ettin has changed my thinking. I still go along the line of taking the loss. But I will hand gun over to the police asap, instead of chop it myself.

I don't suppose I may just hand over the frame / receiver and keep the other parts. It hurts less if I could.

Thanks.

-TL

[Nathan]

I don't suppose I may just hand over the frame / receiver and keep the other parts. It hurts less if I could.

I don't see why not. The serialized part is the "firearm".

[Mike38]

Unless it's just television hype (and it may well be) the serial number on a metal gun can be retrieved even on guns that have been intentionally defaced. Supposedly, a stamped serial number disturbs or disrupts the metal all the way through to the other side of that surface. There is a chemical that will cause the number to reshow. Or, have I been watching too many CSI type shows on the boob tube? If true, even a serial number accidently distorted can be retrieved. But it may be cost prohibitive?

None of the above would be applicable to "Tupperware" guns.

[tangolima]

Originally Posted by Nathan

I don't see why not. The serialized part is the "firearm".

Well, it is a bit splitting hair. The law requires the gun be turned in immediately. Taking the time stripping it down is not quite immediate.

-TL

[Frank Ettin]

Originally Posted by Mike38

...the serial number on a metal gun can be retrieved even on guns that have been intentionally defaced. Supposedly, a stamped serial number disturbs or disrupts the metal all the way through to the other side of that surface.....

That's completely irrelevant to the discussion. Possession of a gun on which the serial number has been removed, obliterated, or altered is a federal crime, whether or not the serial number can in some way be recovered. The fact that the serial number can be recovered is relevant only as an investigation tool -- so that the gun can be identified and perhaps traced.

[44 AMP]

Their current position is that obliteration or alteration of the original serial number, in any way, and for any reason, is defacement and a crime.

In light of this, it seems that ONCE AGAIN the ATF has changed their mind about what is and isn't legal.

The information I gave was, at one time, correct, but now it seems the rules have changed. Again...

[FrankenMauser]

In light of this, it seems that ONCE AGAIN the ATF has changed their mind about what is and isn't legal.

The information I gave was, at one time, correct, but now it seems the rules have changed. Again...

The ATF Merry-Go-Round is always fun.

Honestly, I was very surprised after the first phone call that I made.
It was a situation in which all I wanted was to go back in time and stop myself from making said phone call. (So I could live in the past and operate on common sense. )

Subsequent calls had the same result, even with different approaches to the subject, or round-about discussions of related subjects.
(Still waiting on an official letter of opinion. Some call it a determination letter... I consider it temporary opinion.)

[johnwilliamson062]

I don't see how the decision described above could hold up ion court considring how common it is for platers to need to work on serial numbers in order to get them to be readable after refinishing.

[Frank Ettin]

Originally Posted by johnwilliamson062

I don't see how the decision described above could hold up ion court considring how common it is for platers to need to work on serial numbers in order to get them to be readable after refinishing.

How common is it for platers to need to work on serial numbers? What do they do? How do you know?

[johnwilliamson062]

Depending on the plating the engravings can fill in and need to be deepened before plating. Any sort of plating is going to fill in to some extent.

I know from talking to people who refinish for a living about refinishing my personal firearms. My impression is it is not necessary 100% of the time, but is necessary frequently. I've not looked into the bake on coats in much detail, but it seems to me some are pretty thick. I've seen many and owned a few firearms where engravings were damaged during refinishing.

[Frank Ettin]

Originally Posted by johnwilliamson062

...Depending on the plating the engravings can fill in and need to be deepened before plating....

Certainly decorative engraving can be a problem, but it looks like the serial numbers on at least the majority of my firearms are stamped.

I've had a number of my guns hard chrome plated with no issue with the serial number. Robar has applied Rogard to several of my guns without issue.

Hard chrome plating is about .0002 inch thick. Rogard is about 0005 inch. Firearm plating tends to be quite thin since most firearms have various parts fitted to very fine tolerances.

[KyJim]

In post #10, Frank mentioned innocent possession and the necessity of turning over a gun with a defaced serial number to authorities as soon as possible. I ran into a 7th Circuit case recently where that circuit has declined to recognize an innocent possession defense:

Defendant's innocent possession argument fails for two reasons. First, we have not recognized such a defense and decline to do so in this case. See United States v. Kilgore, 591 F.3d 890, 894 n. 1 (7th Cir.2010); United States v. Matthews, 520 F.3d 806, 810-11 (7th Cir.2008) (holding that possessing a firearm even “for a brief period of time is sufficient to constitute possession within the meaning of section 922”); United States v. Hendricks, 319 F.3d 993, 1007 (7th Cir.2003). Second, Defendant's actions would not support an innocent possession defense because he did not immediately seek to submit the firearm to law enforcement. See Hendricks, 319 F.3d at 1007 (noting in dicta the minimum requirements of such a defense).

United States v. Jackson, 598 F.3d 340, 349 (7th Cir. 2010); publicly available copy at http://caselaw.findlaw.com/us-7th-circuit/1510101.html.

Now the facts in Jackson are bad facts and perhaps the 7th Circuit might recognize the defense on a good set of facts. Nonetheless, it illustrates the necessity of dealing with a defaced serial number immediately. I would also hope that immediately dealing with the problem would persuade the government not to prosecute.

As always, the law may differ in other jurisdictions. My state recognizes the innocent possession defense.

[Frank Ettin]

Thank you, Jim, for the citation.

I agree with you that even with good facts an innocent possession defense isn't going to fly unless the subject is actively taking steps to turn the gun into the police as soon as possible.

You say that your State recognizes an innocent possession defense. Is that applicable to possession of contraband generally? Are there threshold conditions which would need to be satisfied in order for the defense to be available?

[johnwilliamson062]

ATFE requires .003.
There are some methods previously used and currently used in small shops that don't exceed that by much.
There are some finishes, such as the paint and bakes, that are much thicker.
You don't need to fill the letters entirely to obscure the SN. You are also adding material to bottom and side walls. Tooling marks, such as inside SNs where they aren't polished out, can cause more issues with plating/coating finish/thickness.

I've never worked in a plating operation. The chemicals involved are terrible for your health. I have manufactured parts that were plated or finished, or coated, although never firearms.

[ShootistPRS]

Even in the automotive industry special care is sometimes required to make sure that VIN are easily recognizable. Those numbers (VIN) are stamped over .06" deep and it is easy to hide them with a single paint over. Older vehicles are very prone to this and at times the metal with the number on is cut out, cleaned and then welded back in so it will not be hidden by an over paint.

What I wonder is if you had a gun that had an obscured or partially removed number could you have the number raised - using an acid etch and then restamp it?