Defaced gun

[KyJim]

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?

Unfortunately, there is no simple list of elements or threshold conditions. It is clear, however, that immediate action is necessary to invoke the defense. My state has recognized innocent possession in two situations. The first is based on specific statutes involving possession of controlled substances and possession with intent to traffic. The second is based on a knowing possession of contraband (child -p*o*r*n) and where the court read intent into the statute for purposes of an innocent possession defense.

Here is the gist of the first:

What constitutes innocent possession of a controlled substance? As courts in several sister states which have addressed the “innocent possession” defense have noted, it is easy to imagine numerous circumstances in which a person might take possession of a controlled substance without any unlawful intent. See, e.g., State v. Miller, 193 P.3d 92 (Utah 2008); Ramsubhag v. State, 937 So.2d 1192 (Fla.App.2006); People v. E.C., 195 Misc.2d 680, 761 N.Y.S.2d 443 (N.Y.Supr.Ct.2003); People v. Martin, 25 Cal.4th 1180, 108 Cal.Rptr.2d 599, 25 P.3d 1081 (2001); Adams v. State, 706 P.2d 1183 (Alaska App.1985). A parent confiscating drugs from his or her child, a teacher finding drugs in his or her classroom, a daughter picking up a prescription for her bedridden parent, a homeowner finding medicine left behind by a guest, all could be, deemed illegal possessors under strictly construed possession statutes. Moreover, if the teacher transferred the drugs to his or her principal, or the homeowner gave the drugs to the guest's spouse who came by to pick them up, the teacher and homeowner could be deemed guilty of trafficking as well. We are confident that the General Assembly did not intend to criminalize the possession or transfer of controlled substances in circumstances such as these, and it is for that reason, among others, that our statutes prohibiting possession and trafficking all require that the possession or trafficking be “knowing and unlawful.” See KRS 218A.1412—KRS 218A.1417. We agree with Adkins, therefore, that these statutes implicitly recognize an innocent possession or innocent trafficking defense, and whenever the evidence reasonably supports such a defense—where there is evidence that the possession was incidental and lasted no longer than reasonably necessary to permit a return to the owner, a surrender to authorities, or other suitable disposal—the instructions should reflect it.

Commonwealth v. Adkins, 331 S.W.3d 260, 263–64 (Ky. 2011) (emphasis added); copy at http://law.justia.com/cases/kentucky...000591-dg.html.


The second type is distinguished from the first because there is no requirement that possession be "unlawful" for their to be a violation, only that it be done knowingly. As mentioned above, the courts have read intent into the statute, at least to a degree. I think it is likely this approach would apply to other types of contraband as well:

Though the child-pornography statute does not include intent as a requisite mental state, something akin to intent must be shown to establish criminal liability here. Thus, the person who accidentally stumbles upon child pornography and immediately deletes it cannot be criminally liable, whereas the person who similarly encounters such material but then chooses to keep it with no intent to turn it over to law enforcement has violated the statute and committed the offense.

As with illegal drugs, under very limited circumstances, temporary, incidental possession of child pornography does not amount to a criminal offense under Kentucky law. Like the drug statutes, our child-pornography statute “allows for a defense of innocent possession where there is evidence that the possession came about incidentally and continued no longer than reasonably necessary to allow for lawful and appropriate disposal.” Adkins, 331 S.W.3d at 267. If the proof shows the very limited circumstances of innocent possession, then a defendant would be entitled to a jury instruction laying out the defense. . . .

But the proof did not establish, for instance, that the child pornography videos on his computer were innocently named and that he had encountered them while searching for other material. And even if he had encountered the videos while searching for other content, their filenames, which he had to have clicked and confirmed to begin the download, were clearly indicative of their content. A person cannot claim innocent possession when he sees files with terms unquestionably indicating child pornography and then chooses to download those files, even if he had originally been looking for legal content.

That he deleted, or at least attempted to delete, the material upon viewing and confirming the content of one of the files does not bring him within the ambit of the defense where he intentionally sought the material by initiating the downloads.

Crabtree v. Commonwealth, 455 S.W.3d 390, 411-12 (Ky. 2014); public copy at http://caselaw.findlaw.com/ky-court-...s/1609602.html.

Excuse the somewhat lengthy post but, as we lawyers know, details matter.

[Frank Ettin]

Jim, thank you for your excellent and detailed response. It might perhaps go beyond the scope of this thread, but I think the information is still very important for reinforcing the fact that if one hopes to be able to claim innocent possession of contraband he will need to be able to show taking action to appropriately dispose of it without delay.

[Frank Ettin]

With regard to firearms plating, there appears to be some disagreement even in the industry.

I queried two companies that do firearm plating and some gunsmithing. I'm not going to identify the companies because of the differences in their responses, but they are both well known for plating services and have 07 (manufacturer) FFLs.

I asked:

Originally Posted by Frank Ettin

Can you preserve the serial number if it’s somewhat faint (e. g., on an older gun that has some wear)?

They responded:

Originally Posted by Company 1

We have the ability to replace serial numbers if they are weak or faint. So you can choose any finish you would like and it is not a problem

and:

Originally Posted by Company 2

It all depends. What firearm is it? Nothing we do degrades the serial number. Removing old finish and a very light bead blast can make it appear lighter. Nothing we can physically do to protect it. We need to know what and how old this firearm is before we will commit to it.

So apparently Company 1 will replace the serial number if necessary. I don't know if they have confirmed the propriety of this with ATF.

And apparently Company 2 will not attempt the work if it would impair the readability of the serial number.

[Hal]

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?

Sounds like state or county or local jargon......

Not everything is charged under federal statutes.

State statute(s) often use different wording to describe the same crime as federal statutes & it depends on which statute a person is charged under - - who picks up the tab for prosecution &&&(most often the most important point) who cashes in on the fines.

In Ohio, the term used for a felon having possession of a firearm is - a person under a disability.
A number of years ago, there was a cab driver (felon) that shot and killed someone that attacked him.
He was found innocent of the shooting, but, guilty of "having a firearm under a disability" & got three years in prison for it.
Under a disability invokes all sorts of images of a person in a wheelchair being denied the right to own a gun - - but - - the disability they mean is, the person has committed some previous offence that renders them "disabled" to have a gun (in any way, shape or form).

The way this "defaced" jargon is applied would depend wholly on exactly where it happened & what the law was that the individual was charged under.

[Paul B.]

Very interesting. Take a Husqvarna for instance. Dunno about now but the 640's and some later models had the serial number on the barrel and nothing on the receiver. Rebarrel and OOPS! No number. Some of the earliest J.C. Higgins M50s had no serial number at all unless it was also on the barrel. How about all those millions of early .22LRs that have no number? Guess they're all contraband now.

On another note, I know a gentleman who bought a barreled action and blank at a gun show to be the basis for a custom rifle he'd saved for more years than I care to count. Finally he had enough and had a "name" gunsmith carve out the blank into a beautiful piece of work. Seems whoever polished out the barreled action kind of messed up a bit of the serial number. I've seen it and if you know what it's supposed to be you can make it out. The bottom metal also has the number an it matches the legible portion. Does this fellow have any options to save his rifle and I know him and he's not gonna willingly turn in his nearly $4,000 dream. The only option I see is strip it of everything except the bare receiver and turn that part in. He's not too fond of that idea.
Paul B.

[Frank Ettin]

Originally Posted by Paul B.

...Some of the earliest J.C. Higgins M50s had no serial number at all unless it was also on the barrel. How about all those millions of early .22LRs that have no number? Guess they're all contraband now....

First, serial numbers have only been required under federal law since 1968. A firearm manufactured before 1968 without a serial number is perfectly legal.

However, federal law is what it is, and under 18 USC 922(k), emphasis added:

(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.

So if the importer or manufacturer put a serial number on the gun, it is illegal to possess the gun if that number has been removed, obliterated, or altered -- whether the gun was made before 1968 or after 1968.

If someone is enough in love with his rationalization as to why in his case it's okay for him to hold on to that gun with the butchered serial number that he's willing to try selling the rationalization to a federal judge, that'll be his problem -- not mine. And if a gunsmith bollixed up a serial number on a gun of mine that I really wanted to keep, I'd immediately be hiring a top drawer lawyer to (1) see what can be worked out with the ATF; and (2) make sure that the gunsmith clearly understood that he was going to be held accountable for any loss I suffered because he screwed up the serial number on my gun.

There are all kinds of sad stories around, but the law doesn't provide a lot of wiggle room.