Can I purchase a firearm from a dealer if I have a misdemeanor drug possession arrest or conviction?

Occasionally I will receive a call from a thoroughly confused potential client who has been denied a firearms purchase and doesn’t understand why.

They were able to honestly answer all of the questions on the ATF Form 4473 in the negative.

They have never been convicted of a misdemeanor crime of domestic violence.

They have never been convicted of a felony.

They have never suffered from any mental health issues.

In fact, the only conviction on their record at all is a misdemeanor charge for possession of marijuana from 10 months ago.  They have not used marijuana, or any other illegal drugs since, and no longer consider themselves an ‘unlawful user of or addicted to any controlled substance‘.

So why did this conviction cause their purchase to be denied?  They honestly answered question 11e ‘No’ and, unlike other questions where there are further instructions later in the form, that is not the case with this question.

The answer can be found in 27 CFR § 478.11 which provides the following detailed guidance concerning the interpretation of the phrase ‘unlawful user of or addicted to any controlled substance‘ (emphasis added):

An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g.,

a conviction for use or possession of a controlled substance within the past year;

multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year;

Note that under this definition, mere arrests (absent convictions) are sufficient to trigger a temporary purchase prohibition if more than one occurred during the last 5 years and at least one of them occurred within the 12 months preceding the date of the attempted purchase.

The due process and constitutional issues raised by such a broad definition are concerning but outside the scope of this article.

I should also point out that there are other disqualifying criteria in the regulation which I excluded as irrelevant to this particular topic but which a prospective buyer with any substance abuse history would be wise to read.

Ultimately there are two points to take away from this regulation:

  1.  The 4473 should be amended to include the criteria from 478.11 in an instructions section for question 11e; and
  2. If you have a misdemeanor conviction for use or possession of a controlled substance within the past year or multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year then you cannot purchase a firearm from a licensed dealer.

Disclaimer:  As always, this information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other jurisdictions.

Posted in 4473, Administrative Law, ATF, Background Checks, BATFE, Criminal Law, Federal Law, Prohibited Persons, Purchasing Firearms, Regulatory Rulemaking | Comments Off on Can I purchase a firearm from a dealer if I have a misdemeanor drug possession arrest or conviction?

May a gunsmith or manufacturer ship a firearm they have repaired directly to the owner?

A client recently asked this question.  He specifically wanted to know if the rules differ when the customer is in a different state than the manufacturer or gunsmith.

Given the myriad laws and regulations which govern both the transfer and shipment of firearms, it is hardly surprising that this is an area of some confusion for both gun owners and licensees.

I should also note that I will answer the question based upon federal and Virginia law.  Other states may have additional state-law requirements of which I am unaware.

Having said that, the ATF answers this exact question from a federal law perspective in their Top Ten Firearms Questions document (embedded below):

Download (PDF, 179KB)

The relevant question is # 7 (emphasis added):

The code section referenced is 18 USC § 922(a)(2)(A) which reads in part:

this paragraph … shall not be held to preclude a licensed importer, licensed manufacturer, licensed dealer, or licensed collector from returning a firearm or replacement firearm of the same kind and type to a person from whom it was received

This exception is also mentioned in the Code of Federal Regulations § 478.124(a) which states in part:

a firearms transaction record, Form 4473, shall not be required to record the disposition made of a firearm delivered to a licensee for the sole purpose of repair or customizing when such firearm or a replacement firearm is returned to the person from whom received.

Posted in ATF, BATFE, Federal Law, FFL Issues, Gunsmithing, Interstate Firearm Transfers, Manufacturing, Shipping Firearms | Comments Off on May a gunsmith or manufacturer ship a firearm they have repaired directly to the owner?

May a machine shop allow customers to use their machinery to finish 80% lowers?

I was recently contacted by a firearms enthusiast who is also the owner of a machine shop.  He wanted to know if he could host an event where he opened his shop to a group of fellow shooters so that they could each finish an 80% lower.

He planned to show them how to operate each piece of machinery and then have them do the actual ‘manufacturing’ of the receiver. In his initial description, he categorized it as a ‘class’.

It sounded like a lot of fun and I really wish that I hadn’t been forced to be the bearer of bad news.  But such a setup would run afoul of ATF Ruling 2015-1 (embedded below).

Download (PDF, 69KB)

This ruling addressed two separate issues surrounding the manufacture of firearms by those not licensed as manufacturers.  The holding applicable to my client’s issue was the second one addressed (starting on the middle of page 5).

The holding from the ATF was “that a business (including an association or society) may not avoid the manufacturing license, marking, and recordkeeping requirements of the GCA by allowing persons to perform manufacturing processes on blanks or incomplete firearms (including frames or receivers) using machinery, tools, or equipment under its dominion and control where that business controls access to, and use of, such machinery, tools, or equipment.”

In layman’s terms, an individual may still manufacture his or her own firearm from an 80% lower.  But they must do it using their own machinery, tools, and equipment.

Posted in 80% Lower, ATF, ATF Ruling, BATFE, Manufacturing, Regulatory Rulemaking | Comments Off on May a machine shop allow customers to use their machinery to finish 80% lowers?

Is a charge eligible for expungement if it was dismissed following a deferred disposition?

Virginia offers the possibility of a ‘deferred disposition’ for first time offenders of a number of crimes, including most misdemeanor ‘property’ crimes.

In a deferred disposition case, the judge will:

a)  Hold that the facts are sufficient for a finding of guilt;

b)  Withhold adjudication until some future date;

c)  Place the defendant upon probation which imposes conditions and requirements on their behavior (for example this may include community service); and

d)  Dismiss the charge in the future upon successful completion of the probation.

Once such a charge is dismissed, the defendant may wish to petition the court for expungement.  But will such a petition be granted?

Unfortunately, the answer is “No.

In Com. v. Dotson, 661 S.E.2d 473, 276 Va. 278 (Va., 2008) the Virginia Supreme Court held that a criminal charge that was dismissed pursuant to a first offender statute cannot be expunged because “[a] defendant cannot be considered “innocent” as contemplated by the expungement statute when … the trial court finds that the evidence was sufficient to prove his or her guilt.

In Brown v. Com., 677 S.E.2d 220, 278 Va. 92 (Va., 2009), the Virginia Supreme Court further expanded upon this theme by holding that the key determining factor as to whether or not a dismissal falls within the purview of the expungement statute is whether “the evidence was sufficient to establish guilt” even if such a finding is withheld.

In the case of a deferred disposition, expungement is not available.


Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.

Posted in Criminal Law, Deferred Disposition, Expungement, First Offender, Virginia Law, Virginia Supreme Court | Comments Off on Is a charge eligible for expungement if it was dismissed following a deferred disposition?

Why do some approved Form 1’s say “FORM 1 REGISTRATION” in box 4a?

I recently received a call from a client who had received his approved Form 1 for a self-manufactured suppressor.  The Form 1 application had been submitted pre-41F via eForms.

In reviewing the approved form in preparation for having his tube engraved, he was confused as to why box 4a did not contain his trust name, city, and state as the original manufacturer.

Instead, it simply said:

FORM 1 REGISTRATION, UNITED STATES

His confusion was increased by the fact that one of his friends had an approved Form 1 for an SBR that was also entered via eForms and box 4a on that approved form contained the name of the original manufacturer of the lower.

He was very concerned and had two questions that he wanted answered:

a)  Where did this come from and does it indicate that his approval is invalid; and

b)  If the approval is valid, how does this impact his engraving requirements.

Let’s address these in the order asked.

Where does this come from?

The short answer is that this is an artifact from the much-maligned and mercurial eForms system (which is no longer available to trust applicants post-41F).

As for why this is the case, in the ATF eForms Bulletin from December of 2013 entitled ‘EForms 101’ (embedded below), on the top of page 10 we see the following (emphasis added):

If the applicant is creating the firearm (for example, a silencer or finishing an ‘incomplete receiver’ (that is not yet a firearm)), the applicant will be the maker under the NFA and GCA. Thus, when completing the Line Item (Add Firearm) field, click the “By Manufacturer Code’ button and enter the code ‘FMI’. This code stands for ‘Form 1 Registration’ and the entry can continue. …

If the applicant is modifying an existing firearm, typically a standard configuration rifle into a short barreled rifle, the applicant will still be the maker under the NFA but there will be a manufacturer under the GCA, thus, the form requires the name of the original manufacturer of the firearm.

Download (PDF, 1.49MB)

So we see that, when using eForms as directed by the ATF and self-manufacturing a suppressor or building an SBR from an ‘incomplete’ (non-serialized) lower, the manufacturer was to be entered as ‘FMI’ which would result in box 4a containing “FORM 1 REGISTRATION, UNITED STATES”.

Alternatively, when using eForms to submit a Form 1 for an SBR build using an already serialized lower or upper, the manufacturer was selected from the list of licensed manufacturers and box 4a would then contain the name and address of the original manufacturer of the lower or upper.

I should note that, at various times during its service life, eForms did allow freeform entry of trust name in the manufacturers field and in almost all of these cases, the examiner would change the entry to FMI prior to approving the Form 1.  Conversely, all pre-41F paper Form 1’s will have the trust name and address in box 4a.

But these system-created variances do not in any way call into question the validity of these approved Form 1’s.  If the registrant’s information is correct, the serial number is correct and properly marked on the item, the making tax has been paid, and the ATF examiner has approved the Form 1, then the Form 1 is valid.

Good.  Now how does this affect my engraving requirements?

Let’s start by clarifying our terms.  When you are building an NFA item for yourself or your trust you are a maker, not a manufacturer.  If you look closely at the top of a Form 1 you will see that it is an Application to Make and Register a Firearm.

27 CFR 478.92 and 27 CFR 479.102 both lay out the requirements for placing identifying markings on items you make or manufacture.

Specifically, 27 CFR 479.102 requires that:

“You, as a manufacturer, importer, or maker of a firearm, must legibly identify the firearm as follows (emphasis added):

(2) By engraving, casting, stamping (impressing), or otherwise conspicuously placing or causing to be engraved, cast, stamped (impressed), or placed on the frame, receiver, or barrel thereof certain additional information.

(iii) Your name (or recognized abbreviation) and also, when applicable, the name of the foreign manufacturer or maker;”

Note that nowhere does it mention the specific contents of Form 1 box 4a.  The contents of this form are submitted for the purposes of informing the examiner processing the Form 1 application and not for the purpose of informing the engraving process.

The regulations are clear on what needs to be engraved.  When engraving a self-manufactured item with no original serial number, you need to engrave the following:

  • Trust Name, City, and State
  • Model
  • Serial Number
  • Caliber

 

Posted in 41F, 80% Lower, Administrative Law, ATF, BATFE, eForms, Engraving, Federal Law, Form 1, Manufacturing, SBR, Suppressors | Comments Off on Why do some approved Form 1’s say “FORM 1 REGISTRATION” in box 4a?

Do I lose my right to possess firearms if I live with a prohibited person?

This is a question that arises quite frequently.  “If my (husband / wife / boyfriend / girlfriend / parent / roommate) is a prohibited person does that mean I can’t have my legally owned firearms in my own home?

The answer, as is often the case with legal questions, is complicated.  Let’s start with a few basic facts:

  1.  Prohibited persons who have not had their gun rights restored are prohibited from possessing firearms or ammunition.
  2. Possession can be either actual or constructive.
  3. Constructive possession “exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others” and may be evidenced by “[p]roof that the person has dominion over the premises where the firearm is located”  U.S. v. Hadley, 431 F.3d 484, 507 (6th Cir. 2005)
  4. A non-prohibited person does not lose their right to possess firearms or ammunition simply because they choose to live with a prohibited person but they are potentially subject to prosecution for aiding and abetting the possession of the prohibited person if they do not properly store their items.  United States v. Huet, 665 F.3d 588 (3d Cir. 2012)

So … if you, as a law-abiding gun owner, wish to share a residence with a convicted felon (or any other category of prohibited person) then you will need to take great care to insure that they cannot be held to have either actual or constructive possession of any firearm or ammunition.

The safest way to do this is to store your firearms and ammunition in a gun safe and make sure the prohibited person does not know the combination nor have access to the keys if it is a keyed lock.

And do not forget the ‘and ammunition‘ part of the requirement.  Prohibited persons cannot have actual or constructive possession of firearms or ammunition.  Gun owners who are scrupulous about locking up their firearms may not be as stringent about ammunition storage.  In the case of a housemate who is a prohibited person this could have severe legal consequences.

I should also add that, while such a storage plan should allow a prohibited person to argue successfully that they did not have actual or constructive possession, it does not insure that a circumstance might not arise where they are charged with being in possession and are forced to incur the cost of defending themselves in court.

In addition, if the gun owner is careless, it is the prohibited person who faces the greatest threat of prosecution while only the gun owner has the power to insure that all items are properly stored.  All parties involved, especially the prohibited person, should understand the very real risks involved before moving in.


Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.

Posted in Criminal Law, Domestic Violence, Federal Law, Felons, Gun Rights Restoration, Mental Health, Prohibited Persons | Comments Off on Do I lose my right to possess firearms if I live with a prohibited person?

Do I lose my gun rights if I voluntarily seek mental health treatment?

The criteria for which types of mental health issues might give rise to a gun rights prohibition under either state or federal law is staggeringly complex.

For the average citizen, unfamiliar with researching and parsing legal language, the task of understanding this area of law can span the spectrum from daunting to impossible.

Perhaps even worse, it can lead to a proliferation of misunderstandings and misinformation which has the real possibility of criminal charges being filed against a confused applicant for answering one of the questions on a state or federal background check form incorrectly.

Because of this, I would encourage anyone who is uncertain about a given event in their past to contact me for a free consultation during which we can discuss the issue and determine what steps we need to take to clarify the situation.

However there are a few questions which remarkably have a clearly defined answer and one of the most common is this:

“If I voluntarily admitted myself to get mental health treatment, have I lost my gun rights?”

The answer is “No.  Not if you sought voluntary treatment entirely on your own.”  I have to add that caveat to the answer because, under state law, voluntarily admitting yourself for treatment after being held on a temporary detention order (TDO) still results in a prohibition.

However, if a TDO is not involved and a person admits themselves for treatment voluntarily (and is not subsequently committed or ruled to be mentally incompetent or incapacitated by a board, authority, or magistrate) then this does not trigger a prohibition under state or federal law.

The ATF provides a guidance sheet covering federal law which I have embedded below.  I have highlighted the relevant portion.

Download (PDF, 114KB)


Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer is specific to Virginia.  Other states may and do have laws which differ from this analysis.  In those cases you should consult an attorney licensed to practice law in that specific state.

Posted in 4473, ATF, ATF Guidance Letters, BATFE, Criminal Law, Federal Law, Mental Health, Purchasing Firearms, Virginia Law | Comments Off on Do I lose my gun rights if I voluntarily seek mental health treatment?

Governor signs bill allowing non-residents with a VA mental health prohibition to petition for gun rights restoration

In 1994, Paul Anthony Leone was convicted of felony possession of marijuana in Virginia.  This conviction stripped him of both his political rights and his right to possess firearms.

Years later, in 2012, Mr. Leone, now living in North Carolina, successfully applied to Governor McDonnell for a restoration of his political rights.  Having done so, he then petitioned the Virginia Beach Circuit Court for  a restoration of his firearm rights.

Over the objections of the Commonwealth’s Attorney the court granted his petition.  The Commonwealth subsequently appealed and the Supreme Court of Virginia ultimately reversed the order on the grounds that the clear text of 18.2-308.2(C) only allows petitioners to “petition the circuit court of the jurisdiction in which he resides.

Since Mr. Leone admittedly was no longer a resident of the Commonwealth, the court held in Commonwealth v. Leone, 286 Va. 147, 747 S.E.2d 809 (Va., 2013), that the Legislature had “ limited the territorial jurisdiction of circuit courts to adjudication of petitions for restoration filed by persons who reside within the territorial jurisdiction of the circuit court.

In short, the court held that non-residents need not apply.  At least not unless the Legislature were to revisit the issue.

During the 2015 legislative session, the Legislature did just that.  Delegate Fowler introduced HB 1666 to allow non-residents of the Commonwealth who were originally convicted in a Virginia court to petition the circuit court in “the circuit court of any county or city where such person was last convicted of a felony or adjudicated delinquent of a disqualifying offense” for restoration of their firearm rights.

The bill passed the House and Senate and was signed by the Governor on March 16th, 2015 and it went into effect on July 1st, 2015.

Unfortunately, Delegate Fowler’s bill only addressed gun rights restoration in the circuit courts for those suffering from a prohibition based upon a felony conviction.  However, that is not the only restoration mechanism in Virginia law.

Under  sections 18.2-308.1:1, 18.2-308.1:2, and 18.2-308.1:3 of the Code of Virginia, those who have lost their right to possess firearms based upon different types of mental health issues may also petition for restoration of those rights in the general district court of the jurisdiction where they reside.  As you can see, these sections suffer from the same jurisdictional language flaw as that which existed in  § 18.2-308.2(C) prior to July 1, 2015.

This year I drafted a bill to make the same correction to these three sections that Delegate Fowler’s bill made to  § 18.2-308.2(C) in 2015.  My local delegate Israel O’Quinn was kind enough to carry the bill despite my bringing it to him at the very last moment.  Thanks to his assistance, HB 2429 passed both the House of Delegates and the Senate with unanimous votes and was signed into law by the Governor on March 16th.

It will go into effect on July 1, 2017 and will allow non-residents whose mental health prohibition originated in Virginia to petition the general district court in the jurisdiction where their most recent mental health disqualifying event occurred.

You may be asking yourself why the anti-gun members of the House and Senate voted for a bill that can be categorized as pro-gun.  I believe it is because this bill does nothing to change the broad discretion that judges have when evaluating such cases.  It merely gives non-residents the ability to petition for a hearing on the matter.  This bill is not pro-gun so much as it is pro-due process and I suspect that is how it was seen by even anti-gun legislators.

Having said that, gun rights restorations based upon mental health dis-qualifiers are granted in far fewer cases than those based upon felony convictions and I do not anticipate this bill changing that in the slightest.  To maximize a petitioner’s chance of success, it will continue to be critical that they are represented by someone with a detailed knowledge of the process and the factors a judge will consider when making this important public safety decision.

If you are a Virginia resident or non-resident with a Virginia-based prohibition, I will be happy to speak to you about your chances for petitioning for the restoration of your rights in Virginia.

Posted in Criminal Law, Federal Law, Gun Rights Restoration, Mental Health, Virginia Law | Comments Off on Governor signs bill allowing non-residents with a VA mental health prohibition to petition for gun rights restoration

Do you have to register for ITAR if you are only manufacturing AR-15 uppers?

In my last post I answered the question of whether or not an FFL is required if one is only manufacturing and selling AR-15 uppers.

Almost immediately I was asked a follow-up question about whether or not a person who is only manufacturing uppers (and therefore not subject to the requirement of holding an FFL) would still need to register with ITAR.

For those of you unfamiliar with ITAR, I have a detailed article on the registration requirements of ITAR for those holding a manufacturing FFL.  However, here we are talking about manufacturing uppers without holding an FFL of any kind.

To evaluate this unique question, we start with the regulation which governs the registration requirements or the International Traffic in Arms Regulations (ITAR) which were promulgated to implement the provisions of the Arms Export Control Act of 1976 (AECA).  The relevant section (emphasis added) is as follows:

Any person who engages in the United States in the business of either manufacturing or exporting defense articles or furnishing defense services is required to register with the Directorate of Defense Trade Controls. For the purpose of this subchapter, engaging in the business of manufacturing or exporting defense articles or furnishing defense services requires only one occasion of manufacturing or exporting a defense article or furnishing a defense service. Manufacturers who do not engage in exporting must nevertheless register.

As for what constitutes ‘defense articles’, 22 USC 121 contains a complete listing under what is known as The United States Munitions List (USML).  The relevant section is contained in Category I of the list in subsections g and h (with reference to subsection a):

(a) Nonautomatic and semi-automatic firearms to caliber .50 inclusive (12.7 mm).

(g) Barrels, cylinders, receivers (frames) or complete breech mechanisms for the articles in paragraphs (a) through (d) of this category.

(h) Components, parts, accessories and attachments for the articles in paragraphs (a) through (g) of this category.

The short answer is that, despite not requiring an FFL, those seeking to manufacture uppers for the AR-15 platform are required to register for ITAR and pay the registration fee.

So … how bad is this fee?  It’s pretty bad.  If you are not engaged in exporting then you would be considered a ‘Tier 1’ registrant.  Therefore you would only have to pay the lowest possible fee.

A set fee of $2,250 per year is required for new registrants or registrants for whom the Directorate of Defense Trade Controls has not reviewed, adjudicated or issued a response to any applications during a 12-month period ending 90 days prior to expiration of the current registration.

I understand that this registration requirement imposes a significant barrier to entry into the firearms industry.  However, until we see federal action on the issue I will continue to educate my clients on the ITAR requirements.

Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.

Posted in AR-15, ATF, BATFE, Federal Law, ITAR, Manufacturing, Uppers | Comments Off on Do you have to register for ITAR if you are only manufacturing AR-15 uppers?

Do you need an FFL to manufacture and sell AR-15 uppers?

I was recently asked whether an FFL is required to manufacture and sell AR-15 uppers.

The answer is ‘no‘ but I want to caution readers that this would not necessarily be the case if the upper in question was for a different firearm.

In the AR platform, the lower is the serialized item (the actual firearm), whereas uppers are considered merely accessories and are not serialized.  Therefore, manufacturing and selling only the upper would not require an FFL (Federal Firearms License) since you are not dealing with an item considered to be a ‘firearm’ or ammunition.

This analysis would not be the same on certain other platforms.  For example, in the FN-FAL and Bushmaster ACR designs (to name just a few) the upper is the serialized ‘firearm’ and therefore an FFL would be required to manufacture or sell uppers for those designs.

Disclaimer:  Please note that this analysis is specifically focused on whether an FFL is required.  Individual states may place additional restrictions or requirements upon the manufacture of firearms components.

Posted in AR-15, ATF, BATFE, Federal Law, FFL Issues, Manufacturing, Uppers | Comments Off on Do you need an FFL to manufacture and sell AR-15 uppers?