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?

The ATF is effectively reversing their position on stabilizing braces once again

In the Fall of 2014, I wrote about a series of actions on the part of the ATF that lead me to believe that they were attempting to modify their interpretation of the stabilizing brace issue.

On January 16, 2015 the ATF issued an open letter in which they confirmed my fears.  In that letter, they put forward the position that merely shouldering a pistol equipped with a stabilizing brace constituted a ‘redesign’ of the firearm resulting in an unregistered short-barreled rifle (SBR).

That left owners and manufacturers of stabilizing braces in a state of uncertainty. Thankfully, several players in the industry challenged the open letter. On January 5, 2017, the counsel for SB Tactical, LLC sent a letter to ATF Acting Director Thomas Brandon requesting reconsideration of the position taken in the January 16, 2015 open letter.

The ATF officially responded to this request on March 21, 2017 in a letter in which they claimed they were not reversing their previous position but in effect did just that. The entire letter is embedded below but the key elements from the letter are:

With respect to stabilizing braces, ATF has concluded that attaching the brace to a handgun as a forearm brace does not ‘make’ a short-barreled firearm because … it is not intended to be and cannot comfortably be fired from the shoulder.

Therefore, an NFA firearm has not necessarily been made when the device is not re-configured for use as a shoulder stock — even if the attached firearm happens to be fired from the shoulder.

To the extent the January 2015 Open Letter implied or has been construed to hold that incidental, sporadic, or situational ‘use’ of an arm-brace (in its original approved configuration) equipped firearm from a firing position at or near the shoulder was sufficient to constitute a ‘redesign,’ such interpretations are incorrect and not consistent with ATF’s interpretation of the statute or the manner in which it has historically been enforced.

They did go on to add that actions which would still constitute re-design include taking affirmative steps such as:

  • Permanently affixing the brace to the end of a buffer tube at a length that would not allow its use as an arm brace;
  • Removing the arm strap; or
  • Otherwise undermining its ability to actually be used as an arm brace.

I encourage my clients to read the entire letter below so they understand the limits of what I hope is the ATF’s final position.  But as of now, the stabilizing brace is once again a viable alternative for occasionally shouldering your AR pistol.

Download (PDF, 154KB)

Posted in Administrative Law, AR Pistols, ATF, ATF Guidance Letters, BATFE, SBR, Short Barreled Rifles, Stabilizing Brace | Comments Off on The ATF is effectively reversing their position on stabilizing braces once again

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