Virginia convictions which meet the federal definition of ‘misdemeanor crime of domestic violence’

Perhaps the least-understood federal firearms prohibitions are those codified at 18 U.S.C. 922(d)(9) and (g)(9).

These two sub-sections generally prohibit the acquisition, possession, and transportation of firearms by any person “who has been convicted in any court of a misdemeanor crime of domestic violence.

While Virginia has its own statute which governs Assault and Battery Against a Family or Household Member (§ 18.2-57.2), the federal prohibition has a broader definition of “misdemeanor crime of domestic violence” which is found in 18 U.S.C. 921(a)(33).

That definition tells us:

the term “misdemeanor crime of domestic violence” means an offense that—

(i) is a misdemeanor under Federal, State, or Tribal law; and

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

The term ‘element‘ in the context of criminal law is a legal term with a specific meaning. The simple version is that an ‘element’ of a particular crime is a fact that must be proven in order to secure a conviction.  With this in mind, it is easy to interpret this definition as requiring a conviction under a statute which has, as an element, a requirement that the victim be ‘a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim‘.

But that isn’t how the courts interpret this statute.  The Supreme Court addressed this exact issue in the 2009 case of United States v. Hayes (482 F.3d 749).  They held that the statute need not include the existence of a “domestic relationship” as an element of the crime.

With that in mind, the following chart illustrates the process by which a person can evaluate whether a given conviction satisfies the federal definition (click on the image for a larger, more readable version).

So what does all this mean for Virginians?

It means that a person does not have to be convicted under Virginia’s Assault and Battery Against a Family or Household Member statute (§ 18.2-57.2) in order to be prohibited under the federal definition.

A misdemeanor conviction for any crime which involves the use (or attempted use) of physical force or the threatened use of a deadly weapon would suffice.  This might include simple assault and battery, sexual battery, unlawful wounding, or brandishing, just to name the most obvious.

However, in order for any of these to trigger the prohibition, the crime had to have been committed against one of the enumerated parties (spouse, parent, children, etc).  This leads us to the obvious question of how a given misdemeanor would be documented as involving said party.

The government’s current position on the discernment of these types of ‘factual predicates’ in varied state courts (as detailed in Attorney General Opinion, Opinions from Office of Legal Counsel, Vol. 31, May 17, 2007) is that “[t]he answer to that question may be gleaned from the record of conviction or the supporting record of proceedings in the court of conviction.”  They go on to say that “[p]olice reports [alone] cannot answer that question.

So … a person in Virginia who was charged with Assault and Battery Against a Family or Household Member but who subsequently negotiated a plea agreement to simple assault might still suffer under the federal prohibition if the conviction record shows that the victim of the assault matched one of the enumerated relationships from the federal definition.

If you have any concerns that you might be in this situation, feel free to contact me for a free consultation and to discuss what we might do to verify your status.

Posted in ATF, Background Checks, BATFE, Criminal Law, Domestic Violence, Federal Law, Prohibited Persons, Purchasing Firearms, SCOTUS, US Supreme Court, Virginia Law, Virginia State Police | Comments Off on Virginia convictions which meet the federal definition of ‘misdemeanor crime of domestic violence’

Non-violent felons in Virginia may now own certain black powder firearms

Last year I wrote an article admonishing those with felony convictions to not believe the oft-repeated rumor that felons can still possess, and hunt with, black powder firearms.

In that article I noted that, while ‘antique firearms’ are not prohibited to felons under federal law, Virginia state law still (at that time) prohibited it.

However, during the 2017 legislative session, Senator Mark Obenshain introduced a bill to correct that discrepancy (SB1533). His bill was subsequently signed into law by the governor and, with little fanfare, went into effect on July 1, 2017.

With the passage of this bill, § 18.2-308.2, which is the code section denying convicted felons the right to possess firearms generally, now has a subsection C2 which reads:

C2. The prohibitions of subsection A shall not prohibit any person other than a person convicted of an act of violence as defined in § 19.2-297.1 or a violent felony as defined in subsection C of § 17.1-805 from possessing, transporting, or carrying (i) antique firearms or (ii) black powder in a quantity not exceeding five pounds if it is intended to be used solely for sporting, recreational, or cultural purposes in antique firearms. For the purposes of this subsection, “antique firearms” means any firearm described in subdivision 3 of the definition of “antique firearm” in subsection G of § 18.2-308.2:2.

So let’s break this down.  Does this mean that any felon can own any black powder firearm?  The answer is a resounding No!

There are two limitations on the new law that felons will still need to review carefully before rushing out to buy a black powder firearm:

Limitation #1)  Are they truly considered a non-violent felon under the new law?

In the new subsection we are given two code references to define ‘act of violence’ and ‘violent’ felony.

Under § 19.2-297.1, an “act of violence” means any one of the following crimes (whether convicted as a principal, accessory before the fact, or in conspiracy):

a. First and second degree murder and voluntary manslaughter under Article 1 (§ 18.2-30 et seq.);

b. Mob-related felonies under Article 2 (§ 18.2-38 et seq.);

c. Any kidnapping or abduction felony under Article 3 (§ 18.2-47 et seq.);

d. Any malicious felonious assault or malicious bodily wounding under Article 4 (§ 18.2-51 et seq.);

e. Robbery under § 18.2-58 and carjacking under § 18.2-58.1;

f. Except as otherwise provided in § 18.2-67.5:2 or § 18.2-67.5:3, criminal sexual assault punishable as a felony under Article 7 (§ 18.2-61 et seq.); or

g. Arson in violation of § 18.2-77 when the structure burned was occupied or a Class 3 felony violation of § 18.2-79.

Under § 17.1-805, a ‘violent felony’ encompasses an incredible number of criminal offenses.  I will not enumerate them each individually here because it would render the article too long but I will point out that the list does contain offenses which a reasonable person might not consider to be violent, such as ‘damaging a railroad signal’.

If you are a convicted felon who has not had their firearm rights restored and are planning to purchase an ‘antique firearm’ based upon this new legislation, I would urge you, in the strongest possible terms, to review your convictions against this list before doing so.

Limitation #2) Does a particular black powder firearm meet the definition of ‘antique firearm’?

We see in the statutory language above that the definition of ‘antique firearm’ can be found in subsection G of § 18.2-308.2:2 which states that:

“Antique firearm” means:

1. Any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898;

2. Any replica of any firearm described in subdivision 1 of this definition if such replica (i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition or (ii) uses rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and that is not readily available in the ordinary channels of commercial trade;

3. Any muzzle-loading rifle, muzzle-loading shotgun, or muzzle-loading pistol that is designed to use black powder, or a black powder substitute, and that cannot use fixed ammunition. For purposes of this subdivision, the term “antique firearm” shall not include any weapon that incorporates a firearm frame or receiver, any firearm that is converted into a muzzle-loading weapon, or any muzzle-loading weapon that can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breech-block, or any combination thereof; or

4. Any curio or relic as defined in this subsection.

“Curios or relics” means firearms that are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons. To be recognized as curios or relics, firearms must fall within one of the following categories:

1. Firearms that were manufactured at least 50 years prior to the current date, which use rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and that is not readily available in the ordinary channels of commercial trade, but not including replicas thereof;

2. Firearms that are certified by the curator of a municipal, state, or federal museum that exhibits firearms to be curios or relics of museum interest; and

3. Any other firearms that derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event. Proof of qualification of a particular firearm under this category may be established by evidence of present value and evidence that like firearms are not available except as collectors’ items, or that the value of like firearms available in ordinary commercial channels is substantially less.

The section I have underlined above is of particular concern to me as an attorney.  There are a number of black powder firearms (mostly revolvers) which have commercially available drop-in conversion kits that allow them to fire fixed ammunition.  Under this definition, once such a conversion kit becomes commercially available for a given firearm it would no longer meet the definition and would still be barred from ownership and use.

Once again, I would caution those who are planning to take advantage of this change in the law to shop carefully when selecting their ‘antique firearm’.

Conclusion

This is a good bill that goes a long way toward correcting the discrepancy that previously existed between Virginia and federal law on this topic.  However, it requires those wishing to avail themselves of its benefits to do a significant amount of research beforehand.  Failure to do so could place said person in danger of a charge of ‘felon in possession’.

I will end by noting that, if you have a non-violent felony, I would encourage you to contact me for a free consultation to discuss petitioning the court for a full restoration of your firearm rights.

Posted in Black Powder Firearms, C&R, Criminal Law, Curio and Relic, Federal Law, Felons, Gun Rights Restoration, Prohibited Persons, Virginia Law | Comments Off on Non-violent felons in Virginia may now own certain black powder firearms

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?

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