The current application form for a Virginia CHP misstates the requirements for certain restoration scenarios

Posted on July 26, 2016 by John Pierce

Magnifying_GlassIn assisting one of my clients I have discovered several errors in the current version of the Application for a Concealed Handgun Permit (SP-248) that I believe need to be corrected.

The issues are on page 2 in the Form 2 section (see the embedded form below). That section deals with the various mental health dis-qualifiers for a Concealed Handgun Permit (CHP) under § 18.2-308.09 subsections 2, 3, and 4.

Applicants are directed to one of five sub-parts in that section based upon their answers to questions 8b, 8c, and 8d.

Each of those sub-parts appropriately asks if the applicant has had his or her rights restored pursuit to the applicable provisions of § 18.2-308.1:1, § 18.2-308.1:2, or § 18.2-308.1:3.

However, in each of the sub-parts, the SP-248 then goes on to ask if 5 years have elapsed “since the date of restoration.”  This is an incorrect statement of the law in every case.

– In § 18.2-308.09(2), the General Assembly specifies that for those whose original prohibition was based upon § 18.2-308.1:1, the five-year period begins when they were “discharged from the custody of the Commissioner.”

– In § 18.2-308.09(3), the General Assembly specifies that for those whose original prohibition was based upon § 18.2-308.1:2, the five-year period begins when their “competency or capacity was restored pursuant to § 64.2-2012.”

– In § 18.2-308.09(4), the General Assembly specifies that for those whose original prohibition was based upon § 18.2-308.1:3, the five-year period begins when they were “released from commitment.”

The form, as currently printed, misstates the requirements for applying for a CHP and places the applicant in a position where answering the question truthfully will almost certainly result in their application being erroneously denied.

I have forwarded my concerns to the Virginia State Police for review and possible correction.  I will keep my clients informed as I get updates.

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Posted in CHP, Concealed Handgun Permit, Gun Rights Restoration, SP-248, Virginia Law, Virginia State Police | Comments Off on The current application form for a Virginia CHP misstates the requirements for certain restoration scenarios

Governor McAuliffe announces he will ‘expeditiously’ sign individual restoration orders

Posted on July 25, 2016 by John Pierce

Gov_SigFollowing Friday’s decision by the Virginia Supreme Court striking down Governor McAuliffe’s blanket restoration of political rights, Governor McAuliffe was quick to issue an official response.

For those clients who need their voting rights restoration in order to apply for restoration of their firearm rights, the Governor’s response contained some good news.

He stated that “The men and women whose voting rights were restored by my executive action should not be alarmed. I will expeditiously sign nearly 13,000 individual orders to restore the fundamental rights of the citizens who have had their rights restored and registered to vote. And I will continue to sign orders until I have completed restoration for all 200,000 Virginians.”

It appears as if those who actually registered to vote following the April 22nd executive order should expect to quickly receive an individualized restoration from the Governor. If you fall into this category then you simply need to wait.

For those who fall into the second category of those who purportedly had their rights restored based upon the April 22nd order but did not actually register to vote the path forward is not yet clear.  While the Governor indicated he will continue to sign orders for each one until he has restored everyone, there is no indication as to whether a request may be made for expedited processing.

The Governor’s Restoration of Rights page has not yet been updated to reflect the ruling but I expect we will receive more guidance over the next few days.  I will keep my clients informed as details emerge.

Posted in Executive Orders, Gun Rights Restoration, Virginia Law, Virginia Supreme Court | Comments Off on Governor McAuliffe announces he will ‘expeditiously’ sign individual restoration orders

The Virginia Supreme Court has struck down Governor McAuliffe’s blanket restoration of political rights

Posted on July 22, 2016 by John Pierce

VASCIn a ruling issued late today, the Virginia Supreme Court has struck down the Governor’s blanket restoration of the political rights of over 206,000 convicted felons who had completed their sentences and been released from supervised probation or parole.

The 63 page ruling, included below, will require the Virginia Department of Elections to “cancel the registration of all felons who have been invalidly registered.”

While I have not yet had time to review the ruling, I can immediately imagine a number of other questions that need to be asked:

  • I have had at least one client, whose political rights were purportedly restored based upon this order, become a notary public.  What is the status of the documents that she has notarized?
  • If any person whose political rights were purportedly restored based upon this order has served upon a jury, will that cast a shadow upon any resulting verdicts?

I will refrain from asking any further questions until I have had a chance to read the entire opinion but the key question for my clients is this:

“How does this impact my ability to petition for the restoration of my gun rights?”

Here is the short answer … if your political rights were restored as part of the April 22nd blanket restoration then you will have to re-apply for individual restoration and wait for that individualized executive order to be issued before we can submit your petition to the courts.

The good news (assuming that there is nothing in the opinion that would prevent such action) is that Governor McAuliffe has indicated that if he were to receive this ruling that his office was prepared to quickly issue individualized restoration orders for everyone covered by his blanket order.

I will be following up as I get a chance to read the order and the Governor has a chance to respond to the ruling.

The Entire Ruling

Download (PDF, 314KB)

Posted in Executive Orders, Gun Rights Restoration, State Constitutional Provisions, Virginia Law | Comments Off on The Virginia Supreme Court has struck down Governor McAuliffe’s blanket restoration of political rights

The complete guide to the new Form 4

Posted on July 22, 2016 by John Pierce

Filling_Forms

This guide will walk you through every step of the post-41F Form 4 process and make it as easy as possible.  The fields referenced are based upon the September 2019 revision of the Form 4.  As new revisions of the form are released, I will update this guide.

Getting Started

In almost all cases the dealer you are buying the NFA item from will already have the Form 4s with their portion completed before you arrive.  So I will only focus on those fields that need to be completed by the transferee (buyer).

FFL PRO-TIP:  If you do need a copy of the new Form 4, it is available for download from the ATF website.  If you save it to your computer and open it with Adobe Reader (rather than editing it in your browser) then it will auto-copy the data you type into the ‘ATF Copy’ to the ‘ATF Copy 2’ and the ‘CLEO Copy’.  You can also save a copy with your FFL info typed in to speed up the processing of future applications.

Form 4 – Page 1

  • Box 2a should contain the name of your trust (exactly as it appears on the header of the trust document) and the mailing address for the location where the item will initially be stored.
  • In Box 2a you should also check the box for TRUST.
  • Box 2b should contain the name of the county in which the physical address from 2a is located.  Note: Virginia is one of the few states where there are independent cities that are not part of the surrounding counties. If you live in an independent city (like Alexandria for example) then put your city in 2b (e.g.  “Alexandria City”).

Form 4 – Page 2

  • Box 12 should contain the information about the applicants CLEO.
  • Box 13 should have the name of the trust in the first blank and ‘all lawful purposes‘ in the second blank.
  • Box 14, 15, 16, and 17 should be left blank.  For trust applicants, these background questions and photos will be part of a separate form for each ‘responsible person’ (Form 23) for which I will provide instructions further down in this guide.

Form 4 – Page 3

  • Box 21 should contain the number of responsible persons on the trust.  I have a detailed article here laying out which persons on your trust are considered ‘responsible persons’ but the short answer is that you are a responsible person and so are those people listed on Schedule B of your trust.  If you want to remove joint trustees from your Schedule B before submitting your application I have a guide to doing so here.
  • Box 22 should contain your full legal name and the full legal names of all those on Schedule B of your trust.
  • Box 23 should contain your method of payment and, if you are paying with a credit card, the information about the credit card and the amount being paid.  You only need to sign in Box 20 if you are paying with a credit card.  (More about this in the signing section below)

A Completed Sample of Form 4

The following sample form illustrates what a completed Form 4 should look like.

Download (PDF, 1.75MB)

Signing the Completed Form 4

Each copy of the completed Form 4 should be signed in the following places:

  • On the top of Page 3 sign your name and add “as trustee” at the end.
  • Only sign on Page 3 Box 23 if you are paying with a credit card.

Important:  The ATF requires all signatures to be in either blue or black ink.

Turning to the Form 23

I have a comprehensive guide to the Form 23 here.

Notifying Your CLEO

The Settlor of the trust will need to mail his or her CLEO (from the Form 23) the CLEO copy of the Form 4 and the CLEO copy of their Form 23.

All other responsible persons will only need to mail his or her CLEO (from their Form 23) the CLEO copy of their Form 23.

Important Note:  The CLEO copy of the Form 23 does not have a photo affixed.  You should also not send fingerprint cards to the CLEO.

Fingerprint Cards

Each Form 23 to be sent to the ATF will need to be accompanied by fingerprints of the responsible person taken on 2 FBI (FD-258) fingerprint cards.  As I noted here, many NFA dealers offer in-store fingerprinting so you should check with your local gun store.  Failing that, you should be able to get fingerprinted at your local law enforcement agency.  No matter who does the fingerprinting, you should make sure that they use the correct FD-258 cards.

Mailing the Completed Form 4 Packet to the ATF

Now we need to prepare the packet to mail to the ATF.  Note that If you are building more than one NFA item, you will need a separate packet for each item.

This packet should include:

  • The first 2 copies of the completed Form 4 with original signatures in blue or black ink on both copies.  (These are marked ATF Copy and ATF Copy 2 on the bottom of the forms)
  • The ATF Copy of the Form 23 for each responsible person of the trust with photos affixed and fingerprint cards included. (DO NOT STAPLE)
  • A single copy of your notarized trust instrument (including all schedules and amendments)
  • Payment for the amount of the tax ($200) payable to BATFE (unless you entered credit card info on the Form 4)

The entire packet should be mailed to:

National Firearms Act Division
Bureau of ATF
PO Box 5015
Portland, OR 97208-5015

If this guide leaves any questions unanswered, please feel free to contact me.

Posted in 41F, 41P, BATFE, CLEO Notification, Fingerprinting, Form 23, Form 4, NFA Transfers, NFA Trusts | Comments Off on The complete guide to the new Form 4

Purchasing a firearm after your gun rights have been restored following a mental health adjudication

Posted on July 22, 2016 by John Pierce

Confusing_DirectionsUPDATED JANUARY 2023 TO ACCOUNT FOR UPDATED LANGUAGE IN THE 4473 AND SP-65 

In Virginia, there are a number of mental health adjudications that can lead to a prohibition on the right to purchase, possess, and transport firearms.

These include the following:

All four categories allow for a person thus impacted to petition the General District Court in the jurisdiction where they reside for restoration of their gun rights after they have recovered from the issue which gave rise to the adjudication.

If you have had your gun rights restored following one of the aforementioned mental health adjudications then you are able to once again legally purchase firearms, both in private transactions and from a licensed dealer.

However, there is a question on the ATF Form 4473 (2023 version linked) which you must answer correctly or your purchase will be denied.

When completing this form, question 21h (in the 2023 version of the 4473) asks about mental health prohibitors.

Your initial inclination would be to answer ‘Yes’ since this is truthful answer to the question presented. But that is not what you should do.

The header of the form instructs applicants to see the attached instructions for each question. There we find that there are exceptions to this question.

Under the NICS Improvement Act of 2007, when a state court grants a qualified relief petition, the adjudication or commitment that rendered the person ineligible to possess or acquire firearms is “deemed not to have occurred” for purposes of federal law (see § 105(b) of the NICS Improvement Act of 2007)

A person who has had his or her firearm rights restored by a qualified state process may answer ‘No’ to question 11f on the ATF form 4473 when applying to purchase a firearm.

However, to insure that there could never be a question about the honesty or intent of the applicant, I advise my clients to answer the question ‘No‘ and then put ‘Rights Restored‘ in the margin beside the question.

IMPORTANT NOTE:  When completing the form 4473, the Social Security Number (SSN) field is optional, and many people choose to not provide it as a matter of principle.  In your case, to make sure they are matching your application to the record showing your restoration, I strongly recommend that you provide your SSN.

In Virginia, there is also a state form (SP65) which you will have to complete in addition to the ATF form 4473. Question 10 on the state form asks a similar question:

… and has a similar exception.

So you would answer this question ‘No’ as well if your rights have been restored pursuant to one of the code sections mentioned in the exception.

Even with your rights restored, you should know that you may be delayed when attempting to make a purchase.  In case there is ever any question, I would also strongly suggest carrying a copy of the restoration order with you both when you apply for, and when picking up, the firearm.

Finally, I want to reiterate that, while this restoration removes both your federal and Virginia disabilities, it does not necessarily remove the prohibitions in any other state. Before possessing a firearm in any state other than Virginia you should consult with an attorney licensed to practice law in that state to determine whether that state has a prohibition that would apply to your situation, whether that state recognizes gun rights restoration proceedings from other states and, if so, whether Virginia’s process meets their 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 is specific to Virginia.

Posted in 4473, ATF, BATFE, Criminal Law, Federal Law, Gun Rights Restoration, Mental Health, Virginia Law | Comments Off on Purchasing a firearm after your gun rights have been restored following a mental health adjudication