The Law Office of John Pierce, Esq.

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

Posted on July 22, 2016 by John Pierce

UPDATED 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

Can you own body armor after having your gun rights restored?

Posted on July 21, 2016 by John Pierce

Because of the imperfect intersection of local, state, and federal laws, there are a number of legal questions that arise when a felon has their gun rights restored.

Today’s question is whether a person who was convicted of a felony and subsequently had their gun rights restored can purchase or possess body armor.

The legal answer (as always) is “maybe.”

Let’s start with the standard disclaimer that I am only licensed to practice law in the Commonwealth of Virginia and nothing I say should be considered valid in any other jurisdiction.

Under Virginia Law

Turning first to the state level. Under Virginia law, there is no prohibition on the purchase or possession of body armor by convicted felons regardless of whether or not a person has had their gun rights restored.

In fact, there is only a single code section which even mentions body armor and that is §18.2-287.2 which prohibits the wearing of body armor while committing a crime.

Since I am assuming that the questions from my clients involve using the body armor for lawful purposes then there is no bar at the state level.

Under Federal Law

Under federal law, the relevant prohibition is at 18 U.S. Code § 931. This statute prohibits the purchase, ownership, or possession of body armor by anyone who has been convicted of a ‘crime of violence’.

There is a single exception for those who have written documentation from his or her employer that “the … purchase, use, or possession of body armor was necessary for the safe performance of lawful business activity; and … the use and possession … were limited to the course of such performance.”

As to whether or not a specific crime is considered a ‘crime of violence’, this is defined in 18 U.S. Code § 16 which states:

The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

To return to the original question …

If you have been convicted of a felony then whether or not you have had your gun rights restored is irrelevant to the question of whether or not you may purchase or possess body armor for lawful purposes.

If your crime was a ‘crime of violence’ (as defined above) then you may not purchase, own, or possess body armor.

If your felony was anything other than a crime of violence then there is no legal bar to your purchase or possession of body armor for lawful purposes.

Posted in Body Armor, Criminal Law, Federal Law, Gun Rights Restoration, Virginia Law | Comments Off

Form 1 Guide: Ultimate Walkthrough

Posted on July 16, 2016 by John Pierce

eForms is Back!

The Complete Form 1 Guide

The instructions below are still valid for the post-41F paper process.

However, with the return of eForms for Form 1 submissions, you should take advantage of the drastically shorter approval times by following my Form 1 Guide for eForms here.

It’s time to submit a new Form 1. But 41F is fully in effect. But fear not. This Form 1 guide will walk you through every step of the new process. Despite the complexity, I will try and make it as easy as possible.

Getting the Form 1

This is very important! In the past, even when the ATF released a new version of the Form 1 or Form 4, they would generally still accept applications using the older version of the form. That is no longer the case! Any application not on the new form will be rejected!

The new blank Form 1 is available on the ATF website. The form itself is well designed with fillable fields which auto-transfer the data to two additional copies (based upon testing, it seems that you must use Adobe Acrobat Reader for these features to work reliably). I will instruct you where to send each copy later in this Form 1 guide.

You should download the form and then complete it according to the following instructions:

Form 1 Guide – Page 1

In Box 1 you should check option a.
In Box 2 you should check the box for TRUST.
Box 3a should be left blank.
Box 3b 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.
Box 3c should be blank unless the mailing address in Box 3b is a PO Box. In that case, the physical address should be entered here.
Box 3d should contain the name of the county in which the physical address from 3b/3c 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 3d (e.g. “Alexandria City”).
Box 3e should contain the best number at which to reach the Trustee or Settlor submitting the application.
Box 3f should contain your email address.
Box 4a should contain the manufacturer’s name and the location in which it was manufactured. It is critical that you enter them exactly as they are engraved on the lower! However, if you have a foreign manufactured firearm, you must also be careful to identify the name and location of the original manufacturer and not the importer (which might also be engraved on the lower). If you are manufacturing your own suppressor, or your own SBR based on an un-serialized 80% lower, then your trust is the manufacturer and you should put the trust name, city, and state here.
Box 4b should contain either Silencer, Machinegun, Short-Barreled Rifle, Short-Barreled Shotgun, AOW, or Destructive Device. There have been unconfirmed reports of the ATF rejecting applications for putting ‘Suppressor’ instead of ‘Silencer’ in this field.
Box 4c should contain the initial caliber of the item being built. Do not put ‘Multi’ as the caliber even if that is what is engraved on the lower. While you may have multiple uppers for your registered lower, you need to declare a specific primary configuration in this application and you need to retain the ability to return to this configuration. This value should contain the number and the unit of measure such as .30 Cal, 9mm, or 12 Gauge.
Box 4d should contain the model number of the item. Once again, it is critical that you enter them exactly as they are engraved on the lower! If you are manufacturing your own suppressor, or your own SBR based on an 80% lower, then you will need to assign a model name.
Box 4e should contain the length of the barrel in inches. If you are building a suppressor then you should put ‘N/A’ in this field.
Box 4f should contain the estimated overall length of the firearm in inches. I say estimated because you cannot assemble the firearm in advance to do precise measurements. Having said that, the overall length should be estimated based upon an extended stock.
Box 4g should contain the serial number of the item. At the risk of repeating myself, it is critical that you enter the serial number exactly as it is engraved on the lower including any alpha-numeric characters! If you are manufacturing your own suppressor, or your own SBR based on an 80% lower, then you will need to assign a serial number. Many people simply start with 001 and proceed in series as they build additional items.
Box 4h should contain the information that you are going to engrave on the NFA item (Trust Name, City, State). In the past, I advised that this box be left blank but recently the ATF has been indicating that they want this completed.
Box 4i should be answered ‘All lawful purposes’.
Box 4j should be left blank unless you are actually building a Destructive Device. I frequently get questions about this box from clients who are confused by the fact that there is a box for ‘Firearm’. You do NOT need to check this box unless you are building a Destructive device that happens to be a firearm (Any weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter (.50 inches or 12.7 mm), except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes)
Box 4k should be answered ‘No’ unless you are one of the extremely rare applicants who is actually reactivating a firearm.
Boxes 5 and 6 should both be left blank.
You should sign in Box 7. (More about this in the signing section below)
In Box 8, you should put your full legal name and follow it with ‘- SETTLOR AND TRUSTEE’ as the title.
Box 9 should contain the date the application is completed.

Form 1 Guide – Page 2

Box 10 should contain the information about the applicant’s CLEO.
Boxes 11 through 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 the Form 1 guide.
Sign and date at the bottom of Page 2. (More about this in the signing section below)

Form 1 Guide – Page 3

Box 18 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 19 should contain your full legal name and the full legal names of all those on Schedule B of your trust.
Box 20 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 1

The following sample form illustrates what a completed Form 1 should look like.

Download (PDF, 3.8MB)

Printing The Completed Form 1

Once you have completed the Form 1, you will need to print it. Per the instructions on the latest version of the form, it is no long required that you print the completed form double-sided!

It will print 3 copies. I will cover where to send each of these copies later in this guide.

Signing the Completed Form 1

Each copy of the completed Form 1 should be signed in the following places:

On Page 1 Box 7 sign your name and add “as trustee” at the end.
On the bottom of Page 2 sign the Makers Certification with your name and add “as trustee” at the end.
Only sign on Page 3 Box 20 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 1 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 are planning to 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 1 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 1 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)
Payment for the amount of the tax ($200) payable to BATFE (unless you entered credit card info on the Form 1)

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, ATF, BATFE, CLEO Notification, Form 1, Form 23, NFA Trusts, Responsible Persons | Comments Off

Reducing your trust’s ‘responsible persons’ after 41F

Posted on July 14, 2016 by John Pierce

“What can I do to my trust to reduce the number of people who need to be fingerprinted and photographed?”

Now that 41F is actually in effect, I am getting dozens of emails with some version of this question.

The good news is that I believe there is a way to reduce the number of people who need to be fingerprinted and photographed while still allowing them temporary access to the items for hunting and sporting purposes:

IMPORTANT: This advice is specific to trusts that I have drafted. If you have a different trust, please consult with the attorney who drafted your trust.

The solution revolves around understanding which parties to a trust are affected by the new rule so let’s take a quick moment to review that question.

Under 41F, those persons who need to be fingerprinted, photographed, and notify their CLEO are known as ‘responsible persons’. I have a detailed article here that breaks down my analysis of which parties on a trust are ‘responsible parties’ and which ones are not.

The summary version is this:

Settlor – Responsible Person
Joint Trustee – Responsible Person
Successor Trustee – No
Beneficiary – No

Therefore, our goal is simple. If we are going to submit a new Form 4 or Form 1 application then we need to remove as many Joint Trustees as possible.

That, in and of itself, is quite easy. When I originally emailed you your trust, it was accompanied by a Word document containing blank schedules. If you have lost that document, I still have it in your client file and will be glad to email you a replacement copy.

If you do not have Microsoft Word or would prefer my assistance, I would be glad to make the changes for you.

In either case, we simply use that template to print a new version of Schedule B with the selected Joint Trustees removed. Once printed, you should:

Sign and date it with the current date (not the date that is on the other schedules)
Make as many copies of the signed and dated Schedule B as you have copies of the trust
(including those held by joint or successor trustees and by beneficiaries)
Replace that page in all copies of the trust

Incidentally, it works the exact same way if you want to add a new Joint Trustee to the trust. And that brings us to one of the questions that I have answered literally hundreds of times since 41F was published … “Do new trustees have to be fingerprinted and photographed when they are added to the trust?”

The answer is “Not unless you have a pending application.”

The ATF addressed this in their 41F FAQ. The relevant portion notes that:

Q: Will new responsible persons, added after the making or transfer, be subject to the same requirements?

A: Once an application has been approved, no documentation is required to be submitted to ATF when a new responsible person is added to a trust or legal entity. However, should a responsible person change after the application has been submitted, but before it is approved, the applicant or transferee must contact the NFA Branch for guidance.

So … while it is possible to remove joint trustees and then re-add them at a later date once all pending applications are approved, it certainly is not an ideal solution and deprives your friends and family of months of legal access to your NFA items.

But that is not the solution I am proposing for my clients. Since Joint Trustees are ‘responsible persons’ while Beneficiaries are not, can we make the current Joint Trustees into Beneficiaries with the ability to possess NFA items at the discretion of the Settlor? I believe under both state trust law, and the clear text of 41F, that we can.

Let start with the general premise that, in my trusts, Beneficiaries have no power to compel or control any aspects of the trust. I make this clear in Section 5.1 where it states in part:

“My Trustee has the sole and absolute discretion to … deny a beneficiary benefits”

In 5.2 however, I note that Beneficiaries may have temporary possession of trust assets at the discretion of the Trustee (which in a trust with no Joint Trustees will be the Settlor). That section states:

“My Trustee must have actual or constructive possession of trust property at all times. My Trustee may document reasonable, temporary transfers of trust property to a beneficiary”

Taken together, I believe that under 41F, the Settlor may issue letters of authorization to Beneficiaries to possess items for temporary hunting or sporting activities (I will be posting a sample letter shortly). This does not grant the same level of “treat it like you own it” possessory access that a Joint Trustee would have. However, it will satisfy the needs of 99% of those persons who would have historically been listed as Joint Trustees, and most importantly, does not require them to be fingerprinted, photographed, or to provide CLEO notification.

So how do we add the former (now removed) Joint Trustees to our list of beneficiaries? We return to our Word template I provided. In Schedule D, most of you will have language that looks something like the following:

Upon the death of the Settlor, 100% of trust assets are to be distributed to John Andrew Pierce. If he predeceases the Settlor or is unable to take possession for any reason then 100% of trust assets should be distributed to Joshua William Pierce. …

What we are going to do is leave the post-death section alone and add a section above it that will read like the following:

During the life of the Settlor, the following shall be beneficiaries of the trust with benefits available only at the sole and complete discretion of my Trustee: First Middle Last1, First Middle Last2, and First Middle Last3.

The resulting Schedule D will then describe beneficiaries both during the life and following the death of the Settlor as illustrated below:

During the life of the Settlor, the following shall be beneficiaries of the trust with benefits available only at the sole and complete discretion of my Trustee: First Middle Last1, First Middle Last2, and First Middle Last3.

Upon the death of the Settlor, 100% of trust assets are to be distributed to John Andrew Pierce. If he predeceases the Settlor or is unable to take possession for any reason then 100% of trust assets should be distributed to Joshua William Pierce. …

I want to stress that none of us in the legal community know exactly how the ATF will handle the various strategies we are each proposing for moving forward. So I would advise my clients to only make such a change as-and-when they are ready to submit a new Form 4 or Form 1 (guides to the new forms will be posted shortly).

That will serve the dual purposes of not overwhelming me with requests to review changes all at once and giving the ATF a chance to approve or reject the theory. We simply do not know how they will interpret a given instrument in the light of that loosely worded definition of ‘responsible person’.

As I have stated before, this entire analysis, and the resulting advice, may change completely if the ATF chooses to ignore the clear text of the regulation as they have already done where the 24 month exemption clause is concerned.

If you are one of those people who are ready to file a new Form 1 or Form 4 and would like me to assist you with making these proposed changes (knowing the uncertainty that will face the initial applicants), or would just like me to review them after you have made them, feel free to contact me.

Posted in 41F, 41P, ATF, BATFE, CLEO Notification, Fingerprinting, NFA Trusts | Comments Off

Who is a ‘responsible person’ under 41F?

Posted on July 14, 2016 by John Pierce

“Just who are these ‘responsible persons’ the ATF keeps talking about?”

This is the key question that NFA Trust attorneys have been talking about since the final version of 41F was released earlier this year.

After all, we need to know the bounds of the rule so that we can advise our clients on the best way to reduce the impact of 41F on their collection activities.

The text of the rule has this to say about ‘responsible persons’ where trusts are concerned:

“[T]he term “responsible person” for a trust or legal entity includes those persons who have the power and authority to direct the management and policies of the trust or legal entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust or entity.”

They go on to further ‘clarify’ by adding that:

“In the case of a trust, those with the power or authority to direct the management and policies of the trust include any person who has the capability to exercise such power AND possesses, directly or indirectly, the power or authority under any trust instrument, or under State law, to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for or on behalf of the trust.”

The language is clearly intended to cast a wide net and make as many parties to the trust as possible subject to the requirements of the rule. However, you will note in both cases, the key element is the power to “direct the management and policies of the trust … to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for or on behalf of the trust.”

Boiling this down further, the key element that makes someone a ‘responsible person’ is power. Regardless of the title they have on the trust:

If a person can purchase an NFA item on behalf of the trust then they are a ‘responsible person’.
If a person can sell trust assets then they are a ‘responsible person’.
If a person can compel possession of trust assets then they are a ‘responsible person’.

Based upon my analysis of the regulation, on the trusts I provide my clients, only the Settlor themselves and the Joint Trustees laid out on Schedule B meet these requirements.

I have been asked by several people whether Successor Trustees (Schedule C) are considered ‘responsible persons’ and my considered opinion is that they are not. Successor Trustees are those who may, at some unspecified time in the future, take over to handle the distribution of trust assets to the beneficiaries. However, they do not have any power currently on the trust and may never serve.

As for beneficiaries, even if they have been granted the ability to possess trust assets by a trustee, unless the distribution instructions on Schedule D grant them the power to compel possession or distribution while the Settlor is still alive then I believe that they do not meet the definition of ‘responsible persons’ either.

Based upon this breakdown, I am currently working on an article which will walk my clients through their options to manage ‘responsible persons’ on their trust. I will link it here when it is complete.

Final Note: This analysis, and the resulting advice, may change if the ATF chooses to ignore the clear text of the regulation as they have already done where the 24 month exemption clause is concerned (I will be writing more about that later).

Posted in 41F, 41P, ATF, BATFE, Form 23, NFA Trusts, Responsible Persons | Comments Off