Yes … you read that correctly. If you are involuntarily committed for mental health treatment, appeal that commitment, and win said appeal, it does NOT remove the prohibition the initial commitment placed upon your right to purchase, possess, and transport firearms.
How Did We Get Here?
In 2013, in the case of Paugh v. Henrico Area Mental Health 286 Va. 85 (Va. 2013), the Virginia Supreme Court ruled that the statutory framework requires a circuit court handling an appeal of an involuntary commitment to determine whether the appellant meets the commitment criteria on the date of the appeals hearing rather than reevaluating the evidence of the appellant’s mental status at the time of the commitment.
What this effectively meant was that almost all involuntary commitments could conceivably be overturned on appeal (and therefore gun rights would be restored) if the appellant had recovered sufficiently from the mental health crisis that lead to the initial commitment by the time the appeals hearing was held.
So What Happened Next?
In 2020, the Democrat-controlled General Assembly passed S684 to address the issue. However, they did not correct the errors in the statutory framework regarding the appeals process that required the ruling in the Paugh case. Instead, they modified § 18.2-308.1:3(A), which governs the prohibition that attaches when a person is involuntarily committed to make the results of any appeal immaterial.
They changed the relevant section from:
A. It shall be unlawful for any person (i) involuntarily admitted to a facility or ordered to mandatory outpatient treatment pursuant to § 19.2-169.2, (ii) involuntarily admitted to a facility or ordered to mandatory outpatient treatment as the result of a commitment hearing pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, (iii) involuntarily admitted to a facility or ordered to mandatory outpatient treatment as a minor 14 years of age or older as the result of a commitment hearing pursuant to Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1
A. It shall be unlawful for any person (i) involuntarily admitted to a facility or ordered to mandatory outpatient treatment pursuant to § 19.2-169.2, (ii) involuntarily admitted to a facility or ordered to mandatory outpatient treatment as the result of a commitment hearing pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, notwithstanding the outcome of any appeal taken pursuant to § 37.2-821, (iii) involuntarily admitted to a facility or ordered to mandatory outpatient treatment as a minor 14 years of age or older as the result of a commitment hearing pursuant to Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1, notwithstanding the outcome of any appeal taken pursuant to § 16.1-345.6,
In other words, anyone who is involuntarily committed and wishes to have their firearms rights restored, regardless of the status of any subsequent appeal, must petition the court pursuant to § 18.2-308.1:3(B) to remove the prohibition.
One final note … the modification of the statute was silent as to how to handle those persons who had won appeals prior to the modification going into effect and who had therefore been removed from the mental health database maintained by the Virginia State Police. I do not believe that there will be any effort to re-add those persons to the prohibited list but anyone in such a position should be aware of the possibility.
This guide will walk you through every step of the process to move individually owned NFA items to your NFA Trust 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.
The Form 4 is available for download from the ATF website. You should 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’.
Form 4 – Page 1
Box 1 will usually be checked for $200. The one exception is when the item you are transferring is an Any Other Weapon (AOW). In that case, the amount checked will be $5.
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”).
Box 3a should contain your name (exactly as it appears on the current (individual) tax stamp) and your current mailing address.
Box 3b should contain your email address.
Box 3c should contain your telephone number.
Box 3d and 3e should usually be left blank.
Boxes 4a through 4h should be copied directly from the current individual tax stamp.
Unless you own the item as a C&R FFL holder, then boxes 5, 6, 7, and 8 should be left blank.
Sign your name in Box 9. Important: The ATF requires all signatures to be in either blue or black ink.
Box 10 should contain your name (as it appears on the current tax stamp) followed by “- SELF”.
Box 11 should contain the current date.
Form 4 – Page 2
Box 12 should contain the information about your 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
On the top of Page 3 sign your name and add “as trustee” at the end then enter the date in the accompanying field. Important: The ATF requires all signatures to be in either blue or black ink.
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. Important: The ATF requires all signatures to be in either blue or black ink.
A Completed Sample of Form 4
The following sample form illustrates what a completed Form 4 transferring an individually owned item into a trust should look like.
A copy of the new ‘responsible person’ form 5320.23 (Form 23) will need to be completed by each ‘responsible person’ of the trust listed in Box 22 of the Form 4.
Important Note: Your fellow ‘responsible persons’ will find it much easier to complete this form if they have a copy of the completed Form 4 in front of them.
The Form 23 may be downloaded from the ATF website. It is well designed with fillable fields which auto-transfer the data to additional copies (this only works if you use Adobe Acrobat Reader instead of your browser). I will instruct you where to send each copy later in this guide.
You, and any Joint Trustees listed on Schedule B of your trust, should download the form and each one complete it according to the following instructions:
Form 23 – Page 1
In Box 1 you should check the box for Form 4.
In Box 2 you should copy the trust name and address from Box 2a on the Form 4.
In Box 3a you should put your full legal name and your home address.
In Box 3b you should put your telephone number.
In Box 3c you should put your email address.
If you have changed your name at any time during your life, including being married, then Box 3d should contain all other names you have ever used.
In Box 3e you will affix a 2×2 passport-quality photo taken within the last year (on the ATF copy of the form only). As I noted here, many NFA dealers offer in-store photography options so you should check with your local gun store. Failing that, Walgreens is a common provider of this service in many towns.
In Box 4a, you should copy the type-of-firearm from Box 4b of the Form 4.
In Box 4b you should copy the name and location from Box 4a of the Form 4.
In Box 4c you should copy the model from Box 4d of the Form 4.
In Box 4d you should copy the caliber and UOM from Box 4c of the Form 4.
In Box 4e you should copy the serial number from Box Box 4g of the Form 4.
Box 5 should contain your Social Security Number. This is an optional field but including it should dramatically decrease your processing time.
Box 5 should also contain your date of birth.
Box 6a should contain your ethnicity
Box 6b should contain your race
Box 7 should contain the information regarding the CLEO whose jurisdiction includes the home address in Box 3a of this form.
Form 23 – Page 2
You will need to answer the questions in Boxes 8, 9, 10, and 11 as they apply to you, the person completing the form. In the example below, I am completing them as I personally would answer them but you will need to answer them truthfully as they apply to you!
Note: If you have been convicted of a felony but have since had your gun rights restored then the instructions state you should answer question 8b as ‘No’. However, I strongly advise you to attach a copy of your restoration paperwork to the Form 23 when submitting it to the ATF.
You will sign the certification following Box 11. (More about this in the signing section below)
You should enter the date in the field to the right of the signature block.
A Completed Sample of Form 23
The following sample form illustrates what a completed form should look like.
Once you have completed the Form 23, you will need to print it. It will print 2 copies. You should now affix your photo to the ATF copy of the Form 23 only. (DO NOT USE STAPLES)
Signing the Completed Form 23
The only place you will need to sign the Form 23 is following the certification statement below Box 11. You do NOT add “as trustee” to your signature on this form.
Do not forget to sign both copies of the Form 23.
Important: The ATF requires all signatures to be in either blue or black ink.
Notifying Your CLEO
The Settlor of the trust will need to mail his or her CLEO (From Box 7 of 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 Box 7 of 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.
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.
For those unfamiliar with a C&R license, it is a federal firearms license which allows the holder to directly purchase those firearms that are classified as ‘curios or relics’ without undergoing an individual background check for each item.
So what kinds of firearms are we talking about? To quote the ATF website linked above:
To be recognized as C&R items, firearms must fall within one of the following categories:
Firearms which were manufactured at least 50 years prior to the current date, but not including replicas of such firearms;
Firearms which are certified by the curator of a municipal, state, or federal museum which exhibits firearms to be curios or relics of museum interest; and
Any other firearms which 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.
Earlier today, I received an email from a client who wanted to sell a C&R firearm to a C&R license holder (both were Virginia residents). He wanted to know whether he could do so without conducting the background check since the buyer was a license holder.
Let’s look at the language of the new law (emphasis added):
§ 18.2-308.2:5. Criminal history record information check required to sell firearm; penalty.
A. No person shall sell a firearm for money, goods, services or anything else of value unless he has obtained verification from a licensed dealer in firearms that information on the prospective purchaser has been submitted for a criminal history record information check as set out in § 18.2-308.2:2 and that a determination has been received from the Department of State Police that the prospective purchaser is not prohibited under state or federal law from possessing a firearm or such sale is specifically exempted by state or federal law. The Department of State Police shall provide a means by which sellers may obtain from designated licensed dealers the approval or denial of firearm transfer requests, based on criminal history record information checks. The processes established shall conform to the provisions of § 18.2-308.2:2, and the definitions and provisions of § 18.2-308.2:2 regarding criminal history record information checks shall apply to this section mutatis mutandis.The designated dealer shall collect and disseminate the fees prescribed in § 18.2-308.2:2 as required by that section. The dealer may charge and retain an additional fee not to exceed $15 for obtaining a criminal history record information check on behalf of a seller.
While the initial language seems to indicate that it reaches all ‘persons’ selling firearms, the highlighted section incorporates the definitions and provisions of § 18.2-308.2:2 which provides in relevant part that:
H. The provisions of this section shall not apply to (i) transactions between persons who are licensed asfirearms importers or collectors, manufacturers or dealers pursuant to 18 U.S.C. § 921 et seq.; (ii) purchases by or sales to any law-enforcement officer or agent of the United States, the Commonwealth or any local government, or any campus police officer appointed under Article 3 (§ 23.1-809 et seq.) of Chapter 8 of Title 23.1; or (iii) antique firearms or curios or relics.
This subsection clearly exempts those licensed as Curio and Relic collectors from the provisions of § 18.2-208.2:2, which is statutorily incorporated as equally applicable to the requirements of § 18.2-308.2:5.
Therefore, a Virginia resident may sell a C&R firearm to a C&R license holder without conducting the background check that would otherwise be required in a private sale.
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. If you have further questions about this topic, please feel free to contact me for a free consultation.
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