Avoiding "Constructive Possession" while building?


PDA






Arizona_Mike
May 10, 2013, 02:17 PM
Waiting on my stamps (checks cashed in early Feb).

Anxious to do barrel work (cutting/facing/threading) without falling afoul of the US v. Thompson-Center and ATF ruling 2011–4 standard "A firearm, as defined by the National Firearms Act (NFA), 26 U.S.C. 5845(a)(3), is made when unassembled parts are placed in close proximity in such a way that they . . . serve no useful purpose other than to make . . ."

I've put my Lupara receiver and my SBR lower in my safe deposit box which happens to be near my work and former residence in a different town 20 miles away. My Rem 870 receiver with mag tube are too large and I am thinking about storing it at my daughter's house about three miles away from my current residence. I could also pay to upgrade to a larger box for a year.

Any advice? I have read about a "under same roof" test. What about one part in the car and one part in the house? What about my tool shed? I could fit my Rem 870 barrel in the safe deposit box once it is cut but would need some place to keep my 870 receiver while I am cutting and refinishing.

Mike

If you enjoyed reading about "Avoiding "Constructive Possession" while building?" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!
Sam1911
May 10, 2013, 02:23 PM
You're getting into dodging between the grey lines, and no one can tell you precisely where you step over one.

Long and short of it is, if it is in your possession/control AND the only way that part can be used is in an unlawful construction, then you should not proceed. Now, if those parts are in someone else's control, yeah, that should be fine. Out in your garage? :scrutiny: No.

Look at it this way: If you wanted to cut those barrels TODAY, you should have gotten your Forms in earlier. If you find yourself impatient now, you simply should have gotten moving on the process sooner! You waited until a few months ago to file the forms, you can wait until they come back to cut your barrels.

Arizona_Mike
May 10, 2013, 02:26 PM
I am not looking at grey lines and never said anything about my garage. I want to do this legally with absolutely no question that I have broken the law.

I am aware that waiting is an option. My questions was how to do it legally without waiting. I'm not sure why you are pointing out counter-factuals.

Mike

Sam1911
May 10, 2013, 02:29 PM
Sorry, tool shed. Same deal. There's no "under one roof" rule.

I didn't say you were looking FOR grey lines. You're looking for black and white lines, and those are hard to define.

Heck, you could maybe take your receivers and lock them in a safe and give your wife the key and make sure you don't have ANY access to that key or copies of it. That would probably be clear of the grey areas. But I wouldn't do it. No real long-term benefit, and I wouldn't be comfortable trying to establish that they weren't still in my possession.

JShirley
May 10, 2013, 03:36 PM
You could also make sure you have all the parts to turn your receiver into a handgun. The Thompson case made the point that parts that could be assembled into a NFA firearm were not necessarily illegal, so long as they could also be assembled into a legal firearm.

For an AR-15, I believe you just need a cover for the buffer tube to make a less than 16" upper into a federally legal handgun (there are still some states that regulate scary-looking handguns). Of course, adding a stock would make the weapon an SBR.

John

Arizona_Mike
May 10, 2013, 03:57 PM
Only $54 to almost double my safe deposit box size for a year but totally forgot about the pistol option! That makes some room in the box. The SBR is for a PCC with a Glock lower (origionaly a pistol). I'll just take the vert forgrip off the upper and be totally legal. Do one barrel (caliber) at a time and before doing the last barrel, put the stock in the safe deposit box.

Mike

Sam1911
May 10, 2013, 06:34 PM
Who has access to the safe deposit box? You? How does that make you not in possession of...?

Aaron Baker
May 10, 2013, 09:16 PM
No one can conclusively answer any of these questions for you. That's because there's a statute, and then there's a "legal theory" of constructive possession. It's not part of a statute, so the contours are only defined by case law.

If there's not a case out there where a specific person was prosecuted for having the exact parts you have in the exact places you intend to store them, there's no answer. And to have gotten to the point where the case was published and became "case law," the guy would have had to go to trial, lose, appeal, and then have the appellate court actually publish their opinion in his case (which they don't always do).

I'm not trying to be a jerk. I'm saying that realistically, you're asking for black and white boundaries in an area of law that has very few legal precedents already set. And where the biggest practical question is "how exactly would this end up in federal court?"

I cannot advise you to do anything that would violate the law as I understand it, so I will refrain from giving you any advice at all. However, many people in your exact situation, when thinking through the implications of their actions, ask themselves: why would the ATF be checking up on me? How would they gain access to my house or safety deposit box? Why would they be interested in prosecuting me?

If you're a tax-dodging white supremacist who lives in a compound with sister-wives and builds illegal machine guns for fun, you shouldn't have an AR15 pistol with a stock laying next to it when the ATF's agents bust down your gate throwing flashbangs.

If you're a normal guy who has already applied for a tax stamp, intends to keep his receivers in a bank safety deposit box and work on the barrels at home? I can't answer that question for you from a "what exactly is legal?" perspective and neither can anyone else. But you may be able to decide for yourself what you think the acceptable level of risk of prosecution is for you personally.

Good luck.

Aaron

Arizona_Mike
May 11, 2013, 12:01 PM
Who has access to the safe deposit box? You? How does that make you not in possession of...?
I do of course. Again "close proximity" is the issue not ownership.


ATF ruling 2011–4: "A firearm, as defined by the National Firearms Act (NFA), 26 U.S.C. 5845(a)(3), is made when unassembled parts are placed in close proximity in such a way that they . . . serve no useful purpose other than to make . . ." (http://www.google.com/url?sa=t&source=web&cd=1&ved=0CCsQFjAA&url=http%3A%2F%2Fwww.atf.gov%2Ffiles%2Fregulations-rulings%2Frulings%2Fatf-rulings%2Fatf-ruling-2011-4.pdf&ei=22mOUeueL6WUiQLF_ID4Bw&usg=AFQjCNFnFijvRL7fJG5KmVS7iNY1vgOVHg&sig2=MMkUrHOOKi9DYhBWDjSJjw)

Mike

bamawrx
May 11, 2013, 01:05 PM
Remember that law enforcement is always trying to prove intent. Its pretty clear that you are breaking your back trying NOT to break the law.

I think you have been given some pretty good options.

1 Remove some items from your possession
2 Don't perform work until stamp is in hand
3 Acquire parts to comply with Thompson case law

Some internet NFA guys will tell you the helicopters are warming up soon as you even think of doing something. Nah. Be smart, pick one of the three good options you have there and get a move on. And once your stamp comes in how about posting a pic of your project.

giggitygiggity
May 11, 2013, 02:52 PM
Not trying to hijack your thread, but say I have two AR lower receivers and I want to make an SBR using one of the lower receivers. Would I have to get both of the lower receivers registered as SBR since I have the potential to take the SBR upper and move it between a registered and unregistered lower receiver? Would having one of the lowers not registered be considered constructive posession? Thanks.

Sam1911
May 11, 2013, 03:56 PM
Would having one of the lowers not registered be considered constructive posession?

No, because you have (at least) one way all those parts can be assembled into a legal firearms.

smkummer
May 12, 2013, 09:11 AM
How many of us own a long gun and a hack saw? In 10 minutes most anyone could easily saw through my H&R single barrel shotgun. ATF is selected to enforce and "make rulings" on gun laws that us law abiding folks try to follow when no hard rules are even printed. So then we have "rulings", which evolve as time goes by. For what it is worth, in the NFA printed publication that once was available from ATF, it discussed the issue of the H&R handy gun. Which basically stated that the receiver of the gun was just that, a receiver. Of course the handy gun could originally be either a handgun or a short barreled shotgun so owning just the receiver removed it from the provisions of the NFA if it was never registered. If someone else then had just the barrel, it was that, just a barrel.

GoingQuiet
May 17, 2013, 01:23 AM
Waiting on my stamps (checks cashed in early Feb).

Anxious to do barrel work (cutting/facing/threading) without falling afoul of the US v. Thompson-Center and ATF ruling 20114 standard "A firearm, as defined by the National Firearms Act (NFA), 26 U.S.C. 5845(a)(3), is made when unassembled parts are placed in close proximity in such a way that they . . . serve no useful purpose other than to make . . ."

I've put my Lupara receiver and my SBR lower in my safe deposit box which happens to be near my work and former residence in a different town 20 miles away. My Rem 870 receiver with mag tube are too large and I am thinking about storing it at my daughter's house about three miles away from my current residence. I could also pay to upgrade to a larger box for a year.

Any advice? I have read about a "under same roof" test. What about one part in the car and one part in the house? What about my tool shed? I could fit my Rem 870 barrel in the safe deposit box once it is cut but would need some place to keep my 870 receiver while I am cutting and refinishing.

Mike
I don't think constructive possession is an issue, but I would not cut anything down until approved forms come back.

I would buy parts however.

MasterSergeantA
May 17, 2013, 12:09 PM
No one can conclusively answer any of these questions for you. That's because there's a statute, and then there's a "legal theory" of constructive possession. It's not part of a statute, so the contours are only defined by case law.

If there's not a case out there where a specific person was prosecuted for having the exact parts you have in the exact places you intend to store them, there's no answer. And to have gotten to the point where the case was published and became "case law," the guy would have had to go to trial, lose, appeal, and then have the appellate court actually publish their opinion in his case (which they don't always do).

I'm not trying to be a jerk. I'm saying that realistically, you're asking for black and white boundaries in an area of law that has very few legal precedents already set. And where the biggest practical question is "how exactly would this end up in federal court?"

I cannot advise you to do anything that would violate the law as I understand it, so I will refrain from giving you any advice at all. However, many people in your exact situation, when thinking through the implications of their actions, ask themselves: why would the ATF be checking up on me? How would they gain access to my house or safety deposit box? Why would they be interested in prosecuting me?

If you're a tax-dodging white supremacist who lives in a compound with sister-wives and builds illegal machine guns for fun, you shouldn't have an AR15 pistol with a stock laying next to it when the ATF's agents bust down your gate throwing flashbangs.

If you're a normal guy who has already applied for a tax stamp, intends to keep his receivers in a bank safety deposit box and work on the barrels at home? I can't answer that question for you from a "what exactly is legal?" perspective and neither can anyone else. But you may be able to decide for yourself what you think the acceptable level of risk of prosecution is for you personally.

Good luck.

Aaron
Aaron's answer made me spray coffee all over the computer keyboard, but he summed it up very well. If you are not already on the ATF's radar, you are probably not taking a serious risk. Keeping things separate should cover you. Waiting for the stamps to come back before starting is always a good idea.

If you enjoyed reading about "Avoiding "Constructive Possession" while building?" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!