Inheriting a firearm with a defaced serial number

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sequins

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Hello friends,

Recently my best friend lost his father rather suddenly to complications of his advanced age. I was close with his father as well, and though he did not leave me his revolver explicitly my friend felt that he meant for me to have it and he wanted to gift it to me as he settled the estate. I attended the memorial a few days ago and afterwards when he was gifting me the revolver I noticed that the serial number was scratched out- that is to say it was purposefully defaced with the intent of obscuring the serial number. The serial number is still clearly legible despite the scratching, and I asked my friend why the hell his dad would do such a thing? He told me that the gun was actually stolen at one point and recovered with the serial number in that condition, I'm unsure if a police report was filed and I think this is a case of "it's complicated".

I am extremely reticent to receive such a firearm, but it really means a lot to me to hold onto such a meaningful memento from the old man. He was a real friend and mentor to me and having his gun would really be special to me, I shed more than a few tears at the memorial.

I would post a picture but I declined to take possession at the time and neither he nor I know what to do. Should we throw it in the river? Cut it in half with a welder? Can we re-etch the serial numbers and make it legal? Like I said I don't want to discard it unless I absolutely have to, but I can't possess an illegal gun and I doubt the old man really understood how serious of an issue it is to have such a firearm.

What do you think I should do?
 
If it were me, I would buy the exact same make and model of revolver, swap the grips (maybe the internals as well) so you have an actual memento of your friend, then get rid of the revolver with the defaced S/N.

It is just not worth the potential legal issues you could get in. Even if it is perfectly legal in the shape it isi n (you said you could make out the S/N) you could still get arrested by a cop that doesn't know that it is legal (if it is, I don't know for sure) and have to defend yourself in court.
 
@Frank Ettin has formerly said:
  1. It is a violation of federal law to possess a gun with a defaced serial number. Specifically 18 USC 922(k) provides (emphasis added):
    ....(k) It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce....

  2. Under 18 USC 924, the penalty for possession of a gun on which the manufacturer's serial number has been removed, obliterated or altered is up to five years in federal prison and/or a fine. Also, since that is a felony, a conviction would mean a lifetime loss of gun rights.
So I guess it depends on whether the defacement (or alteration) was legally successful, which might be a slightly different question than whether it was practically successful.
 
I attended the memorial a few days ago and afterwards when he was gifting me the revolver I noticed that the serial number was scratched out- that is to say it was purposefully defaced with the intent of obscuring the serial number. The serial number is still clearly legible despite the scratching,

I would post a picture but I declined to take possession at the time and neither he nor I know what to do.

What do you think I should do?

"to possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered..."

Since the serial number has not been removed, obliterated (to remove utterly from recognition - Merriam-Webster) or altered (the serial number is still clearly legible) it doesn't meet this definition.

Since you are concerned I would take a picture of the gun and the serial number and send it to the BATF asking for a ruling in writing.

Why is what State the poster lives in always a secret when asking a legal question? In a very restrictive state such as California or New Jersey I would contact that State's Attorney General Office with the letter showing BATF approval and get a ruling from them just to avoid being tripped up somehow by State law.

Personally I would clean up the worst of the scratches and reblue it. If I was really worried I would fill the numbers in with some white or gold paint.
 
As long as the SN# is legible, you are ok. I work in a state crime lab in the firearms section. We deal with obliterated SN#s all the time.
 
That's the key fact here. The "defacing" was unsuccessful. You're OK.
....Since the serial number has not been removed, obliterated (to remove utterly from recognition - Merriam-Webster) or altered (the serial number is still clearly legible) it doesn't meet this definition.....
As long as the SN# is legible, you are ok......
So you three have looked at the gun and concluded that the serial number is perfectly legible? And you three have also reviewed applicable court decisions?

Well let's see what some federal courts of appeal, affirming convictions for violations of 18 USC 922(k), have said:

  • U.S. v. Horey, 36 F.3d 1106 (C.A.10 (Okl.), 1993):
    ...We turn to defendant's argument that his conviction for violating 18 U.S.C. 922(k) was also based on insufficient evidence. Defendant argues the government failed to sufficiently show that the revolver's serial number was removed, obliterated, or altered. He asserts the statute does not reach serial numbers that are still readable.

    Police officers testified that the serial number was obliterated. In addition, an expert in firearms and tool mark examination testified the revolver's serial number was partially obscured or obliterated. The examiner also noted that it was possible one or two additional serial numbers were completely obliterated. Based on the clear language of 922(k), we reject defendant's argument that the statute does not reach the firearm recovered by the police in this case. The evidence is sufficient to sustain the conviction, and we AFFIRM the jury's verdict....

  • See also U.S. v. Adams, 305 F.3d 30 (Fed. 1st Cir., 2002)(emphasis added):
    ...As for the evidence, that was clearly sufficient once it is understood that any alteration that works against legibility is enough; ...The pistol was presented to the jury. The case agent testified at trial that he could read the six digits of the serial number but with difficulty. At oral argument, Adams's counsel asked that this court examine the original pistol, and we now report the results.

    ...

    Of course, judgment as to the degree of impairment was for the jury. But a reasonable jury could easily conclude that this pistol had been altered so as to make it appreciably more difficult to read the serial number. Indeed, a reasonable jury could hardly reach any other conclusion...
So we can't know.

What we do know is (1) it's a serious federal crime to possess a gun on which the serial number has been "removed, obliterated, or altered"; and (2) at least in the First Circuit it doesn't necessarily take much for a serial number to be considered "removed, obliterated, or altered" for the purpose of violating 18 USC 922(k).
 
There has been one case I'm aware of where the ATF issued a new serial number for a firearm that had the serial number defaced because of historical significance.

http://www.foxnews.com/us/2012/09/2...de-federally-compliant-will-be-auctioned.html

Bonnie Parker of Bonnie and Clyde fame, her .38 caliber Colt revolver was recovered by a Texas Ranger years ago but had it's serial number defaced and couldn't be offered for sale at an auction. But the ATF recognized the historical significance of the Colt and issued a serial number so the Colt could be sold.

"ATF special agents were then able to obtain an ATF-issued serial number — ATF7620091 — for RR Auction, which was later stamped onto the revolver’s receiver and making it federally compliant for an auction on Sept. 30, when it is expected to fetch upward of $200,000."


The ATF made this statement

"ATF understands the importance of this historically significant firearm,” Guy Thomas, Special Agent in Charge of the ATF’s Boston field division, said in a news release. “We are pleased we were able to work in partnership with RR Auction to make the gun legally compliant.”

So there was a happy ending for all concerned...
.
 
So you three have looked at the gun and concluded that the serial number is perfectly legible? And you three have also reviewed applicable court decisions?

Well let's see what some federal courts of appeal, affirming convictions for violations of 18 USC 922(k), have said:

  • U.S. v. Horey, 36 F.3d 1106 (C.A.10 (Okl.), 1993):

  • See also U.S. v. Adams, 305 F.3d 30 (Fed. 1st Cir., 2002)(emphasis added):
So we can't know.

What we do know is (1) it's a serious federal crime to possess a gun on which the serial number has been "removed, obliterated, or altered"; and (2) at least in the First Circuit it doesn't necessarily take much for a serial number to be considered "removed, obliterated, or altered" for the purpose of violating 18 USC 922(k).
Please read what I wrote. I never said that I looked at the gun in question. I just stated that if the SN# was legible. I know just a little more then your average bear about gun laws. I have arrested a few for violating them. Now days all the work I do is firearms related.
You also need to dig deep into anyone the Feds prosecute on gun charges. Most often there are multiple violations or other reasons for going after the person.
 
You may also be able to send it back to the manufacturer (if they are still in business) to have the serial number restored. Give them a call. I know Marlin would apply new serial numbers to old center-fire Levermatics which snuck out the factory doors without them.....could be an option for you.
 
Please read what I wrote. I never said that I looked at the gun in question. I just stated that if the SN# was legible.....
Actually, what you wrote was ambiguous. You wrote:
As long as the SN# is legible, you are ok. ....
That could be read as an affirmative statement that the serial number is legible and therefore the OP is in the clear. In that case you'd be relying on the OP's characterization. Or it could be interpreted as conditional. Of course in English a conditional statement is properly made in the subjunctive ("As long as the SN# were legible, you would be ok....").

In any case, your comment still punts on the question of what legible means for the purposes of a violation of 18 USC 922(k). Legibility is in the eye of the beholder, so what might be legible to you (or the OP) still might not be sufficiently legible to avoid a sojourn in federal prison. That's why one needs to look at case law.

In fact, the two cases I cited were about legibility. The defendants claimed that the serial numbers were legible, and that they could not then be convicted of violating 18 USC 922(k). The juries disagreed and convicted, and the courts of appeal affirmed the convictions.

....I know just a little more then your average bear about gun laws.....
It's nice that you think so, but you're still not a lawyer.

...You also need to dig deep into anyone the Feds prosecute on gun charges. Most often there are multiple violations or other reasons for going after the person.
Irrelevant, even if you could support that conjecture with evidence. Other acts wouldn't change the elements of a violation of 18 USC 922(k) nor affect what a prosecutor needs to prove to convict on that charge.
 
Actually, what you wrote was ambiguous. You wrote:
That could be read as an affirmative statement that the serial number is legible and therefore the OP is in the clear. In that case you'd be relying on the OP's characterization. Or it could be interpreted as conditional. Of course in English a conditional statement is properly made in the subjunctive ("As long as the SN# were legible, you would be ok....").

In any case, your comment still punts on the question of what legible means for the purposes of a violation of 18 USC 922(k). Legibility is in the eye of the beholder, so what might be legible to you (or the OP) still might not be sufficiently legible to avoid a sojourn in federal prison. That's why one needs to look at case law.

In fact, the two cases I cited were about legibility. The defendants claimed that the serial numbers were legible, and that they could not then be convicted of violating 18 USC 922(k). The juries disagreed and convicted, and the courts of appeal affirmed the convictions.

It's nice that you think so, but you're still not a lawyer.

Irrelevant, even if you could support that conjecture with evidence. Other acts wouldn't change the elements of a violation of 18 USC 922(k) nor affect what a prosecutor needs to prove to convict on that charge.
I would have to guess (estimate or suppose (something) without sufficient information to be sure of being correct.) that you have little to law enforcement background. Before a lawyer or prosecutor gets to deal with something criminal, the person has to be arrested. But this brings up a whole new topic and gets away from the OPs topic.
And no, no one here has seen the SN# on the gun the OP is referring to. Just as we have not seen the guns in the court cases you pointed out.
If you really want to get right down to it, you are not allowed to even cover up the SN# on a gun with tape or paint.
I deal with evidence guns, over 1000 a year. My department recovers a lot of stolen guns and our DA's office trys to get the stolen guns back to their owners. One of the problems is that many of them have had their SN numbers messed with. If the numbers are legible, the owner can get it back, if they are questionable they don't get retuned, but all guns are released with a court order.
But if it makes things better I will Rephrase my first statement. If the SN # is legible to the average caring person, without enhancement, you should be ok.
 
....I deal with evidence guns, over 1000 a year. My department recovers a lot of stolen guns and our DA's office trys to get the stolen guns back to their owners. .....
So what? Your personal experiences in your agency are not an appropriate basis upon which to offer an opinion on a question of law.

And as stated in the Guidelines for the Legal Forum:
....Comments and opinions should be based on legal principles and supported where appropriate with reference to legal authority, including court decisions, statutes and scholarly articles.....
 
So you three have looked at the gun and concluded that the serial number is perfectly legible?
I was going by the facts as presented by the OP. That's all any of us here can do. He said the number was "clearly legible." If that's not the case obviously the legal result would be different.
 
It's nice that you think so, but you're still not a lawyer.
Are you, sir? If so, what state bar associations are you a member of?

However, nothing in the Legal Forum is intended to be, nor should it be considered, legal advice.
Quite right. The OP could have an A-OK letter from the BATF and still have a fight on his hands if a local municipality wanted to make an issue of it.
I think this is a case of "it's complicated".
The OP clearly understands this is a possibility. I believe, however, that he is asking for advice on the MORAL course of action, legal complications notwithstanding.
My 2 cents: if the serial # cannot be restored/repaired by the manufacturer or a 'smith, then pass on the gun and find another way to honor his memory. I doubt he would want you losing sleep over it.

And no, I'm not a lawyer either. :)
 
Are you, sir?......

Yes, I am a lawyer and practiced for 30+ years before retiring in 2007. I remain an active member of the California Bar and continue to fulfill my mandatory continuing education requirements.

While posts aren’t legal advice, bad information will be dealt with. Persistent bad information will be dealt with harshly.

See the Legal Forum Guidelines I linked to in post 13.
 
A little more info from the OP might help. Are you in the same state? If so, does your state allow the private transfer of a handgun without an FFL? I know this is irrelevant to the legal question but it has some practical value that might be discusses later.

Now a question for Frank or another of the lawyers: whom should one consult to determine if the SN of a firearm is, in fact legible? ATF? State Police? Local prosecutor?
 
NIGHTLORD40K writes:

You may also be able to send it back to the manufacturer (if they are still in business) to have the serial number restored. Give them a call. I know Marlin would apply new serial numbers to old center-fire Levermatics which snuck out the factory doors without them.....could be an option for you.

...though this would require taking possession of it first, the legality of which is the OP's primary concern.
 
Thanks for the thoughtful opinions and advice gentlemen. I'm inclined to ask my friend to take a picture of the firearm and serial numbers in question and ontact the BATF by mail requesting an opinion, but is there any risk in doing so?

I'm concerned they'll say "that's illegal, and you're under arrest!" Citing my own photography as the evidence. Is that just paranoid? I'd love to simply get a ruling from the rule-setting authority but I don't want to screw myself over by going about it the wrong way.

Apparently my friend has a friend who has an ex-trooper uncle and we just reached out to him for advice as well.

For the record this is occurring in Washington state.
 
....Now a question for Frank or another of the lawyers: whom should one consult to determine if the SN of a firearm is, in fact legible? ATF? State Police? Local prosecutor?

One should consult his own lawyer who is knowledgeable in the subject matter. So his lawyer can then --

  • Look at any possibly applicable case law to see if there's some reasonably definite standard for legibility in the jurisdiction;

  • Explore the question with local and federal authorities as necessary while protecting the identity of the client.

Of course doing that will be an expensive proposition, but not as expensive as getting indicted for a federal crime. So if one has to try to retain the gun no matter what the expense, that's what needs to be done. It might not work out well. One might still lose the gun. But it will give him a chance to keep the gun while avoiding the risk of committing a crime.
 
Thanks for the thoughtful opinions and advice gentlemen. I'm inclined to ask my friend to take a picture of the firearm and serial numbers in question and ontact the BATF by mail requesting an opinion, but is there any risk in doing so?

I'm concerned they'll say "that's illegal, and you're under arrest!" Citing my own photography as the evidence. Is that just paranoid? I'd love to simply get a ruling from the rule-setting authority but I don't want to screw myself over by going about it the wrong way.
Please consider consulting an attorney. One of the really nice perks to being an attorney is attorney-client privilege. If I were in private practice and contacted the ATF with a picture "of a firearm in the possession of a client," and inquiring as to legality, what's the ATF going to do? Arrest me for possession of a picture of a firearm with a defaced serial number? I'm better prepared than most to assist in my own bond hearing & I'm pretty sure that it's not illegal to have a picture of a gun with a defaced serial number. Ask a judge (who is also an attorney & well-versed in attorney-client privilege) to force me to reveal who my client is? I don't think so.

Apparently my friend has a friend who has an ex-trooper uncle and we just reached out to him for advice as well.
Please be cautious here. I'm sure your friend's ex-trooper uncle is well-meaning, but that doesn't automatically equate to "knowledgeable." Even if he knows loads about state firearms law, he may not know much about federal law on defaced firearms.
 
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