627PCFan
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Simple question. Is it illegal to have an AR-15/AK/G3 with a safety selector that reflects, safe, semi and full auto positions even if its not a full auto or contain an autosear?
AR-15 Selector Switch Question
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Telekinesis
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Nope.
You just have issues if your receiver is setup to accept the FA parts (however that is described for the rifle - ARs and AKs are based on pin holes for the auto sears, IIRC G3/other similar HK designs are based on whether or not they can accept the select fire trigger packs).
What is printed on the side of the receiver or just how far your selector switch can go has no bearing on whether or not the weapon is a machine gun.
You just have issues if your receiver is setup to accept the FA parts (however that is described for the rifle - ARs and AKs are based on pin holes for the auto sears, IIRC G3/other similar HK designs are based on whether or not they can accept the select fire trigger packs).
What is printed on the side of the receiver or just how far your selector switch can go has no bearing on whether or not the weapon is a machine gun.
AlexanderA
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ATF has ruled that an engraving that simulates the auto sear pin is not permitted, even if it is not exactly at the spot where the auto sear pin would be. "Safe-semi-auto" engravings are OK.
1911 guy
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I assume (yeah, I know what they say about assuming) that we're talking about receiver markings. What's been posted above is correct. However, it is NOT legal to attempt to install any M16 fire control parts in an AR15. M16 bolt carriers are god to go, though.
Carl N. Brown
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Most semi-auto only AKs have up (safe), down (semi-auto) and middle (full auto on an AK with a full auto fire control group).
With a semi-auto fire control group, the middle and down are both semi-auto.
The full auto fire control group requires a third hole drilled in the receiver to pivot the auto sear/rate reducer part.
The third hole, if present, is what makes the receiver a machinegun receiver; the safe/full/semi selector positions have been present on every semi-auto only Kalashnikov I have seen so far.
With a semi-auto fire control group, the middle and down are both semi-auto.
The full auto fire control group requires a third hole drilled in the receiver to pivot the auto sear/rate reducer part.
The third hole, if present, is what makes the receiver a machinegun receiver; the safe/full/semi selector positions have been present on every semi-auto only Kalashnikov I have seen so far.
AlexanderA
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Same for a semiauto HK (G3) type weapon. A "SEF" (Safe-Semi-Full) marked trigger housing is OK as long as it doesn't have an operable front push pin and, of course, doesn't have the internal auto trigger mechanism. Either the "E" or the "F" setting results in single fire. The lack of a front push pin is an easy way to tell that a gun is a semi, although the issue is clouded by the fact that some people install a non-functional (dummy) push pin just for looks. That's OK. On the other hand, it's possible to install an internal auto trigger mechanism in a housing without a front push pin. That's definitely not OK.
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MachIVshooter
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You wouldn't want an M16 selector in your semi auto anyway, would become a single shot in the full auto position with no auto sear.
RickD427
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The markings themselves are not illegal under federal law, nor under California law (I can't speak for the other states). But it's probably very unwise to possess such a weapon. The markings would provide a LEO with "Probable Cause" to believe that the weapon is capable of full auto fire (even though it is not). That means a trip to jail for both the rifle and the possessor. Plan on charges being dropped once a firearm's expert determines that the weapon is actually only a semi-auto. Don't plan on being able to successfully sue anyone for the arrest or time in jail. In California, also plan on a very lengthy and cumbersome process (due to the state DOJ "Release Letter" requirement) if you seek to have your weapon returned.
Robbins290
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I was curious of this my self, i have the zombie lower from spikes. Would be nice for it to go on the UNDEAD mode. even if it stayed semi
pdsmith505
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As Frank would say, can you cite precidence, or are you just guessing?
RickD427
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I'm not sure what you mean by "precidence" (I'm not even sure that is a legitimate word). I'm not guessing here. I spent more than 30 years as an LEO and took a great many cases to trial. If you're asking me to supply legal precedents for the assertions that I made in my posting, please refer to the following:
1) As to the level of certainty the officer must have to make a lawful arrest for possession of a full auto weapon (based on markings, even though the weapon is actually semi-auto) - Please refer to Tatum v City and County of San Francisco and U.S. v Buckner (both Ninth Circuit cases).
2) As to the existence of Qualified Immunity from civil lawsuit - Please refer to Saucier v Katz (SCOTUS)
3) As to the cumbersome requirements for a California LE agency to return a firearm - Please refer to California Penal Code section 33850.
1) As to the level of certainty the officer must have to make a lawful arrest for possession of a full auto weapon (based on markings, even though the weapon is actually semi-auto) - Please refer to Tatum v City and County of San Francisco and U.S. v Buckner (both Ninth Circuit cases).
2) As to the existence of Qualified Immunity from civil lawsuit - Please refer to Saucier v Katz (SCOTUS)
3) As to the cumbersome requirements for a California LE agency to return a firearm - Please refer to California Penal Code section 33850.
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AlexanderA
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The same issues arise when installing a "dummy" selector switch on an M1A. Some people do that just to fill the unsightly gap in the GI stock. While this is legal, it certainly draws unwanted attention to oneself.
MedWheeler
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While RickD427 wasn't addressing the OP's inquiry at all, his unsolicited advice does bear consideration, especially in his cited California.
Kind of the old "you might beat the rap, but you won't beat the ride" situation..
Kind of the old "you might beat the rap, but you won't beat the ride" situation..
pdsmith505
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Thanks for the correction. Even young minds slip from time to time.
I might be missing something, but I fail to see the connection between either case you cited that would provide probable cause to arrest someone on the mere appearance of a third selector marking. Tatum deals with a situation where a person was detained due to both actions and the appearance of being under the influence of a controlled substance. Buckner deals with the passenger of "... a car loaded with a commercial quantity of marijuana".
To draw an analogy, arresting someone because of a third marking, in and of itself perfectly legal and not in violation of the law, on the grounds that it might be able to operate as a machine gun would be similar to arresting someone simply because they had bloodshot eyes since they might have been under the influence of drugs.
In the state of California it would bring up another issue as well... what to do about all of the 30 round PMAGs blocked to accept only 10 rounds? No PMAGs were manufactured prior to the cutoff date for 30 round magazines in CA (first produced in 2007, cutoff in 2000), and a blocked 30 round mag certainly appears to be nothing more than a 30 round magazine. Would an officer have probable cause under Cal. Penal Code § 32310 to arrest an individual with such a magazine?
I could buy probable cause for a search... to see if the magazine held more than 10 rounds or to see if the third marking can even be selected...
On the other hand, I could just be applying logic in a flawed manner, being layman when it comes to laws.
First, it might not be a matter of an arrest, but rather detaining a subject for investigation.
Second, analogies don't quite work.
A semi-auto AR rifle with a marked three position selector is superficially indistinguishable from its selective fire cousin -- which would either be illegal under a particular State's law or at least legal only if properly registered under the NFA. And it will only be possible to distinguish the semi-auto from the selective fire version through a detailed examination by a qualified person. So it's most likely that a judge would agree that there would be sufficient reasonable suspicion or probable cause to justify taking custody of the rifle for examination.
Bloodshot eyes might be a different matter entirely. But bloodshot eyes could be a factor in deciding in an investigatory detention would be justified.
RickD427
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When you look to case law precedents, it's extremely rare to find a case exactly like the one at hand. What you do is look for a case that ruled on the same issue, even if the case facts differ. The issue here is "how certain must the officer be of his facts before he makes an arrest?" Both the Tatum and Buckner cases held that an arrest was lawfully made when there was "a fair probability" that a crime was committed. The OP asked about a receiver that was marked to resemble a fully automatic firearm, even though it actually only a semi-auto. When a LEO views a firearm marked as a full-auto, they can reasonably assume that the weapon is what it appears to be, a full-auto. The question can also be easy resolved with just a little statistical research. Let's identify how many full-auto firearms were seized by the agency in a given time period, and then identify how many of those were deceptively marked and were only semi-auto.
The similarity here is that there was a "fair probability" that Tatum was committing a crime based on his behavior, even though he was actually going through a fatal medical emergency. In the Buckner case, there was also a "fair probability" that Murray (Buckner's passenger) was involved in drug smuggling based on her presence in a car carrying a bunch of drugs. The similarity to the OP's hypothetical, and what makes these two cases relevant is that there is also a "fair probability" that a weapon marked as full-auto is full-auto.
The question about the required level of factual certainty needed to make a valid arrest is pivotal to the second question. The ability of the officer to seek summary judgment on a lawsuit based on qualified immunity.
As to your question about the blocked PMAGS, I don't see the making of a PC 32310 arrest without some more information. Possession of a permanently blocked (to ten rounds or less) is not illegal. Even though the PMAGS were not manufactured until after the effective date of California's ban, there are multiple legal avenues for the subject to have obtained them. They could have been acquired by an exempt person, converted and the transferred. They could also have been converted out-of-state and then imported. The key difference between the PMAG issue and the deceptive markings on the semi-auto is that there is a common and accepted practice of blocking magazines while there is no common practice of deceptive marking. That makes the application of the "fair probability" rule different between those two examples.
pdsmith505
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I would disagree, even setting aside the conversation regarding what is considered a common and accepted method of "permanently blocking" magazines in CA.
Keeping with the California theme, I can go to Turner's website and see stripped lowers with three positions marked on them. I can go to Calguns and see numerous AR variants with three positions marked. They are remarkably common.
Nationally, finding a rifle with three markings that is not a machine gun is far more common than finding a blocked 30rd magazine. Even Colt has produced a complete replica M16A1 for sale to the general public with three positions marked. It is roll-marked as a government property M16A1. Only thing missing is the auto-sear pin (doesn't even have a fake, etched in one).
I was also disagree here, due to the auto sear pin mentioned above. Granted, it is true that a person in possession of a DIAS or Lightning Link would not need the auto sear pin, but it is also true that such a machine gun would not need a third position engraved in the receiver either.
The third position is irrelevant.
*Disclaimer* I understand that what follows isn't case law, but it is an example of previous actions carried out by the ATF regarding markings and machineguns. Absent case law that specifically addresses the question, such actions and letters are really all we have to go on.
A couple years ago, US Anodizing ran into issues with ATF agents regarding the engravings on this lower that they were working on for a customer who was doing a retro build:
At issue was not the "AUTO" selector marking, but the false sear pin engraving. The customer ended up surrendering the lower as a machine gun, presumably because marking (even incorrectly) where the auto-sear pin is located was considered to be a manufacturing step in creating a machine gun.
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Except note what I actually wrote (emphasis added):
The question is whether a judge would agree that a police officer would have legally acceptable grounds to seize the rifle and or detain or arrest the possessor based on a reasonably articulable suspicious or probable cause to believe (depending on the standards applicable in the jurisdiction) that the rifle is a select fire rifle. It doesn't matter that someone with special knowledge, not necessarily expected of a patrol officer, could on examination conclude that it isn't one, but also, as you note, the rifle could be capable of full auto fire without an auto sear pin. So a proper examination of the rifle to conclude that it isn't capable of full auto fire will require some disassembly.
It also doesn't matter that a rifle capable of full auto fire doesn't need to have a marked three position selector. That would simply be a disguised select fire rifle. But if the rifle in your hands does have a marked three position selector, you can't reasonably expect someone to believe that it's just for show. A police officer may generally take things at face value.
If you're walking around holding a plastic bag containing a white powder and prominently labeled "cocaine", you can't expect a cop to just assume that you're putting us on.
RickD427
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That's cool. This is a discussion forum. We don't gotta agree on everything.
There is one major flaw with your argument above. You're analyzing the issue of the legality of the arrest using your knowledge of the facts. The dicta in the Buckner case does a reasonably good job of summarizing a lot of prior case law establishing that it's the LEO's knowledge of the facts that control on that issue.
In order for your argument to be a winner, you would have to show that it is common knowledge among LEOs that deceptively marked weapons are common, or that the LEO in this case had that knowledge.
Methinks that you cannot make that showing.
pdsmith505
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Which is fine, except my point was that it hardly takes "detailed" examination to identify an auto-sear pin. It also does not take a detailed examination to determine that the safety selector does not rotate to a third position. That's why I made the distinction between the various ways one may go about (legally) having a full-auto AR variant.
We cannot expect a patrol officer to be able to conduct a function check on, or break open the action of, a rifle in the field. A lightning link equipped AR-15 would require one of those two actions; there is no third selector position. From that, what would prevent an officer from detaining any individual with an AR-15, marked with auto or not, on the grounds that the rifle could be fully automatic?
US v. Black out of the Fourth Circuit seems more appropriate to this situation (both due to the content of the opinion and the jurisdiction in which the OP resides) than the 9th circuit cases cited earlier. Black, a convicted felon, was charged with unlawful possession of a firearm that was found during a detention and search initiated by, in part, the fact that another person in the group of people he was with was carrying a firearm. Openly carrying a firearm is, on it's own in the State of North Carolina, lawful, the act of openly carrying a firearm is common, and openly carrying a firearm does not indicate whether a person could or could not reasonably be a felon. The markings are not illegal, lowers are commonly sold with such markings, and the lack or presence of markings does not indicate whether a rifle is fully automatic or not. The logical analogy certainly fits.
US v. Black said:
If the standard for reasonable suspicion is as low as simply having "AUTO" engraved on the side of the receiver, absent any other indication that the rifle operates as a machine gun (auto-sear pin, observed rate of fire, etc), then why would there not be probable cause to arrest someone for a magazine as I mentioned before? I certainly don't expect (and from what I can tell, really doesn't happen as evidenced by RickD427's account) that a law enforcement officer in CA would summarily arrest someone simply for having what appears to be an illegal magazine. Such a feature is easily recognizable from a distance, and could be noticed in passing, unlike a small engraving on one side of a rifle.
I would wonder what the hypothetical police officer in this scenario would think of a rifle marked "Property of U.S. Government." Can I expect him to assume that the rifle isn't government property?
The claim that having a third marking on the selector puts one at risk of being arrested does not seem to bear out in fact. With the speed at which information travels across the internet, one would think that an example could be found. Examples of problems associated with markings, as demonstrated by the false auto-sear mentioned previously, are easily found, but I cannot find such a case where a third selector position was used as probable cause for an arrest.
RickD427
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The answer is the same as in my previous posting. The difference is in the "fair probability" that the elements of a criminal offense are present. It's also important to note, as discussed in my previous posting, that this question is evaluated from the LEO's perspective. With respect to the "Property of U.S. Government" markings, they only have meaning when applied to the property. It's common for such marked property to later be sold and that is pretty commonly known to LEOs, thus taking us right back to the "fair probability" issue.
As to the California law treatment of magazines, it has been illegal since 2000 for most folks to import or acquire large-capacity magazines. It became illegal, this year, to possess them. Enforcement of the possession law has currently been enjoined pending a lawsuit over the new law.
As to the California law treatment of magazines, it has been illegal since 2000 for most folks to import or acquire large-capacity magazines. It became illegal, this year, to possess them. Enforcement of the possession law has currently been enjoined pending a lawsuit over the new law.
You're raising a new issue here - that being the duty of an officer to investigate. I agree with you that a professional LEO does have a professional duty (as opposed to a legal duty) to make reasonable efforts to fully investigate a matter before making an arrest. We look really bad when a person that we arrest is later cleared by subsequent investigation. But the law does not share that view. There is no legal duty for an LEO to investigate beyond the point that the basis for a lawful arrest is established. Please refer to the Ninth Circuit's decision in Hamilton v City of San Diego for a more detailed explanation.
pdsmith505
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I'm going to bow out after this one, I think. We are talking in circles, the actual legal question has been answered since the beginning. All that is left is the personal level of aversion to risk, and what each person believes is a reasonable assumption about the reasonable assumptions an average officer (who may or may not know what actually makes a machine gun a machine gun) when he/she sees a perfectly legal third selector marking.
The presence of a third selector marking is no more indicative of a firearm being fully automatic than a property marking being indicative of rightful ownership. Neither one definitively establishes the prior status of the firearm, let alone the current status. Both markings are perfectly legal. Black seems to establish that a lawful act cannot be used to establish reasonable suspicion that a crime has been committed.
I am aware of the current injunction (I try to keep tabs on where I can take my firearms since I move quite a bit), but that injunction cannot apply to 30 round PMAGs since no PMAG was ever manufactured before 2007. The default for such a magazine is that it is illegal in the State of California, with 13 exceptions. Of those exceptions, only two apply to individual civilians: honorably retired sworn peace officers and holders of special weapons permits.
Let me clarify, I meant to address the claim that was made in this discussion not suggest that an officer should be doing a google search for case law while they prepare to arrest someone. An example supporting the validity of the claim that having false selector markings places someone at higher risk of being arrested has yet to be presented. Again, because the opinion in Black (which is controlling in the OP's state, VA) states that "Troupe’s lawful display of his lawfully possessed firearm cannot be the justification for Troupe’s detention," the argument for reasonable suspicion based only on the lawful selector markings does not seem to be supported.
The presence of a third selector marking is no more indicative of a firearm being fully automatic than a property marking being indicative of rightful ownership. Neither one definitively establishes the prior status of the firearm, let alone the current status. Both markings are perfectly legal. Black seems to establish that a lawful act cannot be used to establish reasonable suspicion that a crime has been committed.
I am aware of the current injunction (I try to keep tabs on where I can take my firearms since I move quite a bit), but that injunction cannot apply to 30 round PMAGs since no PMAG was ever manufactured before 2007. The default for such a magazine is that it is illegal in the State of California, with 13 exceptions. Of those exceptions, only two apply to individual civilians: honorably retired sworn peace officers and holders of special weapons permits.
It would seem that there is more reason to believe that a crime has occurred in the case of a blocked 30 round PMAG than with fake selector markings. The PMAG is illegal in CA unless it has been blocked or the possessor meets the criteria of an exception. Having fake selector markings, on the other hand, is legal, and Black (at least in the 4th Circuit) indicates that a legal act cannot be used, on its own, as reasonable suspicion of a crime.Let me clarify, I meant to address the claim that was made in this discussion not suggest that an officer should be doing a google search for case law while they prepare to arrest someone. An example supporting the validity of the claim that having false selector markings places someone at higher risk of being arrested has yet to be presented. Again, because the opinion in Black (which is controlling in the OP's state, VA) states that "Troupe’s lawful display of his lawfully possessed firearm cannot be the justification for Troupe’s detention," the argument for reasonable suspicion based only on the lawful selector markings does not seem to be supported.
RickD427
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You're right that we're starting to go in circles. Here's a couple of closing thoughts:
1) You're making a very good description of the firearm's marking and the potential for the weapon to be fully legal. But you keep inserting yourself as the decision-maker on the question when the case law assigns that prerogative to the arresting officer.
2) California law is really weird regarding large-capacity magazines. Before the beginning of this year, they were fully legal to possess, even if they were practically impossible to acquire. The PMAG was lawful in California up to the first of this year.
3) I was not familiar with the Fourth Circuit case of U.S. v Nathanial Black as it's not binding in California. But in reading it, it does not provide, as you have claimed, that legal acts cannot be exclusively used to find "reasonable suspicion." The Black decision did find that many of the facts claimed in support of "reasonable suspicion" were not sufficient, but never reached the general conclusion that you reported. Nor could the Fourth Circuit even make such a ruling. The U.S. Supreme Court addressed the point in Terry v Ohio (which is referenced in the Black decision). Terry was the landmark case establishing the right of detention based on reasonable suspicion. In Terry, each and every one of the suspicion raising facts was lawful. But the court held that when taken together, would support a finding of "reasonable suspicion" to permit detention.
1) You're making a very good description of the firearm's marking and the potential for the weapon to be fully legal. But you keep inserting yourself as the decision-maker on the question when the case law assigns that prerogative to the arresting officer.
2) California law is really weird regarding large-capacity magazines. Before the beginning of this year, they were fully legal to possess, even if they were practically impossible to acquire. The PMAG was lawful in California up to the first of this year.
3) I was not familiar with the Fourth Circuit case of U.S. v Nathanial Black as it's not binding in California. But in reading it, it does not provide, as you have claimed, that legal acts cannot be exclusively used to find "reasonable suspicion." The Black decision did find that many of the facts claimed in support of "reasonable suspicion" were not sufficient, but never reached the general conclusion that you reported. Nor could the Fourth Circuit even make such a ruling. The U.S. Supreme Court addressed the point in Terry v Ohio (which is referenced in the Black decision). Terry was the landmark case establishing the right of detention based on reasonable suspicion. In Terry, each and every one of the suspicion raising facts was lawful. But the court held that when taken together, would support a finding of "reasonable suspicion" to permit detention.
And this has gone on long enough.
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