BATFE and "Constructive Intent"

[Kind of Blued]

I've heard alot about this, but nobody has ever bothered to share any evidence, cases, text, or written law on this "charge". The idea that it is illegal for a civilian to merely have the capacity and the means to do something illegal is something that I find impossibly stupid and basically antithetical to everything that America is supposed to be. Then again, it is the ATF, and alcohol, tobacco, firearms, and explosives are right there after baseball and jazz if you ask me.

Anyway, I am wondering if anyone can give me something more than hearsay on the validity of "constructive intent".

I would like to build an SBR out of an AR pistol, adding a buttstock after I register the lower as an SBR (on a form 1 I believe).

However, I would like to understand "constructive intent" clearly to make it more convenient for me. I know there is a "play it safe" path, but the law and I get along just fine as long as I understand it. I assume SOMEONE must have sent a letter to the BATFE at some point asking these questions.

Questions that I have:

Can I own the AR pistol and the collapsible stock simultaneously as long as I don't install the stock until I get my tax stamp? (I gather that this is legal from the text, however, the spook that is "constructive intent" throws a moneywrench in this logical agreement.)

Can I own the AR pistol and order a stock and have it shipped to a relative's house so it never comes within 15 miles of my AR pistol?

Can I have them both as long as I can prove that I did not have "intent to construct" an illegal weapon?

Without knowing the answers to these, I assume it is, ironically, perfectly legal to have the AR pistol in my safe with two other ARs with buttstocks which could be affixed to the pistol. Should I be worried that they will intermingle themselves into an illegal weapon while I'm at work in the same way that "guns kill people" and "just go off" all the time?

I appreciate any help on this confusing (for me) subject.

 

[garymc]

I think you are liable for prosecution for writing what you have written.

 

[MikeEvans]

What about if you had a shotgun and a hacksaw in the same house?

 

[nalioth]

So long as you don't have the buttstock on the pistol until you have your tax stamp, you should be fine according to the law.

Then again, if you are worried about a "constructive intent" charge, you've done stepped off into the big doo-doo somewhere else.

 

[Riss]

Constructive possession more so applies to if you have the AR pistol, and do not have an AR to install the buttstock onto. In that case you would have all required parts to make a short barreled rifle and no "legitimate" use for the stock. This is the same as if you had a full length AR, a shorty upper, and did not have the AR pistol to install the shorty upper onto. You would have the makings for a SBS and no reason to possess a short upper. For all intents and purposes the Constr. poss. section is meant to be able to add more charges onto someone that has already broken the law in some manner. If you are within the law on everything else, and have ordered the other parts you need for a rifle simply having the buttstock would not really be an issue. You can then show intent to be compliant with the law. On the other hand, giving someone else the part that you do not need at the moment, and having them keep it for a little while would not hurt in the least.

 

[Zoogster]

Constructive possession simply means you have "dominion or control" of something you do not possess. For example if storing your illegal machinegun at your buddies house even though only he has actual possession of it.

Or he has one and says you and 5 other people can come use it any time, you all agree and have access to it and a key to the place, even if you never see it.
You would still all have constructive possession over it because you excericise some control over the item and could retrieve it at any time. So you have control over the item, and while not technicaly in possession you are in "constructive possession".

The same would go for anything else illegal. It is often used to prosecute people in a home that has drugs even if the drugs are only owned or possessed by one person.
If they can show multiple people had access to or some level of control over the drugs or the home they were in, even if owned by someone else, they had constructive possession even if never actual possession.

If you own it or have some control or access to it, but do not actualy have possession of it, then you can still have "constructive possession" rather than actual possession.
That allows you to be charged the same as if you actualy possessed it even though you didn't when it was siezed by authorities.
So one gang member busted for example can have many members charged for a guns or drugs even if only one residence actualy contained the items and the gang members are not even present. If they all had a level of proven control over the property, then they had constructive possession even miles away.

Constructive possession has nothing to do with building anything.

"Constructive intent" is an entirely different legal term than "constructive possession".
Constructive intent also has nothing to do with building or "constructing" something.
Constructive intent applies when someone intentionaly does one action which is wrong or illegal and has an unexpected outcome that is still in line with the wrong intent.
So if you for example intended to murder someone, and shot at them but missed and hit an innocent person you were not trying to hit and they died. Your actual intent was not to harm that person, but your constructive intent since it was to cause the death of someone extends to the person you accidentaly killed. So rather than being a lesser homicide charge, it would still be the murder as if it happened to the actual intended victim. So if you planned to kill the intended victim but unexpectedly killed the innocent person, you would still be guilty of pre meditated murder on the unintended victim as if it happened on the intended victim because of "constructive intent".

As that applies to illegal possession of arms can be complicated. If your are only trying to have one thing not allowed maybe something minor by law or you acknowledge may not be legal, and you instead accidentaly have something else that could be used for other illegal purposes, you can still be shown to have constructive intent.
For that reason someone simply breaking one law could be charged with another based on intent even if they did not intend to do it because thier illegal or wrong intent on one related thing is extended.
That might be done to give you a related charge with greater time even if it is only shown your are likely guilty of another.

So if you have parts useful for several illegal purposes and obtained or possess them with the intent (or the prosecutor claims) to possibly use them for one illegal purpose and several other illegal things could also have been done, then constructive intent could be applied in some situations.

Notice the definition of "constructive intent" has nothing to do with constructing something, the illegal offense in that case would just have to do with construction of something coincidentaly.

I imagine the term is just as useful for confusing jurors though who would be trying you at the direction of the court.



It is all complex. However lets use your example:

Can I own the AR pistol and order a stock and have it shipped to a relative's house so it never comes within 15 miles of my AR pistol?

You would still have constructive possession over the stock because you plan to excercise dominion or control over it even if you are 200 miles away from it. You are still the owner, and you still have the say in where it goes and what is done with it.
Now whether it is legal for you to have both the stock and the AR pistol is a completely seperate issue altogether because "constructive possession" has nothing to do with constructing something!
If they attempt to make a case you are trying to build an illegal item that is possession of an unregisted NFA weapon.
You would argue that you don't have possession of the item, and they would argue that you have constructive possession of it miles away at your relatives home.
However if it is legal for you to have both then it is legal for you to have it yourself or for someone to have it for you miles away, because both are considered you in possession of it, one is just constructive possession.

It is easier to understand as it relates to something like drugs, because you wont be building anything
If you purchased some illegal drugs and had your family member that lives in another home pick them up and store them at his place you would still be in constructive possession of them.
He would be in actual possession and you would be in constructive possession. So you would both be in possession under the law even though only he possessed them. Make sense?

 

[-C4-]

I would also say its a no no. Best not to temp the ATF. It really wouldn't surprise me if they arrested and tried someone for constructive possession of a shotgun and a hacksaw.....

 

[buzz_knox]

The key question is whether there was a legitimate, lawful purpose for the items at issue. Absent that, ATFE can argue one can presume criminal intent.

There's no way one can presume that a person who owns both a hacksaw and a shotgun does so for the purpose of making a SBS. A person who owns a Glock and a Glock folding stock (which has no purpose but to turn said Glock into a SBR) has issues.

ATFE has "recommended" that if you own a registered SBR AR lower and other lowers that aren't registered as SBRs, you'd better have 16 inch uppers for each non-registered lower. That helps prevent the argument that you planned on illegally manufacturing an SBR.

 

[Punkermonkey]

I never really understood what the big deal is about SBS's and SBR's....

 

[buzz_knox]

I never really understood what the big deal is about SBS's and SBR's....

Politicians seeking to cut back on firearms ownership picked arbitrary lengths for barrels, and imposed a tax on owning anything below that level that was, at the time, sufficiently punitive to deter ownership. Enforcing that tax and hunting down those who didn't pay it employed gov't agents who were about to be unemployed due to the end of Prohibition, and thus kept official employment levels up during the Depression (transferring them from one form of dole to another).

That's the sole deal.

 

[nalioth]

If you're that worried about 'constructive intent', having other AR15s in the house could be considered 'intent' as well. What if you just had a notion to put your NFA shorty upper on an unregistered lower? The law is quite clear on this: So long as you don't have the two parts together, you're fine.

As I mentioned above, If the LEOs are in your house impounding your firearms, I suspect you've got bigger things to worry about than "constructive intent".

If you worry yourself to a heart attack, what fun are you having?

P.S. Do you think the thousands of Kalashnikov enthusiasts with AMD-65 or Krinkov kits worry about "constructive intent"? Those particular AKs have sub-16" barrels.

No.

The alphabet gang has ruled that until you put the two parts together to make an illegal item, you're fine.

 

[ArmedBear]

Carbine stocks are pretty easy to find. Even here in California, where the AR is supposedly banned, I can drive down the street from my house and buy one at the store.

Why not wait until you have the stamp, and then buy the stock, if you're worried? Seems easy enough.

 

[Historic Arms LLC]

No other ostensible purpose:

In that unless you have an "ostensible purpose"

[example: you have a registered machinegun or short barrel rifle, and have a spare upper with a barrel length of less that 16"]

If you do NOT have a legit "ostensible purpose", do not possess/control such items with a title I semi AR.

See also United States v. Santoro, 2007 WL 1720474 (11th Cir.) (a recent unpublished opinion holding that a disassembled Cobray semi-automatic pistol and shoulder stock had no other “ostensible purpose” aside from conversion to a prohibited short-barreled rifle and therefore constituted a firearm).

Len

 

[Hkmp5sd]

What if you just had a notion to put your NFA shorty upper on an unregistered lower? The law is quite clear on this: So long as you don't have the two parts together, you're fine.

Keep that thought in mind.

DEPARTMENT OF THE TREASURY
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
WASHINGTON, DC 20226

MAR 29 2000

903050:GKD
3311

Dear Mr. :

This refers to your letter of January 22, 1999, requesting information on the legality of possessing a registered full auto AR15 and also possessing one or more semiautomatic pre-1994 assembled AR15 rifles. You appended a number of specific questions relating to this subject which will be answered in the order received.

1. Is it legal to own both?

There are no provisions under the Gun Control Act of 1968 (GCA) or the National Firearms Act (NFA) that prevent an individual from possessing an AR15 registered machinegun and one or more semiautomatic AR15 rifles at the same time.

2. If legal to own both, which spare parts for the registered gun can you also own?

Any weapon which shoots automatically more than one shot, without manual reloading, by a single function of the trigger meets the definition of a machinegun in section 5845(b) of the NFA. An AR15 rifle which is assembled with certain M16 machinegun fire control components, and which is capable of shooting automatically is a machinegun as defined.

The definition of a machinegun in section 5845(b) also includes any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. Thus, an AR15 rifle possessed with separate M16 machinegun components can meet the definition of a machinegun, if the rifle shoots automatically when the components are installed.

The fact that a person lawfully possesses a registered NFA firearm does not grant authorization to possess additional non-registered firearms. A person who possesses a registered M16 machinegun and a semiautomatic AR15 and a separate quantity of M16 machinegun components could be in possession of two machineguns.

We advise any person who possesses an AR15 rifle not to possess M16 fire control components (trigger, hammer, disconnector, selector, and bolt carrier). If a person possessed only the M16 machinegun and spare M16 fire control components for that machinegun, the person would possess only one machinegun.

3. Is it legal to use the upper receiver off of the semi-auto AR's on the registered AR if they are different lengths and calibers than listed on the Form 4's?

Before changing the caliber of a registered machinegun you should notify the NFA Branch in writing of the proposed change.

4. Can you have several short barrel uppers (less than 16 inches) for the registered AR and still own semi-auto AR's?

The definition of a firearm in section 5845 of the NFA includes a rifle having a barrel or barrels of less than 16 inches in length. An individual possessing more than one short (less than 16 inches) barreled upper receiver for a registered AR15 machinegun along with one or more semiautomatic AR15 rifles would have under their possession of control an unregistered short barreled rifle, a violation of the NFA.

5. If you change the barrel length or caliber do I need to notify your office if the change is not a permanent one?

This question was answered under Question 3.

We trust that the foregoing has been responsive to your inquiry. If we can be of any further assistance, please contact us.


Sincerely yours,

[signed]
Edward M. Owen, Jr.
Chief, Firearms Technology Branch

http://www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/atf_letter90.txt

 

[Hkmp5sd]

Can I own the AR pistol and the collapsible stock simultaneously as long as I don't install the stock until I get my tax stamp? (I gather that this is legal from the text, however, the spook that is "constructive intent" throws a moneywrench in this logical agreement.)

Can I own the AR pistol and order a stock and have it shipped to a relative's house so it never comes within 15 miles of my AR pistol?

Can I have them both as long as I can prove that I did not have "intent to construct" an illegal weapon?

No. Per ATF, you would be in violation by having an unregistered short barreled rifle.

Yes. As long as you do not have possession of the stock and they do not have possession of an AR pistol, everything is fine.

No. Again, actual installation does not matter. If you own an AR pistol and have more AR shoulder stocks that you have actual AR-15 rifles, ATF says you are in violation.

 

[nalioth]

Keep that thought in mind.

An individual possessing more than one short (less than 16 inches) barreled upper receiver for a registered AR15 machinegun along with one or more semiautomatic AR15 rifles would have under their possession of control an unregistered short barreled rifle, a violation of the NFA.

Nowhere did I mention having an "extra" shorty upper laying around.

My point was that you can 'mix and match' any AR15 upper off of any AR15 you might have.

Are they gonna arrest you for having a Title 1 Colt AR15 and a legal SBR AR15?

Why not? You can put the SBR upper on the Colt any time you like. . . .

As I keep saying, if they are looking at "intent" charges, you've already crossed a line somewhere...

 

[Hkmp5sd]

Are they gonna arrest you for having a Title 1 Colt AR15 and a legal SBR AR15?

I hope not as I have a Colt AR-15 SP1 and a Colt M16A1 w/ 14.5" upper.

However, if the original questioner has exactly the same number of shoulder stocks as he has AR rifles, buying a shoulder stock and possession of the AR pistol would make him illegal per ATF. Therefore, "So long as you don't have the two parts together, you're fine." is not universally accurate.

 

[cracked butt]

The rules apply any way that the BATFE wants them to when they kick down your front door and start confiscating your stuff.

Don't expect reasonable actions or decisions from an organization with a taxing authority, unlimited power, and a 'napolean complex' when compared to other more legitimate .gov agencies.

 

[nalioth]

Therefore, "So long as you don't have the two parts together, you're fine." is not universally accurate.

I've seen letters saying that it is accurate.

Post number 18 sums it up, and invalidates this entire thread. If they want you, they're gonna get you.

Don't give them an excuse to break your door down and gather up your stuff (as I keep pointing out).

 

[Neo-Luddite]

Why not just ASK the ATF what *it* thinks--I mean, hey, they WORK FOR Y-O-U! Send a nice note to the nice people, pick up the phone, that is what a citizen with a straight question does, right? We pay these folks to either 1) kick in doors or 2) engage in serving, protecting and answering questions. For the career Fed Gov employee--which is the safest and most sure route to a peaceful pension?

 

[cracked butt]

Why not just ASK the ATF what *it* thinks--I mean, hey, they WORK FOR Y-O-U! Send a nice note to the nice people, pick up the phone, that is what a citizen with a straight question does, right? We pay these folks to either 1) kick in doors or 2) engage in serving, protecting and answering questions. For the career Fed Gov employee--which is the safest and most sure route to a peaceful pension?

That's the way .gov is supposed to work and the way we expect it to, but I'm more cynical than that. Asking such questions of them about gray areas of the law that they have the leverage to push either way seems like a awefully good way to get their attention and make you a subject worth further watch. Its not entirely different than if a stranger came up to you at a park and asked if they could play with your children while promising not to bugger them.

 

[Hkmp5sd]

I've seen letters saying that it is accurate.

I've seen a letter saying a shoestring is a machinegun.

 

[TexasRifleman]

I've seen a letter saying a shoestring is a machinegun.

LOL me too. At least with that one they came back later and admitted that, shockers, maybe saying that anyone in possession of a shoestring was a felon was perhaps a bad idea

 

[nalioth]

I've seen a letter saying a shoestring is a machinegun.

So all ATF letters are bogus, now? Which ones do we believe? Which ones don't we?


Oops.

 

[Kharn]

The Supreme Court in 1992 stated in Thompson Center that as long as you had a legal use for all of the parts, you were not in violation of the NFA. But only having an AR pistol and a buttstock or any semiauto AR and M16 parts would be a violation if you did not have the proper paperwork.

Kharn