NFA items - LEO asks for paperwork ?s

[ec4321]

There is a topic that comes up quite a bit, that is when someone has NFA items and an LEO takes an interest.

This isn't a question of how to handle yourself and be respectful, I am asking about peoples thoughts and more importantly an attorney's insight into the letter of the law on the subject.

Many think that because many State's laws state that they are illegal unless NFA registered that when asked for papers by an LEO they must provide them. I don't know for sure, but the more I think about it I don't think that is the case. Folks who claim to be LEO on these boards will say, essentially, that they will ask for the papers when they see NFA to check on the papers and if they are refused they will make an arrest.

I don't think it works that way in theory, while it may in practice. An LEO still has to have Probable Cause to make an arrest and I don't think the existence of an NFA item constitutes probable cause nor does it with the addition of the possessor exercising their right to remain silent.

Thoughts?

 

[Sam1911]

This may be a bit dependent on state law. Some states do specifically prohibit various NFA type weapons unless they are registered, and some require registration with the state as well as the NFA registration with the BATFE.

As these items are then de-facto illegal unless registered, I don't think you're going to get any traction trying to refuse to show your papers. (And some states may put into the statute that you MUST show your registration if so requested by a sworn officer. I don't know that for sure.)

Now, some folks have made the argument that your registration is signified by a canceled tax stamp, which makes your registration document a private tax/financial matter, not subject to "search" without a warrant. I've never heard of that opinion being actually tested, though, and would be surprised if the argument was sustained.

 

[ec4321]

As these items are then de-facto illegal unless registered,

I agree. They are. For arguments sake, so is operating a vehicle on public roadways unless properly licensed. An LEO still has to have PC/RS to stop and demand said license/registration.

I don't think you're going to get any traction trying to refuse to show your papers.

No argument there. Path of least resistance is to show your papers. I intend to avoid that subject altogether with my query. I am just curious about the finer technical legal points.

(And some states may put into the statute that you MUST show your registration if so requested by a sworn officer. I don't know that for sure.)

They might, and if so, those wouldn't be the states I am interested in for this - I haven't seen such statutes mentioned or quoted yet, but if anyone knows of any, please let me know.

 

[NavyLCDR]

I would think it would go down like this:

1. Item is illegal to possess by default, and a license may be obtained to possess the item as an exception.
2. LEO sees the item in your possession and asks for the license.
3. You refuse to show license.
4. LEO writes you a citation for possession of the item without a license, and probably confiscates the item.
5. You go to court and the judge requires you to show your license for the item in order to have the item returned to you.

Given the consequences of 4 & 5 are probably 99% chance of occurring, is action #3 worth it?

In a case where state law specifies that an item is illegal to possess, but a license may be obtained to be exempt from the statute, it would seem as if the legal default for the officer to believe would be that the item was illegal until such time as they had proof that the proper license existed for it.

This is different than the case where state law only declares an item to be illegal without the proper license. In the first case, the item itself is illegal to possess by anyone and the license provides an exception. In the second case, possession is only illegal without the license, and then the officer must have reasonable suspicion to believe that for some reason the subject does not have the license in order to demand to see it.

Example of first case of law:

(1) It shall be illegal for a person to possess a handgun in this state.
(2) Paragraph (1) does not apply to persons properly licensed to possess a handgun.

Example of second case of law:

(1) It shall be illegal for a person to possess a handgun in this state without having a license to possess a handgun.

Subtle, but important difference.

 

[ec4321]

is action #3 worth it?

No. Especially so if you have family, it becomes a selfish act.

Only exception is if you are actually backed by legal council and you are trolling for an occasion to gain a standing and challenge in court.

In a case where state law specifies that an item is illegal to possess, but a license may be obtained to be exempt from the statute, it would seem as if the legal default for the officer to believe would be that the item was illegal until such time as they had proof that the proper license existed for it.

This is probably the main question I have. Does the wording of the law really make it illegal by default anymore so than say a vehicle on the public roadway which is only legal with proper registration? While it may seem counter-intuitive, I don't think the wording of the state laws automatically grants Probable Cause to believe that illegal activity is taking place.

I think the intent of the wording of the state statutes to that effect, like the machine gun NFA laws, are only a legal trap to ensure that there is only but one exception and there is but one way to comply with said exception. I don't see how that wording would change common sense reasonable suspicion or could change well established standards of probable cause.

If the LEO doesn't have reasonable cause to believe the law is actually being broken, I don't think an arrest can be made under that legal standard. I

 

[ec4321]

Example of first case of law:

(1) It shall be illegal for a person to possess a handgun in this state.
(2) Paragraph (1) does not apply to persons properly licensed to possess a handgun.

Example of second case of law:

(1) It shall be illegal for a person to possess a handgun in this state without having a license to possess a handgun.

Subtle, but important difference.

I agree. It's important. But I am not confident it changes the standards of Probable Cause or Reasonable Suspicion.

e.g. I don't think that means you're a criminal until you prove otherwise. I think it simply means there is only one way for it to not be illegal.

 

[dprice3844444]

there are 2 types of nfa weapons,legal ones and illegal ones.owners of legal ones are required by federal law, to have the paperwork with the weapon everytime it leaves it's storage facility.(government entities excluded)failure to do so will lead to your detention/arrest by government authories until paperwork is produced.

http://www.atf.gov/firearms/faq/national-firearms-act-firearms.html#owner-evidence

Q: Does the owner of a registered NFA firearm have to have any evidence to show it is registered lawfully to him or her?
Yes. The approved application received from ATF serves as evidence of registration of the NFA firearm in the owner’s name. This document must be kept available for inspection by ATF officers. It is suggested that a photocopy of the approved application be carried by the owner when the weapon is being transported

 

[runes]

I live in Virginia and have the card to carry concealed. OK fine, but I must have the card on me when I carry. I don't see a problem with having paper work on me when I have an NFA
device with me. It seems reasonable .

 

[ec4321]

there are 2 types of nfa weapons,legal ones and illegal ones.owners of legal ones are required by federal law, to have the paperwork with the weapon everytime it leaves it's storage facility.(government entities excluded)failure to do so will lead to your detention/arrest by government authories until paperwork is produced.

http://www.atf.gov/firearms/faq/national-firearms-act-firearms.html#owner-evidence

Q: Does the owner of a registered NFA firearm have to have any evidence to show it is registered lawfully to him or her?
Yes. The approved application received from ATF serves as evidence of registration of the NFA firearm in the owner’s name. This document must be kept available for inspection by ATF officers. It is suggested that a photocopy of the approved application be carried by the owner when the weapon is being transported

Ah yes. This was brought up as well. Presuming there are statutes that back up this Q/A by the ATF, you are subject to inspection by an ATF agent.

However, what about other LEO?

 

[Frank Ettin]

...This was brought up as well. Presuming there are statutes that back up this Q/A by the ATF, you are subject to inspection by an ATF agent.

However, what about other LEO?...

However --

[1] An LEO may arrest someone, or detain the person for investigation, if the LEO has probable cause to believe the person has committed a crime.

[2] "Probable cause" is "sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime...."

[3] An NFA weapon may only be lawfully possessed by an LEO, licensed dealer/manufacturer or an individual who has satisfied the requirements of the NFA for private ownership and who has properly registered the firearm as required under the NFA. Except for such persons, possession of an NFA weapon is a crime.

[4] If a person has in openly in his possession a weapon that is obviously an NFA weapon, he would be committing a crime, unless he satisfies the requirements for lawful possession of the NFA weapon.

[5] The fact of the person's possession of the weapon are open and obvious. Any facts that might suggest that such person's possession is lawful, are not open and obvious.

[6] The facts known to an LEO observing such person, i. e., the possession of an NFA weapon, can reasonably cause the LEO to believe that a crime is being committed, i. e., the unlawful possession of an NFA weapon. Any facts which could possibly lead the LEO to conclude that the possession of the NFA weapon is actually lawful are hidden and therefore not known to the LEO.

[7] Therefore, based on the facts known to the observing LEO at the time. he has been led to believe that the person in possession of the NFA weapon is committing a crime, i. e., unlawful possession of an NFA weapon.

[8] If the LEO detains the individual possessing the NFA weapon, and that person cannot provide evidence of the lawful possession of the NFA weapon, based on the known facts, the LEO continues to have reason to believe the person is illegal possession of an NFA weapon. That constitutes probable cause for arrest.

[9] If the person can supply evidence that he is in lawful possession of the NFA weapon, the known facts no longer support the belief that the person has committed a crime. Now the LEO would no longer have probable cause for arrest.

 

[Jeff H]

However, what about other LEO?

Local LEOs don't enforce federal statutes. There is probably a state law that is similar though and if you are violating that law, the LEO will be withing his authority (depending on the state statute.)

Also, I believe that local LEOs can probably detain you on a federal charge until the ATF can get there.


[the post above better explains what I was thinking.]

 

[CapnMac]

I think I'm missing the essential question here.
If I'm packing the MG 07-15 in the back of the ride, I'm bringing the papers along.
In the 1-in-10,000 I'm stopped, I'm going to produce those papers.
If I'm not stopped, no biggie

Despite the hullabaloo and all the additional burdens onerously put put NFA items, they are not equipped (yet) with some sort of Lo-Jack to "rat you out" if you move them more than a meter or two.

This requirement for "super legality" and the business of contradictory State laws is probably something which will eventually overturn NFA--but, that is a completely different topic than we have here.

 

[ec4321]

[6] The facts known to an LEO observing such person, i. e., the possession of an NFA weapon, can reasonably cause the LEO to believe that a crime is being committed, i. e., the unlawful possession of an NFA weapon. Any facts which could possibly lead the LEO to conclude that the possession of the NFA weapon is actually lawful are hidden and therefore not known to the LEO.

This would appear to be the crux. Is merely seeing an NFA weapon enough to establish PC in all situations?

How about at a SOT/3 dealer's range where the possessor has a GE Mini-Gun, and a whole battery of top notch HKs and M16s? I think the totality of the circumstances would reduce the probability of a crime being committed to less than that of the standard of PC.

However, finding a hack sawed off cheap shotgun in the front seat of a car during a traffic stop that doesn't even have license plates on it would give the LEO his PC on the NFA item.

If the first is true, the point would be valid in that an NFA item in and of itself would not be PC?

 

[JohnKSa]

Also, I believe that local LEOs can probably detain you on a federal charge until the ATF can get there.

Winner.

Local LEO: Do you have the proper paperwork for that NFA item?

You: Yes, but I don't have to show it to you because it's a federal matter, not a local/state matter**.

Local LEO: Fair enough. I'm going to confiscate your NFA items and detain you until we can get a federal agent here to deal with this federal matter.

You: Well, in that case, here are my papers.

Local LEO: No, you're right, this should be handled by a federal agent. Thanks for setting me straight.​

**Be careful here. At least some states have their own laws that apply to NFA items. TX has laws against machineguns and silencers, for example, and while your NFA paperwork can be used to get you off the hook you can, indeed, be arrested, charged and convicted under TX law for possessing a machinegun or silencer. What's more, if they want to be really nasty about it, it is my understanding because of the way TX law is written (NFA paperwork is a "defense to prosecution") that they can drag you though the whole legal process and make you actually fight the charge in court using your NFA paperwork as a defense.

You'd get off at that point, but I'm quite certain that you wouldn't feel like you'd actually won...

 

[ec4321]

You: Well, in that case, here are my papers.

Local LEO: No, you're right, this should be handled by a federal agent. Thanks for setting me straight.[/INDENT]

Ha, no doubt. But at that point it ceases to be about legalities, and PC has evaporated for the detainment/arrest. It becomes about someone that wishes to assert their perceived authority even absent the actual authority.

 

[Frank Ettin]

...Is merely seeing an NFA weapon enough to establish PC in all situations?

What are you willing to bet that a judge wouldn't rule it to be probable cause?

...But at that point it ceases to be about legalities, and PC has evaporated for the detainment/arrest...

Nope, you simply don't want to accept that open and obvious possession of a Title II weapon could be probable cause for detention for investigation or arrest. If you want to try that out on a judge, be my guest.

 

[JohnKSa]

Ha, no doubt. But at that point it ceases to be about legalities, and PC has evaporated for the detainment/arrest. It becomes about someone that wishes to assert their perceived authority even absent the actual authority.

No, at that point it's about both legalities and PC as well as someone wanting to assert their perceived authority.

One does not preclude the other. Like the man says. "We can do this the easy way or we can do this the hard way." Generally when someone says that, it's not because he doesn't know what he's talking about.

Also, be sure to read the "footnote" in my previous post. The fact that this is a federal issue doesn't automatically mean it can't be a state/local issue as well.

 

[ec4321]

What are you willing to bet that a judge wouldn't rule it to be probable cause?

Not a single solitary cent.

My advise, for anyone not wanting to take the ride, is show your paperwork and keep your paperwork handy.

My question was about if PC was established by 1) Existence of an NFA item, 2) Exercising Silence. True PC, not what a judge may let slide.

Nope, you simply don't want to accept that open and obvious possession of a Title II weapon could be probable cause for detention for investigation or arrest. If you want to try that out on a judge, be my guest.

Not sure what you mean here, given the context of where you quoted me. I was talking about a situation where a suspect had already presented NFA papers and the LEO decided to detain the suspect anyway simply to punish them. Once the papers are presented, PC is gone - that's all I was saying.

...you simply don't want to accept that open and obvious possession of a Title II weapon could be probable cause....

I agree it could be and I accept that, but PC is about totality of the circumstances.

 

[ec4321]

No, at that point it's about both legalities and PC as well as someone wanting to assert their perceived authority.

One does not preclude the other. Like the man says. "We can do this the easy way or we can do this the hard way." Generally when someone says that, it's not because he doesn't know what he's talking about.

Also, be sure to read the "footnote" in my previous post. The fact that this is a federal issue doesn't automatically mean it can't be a state/local issue as well.

I am not sure we're talking about the same thing. If an LEO asks for NFA papers to prove an NFA item is legit, and was going to accept that as proof had it been presented - the LEO should accept it as proof after being bucked and initially denied the papers once the citizen does produce them.

The only purpose further detention would serve at that point is to punish the citizen for being in contempt of the LEO. Street justice style.

 

[Frank Ettin]

...True PC, not what a judge may let slide....

If a judge says something is probable cause, unless overturned by a court of appeals, it is true probable cause.

 

[ec4321]

If a judge says something is probable cause, unless overturned by a court of appeals, it is true probable cause.

True, my laymen's terminology is poor.

And while I know it's splitting hairs, the whole question that came to my mind was a hair splitting exercise - is does the PC meet all the accepted legal theories about PC (would there be consensus amongst legal scholars?), not the practical application of PC requirements by the judge that happens to be ruling on the case.

 

[JohnKSa]

I am not sure we're talking about the same thing.

I'm not sure either.
Here's what I thought you were talking about:

Many think that because many State's laws state that they are illegal unless NFA registered that when asked for papers by an LEO they must provide them. I don't know for sure, but the more I think about it I don't think that is the case.

you are subject to inspection by an ATF agent.

However, what about other LEO?

Basically you are subject to inspection by any LEO who cares to inspect you. In TX, even with your paperwork, you can be subject to not only inspection but also arrest and prosecution. Basically there is always PC for inspection of NFA items & NFA paperwork in TX when an NFA item is involved because NFA items are always a violation of TX state law.

You can use your paperwork as a defense to prosecution in court, but that's the first place that TX law mandates that your NFA paperwork MUST be accepted as proof that you are not breaking state law.

 

[ec4321]

Basically there is always PC for inspection of NFA items & NFA paperwork in TX when an NFA item is involved because NFA items are always a violation of TX state law.

This was one of the interesting questions / positions that comes up.

I find it hard to accept that you are in violation of the law with the NFA item, and you simply have an affirmative defense. I think having the affirmative defense at hand establishes that you were never a criminal or in violation of the law to begin with.

Sure, I've read the statutes and I agree that is the wording. "NFA ITEMS ARE ILLEGAL" "PROPER NFA REGISTRATION IS A DEFENSE"

Seems to me either you are a criminal, or you are not. Not you are a criminal, but you have a license to be a criminal.

And if I am right about that, you are in fact not a criminal, that goes towards the PC issue.

 

[JohnKSa]

And if I am right about that, you are in fact not a criminal, that goes towards the PC issue.

You're not right when it comes to TX. If you have an NFA item in TX, you're in violation of TX law--there's no question about it. That means that there is also absolutely no question about PC existing. You do have a defense to prosecution, but that doesn't come into play in the field.

I suspect the issue has to do with what you addressed earlier. NFA registration is a federal issue and the TX legislature may have decided it was a bad idea to force TX LEOs to take responsibility for being able to determine the validity of federal documents in the field.

I find it hard to accept that you are in violation of the law with the NFA item, and you simply have an affirmative defense.

I can see that.

Unless you're prepared to argue that your difficulty in accepting this fact changes reality, I don't see where you're going with this.

 

[ec4321]

You're not right when it comes to TX. If you have an NFA item in TX, you're in violation of TX law--there's no question about it.
Unless you're prepared to argue that your difficulty in accepting this fact changes reality, I don't see where you're going with this.

That's precisely it. I am questioning it.

That not meant to be contrary, or challenging to you. I believe you believe that and have good cause to. I am not fully sure of that though.

Seems like a 'License to Kill' situation. In my layman's mind, I have to believe having an affirmative defense means you're not in violation of the law. Imagine if some anti-gun organization made a website of all the "Criminals" in Texas, and other states with similar statutes.

They could simply list all the NFA holders in those states as Firearms Law Felony Criminals. And give no further information. That could hurt alot of those folks when people found the info, such as during a job search - and defamation lawsuits would have no merit if you are right.