NFA items - LEO asks for paperwork ?s

[Spats McGee]

. . . .In my layman's mind, I have to believe having an affirmative defense means you're not in violation of the law. . . .

Technically, this is true. If you can prove an affirmative defense, you'll be acquitted of the criminal charge. However, remember that in the case of an affirmative defense, the burden is on the defendant to show that he meets the requirements of the affirmative defense.

IOW, it's usually a case of of:
1) "Yes, I meet the elements laid out in the statute, but I have a really, really good reason."

rather than

2) "I didn't break the law."

 

[ec4321]

I found this looking up Affirmative Defense:

"In most jurisdictions, defense of self or of others is an affirmative defense to criminal charges for an act of violence. It acts to provide complete justification.
Justification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all: Dennis J. Baker, Glanville Williams Textbook of Criminal Law (London: 2012) at Chapter 21.
The defense of justification (Penal Law art. 35) affirmatively permits the use of force under certain circumstances… The defense does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful…
In this regard, the current statutory defense reflects the common-law "right" of an individual to repeal a threat to life or limb… Defense of oneself or one's relations, deemed a natural, inalienable right at common law, justified the use of force, making even homicide lawful."

Following that, the way I read it anyway, having an affirmative defense, at least in this example of Self Defense in the case of a homicide - means that no crime was ever committed - therefore you are not nor were you ever a criminal nor did you commit a crime?

 

[JohnKSa]

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.

Ok, that's a little funny. It's as if you're trying to make it sound like my being right is what's causing all this mayhem.

Seriously, the law is pretty clear and the principle of "defense to prosecution" is pretty straightforward.

Sec. 46.05. PROHIBITED WEAPONS.
(a) A person commits an offense if the person intentionally or knowingly possesses, manufactures, transports, repairs, or sells:
...

(2) a machine gun;
(3) a short-barrel firearm;
(4) a firearm silencer;​

...
(c) It is a defense to prosecution under this section that the actor's possession was pursuant to registration pursuant to the National Firearms Act, as amended.​

You can find other places in the law where there is wording to the effect that a particular section "does not apply" if certain circumstances are met. Clearly that's not what is stated in the law about posessing, manufacturing, transporting, repairing or selling NFA items.

By the way, TX law does NOT say it is an "affirmative defense" nor an "affirmative defense to prosecution" to have the NFA registration. It says it ONLY that is a "defense to prosecution". Later in section (d) of 45.05 having to do with antiques/curios and providing certain items to an approved organization DOES provide an "affirmative defense to prosecution", not just a "defense to prosecution", so there is a difference between the two.

...therefore you are not nor were you ever a criminal nor did you commit a crime?

You're mixing things here. The fact that you did not commit a crime is NOT evidence that PC never existed.

In the case of self-defense, one might very well be arrested, charged and prosecuted, only being acquitted after proving self-defense. If that happened, they would not have committed a crime, but that certainly wouldn't mean that PC never existed.

 

[ec4321]

By the way, TX law does NOT say it is an "affirmative defense" nor an "affirmative defense to prosecution" to have the NFA registration. It says it ONLY that is a "defense to prosecution". Later in section (d) of 45.05 having to do with antiques/curios and providing certain items to an approved organization DOES provide an "affirmative defense to prosecution", not just a "defense to prosecution", so there is a difference between the two.

I wonder what that difference is?

In the case of self-defense, one might very well be arrested, charged and prosecuted, only being acquitted after proving self-defense. If that happened, they would not have committed a crime, but that certainly wouldn't mean that PC never existed.

I agree, completely. BUT (there's always a 'but' with me, isn't there?), it would come down to totality of the circumstance to answer the question of if there was PC for the arrest.

In the case of homicide - if a cop was in a bank, robber walks in and puts a gun to a hostages head, hostage pulls out his own piece and kills the assailant, I would argue there is no PC for a murder arrest

In the case of an NFA - an LEO is called to the scene of a fire, gets there turns out it is a gun shop that has been known to deal in NFA weapons. Does LEO have PC to arrest the owner when they can't produce the NFA papers for the plain view NFA items when there is a pile of burnt filing cabinets, no criminal history nor no other cause to believe the NFA items are unregistered? Again, I would argue not.

 

[JohnKSa]

Here's the TX law on the difference between "affirmative defense to prosecution" and "defense to prosecution".

Sec. 2.03. DEFENSE.
(a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution...”
(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.
(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.
(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.


Sec. 2.04. AFFIRMATIVE DEFENSE.
(a) An affirmative defense in this code is so labeled by the phrase: "It is an affirmative defense to prosecution...”
(b) The prosecuting attorney is not required to negate the existence of an affirmative defense in the accusation charging commission of the offense.
(c) The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence.​

...it would come down to totality of the circumstance to answer the question of if there was PC for the arrest.

In the case we're discussing (TX law) it is absolutely clear that your paperwork can only save you in court if that's the way the state wants to play it.

There's no way you could end up in court without being arrested and charged, and there's no way that could happen legally without PC.

Again, I would argue not.

I don't think that there's any reasonable way to twist the law around so that PC doesn't exist given the way the law is stated. The law doesn't even leave any room for question of whether or not PC exists.

It's simply not possible for a person to legally be in court being prosecuted if no PC exists and the law is clearly written such that the NFA registration only "works" as a defense to prosecution.

 

[ec4321]

Here's the TX law on the difference between "affirmative defense to prosecution" and "defense to prosecution".

Sec. 2.03. DEFENSE.
(a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution...”
(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.
(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.
(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.


Sec. 2.04. AFFIRMATIVE DEFENSE.
(a) An affirmative defense in this code is so labeled by the phrase: "It is an affirmative defense to prosecution...”
(b) The prosecuting attorney is not required to negate the existence of an affirmative defense in the accusation charging commission of the offense.
(c) The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence.​

In the case we're discussing (TX law) it is absolutely clear that your paperwork can only save you in court if that's the way the state wants to play it.

Awesome. Thanks.

After reading that I don't see a difference relevant to the issue of actual criminality. I still have to stick to my guns in that I don't believe you are in fact a criminal, just that you have a license to be a criminal. I have to trust that you were never a criminal to begin with if you have a legitimate affirmative defense or a defense to prosecution.

There's no way you could end up in court without being arrested and charged, and there's no way that could happen legally without PC.....

It's simply not possible for a person to legally be in court being prosecuted if no PC exists ....

I have to disagree on that, if you mean that in practice no arrests are made without PC. They can and do happen. Sometimes courts let it slide, other times not. In theory, they never should, sure.

In the case we're discussing (TX law) it is absolutely clear that your paperwork can only save you in court if that's the way the state wants to play it.
....
the law is clearly written such that the NFA registration only "works" as a defense to prosecution.

Self Defense, as an affirmative defense to murder, I think would be the same. The LEO would be derelict of their duties if they made an arrest for murder knowing that the homicide was solidly defensible under self defense. And in fact the LEO would have to have PC to believe that it was NOT self defense to make the arrest, in theory at least?

I think an LEO and/or DA that took a case to court for NFA weapons having solid evidence of proper registration in hand could only be described as malicious. Along those lines, I've read on here states like New Jersey and others will ignore FOPA laws making arrests and bringing charges knowing it will eventually fail to secure a conviction. In those cases one can only presume the LEO / DA are using 'street justice' to punish these folks despite knowing they are not in violation of the law, but none-the-less in contempt of their personal views on firearms. LEOs and DAs know that arresting and bringing charges can be a severe punishment in and of itself, but those that abuse that are in the wrong.

 

[JohnKSa]

I have to disagree on that, if you mean that in practice no arrests are made without PC. They can and do happen. Sometimes courts let it slide, other times not. In theory, they never should, sure.

You're talking about cases when the arrests are made improperly. In this case, it's not a matter of letting it slide, it's specifically a matter of a person who, by law, SHOULD be in court, but who, with the proper evidence can require in court that he be acquitted.

A person who, by law, SHOULD be in court, clearly did something that created PC. There's simply no way for that not to be true.

The LEO would be derelict of their duties if they made an arrest for murder knowing that the homicide was solidly defensible under self defense.

That's absolutely untrue. In fact, until the castle doctrine passed in TX, it was standard practice to arrest a defender for homicide--regardless of the circumstances--until the case could be reviewed to see if self-defense applied.

It was only after the castle doctrine became law that the defender was given the presumption of innocence if certain circumstances were met.

I can tell you WANT to be right, and your arguments make sense. The problem is that the facts simply don't leave room for that to be true no matter how much sense your arguments make. At least not in TX. The law is clear.

 

[dprice3844444]

From the NFA Handbook:

Section 12.1 Maintaining proof of registration. The NFA requires that a person possessing a firearm registered in the National Firearms Registration and Transfer Record (NFRTR) retain proof of registration which must be made available to the Attorney General, specifically an ATF agent or investigator, upon request. Proof of registration would be on a Form 1 registering a firearm to its maker, Form 2 registering a firearm to an importer or manufacturer, or a Form 3, 4, or 5 showing registration of a firearm to a transferee.

Section 6.4 Approval of Form 1. Non-FFL/SOT’s may seek approval to manufacture an NFA firearm (e.g., short-barreled rifles, short-barreled, shotguns, wallet guns, etc.) via submission of an ATF Form 1. Upon receipt of the completed Form 1, ATF will process the application and, if approved, a tax stamp will be affixed to the original of the form and the approved application will be returned to the applicant. Approval by ATF will effect registration of the firearm to the applicant. Upon receipt of the approved application, the applicant may make the firearm described on the approved Form 1. The approved form must be retained by the applicant and made available at all times for inspection by ATF officers or investigators.
If you run into an ATF agent, you must be able to show proof of legal registration. A photocopy is acceptable. The big question, however, is how they define "investigator" since this likely includes LE, any Federal agent with the power to arrest, and could include other groups as well. Unfortunately I don't know how "investigator" is specifically defined.

 

[ec4321]

. In fact, until the castle doctrine passed in TX, it was standard practice to arrest a defender for homicide--regardless of the circumstances--until the case could be reviewed to see if self-defense applied.

For LEOs too? If an LEO shoots a suspect in an armed robbery, are they arrested?

If not, I suspect that it's a discretion thing. If a cop witnessed an armed robbery and saw a victim kill the assailant in self defense, no PC for murder exists. No?

On another note. Ya for castle doctrine.

 

[ec4321]

don't think that there's any reasonable way to twist the law around so that PC doesn't exist given the way the law is stated. The law doesn't even leave any room for question of whether or not PC exists.
.... and the law is clearly written such that the NFA registration only "works" as a defense to prosecution.

This brought to mind a thought. Don't most LEO organizations require that their LEOs make arrests for felonies? (The LEOs in my family are bound by duty to arrest for felony)

So, if as you say, having an NFA item is illegal - period. And that you can only defend it in court to prevent a conviction - but you're still in violation of the law.

Wouldn't LEOs have to arrest everyone with an NFA item and let the courts sort it out?

Yet another reason I think there is something missing from that concept.

 

[JohnKSa]

For LEOs too? If an LEO shoots a suspect in an armed robbery, are they arrested?

There are a different set of laws that apply to shootings by LEOs in the course of duty. I haven't read or studied them because they don't apply to me.

Besides, this isn't about LEOs. It's about what TX law says about NFA items. There's really not any wiggle room in TX law. Possessing NFA items is a violation of TX law. A person has a defense to prosecution that he can use in court by presenting proof of NFA registration. I seriously doubt that it would get that far because it would be a colossal waste of everyone's time and yes, LEOs almost always have some discretion in how to handle a matter.

BUT, that's not really relevant to the question of whether a TX state or local LEO has PC if an NFA item is involved.

TX law makes it clear that they do. So a TX LEO can legally inspect your NFA item and while you don't have to show them your federal paperwork, the mere fact that you have an NFA item means that they have sufficient justification to make an arrest under TX law if they choose to. It's up to them as to whether or not they choose to accept your NFA paperwork as proof that you're not breaking the law. They certainly don't have to.

Yet another reason I think there is something missing from that concept.

The way I see it you have 3 choices.

1. Read the law--it's clear. Go with what it says.
2. Pay a lawyer to read the law to you. Go with what he/she says.
3. Make your arguments to the cops when they show up and ask for your paperwork. See how that works for you.

I don't know what else to tell you.

 

[DMF]

In my state the law defines the NFA firearms as "Dangerous Weapons" (same definitions as the fed law, but different name).

The only defense to prosecution for a "possession of a dangerous weapon" charge is to prove the firearm is properly registered with the federal government.

Therefore, if an LEO discovers a person in possession of an NFA weapon, and there is no proof the person has the firearm properly registered with the federal government, the officer has probable cause to arrest the person for violating the state statute.

Happens all the time around here. No tax stamp = state charge for possession of a dangerous weapon.

 

[Double Naught Spy]

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.

No, I don't think so. Your example specifically concerned refusing to present NFA papers, and that PC should not exist just because the weapon is NFA.

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.

Local LEOs don't enforce federal statutes.

While they may not enforce federal laws, that doesn't mean that they cannot enforce federal laws. You even stated as much.

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

You don't think detaining violators of federal law by local law enforcement isn't enforcing federal laws? They certainly can enforce at least some federal laws.

http://www.cis.org/StateEnforcement-LocalEnforcement
http://www.immigrantsolidarity.org/Documents/State-localenforcementtoolkitfinal.pdf
http://www.fas.org/sgp/crs/homesec/R41423.pdf

 

[ec4321]

.The way I see it you have 3 choices.

1. Read the law--it's clear. Go with what it says.
2. Pay a lawyer to read the law to you. Go with what he/she says.
3. Make your arguments to the cops when they show up and ask for your paperwork. See how that works for you.

I don't know what else to tell you.

Not a question about how I would handle an LEO asking me for my paperwork, I would, and I would advise everyone to, provide it with a smile.

However, I have to disagree with the idea that NFA holders, even in TX, are criminals.

 

[dprice3844444]

plus you forgot to add the tow bill for your car

 

[Frank Ettin]

We're getting very far afield into self defense. So let me see if I can explain how probable case works and an affirmative defense works.

Evidence establishing probable cause to believe a crime has been committed and that you committed it is usually readily apparent (openly holding a Title II weapon, smoking your joint on the street corner, standing over a body with a smoking gun in your hand) or available to law enforcement using its various investigative tools (interviews, forensics, search warrants, etc.). Probable cause will support your arrest. It will also support charging you with the crime.

The prosecutor evaluates the evidence and decides if he has sufficient evidence to convince a jury beyond a reasonable doubt that you committed the essential elements of the crime (you possessed a Title II weapon, you possessed marijuana or you intentionally shot a particular person). If he decides he does, he goes to the grand jury and seeks an indictment (the expression of the grand jury's opinion that probable cause exists to believe you committed the crime) or he files a bill of particulars (or something similar called by a different name in the particular jurisdiction); and you are bound over for trial.

[Alternatively, evidence establishing your affirmative defense becomes apparent early on. For example, you promptly furnish you NFA paperwork or medical marijuana card. Or it's apparent from the circumstances that your use of lethal force was justified self defense. In such cases, it will go no further than the filing of a report.]

You go to trial presumed innocent. That means that it's the burden of the prosecutor to overcome that presumption of innocence by proving beyond a reasonable doubt that you committed the essential elements of the crime (you possessed a Title II weapon, you possessed marijuana, you intentionally shot a particular person). If he can't meet his burden of proof, you are entitled, under your presumption of innocence, to an acquittal.

So the normal defense tactic is to try to create a reasonable doubt that it was you, that you did it or that you did it intentionally. That will be pretty hard to do when you were seen holding the sbr, or when you were out in public openly smoking your doobie, or when you claim you had to shoot in self defense.

There is another class of defenses. These are called affirmative defense. If you are asserting one of these defenses, you are saying that you aren't guilty because you were legally entitled to do what you did. You were legally entitled to possess this Title II weapon or marijuana. You were legally justified in shooting this person who attacked and would have killed you if you had not used lethal force to stop him.

The principal evidence supporting your affirmative defense is within your control (your tax stamp, your medical marijuana card, your testimony about how you were attacked). And since this evidence is within your control, the law requires that you raise your affirmative defense and put forward the evidence to support it.

Does that clear things up for you?

...If an LEO shoots a suspect in an armed robbery, are they arrested?...

The LEO will be placed on administrative while the circumstances are thorough investigated. LEOs have been arrested and charged.

...I have to disagree on that, if you mean that in practice no arrests are made without PC. They can and do happen....

Unless the LEO is a rogue, he will not make an arrest unless he believes that he has probable cause. Sometimes there's a disagreement about that, and the question goes to a judge. The the judge decides.

 

[NavyLCDR]

Frank,

I think you are carrying this too far. We aren't talking about LEO arresting anyone. A LEO only needs reasonable suspicion to detain a person for investigation.

If the law says possession of an item is illegal, and LEO sees a person in possession of that item, reasonable suspicion is established. When LEO detains that person for the item the law says is illegal to posses, the subject can dispel the reasonable suspicion by providing evidence that they are exempt from the law making the item illegal.

If the person fails to provide evidence dispelling the reasonable suspicion, then the officer has probable cause to arrest the person.

 

[kimbershot]

i got a freakin headache--where's perry mason when you need him.:banghead:

 

[ec4321]

If the law says possession of an item is illegal....

Well, it's not quite that simple. It says it's illegal unless properly registered.

If the law says possession of an item is illegal, and LEO sees a person in possession of that item, reasonable suspicion is established.

This is the question, and I question if reasonable suspicion exists in every single case of an NFA weapon in and of itself. Or, if it requires more. Without a doubt Reasonable Suspicion requires the officer to take in to account all the known facts. I think that under most circumstances the LEO would be able to articulate reasonable suspicion satisfactory to legal scholars, in almost all (99%+) the judge would give the leeway and accept the LEO's description under reasonable suspicion (even if it technically fell short), but in some special (perhaps rare?) circumstances I don't think reasonable suspicion would exist.

"Reasonable suspicion is evaluated using the "reasonable person" or "reasonable officer" standard,[3] in which said person in the same circumstances could reasonably believe a person has been, is, or is about to be engaged in criminal activity; it depends upon the totality of circumstances, and can result from a combination of particular facts, even if each is individually innocuous."

i.e. I don't think it would be reasonable for an LEO to walk into a known, well established SOT/3 dealer with no history of anything shady and suspect the GE Mini Gun they have is illegal contraband. I don't think reasonable suspicion exists there.

This also brings up how I got to the "Probable Cause" standard. Upon reasonable suspicion, if the one being detained exercises the right to remain silent (no paper work is presented) - does that RS now turn into PC for the arrest?

 

[Frank Ettin]

Okay, that's enough. This is getting circular. Two pages of going over the same ground with the OP and not getting anywhere.