Please help explain constructive possession

[WestKentucky]

I am curious about constructive possession and particularly the possession of “spare parts” with which a person has no use. For sake of argument let’s just say that the parts retain some minimal monetary value and as such the owner chooses not to discard them.

Scenario 1:
Owner at a later date acquires an AR pistol and now owns all of the parts to assemble them into configuration of an SBR. Is this constructive possession? Owner has no other AR and the stock has been in the spare parts bin for a while, and owner has no intention of using them to create an illegal weapon.

Scenario 2:
Same as above but owner owns both an AR pistol and AR carbine. Parts can be assembled in multiple ways to configure both non-NFA configurations as well as NFA configurations.

Scenario 3:
Gun when purchased is technically an unregistered SBR but is purchased as two halves, separated and never put together again. The short upper becomes a pistol while the carbine lower becomes a carbine. For the trip home, is there constructive possession? For sake of argument the dummy who assembled it didn’t know better.

Scenario 4:
Same as scenario 3 however new owner only wants to build out the pistol. He retains a complete carbine lower but does not own a carbine upper. Since there is no way to complete this chunk of gun into a legal configuration, but all other chunks can be used legally is this constructive possession?

It seems that this is mostly a concern for modular firearms. And since there aren’t as many modular guns as there are standard guns that the law is not as clear or as well understood as other laws. It’s not as simple as “don’t own this item”, it’s more in line with “don’t own the stuff to make this item.”

 

[Frank Ettin]

I am curious about constructive possession and particularly the possession of “spare parts” with which a person has no use. ....

The OP has asked a serious question dealing with a complex subject. And bad information could get someone onto a lot of trouble.

People responding should back up their opinions with applicable, legal authority. Guesses or unsupported opinions will not be welcome.

 

[Carl N. Brown]

This is the Legal forum. Answers should be based on what the law is and how the enforcing agency, ATF, interprets the law. Letters from the ATF Firearms Technology Branch carry more weight than the opinion of the guy sitting next to you at the barber shop.

Keep it legal and keep the thread open.

I would like to get some clarity on this subject myself because it is murky. Reading the book of regulations, the ATF.gov FAQ, the letter of the law, does not completely inform me of the ATF interpretation or court rulings that impact how law is currently enforced.

 

[dogtown tom]

ATF Ruling 2011-4
https://www.atf.gov/file/55526/download

 

[WestKentucky]

ATF Ruling 2011-4
https://www.atf.gov/file/55526/download

That’s not the easiest read. I will have to go through that again. Essentially from what I gather is that as long as there is a way to assemble legally in a non NFA manner then it’s not constructive possession but if there is no way to assemble legally then it’s no longer legal as you would be assumed to be in the act of making an NFA firearm without stamp.

thank you for posting. It does likely clear up a few things if I read it right... but I have to read it again.

 

[Frank Ettin]

...Essentially from what I gather is that as long as there is a way to assemble legally in a non NFA manner then it’s not constructive possession but if there is no way to assemble legally then it’s no longer legal as you would be assumed to be in the act of making an NFA firearm without stamp....

Be careful about over simplifying thing when dealing with legal matters. Things can get complicated. If you're dealing with a real life legal matter you're best off consulting a good lawyer.

 

[pdsmith505]

The answer to this line of scenarios resides in ATF Ruling 2011-4 which can be found here.

The ruling is primarily a result of the Supreme Court's opinion in United States v. Thompson/Center Arms Co. (91-0164), 504 U.S. 505 (1992) which can be found here. Keep in mind that the only portion of that opinion that creates precedence is the plurality opinion written by Justice Souter. The good news, which is beyond the scope of the posited scenarios, is that 2011-4 goes further than US v TCA to cover other firearms and allows for conversion parts that were not originally part of a complete kit

2011-4 references US v TCA to provide the answer to Scenario 1 and Scenario 3, in that the person would be in possession of an NFA firearm because the parts have no purpose other than to make an NFA firearm. Keep in mind that the upper receiver of an AR-15 is not legally a firearm in it's own right, so when removed from the lower it doesn't become a "pistol" or a "rifle"... just parts.

Held, a firearm, as defined by the National Firearms Act (NFA), 26 U.S.C.
5845(a)(3), is made when unassembled parts are placed in close proximity in such a way
that they:
(a) Serve no useful purpose other than to make a rifle having a barrel or barrels of
less than 16 inches in length (e.g., a receiver, an attachable shoulder stock, and
barrel of less than 16 inches in length); or
(b) Convert a complete weapon into such an NFA firearm, including –
(1) A pistol and attachable shoulder stock; and
- 4 -
(2) A rifle with a barrel of 16 inches or more in length, and an attachable barrel
of less than 16 inches in length.

The same section applies to Scenario 2, but comes to the opposite result... the person is NOT in possession of an NFA firearm because the parts can be configured to make non-NFA firearms.

As for Scenario 4, I have to assume you mean to say that the firearm (lower receiver in the AR case) was originally built as a rifle. If that is the case, then that firearm will forever be a rifle, or a firearm made from a rifle, and 2011-4 provides guidance there as well. Since there is no rifle-length upper receiver, the collection of parts to include the rifle-first firearm would trigger constructive possession as in Scenario 1 and 3.

Nonetheless, if a handgun or other weapon with an overall length of less than 26 inches, or
a barrel or barrels of less than 16 inches in length is assembled or otherwise produced from
a weapon originally assembled or produced only as a rifle, such a weapon is a “weapon
made from a rifle” as defined by 26 U.S.C. 5845(a)(4). Such a weapon would not be a
“pistol” because the weapon was not originally designed, made, and intended to fire a
projectile by one hand.

...


Held further, a firearm, as defined by 26 U.S.C. 5845(a)(4), is made when a handgun
or other weapon with an overall length of less than 26 inches, or a barrel or barrels of less
than 16 inches in length, is assembled or produced from a weapon originally assembled or
produced only as a rifle. Such weapons must be registered and are subject to all
requirements of the NFA.

I'll put forward a Scenario 5 as well:
A person is at a shooting range with his legal AR pistol and decides to buy a new stock for the legal AR rifle he has at home. In the immediate moment, the parts (stock + AR pistol) he has in his possession serve no other useful purpose than to create an NFA firearm. The fact that he has an AR rifle at home doesn't change the immediate reality.

 

[aaronu]

Scenario #6

A friend bought his first and only AR last fall by purchasing an assembled lower and a DC complete upper receiver. He was very excited and sent me pics. The lower was a standard carbine but the upper featured a 10.5" barrel.

I called him right away and he was able to cancel the order for the pistol upper. I found him a good quality 16" carbine upper from another seller and he purchased that. Crisis averted.

This is a new shooter who had never seen or used an AR platform firearm. Thankfully, he has some training and range trips now. At the time he didn't realize the two halves could be put together without buying any more parts (thought he needed to buy takedown pins separately) and likely would have kept the lower and upper unassembled for some time. He also had no idea about the NFA and assumed since he could buy the parts online, it must be legal. As it was all he had, IANAL but would consider it constructive possession.

If he did assemble them into an SBR and later I told him heck no bad idea that would be worse because the parts were actually assembled? Even if they were later taken apart wouldn't that very act define the lower forevermore as a rifle? Assuming anyone ever asked, and he actually answered?

Could he have averted the issue without cancelling the order for the pistol upper but instead buying a pistol lower?

 

[WestKentucky]

Scenario #6

A friend bought his first and only AR last fall by purchasing an assembled lower and a DC complete upper receiver. He was very excited and sent me pics. The lower was a standard carbine but the upper featured a 10.5" barrel.

I called him right away and he was able to cancel the order for the pistol upper. I found him a good quality 16" carbine upper from another seller and he purchased that. Crisis averted.

This is a new shooter who had never seen or used an AR platform firearm. Thankfully, he has some training and range trips now. At the time he didn't realize the two halves could be put together without buying any more parts (thought he needed to buy takedown pins separately) and likely would have kept the lower and upper unassembled for some time. He also had no idea about the NFA and assumed since he could buy the parts online, it must be legal. As it was all he had, IANAL but would consider it constructive possession.

If he did assemble them into an SBR and later I told him heck no bad idea that would be worse because the parts were actually assembled? Even if they were later taken apart wouldn't that very act define the lower forevermore as a rifle? Assuming anyone ever asked, and he actually answered?

Could he have averted the issue without cancelling the order for the pistol upper but instead buying a pistol lower?

That’s essentially the same as scenario 1. The spare parts (complete lower) serve no other practical purpose other than to pair the carbine lower with whatever upper is available which makes it an SBR. So is it spare parts, or constructive possession of a SBR. I think the eyes of the person looking at it might have very different opinions. Not at all unlike the guy with a mossberg 500 stock sitting around forgotten and that fancy shockwave that he just bought, or leftover pistol barrel in the parts bin and only carbine or rifle lowers around.

 

[WestKentucky]

Here is a very real scenario. I traded into this collection of parts. I have other parts that are not pictured including a complete contender pistol. I have a block of aluminum to make a barrel stub and I have a couple takeoff 22 barrels handy, so realistically I have parts to construct a contender rifle, but I don’t have a complete barrel yet. The stock is already vamoosed from my home until such time as I have completed the 22 barrel. I did have a loose contender grip in the glove box when I made the trade so that at least when I got the parts I had a legal way to assemble. But it would be questionable as all get out for a short barrel, rifle configured frame, and a rifle scope to be together.

 

[jmorris]

View attachment 977873 Here is a very real scenario. I traded into this collection of parts..

Personally, I would call the NFA branch of the BATFE at 304-616-4500 and be directed to someone there that can answer your questions and post photos afterwards.

From an ask permission vs forgiveness aspect.

Or at least post parts than can be configured legally different ways.

 

[WestKentucky]

Personally, I would call the NFA branch of the BATFE at 304-616-4500 and be directed to someone there that can answer your questions and post photos afterwards.

From an ask permission vs forgiveness aspect.

Or at least post parts than can be configured legally different ways.

View attachment 977928

I might do that on Monday, but I am sure that what is in my possession is legal. Just because the parts are not in the picture does not mean that they aren’t in close proximity. In fact that picture was taken on the top of my coffee table and the other contender parts are stored in that coffee table. I really need a better way to store barrels, and just came up with a pretty slick idea.

 

[dogtown tom]

.....If he did assemble them into an SBR and later I told him heck no bad idea that would be worse because the parts were actually assembled? Even if they were later taken apart wouldn't that very act define the lower forevermore as a rifle?

"Rifle"? No, if assembled as you described, it never met the definition of "Rifle" in ATF regulations.........it met the definition of "short barreled rifle".

Assuming anyone ever asked, and he actually answered?

If it gets as far as asking, its too late.

Could he have averted the issue without cancelling the order for the pistol upper but instead buying a pistol lower?

There's no such thing as a "pistol lower".....it's just "lower" until assembled as a long gun, hand gun or other firearm.
If he bought a complete lower with shoulder stock he could remove the shoulder stock first and then could assemble a handgun using that 10.5" bbl upper. Unless he has another legal use for that shoulder stock he shouldn't keep it in his possession.

 

[dogtown tom]

Personally, I would call the NFA branch of the BATFE at 304-616-4500 and be directed to someone there that can answer your questions and post photos afterwards.

The dumbest thing you could do is take the verbal advice from someone at ATF. Most likely the best answer they will give is to direct you to the appropriate and applicable portions of ATF regs. They may tell you to put your question in writing. If their response is not in writing its questionable and easy to deny.

From an ask permission vs forgiveness aspect.

Nope. Never. Ever.
It's not about asking permission.

Or at least post parts than can be configured legally different ways.

US vs Thompson Center was about a kit that included a receiver, handgun bbl, rifle bbl, pistol grip and a shoulder stock. That doesn't mean every one who owns those parts can assemble a handgun>rifle>handgun. If the firearm in West Kentucky's photo above was first assembled as a rifle, it cannot ever be configured as a pistol.

 

[jmorris]

Most likely the best answer they will give is to direct you to the appropriate and applicable portions of ATF regs.

Hm, that’s what I did when I built my 50 BMG and they send me a soft cover book of all their regulations.

For me it beat taking advice from someone on an Internet forum.

 

[aaronu]

.

 

[BreechFace]

The dumbest thing you could do is take the verbal advice from someone at ATF. Most likely the best answer they will give is to direct you to the appropriate and applicable portions of ATF regs.

This. Especially in the day and age of the ATF flip flopping on issues with no worry about future ramifications their "decisions" have on law abiding citizens.

Hm, that’s what I did when I built my 50 BMG and they send me a soft cover book of all their regulations.

For me it beat taking advice from someone on an Internet forum.

This would be preferable, along with consulting some legal help where clarification of things not understood is needed.

 

[aaronu]

Agree w/the points about getting things in writing. Given the current political climate I expect more "flip flopping" from the BATFE. For the purpose of this discussion that just means err on the side of caution.

This is not specifically a legal citation but we have other incidents of constructive possession. Here is one from Florida involving a guy selling his H&K SP-89.

https://blog.princelaw.com/2009/09/01/florida-man-arrested-for-constructive-possession-of-an-sbr/

Mr. Amador was arrested under Florida law but the case was dropped and he got his firearm back. I do not know the details but what got him off the hook was the clause in the Florida law that said it was to be consistent with Federal law?

This was discussed here on THR as well.

https://www.thehighroad.org/index.p...for-constructive-possession-of-an-sbr.472404/

Although from the name calling the road wasn't very high in this particular thread...

Mr. Amador a.k.a. @Digitalage03 weighed in directly. See post #46. To his mind he is just fighting the good fight.

The salient point for me in this case is that intent plays a role. To convict on constructive possession, the prosecutor must show intent. Yet this case was dropped even though the sale of the H&K included a case with foam fitting that included a spot for the stock required to make the firearm NFA regulated. Bear in mind an SP-89 stock can be switched over in less than a minute.

If anyone knows specifics of the Florida case (or another) that are germane to constructive possession discussion in this current thread please weigh in?

 

[Kleanbore]

To convict on constructive possession, the prosecutor must show intent.

Intent to do what?

 

[dogtown tom]

Sure, I suppose. I was trying to use the verbiage from the document you linked and should have written "NFA Firearm".

But this is semantics. If he had assembled the lower and upper he would have violated NFA by constructing a SBR and we all understand that.

Semantics can be the difference between a felony and not a felony.

Too late for what?

If he had assembled an SBR (he didn't; he cancelled the order for the pistol upper and never received it) would he be obligated in some way to admit this to law enforcement, assuming they somehow discovered it?

If ATF is asking him questions....its because he's under investigation.

Sure there is.

Nope, there isn't. Prepare yourself.

A "pistol lower" is one that is assembled to operate as a pistol, as in assembled with a pistol buffer and possibly with a brace as well. This is not a legal definition but rather a term in common use.

Sorry, but YOU don't get to define firearms as YOU see fit.....ATF does. And ATF clearly does not have any such animal as "pistol lower". As to being a "term in common use"......only by those ignorant of what the regulations and federal law actually says.

Having a lower and a pistol buffer in his possession would allow my friend to legitimately push back against constructive possession, especially if he took the time to remove the carbine buffer tube from his lower.

Pffft.......right now you should just stop giving advice, because despite what you think, doing what you suggest would have no impact on the legality.

I think it also matters what the 4473 says. The first time I bought a stripped lower the 4473 form only had "long gun", "pistol" and "other" checkboxes. The seller asked me what I intended to build: a long gun or a pistol. I told him I was undecided and he marked "other". The form was later updated and now has a text entry with a range of allowable values including "other" and "receiver", but the transferor/seller is still obligated to supply accurate information.

Well, no it doesn't. Before 2008 there wasn't a means to designate a firearm frame or receiver on the 4473, it was Handgun/Long Gun/Both. It wasn't until the revision in August 2008 (that became effective in January 2009) was the option for type of firearm Handgun/Long gun/Other firearm.
Even then, a dealer who erroneously checks "handgun" on the 4473 for a firearm frame or receiver.........doesn't make that lower a "pistol lower". Again, a firearm frame or receiver is not a handgun or long gun until completed as such.

(As an aside: in many states the firearm type entry on the 4473 is used to prevent the 18-21 age group from purchasing a pistol. For a purchaser in that age group, the transfer can only be for some type of long gun. Assuming that it is a state where 18-21 year olds can still purchase AR platform long guns. In those cases the 4473 "long gun" is the only valid option.)

Horsehockey. Not in any state or territory is that true. The dealer must follow the same instructions on the Form 4473 as dealers in every other state or territory.
The Gun Control Act of 1968 prohibits the transfer of any firearm to persons under age 21. Later, it was amended to exempt the sale of rifles amnd shotguns to eighteen year olds.
Read: https://www.atf.gov/firearms/qa/doe...rtain-age-buy-firearms-or-ammunition-licensee


Dealers who knowingly transfer a firearm frame or receiver as a "long gun" are committing a violation of federal law. Not just that, but they are stupid, stupid, stupid for not reading the instruction printed in every Form 4473. Read: https://www.atf.gov/firearms/qa/may...eiver-unlicensed-individual-who-less-21-years

IANAL but I submit that an assembled lower with pistol brace installed could be, maybe should be, sold as a pistol on the 4473. An assembled lower with carbine stock could be and maybe should be listed as a long gun.

One doesn't need to be a lawyer to know you are wrong. So wrong you will be embarrassed after some reading.
An "assembled lower" whether with a pistol grip and pistol buffer.........is just a firearm receiver until a barreled upper is attached. Same with an assembled lower with shoulder stock.....just a receiver until completely assembled as a rifle.
Start with "Meaning of Terms": https://www.ecfr.gov/cgi-bin/text-i...&tpl=/ecfrbrowse/Title27/27cfr478_main_02.tpl

Frankly I agree with the point that a carbine stock can be removed etc... but one would want to make sure the completed lower was sold as "receiver" or "other" and not as "long gun" on the 4473.

Well, being that that's been the guidance from ATF for over a decade you think every dealer would know. Again, even if the dealer erroneously checks handgun or long gun instead of other firearm.......that doesn't change what the firearm actually is. No more so than if he checked "Long gun" on a Colt Python doesn't make that Python a rifle or shotgun.

I would appreciate if any FFL holders can clarify how they would list a completed AR lower on a 4473 given that such a device has defining characteristics that infer its type to be a long gun or pistol.

One just did.
When in doubt, read the instructions to Question 24 on page 5 of the 4473. And again, a completed lower DOES NOT have the "defining characteristics" of a long gun or handgun.

 

[aaronu]

Intent to do what?

That was within the context of the Florida case, specifically from the Prince Law blog. Intent to construct an SBR from a pistol and other parts. Amador had a case fitted for his H&K SP-89 with accessories. The accessories included a stock that would turn the SP-89 into an SBR.

 

[aaronu]

@dogtown tom I wasn't trying to offer advice. I am trying to figure this out. That is why I wrote that I am not a lawyer and ended that discussion with a request for clarification from experienced FFL holders. Like yourself apparently. Nonetheless I removed my post as it is not constructive. Thank you for taking the time.

In 2009-ish when I purchased some lowers the FFL wanted me to specify firearm type for them and cautioned me that getting it wrong could cause issues down the road with the BATFE. The link you provided about selling receivers to people aged 18-21 being bad is dated 2015 so the BATFE has clarified "receiver" on the 4473 and this isn't an issue.

I am still interested if anyone can answer the QUESTION on whether a prosecutor must show intent in order to prove constructive possession. This was suggested on the Prince Law blog in reference to the Florida constructive possession case.

 

[Frank Ettin]

.... am still interested if anyone can answer the QUESTION on whether a prosecutor must show intent in order to prove constructive possession...

Intent is generally an element of a crime, and must be proved for conviction. But what constitutes intent, and what may be probative of intent, can vary with the particular crime. That's where case law comes in.

I'm not planning to do the research, but prosecutors prove intent, often with circumstantial evidence, to the satisfaction of juries all the time.

 

[dogtown tom]

@dogtown tom ... The link you provided about selling receivers to people aged 18-21 being bad is dated 2015 so the BATFE has clarified "receiver" on the 4473 and this isn't an issue.

Well, ATF didn't decide in 2015 that a dealer could not sell a receiver to people aged 18-21.........that's been federal law since 1968. The last time ATF REVIEWED that FAQ was in 2015.

I am still interested if anyone can answer the QUESTION on whether a prosecutor must show intent in order to prove constructive possession. This was suggested on the Prince Law blog in reference to the Florida constructive possession case.

As evidenced by the fellow in Florida, if one chooses to walk a tightrope you better be prepared to fall. While the state prosecutor chose to drop charges in that case, it doesn't mean he wasn't in constructive possession of an SBR. I believe he was. He had all the parts required to assemble an SBR, no tax stamp and no legal use for the HK shoulder stock.....pretty much a textbook example of constructive possession. I think (based on his THR posts) he ain't the brightest bulb in the box.

Whether the US Attorney filed/dropped federal charges isn't mentioned. You don't have to go to trial for ATF to ruin your life. There are other enforcement actions that will make your gun hobby cease to be fun.

 

[RickD427]

@dogtown tom
I am still interested if anyone can answer the QUESTION on whether a prosecutor must show intent in order to prove constructive possession. This was suggested on the Prince Law blog in reference to the Florida constructive possession case.

I'm neither a prosecutor nor a lawyer, just a retired LEO who spent more than 30 years putting cases together for prosecution.

When you discuss "Intent" with regard to proving a crime, it's important to remember that there are two different types of intent. "General Intent" crimes are those where it is only necessary to prove that the defendant knowingly did the things that satisfied the elements of the crime. "Specific Intent" crimes are those where it is necessary to prove that the defendant intended that his/her/its actions would produce a specific outcome. Here is a pretty good general essay describing the difference: https://www.nolo.com/legal-encyclopedia/general-vs-specific-intent.html

To expand on the content of that essay, in the case of a "General Intent" crime, the only intent that is required is that of doing the act. In the essay's example of Jill punching Jack to commit a battery, the outcome would be different if Jill was attempting to swat a fly and hit Jack by accident. There would be no battery because Jill did not intend to strike Jack.

You can easily distinguish "General Intent" crimes from "Specific Intent" crimes by parsing out the words of the corresponding statute. "Specific Intent" crimes will list the element(s) describing the required intent.

I've never taken a NFA case into a federal court. I have taken many cases involving NFA weapons into California courts. The California state definition of a "Short Barrel Rifle" (the subject of this discussion): is:

As used in this part, “short-barreled rifle” means any of the following:
(a) A rifle having a barrel or barrels of less than 16 inches in length.
(b) A rifle with an overall length of less than 26 inches.
(c) Any weapon made from a rifle (whether by alteration, modification, or otherwise) if that weapon, as modified, has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length.
(d) Any device that may be readily restored to fire a fixed cartridge which, when so restored, is a device defined in subdivisions (a) to (c), inclusive.
(e) Any part, or combination of parts, designed and intended to convert a device into a device defined in subdivisions (a) to (c), inclusive, or any combination of parts from which a device defined in subdivisions (a) to (c), inclusive, may be readily assembled if those parts are in the possession or under the control of the same person.​

When you parse out the words of the statute, "Intent" does appear in subpara (e), but the intent is that of the part's designer for the part to be for the purpose of conversion. Please note the use of the conjunctive "or" within subpara (e) meaning that if either of the two clauses is satisfied, then the elements of subpara (e) is satisfied. It is not necessary that both be satisfied. There is no "Intent" language contained in the second clause. Where the defendant has all of the parts, the second clause applies and the crime would therefore be a "General Intent" crime. All the prosecutor has to do is show that you knowingly had the parts. There is no need to show that you intended to assemble them into an illegal weapon.

But it is also important to note that prosecutors do not file charges in every case where it is possible for them to do so. The BATF has published guidance regarding the applicability of the federal NFA to constructive possession cases. That guidance recognizes that the possession of certain combination of parts can be assembled into legal, and illegal, configurations and in such cases the NFA is not violated. I cannot think of any California prosecutor that would file state law charges in such a case, even if it were technically possible.

There are many ways to show the intent element at trial. The two most common are: 1) An admission, or an adopted admission, by the defendant. and 2) By showing the absence of any other plausible explanation for the defendant's conduct other than his/her/its intent. A good investigator will attempt to cover both bases. Defense counsel will normally try to suppress any admissions that were made. But if the admissions are presented to the trier of fact, they tend to be compelling. The showing of no other plausible explanation is less compelling, but isn't subject to suppression. To effectively challenge it, the defense pretty much has to have the defendant testify and no defense attorney likes doing that. Crooks often lie, and can lie convincingly, but they rarely lie consistently and they rarely integrate their lies into a cohesive presentation. That often tends to create some comedy, and a conviction, when the defendant does testify,