My google- fu isn't working. I'm researching for my possible first NFA item and am trying to determine how I might set up a trust, or whether I may just want to register as an individual. In my current situation I reside with some people I don't necessarily want to give legal power over the property but I also want to avoid making them accidental felons. Is there a common accepted or ATF prescribed way of determining possession or "no longer under your personal control?" Is it as simple as having the item secured and what is the minimum definition of secured? Perhaps it is just easier and simpler to build a pistol for now until my living situation is changed? Also if you register as an individual can you later add it to a trust or is that another $200?
What constitutes possesion of an NFA item
- Thread starter sawdeanz
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Aaron Baker
Member
To answer your last question first, if you own an NFA item as an individual and want to transfer it to a trust, you will have to pay another $200 tax and submit a Form 4. The ATF regards you and your trust as separate entities. I recommend that if you think you're going to want a trust any time down the road, get it now. It saves you from paying the transfer tax twice, and you can certainly be the sole trustee on your trust for now.
You could also list your roommates on the trust, which would solve the problem of whether they could legally possess the NFA items when you're not present. But it sounds like you don't necessarily trust them enough for that.
There's no legal definitions of what is the bare minimum required to secure NFA firearms when they are in someone else's presence but you're not around.
The best recommendation would be to get a gun safe for your NFA firearm. If you have a locked gun safe that your roommates can't access, that should satisfy any requirements that they not be in possession (including "exercising dominion or control" which is what people mean by "constructive possession"). In theory, leaving the firearm in your room, unsecured, and leaving the house, would be a problem, because your roommates have the ability to exercise control over the firearm.
If you lived alone, best practice would still be to have a safe, but you probably wouldn't run into any issues leaving the firearms at home unsecured as long as you locked your door when you left and no one else had a key to your residence. Under that theory, if your current living situation makes it possible to lock your room with a key, then you might be okay leaving your firearms in the house as long as the roommates couldn't access them.
At some point, this entire debate gets very academic. At the end of the day, what you want to know is: if the ATF had reason to be in your house (or other law enforcement cooperating with the ATF), and they found that your NFA firearms weren't in a safe that only you had the key to, what situations would they decide were "possession" by your roommates and prosecute you (or them) for?
No one really can say, in an exhaustive sense, for sure. Take reasonable and common-sense precautions. I've seen it suggested that an AR15 SBR that was chained through the magwell to a secure point (such as a radiator) would be okay, but that seems a little... I don't know... strange? Who would chain an AR15 to a radiator? Just buy a small safe or lockbox.
Hope that helps!
Aaron
You could also list your roommates on the trust, which would solve the problem of whether they could legally possess the NFA items when you're not present. But it sounds like you don't necessarily trust them enough for that.
There's no legal definitions of what is the bare minimum required to secure NFA firearms when they are in someone else's presence but you're not around.
The best recommendation would be to get a gun safe for your NFA firearm. If you have a locked gun safe that your roommates can't access, that should satisfy any requirements that they not be in possession (including "exercising dominion or control" which is what people mean by "constructive possession"). In theory, leaving the firearm in your room, unsecured, and leaving the house, would be a problem, because your roommates have the ability to exercise control over the firearm.
If you lived alone, best practice would still be to have a safe, but you probably wouldn't run into any issues leaving the firearms at home unsecured as long as you locked your door when you left and no one else had a key to your residence. Under that theory, if your current living situation makes it possible to lock your room with a key, then you might be okay leaving your firearms in the house as long as the roommates couldn't access them.
At some point, this entire debate gets very academic. At the end of the day, what you want to know is: if the ATF had reason to be in your house (or other law enforcement cooperating with the ATF), and they found that your NFA firearms weren't in a safe that only you had the key to, what situations would they decide were "possession" by your roommates and prosecute you (or them) for?
No one really can say, in an exhaustive sense, for sure. Take reasonable and common-sense precautions. I've seen it suggested that an AR15 SBR that was chained through the magwell to a secure point (such as a radiator) would be okay, but that seems a little... I don't know... strange? Who would chain an AR15 to a radiator? Just buy a small safe or lockbox.
Hope that helps!
Aaron
plodder
Member
Not to hijack sawdeanz thread, but could he not name the individuals who reside with him as trustees to his NFA trust, yet keep the actual NFA items secure in a safe which only he can access? That way, if the worst unforeseen visit were to occur at the most inopportune time, nobody we be in the grey area of "possession" that was not a trustee.
In other words, wouldn't the fact that individuals were listed as trustees allow them to be "in possession" of the NFA items even if sawdeanz was not present? (yes, I did read the part where he would prefer not to have them be his legal representative, but just looking at one way to put his mind at ease from the NFA implications angle)
In other words, wouldn't the fact that individuals were listed as trustees allow them to be "in possession" of the NFA items even if sawdeanz was not present? (yes, I did read the part where he would prefer not to have them be his legal representative, but just looking at one way to put his mind at ease from the NFA implications angle)
GarySTL
Member
My NFA items are individually owned because at the beginning Missouri only allowed NFA if you had an FFL. Now it would cost too much to switch. It's only my wife and I and she doesn't care.
Aaron Baker
Member
Yes, that's totally an option. Name them as trustees to make it legal, but don't actually allow them to possess the firearms.
Trusts are definitely not worthwhile for everyone. I often advise people with multiple firearms that are individually-owned to consider carefully whether it's worth investing in a trust.
Aaron
Sebastian the Ibis
Member
What do you mean by "legal power?" Do you mean mere "possession," or are you concerned about your roommate selling your guns off? If you are worried about the latter, name your roommates as beneficiaries (with the ability to possess) but not trustees (with the ability to sell).
MasterSergeantA
Member
Question for Mr. Baker...
I believe the answer is obvious, but I will presume that "prohibited persons" may NOT be named as either trutees or beneficiaries?
I believe the answer is obvious, but I will presume that "prohibited persons" may NOT be named as either trutees or beneficiaries?
Ed Ames
Member
I think that depends on the trust.
E.g. the nfa trust a lawyer sold me specifically says that prohibited persons or those under 21 cannot be trustees, but that beneficiaries who cannot legally possess trust property are incapacitated (meaning they don't get to make decisions about trust property). One of my requirements is that a prohibited person or child could be a beneficiary.
Aaron Baker
Member
Trustees must be at least 18.
They shouldn't be. A good NFA trust has language to automatically disqualify trustees who are or who become prohibited persons. Otherwise you have a potential constructive possession problem even if they're not currently in physical possession.
Beneficiaries can be prohibited, but if they are, the trust should have language to allow the sale of the firearms and for the proceeds to be given to the beneficiary, rather than actually passing the trust property, which would be illegal. (And it's good to have language that allows the trust to continue to exist if the beneficiaries are minors, until they're old enough to inherit.)
A beneficiary does not have a right of possession over trust property until after the grantor's death. If you have beneficiaries that are not also trustees (it's possible to be both), then you should not be allowing them to possess trust property when they are not in the presence of a trustee. That could be prosecuted by the ATF as an illegal transfer and illegal possession of an NFA firearm.
Public service message: these are reasons it's a good idea to pay an attorney to draft your NFA trust, so that you can get accurate information about what you legally can and cannot do.
Aaron
Phaedrus/69
Member
+1 to that! I looked at all the DIY trust kits online then said 'screw it!' and hired a local attny that specializes in them. It cost me $325 but it was money well spent! He walked me through the details and gave me a brief but useful education, plus he sent me on my way with a 'cheat sheet' too. Plus I can always get ahold of him with questions. The best part is I know it's done right!
What is the ultimate goal? To own a short barreled AR for it's application and ballistics, or to own an SBR for the cost of the stamp, trust, and being a Federally approved possessor?
Two completely different things. Effectively, the guns are nearly the same, one has a stock, the other doesn't. Effectively the ballistics don't change, range is out to 125m, longer if you practice diligently, but a carbine with 16" barrel will easily exceed that.
Both are intended for short range use, a 2MOA gun on an 18MOA target. The addition of a stock - for $200 plus trust plus $x for the stock will equal what improved accuracy?
It's being used under 125m, right down to 21 feet. It's a Personal Defense Weapon - or a more effective pistol for deer hunting.
Which can you use more in FL? Aside from the complications of having other people in the domicile gain access to it if not stored in a safe (which I strongly recommend regardless of who they are.)
If they need a firearm, they should have their own. Not yours, not to endanger your possession thru their misuse, and certainly with their own instruction on how to use one responsibly.
In light of all those legal liabilities and costs, a lot don't go SBR. I don't need to burden my family with the entanglements of Federal oversight or the expense of disposal should I expire prematurely. A pistol has legal advantages that outweigh the SBR disadvantages, and the incremental aid of improving accuracy isn't worth it.
Answered because the OP asked . . .
Two completely different things. Effectively, the guns are nearly the same, one has a stock, the other doesn't. Effectively the ballistics don't change, range is out to 125m, longer if you practice diligently, but a carbine with 16" barrel will easily exceed that.
Both are intended for short range use, a 2MOA gun on an 18MOA target. The addition of a stock - for $200 plus trust plus $x for the stock will equal what improved accuracy?
It's being used under 125m, right down to 21 feet. It's a Personal Defense Weapon - or a more effective pistol for deer hunting.
Which can you use more in FL? Aside from the complications of having other people in the domicile gain access to it if not stored in a safe (which I strongly recommend regardless of who they are.)
If they need a firearm, they should have their own. Not yours, not to endanger your possession thru their misuse, and certainly with their own instruction on how to use one responsibly.
In light of all those legal liabilities and costs, a lot don't go SBR. I don't need to burden my family with the entanglements of Federal oversight or the expense of disposal should I expire prematurely. A pistol has legal advantages that outweigh the SBR disadvantages, and the incremental aid of improving accuracy isn't worth it.
Answered because the OP asked . . .
Thanjs for the responses, I finally found a local lawyer on reference from a buddy and who is within my budget. I think he will be able to help me figure out if it's going to be appropriate. Even though I would be securing the sbr, if the trust can't properly protect the underaged from constructive possession than out of an abundance of caution I will probably just keep it as a pistol for now. Eventually I would make it an sbr because although pistols are legally convenient I dont see the point. An sbr would at least serve better as a general carbine.
Ed Ames
Member
I don't think the trust is going to do anything about constructive possession.
The trust handles the case of allowing underage people to have something akin to ownership (being beneficiary, they would/could receive the proceeds if the NFA items were sold) while denying them the legal right to possess.
Constructive possession, taken to its limit, is the theory that everyone with a rifle and a hack saw possesses a SBR. The sanity check there is constructive possession is something a prosecutor must argue to a judge. If a judge heard the saw argument she would probably laugh.
Your defense there is to lock your NFA gear and don't give keys to the kids.
The trust handles the case of allowing underage people to have something akin to ownership (being beneficiary, they would/could receive the proceeds if the NFA items were sold) while denying them the legal right to possess.
Constructive possession, taken to its limit, is the theory that everyone with a rifle and a hack saw possesses a SBR. The sanity check there is constructive possession is something a prosecutor must argue to a judge. If a judge heard the saw argument she would probably laugh.
Your defense there is to lock your NFA gear and don't give keys to the kids.
Aaron Baker
Member
That's ONE example of the legal theory of constructive possession. It's important to understand that, as a legal concept, it encompasses multiple scenarios. The biggest mistake non-lawyers make when discussing constructive possession in the firearms context is thinking that it has something to do with "constructing" a firearm.
In the legal context, it doesn't mean "relating to construction." It means "implied by operation of law" and is an antonym to "actual."
This plays out in several ways. But let's just use some examples to clarify. (And bearing in mind that for every case, because this is an attenuated theory, there's always going to be a defense argument that there WASN'T constructive possession. I'm just using common, hopefully obvious, examples of where courts have found there was. Different courts don't always find the same ways even with similar facts.)
Guns:
1) Joe is holding a rifle with a stock and a 12" barrel that isn't registered with the ATF. This is actual possession of an illegal SBR.
2) Joe has a rifle with a stock and a 12" barrel that isn't registered with the ATF. It's under his truck's seat when he's pulled over, but he isn't holding it. This is constructive possession of an illegal SBR because he has the ability to exercise dominion and control over the illegal SBR.
3) Joe has an AR15 lower receiver with a stock in his garage on the workbench. Joe also has a 12" barreled upper receiver underneath the workbench in a box. These are the only AR15 parts he owns. Joe posted on a local gun forum, "Screw the ATF. I'm gonna make me an SBR and I ain't registering it!" Joe has constructive possession of an illegal, unregistered SBR. (Not every example of constructive possession will require these elements, but what hurts Joe here is his obvious intent to make an illegal SBR, and possessing components in close proximity with no other legitimate purpose.)
These theories don't just apply to Joe and his guns. They apply to all sorts of contraband. When Joe gets to jail, he meets his cellmate, Walter, who doesn't like guns. He likes drugs.
1) Walter gets arrested with some methamphetamine in his pocket. Walter has actual possession of methamphetamine.
2) Walter, driving around alone, gets pulled over and the cops search his car. In his glovebox, there's a packet of methamphetamine. Walter has constructive possession of the methamphetamine because he had the ability to exercise dominion and control over it. (And unfortunately for his defense attorney, there's no passenger to try to pin it on instead.)
3) Walter is in his RV when the cops bust in. They don't find any methamphetamine, but there's a cook underway. Walter has all the ingredients to make methamphetamine and has started the process, but not finished it. It could be argued that Walter has constructive possession of methamphetamine.
Now... in light of the last drug example, there's some good things we can talk about. In drug cases, most states would not charge Walter with possession of methamphetamine in the last case. It would be hard to make the charge stick because there's no actual meth yet. So many state legislatures have gotten clever and made some new laws to fight the explosion of meth use. For instance, manufacturing methamphetamine is a separate crime in Kentucky, and doesn't require a finished product. Possession of methamphetamine precursors is also a crime. If you have some plastic tubing, some coffee filters, and some lithium batteries in your actual possession, you can get convicted of possession of meth precursors if the jury believes you intended to make meth.
How does that relate to guns? Well, everyone gets worried about whether you should have an extra part (lower, upper, stock, etc) for an AR15 around because of the risk of prosecution for constructive possession of an unregistered SBR. But that's a very rare type of prosecution. It's hard for the ATF to prove their case, and they aren't running around kicking in doors looking for this situation. If you have lots of different guns and extra parts, will a jury really believe that you meant to make an SBR? If you're an average Joe, probably not. And if you've already applied for a tax stamp, then your lawyer can easily argue to the jury that you never intended to make an SBR until it was legal for you to do so. Hard to get a conviction that way. The guy who gets convicted is the guy with criminal underworld connections who has a small assembly line in his shop with lots of pieces that could be made into a machine gun, but haven't been yet. Just because the ATF had the misfortune to raid on the day that he doesn't have a machine gun built, doesn't mean they can't get a conviction based on constructive possession. A jury will buy that.
Generally, we shouldn't worry about that theory of constructive possession. Instead, we should worry about when we allow people to exercise dominion or control over a registered NFA firearm that they're not legally allowed to possess. If I have a nice glass-front gun cabinet and I leave my short-barreled shotgun in it, then that's fine as long as I'm home. But if it's owned individually by me, and I leave to go to the store while my wife stays home, then there's the potential for her to be charged with possessing an SBS that's not registered to her, under a theory of constructive possession.
That's what OP is trying to avoid, and although the likelihood of he or his roommates being charged is low, it's still a risk, and one that he's smart to avoid.
Aaron
Ed Ames
Member
But that sounds like another instance of the same theory. What's the difference?
I considered using the example of "an SBR in a locked case and a cutting tool to open the case" but it just gets messy as a way of expressing the same idea. You need to say something like "an SBR legally owned by Adam is in a locked safe in Bob's possess, and Bob doesn't have a key but does have a cutting tool that could open the safe..." to be even half as clear as the example I gave.
Arizona_Mike
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The fact that the ATF considers trusts an entity at all is a peculiarity of tax law (not found in other areas of laws) that has all kinds of interesting implications, complications, and contradictions (parts of the current NFA--including the Hughes Amendment that reference "persons"--are in Title II under 18 USC). Because trusts not being persons under 18 USC, some believe that a proper textural interpretation would mean the registry is still open for trusts. Though it has nothing at all to do with guns, King v. Burwell may indicate the court's current feel on literalism.
Mike
Aaron Baker
Member
arizona_mike said:
Yep. It's a pretty interesting issue. I'll be fascinated to see what the court does with it. I, for one, would be happy to use my trust to register a new machine gun, just for the novelty.
Now, as to Ed Ames' questions:
Ed Ames said:
(I added more of my quoted post than you did, to try to make things clearer.)
I'm not sure what the confusion is. I tried to be clear with my examples. I guess the real problem is that non-lawyers wonder "where does this theory stop?"
As I said, there's definitely a subset of constructive possession theory that deals with whether you possess something simply because you possess its component parts. And there's another subset of constructive possession theory that deals with whether you possess something because you have the ability to exercise control over it even though it isn't literally in your hands or on your person.
The subset of theory that OP is asking about is the latter. He has roommates. He is thinking of having an NFA firearm. He's worried about them being "accidental felons" if he leaves the NFA firearm home alone, unsecured. It's the same as my example of me going to the store while my wife stays home.
That's different from the "rifle and a hacksaw" theory or component parts theory.
The important point here is that there's a way for a trust to protect against one situation, but not the other. Anyone named on a trust as a trustee can legally possess the trust's NFA firearms. That may or may not be what the OP wants to do to solve this situation, but it's one possible solution. On the other hand, a trust can't protect against illegal possession of an unregistered SBR. If the trust doesn't own the firearm, there's no protection.
Your objection seems to be that there's a way to employ the theory of constructive possession to reach absurd results. That's true, in theory. In practice, it's limited by case law. Constructive possession is not a creature of statute. There's no single written rule about what it means to constructively possess something. Instead, for any given jurisdiction, whether it's a particular state or federal, there's a set of cases that give us an idea of what constitutes constructive possession.
If you have a safe in your house that only you can open, and you keep your NFA firearms in it, then anyone else left alone in your house is not in constructive possession. The fact that any safe can be cracked isn't going to be enough to convince a court of constructive possession.
If you have a single short AR15 upper and a single AR15 lower with a stock, not in the NFA registry, and they're both in the same range bag alone, then you're probably in constructive possession of an unregistered SBR. If you own a regular rifle and a hacksaw, then you're not going to be convicted of constructive possession.
The gray area questions are things like: what if you have a registered lower, two short uppers for it, and a spare rifle lower? Or what if you don't have a gun safe, but you leave your registered SBR in your bedroom and lock your bedroom door while your roommates are home alone?
I don't know the answers to those questions because, as far as I know, there aren't cases directly on point that give an answer. Instead, I can say this: you're not likely to be caught and prosecuted. You're also not likely to be convicted even if you are prosecuted. But it's still a good idea to avoid those situations, if you can, as a risk avoidance technique.
I'm happy to talk about trusts and constructive possession all day, so if I'm still not making sense, let me know.
Aaron
Aaron has clarified the version of constructive possession I was trying to figure out, and probably should have clarified earlier. He also pretty much says what a lawyer was able to confirm for me today, and will be adding the others as beneficiaries as an abundance of caution.
Aaron Baker
Member
Just one final clarification: although trusts are a creature of state law, under Kentucky law (and as far as I know every other state), beneficiaries don't have a present right of possession. In order for a person to be protected by a trust (and legally allowed to possess the trust's NFA firearms), they have to be listed as a trustee.
Aaron
Aaron
Ed Ames
Member
I never wondered that. My non-lawyerly assumption was that it stops when a judge won't buy it any more, no matter what precedent you cite.
Having thought about the subject myself, recently, I would rather trust my safe and not share keys than make certain people trustees. But that's me.
Not seeing it but I'll take your word for that. Sounds like different expressions of the same principle.
Not an objection, just a caution flag.
In a sensible legal system once someone pulled the old reductio ad absurdum on the theory, that would be the end of it and nobody would be willing to face the ridicule that would follow trying to argue the idea again.
Since that isn't the case, there is no logical way to predict just how much absurdity a particular judge will allow. Which means no way to guarantee you are completely safe.
That is without a doubt the more accurate way of expressing what I as a layperson sum up as "what the judge will allow."
What if you had a drawing of the gun with a shorter barrel? Marks and tape on the barrel for cutting? I bet there is a line, short of ever touching saw to barrel, past which you would be charged.
I think the next real sea change is going to be when someone has a 3d printer and a data file for printing a prohibited device. Or maybe that has already happened. Is there case law about that yet?
I'm pretty sure you were always making sense. I hope I was too. As to whether we made sense to each other, that may be too much to ask for.
I have a trust question tho: OP just mentioned adding roommates as beneficiaries. How does that protect them from (any expression of) constructive possession? My trust (drafted by a local lawyer) doesn't allow beneficiaries to possess, which is exactly what I wanted ... oops, looks like you just posted an answer to my question before I asked it.
Aaron Baker
Member
Our entire legal system is based on a "social contract," or agreement among all of us, that the system works a certain way. The basic idea is that we have multiple levels of appellate courts, and that all lower courts are bound by the decisions of higher courts. We have statutory law (law arising statutes written by the legislatures) and case law/common law (law arising from ancient principles and cases decided by courts).
So, a statute says you can't possess an unregistered short-barreled rifle. Case law/common law (usually) defines what it means to possess something. That definition will change over time as technology and society changes. Once upon a time, there was no such thing as crack cocaine or automobiles. So at some point, a court had to decide whether someone "possessed" crack cocaine when it existed under the seat of the car that they were riding in. That exact issue had never been decided before, and so the court would have looked to cases with similar issues from their own (and sometimes other nearby) jurisdictions. (Maybe a case where illegal untaxed tea was possessed in a horseless carriage?) A legal scholar could probably have predicted the outcome of that case by looking at the same precedents that the judge was looking at.
That's a lot of what lawyers do. They look at statutes and case law and try to decide how the facts of their own particular case fit within that. Sometimes it's obvious. Sometimes it isn't. Sometimes you appeal that case to the highest court you can to get a "final" answer.
To complicate things, sometimes you're asking a judge for his opinion, and other times, you're letting a jury decide.
But the point is: on the one hand, you're right that we can never know exactly what the contours of the law are and how they'll be applied to a given case, as all cases have different facts. On the other hand, a lot of times the facts are similar enough that we can make accurate predictions.
Sometimes there are "rogue" judges that don't do what the case law predicts they would do, and sometimes the appellate courts don't fix that problem like you expect them to.
But with all that said, for certain sets of facts (the non-gray areas), we can say things with pretty reasonable certainty.
That's a fair decision. But if you DO trust certain people, then adding them as trustees solves the problem (from a legal standpoint) as effectively as the safe.
The underlying theory of constructive possession is the same. But there's still a fundamental difference between these two examples. In one, you have an ACTUAL firearm that DOES exist and the only question is whether a particular person is really possessing it or not. In the other case, you don't have an actual firearm, but a POTENTIAL firearm that DOESN'T exist yet, and the question is whether it would be so simple to slap it together from the parts that we will nevertheless deem it to exist.
Both serve the purpose of not allowing criminals to get away scot free because they can say "but I'm not touching it!" or "but those two pieces aren't connected!" when in reality we know exactly what they're up to. It's a tool, for better or worse, that makes policing easier.
No case law about 3D printers yet, as far as I know. However, possessing plans is protected by the First Amendment, and 3D printers have purposes other than making guns. So that'd be a hard argument for a prosecutor to make.
Much in the same way that a regular rifle is perfectly legal and so is a hacksaw, and a hacksaw has many different uses.
As I said, these are the clearcut examples. Your "marks and tape on the barrel" with a hacksaw laying next to it is what I'd call more "gray area." Gray areas are best to avoid.
As you said, I sort of answered this. But to be even more clear: it may be possible to draft a trust that DOES allow beneficiaries some present right of possession. However, most trusts do not. Under a "standard" revocable living trust setup, the language most likely allows for trustees to possess, but for beneficiaries to only have a contingent future interest and no current right of possession.
Aaron
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