Charged for NFA Violation

[farscott]

I am confused (a common occurrence when it comes to the intricacies of law) by constructive possession and the NFA, especially as it applies to the AR. As an example, it is legal for an individual to own a 14.5" upper on an AR carbine receiver if the carbine receiver itself is on an approved Form 1 or Form 4. The issue is that the characteristic (the short barrel on a rifle receiver) that makes the gun a "firearm" per the NFA is not the serialized carbine receiver; it is the barrel length of the upper being less than 16" and/or the OAL of the firearm being less than 26". Yet the registered lower receiver is the NFA item, not the non-serialized upper.

So now let's assume I have a registered SBR and a regular 16" barreled AR. Both are under my control. While I would have no reason to do so, swapping the uppers on the receivers is illegal and would be creating an unlicensed SBR. It is also very simple to do if both ARs are under my control. It is most definitely not legal. If there is no intent to do a swap, the NFA act has not been violated. That part I get (I think). The part that confuses me is where is the line. In other words, assume I want to build a registered SBR and am awaiting my Form 1 approval. I purchase from my dealer a 12.5" upper. If I were to bring that upper home before the Form 1 is approved, that is a violation even if I never try to assemble the upper onto an unregistered lower because both the upper and lower are in my possession and I have the ability, if not the intent, to assemble an SBR. Correct? If I leave the 12.5" upper at my FFL, I do not have possession and control of it, and there is no potential for an NFA violation. Correct?

So what happens if I have a regular AR carbine that is assembled and a 12.5" upper that is not on the registered lower because the registered lower is NOT at the premises, say for repair or refinishing? Is that an NFA violation because I have the ability, if not the intent, to swap the uppers? Once the Form 1 is approved, should the 12.5" upper never be in a different location than the registered lower?

I want to be very clear that I am not trying to evade the law in any way. I just want to be sure that I am not going to inadvertently violate it as I am strongly considering going the SBR route on a few things.

[DpdG]

I am confused (a common occurrence when it comes to the intricacies of law) by constructive possession and the NFA, especially as it applies to the AR. As an example, it is legal for an individual to own a 14.5" upper on an AR carbine receiver if the carbine receiver itself is on an approved Form 1 or Form 4. The issue is that the characteristic (the short barrel on a rifle receiver) that makes the gun a "firearm" per the NFA is not the serialized carbine receiver; it is the barrel length of the upper being less than 16" and/or the OAL of the firearm being less than 26". Yet the registered lower receiver is the NFA item, not the non-serialized upper.

So now let's assume I have a registered SBR and a regular 16" barreled AR. Both are under my control. While I would have no reason to do so, swapping the uppers on the receivers is illegal and would be creating an unlicensed SBR. It is also very simple to do if both ARs are under my control. It is most definitely not legal. If there is no intent to do a swap, the NFA act has not been violated. That part I get (I think). The part that confuses me is where is the line. In other words, assume I want to build a registered SBR and am awaiting my Form 1 approval. I purchase from my dealer a 12.5" upper. If I were to bring that upper home before the Form 1 is approved, that is a violation even if I never try to assemble the upper onto an unregistered lower because both the upper and lower are in my possession and I have the ability, if not the intent, to assemble an SBR. Correct? If I leave the 12.5" upper at my FFL, I do not have possession and control of it, and there is no potential for an NFA violation. Correct?

So what happens if I have a regular AR carbine that is assembled and a 12.5" upper that is not on the registered lower because the registered lower is NOT at the premises, say for repair or refinishing? Is that an NFA violation because I have the ability, if not the intent, to swap the uppers? Once the Form 1 is approved, should the 12.5" upper never be in a different location than the registered lower?

I want to be very clear that I am not trying to evade the law in any way. I just want to be sure that I am not going to inadvertently violate it as I am strongly considering going the SBR route on a few things.

Again, as mentioned above, you are not discussing the "constructive possession" as a legal premise. When discussing complicated legal principles, I believe it best to use the appropriate and precise legal terms.

As to the meat of your discussion, I believe the preferred course is to either A) not buy a short upper until SBR lower is fully and appropriately registered or B) obtain short lower and possess or assemble a pistol lower to go with it while waiting for SBR registration process to be completed.

I am NOT a lawyer or NFA expert, but I've witnessed an ATF case before.

edit- slight wording change

[Lon]

When I built my SBR I purchased everything BUT the barrel prior to getting my stamp. The day I got the stamp I ordered the barrel.

[joshs]

There is physical (aka "actual" possession), for example when you have an item in your hands. Then there is "constructive possession" when you don't physically possess the item, but have the power and intent to exercise dominion and control over the item, even though you don't have physical possession of the item. For example if you put an item in the trunk of your car, and then walk away, you no longer physically possess it, but it's still yours, and you have the power and intent to exercise dominion and control over the item, so you are then in constructive possession of that item.

Also, Black's Law Dictionary defines "constructive possession" as, "A person has constructive possession of property if he has power to control and intent to control such an item." Com. v. Stephens, 231 Pa.Super.481, 331 A.2d 719, 723. "Being in a position to exercise control over a thing." US v. DiNovo, C.A.Ind., 523 F.2d 197, 201.

Doesn't have anything to do with the ability to "construct" an item, but rather the manner in which you possess an item.

ETA: That's not a stupid question at all.

It's still about ability and intent to possess, since the government cannot show actual possession where the gun is not in an NFA configuration. They instead have to show that defendant had control over all of the items with the intent to possess an NFA configuration. It doesn't mean "constructive=to construct" but these cases are still about constructive rather than actual possession.

[Lon]

Here's a part of the Kent decision:

Turning to the instant case, we find that § 5861(d), as applied to Kent under the facts of this case, also is not vague. While there is no direct evidence that Kent had assembled the rifle using the short-barreled upper receiver unit before, there was sufficient evidence, as outlined above, that Kent did not have the short-barreled upper receiver unit for parts, but for use with the lower receiver unit, which would constitute possession of a "firearm" required to be registered under § 5861(d) of the NFA.

They don't call it constructive possession, they call it straight up possession.

Edit: whatever they call it, it still seems like what "constructive" possession is all about.

As far as the constructive possession topic, the easiest example I see at work is this:

A couple of dopers in the car and a Baggie of <insert drug of choice here> on the center console. When stopped by the man they both say "not my dope, must be the other guys". The each are in a position to establish "dominion and control" over the dope and could both be charged with it. (See Maryland v. Pringle https://www.oyez.org/cases/2003/02-809)

[psalms144.1]

And again, let's not forget Rule 1 when it comes to tricky legal issues, to whit: "Don't be an @$$h01e." While I have very little doubt that the subject in this matter was, in fact, in possession of an unregistered SBR, even if he WASN'T, his @$$h01e activities brought him to the attention of LE.

Where I'm confused is in some of the legal semantics here. Let me pose this hypothetical (which I HATE to do, but sometimes you just gotta!):

Mr. X has a complete and assembled AR pistol in his car, along with a complete rifle lower for a "roll your own" rifle project. For whatever reason, he gets stopped, and his trunk gets searched. Is he in violation of the NFA? Make it even less clear - both "weapons" (remember a serialized lower is a weapon) are in his home, and there's a fire to which police respond and see the weapons. NFA foul?

The more I think about this, the gladder I've become that I don't have, and don't want, any AR pistols...

ETA - why is this in the LE subforum?

[GardoneVT]

Here's my Holiday Inn Express reconstruction of events.

Dude gets angry in traffic.

Dude points his Glock at the hapless driver. The complainant calls the cops and tells them where to find an angry doofus with a pistol.

Cops find an angry doofus with a pistol eating at a diner. Cops search the vehicle to discover evidence of Bad Judgement about, and make arrests to that effect.

Dude hires an attorney who says "you were a Doofus, can't help ya much here." Doofus calls three other attorneys. Two tell him the same thing. The other hangs up after laughing for five minutes straight.

Dude takes a plea deal. Dude checks into his duly reserved room at the Graybar Hotel.


Don't see the problem here.

[farscott]

And again, let's not forget Rule 1 when it comes to tricky legal issues, to whit: "Don't be an @$$h01e." While I have very little doubt that the subject in this matter was, in fact, in possession of an unregistered SBR, even if he WASN'T, his @$$h01e activities brought him to the attention of LE.

Where I'm confused is in some of the legal semantics here. Let me pose this hypothetical (which I HATE to do, but sometimes you just gotta!):

Mr. X has a complete and assembled AR pistol in his car, along with a complete rifle lower for a "roll your own" rifle project. For whatever reason, he gets stopped, and his trunk gets searched. Is he in violation of the NFA? Make it even less clear - both "weapons" (remember a serialized lower is a weapon) are in his home, and there's a fire to which police respond and see the weapons. NFA foul?

The more I think about this, the gladder I've become that I don't have, and don't want, any AR pistols...

ETA - why is this in the LE subforum?

The above is exactly why I have avoided AR pistols and why I have not yet jumped into the AR SBR.

[TDA]

Sometimes I wish I had a way to appear in a puff of smoke whenever someone is confused by legal semantics, but then I guess I'd have to do it all the time.

If you've only got two bits that go together to make an NFA foul, then we can construe that as being the purpose for which you've got them.

The legal argument that one has AR halves that cannot be combined into a legal configuration, only an illegal one, but would never dream of doing so because that would be naughty is... not so implausible that an attorney would be disciplined for presenting it in court, but it is the kind of utterly typical dog of an argument defense attorneys trot out for the initial "not guilty" plea as a prelude to the bargaining stage, probably not with the intention of seriously trying to sell it to a jury. This is where the argument that while implausible, it is not actually impossible that maybe someone else combined the separate upper and lower to violate the NFA comes from.

In the case of the TC Contender kit where you've got the bits for legal configurations and an illegal one is possible as well, the law does not assume you're going to assemble them in an illegal configuration just because it's one of the possible options. At least, for the fact pattern presented in that case, which involved a package deal from a manufacturer and not anything remotely like a road rage incident. I can't cite anything, but I have heard informal guidance that in my state it's unwise to have one's pistol upper and rifle lower in the same town at the same time.

And since anecdotes are fun, I will say that in my personal experience stupid NFA tricks of this sort are common, and people love to talk about them. (Not like we're doing here, which obviously people love to do, but as in "let me tell you about the federal felony I committed but am not taking seriously.")

[psalms144.1]

And since anecdotes are fun, I will say that in my personal experience stupid NFA tricks of this sort are common, and people love to talk about them.

And post photos of them on the internet, and write letters asking "what about this?" to the ATF, and other kinds of mouth-breathing f-tardery.

Seriously, though, thanks for your insight on the parts and pieces hypothetical!