Class III are full-auto firearms. You know, "machine guns". Heres the info...
------------------
GETTING THE LAW ENFORCEMENT CERTIFICATION
As noted above one administratively imposed requirement for an NFA transfer to an individual is a certification from a chief law enforcement officer with jurisdiction over where you reside. This (and the cost of the gun) is what usually keep interested, and otherwise qualified, persons from obtaining one. This process is what the law and ATF regulations contemplate as the way to get a signoff, if you need one.
Step 1: You ask the following persons if they would sign; the local chief of police (if any), the local sheriff, the local district (prosecuting) attorney, the chief of the state police, and the state Attorney General. The CLEO can delegate the signing duty, for his convenience, if he wishes.
Ask that they refuse in writing, if that is what they will do. You may be surprised, one might sign. That list of persons comes from 27 CFR sec. 179.85, which is the regulation that created the law enforcement certification requirement for Form 4's. 27 CFR sec. 179.63 is the companion regulation for Form 1's. The requirement is NOT in any statute passed by Congress.
Although not listed, and ATF will NOT designate federal officials as also acceptable (see below) other persons whose certification has been acceptable in the past include; local U.S. Attorney's, local federal judges, local U.S. Marshals, and local supervising F.B.I. agents. Other local federal law enforcement agents might also work.
It is helpful, in general, to quote the certification text for the CLEO, or provide a copy of the form. That way they know what you are asking them to certify. For a Form 4 it reads, "I certify that I am the chief law enforcement officer of the organization named below having jurisdiction in the area of residence of (name of transferee). I have no information that the transferee will use the firearm or device described on this application for other than lawful purposes. I have no information indicating that the receipt and/or possession of the firearm described in item 4 of this form would place the transferee in violation of State or local law."
Step 2: Copy the refusal letters, and send the copies to the NFA Branch of ATF. Some CLEO's may refuse to even provide a response in writing. Just indicating that the CLEO refused to sign, and also refused to provide a written response, should be sufficient. Ask ATF to designate other persons whose signature would be acceptable, as the ones listed in the regulation would not sign.
They are required to do this by the same regulation, it is the 'safety valve' for when none of the designated persons will sign. ATF will almost certainly say that they will accept the certification of a state judge who has jurisdiction over where you live (same as the chief, D.A. and sheriff in step 1, they have to have jurisdiction over where you live, although the regulation doesn't say that, just the Form 4) and who is a judge of a court of general jurisdiction, that is a trial court that can (by law) hear any civil or criminal case.
No limit as to dollar amount in civil cases, or type of crime in criminal cases. No small claims court or traffic court type judges, in other words. Let's assume the judges refuse.
Step 3: Get back to ATF, Send them copies of the rejection letters, if any, and ask that they accept a letter of police clearance, or a police letter saying you have no criminal record/history with them, in lieu of the certification, together with your certification that you are OK, and that the weapon would be legal for you to have where you live.
They will either respond OK, or with more persons to try. If you reach the point where they will not accept the police clearance letter, and not designate someone who has not turned you down, you can sue, if the certification is for a Form 1, or the transferor (seller) on a Form 4 can sue.
There are two cases on this issue. The first is Steele v. NFA Branch, 755 F.2d 1410 (11th Cir. 1985), where the 11th circuit federal appeals court said a person trying to transfer a gun to one who was otherwise eligible to own the gun, but could not get the certification from anyone acceptable to ATF, could sue to force the transfer without it.
In the Steele case (the plainitff was a potential transferor in a Form 4 transfer) had not asked everyone acceptable to ATF, as well as not alleged, as part of his case, that the potential transferee was otherwise eligible by law to own the weapon, and the case was disposed of on those grounds. Note that the version of the regulation creating the certification requirement, reproduced in the footnotes of the Steele case, has a different list of acceptable persons.
After some were named as defendants in the Steele case (including the then U.S. Attorney for the Miami, FL., area, Janet Reno, later anti-gun Attorney General during the reign of Pres. Clinton), all the federal law enforcement officials listed (U.S. Marshals and U.S. Attorney's) were removed from the regulation, supposedly at their request. See Federal Register, October 15, 1985, 50 Fed.Reg. 41680.
Correspondence from ATF indicates they will not designate any federal officials as other acceptable persons either. The Steele decision was followed in the case Westfall v. Miller, 77 F.3d 868 (5th Cir. 1996), in which a transferee, not transferor, sued over non-approval of a Form 4 without the certification. Again Westfall did not ask everyone listed in the regulation.
Again his case was thrown out for lack of standing. The court said they could not tell if the reason he couldn't get the gun was an illegal requirement, the signoff, or his own failure to try and get a signoff.
This certification is not really a big deal for the chief law enforcement officer (CLEO) making it, and it DOES NOT expressly make the CLEO legally responsible for the weapon or your use of it, or its theft. I have not heard of any successful lawsuit against a CLEO for signing the certification for a gun that was criminally misused.
That is, in my opinion, a spurious excuse for not signing. There is even one case addressing this issue that I am aware of, Searcy v. City of Dayton, 38 F.3d 282 (6th Cir. 1994).
The estate of a drug dealer murdered by an off duty Dayton, Ohio, police officer with his personally owned "Mac-11" machine gun sued the city that employed the cop. One of the grounds for suit was the police chief's having signed the transfer paperwork for the murder weapon. The court held that that claim should have been dismissed by the trial court.
Without a showing by the plaintiff that somehow the act of signing was negligent (under Ohio law) and led to the harm (murder) complained of, there was no cause of action. Signing the form was not negligent in itself, nor was it a reckless or wanton act, as the trial court claimed the plaintiff could try to prove at trial.
The case against the chief of police was later dismissed by the trial court. Although this case is only directly binding on federal courts in the area covered by the 6th circuit, and need not bind any state courts, the court recognized what common sense, and the certification say, the person signing does not open himself up to any liability by doing so.
The Searcy case is something to which you can point a CLEO who claims to refuse to do the signoff because of liability. Incidentally Stephen Halbrook, a leading lawyer in gun rights cases, and a longtime lawyer for the NRA, as well as an author, says in his Firearms Law Deskbook (published by Clark Boardman Callaghan) that this case is the only instance of a registered machine gun being criminally misused by its registered owner he is aware of.
Other Avenues to NFA Ownership
There are solutions to the law enforcement certification problem. They all require persistence, but less work than being a legitimate NFA dealer, in my opinion. Becoming a licensed dealer is one solution though. Another solution is to be incorporated.
If you are already the owner of a corporation, as part of your business (doctor, lawyer or architect for example) your corporation can buy NFA weapons, and the photo, police signoff and fingerprints are not needed. Just a Form 4. The corporation might be buying weapons for an investment, or for security, or for another good reason. You could incorporate yourself just to get NFA weapons also, although you should talk to a lawyer or another knowledgeable person about the downsides of being incorporated before just doing it, as well as any income or other tax consequences in your location.
As the weapons are registered to the company, and not the owner of the company, they will have to be transferred out, tax paid (unless the transfer is otherwise exempt from the tax, ie from a government entity, or for an unservicable weapon), if the corporation is ever dissolved. As corporate assets, creditors might get them in the event of bankruptcy of the corporation, or a judgment against the corporation.
In my opinion the best thing is to have the weapons owned and registered to the person who actually owns them, and not an intermediary. I also am aware that in some areas of the country the incorporation route may be the only way to own NFA weapons, as a practical matter. Also be aware that corporations have no 4th amendment right against self-incrimination, and the restrictions the NFA law places on the use of information provided to ATF under the Act (26 U.S.C. sec. 5844) only apply to information provided by natural persons, not corporations.
You are giving up some of the privacy provided by law to flesh and blood people when you acquire your guns through a corporation.
--------------------------
Copyright by James O. Bardwell, 1994 - 2000. Permission is given to reproduce this document or portions thereof with attribution, for non-commercial, or non-governmental use only. No claim to U.S. statutes or regulations quoted herein.
This is accurate, to the best of my knowledge, as of 1/23/2000. Nothing written here should be taken as legal advice.
[This message has been edited by Dennis Olson (edited April 27, 2000).]
