Family situation with firearms

[treg]

Consult an attorney, see if he can get the felony expunged.

If he can, go get the guns for safe keeping until the felony is off his record. After the proceedings he can legally get them back. Your service ought to be worth a gun or two at that time.

Just an idea, I know a guy who had a felony expunged. He can now own firearms. Same thing, stupid stuff, but it was less time between crime and expungement.

 

[KyJim]

Do NOT transfer any firearm to him. If he wants to keep the firearms, his best recourse is to see about getting a pardon since it was a petty theft 40 years ago.

And let me say that, depending upon a state's specific law, a felon living in a house with guns can be convicted of unlawful possession if he has access to the guns. Take my word on this.

In my state, mere knowledge of his unlawful possession would not make you an accomplice to a crime he might commit but this may be different in each state.

 

[bcarver]

black powder

Someone mentioned black powder pistols.
Just because a weapon does not have to go through a FFL dealer doesn't mean it can be owned by a felon. Curios, relics and muzzleloaders are all weapons.

 

[MMABC]

I'd read about these restrictions on felons before. I think there's been some recent cases similar to my brother's. A petty theft as a teenager and now he can't legally defend himself for the rest of his life, and there's virtually no way to get out from under it? Or, he can use some black powder gun? That's just stupid. I thought it was unfair before, but it puts a new dimension with it hitting this close to home.

I know now why he didn't want to admit to having the shotgun and Luger. I'm torn on wanting to even ask him to give up either one now. Sure do want those guns though. I have a lot of memories tied up with them.

 

[Shadi Khalil]

I agree with everyone else who says DON'T TRANSFER ANY FIREARMS TO HIM. He should give up the guns and work on getting the felony exponged... I know people make mistakes but Felony thefts are never "minor".

 

[MMABC]

Tell me about this pardon business. How does that work? Any ideas on how much that would cost or the likelihood of success? It's a long story, but you have no idea how much that conviction has wreaked havoc on his whole life.

 

[MMABC]

Consult a lawyer before anyone with the authorities catches on that he's been in illegal possession of firearms. Inheritance won't get around felony possession.

That would really suck if the guns ever got confiscated. Of all the things that I had worried might happen to the guns if I don't get them now, that would so **** me off!

 

[MMABC]

He should give up the guns and work on getting the felony exponged... I know people make mistakes but Felony thefts are never "minor".

It was a trumped up charge for theft of some worthless used items. He became a felon for being an idiot and nothing more. Obviously not minor in the consequences, but it was a very petty crime. I know he won't be surrendering these guns just to be righteous with the government. I support him completely. He has certainly paid dearly for this minor crime, and enough is enough. It may be worth getting it expunged, but having to do anything else is in no way righteous or just.

 

[simonkenton]

Someone said that felons cannot possess muzzleloaders.
According to federal law, there are no restrictions on whether a felon can possess a muzzleloader.
State laws vary widely.
In New Jersey, a muzzleloader is considered a firearm, and cannot be possessed by a felon.
In North Carolina, no restrictions on whether a felon can have a muzzleloader.
I am pretty sure that in Texas a felon may possess a muzzleloader.


Has he automatically committed a crime just by the death of my father, or perhaps when he probates the will and officially takes legal ownership of my father's estate? That doesn't seem right.

If the guns are locked in a safe which he does not have access to then he has not committed a crime.
If the guns are setting in a closet he is, indeed, committing a crime. The guns, setting in a closet that he has access to, are legally in his possession.

It also looks like it's legal under state law. Wouldn't he have to get busted by federal agents?

Very good point. If he had a run in with deputies, or city cops, he would be ok, since he is not violating state law.
But, let's say his house were searched by IRS agents. Muchos Problemas.
Let me give you a case that happened up here in Asheville NC a few years ago.
There was a deer that had been adopted by a herd of cattle.
Every day this deer stood out in the meadow and grazed on the grass with the cows.
Cars would pull over, and there would be 8 or 10 people standing there, taking photos of the deer.
One day, a stupid 53 year old hillbilly pulled up and shot the deer dead with his 30/30.
While 3 people dialed 911 on their cell phones, this guy was dragging the deer from the field.
The guy got 2 weeks in the county jail, for hunting out of season, and tresspassing.
Turned out, this guy had had a felony, 30 years earlier.
The sheriff didn't charge the guy for a gun crime, because in NC a convicted felon, who has completed probation, is allowed to own one rifle [but not a pistol!]
The case was so notorious that is made the Asheville paper.
In that great Liberal city, a zealous US Attorney investigated, and indicted the guy for Felon in Possession of a Firearm.
His attorneys argued that NC law trumped federal law.
Evidently, they were wrong, because that dumb hillbilly is now doing 7 years in Leavenworth.

BTW, I haven't committed any crime. I'm merely trying to understand the legality of his situation and of trading guns with him.

Seems pretty clear that knowing he has a felony, it would be illegal for me to trade with him. Although, I'd think it would be a far stretch to see how I could ever get convicted for it. If it ever came back to me, I could always claim I gave it to my father, not my brother. Personally, I don't see anything morally or ethically wrong with a trade. He's already got the guns.

Difficult to understand the situation. Very complicated.
As far as your getting caught on a trade, first, if the feds busted your brother, and he was headed for 7 years in Leavenworth, which he certainly would be, the first thing the feds would offer him would be a deal. If he could rat someone else out, they would cut his sentence in half, something like that.
In other words, if he ratted YOU out for providing him with the guns, he gets out of 3 1/2 years in the pen.
Are you sure your brother wouldn't rat you out?
Lots of people would.
The feds reward rats handsomely.

You are right, there is nothing morally or ethically wrong with the trade.
The only problem with the trade is it is illegal.
This is just another example of Big Brother gradually eating away at gun rights.

It's only a hypothetical. I'd like to get the guns, but I'm not sure it's worth the hassle. I think he'll give me the rifle and shotgun, assuming that is, that I can actually get him to take the guns to a dealer.

Did I miss something? Why do you need to take the guns to a dealer?
If your brother goes to the dealer with the guns, he is committing, a federal felony right in the presence of a FFL holder.
Simplest deal, you go get all the guns. It ain't right, it ain't fair, and it ain't according to the Law of the Land, the US Constitution.

 

[Hokie]

CALL A LAWYER.

Anything else you read or hear on TFL or any other place isn't going to be officially reliable. A lot of lawyers will give you a free initial consultation, and the lawyer will keep what you say a secret (or else lose his license). It would be great if your brother could get his record expunged. Your first concern right now should be keeping yourself out of jail, followed by keeping him out of jail, followed by preserving the guns.

Incidentally, if he could get to the guns while father was still alive then he was probably breaking the law.

 

[MMABC]

If the guns are locked in a safe which he does not have access to then he has not committed a crime.
If the guns are setting in a closet he is, indeed, committing a crime. The guns, setting in a closet that he has access to, are legally in his possession.

They were accessible, but let's assume they weren't. My father dies. The executor of the will gives him a key to a safety deposit box, and in the safety deposit box is the key to the gun safe. It would seem that technically as soon as he takes possession of the box, he's committed a federal crime with no real easy way to bring himself back into compliance. That's such nonsense. I suppose it's the same thing if a wife during a divorce files for a protection order. I would assume that as soon as the judge signs it, they could send the cops over with a search warrant and arrest the husband for illegal possession.

It also looks like it's legal under state law. Wouldn't he have to get busted by federal agents?

But, let's say his house were searched by IRS agents. Muchos Problemas.

Understood.

His attorneys argued that NC law trumped federal law.
Evidently, they were wrong, because that dumb hillbilly is now doing 7 years in Leavenworth.

I was wondering about that.

Difficult to understand the situation. Very complicated.
As far as your getting caught on a trade, first, if the feds busted your brother, and he was headed for 7 years in Leavenworth, which he certainly would be, the first thing the feds would offer him would be a deal. If he could rat someone else out, they would cut his sentence in half, something like that.
In other words, if he ratted YOU out for providing him with the guns, he gets out of 3 1/2 years in the pen.
Are you sure your brother wouldn't rat you out?
Lots of people would.
The feds reward rats handsomely.

Would it matter if he ratted me out or not? Would they be able to trace the guns serial numbers back to the last licensed sale? I was thinking if they are able to do that, that could put anyone who sells privately at risk of being accused of selling to a felon. A private seller sells legitimately to one individual, who then transfers the gun to a felon. How does anyone protect themselves from any of the risks, civil or criminal, that we've discussed here when they sell a firearm in a private sale?

You are right, there is nothing morally or ethically wrong with the trade.
The only problem with the trade is it is illegal.
This is just another example of Big Brother gradually eating away at gun rights.

Yeah, I thought it was unfair when I read some recent cases, but now that it's close to home, I really see the full impact. It's going to keep me from inheriting my father's guns.

Did I miss something? Why do you need to take the guns to a dealer?
If your brother goes to the dealer with the guns, he is committing, a federal felony right in the presence of a FFL holder.
Simplest deal, you go get all the guns. It ain't right, it ain't fair, and it ain't according to the Law of the Land, the US Constitution.

I'd have to drive/fly 600 miles to get the guns, and I just went there for the funeral. It didn't occur to me then it would be such a problem, and that I should drive my family another three hours to his house to pick up the guns. Looks like at best, he can get someone else to take the rifle and maybe the shotgun, if he'll give it up, to a dealer. If I really want them, looks like I need to get on a plane, fly across the state, rent a car, drive several hours, and pick them up myself. Then I'd have a whole other set of questions and hassle about how to securely get them home on the plane ...............

I'm glad at least one other person sees it the same way I do. A petty theft 30 years ago and now he's subject to home invasion and murder without any defense for the rest of his life? That or be subject to arrest, conviction, and more serious jail time? That's just wrong.

Someone explain to me this pardon/expungement deal. Cost? Likelihood of success? Criteria for success?

 

[MMABC]

Your first concern right now should be keeping yourself out of jail, followed by keeping him out of jail, followed by preserving the guns.

Agreed, that's why I'm asking. I asked him to just take them down to a dealer, but now, I don't even really want him to do that. I'd sure hate for him to get busted trying to do me a favor. Then again, it's really eating at me that he's in control over these guns. No telling what will happen to these guns if I don't get them now, and you have no idea how frustrating it is that I can't get all three of them. I appreciate all the advice though.

 

[jmr40]

Calling a lawyer seems like good advice. But since you live in the same state I do not see the need to go through a dealer to take possesion of guns your father owned. I know some states might require this, but would be surprised if Texas does.

While I'm not a lawyer, it seems unlikely your brother could legally posses them. If it were me, and my brother, I would pay a visit to my brothers home, take my guns home. I would try to convince him that it is illegal for him to posses any of them. If he declines then I guess it would depend on your relatoinship with him. Either walk away and hope for the best, or contact a lawyer.

 

[Chettt]

Go get all your father's guns. Give your brother some money and a clear explanation as to why he shouldn't be in possession of any fire arms.

 

[Ben]

I like Chett's idea. Just buy them off of him. Just tell him that you'll keep the guns for him and that you'll take good care of them. And don't do anything with them without his permission. I know he wants something for protection, but he can always get a big dog, or start collecting knives.

Ben

 

[MMABC]

I spoke with him today and let him know what I've found out. From what I understand, either giving under section d or receiving under section g of this federal statute could bring up to 10 years in jail. I told him to think real hard about ever considering taking the guns outside of the house or using them for self defense. Risk losing your life or risk getting 10 years in jail at his age would probably be a pretty tough choice. I told him to speak to his attorney when he settle's my dad's affairs about getting it off his record. I don't know if he will. He's already arranged for having someone else deliver whatever guns he's going to give me to a dealer. For those that have asked, I need that so I can have them shipped to me instead of me having to go get them 600 mile away. Bottom line, I'm going to get some, but not likely all of the guns, at least not yet.

Thanks for all the advice.

 

[voyager4520]

"I would assume that as soon as the judge signs it, they could send the cops over with a search warrant and arrest the husband for illegal possession."

If those cops hated you and wanted to put as much on you as possible, and the DA knows you probably won't have a good attorney, then yeah they might do that. However, in every case I've seen they just show up and confiscate the weapons. They can hold them for an appeal of the order, or they auction or destroy them.

 

[BigDaddy]

If your brother ever had to use the firearm(s) in a defense situation, the whole situation might turn sour. He would have to explain how he got the firearms which might bring you into the picture. If you provided him with firearms knowing he is a felon, you would have to perjure yourself in order to avoid serious legal problems. Perjury has a way of coming back to haunt you. If you guys don't tell the same story, etc. Police are very good at catching people in lies. Why not just have him give you the guns and be done with it. Life is complicated enough without having to deal with legal nonsense.

good luck
--Dave

 

[voyager4520]

Seeing as the estate was left to him and he has to make his own choices, I would accept as many of the guns he's willing to give me, but I would not give him anything material in return for them because then you're buying weapons from a felon. I would just try to relieve him of as many as he's willing to let go, but not force him into it.

Edit: At least if I did give him anything material in return for them it would NOT be on record in any way. If anyone ever came asking, knowing I got the guns from him, I'd just say that I took them because he wasn't allowed to have them or even sell them. I'd be careful about my phrasing too, making sure not to say that he gave them to me, meaning he was in possession of them, and saying that you received them implies he was in possession in some capacity to deliver them to you, again him being in possession at some point. I would just say I showed up and collected them because he could not possess them. But with the situation where someone besides your brother will be making the transfer, if anyone ever comes asking questions just say you received them from someone else who showed up and collected them because he could not possess them, and that person was a family friend who thought the guns should go to someone in the family who could possess them since they were originally willed to go to someone in the family, unbeknownst(sp?) to the willing party that the recipient of that will could not legally possess those items.

 

[johnwilliamson062]

is it a p08 or p38 luger? If it is a P08 keeping it for SD is just silly. Tell him to go find a hi-point. That thing is worth some bucks.

Good luck trying to get his record expunged while he is committing another felony. Talk about go to jail for a long time...

If he inherited it, you can't expect him to give it up for free. Be ****** at your dad for giving everything to him, but your brother still inherited them. You should offer him something reasonable for the guns.