Kicked off range for not having NFA paperwork...

[Tom Servo]

[collected from three threads] it would be easier for all of us to just give Barry all of our weapons and call it a day (...) I don't want to live in a police state (...) that doesn't mean I want to live under a military dictatorship (...) whether you're a wolf, or a sheep

Please.

I've been an RO, and when someone brought an NFA weapon to the range, I asked to see the tax stamp. 99% of folks had it. Most offered it up front. I never even really checked the slip closely. If they had the stamp, they'd jumped the hurdles. Neat gun, must've cost a pretty penny...enjoy shooting it.

The other 1% are the ones to worry about. These guys would usually get very irate and argumentative about government conspiracies or somesuch. They were booted immediately. Maybe a few were just being obstinate or self-righteous, but we didn't take the risk.

(As those old "pre-82" auto sears have dried up, I've noticed a lot less of that in recent years)

If someone's walking around with an unregistered NFA weapon, what else do I need to worry about with them?

Call me a fascist or a turncoat to the 2nd Amendment, but NFA laws are nothing to play around with, and the last thing I'd have wanted is an LEO tearing me a new one for allowing an unregistered NFA weapon on the range. By allowing it, I could potentially get snared into some sort of liability.

You raised an interesting point about tax forms and privacy. It's well worth following up, and would make an interesting thread in its own right.

As it stands now, it's simply much easier to carry a copy of the stamp and live with the minor inconvenience. Is it right? No, but it beats the monumental amount of hassle that could be the alternative.

Trust me, if I were President (Vote Servo 2012!), I'd sign an executive order suspending enforcement of the NFA. Until then, we have to deal the hand we're dealt.

 

[cptsplashdown]

Sorry fiddletown,

I think you completely forgot to read the part of my post that said I was not referring to this particular situation, but that the thread had gone off course towards a more general discussion of rights and freedoms. My comment about a LEO not knowing the law would apply to any LEO that DOESN'T know the law, no matter the circumstances. It has everything to do with the knowledge of the officer. A nice time to start a thread on how ridiculous it is to have so many laws that even a police officer can't know them all...

In specific response, the NFA weapon was not illegally possessed, which you just can't seem to wrap your head around. Many people MAY be breaking the law at the range, would you run a background check on all of your customers to ensure that they were not felons? Being a felon at the range would be a violation of the law and perhaps expose the range to liability as well... Just a slippery slippery slope. And sorry, but everything you have pointed to seems to be purely for the purpose of making things easier on yourself, as opposed to really getting to the bottom of the actual law. Which is all beside the point that it is in all probability legally improper for a local LEO or RO (at a public range) to ask for your papers anyway, in the same manner that not all LEOs are allowed to ask for immigration documentation, even from people that they are quite certain are breaking the law.

So my position would be that: 1. You are not committing a crime simply by being in possession of an NFA firearm, so long as it is registered, even if the paperwork is not in your immediate possession. 2. It is not appropriate for anyone other than a BATF or DOJ agent to even ask you to produce that paperwork, as it is beyond the scope of the laws that any other LEOs are chartered to enforce. Yes, it is true, not all LEOs are certified or permitted to enforce every law in existence, and it should be up to the LEO, as well as the citizen, to know which is which (coincidentally the exact reason I started this thread, to increase my own knowledge of the law.) If you are a LEO or RO who thinks you should be allowed to inspect NFA paperwork, go to your congressmen and get them to change the law to make it legal, don't invent powers for yourself, you are simply not entitled to enforce some laws even if they are being broken. You are certainly not entitled to arrest someone for NOT breaking the law, even if you can get away with it.

We all live in the real world, some of us just don't allow that to stop us from standing up for our rights. The little inconvenient freedoms that you willingly give up today lead inexorably towards the diminishment of ALL freedoms. That's just how the cookie crumbles. I certainly would suggest that anyone in this day and age that has the courage to stand up to our increasingly authoritarian government is a wolf in his own right.

 

[JohnKSa]

In specific response, the NFA weapon was not illegally possessed...

You're (intentionally?) missing the point. It goes back to my self-defense analogy. In that analogy I had not broken the law but the evidence made it appear that I had. Since I chose (legally) not to provide the evidence which would have showed my innocence I should expect to be treated like a murderer--arrested and prosecuted. Any LEO who let me go just because I claimed I was innocent would be terribly negligent.

Possession of an NFA weapon is illegal without the proper paperwork (just as shooting someone is illegal without the proper justification) and so in both cases (without the proper paperwork/justification) the persons in question should expect to be treated as if they have committed a crime.

Many people MAY be breaking the law at the range...

If any of them APPEARED to be breaking the law then I would DEFINITELY expect any LEOs present to act appropriately.

What you are refusing to acknowledge is that this is not about someone who "may be breaking the law", it is about someone who is giving every appearance of breaking the law.

1. You are not committing a crime simply by being in possession of an NFA firearm, so long as it is registered, even if the paperwork is not in your immediate possession.

Even assuming that's true, that doesn't mean you will not/should not be TREATED as if you have committed a crime until you present your defense--i.e. your paperwork.

2. It is not appropriate for anyone other than a BATF or DOJ agent to even ask you to produce that paperwork, as it is beyond the scope of the laws that any other LEOs are chartered to enforce.

Assuming that there is no state law that is appropriate--and in many states there are laws which "back up" NFA laws.

You are certainly not entitled to arrest someone for NOT breaking the law...

You don't get a trial right on the spot. LEOs do not determine guilt nor are they required to determine guilt in order to fine/arrest. They operate based on probable cause. If you provide probable cause (and give them no evidence to prove that you are innocent) then you will be fined/arrested.

You're treating this like police have some magical guilt determination equipment available to them--that they can somehow look at you and tell you're innocent even though you appear to be committing a crime. How, exactly is that supposed to work?

...you are simply not entitled to enforce some laws even if they are being broken.

I don't think that's entirely true. I believe you will find that in many cases it is completely legal and proper for one LE organization to apprehend and hold a person for crimes committed under the jurisdiction of another LE organization. They just can't prosecute them--they can only turn them over (per the proper procedures) to the LE organization with jurisdiction.

 

[Frank Ettin]

Sorry cptsplashdown, you're just completely off base.

...In specific response, the NFA weapon was not illegally possessed, which you just can't seem to wrap your head around....

What you can't seem to get your head around is that it's your responsibility to show that the NFA weapon was legally possessed. What you can't seem to understand is that it is prima facie illegally possessed unless it has been properly registered. Registration is an affirmative defense and thus your burden to demonstrate. That's simply what the law is, whether you like or understand it or not.

...Many people MAY be breaking the law at the range,...

Perhaps, but unless their violations are open or there is otherwise a reason to believe they are violating the law, there's nothing to do.

But on the other hand, openly having an NFA weapon in your possession is, on its face, illegal. It is only legal if you have properly registered it, and that is not something that is obvious. Your proper registration is something that you must show.

...it is in all probability legally improper for a local LEO or RO (at a public range) to ask for your papers anyway,...

It is legal for the RO to ask you anything he wants. It is legal for him to ask you the most personal or embarrassing questions you can think of. He may not be entitled to an answer, but he can ask. And it would be within his discretion to eject you from the range. (Whether you'd have grounds for a civil suit depends on the exact situation. And it's also possible that the range itself had rules about possession of NFA weapons and a need for the user to show compliance with federal and/or state law. We don't know if that is the case here, but it's something I would certainly recommend to range management if NFA weapons were allowed.)

And it would be entirely proper for an LEO to arrest you if you could not show, with proper documentation, that your possession of the NFA weapon was lawful.

...in the same manner that not all LEOs are allowed to ask for immigration documentation, even from people that they are quite certain are breaking the law....

An LEO doesn't have to be "quite certain" one is breaking the law. He only needs probable cause, i. e., a reasonable belief.

...You are not committing a crime simply by being in possession of an NFA firearm, so long as it is registered,....

But your open possession of an NFA weapon is probable cause to arrest you unless you can show that you indeed are in lawful possession. The fact that you may have properly registered the weapon is not obvious, and an LEO has no obligation to assume that it has been properly registered. You will need to demonstrate that it has been.

...You are certainly not entitled to arrest someone for NOT breaking the law,...

But an LEO is entitled to arrest someone who reasonably appears to be breaking the law. Again, that's what probable cause means.

...We all live in the real world,...

Really? JohnKSa and I (as well as perhaps some others) have repeatedly and in detail explained why you are wrong. I think John may have a law enforcement background, but I'm not positive. In any case, I know from reading his posts over the years that he understands the law and how it works.

I understand the law and how it works because I'm a lawyer and have practiced law for over 30 years.

You might want to consider, given what JohnKSa and I have written, that there are perhaps some things about the law and how it works that you don't understand.

 

[saboteur]

Props to JohnKSa for his well-thought out and articulated comments. He is correct on his knowledge of the law and issues of probable cause.

In TX there is a law on the books called 'Prohibited Weapons,' which covers most of the NFA goodies suchs as SBS, SBR, auotmatic fire, and suppressors.

It's hard to see where you're going with this "police with no knowledge of the law" remark when I, as a police officer and NFA owner, would do exactly as JohnKSa describes and arrest you if you fail to produce the tax stamp. (Not that I too wouldn't like to see NFA rules relaxed, it's just that it would be a major liability issue given the current laws and the rarity of the items).

The way the laws and regulations are written in TX, you give officers probable cause to believe you are committing the offense of possessing a "Prohibited Weapon" unless you can show a defense to prosecution, i.e. your tax stamp. As stated before, technically even then you could be arrested temporarily since it is only "a defense to prosecution," not arrest.

 

[cptsplashdown]

Pretty good points John. I think this one could be batted around ad infinitum. I would suggest the mere presence of an NFA firearm should not set off the emergency call out alarm for the RSO. They are in fact quite common in FL, owned legally by many many citizens, and I don't believe that simply having one is either cause for concern or should constitute probable cause for anyone to give you a hard time.

I would further suggest that NFA firearms are in most cases not any more inherently dangerous than any of the other weapons at the range and are frankly not that big of a deal. A novelty perhaps, but not one that should instantly draw the attention of every RSO within a 100 mile radius. I understand you don't get a trial on the spot, I just don't think that changes the fact that if a LEO knows that you are not violating a law, he should leave you alone, period.

I understand what you are saying about the LEO not knowing if you are in violation, but I would point to the NFA as the final arbiter of what a LEO is allowed to pursue or not. It just comes down to knowing the law. I'm not going to argue what a LEO should or shouldn't do if he doesn't know with certainty what is going on (other than to say he should know the law better than most,) and of course he should act to promote the public safety. I would just argue that having a gun at a gun range that happens to be an NFA weapon should not constitute evidence that a crime is being committed. I know you may not agree, it's just my opinion (supported by the fact that still, after all these posts, not a single LEO, RSO, or other poster has pointed to any section of the NFA that makes it so.)

Just because bugging law abiding citizens with legally owned firearms at the range is what many LEOs or RSOs happen to do, my point is that they are essentially going beyond the scope of their powers. If someone has a specific reference to a law that makes it otherwise, please share (I'm sure in some states such laws do exist, and it would probably be very helpful for all of us to know which states do have such laws.) Still, all I have heard is what many people THINK should be done, and much discussion about what LEOs are doing in practice. None of these things make it legally or morally correct for them to do so.

 

[cptsplashdown]

Great post Saboteur. Very helpful indeed. My reference to any LEO that didn't know the law should be read as "a LEO should not arrest someone who is not committing a crime." Again, not a statement specific to this discussion, just a comment on what I believe would be a great LEO SOP.

 

[Tom Servo]

And sorry, but everything you have pointed to seems to be purely for the purpose of making things easier on yourself, as opposed to really getting to the bottom of the actual law. Which is all beside the point that it is in all probability legally improper for a local LEO or RO (at a public range) to ask for your papers anyway,

I wasn't law enforcement; I was placed in charge of private property by the owner. I had a legal right (and obligation) to refuse service to anyone, including people who were just too uptight. I also booted people, at various times, for wearing offensive clothing, having swastika tattoos, being intoxicated or acting irresponsible.

Not having documentation for an NFA weapon? That was also on the list. File it under, 'covering one's posterior.'

There is an alternative to complaining, which rarely changes anything. It involves getting politically active and doing something about the issue. Develop a relationship with your congressman. Consider joining any of the 2nd Amendment groups active in your area.

I happen to be intimately familiar with the NFA and its history. It's bad law on many levels, and it needs to be challenged. In the meantime, we're left with an oppressive system that assumes criminal wrongdoing in the absence of a plausible defense. The best defense is to simply have your paperwork on you.

 

[Frank Ettin]

...if a LEO knows that you are not violating a law, he should leave you alone, period....

Yes he should. But the point is that if you are openly in possession of an NFA weapon, the LEO has no way to know that you aren't violating the law (unless you can produce your tax stamp and show him that you aren't).

 

[cptsplashdown]

Great responses gents. Thanks again for sharing all of your knowledge as LEOs, RSOs, and concerned citizens. I have learned a lot and hope to be better prepared to deal with these types of situations the next time they arise. Cheers.

 

[blume357]

I've tried to read through this whole debate and the one thing

I see is at least on paper, you are only required to show the paper work to an ATF agent... the one thing I see is, what is to stop a local LEO from 'detaining' you until an ATF agent shows up?

I believe a law enforcement officer has that right....

 

[fineredmist]

Just look at it this way, if you are stopped for a vehicle violation and you cannot present a valid drivers license it is prima facia evidence that you are unlicensed and you will be arrested. You will not be allowed to continue your trip as the officer will be responsible for "permitting the unlicensed operation of a motor vehicle" and if you are involved in a accident after he permits you to continue he is cupable. This also applies to a officer who has prima facia evidence that the device is illegal and does not take approiate action. Carry your driver's license when you drive, carry your NFA paperwork when you are in possession of the device. It is really simple, don't look for problems as there are enough that will find you.

 

[Powderman]

So my position would be that: 1. You are not committing a crime simply by being in possession of an NFA firearm, so long as it is registered, even if the paperwork is not in your immediate possession. 2. It is not appropriate for anyone other than a BATF or DOJ agent to even ask you to produce that paperwork, as it is beyond the scope of the laws that any other LEOs are chartered to enforce.

So, let me break this down for you...according to the laws in the State of Washington, aka the Revised Code of Washington...

You show up at a range in our State. I just happen to be there, throwing some lead downrange when lo and behold! I hear the unmistakable sound of a giggle switch being engaged (read as: full-auto or burst fire).

I discreetly walk over, and first look for a legal trigger attachment, such as a Hell-Fire or similar device. I see none.

I then look carefully to see if you're bump-firing. If you are, kewl beanz! If not...I contact the RSO, identify myself, and tell him that I am going to contact you. I then walk up while you change targets, and I ask to talk to you. I show my credentials, and ask you if you are a law enforcement officer.

You say no.

I then ask if you are a licensed manufacturer/SOT, and if that is a dealer's sample.

You say no, you are a private citizen, and that the firearm is registered to you.

I say, OK. I will then ask you to turn around quietly and place your hands behind your back. I will handcuff you, and tell you that you are being detained, because you are now the focus of my investigation into a possible violation of RCW 9.41, which states specifically that full auto and SBS/SBR are ILLEGAL in the State of Washington. I then read you the Miranda admonishment, and ask you if you have your tax stamp.

It really doesn't matter, because you've broken the law. I will contact the parent jurisdiction, and they'll take it from there.

Any questions?

 

[Conn. Trooper]

Here our state laws are an almost exact duplicate of NFA laws, and people are allowed to have properly registered NFA weapons. If they are not legally owned NFA weapons ( tax stamps, etc.) there is a state charge for that. Don't need an ATF agent to enforce state law.

I always carry a copy of my stamps.

I think I get what the OP was trying to say, I know I am legal, why do I have to prove it? And at face value I take his point, why indeed? But, in the real world nobody knows you are legal and there are some boneheads running around with illegal weapons. How do you tell a legally owned weapon from an illegal one?

 

[ssmdive]

JohnKSa

Even assuming that's true, that doesn't mean you will not/should not be TREATED as if you have committed a crime until you present your defense--i.e. your paperwork.

WOW!!! really? I thought in the US you were innocent till PROVEN guilty?

 

[Frank Ettin]

...I thought in the US you were innocent till PROVEN guilty?

Yes, there is the presumption of innocence. But it really works out to be more complicated that you seem to think. It's really all explained in detail in this thread, so you might want to read it carefully.

 

[ssmdive]

Tom Servo

and the last thing I'd have wanted is an LEO tearing me a new one for allowing an unregistered NFA weapon on the range. By allowing it, I could potentially get snared into some sort of liability.

Do you run the serial numbers of all guns to see if they are reported stolen?
Do you run background checks on people to see if they are felons?
All of those could also make you liable as well, but you don't do all that do you?

The point being that you assume that title I guns are legal, you assume that shooters are all not felons, but you assume that all title II arms are illegal. While you have that right.... That does not make it true, nor logical to think that way.

As it stands now, it's simply much easier to carry a copy of the stamp and live with the minor inconvenience. Is it right? No, but it beats the monumental amount of hassle that could be the alternative.

True, and that is what I told splashdown.... But the fact remains that the possession of a title II weapon is not automatically illegal, yet you and others are fine with people thinking that.

Trust me, if I were President (Vote Servo 2012!), I'd sign an executive order suspending enforcement of the NFA. Until then, we have to deal the hand we're dealt.

While I also think NFA laws are unconstitutional... The problem is that "dealing with the hand we are dealt" is different than what is going on here. Dealing with the hand we are dealt would be following the law, yet you and others seem to be supporting an opinion that title II arms are illegal till proven legal and you don't hold that same stance with title I items.

Not bashing you... just pointing out what I see is an error in consistency.

You don't check to see if the 600.00 semi auto AR on the range has been stolen or is being shot by a felon... You assume they are legal. But the 6,000.00 HK94SD is automatically assumed to be illegal?

The problem is not only in the public's perception, "MG's, suppressors..ect are ILLEGAL, unless you are LEO/have a license...ect"

But also OUR perceptions such as the ones that are being shown here.

Fact: The law says that only the DoJ or the ATF can ask to see your Forms.

But people in this thread have stated you have to have the originals with you, have to have the forms all the time.... ect. YES, it is a damn smart move to have a COPY of the forms... But you are not required by law, yet even some of us think you are.

That IMO is a way of thinking that automatically puts us at a disadvantage. Fact is that as long as WE tend to think title II items are inherently illegal... then the public's opinion just gets stronger.

Idiot RO's like the one at Markham that tried to say splashy was "a felon for not having the paperwork with him"... just feed the public's wrong opinion... WE should know better and not just accept it and encourage the stupidity.

 

[Claude Clay]

i keep with each item a notarized copy of its paperwork
just because it is easier
notary is free at my bank and 5 minutes of my time vs being hassled--
rightly or wrongly--
its a no-brainier.

 

[ssmdive]

fiddletown

Yes, there is the presumption of innocence. But it really works out to be more complicated that you seem to think. It's really all explained in detail in this thread, so you might want to read it carefully.

Sorry, my reply was sarcasm.

What you can't seem to get your head around is that it's your responsibility to show that the NFA weapon was legally possessed.

Is it your responsibility to prove you are not a felon to shoot at a public range? Is it your responsibility to prove that AK was not stolen? Is it your responsibility to prove that gun was not used in a crime?

Title II items are not illegal. Why do you want people to automatically assume they are?

I compare this to a cop pulling over a guy only to see if he has insurance. Yes, they law might state that he has to have insurance, but the cop does not have the right to pull a guy over ONLY to check his insurance.

It seems to be a case of you wanting people to automatically think they are illegal, and we want people to assume that they are legal unless they have other reasons to think they are not.

OUR attitudes sometimes hurt us more than we think.

 

[Frank Ettin]

Sigh....

...the possession of a title II weapon is not automatically illegal...

...Title II items are not illegal. Why do you want people to automatically assume they are?...

Title II weapons are automatically illegal unless you have the tax stamp. The fact that it is a Title II item is open and obvious. Your possession of the proper tax stamp, if you do have it, is not open and obvious. Therefore, holding, for example, a sbr in your hand where an LEO can see it is probable cause to believe you are committing a crime. That is sufficient reason for him to arrest you, or at least detain you for investigation (see Powderman's excellent post 73).

You can of course, immediately resolve the issue by showing your proper documentation. The elements of the crime of illegal possession of a Title II weapon are satisfied by simply having it in your possession. Your defense, having a proper tax stamp, is an affirmative defense that you must raise.

...I compare this to a cop pulling over a guy only to see if he has insurance....

A false analogy. There's nothing about driving a car that suggests (or might constitute probable cause to believe) that you don't have insurance.

A better analogy would be marijuana. You're sitting in your front yard, near the sidewalk. An LEO walks by and observes you with a plastic bag containing greenish, leafy material. He also observes you smoking what appears to be a hand rolled cigarette. He also notices that the smoke from that hand rolled cigarette has a distinctive oder he has been trained to recognize as that of burning marijuana.

He now has reason to believe, from what's in plain sight, that you are in possession of marijuana. Marijuana is a controlled substance, and its possession is illegal except under some very narrow circumstances not immediately apparent. So he detains you.

You tell him that you have a state issued medical marijuana card permitting you to possess and use marijuana. He doesn't have to believe you. But if you can produce the card, the issue can be resolved.

...we want people to assume that they are legal ....

I don't see any way that can happen.