Accidental NFA violations and how to handle them by Gilbert Ambler

Hi, I'm firearms attorney Gilbert Ambler, and I'm back today to talk about a subject which unfortunately I get many calls on every year, and it seems that the calls actually tick up a little bit around Christmas time, which is accidental NFA item possession. I'm talking about accidental possession of a National Firearms Act controlled item, something like a machine gun, short barreled rifle, short barreled, shotgun suppressor, any other weapon or destructive device. How does this happen and why does it tick up around Christmas time? Well, it happens principally two ways. One of the two ways has a slight deviation that we'll talk about. The first way this happens is somebody finds an item that turns out to be an NFA item at a relative's house. And I think the reason this ticks up around Christmas time, and this is really where the big pickup comes from, is people are traveling around Christmas time, they're going back to grandma's house, to grandpa's house, and when they're at grandma and Grandpa's house, somebody says, Hey, look at these guns that we have up in the attic.

Grandpa passed away last year. Grandma says, I've got some of his guns in the attic. Will you take a look at them, see if you want any of them, and you go up there and you discover a short barrel rifle or you discover a machine gun, and I want to talk about how we handle that scenario. And this situation has a slight deviation if the person who possesses that item is in fact still alive, because that's going to change things a lot. The other way that we have people coming into an NFA item and possessing an NFA item incidentally, comes through their own ignorance in what the laws actually say and they inadvertently make an NFA item. And so we're going to talk about both of these situations today, but as always, if you have not yet hit that subscribe button, what are you waiting for?

Hit that subscribe button, like comment with your thoughts, share with your friends. That way you and your friends can keep getting this important Second amendment related content. Let's start with finding an NFA item. So it's Christmas time. You're over at your grandmother's house. Unfortunately, your grandfather passed away this past year and grandma says Grandpa has some guns up in the attic. Will you go take a look at them When you get up there? You find a machine gun, a short barreled rifle, and no paperwork for these items. What is their status? Well, the first thing I'm going to tell you is that there is definitely a difference when it comes to how long ago grandpa passed away because if the estate is still open, meaning the state has not been settled, probate hasn't been finished, grandma's still dealing with all these items because presumptively, they're going to come to grandma either in test state, meaning without a will based on a state statute or be a will.

Typically, people set their wills up to go to their spouses, so these items are now grandma's, grandma is the proud owner of this machine gun and the short barreled rifle, and you can't find tax stamp paperwork and let me get it out of the way. If you can find the tax stamp paperwork very, very easy. You're going to have to do a tax exempt transfer to the new possessor or even better if the items were owned by a trust. The trust will dictate who gets the items and what needs to be done. So you need to find the trust. We're talking about a situation where you can't find that paperwork, however, well, if the state is still open. My suggestion is you need to get counsel involved and you need to go out and you need to have counsel reach out to the A TF to the NFA branch and see if you can find the registration documents because it is possible that grandpa simply has these items registered and didn't keep the documents with the items.

And one of the reasons that we want to verify whether the documents actually exist, whether the tax stamp exists is because these items are valuable, especially the machine gun. Machine gun prices start around 10 grand to go up from there to hundreds of thousands of dollars depending on the item. And so we certainly don't want to throw that away if it is a registered firearm already, because if it's currently registered, then we can deal with it. We can get it properly registered and transferred to whoever's going to take possession of it. If the A TF and if you engage a lawyer to query the A TF about the existence of a tax stamp simultaneously, you need to be tossing the house looking for these documents, looking for these tax stamps. And I'll tell you the A TF is somewhat notoriously unreliable in saying they can't find items when in fact the items are later found.

For example, A TF comes back and says, we can't find registration documents for the machine gun. And so you wind up turning the machine gun over to the A TF for distraction and six months later you find the documents not good. So you want to be dual tracking this. You want to be searching for those registration documents while having an attorney coordinate with the NFA branch to try to find those registration documents from the A TF. If we find them, great, if we don't find them, we're probably going to wind up either surrendering or destroying this item. There's a very specific procedure for destruction. We're going to have three torch marks across the receiver of at least a quarter inch in width. That's what the A TF is looking for to render a machine gun permanently inoperable. So keep that in mind and you want to pay attention because the A TF has a time from time to time actually changed the requirements on what they consider good enough when it comes to destruction of an NFA item.

So pay attention to what the current regulations are, what the A TF is currently looking for. The deviation on this comes in a situation where grandpa died five years ago, the estate settled five years ago and grandma has had these items in the attic for the past five years, and now you can't find registration documents because now it's going to be more dangerous. Essentially, you're going to have to be very careful. You're definitely going to want an attorney involved because if you simply call the N FFA branch and say, Hey, we have these items, and the A TF is going to say, okay, send us the death certificate of the person who died, who possessed 'em, you said, oh, well that death certificate is five years old. Now we're wondering, grandma's had possession of these items for five years, could grandma be prosecuted? So in this scenario, you need to have a lot more caution because grandma has been in possession of these items, not just in that window of time when the estate was still open, but for the estate closed.

It's possible that she gets prosecuted for her possession of these items. And so that's a concerning fact pattern. If you're in that fact pattern, you definitely need attorney involvement. The other way I see people come into NFA items and possess NFA items incidentally, is they inadvertently make one. They simply didn't know any better. They put a vertical forger, they have got a vertical for grip for their rifle, they realize that they can attach it to a pit rail on a pistol. They slammed their vertical for grip on their pistol. Guess what? You have made an NFA control any other weapon. Now, the first way to handle this is very, very simple, which is if you realize you did something illegal, you need to take it apart and you need to make sure that you're not currently under investigation. So it's not necessarily destruction of evidence to take it apart at that point, de configure it, get it out of the NFA configuration.

What about a scenario, however, where you get caught with this item for whatever reason, someone finds you in possession, you don't know any better, you go to the gun range, you're shooting your pistol with two hands of one hand on the vertical fore grip. Somebody walks up to you, flashes an A TF badge and says, Hey, can I see your registration documents? And you say, what are you talking about? You get arrested for possession of an unregistered, any other weapon? What defenses might you have available at that point? Well, there is a case out there called the Staples case. The Staples case says you have to in United States versus Staples, the government prosecuted somebody for possession of a machine gun because he had an M 16 that was capable for Waldo fire. His defense was, I didn't know it was capable for Waldo fire. In fact, after I bought it and I've shot it, I've only ever had it shoot in a semi-automatic mode, and it didn't even do that well, went all the way to the United States Supreme Court.

United States Supreme Court found him, essentially said that he's not guilty because he didn't know. He didn't have the mens rea, he didn't know the true character of the item, didn't know it was capable of full auto fire, therefore, he was not guilty of violating the National Firearms Act. But this is a different situation because here you are aware of the true nature of the weapon. After all, you're the one who put the vertical fore grip on it. You're the one shooting it with two hands. What you don't know is you don't know that it violates the law. And unfortunately, the traditional pattern in the law is that a mistake of law, which is what this is. You didn't know that you were violating the law is not a defense. This is why people always tell you ignorance of the law is no defense. What is potentially a defense is a mistake of fact where you didn't know a critical fact.

For example, an item internally in your firearm wore down so that the firearm could now fire automatically and you didn't realize it. So very, very big difference between mistake of law and mistake of fact. This is why if you're going to be building and modifying weapons, you need to get advice from a actual lawyer if you're going to be doing something strange that's outside of the ordinary, like a second grip on a pistol because you want to make sure there's all sorts of bad advice on the internet telling you what you can and cannot do. And that includes on YouTube. With all due respect to myself, you need to talk to somebody before you make major modifications to a weapon that could potentially put you in a category just because Bubba down at the gun shop told you you can put a grip on a pistol and it's okay, as long as it's just slightly angled. You need to speak with counsel before you take an action like that. With that being said, I hope coming into this holiday season that you'll all enjoy your holidays. I hope grandma does. I hope if Grandma surprises you with a machine gun from the attic, I hope you find the registration papers for it. I hope if you get guns that you're not going to make stupid modifications that get you in trouble, and I hope you enjoyed this content. Until next time.

Credit: Gilbert Ambler, Esq., The Commonwealth’s Gun Rights