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Constructive Possession


bradhe

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Was  hoping for a little advice /guidance on the topic of constructive possession.  (I appreciate not legal advice, but my question is generic.)

Do I understand correctly post the Thompson decision that the key is to make sure you don't in your collection of parts and accessories anything that can only be used to assemble an illegal configuration?

Example:  I have several Semi AR rifles and and a couple of AR type Sig pistols (which are not compatible I think).  I will take possession of an NFA M16A1 is the next couple of months (efile willing).  I have intended to swap out all of the parts but the receiver for shooting.  If I buy an  11" upper today, am I correct in assuming that is a no-no since I currently only have rifle lowers it can be assembled to?  Once, I have the M16 in my possession though I can have the short upper either assembled or disassembled?  Similarly, I would like to replace the fire control parts.  Can I do that, knowing that I will then have an "extra set" of M16 fire control parts while having semi ARs?

Second Example:  I have an S&H HK sear in a trigger pack that has been divorced from its original host (host is registered SBR).  If I buy a PTR 9KT pistol (MP5K clone) it comes with no stock and no front pistol grip.  I know I can't add either while in the semi configuration (otherwise SBR or AOW).  But with the sear pack assembled to it, can I add both?  I think yes.  More importantly, can I have those parts in my possession disassembled when the sear pack is assembled to another gun?

Thanks

Brad

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You will get varying opinions on this but you are on the right track, your PTR 9KT can NOT have the stock and vertical grip on it unless the sear is in it.  In some cases like this it all comes down to how big of a prick someone wants to be over the little things.  All my HK host guns are either full size rifles or SBR's even tho I have a Fleming sear.  Its not worth the gray area.

As far as your M16 LPK goes, again its a gray area.  While you can show the fact that you have an M16 coming and you are not intending to build an illegal gun, it again comes down to how big of a prick someone wants to be.  I asked NFA branch what I should do when I have an RR Colt M16 and they told me that as long as I had my M16 there wouldn't be any issue since I had AR15's as long as I put a tag on my short uppers stating they were for my M16.  The fact that I had a large pin/small pin Colt SP1 conversion helped me as those large pin upper couldn't work on a standard AR lower, so I really didn't have much of an issue.  In the end, if you want to have a short upper and a spare LPK before your stamp comes in-take the upper apart and store it that way and take the full auto sear out of your parts kit then give it to a friend who doesn't have an AR.

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Do you have any possession of any pistol AR, or any stripped lower receivers? If so then you can have your 11" upper today.

Really it comes to intent and how hard the ATF wants to go after you. Likely they wouldn't unless you have other stuff going against you on some major bust. Don't take this as you can just go buy a spare autosear for your M16.. I'd wait until you have you M16 in hand. 

There are a lot of gray areas which typically get interpreted different ways by different agents, etc. 

Your HK examples.. without the sear, they are SBR/AOW so don't leave them in that configuration if you take out the sear. 

Edited by Ryo
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When you have stamps the game is completely changed.  The guys that don't have stamps (which is the huge majority) skate the line all the time and rarely if ever get messed with. Rules are changing daily for them, but having the stamps regardless of what parts you have laying around, should help you sleep easier. 

Having any AR uppers is now looking to be a gray area since they are technically firearms and lowers and parts/sears for them are really the least concern? 

The main goal of NFA owners should be to steer clear of people and situations that could result in other people making bad choices with your future.  I've been at shoots with guys with illegal guns and if something happens it's easy to get sucked into the vortex.  I quietly pack up and leave to avoid the potential problems, because the thought of attempting to explain rules to normal LE  or even aft personnel under adverse conditions is difficult at best.  Back in the day with compliance inspections it had it's moments where they just weren't familiar with the rules?

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I was at a shoot where there was a convicted felon and didn’t realize it until we were packing up for the day.....and yes he’s known in the NFA community. I only knew him by reputation until a friend pointed him out to me. Now that’s some balls. 

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  • 2 weeks later...

Has anyone known anyone to get a constructive possession charge for ridiculous situations as outlined in this thread? I'm not talking about a friend of a friend through the grapevine rumour. I am talking about actually know the person (so it's not rumour). Or is there proof in news or court cases where this happens? The closest thing I've found is not locking up guns when a felon is in the house, addon's to violent crimes like in gang violence and then some dude that sold a gun with accessories that clearly made it illegal. Those are some VERY clear cut situations.

From my understanding, it's not some specially tailored law where the govt automatically portray your intent for having some no no parts. It's just using the basic "constructive possession" idea in general law, where there is no direct evidence of you possessing something but rather the prosecutor has to construct your possession. That's on them to actually convince a jury that the only reason you could reasonably have this item is so you possess something illegal for you to possess.

Example: Having multiple short barrelled uppers isn't illegal , as long as you have one SBR lower. Just because they COULD be put on a non registered SBR, doesn't mean it's constructive possession. No more so than them nailing you for constructive possession because you have the ability to easily take the upper off your SBR and put it on your Non-sbr. Whats stopping you from constructing a illegal SBR there? An extra 10 seconds it takes to take the upper off your SBR?

On the other hand, if you have only non-registered lowers and a bunch of short barrelled uppers... It's much more clear what is going on.

Having a m16 lower parts group, when you have an m16 going through the system and none of your ar15's have a 3rd hole, shouldn't give you any trouble. Why would it? Show me one person where it has. It's clear why you have it and it is for legal purposes.

On the other hand, do you have an m16 lower parts group and a spare ar15 lower that you drilled a 3rd hole into? Well it's not illegal to own the m16 parts kit and it's not illegal to drill holes in guns.... But it's pretty clear what is going on here and this is where the prosecutor will have an easier time to construct your possession of an illegal MG.

Last point to address is this idea of "well they can charge you with it ignorantly and then it's on you to fight in the courts. Who wants to deal with that"...... I mean sure.... But you can literally say that about anything since they can charge you with anything at any time for any reason. You think the officer that wants to make your life hell can't take away your MG and charge you with owning an illegal machine gun regardless of you showing your paperwork? All he has to claim is he didn't know about that paperwork or he couldn't verify it's authenticity. You're back in courts sorting it out and he's got qualified immunity so it's not skin off his back. Moral of story? They can already get you for something if they want to. Try not to give them a reason to and if you do, you have to fight it. We shouldn't have to hide under a rock in fear of our rights being taken away just out of expedience. They may as well be taken away then.

I am not a lawyer, and this is just from everything I have gathered from tons of threads and attorney websites. I would love for someone to give any evidence that proves my ides  on the issue wrong though!

Edited by timelinex
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17 hours ago, timelinex said:

snip. Whats stopping you from constructing a illegal SBR there? An extra 10 seconds it takes to take the upper off your SBR?

 

Quote

On the other hand, do you have an m16 lower parts group and a spare ar15 lower that you drilled a 3rd hole into? Well it's not illegal to own the m16 parts kit and it's not illegal to drill holes in guns.... But it's pretty clear what is going on here and this is where the prosecutor will have an easier time to construct your possession of an illegal MG.

Whats your looking for is "intent".

In the sbr upper case, you have the ability , but do you have the intent? That's very hard to prove what you were thinking in court.

The 3rd hole part, it's very easy to proven intent because you have physically indicated your thoughts of making a MG by drilling the hole.

As far as cases, the only one I know is where guy got pulled over, had a stocked lower, and pistol upper.  At home he had multiple pistol lowers, but since he was not at home and only one config was able to be made, he was slapped with a nfa violation.

for a criminal possession charge you need physical control and and intent/knowledge  to use

 

#not a lawer

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18 minutes ago, taylorwso said:

 

Whats your looking for is "intent".

In the sbr upper case, you have the ability , but do you have the intent? That's very hard to prove what you were thinking in court.

The 3rd hole part, it's very easy to proven intent because you have physically indicated your thoughts of making a MG by drilling the hole.

As far as cases, the only one I know is where guy got pulled over, had a stocked lower, and pistol upper.  At home he had multiple pistol lowers, but since he was not at home and only one config was able to be made, he was slapped with a nfa violation.

for a criminal possession charge you need physical control and and intent/knowledge  to use

 

#not a lawer

Right.....I think where most people go wrong is the uncomfortableness with the idea that "intent" in others can only be assumed and it is not provable. So they start dreaming up extreme scenarios where mal intent is imposed onto them just by owning X, Y, or Z.......But feels a bit like missing the forest for the trees when overall the biggest things that will attract that mal intent is having a firearm in the first place...

I wonder what actually ended up happening to the guy that you mentioned. Did he actually get convicted of the nfa violation? It makes 100% sense why he was charged... Afterall, the configuration that the officer sees makes it clear that there is a high chance he was on his way to use it in an illegal configuration. However proving in court is different animal. It seems like any attorney worth anything would be able to get that dropped since he did own legal configurations at home. But of course I am not a lawyer. Even so, it's a much more clear line to possession of illegal NFA item there than the examples in this thread.

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