Constructive Possession

[RickD427]

Hmm, interesting. Seems a lot of these laws are centered around having a completed upper/lower, not just loose parts lying around. I think it's easy to make the case if you have a pistol upper fully built, and a complete lower that's registered as a rifle, and have no pistol lowers registered in your name - that you intended to make a pistol out of your rifle.

But, if you have just a barrel laying around - either because you intended to manufacture an illegal firearm, intended to manufacture a legal firearm, or intended to use it as a paperweight... how would the ATF interpret this? Does it come down to the ATF having to prove your intent, which relies on you telling them your intent (like in the Nguyen case)?

Seems really silly they could say - well this individual has a short barrel, a muzzle device, rail, and an upper receiver all separated... that must be an NFA firearm! (due to Constructive Possession). If you're an AR15 owner, you likely have many of these spare parts in your parts bin already.

In a "Constructive Possession" case, the prosecution does not have to prove any "Intent" to assemble. All they have to prove is that you had the necessary parts.

Prosecutors shy away from taking cases where there is a plausible innocent explanation for the possession, like where you have an AR-15 Rifle, and AR-15 Pistol and a separate 10.5" barrel. The reason is the concept of "Mens Rea", a legal concept that one must have a criminal state of mind to commit a crime. Mens rea if often described as being a criminal intent, but that's a misleading explanation, and one that invites confusion with the "Intent" element of many crimes.

In the Nguyen case, there was a requirement for the prosecutor to show that Mr. Nguyen did have an intent to assemble the parts because that was part of the elements of the "Attempted" offense.

[NorCalRefuge]

In a "Constructive Possession" case, the prosecution does not have to prove any "Intent" to assemble. All they have to prove is that you had the necessary parts.

Prosecutors shy away from taking cases where there is a plausible innocent explanation for the possession, like where yuo have an AR-15 Rifle, and AR-15 Pistol and a separate 10.5" barrel. The reason is the concept of "Mens Rea", a legal concept that one must have a criminal state of mind to commit a crime. Mens rea if often described as being a criminal intent, but that's a misleading explanation, and one that invites confusion with the "Intent" element of many crimes.

In the Nguyen case, there was a requirement for the prosecutor to show that Mr. Nguyen did have an intent to assemble the parts because that was part of the elements of the "Attempted" offense.

Makes it sound like it's iffy then. If the ATF found reason enough to raid your house (like this poor gentleman) and you have parts lying around that could conceivably be assembled into an NFA device, you're screwed - even if you intended to make them legal before using them. I guess it depends how grumpy the agents are that day if they'll throw the book at someone with a 14.5" barrel on the shelf.

[Quiet]

If an individual currently owns a lower receiver, and purchases a short barrel (say 14.5") with the intent to pin and weld a long muzzle device prior to mounting the barrel... does this count as Constructive Possession?

What about if the individual purchases a 10.3" barrel and intends to pin and weld a mock suppressor/barrel extender (just highlighting the point here).

Under CA SBR/SBS laws...

Intent is not a requirement.

Mere possession or control over the parts meets the requirement. [PC 17170(e) and 17180(e)]

Firearm + unattached short barrel = illegal SBR/SBS



Penal Code 17170
As used in this part, “short-barreled rifle” means any of the following:
(a) A rifle having a barrel or barrels of less than 16 inches in length.
(b) A rifle with an overall length of less than 26 inches.
(c) Any weapon made from a rifle (whether by alteration, modification, or otherwise) if that weapon, as modified, has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length.
(d) Any device that may be readily restored to fire a fixed cartridge which, when so restored, is a device defined in subdivisions (a) to (c), inclusive.
(e) Any part, or combination of parts, designed and intended to convert a device into a device defined in subdivisions (a) to (c), inclusive, or any combination of parts from which a device defined in subdivisions (a) to (c), inclusive, may be readily assembled if those parts are in the possession or under the control of the same person.

Penal Code 17180
As used in this part, “short-barreled shotgun” means any of the following:
(a) A firearm that is designed or redesigned to fire a fixed shotgun shell and has a barrel or barrels of less than 18 inches in length.
(b) A firearm that has an overall length of less than 26 inches and that is designed or redesigned to fire a fixed shotgun shell.
(c) Any weapon made from a shotgun (whether by alteration, modification, or otherwise) if that weapon, as modified, has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length.
(d) Any device that may be readily restored to fire a fixed shotgun shell which, when so restored, is a device defined in subdivisions (a) to (c), inclusive.
(e) Any part, or combination of parts, designed and intended to convert a device into a device defined in subdivisions (a) to (c), inclusive, or any combination of parts from which a device defined in subdivisions (a) to (c), inclusive, can be readily assembled if those parts are in the possession or under the control of the same person.

[SkyHawk]

Note that the feds also consider it constructive possession.

In United States v. Thompson/Center Arms Company, 504 U.S. 505 (1992), the United States Supreme Court explained that a NFA firearm is made if aggregated parts are in close proximity such that they: (a) serve no useful purpose other than to make an NFA firearm (e.g., a receiver, an attachable shoulder stock, and a short barrel); or (b) convert a complete weapon into an NFA firearm (e.g., a long-barreled rifle and attachable short barrel). Id. at 511-13.

https://www.atf.gov/firearms/docs/ruling/2011-4-pistols-configured-rifles-rifles-configured-pistols/download

https://supreme.justia.com/cases/federal/us/504/505/case.pdf

[NorCalRefuge]

So, it would seem, it's not actually legal (under the State nor Fed) to purchase a 14.5" barrel and pin/weld at home, if you already own a serialed lower receiver.

That's if I'm interpreting all this correctly. What a thing...

[bohoki]

So, it would seem, it's not actually legal (under the State nor Fed) to purchase a 14.5" barrel and pin/weld at home, if you already own a serialed lower receiver.

That's if I'm interpreting all this correctly. What a thing...

the way around this in the past was to take an 80% lower drill a hole in it be it hammer, trigger, safety stamp pistol on it and you are intending to build a pistol

[SkyHawk]

the way around this in the past was to take an 80% lower drill a hole in it be it hammer, trigger, safety stamp pistol on it and you are intending to build a pistol

Yes, a pistol lower is a legal reason for having short barreled uppers laying around.

[Supersapper]

Supersapper,

It wasn't a ruling.

There is a DOJ regulation in effect that holds an AR platform weapons, where the upper and lower receivers are separated, is not a "semi-automatic" weapon for the purposes of the Assault Weapon statute.

It's still a firearm, even if separated.

It's also important to note that the regulation only applies to the referenced statutes. Be careful not to attempt application beyond its scope.

Please refer to 11 CCR 5471(hh)(3)

[SharedShots]

Like "Assault Weapons" and "Assault Rifles" proved to be perpetuated into the mainstream by none other than gun owners and glorified magazine writers themselves, we'll also create enough noise about "constructive Possession" to include that as another term to be used against gun owners. Later, after it becomes the new term of choice in the attack on gun ownership there will be the crying, the whining and the complaining all the time not acknowledging not perhaps where the term started but where it became so talked about it that it turned into a a path for more gun control.

We never learn but make no mistake, others do.

Anyone who talk about constructive possession and then dives off the cliff talking about intent hasn't learned a thing. Intent is what is in the mind and once you put it to words it's not intent any longer, it becomes a process of doing or admitting you have done.

You can argue all you want how this is discussion and on and on but the result will speak for itself. It has been said that if you give lengths of rope to a group of people, some in that group will hang themselves.

If you constantly ask what about this and can I do that without breaking a law or something eventually someone will say no, you can't do that and you end up with a law saying such.

[bohoki]

Rick,

An AR is only 1 of 3 possibilities:
---Single shot
---Semiauto
---Full auto

without the gas system it becomes a manually operated repeater

[RickD427]

Rick,

I'm a bit confused. How can (3) state that it is not a semiautomatic firearm and yet still be a firearm, especially as it relates to an AR-15?

It states what it states simply because the legislature chose the words of the statute, the Governor signed the bill, and the SOS chaptered it.

There is no requirement that a statute "make sense", or that it be reconciled to other statutes. There is a lot of "Stupid Stuff" contained in currently existing statutes. But for more on the point of the separated receiver, please see my point in the next section.

On this one, I have to respectfully disagree with your assessment. A completed AR weapon would have to fall into one of your three categories, but an incomplete AR weapon does not. The incomplete weapon can exist simply as a firearm that is not "Single-Shot", "Semi-Auto", or "Full-Auto." The incomplete weapon has the potential to eventually become any of the three once it is finished, but it ain't there yet.

I would agree that what you say is a reasonable conclusion to be drawn from the regulation, but I would also observe that one could also make the counter-argument that since the wording of the regulation is specific to "Semi-Autos" that it doesn't cover "Full-Auto" weapons. The problem with making common-sense interpretations of statutes and regulations is that folks are not obligated to share your views, and that some of the disagreeing folks have the ability to file charges.

[pratchett]

It's also important to note that the regulation only applies to the referenced statutes. Be careful not to attempt application beyond its scope.

Please refer to 11 CCR 5471(hh)(3)

This is really, really interesting and I'm wondering if you can elaborate. For example, what are one or two ways in which you might see someone attempt application beyond its scope?

For example:

Imaginary John has an assembled functioning lower with a collapsible stock, a pistol grip, and a standard milspec magazine release. Imaginary John also has a completed upper with a 16.5" barrel affixed with a flash hider and an attached forward vertical grip. During a traffic stop, officers gain access to a locked fully-enclosed case stored in the closed, locked trunk. Inside, they find the completely separate upper and lower described above. Can Imaginary John be charged with anything specifically related to the firearm?

Second, what if Imaginary John stored the upper and lower affixed together, but stowed the BCG somewhere else?

[RickD427]

This is really, really interesting and I'm wondering if you can elaborate. For example, what are one or two ways in which you might see someone attempt application beyond its scope?

For example:

Imaginary John has an assembled functioning lower with a collapsible stock, a pistol grip, and a standard milspec magazine release. Imaginary John also has a completed upper with a 16.5" barrel affixed with a flash hider and an attached forward vertical grip. During a traffic stop, officers gain access to a locked fully-enclosed case stored in the closed, locked trunk. Inside, they find the completely separate upper and lower described above. Can Imaginary John be charged with anything specifically related to the firearm?

Second, what if Imaginary John stored the upper and lower affixed together, but stowed the BCG somewhere else?

Let me run with your example to illustrate. "John" would not be in possession of an illegal "Assault Weapon" in your example. The reason being is that the separated upper and lower means that the weapon is not a "semi-auto" and if it's not a semi-auto, then it can't be an Assault Weapon. Assault Weapons are defined by PC 30515 and that's one of the Penal Code sections referenced by the regulation.

If he kept the upper an lower mated, but removed the BCG, the regulation ain't gonna help him, He's free to argue to the court that the weapon isn't a semi-auto because it can't fire without the BCG, and the prosecutor is free to argue that it is a semi-auto, just missing a couple of parts. The trier of fact will decide who wins.

Now, here's where we can go out of scope. Let's say that "John" is the subject of a DV Restraining Order and prohibited from possessing firearms. I don't matter if the upper and lower receivers are separated. It's still a firearm.

[Dvrjon]

If he kept the upper an lower mated, but removed the BCG, the regulation ain't gonna help him, He's free to argue to the court that the weapon isn't a semi-auto because it can't fire without the BCG, and the prosecutor is free to argue that it is a semi-auto, just missing a couple of parts. The trier of fact will decide who wins.

And, the regulations tell us that the necessary parts must be present....

(hh) “Semiautomatic” means a firearm functionally able to fire a single cartridge, eject the empty case, and reload the chamber each time the trigger is pulled and released. Further, certain necessary mechanical parts that will allow a firearm to function in a semiautomatic nature must be present for a weapon to be deemed semiautomatic. A weapon clearly designed to be semiautomatic but lacking a firing pin, bolt carrier, gas tube, or some other crucial part of the firearm is not semiautomatic for purposes of Penal Code sections 30515, 30600, 30605(a), and 30900.

If the BCG is anywhere near the car (or on John, or thrown out a window), John has problems.

[NorCalRefuge]

If the BCG is anywhere near the car (or on John, or thrown out a window), John has problems.

Could it not be argued John was attempting to construct a firearm by simply having the components laying around (minus the BCG)? Since a BCG requires no paperwork to purchase, John was in the process of assembling an illegal firearm. Which would take us back to Constructive Possession, just in a different way (since John is not allowed to own any firearm, legally).