Does putting a bipod on a pistol make it an AOW?

Charger_BipodI received an email this morning from a client asking whether or not they could add a bipod to their pistol without making it an AOW.

As I have pointed out on more than one occasion, the answer to almost any legal question is “maybe”  and that is certainly the case here.

There is no ATF regulation directly on point to the ‘bipod’ question but that does not mean that we are done with our analysis.

Let’s start with some basic rules:

1) Adding a vertical foregrip to a ‘pistol’ makes it an AOW subject to NFA regulation.  See the Franklin Armory letter below.

2) If the pistol has an overall length greater than 26 inches then you can add a vertical foregrip and convert the ‘pistol’ to a ‘firearm’ in the eyes of the ATF without it being considered an AOW.  This is also covered in the Franklin Armory letter.

Download (PDF, 969KB)

For purposes of this analysis, I am going to assume that we are dealing with a pistol that has an overall length less than 26 inches.

Now we turn to the question of whether or not a bipod can be considered a ‘vertical foregrip’ for purposes of applying rule #1 above.

As my client pointed out in his email, the Ruger Charger 10/22 pistol comes from the factory with a bipod and is not classified as an AOW.  Therefore we do know that at least some types of bipods are allowable.

But does this hold true for all bipods?  No it does not.

The most obvious example of a bipod that would be considered to also be a vertical foregrip is the aptly named Grip Pod pictured below.

This is a bipod that can also serve as a vertical foregrip and therefore would cause a pistol to which it was attached to be considered an AOW.

But not all examples are so clear-cut.  While we do not have a detailed ruling on the issue from the ATF, if a given bipod is capable of being folded into a stable configuration approximating a vertical foregrip then I believe ATF would consider it violative of the rule against vertical foregrips.

Finally, I believe that ATF would probably apply the same logic from the stabilizing brace issue to this question.  In that case, the ATF held that “[s]ince the pistol stabilizing brace was neither ‘designed’ nor approved to be used as a shoulder stock, use as a shoulder stock constitutes a ‘redesign’ of the device because a possessor has changed the very function of the item.”

As applied here, I can easily see them holding that “Since the bipod was neither ‘designed’ nor approved to be used as a vertical foregrip, use as a vertical foregrip constitutes a ‘redesign’ of the device because a possessor has changed the very function of the item.”

So … where does that leave us?

I believe the best summary would be as follows:

Use of any bipod that has a built in grip or the capability to be folded into a stable configuration approximating a vertical foregrip would potentially expose the owner to a charge of violating the NFA.  The same would probably be true of any person who uses an otherwise legal bipod as a vertical foregrip despite its intended purposes and design.

Outside of those two broad categories, a bipod is perfectly legal for use on a pistol.

Posted in Administrative Law, AOW, AR Pistols, ATF, ATF Guidance Letters, BATFE, Criminal Law, Firearms Technology Branch, Stabilizing Brace | Comments Off on Does putting a bipod on a pistol make it an AOW?

Virginia Gun Rights Restoration Failures

If you call me with a tax law question, I am going to refer you to an attorney who practices tax law.  The same is true with all the other areas of law that are outside my wheelhouse.

The reason for this should be readily apparent.  As attorneys we have an ethical obligation to avoid taking cases where we lack the necessary competency.

However, not everyone understands the level of complexity involved in firearms law and this can lead to disastrous consequences.

In particular, I am talking about gun rights restoration.

Over the last year I have encountered a number of purported gun rights ‘restorations’ which do not, in fact, restore the rights of the petitioner and can lead to state or federal charges against the person who believes that his or her rights have been restored.

These failed restorations generally fall into one of four categories:

1) The petitioner was convicted of a federal felony

The 1994 case of Beecham v. United States, (511 U.S. 368) made it clear that  a state does not have the power to restore the firearm rights of a person whose disability was imposed by a federal or military felony.  However, I have received calls from several potential clients who claimed that they have a signed order from their circuit court purporting to do just that.

Just to be clear … if you have been convicted of a federal felony then there are only two ways to get your gun rights back and only one of them is actually available.

1 – By applying to the Secretary of the Treasury for relief from firearms disabilities

This is governed by 18 U.S.C. § 925(c).  The problem?  Since 1992, Democrat-lead efforts in Congress have prevented the agency from expending any appropriated funds to investigate or act upon applications for relief.  Furthermore, the US Supreme Court held in the 2002 case of  United States v. Bean (537 U.S. 71) that this refusal to process an application is not a ‘denial’ of the request and therefore, the District Courts have no jurisdiction to review the ‘denial’.

2 – By receiving a presidential pardon.

Information and instructions for submitting an application for a presidential pardon are available here.

Therefore, absent a presidential pardon, a person suffering under a disability imposed by a federal or military felony cannot have his or her gun rights restored and any state order purporting to do so is ineffective.

2) The disqualifying charge was a misdemeanor charge of domestic violence

I have written about this before but it bears repeating here.  In early 2015 I received an email from someone who claimed that they had successfully petitioned a circuit court to restore their firearm rights after having been convicted of misdemeanor domestic violence.

The problem here?

1)  While a misdemeanor crime of domestic violence makes you a prohibited person under federal law, Virginia does not remove the firearm rights of those convicted of misdemeanor domestic violence;

2)  The jurisdictional grant of power in 18.2-308.2(C) to restore firearms rights only applies to those who are prohibited persons under Virginia law; and

3)  The federal courts have repeatedly held that states may not ‘restore’ that which was never taken away.

In one of many cases to uphold this premise, United States v. Jennings, 323 F.3d 263 (4th Cir.), the court held that “restoration of a thing never lost … is a definitional impossibility.

This leaves a simple pardon from the Governor as the only path by which those convicted of misdemeanor domestic violence in Virginia may currently seek to remove their federal disabilities.

A court order from a Virginia court, purporting to restore rights never taken away by the State, is ineffective.

3) The disqualifying offense was from another state

Under the terms of the Firearms Owners Protection Act (FOPA),  the consequences and status of a disqualifying conviction must be “determined in accordance with the law of the jurisdiction in which the proceedings were held.”  This is codified at 18 U.S.C. § 921(a)(20).

The Virginia State Police has this to say about convictions from another state,  “While an individual may have his firearms rights restored under state law, we must determine if their rights are also restored under federal law. We have been advised that the removal of federal firearm disabilities that were imposed by a state conviction will occur under 18 USC 921(a)(20) only if the restoration of rights proceedings are held in the jurisdiction where the conviction occurred.”

Therefore, a court order from a Virginia court, purporting to restore rights taken away by a conviction in another state, is ineffective.

4) The restoration is conditional

The final category occurs when a restoration is validly granted but contains some sort of condition on the type of firearm that may be purchased or possessed, such as:

– This restoration is valid only for rifles and shotguns and does not authorize the possession of handguns.

The US Supreme Court held in the 1998 case of Caron v United States (524 U.S. 308), that a gun rights restoration must be all-or-nothing.  In other words, if there are any restrictions on the types of firearms that the petitioner may possess then the restoration order fails to remove the federal disability.

Therefore, if a purported restoration has such a condition it is ineffective.

What if I have one of these ‘failed’ restorations?

If you have a purported restoration that falls into one of these categories then I would be glad to offer you a free consultation.

Contact me at (276) 206-9615 and we will discuss your options.

Posted in ATF, BATFE, Criminal Law, Federal Law, Gun Rights Restoration, US Supreme Court, Virginia Law, Virginia State Police | Comments Off on Virginia Gun Rights Restoration Failures

The current application form for a Virginia CHP misstates the requirements for certain restoration scenarios

Magnifying_GlassIn assisting one of my clients I have discovered several errors in the current version of the Application for a Concealed Handgun Permit (SP-248) that I believe need to be corrected.

The issues are on page 2 in the Form 2 section (see the embedded form below). That section deals with the various mental health dis-qualifiers for a Concealed Handgun Permit (CHP) under § 18.2-308.09 subsections 2, 3, and 4.

Applicants are directed to one of five sub-parts in that section based upon their answers to questions 8b, 8c, and 8d.

Each of those sub-parts appropriately asks if the applicant has had his or her rights restored pursuit to the applicable provisions of § 18.2-308.1:1, § 18.2-308.1:2, or § 18.2-308.1:3.

However, in each of the sub-parts, the SP-248 then goes on to ask if 5 years have elapsed “since the date of restoration.”  This is an incorrect statement of the law in every case.

– In § 18.2-308.09(2), the General Assembly specifies that for those whose original prohibition was based upon § 18.2-308.1:1, the five-year period begins when they were “discharged from the custody of the Commissioner.

– In § 18.2-308.09(3), the General Assembly specifies that for those whose original prohibition was based upon § 18.2-308.1:2, the five-year period begins when their “competency or capacity was restored pursuant to § 64.2-2012.

– In § 18.2-308.09(4), the General Assembly specifies that for those whose original prohibition was based upon § 18.2-308.1:3, the five-year period begins when they were “released from commitment.

The form, as currently printed, misstates the requirements for applying for a CHP and places the applicant in a position where answering the question truthfully will almost certainly result in their application being erroneously denied.

I have forwarded my concerns to the Virginia State Police for review and possible correction.  I will keep my clients informed as I get updates.

Download (PDF, 231KB)

 

Posted in CHP, Concealed Handgun Permit, Gun Rights Restoration, SP-248, Virginia Law, Virginia State Police | Comments Off on The current application form for a Virginia CHP misstates the requirements for certain restoration scenarios

Governor McAuliffe announces he will ‘expeditiously’ sign individual restoration orders

Gov_SigFollowing Friday’s decision by the Virginia Supreme Court striking down Governor McAuliffe’s blanket restoration of political rights, Governor McAuliffe was quick to issue an official response.

For those clients who need their voting rights restoration in order to apply for restoration of their firearm rights, the Governor’s response contained some good news.

He stated that “The men and women whose voting rights were restored by my executive action should not be alarmed. I will expeditiously sign nearly 13,000 individual orders to restore the fundamental rights of the citizens who have had their rights restored and registered to vote. And I will continue to sign orders until I have completed restoration for all 200,000 Virginians.

It appears as if those who actually registered to vote following the April 22nd executive order should expect to quickly receive an individualized restoration from the Governor. If you fall into this category then you simply need to wait.

For those who fall into the second category of those who purportedly had their rights restored based upon the April 22nd order but did not actually register to vote the path forward is not yet clear.  While the Governor indicated he will continue to sign orders for each one until he has restored everyone, there is no indication as to whether a request may be made for expedited processing.

The Governor’s Restoration of Rights page has not yet been updated to reflect the ruling but I expect we will receive more guidance over the next few days.  I will keep my clients informed as details emerge.

Posted in Executive Orders, Gun Rights Restoration, Virginia Law, Virginia Supreme Court | Comments Off on Governor McAuliffe announces he will ‘expeditiously’ sign individual restoration orders

The Virginia Supreme Court has struck down Governor McAuliffe’s blanket restoration of political rights

VASCIn a ruling issued late today, the Virginia Supreme Court has struck down the Governor’s blanket restoration of the political rights of over 206,000 convicted felons who had completed their sentences and been released from supervised probation or parole.

The 63 page ruling, included below, will require the Virginia Department of Elections to “cancel the registration of all felons who have been invalidly registered.

While I have not yet had time to review the ruling, I can immediately imagine a number of other questions that need to be asked:

  • I have had at least one client, whose political rights were purportedly restored based upon this order, become a notary public.  What is the status of the documents that she has notarized?
  • If any person whose political rights were purportedly restored based upon this order has served upon a jury, will that cast a shadow upon any resulting verdicts?

I will refrain from asking any further questions until I have had a chance to read the entire opinion but the key question for my clients is this:

How does this impact my ability to petition for the restoration of my gun rights?

Here is the short answer … if your political rights were restored as part of the April 22nd blanket restoration then you will have to re-apply for individual restoration and wait for that individualized executive order to be issued before we can submit your petition to the courts.

The good news (assuming that there is nothing in the opinion that would prevent such action) is that Governor McAuliffe has indicated that if he were to receive this ruling that his office was prepared to quickly issue individualized restoration orders for everyone covered by his blanket order.

I will be following up as I get a chance to read the order and the Governor has a chance to respond to the ruling.

The Entire Ruling

Download (PDF, 314KB)

Posted in Executive Orders, Gun Rights Restoration, State Constitutional Provisions, Virginia Law | Comments Off on The Virginia Supreme Court has struck down Governor McAuliffe’s blanket restoration of political rights

The complete guide to the new Form 4

Filling_FormsYou swore that you would not be buying any more NFA items after 41F went into effect.

But now they have that great new suppressor down at the gun store and you have been hearing people talk about how the industry is working to minimize the impact of 41F and how you might be able to reduce the number of ‘responsible persons’ on your trust.

Let’s face it.  You are going to buy that suppressor despite 41F.  But fear not.  This guide will walk you through every step of the new Form 4 process and make it as easy as possible.

Getting Started

In almost all cases the dealer you are buying the NFA item from will already have the Form 4s with their portion completed before you arrive.  So I will only focus on those fields that need to be completed by the transferee (buyer).

Form 4 – Page 1

  • Box 2a should contain the name of your trust (exactly as it appears on the header of the trust document) and the mailing address for the location where the item will initially be stored.
  • In Box 2a you should also check the box for TRUST or LEGAL ENTITY.
  • Box 2b should contain the name of the county in which the physical address from 2a is located.  Note: Virginia is one of the few states where there are independent cities that are not part of the surrounding counties. If you live in an independent city (like Alexandria for example) then put your city in 3d (e.g.  “Alexandria City”).

Form 4 – Page 2

  • Box 12 should contain the information about the CLEO whose jurisdiction includes the address where the items will be stored.
  • Box 13 should have the name of the trust in the first blank and ‘All lawful purposes‘ in the second blank.
  • Box 14, 15, 16, and 17 should be left blank.  For trust applicants, these background questions and photos will be part of a separate form for each ‘responsible person’ (Form 23) for which I will provide instructions further down in this guide.
  • However, you still must sign the Transferee Signature at the bottom of Page 2.

Form 4 – Page 3

  • Box 18 should contain the number of responsible persons on the trust.  I have a detailed article here laying out which persons on your trust are considered ‘responsible persons’ but the short answer is that you are a responsible person and so are those people listed on Schedule B of your trust.  If you want to remove joint trustees from your Schedule B before submitting your application I have a guide to doing so here.
  • Box 19 should contain your full legal name and the full legal names of all those on Schedule B of your trust.
  • Box 20 should contain your method of payment and, if you are paying with a credit card, the information about the credit card and the amount being paid.  You only need to sign in Box 20 if you are paying with a credit card.  (More about this in the signing section below)

Signing the Completed Form 4

Each copy of the completed Form 4 should be signed in the following places:

  • On the bottom of Page 2 sign your name and add “as trustee” at the end.
  • Only sign on Page 3 Box 20 if you are paying with a credit card.

Important:  The ATF requires all signatures to be in either blue or black ink.

Turning to the Form 23

A copy of the new ‘responsible person’ form 5320.23 (Form 23) will need to be completed by each ‘responsible person’ of the trust listed in Box 19 of the Form 4.

Important Note:  Your fellow ‘responsible persons’ will find it much easier to complete this form if they have a copy of the completed Form 4 in front of them.  

The Form 23 may be downloaded from the ATF website. It is well designed with fillable fields which auto-transfer the data to additional copies (based upon testing, it seems that you must use Adobe Acrobat Reader for these features to work reliably).  I will instruct you where to send each copy later in this guide.

You, and the Joint Trustees listed on Schedule B of your trust, should download the form and each one complete it according to the following instructions:

Form 23 – Page 1

  • In Box 1 you should check the box for Form 4.
  • In Box 2 you should copy the trust name and address from Box 2a on the Form 4.
  • In Box 3a you should put your full legal name and your home address.
  • In Box 3b you should put your telephone number.
  • Box 3c can be left blank.
  • If you have changed your name at any time during your life, including being married, then Box 3d should contain all other names you have ever used.
  • In Box 3e you will affix a 2×2 passport-quality photo taken within the last year (on the ATF copy of the form only).  As I noted here, many NFA dealers are planning to offer in-store photography options so you should check with your local gun store.  Failing that, Walgreens is a common provider of this service in many towns.
  • In Box 4a, you should copy the type-of-firearm from Box 4b of the Form 4.
  • In Box 4b you should copy the name and location from Box 4a of the Form 4.
  • In Box 4c you should copy the model from Box 4d of the Form 4.
  • In Box 4d you should copy the caliber and UOM from Box 4c of the Form 4.
  • In Box 4e you should copy the serial number from Box Box 4g of the Form 4.
  • Box 5 should contain the information regarding the CLEO whose jurisdiction includes the home address in Box 3a.

Form 23 – Page 2

  • You will need to answer the questions in Boxes 6, 7, and 8 as they apply to you, the person completing the form.  In the example below, I am completing them as I personally would answer them but you will need to answer them truthfully as they apply to you!
  • Note: If you have been convicted of a felony but have since had your gun rights restored then the instructions state you should answer question 6b as ‘No’.  However, I strongly advise you to attach a copy of your restoration paperwork to the Form 23 when submitting it to the ATF.
  • You will sign the certification following Box 8.  (More about this in the signing section below)
  • You should enter the date in the field to the right of the signature block.

A Completed Sample of Form 23

The following sample form illustrates what a completed form should look like.

Download (PDF, 928KB)

Printing The Completed Form 23

Once you have completed the Form 23, you will need to print it.  While the instructions do not specifically state that the Form 23 should be printed double-sided like the Form 4, I would advise doing so.

It will print 2 copies.  You should now affix your photo to the ATF copy of the Form 23 only. (DO NOT USE STAPLES)

Signing the Completed Form 23

The only place you will need to sign the Form 23 is following the certification statement below Box 8.  You do NOT add “as trustee” to your signature on this form.

Do not forget to sign both copies of the Form 23.

Important:  The ATF requires all signatures to be in either blue or black ink.

Notifying Your CLEO

The Settlor of the trust will need to mail his or her CLEO (From Box 5 of the Form 23) the CLEO copy of the Form 4 and the CLEO copy of their Form 23.

All other responsible persons will only need to mail his or her CLEO (From Box 5 of their Form 23) the CLEO copy of their Form 23.

Important Note:  The CLEO copy of the Form 23 does not have a photo affixed.  You should also not send fingerprint cards to the CLEO.

Fingerprint Cards

Each Form 23 to be sent to the ATF will need to be accompanied by fingerprints of the responsible person taken on 2 FBI (FD-258) fingerprint cards.  As I noted here, many NFA dealers are planning to offer in-store fingerprinting so you should check with your local gun store.  Failing that, you should be able to get fingerprinted at your local law enforcement agency.  No matter who does the fingerprinting, you should make sure that they use the correct FD-258 cards.

Mailing the Completed Form 4 Packet to the ATF

Now we need to prepare the packet to mail to the ATF.  Note that If you are building more than one NFA item, you will need a separate packet for each item.

This packet should include:

  • The first 2 copies of the completed Form 4 printed front and back as noted above with original signatures in blue or black ink on both copies.  (These are marked ATF Copy and ATF Copy 2 on the bottom of the forms)
  • The ATF Copy of the Form 23 for each responsible person of the trust with photos affixed and fingerprint cards included. (DO NOT STAPLE)
  • A single copy of your notarized trust instrument (including all schedules)
  • Payment for the amount of the tax ($200) payable to BATFE (unless you entered credit card info on the Form 4)

The entire packet should be mailed to:

National Firearms Act Branch
BATFE
P.O. Box 530298
Atlanta, GA 30353-0298

If this guide leaves any questions unanswered, please feel free to contact me.

Posted in 41F, 41P, BATFE, CLEO Notification, Fingerprinting, Form 23, Form 4, NFA Transfers, NFA Trusts | Comments Off on The complete guide to the new Form 4

Purchasing a firearm after your gun rights have been restored following a mental health adjudication

Confusing_DirectionsIn Virginia, there are a number of mental health adjudications that can lead to a prohibition on the right to purchase, possess, and transport firearms.

These include the following:

All four categories allow for a person thus impacted to petition the General District Court in the jurisdiction where they reside for restoration of their gun rights after they have recovered from the issue which gave rise to the adjudication.

If you have had your gun rights restored following one of the aforementioned mental health adjudications then you are able to once again legally purchase firearms, both in private transactions and from a licensed dealer.

However, there is a question on the ATF Form 4473 which you must answer correctly or your purchase will be denied.

When completing this form, question 11f asks “Have you ever been adjudicated mentally defective (which includes a determination by a court, board, commission, or other lawful authority that you are a danger to yourself or to others or are incompetent to manage your own affairs) OR have you ever been committed to a mental institution?

4473-11f

Your initial inclination would be to answer ‘Yes’ since this is truthful answer to the question presented. But that is not what you should do.

The question goes on to suggest that you see the attached instructions. There we find that there are exceptions.  However, on the current version of the 4473, none of the enumerated exceptions would apply to those who have had their rights restored at the state level.

2012-11f-Exception

This is a perplexing and infuriating omission on the part of the ATF.  Under the NICS Improvement Act of 2007, when a state court grants a qualified relief petition, the adjudication or commitment that rendered the person ineligible to possess or acquire firearms is “deemed not to have occurred” for purposes of federal law (see § 105(b) of the NICS Improvement Act of 2007)

The ATF is currently working in a new version of the 4473 and they apparently noticed the omission because they have corrected the exception language in the as-of-yet unapproved version of the 4473.

2016-11f-Exception

But regardless of whether or not the exception is mentioned in the instructions, a person who has had his or her firearm rights restored by a qualified state process may answer ‘No’ to question 11f on the ATF form 4473 when applying to purchase a firearm.

However, to insure that there could never be a question about the honesty or intent of the applicant, I advise my clients to answer the question ‘No‘ and then put ‘Rights Restored‘ in the margin beside the question.

Even with your rights restored, you should know that you may be delayed when attempting to make a purchase.  In case there is ever any question, I would also strongly suggest carrying a copy of the restoration order with you both when you apply for, and when picking up, the firearm.

Finally, I want to reiterate that, while this restoration removes both your federal and Virginia disabilities, it does not necessarily remove the prohibitions in any other state. Before possessing a firearm in any state other than Virginia you should consult with an attorney licensed to practice law in that state to determine whether that state has a prohibition that would apply to your situation, whether that state recognizes gun rights restoration proceedings from other states and, if so, whether Virginia’s process meets their requirements.


Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer is specific to Virginia.

Posted in 4473, ATF, BATFE, Criminal Law, Federal Law, Gun Rights Restoration, Virginia Law | Comments Off on Purchasing a firearm after your gun rights have been restored following a mental health adjudication

Can you own body armor after having your gun rights restored?

Body_ArmorBecause of the imperfect intersection of local, state, and federal laws, there are a number of legal questions that arise when a felon has their gun rights restored.

Today’s question is whether a person who was convicted of a felony and subsequently had their gun rights restored can purchase or possess body armor.

The legal answer (as always) is “maybe.

Let’s start with the standard disclaimer that I am only licensed to practice law in the Commonwealth of Virginia and nothing I say should be considered valid in any other jurisdiction.

Under Virginia Law

Turning first to the state level.  Under Virginia law, there is no prohibition on the purchase or possession of body armor by convicted felons regardless of whether or not a person has had their gun rights restored.

In fact, there is only a single code section which even mentions body armor and that is §18.2-287.2 which prohibits the wearing of body armor while committing a crime.

Since I am assuming that the questions from my clients involve using the body armor for lawful purposes then there is no bar at the state level.

Under Federal Law

Under federal law, the relevant prohibition is at 18 U.S. Code § 931.  This statute prohibits the purchase, ownership, or possession of body armor by anyone who has been convicted of a ‘crime of violence’.

There is a single exception for those who have written documentation from his or her employer that “the … purchase, use, or possession of body armor was necessary for the safe performance of lawful business activity; and … the use and possession … were limited to the course of such performance.”

As to whether or not a specific crime is considered a ‘crime of violence’, this is defined in 18 U.S. Code § 16 which states:

The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

To return to the original question …

If you have been convicted of a felony then whether or not you have had your gun rights restored is irrelevant to the question of whether or not you may purchase or possess body armor for lawful purposes.

If your crime was a ‘crime of violence’ (as defined above) then you may not purchase, own, or possess body armor.

If your felony was anything other than a crime of violence then there is no legal bar to your purchase or possession of body armor for lawful purposes.

Posted in Body Armor, Criminal Law, Federal Law, Gun Rights Restoration, Virginia Law | Comments Off on Can you own body armor after having your gun rights restored?

The complete guide to the new Form 1

SBR_PartsIt’s time to submit a new Form 1 but July 13th has come and gone, 41F is fully in effect, and eForms, despite its tendency to crash every 15 minutes, is now nothing more than a cherished but fading memory.

But fear not.  This guide will walk you through every step of the new process and make it as easy as possible.

I should start by repeating what I said earlier … eForms is no longer available for the submission of new Form 1’s for trust applicants.  All future applications will need to be made on paper using the new Form 1 application.

This is very important!  In the past, even when the ATF released a new version of the Form 1 or Form 4, they would generally still accept applications using the older version of the form.  That is no longer the case! Any application postmarked July 13th or later that is not on the new form will be rejected!

The new blank Form 1 is available on the ATF website.  The form itself is well designed with fillable fields which auto-transfer the data to two additional copies (based upon testing, it seems that you must use Adobe Acrobat Reader for these features to work reliably).  I will instruct you where to send each copy later in this guide.

You should download the form and then complete it according to the following instructions:

Form 1 – Page 1

  • In Box 1 you should check option a.
  • In Box 2 you should check the box for TRUST or LEGAL ENTITY.
  • Box 3a should be left blank.
  • Box 3b should contain the name of your trust (exactly as it appears on the header of the trust document) and the mailing address for the location where the item will initially be stored.
  • Box 3c should be blank unless the mailing address in Box 3b is a PO Box.  In that case,  the physical address should be entered here.
  • Box 3d should contain the name of the county in which the physical address from 3b/3c is located.  Note: Virginia is one of the few states where there are independent cities that are not part of the surrounding counties. If you live in an independent city (like Alexandria for example) then put your city in 3d (e.g.  “Alexandria City”).
  • Box 3e should contain the best number at which to reach the Trustee or Settlor submitting the application.
  • Box 3f may be left blank.
  • Box 4a should contain the manufacturer’s name and the location in which it was manufactured.  It is critical that you enter them exactly as they are engraved on the lower!  However, if you have a foreign manufactured firearm, you must also be careful to identify the name and location of the original manufacturer  and not the importer (which might also be engraved on the lower).  If you are manufacturing your own suppressor, or your own SBR based on an un-serialized 80% lower, then your trust is the manufacturer and you should put the trust name, city, and state here.
  • Box 4b should contain either Silencer, Machinegun, Short-Barreled Rifle, Short-Barreled Shotgun, or Destructive Device.  There have been unconfirmed reports of the ATF rejecting applications for putting ‘Suppressor’ instead of ‘Silencer’ in this field.
  • Box 4c should contain the initial caliber of the item being built.  Do not put ‘Multi’ as the caliber even if that is what is engraved on the lower.  While you may have multiple uppers for your registered lower, you need to declare a specific primary configuration in this application and you need to retain the ability to return to this configuration. This value should contain the number and the unit of measure such as .30 Cal, 9mm, or 12 Gauge.
  • Box 4d should contain the model number of the item.  Once again, it is critical that you enter them exactly as they are engraved on the lower!  If you are manufacturing your own suppressor, or your own SBR based on an 80% lower, then you will need to assign a model name.
  • Box 4e should contain the length of the barrel in inches.  If you are building a suppressor then you should put ‘N/A’ in this field.
  • Box 4f should contain the estimated overall length of the firearm in inches.  I say estimated because you cannot assemble the firearm in advance to do precise measurements.  Having said that, the overall length should be estimated based upon an extended stock.
  • Box 4g should contain the serial number of the item.  At the risk of repeating myself, it is critical that you enter the serial number exactly as it is engraved on the lower including any alpha-numeric characters!  If you are manufacturing your own suppressor, or your own SBR based on an 80% lower, then you will need to assign a serial number.  Many people simply start with 001 and proceed in series as they build additional items.
  • Box 4h should be left blank.
  • Box 4i should be answered ‘All lawful purposes’.
  • Box 4j should be left blank unless you are actually building a Destructive Device.
  • Box 4k should be answered ‘No’ unless you are one of the extremely rare applicants who is actually reactivating a firearm.
  • Boxes 5 and 6 should both be left blank.
  • You should sign in Box 7.  (More about this in the signing section below)
  • In Box 8, you should put your full legal name and follow it with ‘- TRUSTEE’ as the title.
  • Box 9 should contain the date the application is completed.

Form 1 – Page 2

  • Box 10 should contain the information about the CLEO whose jurisdiction includes the address where the items will be stored.
  • Box 11, 12, 13, and 14 should be left blank.  For trust applicants, these background questions and photos will be part of a separate form for each ‘responsible person’ (Form 23) for which I will provide instructions further down in this guide.
  • Do not sign at the bottom of Page 2.

Form 1 – Page 3

  • Box 15 should contain the number of responsible persons on the trust.  I have a detailed article here laying out which persons on your trust are considered ‘responsible persons’ but the short answer is that you are a responsible person and so are those people listed on Schedule B of your trust.  If you want to remove joint trustees from your Schedule B before submitting your application I have a guide to doing so here.
  • Box 16 should contain your full legal name and the full legal names of all those on Schedule B of your trust.
  • Box 17 should contain your method of payment and, if you are paying with a credit card, the information about the credit card and the amount being paid.  You only need to sign in Box 17 if you are paying with a credit card.  (More about this in the signing section below)

A Completed Sample of Form 1

The following sample form illustrates what a completed Form 1 should look like.

Download (PDF, 1.17MB)

Printing The Completed Form 1

Once you have completed the Form 1, you will need to print it.  It is vital that you print the completed form double-sided!  The instructions make it clear that “[t]he NFA Branch will not approve the application if the front and back are on separate sheets of paper.”

It will print 3 copies.  I will cover where to send each of these copies later in this guide.

Signing the Completed Form 1

Each copy of the completed Form 1 should be signed in the following places:

  • On Page 1 Box 7 sign your name and add “as trustee” at the end.
  • Do NOT sign the Makers Certification on the bottom of Page 2.
  • Only sign on Page 3 Box 17 if you are paying with a credit card.

Important:  The ATF requires all signatures to be in either blue or black ink.

Turning to the Form 23

A copy of the new ‘responsible person’ form 5320.23 (Form 23) will need to be completed by each ‘responsible person’ of the trust listed in Box 16 of the Form 1.

Important Note:  Your fellow ‘responsible persons’ will find it much easier to complete this form if they have a copy of the completed Form 1 in front of them.  

The Form 23 may be downloaded from the ATF website and also has the auto-transfer feature for additional copies.  Remember to use Adobe Acrobat Reader for this feature to work.

You, and the Joint Trustees listed on Schedule B of your trust, should download the form and each one complete it according to the following instructions:

Form 23 – Page 1

  • In Box 1 you should check the box for Form 1.
  • In Box 2 you should copy the trust name and address from Box 3b on the Form 1.
  • In Box 3a you should put your full legal name and your home address.
  • In Box 3b you should put your telephone number.
  • Box 3c can be left blank.
  • If you have changed your name at any time during your life, including being married, then Box 3d should contain all other names you have ever used.
  • In Box 3e you will affix a 2×2 passport-quality photo taken within the last year (on the ATF copy of the form only).  As I noted here, many NFA dealers are planning to offer in-store photography options so you should check with your local gun store.  Failing that, Walgreens is a common provider of this service in many towns.
  • In Box 4a, you should copy the type-of-firearm from Box 4b of the Form 1.
  • In Box 4b you should copy the name and location from Box 4a of the Form 1.
  • In Box 4c you should copy the model from Box 4d of the Form 1.
  • In Box 4d you should copy the caliber and UOM from Box 4c of the Form 1.
  • In Box 4e you should copy the serial number from Box Box 4g of the Form 1.
  • Box 5 should contain the information regarding the CLEO whose jurisdiction includes the home address in Box 3a.

Form 23 – Page 2

  • You will need to answer the questions in Boxes 6, 7, and 8 as they apply to you, the person completing the form.  In the example below, I am completing them as I personally would answer them but you will need to answer them truthfully as they apply to you!
  • Note: If you have been convicted of a felony but have since had your gun rights restored then the instructions state you should answer question 6b as ‘No’.  However, I strongly advise you to attach a copy of your restoration paperwork to the Form 23 when submitting it to the ATF.
  • You will sign the certification following Box 8.  (More about this in the signing section below)
  • You should enter the date in the field to the right of the signature block.

A Completed Sample of Form 23

The following sample form illustrates what a completed form should look like.

Download (PDF, 928KB)

Printing The Completed Form 23

Once you have completed the Form 23, you will need to print it.  While the instructions do not specifically state that the Form 23 should be printed double-sided like the Form 1, I would advise doing so.

It will print 2 copies.  You should now affix your photo to the ATF copy of the Form 23 only. (DO NOT USE STAPLES)

Signing the Completed Form 23

The only place you will need to sign the Form 23 is following the certification statement below Box 8.  You do NOT add “as trustee” to your signature on this form.

Do not forget to sign both copies of the Form 23.

Important:  The ATF requires all signatures to be in either blue or black ink.

Notifying Your CLEO

The Settlor of the trust will need to mail his or her CLEO (From Box 5 of the Form 23) the CLEO copy of the Form 1 and the CLEO copy of their Form 23.

All other responsible persons will only need to mail his or her CLEO (From Box 5 of their Form 23) the CLEO copy of their Form 23.

Important Note:  The CLEO copy of the Form 23 does not have a photo affixed.  You should also not send fingerprint cards to the CLEO.

Fingerprint Cards

Each Form 23 to be sent to the ATF will need to be accompanied by fingerprints of the responsible person taken on 2 FBI (FD-258) fingerprint cards.  As I noted here, many NFA dealers are planning to offer in-store fingerprinting so you should check with your local gun store.  Failing that, you should be able to get fingerprinted at your local law enforcement agency.  No matter who does the fingerprinting, you should make sure that they use the correct FD-258 cards.

Mailing the Completed Form 1 Packet to the ATF

Now we need to prepare the packet to mail to the ATF.  Note that If you are building more than one NFA item, you will need a separate packet for each item.

This packet should include:

  • The first 2 copies of the completed Form 1 printed front and back as noted above with original signatures in blue or black ink on both copies.  (These are marked ATF Copy and ATF Copy 2 on the bottom of the forms)
  • The ATF Copy of the Form 23 for each responsible person of the trust with photos affixed and fingerprint cards included. (DO NOT STAPLE)
  • A single copy of your notarized trust instrument (including all schedules)
  • Payment for the amount of the tax ($200) payable to BATFE (unless you entered credit card info on the Form 1)

The entire packet should be mailed to:

National Firearms Act Branch
BATFE
P.O. Box 530298
Atlanta, GA 30353-0298

If this guide leaves any questions unanswered, please feel free to contact me.

Posted in 41F, 41P, ATF, BATFE, CLEO Notification, Form 1, Form 23, NFA Trusts, Responsible Persons | Comments Off on The complete guide to the new Form 1

Reducing your trust’s ‘responsible persons’ after 41F

Reduction“What can I do to my trust to reduce the number of people who need to be fingerprinted and photographed?”

Now that 41F is actually in effect, I am getting dozens of emails with some version of this question.

The good news is that I believe there is a way to reduce the number of people who need to be fingerprinted and photographed while still allowing them temporary access to the items for hunting and sporting purposes:

IMPORTANT:  This advice is specific to trusts that I have drafted.  If you have a different trust, please consult with the attorney who drafted your trust.

The solution revolves around understanding which parties to a trust are affected by the new rule so let’s take a quick moment to review that question.

Under 41F, those persons who need to be fingerprinted, photographed, and notify their CLEO are known as ‘responsible persons’.  I have a detailed article here that breaks down my analysis of which parties on a trust are ‘responsible parties’ and which ones are not.

The summary version is this:

  • Settlor – Responsible Person
  • Joint Trustee – Responsible Person
  • Successor Trustee – No
  • Beneficiary – No

Therefore, our goal is simple.  If we are going to submit a new Form 4 or Form 1 application then we need to remove as many  Joint Trustees as possible.

That, in and of itself, is quite easy.  When I originally emailed you your trust, it was accompanied by a Word document containing blank schedules.  If you have lost that document, I still have it in your client file and will be glad to email you a replacement copy.

If you do not have Microsoft Word or would prefer my assistance, I would be glad to make the changes for you.

In either case, we simply use that template to print a new version of Schedule B with the selected Joint Trustees removed.  Once printed, you should:

  • Sign and date it with the current date (not the date that is on the other schedules)
  • Make as many copies of the signed and dated Schedule B as you have copies of the trust
    (including those held by joint or successor trustees and by beneficiaries)
  • Replace that page in all copies of the trust

Incidentally, it works the exact same way if you want to add a new Joint Trustee to the trust.  And that brings us to one of the questions that I have answered literally hundreds of times since 41F was published … “Do new trustees have to be fingerprinted and photographed when they are added to the trust?”

The answer is “Not unless you have a pending application.

The ATF addressed this in their 41F FAQ.  The relevant portion notes that:

Q: Will new responsible persons, added after the making or transfer, be subject to the same requirements?

A: Once an application has been approved, no documentation is required to be submitted to ATF when a new responsible person is added to a trust or legal entity. However, should a responsible person change after the application has been submitted, but before it is approved, the applicant or transferee must contact the NFA Branch for guidance.

So … while it is possible to remove joint trustees and then re-add them at a later date once all pending applications are approved, it certainly is not an ideal solution and deprives your friends and family of months of legal access to your NFA items.

But that is not the solution I am proposing for my clients.  Since Joint Trustees are ‘responsible persons’ while Beneficiaries are not, can we make the current Joint Trustees into Beneficiaries with the ability to possess NFA items at the discretion of the Settlor?  I believe under both state trust law, and the clear text of 41F, that we can.

Let start with the general premise that, in my trusts, Beneficiaries have no power to compel or control any aspects of the trust.  I make this clear in Section 5.1 where it states in part:

“My Trustee has the sole and absolute discretion to … deny a beneficiary benefits”

In 5.2 however, I note that Beneficiaries may have temporary possession of trust assets at the discretion of the Trustee (which in a trust with no Joint Trustees will be the Settlor). That section states:

“My Trustee must have actual or constructive possession of trust property at all times. My Trustee may document reasonable, temporary transfers of trust property to a beneficiary”

Taken together, I believe that under 41F, the Settlor may issue letters of authorization to Beneficiaries to possess items for temporary hunting or sporting activities (I will be posting a sample letter shortly).  This does not grant the same level of “treat it like you own it” possessory access that a Joint Trustee would have.  However, it will satisfy the needs of 99% of those persons who would have historically been listed as Joint Trustees, and most importantly, does not require them to be fingerprinted, photographed, or to provide CLEO notification.

So how do we add the former (now removed) Joint Trustees to our list of beneficiaries? We return to our Word template I provided.  In Schedule D, most of you will have language that looks something like the following:

Upon the death of the Settlor, 100% of trust assets are to be distributed to John Andrew Pierce.  If he predeceases the Settlor or is unable to take possession for any reason then 100% of trust assets should be distributed to Joshua William Pierce.  …

What we are going to do is leave the post-death section alone and add a section above it that will read like the following:

During the life of the Settlor, the following shall be beneficiaries of the trust with benefits available only at the sole and complete discretion of my Trustee: First Middle Last1, First Middle Last2, and First Middle Last3.

The resulting Schedule D will then describe beneficiaries both during the life and following the death of the Settlor as illustrated below:

During the life of the Settlor, the following shall be beneficiaries of the trust with benefits available only at the sole and complete discretion of my Trustee: First Middle Last1, First Middle Last2, and First Middle Last3.

Upon the death of the Settlor, 100% of trust assets are to be distributed to John Andrew Pierce.  If he predeceases the Settlor or is unable to take possession for any reason then 100% of trust assets should be distributed to Joshua William Pierce.  …

I want to stress that none of us in the legal community know exactly how the ATF will handle the various strategies we are each proposing for moving forward.  So I would advise my clients to only make such a change as-and-when they are ready to submit a new Form 4 or Form 1 (guides to the new forms will be posted shortly).

That will serve the dual purposes of not overwhelming me with requests to review changes all at once and giving the ATF a chance to approve or reject the theory.  We simply do not know how they will interpret a given instrument in the light of that loosely worded definition of ‘responsible person’.

As I have stated before, this entire analysis, and the resulting advice, may change completely if the ATF chooses to ignore the clear text of the regulation as they have already done where the 24 month exemption clause is concerned.

If you are one of those people who are ready to file a new Form 1 or Form 4 and would like me to assist you with making these proposed changes (knowing the uncertainty that will face the initial applicants), or would just like me to review them after you have made them, feel free to contact me.

Posted in 41F, 41P, ATF, BATFE, CLEO Notification, Fingerprinting, NFA Trusts | Comments Off on Reducing your trust’s ‘responsible persons’ after 41F