UPDATE - He signed it.

Thank you Allegan County!

I understand few of us are actual lawyers, but I am curious if anyone thinks the passing of SB 0610 somehow requires the individual counties to comply via their support on ATF Forms 1, 4, and 5.  I know several counties currently will not sign for suppressors, but as we know suppressors are only available to us per the unchallenged AG opinion.  Does the passing of SB 0610 imply anything more significant?

I ask mainly because the clerk at my county sheriff's office suggested that I may be disappointed with my sheriff's unwillingness to sign my Form 1. I won't know for sure until next week, but this is the same sheriff who already signed for two of my Form 4 suppressors.  Is making a distinction between suppressors and SBRs simply his prerogative with which I must live?

Sure I could go the trust route (and probably will), but I'm curious to know if I'm simply bypassing what should be an obligation by my elected official.

Thoughts?

MI law basically states they are legal if approved through the ATF. To get approval from the ATF you need Chief LE signature if you don't go the trust route. So, does the Chief LEO have to sign a ATF required form? In the past the ATF has said no. It up to each Chief LEO. However per the law the signature if just verifying that there is nothing prohibiting you from possessing said firearms. It would take a legal challenge by someone who had theirs not signed  to get some legal opinions on it. Financially its cheaper just to get a trust.

I would make sure the Chief LEO knows you will still be possessing the firearms with or with out his signature. At least with the signature he knows whats in his jurisdiction. Does he want to know where a legally owned full auto firearm is when sending his deputies to calls or not.

The new law treats SBR's the same as suppressors as far as the CLEO sign off.  No difference.  If the LEO does not want SBR's he need not sign. Its already been litigated and the courts have said he does not have to sign.  The trust route is one option. Educating and talking to the CLEO and showing him the background check and fingerprints requirements is also an option.  The other option is a pistol brace.  ATF has ruled that a pistol brace when misused and fired from the shoulder does not make the firearm an SBR.  Your buy your AR-15 pistol or make it from a virgin lower, register it as a pistol on the ri-060, add the brace, forget the CLEO and the NFA.  See

Sig Style/ AR Pistol brace not SBR when misused

Thank you gentlemen, for clarifying this for me.  That said, it looks like the trust route is going to be my option.

For those of you contemplating your options, consider this;  if my sheriff does not sign for my SBR I must go the trust route.  I will however also have two suppressors that were previously approved using the individual CLEO sign-off.

Now moving forward (for me), I will have both individual, AND trust items.  And I can't put my existing suppressors into my trust without paying another $200 per suppressor.

"Hey Dad, take this SBR home tonight and try it out.  Nope, you can't use the suppressor with it. Sorry".  What a mess.

It sure seems like going the trust route in the beginning would have been smartest, even though it is more money up front.

That's the direction I am leaning, but be aware that the ATF currently has a proposal out (last I knew at least) that would add the fingerprint and photo requirements for every member of a trust. It would also require CLEO signature for trusts, but reword the CLEO part to make it only an acknowledgement that the CLEO saw the paperwork rather than allowing the CLEO to block the paperwork.

Even with the proposed changes, I'm still leaning toward a trust because it allows for multiple people to be in possession of the NFA item and makes transfers upon death simpler. Also, anyone that's on your trust should be someone that you are close to and it shouldn't be difficult to get fingerprints and photos from those people, although it's still one more step.

Copypasta:


Written by James O. Bardwell

The below process is what the law and ATF regulations contemplate as the way to get a signoff, if you need one.

Step 1: You ask the following persons if they would sign; the local chief of police, the local sheriff, the local district (prosecuting) attorney, the chief of the state police, and the state Attorney General. The CLEO can delegate the signing duty, for his convenience. Insist they refuse in writing, if that is what they will do. You may be surprised, one might sign. Assume they all refuse. That list of persons comes from 27 CFR sec. 179.85, which is the regulation that created the law enforcement certification requirement for Form 4's. 27 CFR sec. 179.63 is the companion regulation for Form 1's. It is NOT in any statute passed by Congress. Although not listed, and ATF will NOT designate federal officials as also acceptable (see below) other persons whose certification has been acceptable in the recent past include; local U.S. Attorney's, local federal judges, local U.S. Marshals, and local F.B.I. agents. Other local federal law enforcement agents might also work, like DEA or ATF (imagine accepting their own certification!) or Secret Service. The federal law enforcement agents should probably be in a supervisory capacity, like the head of the field office or similar post.


It is helpful, in general, to quote the certification text, that is what you are asking them to certify. For a Form 4 it reads, "I certify that I am the chief law enforcement officer of the organization named below having jurisdiction in the area of residence of (name of transferee). I have no information that the transferee will use the firearm or device described on this application for other than lawful purposes. I have no information indicating that the receipt and/or possession of the firearm described in item 4 of this form would place the transferee in violation of State or local law."


Step 2: Copy the refusal letters, and send the copies to the NFA Branch of ATF. Ask them to designate other persons whose signature would be acceptable, as the ones listed in the regulation would not sign. They are required to do this by the same regulation, it is the safety valve for when none of the designated persons will sign. ATF will almost certainly say that they will accept the certification of a state judge who has jurisdiction over where you live (same as the chief, D.A. and sheriff in step 1, they have to have jurisdiction over where you live) and who is a judge of a court of general jurisdiction, that is a trial court that can (by law) hear any civil or criminal case. No limit as to dollar amount in civil cases, or type of crime in criminal cases. No small claims court or traffic court type judges, in other words. Let's assume they refuse.


Step 3: get back to ATF, Send them copies of the rejection letters, and ask that they accept a letter of police clearance, or a police letter saying you have no criminal record/history with them, in lieu of the certification, together with your certification that you are OK, and that the weapon would be legal for you to have where you live. They will either respond OK, or with more persons to try. If you reach the point where they will not accept the police clearance letter, and not designate someone who has not turned you down, you can sue, if the certification is for a Form 1, or the transferor (seller) on a Form 4 can sue.


There are two cases on this issue. The first is Steele v. NFA Branch, 755 F.2d 1410 (11th Cir. 1985), where the 11th circuit federal appeals court said a person trying to transfer a gun to one who was otherwise eligible to own the gun, but could not get the certification from anyone acceptable to ATF, could sue to force the transfer without it. In the case Steele (the transferor in a Form 4 transfer) had not asked everyone acceptable to ATF, as well as not alleged, as part of his case, that the potential transferee was otherwise eligible by law to own the weapon, and the case was disposed of on those grounds. Note that the version of the regulation creating the certification requirement, reproduced in the footnotes of this case, has a different list of acceptable persons. After some were sued in connection with this case, all the federal law enforcement officials were removed from the regulation. Correspondence from ATF indicates they will not designate any federal officials as other acceptable persons either. The Steele decision was followed in the case Westfall v. Miller, 77 F.3d 868 (5th Cir. 1996), in which a transferee, not transferor, sued over non-approval of a Form 4 without the certification. Again Westfall did not ask everyone listed in the regulation. Again his case was thrown out for lack of standing. The court said they could not tell if the reason he couldn't get the gun was an illegal requirement, the signoff, or his own failure to try and get a signoff.

This certification is not really a big deal for the chief law enforcement officer (CLEO) making it, and it DOES NOT expressly make the CLEO legally responsible for the weapon or your use of it, or its theft. I have not heard of any successful case against a CLEO for signing the certification for a gun that was criminally misused. That is, in my opinion, a spurious excuse for not signing. There is even a case addressing this issue, Searcy v. City of Dayton, 38 F.3d 282 (6th Cir. 1994). The estate of a drug dealer murdered by an off duty Dayton, Ohio, police officer with his personally owned "Mac-11" machine gun sued the city that employed the cop. One of the grounds for suit was the police chief's having signed the transfer paperwork for the murder weapon. The court held that that claim should have been dismissed by the trial court; without a showing that somehow the act of signing was negligent, (under Ohio law) and led to the harm (murder) complained of, there was no cause of action. Signing the form was not negligent in itself, nor was it a reckless or wanton act, as the trial court claimed the plaintiff could try to prove at trial. Although this case is only directly binding on the area of the 6th circuit, and need not bind state courts, the court recognized what common sense, and the certification say, the person signing does not open himself up to any liability by doing so.


The case is something to which you can point a CLEO who claims to refuse to do the signoff because of liability. Incidentally Stephen Halbrook, a leading lawyer in gun rights cases, and a longtime lawyer for the NRA, as well as an author, says in a note in Machine Gun News (3/95) this case is the only instance of a registered machine gun being criminally misused by its registered owner he is aware of. And it was by a police officer.


The key to getting the LE certification is persistence.

Wow. Very Interesting.

That's a helluva lot of persistence for the average private citizen.  I can guarantee one thing though, you'd be very well-known among your community of public officials!

As much as I enjoy a good fight, my primary goal is to obtain an SBR before the end of my lifetime.  I'm still liking the trust route as plan B.

Heller arguably touched on the issue, stating that state officials cannot act an subjective screen to those who seek to exercise their 2nd amendment rights; however, 2A lawyers are hesitant to rustle feathers about this because right now, all things considered, we're not in a bad place. I think if the case was brought we'd win, but again its a strategic battle we're fighting here.

That was a paraphrase of a 2nd A lawyer who spoke at my law school moons ago.

Go the trust route and stick it to your CLEO.

This being said... How does the State feel about this?  Would the 26" length still apply? and how is that measured with regard to muzzle devices (read removable suppressors or flash hiders).  I was kicking around using one in a 3-gun after selling my other AR's to order a new Knight's.  But wanted some clarification prior to assuming shoulder firing that wouldn't get you into state law trouble.

Good question.  Your pistol is all ready registered under state law.  The brace is an accessory, not a modification is the argument.  Prudence suggests removing the brace when transporting or storing and attaching it only when using it.

OP what county are you in?

Put enough roadblocks in front of someone and many will just throw their hands up in frustration and say to hell with it....isn't worth it. Gun control by any other name is still gun control. Granted, it began many years ago, but voters (for a multitude of reasons) keep electing schmucks from both sides of the isle who love the terms "reasonable restrictions" and "common sense gun control". Throw in activist courts with their own agenda and is it any wonder why we get fooked so often?

 

He signed it!

Thanks Allegan County!