Say you’re a single guy and have an individually registered SBR (or silencer, SBS, whatever...) that you keep by the nightstand for HD. Fast forward a few years and a girlfriend decides to move in or maybe you even get married and move into another house to cohabitate. Obviously, if your SBR/SBS/silencer is part of your accessible home defense strategy, and you have a cohabitant then there will be times when they are home and you are not.

Is this a legal problem - Even if it never leaves the closet or wherever whenever you’re away?

Would you have to switch your HD strategy to involve only Title I firearms?

If you are really worried about it.  Put your NFA items in a trust and amend the trust when you cohabitate.

As cool as they are, I keep all NFA items locked in the safe with most of my other Fire Arms.
Except a my Glock which stays on me unless its bedtime, then it goes on my nightstand and a hidden Mossberg 500 pistol grip.

I even keep my cabinet that all my mags and ammo are in, locked with a Combo lock that only the wife and myself know the combo too.

I'm working on two more locking cabinets one to take all the mags out of the current ammo cabinet (getting full and unorganized) and put them in and one for all my reloading supplies to be secured in.

Just what I do at our place.  YMMV.

Technically if you go by the most stringent interpretation of the law you cannot allow your live in girlfriend access to the NFA firearms (personally registered to you) as it could be construed as an illegal transfer depending upon the situation.   If you leave her in the home with a SBR and suppressor leaning up against your nightstand while you are not there I don't see how this is not allowing her "access" at a minimum and a legal argument could be made that an illegal transfer occurred if she ever take physical possession of it.

That said from a practical standpoint, your risk of prosecution if nothing goes wrong is virtually nil. (i.e. girlfriend and SBR peacefully cohabitate within the home and never interact)

Without getting into the debate of using a NFA item for home defense, the real questions in my mind is what happens if something does go sideways giving visibility of the arrangement to your local authorities and what are the political leanings of the prosecutor/authorities in your area.

Scenarios of things that could bring "visibility" to the issue that you left an unattended NFA firearm in the presence/quasi-possession of a non-registrant.   Girlfriend uses SBR in a self defense scenario when you are not home.   Girlfriend breaks up with you and decides to take said SBR with her to screw with you, girlfriend's liberal SJW friends find out about arrangement and report it, etc.

At that point should the girlfriend/nfa firearm arrangement become visible to the authorities in your area, it comes down to the political/social leanings of your local authorities and whether they want to try and make an example out of you because they dislike guns and really hate conservatives with evil looking black guns.  So will they give you your gun back and call it a day or do they attempt to prosecute you (or girlfriend) under local laws and/or refer your case to a federal prosecutor to see if they want to make a go of it.

While it shouldn't matter, how much disposable income do you have to throw at a legal defense should something go wrong.   If you can easily write a check for $50 to $100K to legally push back that puts you in a different position than if you are going to be forced into a plea bargain because you don't have the funds to go the distance or to at least push the case to an appeal.

At a general level, I would probably draw the line at making a habit out of leaving unattended/unsecured NFA firearms in my home with another person at the "legal spouse level" as there is some built in protection legally as well as socially between legally married couples.

Personally I live just outside Austin in Travis County Texas which is probably the most liberal County in Texas and one of the most liberal areas in the Country.

I keep all my NFA firearms locked up tight as I have no desire to find out what democrats Sally Hernandez (Sheriff), Margaret Moore (DA), or a jury pool made up of 75% Beto voters would do if one of them got loose under any circumstances.... much less if it came to light that I made a regular habit of leaving them unsecured with full access to a legally unrelated 3rd party.

Just my 2 cents.

JBNTex summed it up.

Best to not cohabitate with a female these days, less risking the man getting into your life when you scorn her, which these days can mean simply existing.

If you marry, it is still probably best to put your NFA items in a trust prior to and during and then add her as a trustee that can be revoked at divorce should the curse strike.

Something as simple as a small kitchen fire or a medical emergency can bring the "man" into your life.  Tittle II guns should not be "lying around" the house under any circumstances.  But, I can say that because I have enough Title I guns for HD without depending on my Title II stuff.  You have to do what you have to do.

PS Nothing gets the man into your life faster than an angry girl friend.

I don't believe you, and I don't believe any case law or precedent exists to support your position.

Do you have some local law where you live regarding "access"? That isn't a term used in any of the federal language (or USC).

Read a few of my replies here when this came up in an earlier thread: https://www.ar15.com/forums/ar-15/Do-you-even-SBR-/122-727931/?page=3&anc=bottom?news=add#i7687210

Some of you are really paranoid about this.

Even convicted felons co-habitate successfully with gun owners, and never have to worry about constructive possession charges.

Likewise, I could move into your house this weekend (assuming you invite me to live there), leave my individually-registered NFA firearm (and other property) in "my room," go out to get us a pizza, and leave you there in the house alone. You aren't going to be charged with possession by any officials who happen to appear there. There is no need whatsoever for a safe or any kind of secure storage.

Prove me wrong.

If you think I'm being too cavalier, research how (constructive) possession works with contraband narcotics. They can be found in your residence without you ever being charged. Happens all the time.

No.

If your HD strategy involves anyone other than the registered owner(s) using the NFA weapon(s) for HD, you should make it legal for them to possess by putting them on the trust, LLC, or whatever you need to do.

Kelland Jamieson Wright found out how easy it is to invite the man into your life.

https://www.thetruthaboutguns.com/2018/11/daniel-zimmerman/atf-suffers-rare-court-loss-in-ohio-short-barrel-rifle-prosecution/

I agree it's easy to end up with LEOs standing in your residence for any number of reasons.

If that had been a registered SBR, it wouldn't even have gone to court. (He stuck a rubber cane tip on the back, and ATF thought it became a SBR at that point.) That's not a good example of why having NFA firearms lying around your house is bad. If they're unregistered, then it's bad.

I am not here to prove anybody right or wrong.  OP asked for an opinion.... my opinion is that I wouldn't personally leave NFA firearms unsecured at all much less unsecured with an unrelated 3rd party living in the residence.

If I had a script for restricted Schedule II narcotics and had a "roommate" I would keep the medication secured from them as well.    I don't need a roommate taking some my pills, getting busted selling them, and then throwing me under the bus that "I gave them" in an attempt to lessen their own potential penalty.

To answer your question about precedent, "No" I am not aware of any case law on this but I have no interest in paying for the legal fees to develop case law on this either when other solutions are so much more inexpensive and convenient like keeping your NFA firearms locked up or move them over to a multi member legal entity if you trust the other party to that degree.

Given where I live and the political climate of my area,  I have been married over 10 years and don't give my wife open access to my guns even though I suspect the risk of doing so is close to zero.  However, I am not so naive to not realize that the deck is stacked against me when it comes to firearm ownership in liberal Austin so why test those judicial waters regardless of how remote the odds are.

Everybody can gauge their own risk tolerance and can store their machineguns in a glass front gun cabinet on their front porch if they want to.  Just because its not "illegal" doesn't mean its the best option and that you won't be shelling out $$$ for legal defense fees if something goes wrong even if the odds are extremely remote.

OP can come to his own conclusion and its not going to hurt my feeling if he decides to follow your advice if he finds it preferable.

Is it a crime when I go to a gun show and handle an NFA item?

Theoretical access to even include touching is not unlawful possession or transfer.

In the direct presence of the dealer/owner, I bet that is a tough road to hoe from prosecutorial standpoint.

You are left to watch the table as a non-employee when the owner decides to go home early and are playing with merch when the ATF walks up and asks "who are you and why do you have possession of Bob's machineguns?"  than I could foresee that being an issue for both of you.

It was only an example of how the man can invite himself into your life.  Especially if there is a woman involved.

Thanks for the responses. Much to think about.

My situation is actually that we are married. Dozen+ registered items (all individual) so moving a bunch of stuff to a trust doesn’t really interest me. As much as “use a non NFA gun for HD” is repeated, its REAL hard to beat a 10”-12” SBR or SBS for Indoor defense.

If I were you and wanted to keep an NFA firearm for home defense and your wife may need to use it one day, I would just move that one item over to a trust and leave the rest owned as an individual and secured.   (Or I would most likely just register another lower or shockwave, etc. on a trust vs. moving an existing gun's registration over.  If you are going to spend $200 on a stamp you might as well just get another gun)

If your wife ever shoots an intruder in the face with an SBR or SBS its going to be messy enough sorting through a justifiable homicide self defense shooting (regardless of the firearm used) without potentially having to deal with any NFA possession issues hanging over you.

I've got kids, so I keep my suppressed SBR in a Hornady RFID safe under the bed. Near instant access with the RFID tag or a little over a second by code.  It's got internal battery backup in case the power fails when you need it.

Get a biometric locking system and secure them.  Keep a non NFA item for SD and getting to NFA items.

Same here, quick access and no worries.

I would not let an individual nfa item be a home defense plan when the owner isn’t there. “What if she shoots the bad guy with it?”  Justifying self defense is scary enough to think about. Justifying that your significant other used your stuff?  That’s a certain loss, possibly for both of you.

If you leave it out while you’re there and lock it up when you’re gone, you have no worries. If you’re worried about her safety, leave a regular gun out just in case. You probably have a handgun or a shotgun that would do the job well enough.  If not get her a gift certificate at the local gun shop for Christmas. Then she can get a gun that fits her.

you guys are way over thinking this.

registered to me and kept in my home is in my possession, whether I'm home or not. Does your house have lockable doors? Then it is secure.

There is no case law or any ruling from the ATF that I'm aware of that requires a safe that only you know the combination to in your own home.

The only time such a thing has been mentioned is when you are leaving the item at another location for storage. Then it has to be locked up in a container that only you have access to.

SBR on your nightstand where omfg your wife can see it even if your not home. Not going to be a problem.

Wife taking your SBR and driving around town? That could turn into a problem.

Agreed...

So, build a pistol lower with a nice brace and put a 10.5 inch upper on it.  You can even use the same upper on a registered lower when you want to.

You can't convince me that you don't have an alternative to setting you wife up for a possible possession charge, just to be cool.

For HD purposes, there is no difference between (in maneuverability) a Title II SBR and a Title I pistol with a brace.

I agree with the above, and my individual NFA stuff is in my safe, my truck, or my range. If anyone else is playing with it I'm there ( I don't lend it out). "Wife taking your SBR and driving around town? That could turn into a problem." hypothetical came up for an RV trip. I wanted to bring my SBR, but thought if I went to the gas station to take a leak or something I was leaving my wife alone with my stuff in something that wasn't hers in a different state than we live. I thought it would just be easier if I brought a pistol lower instead, so I did.

If she has to access my safe to get something while I'm at work and is involved in a justified shooting, I don't imagine it will be an issue here in Texas. Her HD choices are title 1 things, but a good shoot is a good shoot here, pretty much however it happens. I believe it's a low risk so I'm not super worried about it.

Now when my kids get older and into it? I'll buy them stuff as a trust.

Everytime the ATF comes to check the accessibility of my NFA items I just.....  Oh wait.

Most of my stuff is on a trust and I keep ALL of my stuff locked up.

That said, what if a guy had say a 20mm Lahti, which would not fit in any normal safe.  Said guy had the gun on display in the living room and he leaves to go to work.  Are his wife and kids going to get jammed up?  I hope not.

I use to carry a 1200.00 hand gun for cc. Then one day I realized that if I ever used that 1200.00 weapon. That L.E. would take it from me for I do not know how long. Maybe years.

Plus depending on where you live. I've read where people have had to get an attorney even then to get their weapons back. Before it was over with the cost of getting the gun back exceeded the cost of the gun.

I do not carry a 1200.00 weapon anymore. I carry one that if I were to ever use that it would not break the bank to replace if I never got it back.

I do not use my SBRs for home defense. I built inexpensive AR pistol with a 10 in barrel with a pistol brace that cost about 450.00 that shoot great for home defense.

That if used I do not care if L.E. takes as evidence and keeps for ever how long or I may never get back. But I most certainly do not want L.E. taking one of my registered weapons.

Next is securing your registered weapons

You should always secure your weapons which I'm sure you do.

Next is to me extremely important. ACCESS TO REGISTERED WEAPONS WHEN YOUR NOT HOME.

Your wife can have access to your registered weapons while your home. Because it's no different than you letting someone shoot them at the gun range while your there.

If your not home your wife can not have access/the ability to gain possession of them.

Unless you have a trust with her on it. Which if your married is the only way to go in my opinion. It not only protects you. But more importantly protects the love of your heart.

Because if she does have access to them when your not home. She can be charged if caught with them.

ONLY YOU THE PERSON ON THE FORM 4 OR 1 CAN HAVE ACCESS TO REGISTERED WEAPONS ECT.... OR ANYBODY IN YOUR PRESENCE YOU ALLOW.
IT IS YOUR RESPONSIBILITY TO ENSURE THAT THE WEAPONS LISTED ON THESE FORMS ARE SECURED AT ALL TIMES WHILE IN YOUR POSSESSION.

Say you leave them out something happens while your not home. L.E. shows up and see them.

If you just happen to get a good old boy and after your wife explains what's going on. The good old boy cop will say put them away.

But more than likely with these robots today. Guess what's going to happen. LEO are these registered and if so to who. Wife yes to my husband. LEO is your husband here. Wife no. LEO makes some phone calls and wife gets arrested.

It's happened before. Now they did not go to prison. But it cost money.

But only the person on the form 4 is the one that can have access to these weapons, suppressor ect.... no one else. That's why you should keep them locked up when your not home.

I say locked up because you should be responsible enough if you own firearms to own a damn safe in case somebody breaks in or you have company and or children over.

But if you think I'm wrong about the above OK. Loan out your what ever to a friend to use at the range and you not be there with them. It's the same thing your doing to your wife when you leave her alone with them unsecured.

Being in a closet is not secure.

Now I do agree that it's stupid that in your home with your wife your suppose to secure them where you are the only one with access to them. Not girlfriend though. Lock them up.

If the cops take my suppressed SBR after I use it in self defense, I'll go get another out of the safe and put it in my bedside locker.

A thousand or two isn't that big of a deal.  I'll get it back in a year or two.

Just like the above guy, I am fine with paying $1,200 to defend my life and/or my family. If I never get the gun back, it'd still be worth it.

If I use it to make someone dead, they'll have lost more than me.

People hire lawyers to perform trivial functions when they lack the time, balls, or intelligence to go to the courthouse and handle it themselves.

It's not a big deal to ask the judge, LEA, DA etc. for your weapon back at the conclusion of whatever action(s) they take.

Where are you getting this from?

ATF has never said that. The law doesn't say that.

When did it happen before? and to whom?
Are you sure that really happened (in the manner you described)?

I don't want them all locked up. I cannot use a weapon that's locked up. Quick-access lockers work until they don't.

I don't have kids or anyone running around that'd accidentally mess with them.

This thread could do with a lot less "I think", and a lot more actual information. There's no requirement to store NFA stuff in a manner completely preventing access of any kind to such an item.

Ok do as you want when it comes leaving your NFA items laying around unsecured. When your not home and other people have access to them. That live there. As far as providing data. Do your own research. You grown men. It's your butt not mine.

As far as locking up. I never said you must lock up. I said secure and that a closet is not secure.

I said a RESPONSIBLE gun owner would lock up their weapons in a safe. To keep them secure. Read post again.

As far as using an NFA item for home defense. I still say why would you and I don't care how many you have. Considering the wait time involved ect. Never said you couldn't.

But hey it's your property do as you want. I'm not giving up any nfa item. I did not register them to use for home defense. I have other weapons for that.

I can use a non nfa item and get the same exact results. A Glock instead of my Colt handguns ect.....I can pretty much afford to buy what ever I want. But I'm not throwing money away.

Plus the AR pistols with braces I have that cost way less shoot every bit as reliable.

As far as using my suppressors on any weapon in the home for defense. I have no comment.

In US v. Turnbough, an illegal firearm was in Turnbough’s home and the court of appeals found that a reasonable jury could have found that he, his live in girlfriend, and her child could have access to the weapon and the Court concluded  that all three parties exercised dominion and control over the gun and thus the possession could be either sole or joint. So, his argument that the gun was his girlfriend's and not his did not hold up and his conviction was upheld.

 

While there are not any constructive possession cases involving NFA firearms this does not mean that the BATFE could not bring a charge of constructive possession against a spouse or other person who could exercise dominion and control over an NFA firearm.

Remember that there is no intent element to violate the NFA. Like speeding, you do not have to intend to speed to be charged with speeding.

But remember this. Look at your individual form 4 or form 1 who's name is on it. Only that person on those forms are allow to have dominion or possession of the weapon or whatever is listed on them. NO ONE ELSE.

THIS IS FROM THE ATF WEB SIGHT.

It has to do pretty much with the same thing. Leaving you nfa items in a structure you are not in unsecured. Does not have to be a safe.

Same would apply if you lived with anyone else who is not listed on form 4 or 1 and your not at home and do not have DOMINION/POSSESSION on NFA items. Remember your wife is considered a relative after marriage.

Come guys it's not rocket science. The weapons are registered in your name and no one elses. Only you have a right LEGAL right to access them and are LEGALLY responsible for them.

But just to be sure look at your form 4 or 1 again just to make sure that you did not add your wife, dad, mom, brother or roommate. It their names are not on those forms use some common sense.

If anyone else is in possesion and your not there. L.E. COULD if they desired prosecute who ever is in possession of those NFA items. With some of the anti gun officers out there today why gamble with your family.

Your form 4 or 1 is registered TO YOU NOT YOUR HOUSE GIVING EVERYONE WHO LIVES THERE ACCESS.

I did a trust and added my wife. When company comes over I lock the upstairs safe.

Again sure you can use NFA items for home defense. You can use a hundred thousand dollar gun if you want for personal defense. It's your right. If you've got the bucks to spend do it. This is AMERICA

I carry a $2300 handgun because it's the one I practice with the most, compete with, and shoot the best. If I need it and it's taken, ok, I'll go buy another tomorrow. $2300 is a small price to pay for what's going to be one of the worst days of your life. Also it's used now and not worth as much

Same with the SBR. It's the best thing I own, and I'm the best with it. and i it gets used, and taken, and I'm out 2 stamps? well shit. still super worth it.

Here is the thing. That gun was illegal. In the scenario here, the guns are legal. For a crime to be committed, they would have to show you transferred it to your wife, or she illegally possessed it. Very difficult to prove.

If what many of you say is true, that it a felony to leave an an NFA item in your house with your wife, stop and apply the sniff test.

Say your wife is not making sandwiches anymore, and you want her gone. You could go through a long, costly divorce.

Or you could leave an NFA item out, go to Quiznos, call the ATF, have the wife arrested, jailed. So much cheaper! Do you really think the US/A attorney would really prosecute someone just because a lawful item was in the house?

They never once came to G. Gordon Liddy's House, and he bragged on the air for years, that while he cannot own firearms, Mrs Liddy has a fine collection and stores them on his side of the bed.

In US v. Turnbough, the firearm in question was contraband, and no one stepped forward to claim it. What you're missing here is that... had the girlfriend (for example) stepped forward and claimed it was hers, there would be no proof of joint possession, so the court would have to consider it sole possession (unless the state could prove otherwise).

If LE officers find contraband in your house, and you (and your wife) deny knowing anything about it, but your son says it's his and that he left it where they found it, then he'll be the only one charged with possession. (That's sole possession).

It works the exact same way with lawful property. If the registered owner is the son, there is no one to charge. It doesn't matter if the other residents knew about it or not. It doesn't matter if they had access to it or not. It doesn't even matter if the son left it there and hasn't returned.

There is no crime because there's no evidence someone else tried to assert "dominion and control" over the registered firearm.

There are plenty of constructive possession cases involving NFA firearms, just none like you're describing (that I'm aware of, anyway).
The charge is always "possession", and generally charged under 26 USC 5861(d).

All the affidavits I can find on Google use the phrase "knowingly possessed".
Here is a jury instruction for 26 USC 5861: http://www.ca3.uscourts.gov/sites/ca3/files/Chap%206%20Unregistered%20Firearm%20Aug%2008.pdf

Look at this definition of constructive possession, which many (if not all) of the federal circuits have adopted:
It's extremely difficult to prove someone intended to do something, especially if they haven't done it, and never state that they intended to.

What you quoted is advice (or a recommendation) from the ATF. This is ATF giving you a scenario that they say is perfectly fine. That's a big difference from advising you what not to do. (That's what USC is for).
Bureaucracy in action.

Notice that it doesn't matter whose residence you leave your stuff at. They recommend a locked container, and a letter authorizing storage, but those are not legal requirements. That is merely a suggestion. (Like when they state you can surrender your firearm to ATF... well you can surrender it to a local LE agency instead, but you don't see ATF suggesting that either, do 'ya? )

LE does not prosecute. The DA, AG, or USA prosecutes. LE simply makes arrests for the charge(s) they (and sometimes a judge) believe are applicable. (Or with federal agents, only what a USA/AUSA advises is applicable).

Could they make a bad arrest? Sure. It happens frequently.
Is it likely to happen to your family because they occupy a residence with an unsecured individually-registered NFA firearm?
I don't think so.

If it were a common occurrence, we'd be able to name an instance where it occurred.

There is nothing prohibiting access, or specifying that anyone besides the registered owner(s) not have access. If they want to charge you with possession, they better have some real proof, or they're bad at their job and will end up making their agency's insurer pay out on a (valid) wrongful arrest claim. That's a great way to end one's career in LE.

Look I'm done with you twisting my words around. I made a mistake on LE no they ARREST you, big deal. You knew what I meant.

Bottom line YOUR NAME IS ON THE FORM 4 NOT YOUR WIFE OR ANYBODY ELSES. SO IF YOUR NOT HOME AND THEY HAVE ACCESS TO THE NFA ITEMS THEY CAN BE ARREST. PERIOD.

The quote from ATFs web site was not an example. It was a scenario. That's what you must do in that situation. No one but you can have access to these NFA WEAPONS.

But I'm done. Do as you want. They are your what ever. I don't care if you want to leave them laying in the middle of the street. There's a reason your name is on that form.

I will not respond anymore to this post. It's not worth it.

By law, in a true "use of deadly force" situation in OH, the weapon used wouldn't matter.

If you had a right to use deadly force, you could use anything at hand at the time and not be charged.

That being said, in reality, you don't want to give an aggressive anti-gun DA a reason to try and come after you.

#1 - what area? a house out in the corn fields is much different than an apartment in a metro area.

I personally wouldn't use a title 2 firearm of any kind in self defense if I had the choice to use a title 1 firearm instead, but if it was the only or quickest option I would still take it.

It's better to be judged by 12 than carried by 6, but the odds of those 12 being totally ignorant are going up daily.

Most everyday joe and jane citizen, think title 2 firearms are illegal; so having to defend yourself in court can be harder and more costly if there is more the DA can use against you.

ETA - husband and father of 2, many many title 2 firearms owned filed as individual; multiple firearms (including title 2) about the house where wife and children could access if they chose to; random neighbors and strangers stopping in regularly; first responders have been to and into the house for a variety of reasons over the 15+ years we have lived there - and not one charge of illegal possession. That being said, my wife and children know which firearms they are allowed to use and when and there has been a level of trust earned by everyone involved. If the situation changes, I would take a different coarse of action.

You fellas are making the presumption that your wife does not own all your stuff anyway.  Your stuff=her stuff, including NFA items.

Ownership and possession aren't the same thing.
NFA laws prohibit possession.

Know the feeling 100%.

I've been teaching home defense, among other firearms subjects, for decades.  
Some simply refuse to learn, if it involves learning they were wrong.
Attempting to inform them is much like sowing grass seed on concrete.

I'm a LE firearms instructor and I've seen plenty of people refuse to learn, including other instructors.

If one isn't learning every day, they're doing it wrong.

Still waiting for someone to post the law, regulation, or ruling that says people who file the NFA paperwork as an individual have to have a safe, that they can't let their wives and kids know the combo to, nor can they leave their house during the day with their wife and kids at home, because "access" means illegal transfer.

Exactly, "access", "knowing the combination", etc is not a crime:

USC26-5861:

It shall be unlawful for any person—

(d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record; or

Annnnnnddddddd……….you die. Your possessions now become the property of your beneficiaries and may also be lawfully possessed by the executor of your estate.

"Your name is on the Form 4", yet your wife is now the lawful owner of your NFA firearms and also lawfully possesses the keys allowing access to the NFA firearms...………….. you still think ATF will arrest her?
Bullshit. ATF allows her to possess that firearm and only requests that a Form 5 be submitted as soon as possible.

Your scary OMG! OMG! "THEY CAN BE ARREST. PERIOD." is alarmist and not entirely correct.

IANAL so I can only tell you what I do. My NFA stuff is individually registered. They are stored in a location secured by a lock. I am the only person on all of God’s earth with the key.