Warning

 

Close

Confirm Action

Are you sure you wish to do this?

Confirm Cancel
Member Login
Posted: 9/24/2002 9:49:50 AM EDT
I'm curious how "constructive posession" works. Say, for instance, I want a 10.5" upper because SOMEDAY I'm going to SBR my rifle. I find a good deal on the upper at a gunshow...how would I be able to keep the upper without getting nailed by the ATF? Is keeping it locked in a separate safe in a different room enough? Or does it have to be off the premises entirely? Is there a specifi law I can look at that discusses this?
Link Posted: 9/24/2002 3:07:00 PM EDT
I would also like to know the answer.
Link Posted: 9/24/2002 4:56:42 PM EDT
Possession of enough parts to build a rifle of illegal configuration is a no-no.

Have a friend who doesn't own a rifle keep the 10.5" upper for you.
Link Posted: 9/24/2002 5:37:17 PM EDT
If you own a shorty upper and an AR15 lower and you don't have a tax stamp for the lower, they can argue constructive possession. Having it locked in a safe away from the lower would not be enough to save you. Even having the upper at a friend's house would probably not do it if they could prove the upper was yours and you had a lower- they could easily argue that all you had to do to make an illegal SBR would be to drive to your buddy's house and get the upper. You're safest not owning any sub-16" uppers if you own a functioning lower. If they could conceivably make the argument that you owned or possessed all the components to make an illegal SBR, you'd be screwed.
Link Posted: 9/24/2002 7:47:37 PM EDT
OK. What about this case:
A guy has a complete post ban rifle.
He makes NUMEROUS post to some ridiculous internet group about building a post ban Viet era replica. Then he purchases a fake flash supressor and a pre ban upper but has done the smith work yet because the tools are still in the mail.
Couldnt a case be made that he has ALL THE PARTS to make the pre ban post legal....what I mean is "constructive posession" in the other direction? Not only does he have the parts, but many published statements as tp his intentions.
Link Posted: 9/24/2002 8:28:33 PM EDT
This topic has come up several times so I started looking into the federal firearms laws. I couldnt find a single statute that prohibits possessing the all of the parts needed to assemble a post-ban assault weapon. ATFs rulings, decrees or whatever they call them have absolutely no bearing on us, only licensed dealers. Unless the statute exists, which it very well may ( I just havn't found it), ATF can take a flying leap.
Link Posted: 9/25/2002 5:29:50 PM EDT
Link Posted: 9/25/2002 5:54:38 PM EDT
I would think that in the case of someone who was going to convert a preban upper to postban configuration, the fact that you could prove that you had purchased and were awaiting the parts to do so would negate contructive posession. If you were truly a jerk it might get to court but it would be a winable case based on the date of order of the needed parts. No prosecutor would waste his time with it.
Link Posted: 9/26/2002 4:14:40 PM EDT

Originally Posted By Ken226:
This topic has come up several times so I started looking into the federal firearms laws. I couldnt find a single statute that prohibits possessing the all of the parts needed to assemble a post-ban assault weapon. ATFs rulings, decrees or whatever they call them have absolutely no bearing on us, only licensed dealers. Unless the statute exists, which it very well may ( I just havn't found it), ATF can take a flying leap.



There is no requirement for constructive possession to be specifically listed in any statute. Possessing a post-ban 'assault weapon'or a non-registered SBR is already illegal. Constructive possession is a legal theory that says if they can prove you possess all the necessary parts to construct one of those items, they can prosecute you for possessing that item even if it is not already assembled. They don't have to have a statute that says 'possession of a complete set of parts that could be used to assemble gun X is illegal'. People can and have been prosecuted for constructive possession of many things, including illegal firearms, drugs, etc. It's a widely accepted charge that has been upheld by SCOTUS.

And I'm sorry to rain on your parade, but BATF rulings DO have a bearing on all of us non-FFL citizens. If they rule that possession of an AR15 and a single M16 part constitutes intent to manufacture a machinegun, then guess what- they can arrest and charge you for that. You may win in court eventually, after you've exhausted your life savings and gone into debt your grandchildren won't be able to pay off in order to do it.

Here's a tip for all you folks who think prosecutor X won't bother to charge you for stuff like this: don't EVER bet your freedom on what you think your local prosecutor or assistant U.S. Attorney might or might not be interested in filing.
Link Posted: 9/26/2002 5:50:57 PM EDT

Originally Posted By Sparky315:
If you own a shorty upper and an AR15 lower and you don't have a tax stamp for the lower, they can argue constructive possession. Having it locked in a safe away from the lower would not be enough to save you. Even having the upper at a friend's house would probably not do it if they could prove the upper was yours and you had a lower- they could easily argue that all you had to do to make an illegal SBR would be to drive to your buddy's house and get the upper. You're safest not owning any sub-16" uppers if you own a functioning lower. If they could conceivably make the argument that you owned or possessed all the components to make an illegal SBR, you'd be screwed.



You know the Republic and everything the Founding Fathers put forth is lost when you read what Sparky315 has posted. Sparky315, I'm about to make some comments, but none of them are directed at you or anyone else on this board. I know you are one of the good guys!

If we were to follow the logic presented above, then given the fact, that as of right now, I have in my possession a pickup truck that will exceed the posted speed limit in all 50 states, and a half gallon of Jim Beam, then I should be arrested because I MIGHT go do 90 mph through a school zone with a BAC well in excess of .02 tomarrow morning when all the kiddies are crossing the street to get to school.

To Hell with the ATF! And to Hell with a court system that condones these abuses of power!

Is it time to feed the hogs yet?
Link Posted: 9/26/2002 5:59:02 PM EDT

Originally Posted By DPeacher:

Originally Posted By Sparky315:
If you own a shorty upper and an AR15 lower and you don't have a tax stamp for the lower, they can argue constructive possession. Having it locked in a safe away from the lower would not be enough to save you. Even having the upper at a friend's house would probably not do it if they could prove the upper was yours and you had a lower- they could easily argue that all you had to do to make an illegal SBR would be to drive to your buddy's house and get the upper. You're safest not owning any sub-16" uppers if you own a functioning lower. If they could conceivably make the argument that you owned or possessed all the components to make an illegal SBR, you'd be screwed.



You know the Republic and everything the Founding Fathers put forth is lost when you read what Sparky315 has posted. Sparky315, I'm about to make some comments, but none of them are directed at you or anyone else on this board. I know you are one of the good guys!

If we were to follow the logic presented above, then given the fact, that as of right now, I have in my possession a pickup truck that will exceed the posted speed limit in all 50 states, and a half gallon of Jim Beam, then I should be arrested because I MIGHT go do 90 mph through a school zone with a BAC well in excess of .02 tomarrow morning when all the kiddies are crossing the street to get to school.

To Hell with the ATF! And to Hell with a court system that condones these abuses of power!

Is it time to feed the hogs yet?



What you said. You are so right.

Lucky for us guys that rape laws don't apply to potential rapists. I mean, heck, we have the tool for the job so it is possible.
Link Posted: 9/27/2002 9:07:18 AM EDT
I would not keep a SB-Upper for an AR15 in the apt if I didn't have a tax paid SBR to legally host it. It gets tricky when you have non NFA AR15's, but I would think that as long as you have at least one stamped SBR, a spare SB upper is fine even with regular AR's sitting in the safe. They can argue constructive posession, but before that, they have to know that you already own all the items needed to construct an illegal SBR. Basically, something has to alarm them enough to get the BATF inside your home with a signed search warrant before they can even find the weapons/parts in question. It is too risky for me personally and I wouldn't recommend it for you or any one else. Summarily, I would buy the SB upper only if I had another residence to keep it away from my AR's -OR- if I got my form 1? approved allowing the purchase of an SBR and therefore a spare upper.
Link Posted: 9/27/2002 12:42:39 PM EDT

Originally Posted By DPeacher:

Is it time to feed the hogs yet?



Yes, it's time.
Link Posted: 9/27/2002 1:57:41 PM EDT
brouhaha,
The way to avoid prosecution for "constructive possession" is to keep your piehole shut and stop posting stupid questions about it on the internet.

Sparky315,
Keeping it at your friend's house would be illegal??? Besides being a patently absurd statement, HTF is anyone going to know who your friends are, or where they live? LMFAO.

captainpooby,
Since when does asking a question constitute intent? LMAO again.

Do you guys really own any firearms? Really?
Link Posted: 9/27/2002 7:41:01 PM EDT
Kissel:
I think that IF you ever ended up in court, the fact that you have expressed your intentions, have the parts, and the tools, to do what you said ie; build a post ban rifle (by converting a pre-ban upper), that a jury/ prosecutor would be hard pressed to see you guilty.
I guess you own all the firearms in the world.

Oh, and by the way, you are an asshole.
Did
Link Posted: 9/27/2002 10:03:28 PM EDT
Kissel,

There is nothing 'patently absurd' about my statement. The chances of you getting busted in that scenario are slim to none, but if they could prove you OWNED a complete AR and a shorty upper without a tax stamp, you could be prosecuted for constructive possession regardless of where you actually kept the pieces. All they have to prove is that you owned the pieces necessary to make an illegal SBR and could actually make said SBR with reasonable facility. Could this happen? You bet, but it would probably be within the context of a larger investigation, probably for drugs. The chances of BATF searching your house and all your friends' houses just to see if you have any illegal gun parts stashed there are obviously pretty darn slim, but if you're involved in something larger and they search all those places and find the parts, yes, you could go down for the gun charge. Likely? No. Within the realm of possibility? Yep. If you think I'm full of it, that's fine. I've seen stranger things happen to people who never, ever thought anybody was going to bust them.

Are you an LEO or a prosecutor? Have you ever participated in the investigation or prosecution of anyone for constructive possession of anything? You can LYFAO all you want, all you are doing are displaying your ignorance.
Link Posted: 9/28/2002 2:15:40 AM EDT
captainpooby,
Thanks for the response. You didn't say they hypothetical guy expressed intention---you said he asked a question. They are NOT the same. BTW, the personal attack was not necessary, but I'll let the moderators find it for themselves.

Sparky315,
The reason I LMAO is becuase what usually happens on this board when someone asks a simple question is just this. Repsondents extend into extreme, fringe, hypothetical abstracts that run far afield of the original issue. IF this, and IF that. Obviously, under the force of a full-blown criminal investigation there would be warrants for reasonable searches, but only if the authorities specifically had reason to search for that particular item. Looking for drugs and finding a short-barrelled upper at a friend's house are not at all related. Then there is the burden of proving ownership.

The thing that is missing from these discussions is the element of PROOF and the folks that post at this board have been indoctrinated, by you and a few others, to believe that the prosecution has no burden of proof in these cases---and it is just not true.

I may be an asshole, like captainpooby says, but I am not ignorant.
Link Posted: 9/28/2002 7:13:03 AM EDT

Originally Posted By Kissel:
but I'll let the moderators find it for themselves.



Hmmm...I'm a moderator, and I found it. Will I do anything about it? No. Why? Because I post "stupid questions about it on the internet."

What, do you think it would be wiser to call the ATF? You think they would tell me the truth about the laws or even know what all the laws are? Think they'll just write down my name and phone number and what my "intentions" are?

No thanks. I'd rather post my "stupid questions" here and get informed responses about laws. Laws which some here may have experienced or researched themselves.

Am I going to buy a SBR upper to keep? No. I'm not interested at all in short barreled rifles, as I find them useless ballistically. I simply wanted to learn more about a law I had heard about.

Oh, and I'm sure my firearms collections is a little more extensive than yours is. Not to mention my ammo stash...
Link Posted: 9/28/2002 8:30:49 AM EDT

Originally Posted By Kissel:
captainpooby,
Thanks for the response. You didn't say they hypothetical guy expressed intention---you said he asked a question. They are NOT the same. BTW, the personal attack was not necessary, but I'll let the moderators find it for themselves.

Sparky315,
The reason I LMAO is becuase what usually happens on this board when someone asks a simple question is just this. Repsondents extend into extreme, fringe, hypothetical abstracts that run far afield of the original issue. IF this, and IF that. Obviously, under the force of a full-blown criminal investigation there would be warrants for reasonable searches, but only if the authorities specifically had reason to search for that particular item. Looking for drugs and finding a short-barrelled upper at a friend's house are not at all related. Then there is the burden of proving ownership.

The thing that is missing from these discussions is the element of PROOF and the folks that post at this board have been indoctrinated, by you and a few others, to believe that the prosecution has no burden of proof in these cases---and it is just not true.

I may be an asshole, like captainpooby says, but I am not ignorant.



I'm going to take it from your lack of response that you are not an LEO or a prosecutor, and your posts are simply your opinion based on whatever knowledge you have or think you have. "Looking for drugs and finding a short-barrelled upper at a friend's house are not at all related". You would be surprised how many folks have things not related to drugs that are still illegal discovered at their houses when they get busted for drugs. Proof can be an issue, obviously, but perhaps not as overwhelming an issue as you might think. Fingerprints, statements from the friends who are looking at their own charges, receipts, etc. can all come back to haunt you. As far as me 'indoctrinating' people into thinking that the prosecution has no burden of proof, please supply quotes to support your accusation. Obviously the prosecution has the burden of proof in any criminal case. Most of my posts in these areas have related to what can get you ARRESTED AND POSSIBLY PROSECUTED, not necessarily convicted. You seem to be under the impression that getting arrested for something like constructive possession of an illegal SBR would be nothing, since the prosecution would obviously have a weak case that no jury would buy, if they decided to prosecute it at all. I can assure you that being arrested by the feds would be a trauma that few people on this board would want to deal with, even if the case is dropped or they win in court. It would mean months or even years of tremendous stress and financial strain, not to mention the initial fun-filled trip to the pokey.

I have to disagree with your claim that you are not ignorant. I would agree that you are not stupid, but that is not the same thing as ignorance. You appear to be a fairly intelligent person who thinks they know more about this particular area than you really do, and you're making assumptions based on nothing more than your opinion. My observations and posts are at least based on things I have actually seen in my career in the criminal justice system.

The question originally asked was how Brouhaha can keep his upper without getting nailed by BATF. The post indicates to me that he is looking for what the legalities of the situation are, not what the chances are he might get caught if he had the upper locked in his safe or stored at a friend's house. That was the question I answered, so my response was hardly an extreme that wandered far from the original question. BATF could indeed make a case for construction possession of an unregistered SBR if he had an AR at his house and a 10.5" upper at a friend's house, if they could prove that the upper is his. Hence, the answer to his question is no, it's not enough that the upper is at his friend's house because BATF would still consider it his, thereby meaning he could drive over to his buddy's house and assemble the SBR with little effort. Bingo, constructive possession. The likelihood of that happening was not in his question. Just because something isn't likely to happen doesn't mean it can't or won't, and if you don't believe that you've been living in a basket.
Link Posted: 9/28/2002 9:02:45 AM EDT

Originally Posted By brouhaha:
Hmmm...I'm a moderator, and I found it. Will I do anything about it? No.


Oh, and I'm sure my firearms collections is a little more extensive than yours is. Not to mention my ammo stash...



Oh yeah? Well, I'll bet my dad can whip your dad.

I am shocked that a moderator on this site would selectively enforce the Board Rules based upon whether a member who was personally attacked by another agreed or disagreed with said moderator!
Link Posted: 9/28/2002 9:09:29 AM EDT
Sparky315,
I have no doubt that a motivated LE organization and prosecutor could make a case and find a way to make it stick, or, at a minimum, wreak havoc on the life of the accused (not necessarily the guilty). I thought the discussion was about proof, not WANTING to prove. The testimony of a suspect about another suspect IS SUSPECT and as a juror, I would dismiss it absent any real proof.

Thank you for your observation that I seem to be a reasonably intelligent person. Not as intelligent as you, though. Right? I'll take what I can get around here.

I'll go stand in the corner now.
Link Posted: 9/28/2002 10:48:51 AM EDT
Senario#9. If I have a friend with a REGISTERED Rec.or SBR tax stamp,could I buy a short barreled upper with his credit card and keep it at his house,and ONLY shoot it on his RR when we are miles away from anybody else,would this be legal,politicaly correct,and most of all would I have the blessing of Big Brother(BATF)?
Link Posted: 9/28/2002 12:11:54 PM EDT
[Last Edit: 9/28/2002 12:13:09 PM EDT by Sparky315]
The discussion was about what constitutes constructive possession, which is what I was addressing. The question originally asked was not what Kissel would do were he a juror in a constructive possession case. I could care less, as could most of the other folks here as well, I would imagine.

I made no negative reference to your intelligence, certainly none that I am smarter than you. I simply referred to your lack of anything but an uninformed opinion on the subject at hand. Nice jab at the rest of the forum membership, though- I'll bet you think they're just not smart enough to pick it up, right? And you complain about personal attacks from Captainpooby. You obviously think you're smarter than the rest of us .

Brouhaha, I'm gonna bow out of your thread before it degenerates any further. Feel free to email me if you have any more questions about the subject you think I can help answer.

Link Posted: 9/28/2002 5:31:38 PM EDT
Kissel, in my opinion, when you quote someone, and then write: LMFAO that is at the very least an insult.
An insult is a personal attack. IMHO.
If someone calls you an ass, thats nothing.
If two people call you an ass, thats something.
If three people call you an ass, go get fitted for a saddle.
JMHO
I still think your an ass.
One day, if we meet, you will have an opportunity to show you arent. i have changed my opinion before. The door to my mind is open.
Top Top