Sunday, February 26, 2012

What is a Firearm Part III

I recently wrote to the ATF Technology Branch, and courtiously received a reply regarding certain questions pertaining to firearms frames or receivers.  The Branch wrote me back, and here is the relevant portion of their letter to me:
Q1:  For a given firearm, who determines which part to serialize, the manufacturer or ATF?  If ATF, what process does the manufacturer pursue to obtain that determination?

A1:  As you point out, as background, 27 CFR 478.92(a)(1)(i) states that the manufacturer must serialize the frame or receiver of the firearm.  If there are any doubts as to which part of a firearm constitutes the frame or receiver, ATF will make the final determination.  The manufacturer would submit a sample of the firearm in question to FTB at the following address:

ATF, Firearms Technology Branch
244 Needy Road
Martinsburg, WV 25405

Our Branch would make a determination and furnish a written response within 90 days of receiving the sample.

If a particular manufacturer wishes to apply a serial number to any part of a weapon other than the frame or receiver, the manufacturer may do so.  But this additional serial number must be in addition to the required number on the frame or receiver of the weapon--i.e., placing a serial number on the bolt, barrel, or slide, etc., would not preclude or satisfy the requirement to serialize the frame or receiver.

Q2: Assuming all parts have been properly serialized by the manufacturer, can one rely on the serialized part as being the one and only part constituting the "frame or receiver" and, thereby, the "firearm" as defined?

A2: No, you cannot assume that the serialized part is the firearm.  As noted above, manufacturers can serialize other component parts if they wish, and many companies will apply serial numbers to multiple components of the firearm.  It is not uncommon to see serial numbers on slides, barrels, bolts, top covers, cylinders, and even, in some cases, on parts as small as firing pins or as insignificant as grip panels.

So I believe this letter should make anyone think twice about shipping something to a non-FFL simply because it is not serialized.  There could be many reasons a particular part is not serialized, but could still be the "frame" or "receiver" as far as the ATF is concerned.  The manufacturer could make a mistake, or the firearm might have been stolen or for some other reason serial numbers were obliterated or forged.  Bottom line, a person needs to know exactly which part ATF considers to be the frame or receiver for that particular firearm, or risk engaging in an illegal transfer at their own peril.  

The letter should also put into perspective comments on the Internet such as "the lower receiver of an AR-15 is the only part that has to ship through an FFL because it is the serialized part," which appear over and over again and are relied on by the firearms community.  Technically, the real reason is that the lower receiver is considered the "frame" or "receiver", and therefore, it is the part the manufacturer must serialize.  But simply because it is serialized does not make it the regulated part, per se. 

Tuesday, February 7, 2012

Legal Implications of Gun-related Tchotchkes in Florida

I often hear of gun owners' aversions to gun-related tchotchkes, not because they don't want a particular item, but because they fear legal implications of having gun-related "stuff".  The concern is that in the aftermath of a self-defense shooting, things like a bullet-casing key chain, or an NRA doormat could be used by an overzealous prosecutor to portray the person as a "gun nut."  I stumbled across a Florida case that suggests such evidence would be inadmissible in Florida:
Above appellant's bed on the day of the search was a quotation:
Lord, grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to hide the bodies of those people I had to kill because they pissed me off.
...
[W]e disagree with the state that the sign over the defendant's bed “had a logical tendency to rebut” the defense that appellant “was unaware that an armed robbery of the victim was to take place.” Nothing in the evidence supported the theory espoused by the state at trial to admit the sign-that appellant was the shooter. In fact, the jury specifically found otherwise. The sign is an example of a genre of humor, the “folk wisdom” found on bumper stickers or bathroom walls. See supra, note 1. It is not probative of appellant's state of mind in this case, any more than possession of “The Godfather” DVD would *1232 demonstrate a predisposition for homicide in resolving business problems.
O'Connor v. State, 835 So. 2d 1226, 1231-32 (Fla. 4th DCA 2003).  That said, one can imagine situations where gun paraphernalia might be admissible, such as where a defendant denied that he owns any guns.  Aside from the legal implications of displaying your gun "stuff", there are always social consequences.  For example, I wonder if anyone has ever done a study as to whether vehicles displaying an NRA bumper sticker are more or less likely to be burglarized?

Wednesday, February 1, 2012

Florida's Self Defense Statutes Part I - Questions

As a Florida attorney and shooting sports competitor, I am bombarded with questions from friends regarding the defensive use of force.  Most people are unaware that much of this area of law is governed by statutes, and reading the statutes answers some questions, but often raises others.

The logical starting point is:

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. 
However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.
And also:
776.031 Use of force in defense of others.—A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.
On the surface, 776.012(1) seems straightforward, especially the first portion of the paragraph, "[h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another."  But what does "imminent" mean?  And "great bodily harm?"  And what is the standard for a "reasonable" belief?

The second area addressed by 776.012(1) is "to prevent the imminent commission of a forcible felony."  What is a "forcible felony"?
776.08. Forcible felony
“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.
Can deadly force really be used, pursuant to s.776.012(1), to prevent the imminent commission of all of these crimes?  Consider arson:
806.01 Arson.—
(1) Any person who willfully and unlawfully, or while in the commission of any felony, by fire or explosion, damages or causes to be damaged:
   (a) Any dwelling, whether occupied or not, or its contents;
  (b) Any structure, or contents thereof, where persons are normally present, such as: jails, prisons, or detention centers; hospitals, nursing homes, or other health care facilities; department stores, office buildings, business establishments, churches, or educational institutions during normal hours of occupancy; or other similar structures; or
  (c) Any other structure that he or she knew or had reasonable grounds to believe was occupied by a human being,
is guilty of arson in the first degree, which constitutes a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) Any person who willfully and unlawfully, or while in the commission of any felony, by fire or explosion, damages or causes to be damaged any structure, whether the property of himself or herself or another, under any circumstances not referred to in subsection (1), is guilty of arson in the second degree, which constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) As used in this chapter, “structure” means any building of any kind, any enclosed area with a roof over it, any real property and appurtenances thereto, any tent or other portable building, and any vehicle, vessel, watercraft, or aircraft.
So in Florida, torching an unoccupied dwelling is a first degree felony, and torching any unoccupied "structure" (which includes cars, boats, and even tents) is a second degree felony.  So suppose a farmer stumbles upon some kids torching his unoccupied barn, or a business owner stumbles upon some kids torching his empty warehouse, or a vehicle owner discovers some rioters torching his car.  If the property owner shoots the person with the torch in his hand, does s. 776.012 or 776.031 legally justify the shooting?   

Returning to the "reasonableness" question, I see a distinction between a reasonable belief that shooting someone resolute in their intent is the only way to stop them from committing a forcible felony, but nonetheless, shooting the person wouldn't be reasonable, because under the facts and circumstances, although the person is certainly committing a forcible felony, there is no reasonable expectation that somebody will be hurt by the criminal.  Does the case law make this distinction?

Also problematic is the inclusion of aggravated stalking among forcible felonies:
784.048(3): Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person, and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury of the person, or the person’s child, sibling, spouse, parent, or dependent, commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
If imminent harm from the stalker is not present, but the final completion of the aggravated stalking is about to occur, does that mean you can shoot the stalker?  Even a cyber stalker?  It is hard to envision a scenario where that would seem reasonable.

Questions and more questions.  In future posts I will try to share some case law that may help shed some light on this area of law.  But keep in mind that some of these questions simply have no answers until a case comes before a court and a legal opinion is issued, and even then, the opinion may raise more questions than it answers.