Roses are Red, Violets are Blue, You’re a Trustee, So No Background Check For You!

In late March, I wrote an article questioning whether ATF directed FFLs to abuse the NICS system in “requiring” a background check on a trustee to be performed on the transfer of a silencer to a trust. Furthermore, I contended that a Pennsylvania FFL who utilized the PICS system to perform such a check was committing a felony of the third degree under state law.

nics

To my knowledge there is a legal service, who will remain unnamed, that advised Pennsylvania based FFLs to stop transferring silencers to trusts relying on the Dakota Silencer letter that had been published. Relying on the faulty logic that ATF utilized, the legal service concluded that because a trust is not defined as a person under the Gun Control Act of 1968, a trustee must undergo a background check in order to have the silencer transferred from the Pennsylvania FFL to the trustee. I am aware of several Pennsylvania FFLs who have either stopped transferring silencers to trustees or have required that individuals undergo background checks.

????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????

Prior to the writing of the article I had submitted a Right to Know Law Request to the Pennsylvania State Police asking for:

…all records, including but not limited to, any and all communications (either internal or external), determinations, notes, documents, records, etc. regarding gun/firearms trusts and the Uniform Firearms Act 18 Pa.C.S. 6101, et seq. and whether a background check being performed on a trustee purchasing or receiving a transfer on behalf of the trust is necessary.

I received a response today granting my request in part and denying it in part. The denial was merely based on personal identifying information (phone numbers and email addresses which were redacted). You can find the documents here.

The response includes a chain of emails between Christopher Clark of the Pennsylvania State Police and Susan B. Whitman of ATF. Mr. Clark inquires of Mrs. Whitman whether “ATF requires a NICS check on a trustee picking up a silencer on behalf of a trust”.

Mrs. Whitman replies:

No, ATF does not require a PICS/NICS check or a silencer/suppressor or a NFA firearm. PSP requires a PICS check on all firearms including NFA firearms. Silencer/Suppressors do not meet the PA state definition of firearm.

(Emphasis added, misspellings original).

Mr. Clark then asks if it makes a difference if it is being transferred to a trust or corporation and that he received a call from an attorney who indicated to him that ATF told him there has to be a background check when it involves a trust.

Mrs. Whitman responds:

An ATF Form 4473 is required, but the NICS is not required if the firearm/silencer is subject to the provisions of the National Firearms Act (NFA) and has been approved for transfer. The licensee must keep an ATF Form 4473 on file for all NFA transfers.

Under PA State law, all firearm transfers/sales between licensees require a PICS, therefore the ATF Form 4473 for the NFA firearms would include completing the NICS section and conducting a PICS background check.

(Emphasis added).

atf reference

A look at the FAQs in the newest edition of the ATF’s Federal Firearms Regulations Reference Guide (Revised September 2014) has an entry P18: “Are there transfers that are exempt from the NICS background check requirement?” The answer in the guide is rather telling.

Firearm transfers are exempt from the requirement for a NICS background check in three situations. These include transfers: (1) to transferees having a State permit that has been recognized by ATF as an alternative to a NICS check; (2) of National Firearms Act weapons to persons approved by ATF; and (3) certi­fied by ATF as exempt because compli­ance with the NICS background check requirement is impracticable.

[18 U.S.C. 922(t); 27 CFR 478.102(d)]

(Emphasis added). ATF states in its Federal Firearms Regulations Reference Guide, which was updated after the letter sent to Dakota Silencer, that no NICS check is required for a NFA firearm to a person approved by ATF. Since all NFA firearm transfers have to be approved by ATF, there is only one conclusion to draw. No NICS check is required. Period.

Furthermore, the citation to the Brady Bill language in 18 U.S.C. 922 at the bottom of the FAQ references the same provision I cited in my previous article on the subject. The regulation that is referenced states:

(d) Exceptions to NICS check. The provisions of paragraph (a) of this section shall not apply if—…

(2) The firearm is subject to the provisions of the National Firearms Act and has been approved for transfer under 27 CFR part 479…

 

UPDATE:

As there have been some emails and comments on this post, it is appropriate to update it so there is no confusion. In PA and from what I understand, several other states, the definition of a firearm does not include a silencer. However, in PA SBRs, SBSs, Machine Guns and AOWs would require a FFL to conduct a PICS check as the definition of firearm would include those items. I apologize if anyone was misled. This was strictly in the context of a silencer. As always, consult with your legal counsel before making any decisions.

 

Did you find this article informative or helpful? Be sure to share with your family and friends using the buttons below! Make sure to “Like” Firearms Industry Consulting Group and Prince Law Offices, P.C. by using the buttons on the right.

Advertisements

8 Comments

Filed under ATF, Firearms Law, Pennsylvania Firearms Law

8 responses to “Roses are Red, Violets are Blue, You’re a Trustee, So No Background Check For You!

  1. Good work Adam… does this have bearing on $200 stamp?

    Like

  2. Great article, are you aware of the title or role of “Susan B. Whitman of ATF” ?

    Like

  3. Bob

    The lesson learned here is to stop writing letters to ATF, you will not like the answer you get.

    Like

  4. Larry

    What is an IOI?

    Like

  5. Adam

    How prevalent is this understanding currently among FFLs? I am now being told by my FFL that I must submit to a PICS check on an unrelated firearm in order to navigate Commonwealth law and take possession of a suppressor as trustee.

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s