Tag Archives: “prohibited person”

2018 Appropriations Bill Still Doesn’t Provide Funding For Federal Firearms Relief Determinations – Contact Your U.S. Representatives!

As our viewers are aware, although 18 U.S.C. § 925(c) provides for federal firearm relief determinations, since 1992, the ATF’s appropriation bill – which has been enacted each year thereafter – has provided a restriction on ATF’s use of any of the appropriate money for federal firearms relief determinations. As I reported in 2015, an amendment to the 2016 appropriations bill – H.R. 2578 – was passed, which provided for funding of federal firearm relief determinations. Thereafter, the bill, as amended, was passed by the entire House of Representatives. Unfortunately, due to the late nature of the House passing the bill, when it was received by the Senate, the Senate gutted all the language and replaced it with the language from an appropriations bill that it was working on in the interim. The Senate’s version was later passed by the House, including the provision precluding ATF’s usage of the appropriated money for federal firearms relief determinations.

The House is now working on an appropriations bill for 2018 and although it has been reported to include pro-Second Amendment provisions (which it does and are discussed below), the one provision which has not been modified, is the restriction on the appropriated money being used for federal firearms relief determination. Specifically, it provides that

Provided, That none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under section 925(c) of title 18, United States Code

Accordingly, I am respectfully requesting that you contact your U.S Representatives and demand that the language in the Fiscal Year 2018 Commerce, Justice, Science (CJS) Appropriations Bill be amended to remove the restriction on ATF utilizing the appropriated money for federal firearms relief determinations. In the alternative, if your Representatives push back regarding the cost, then I would respectfully suggest that the language be modified to:

Provided, That none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under section 925(c) of title 18, United States Code; however, nothing shall preclude an individual from funding his/her own application for relief from Federal firearms disabilities under section 925(c); whereby, the cost to the individual shall not exceed $1,000.00

As this strikes a balance between allowing federal firearms relief determinations to be made and the cost being born by the prohibited person, it is hard to fathom what objection anyone would have to this language.

In relation to the pro-Second Amendment provisions included in the current version of the Fiscal Year 2018 Commerce, Justice, Science (CJS) Appropriations Bill,  it would:

  1. Ban the use of funds for the program launched under the Obama administration to require federally licensed firearm dealers in Southwestern Border States to report certain rifle sales to the U.S. government;
  2. Permanently defund any form of unmonitored “gun walking” operations involved in U.S. Border Patrol Agent Brian Terry’s death;
  3. Effectively block the implementation of the U.N. Arms Trade Treaty;
  4. Permanently block any attempt by anti-gun groups within the ATF to implement a highly restrictive framework on the importability of shotguns (i.e. any shotgun that was importable before the release of ATF’s 2011 shotgun importability study could not be reclassified as “non-sporting” and therefore banned from importation); and,
  5. Promote the importation of collectible “curio and relic” firearms and facilitate export of certain firearm parts valued at $500 or less to persons in Canada.

Accordingly, please join us in supporting the Fiscal Year 2018 Commerce, Justice, Science (CJS) Appropriations Bill, while demanding that the language restricting federal firearms relief determinations be removed.

 

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A Very Interesting Decision On City Domestic Violence Convictions Not Triggering A Federal Prohibition

Two days ago, the 10th Circuit Court of Appeals issued a largely overlooked decision in U.S. v. Alexander Pauler, which involved Mr. Pauler’s misdemeanor conviction of domestic violence, pursuant to a municipal ordinance.

Mr. Pauler was previously convicted in 2009 of violating a Wichita, Kansas municipal domestic battery ordinance by punching his girlfriend. As the 10th Circuit declared,

The sole issue before us in this appeal is whether a misdemeanor violation of a municipal ordinance qualifies as a “misdemeanor under . . . State . . . law” when viewed in the context of a statutory scheme that clearly and consistently differentiates between state and local governments and between state statutes and municipal ordinances.

In ruling that Mr. Pauler was not prohibited pursuant to the Gun Control Act, 18 U.S.C. § 921, et seq., and more specifically the Lautenberg amendment, which became 18 U.S.C. § 922(g)(9), the 10th Circuit refreshingly looked to the actual language of the definition of a “misdemeanor crime of domestic violence” found in 18 U.S.C. § 921(a)(33), which provides, in pertinent part that it must bea misdemeanor under Federal, State, or Tribal law.” In this instance, since Mr. Pauler’s conviction was for a municipal crime of domestic violence and not a state crime of domestic violence, the 10th Circuit ruled that he was not prohibited and therefore his conviction for being a prohibited person in possession must be vacated and overturned. 

If you are being charged with being a prohibited person in possession of a firearm, contact Firearms Industry Consulting Group® (FICG®) to discuss your options.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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Unanimous U.S. Supreme Court Decision – Felons Do Not Lose Property Right in Owned Firearms

Today, the United States Supreme Court handed down its decision in Henderson v. U.S., No 13-1487, 575 U.S. _____ (2015),  holding that while a convicted felon is prohibited from “possessing” firearms pursuant to 18 U.S.C. 922(g), nothing strips the individual of his/her property interest in the firearms and the individual retains “the right merely to sell or otherwise dispose of their firearms,” provided the felon lacks all control over the firearms.

Justice Kagan writing for the unanimous Court declared that the issue before the Court was “what §922(g) allows a court to do when a felon instead seeks the transfer of his guns to either a firearms dealer (for future sale on the open market) or some other third party.” In responding to that question, the Court held “that § 922(g) does not bar such a transfer unless it would allow the felon to later control the guns, so that he could either use them or direct their use.”

This case stemmed from a U.S. Border Patrol Agent, Tony Henderson, being charged with a felony count of distributing marijuana. After the charges were filed, in deciding the terms of bail for Mr. Henderson, the Magistrate Judge required Henderson to relinquish all of his firearms to the Federal Bureau of Investigation. Mr. Henderson would later plead guilty to the charges, which would prohibit him under § 922(g) from possessing firearms. After his release from prison, he requested that his firearms be transferred to a friend of his, who had agreed to purchase them. The FBI denied the request stating that such would constitute “constructive possession.” Mr. Henderson then petitioned the District Court to have the court direct the FBI to transfer the firearms to his friend. The District Court denied his request and the 11th Circuit Court of Appeals affirmed the decision.

In vacating the 11th Circuit’s Decision, the Court explained that

Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, §922(g) does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or an-other person’s) guns. But that stick is a thick one, encompassing what the criminal law recognizes as “actual” and“constructive” possession alike. (Emphasis in original)

While acknowledging that “§922(g) prevents a court from ordering the sale or other transfer of a felon’s guns to someone willing to give the felon access to them or to accede to the felon’s instructions about their future use,” the Court declared that nothing prohibits the individual’s “right merely to sell or otherwise dispose of that item.”

In responding to the Government’s arguments that Mr. Henderson’s request should be denied, the Court stated

Yet on the Government’s construction, §922(g) would prevent Henderson from disposing of his firearms even in ways that guarantee he never uses them again, solely because he played a part in selecting their transferee. He could not, for example, place those guns in a secure trust for distribution to his children after his death. He could not sell them to someone halfway around the world. He could not even donate them to a law enforcement agency. Results of that kind would do nothing to advance §922(g)’s purpose.

and

A court may also grant a felon’s request to transfer his guns to a person who expects to maintain custody of them, so long as the recipient will not allow the felon to exert any influence over their use.

In this regard, it is extremely interesting that the Court specifically acknowledged that a “secure trust,” which I refer to as a prohibited person trust, is a lawful mechanism for family heirlooms to be held for future generations, provided the prohibited person does not have access to the firearms.

In determining the proper considerations for return of the firearms, the Court directed that a court is to seek certain assurances, such as, “it may ask the proposed transferee to promise to keep the guns away from the felon, and to acknowledge that allowing him to use them would aid and abet a § 922(g) violation.” Once these assurances are met, the court is to direct return of the firearms consistent with § 922(g).

You can find a copy of the fully decision here.

If you are a prohibited person and are seeking return of your firearms to an FFL or third-party, contact us today to discuss your legal options.

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