Category: Guns

Panel 4 was the ethics part of the seminar. I had to skip coverage to get caught up on a few things. But I’m back with Panel 5. First up is Derek DeBrosse on Firearms Rights Restoration by the Numbers. There have been a few seminars about this over the years, and it’s a complex topic. I’ll do my best to sum up the important points. He notes that this is really a state centric area of law, and he will be speaking in regard to Ohio law, since that is where he practices. Starts with the common disabilities:

• Felony conviction.
• Mental health adjudications.
• Misdemeanor Crime of Domestic Violence conviction.

And the tools used to restore rights:

• Expungements (favored)
• Set Asides
• Pardon (rare in OH)
• Restorations
• Voluntary Appeals File
• Lawsuits

Character witnesses can be important in restoration cases. I’m always amazed what a complicated area of law this is. It’s hard to write and keep up with all the facts. There are a number of circuit splits that have impact on rights restoration, depending on what circuit your state is in. Types of restoration:

• Automatic (rights fully restored upon release)
• By Petition
• By Expungement

There are a lot of cases where there are concealed carry restrictions which can trigger prohibitions. The feds demand that all your rights are restored. If any restrictions remain, you’re still prohibited. There are also some cases where states have expungement, but it’s not really expungement for federal purposes.

Mental health restorations seem to be more difficult than criminal restorations. There are cases where people who are admitted voluntarily were listed as being involuntary. Records are important.

I’ve also always found it interesting that it can be harder to lift a misdemeanor prohibition (MCDV) than it is a felony, but it is.

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Next up is Jonathan Goldstein, who is a local (to me) gun rights attorney, speaking on Firearms Preemption being the next frontier in firearms regulation. The talk begins with a review of just how far we’ve come. So what’s a frustrated anti to do?

• Work at the state and local level
• Land use restrictions (lead issues, noise issues, etc)
• Carry, use, and purchase restrictions (“Heart strings locations” – Parks, Schools, Religious institutions, “Sensible Locations” – Bars, Government Buildings, Government Gatherings, Signage, Scary Looking Guns)
• Localization of penalties (e.g. Lost & Stolen in Pennsylvania)
• Public health vector (“gun violence” as a disease & lead issues)

He’s making a lot of the same point I’ve made in regards to the motivations of the antis, in terms of fatiguing people out of exercising their rights. This is very entertaining. He’s probably great before a jury.

Jonathan’s prescription for this is preemption; the process of ensuring that laws are uniform. Lessons from Pennsylvania:

• Explicit grants of standing matter.
• Findings matter.
• Pre-ambulatory language matters.
• Look towards standing jurisprudence in your state’s law and make sure the relief you can obtain under your new law incorporates that.
• Be careful about ambiguity. (e.g. the school gun ban in Pennsylvania)
• Watch out for executive agencies.
• Don’t give the courts wiggle room (He contrasts Florida’s strong preemption language with Pennsylvania’s weak language)

He goes over the history of our preemption drama in Pennsylvania, which you’re all well aware of. Roadmap to Preemption Success:

• Start early and demand action. Don’t let the legislature stall you.
• Watch the technical requirements – single subject and original purpose.
• Look for allies. Most regulated industries also demand uniformity.
• Get help with drafting! NRA has a lot of useful resources.
• Analogize – drugs, cars, firearms are just another consumer product.
• Hold local government accountable.
• Read preliminary rules from agencies.
• Watch appointments to appellate courts.

Very good presentation, and definitely the right guy to put between attendees and the booze. Not only did he make the time fly, but kept people awake. Sometimes if you get a snoozer presenter late in the day it can be brutal.

First up is Sarah Gervase, who has worked in the Office of General Counsel ten years, and is talking about ATF 41F and Trusts. If you recall, 41F was ATF’s proposal to require background checks on Trusts for “responsible persons,” and also proposed to eliminate CLEO sign-off in favor of CLEO notification. She goes over some of the history of the National Firearms Act. She recommends if you’re an attorney, getting a copy of the paperwork for NFA items. Apparently it’s not uncommon for gun collectors to also hoard collect other things, and for family upon death to tell family attorney’s “We’re pretty sure this is legal and registered, but it’s going to take us a year to find the paperwork,” and there’s a limited period of time in which the transfer can be legally affected.

There were some smaller changes to 41F that many readers might not know about. ATF codified existing policy that when an NFA owner dies the executors of the estate is permitted to possess the firearm during probate without it being considered a “transfer.” She warns though that only the executor of the estate can keep the NFA item. They cannot designate a third party to look after it.

The big sticking issue is what constitutes a “responsible person.” She notes that the beneficiary of a trust doesn’t count as a “responsible person” provided that they don’t have the legal capacity to direct the trust, possess, transport, etc the NFA item. She does note that if you add responsible persons to an existing trust, you can do so without notifying ATF, however you will upon another application to make or application to transfer.

Another interesting detail is that while NFA forms are considered protected tax documents, the CLEO notification documents are not, and the CLEO can do what they want with them.

She notes that a common misconception is that ATF has a 24 month rule that if a trust is unchanged, the responsible persons don’t have to go through the background check again. This is not true. This only applies to submitting trust documents. Responsible persons have to go through a check each time there’s an application to make or transfer.

Question of the day: “Can I be buried with my guns?” Apparently there can be, in some states, safe storage implications! There’s also an issue with who is in possession of the firearm.

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The next panelist, Brent Weil, is speaking about first party and third party liability claims against firearms instructors. Starting with a few videos which represent great examples of high derp, he dives right into negligent training. There has been a great increase in demand for firearms training, lead by the substantial growth in new shooters, including the 271% increase in gun ownership among women. What is negligent training:

• Range defects. Trip and fall is a common liability. When you’re directing a student, that is potentially your liability.
• Firearms incidents – accidental discharge, mechanical failures, eye and ear protection.
• Inappropriate tactics.
• Improper use of deadly force – legal issues and advice.
• Lack of proficiency by student.

First party claims are brought by students against instructors. He points out that lawsuits in this area have not been common, but these are potential areas of liability. There have been many cases involving law enforcement, which could be potentially applied to civilian shooters. There is also third party liability claims, where a third party that was harmed by a student sues the instructor for negligent training.

It would seem obvious, but instructors should seek the limited liability of corporations and LLCs, but he notes that won’t necessarily protect from liability, just as a GM employee who gets into an accident delivering a car is still liable for harm caused to others, even though the employee was acting on behalf of GM.

Other advice is to document what you teach both in the classroom and on the range, don’t teach beyond what you’re certified to teach, get students to sign releases, and get insurance.

Louisville has the distinction of being a city whose convention center is pretty far from downtown, which is where all the hotels are. The law seminar is a good 20 minutes from where the big stuff is happening. Traffic coming into the city and into the convention center has been gridlocked all day, and I’m not dedicated enough wait in traffic just to report on Trump.

I’m told NRA has issued its endorsement for Trump, with Trump responding that he would not let us down. I believe he’s speaking right now. I know a lot of people are going to argue Trump should not have been endorsed, but I think it’s sticking to the single issue. I have a lot of trust issues with Trump, but the big issue on everyone’s mind is the Supreme Court, and if Trump can be trusted (and I think that’s a big IF) his court picks are generally pretty good from a Second Amendment point of view.

Lots of red meat in the second panel. First up is Chris Zealand who is a Senior Research Attorney with NRA-ILA, talking about executive action on gun control, which is unfortunately a timely topic. His main topic is the cooption of entitlement programs to enact gun control, namely the Department of Veterans Affairs and the Social Security Administration implementing, as he calls it, “Cash your own check, or lose your gun rights.” The background on the Gun Control Act’s mental health prohibitions are actually pretty fascinating. The term “mental defective” actually had a specific meaning that only encompassed people who never had full mental faculties, rather than someone who is experiencing transient or temporary mental health issues. There was even a Supreme Court decision (U.S. v Hansel) in this regard, which largely went ignored by ATF when they drafted the regulation. The Obama Administration bureaucratic process for reporting veterans and social security recipient would seem to violate this ruling, and even current ATF regulation. There is no adjudication, and no finding of dangerousness. According to Chris, the Administration even wanted to send agents door-to-door to confiscate and possibly prosecute veterans who owned guns. The NRA convinced them to call that off.

177,000 veterans have been reported to NICS so far. Only 298 cases have been appealed, and of those only 9 granted. This, my dear readers, is a disgrace. If Social Security Administration does take up this program, it will be up to 1.4 million people subject to this travesty. The SSA is considering a five part test. It requires that the beneficiary:

1. Filed a disability claim.
2. Determined by SSA to be disabled.
3. Determined by SSA to be disabled under a mental disability code.
4. Have attained the age of 18 but not yet full retirement age.
5. The person has a representative payee, and the reason for having the representative payee has to do with a mental disorder.

As Chris points out, however, is that mental disability codes issued by the SSA can include things like sleep disorders, memory loss, or (the category that’s going to totally screw Millennials) “inflated self-esteem.” The problems with both the VA and SSA schemes:

• Strains concept of “adjudication” by including purely bureaucratic procedures. No hearing is available.
• Underlying adjudication are asking the wrong questions relative to safe and responsible firearms possession.
• No pre-deprivation due process on loss of firearm rights; one can only raise suitability issues after the loss has occurred.

The legislative remedy ILA is pushing is the Mental Health and Safe Communities Act of 2015 (S.2002) which would completely reform mental health adjudications. There’s also a House Bill, H.R. 3516 which would deal with the SSA program. There was recently an attempt to attach an appropriations rider to defund these programs, but it was blocked by Dick Durbin. One of Chris’s important takeaways: “Language matters. If a legislative enactment can be given a broad, anti-gun meaning, it will be given a broad, anti-gun meaning.”

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Next up is Teresa Ficaretta talking about how to prepare for GCA compliance inspections. ATF has warrantless inspection authority for:

• Annual compliance inspections of FFLs.
• Firearms Tracing.
• Bona fide criminal investigations of persons other than the licensee.

ATF only has authority to conduct warrantless inspection on business hours listed on Form 7. She notes, and I think this is important, that ATF only has a right to examine GCA records and not business records. FFLs should not store business records with GCA records, as many often do. Red flags to look for:

• Special agents conducting compliance inspections. Generally compliance inspections are done by bureaucrats. Agents are federal law enforcement. Call your attorney and be sure to get names and badge numbers.
• Asking to inspect commercial records, customer lists, lists of suppliers, etc. Don’t let them, and call your attorney.

ATF will usually let FFLs know before an inspection will be done, but this is not legally required. The following things are recommended in preparation:

• Conduct and inventory book to firearm and firearm to book. Report missing firearms on 3310.11
• If NFA firearms, request NFRTR printout. This must be done by mail because they are protected tax records, and it takes about 30 days.
• Review Forms 4473 and Multiple Sale Reports.
• Review Forms 6 and 6A if you’re an importer.
• Find copies of variances. One of the most common violations is an FFL claiming they have a record keeping variance, but are unable to find it.
• Be able to print out or download computerized records.

During the inspection, she argues that attitude counts. You’ll get better treatment in an inspection if you’re kind to the inspectors. If inspectors remove records, be sure to get a copy and a receipt. Inspectors do not have the authority to seize firearms, only Special Agents have authority to do that. Bring in counsel if there are serious violations. ATF has a sliding scale of violations:

1. Warning letter
2. Warning conference (counsel should be present)
3. Notice of proposed revocation
4. Seizure/forfeiture
5. Criminal referral

ATF does not require FFLs to have compliance plans, but she recommends that every FFL have one. Generally only large importers or exporters have written plans, because the Department of State requires them.

ATF does not have statutory authority to suspend licenses, but in practice they will sometimes pressure an FFL to agree to give up their license, then after a period of time will entertain a new application.

Finally she outlines changes in regulations involving manufacturers of machineguns and personally made firearms. Manufactures hardly ever make everything in house, and ATF used to issue variances that allowed transfer of NFA items between different manufactures. ATF cracked down on this in 2012 and argued those transfers were illegal, and that the FFL had to “babysit” machineguns if they were going to another manufacturer.

ATF 2015-1 addressed the issue of “build parties” where they essentially ruled that this activity was “manufacturing” under the GCA and therefore required to obtain an FFL. Basically, if you make a firearm, you have to do it all yourself with your own equipment. You can’t get help from a machine shop or FFL.