Constructive Possession

NFA and Constructive Possession: Myth or Reality?.

The BATFE takes illegal possession of an NFA device very seriously.

Please don’t be cute and try to skirt the legal requirements.

Sure you can try to come up with some argument that your (unregistered and therefore illegal) firearm is somehow within the technical requirements.

Just like you can walk across the street and rob a gas station.  You MAY get away with it once or a few times but sooner or later you will get caught and all your firearm rights go right out the window, to say nothing of all the other consequences.

Even having certain components — each of which by itself is legal to possess — under your common control can be illegal.

This is an example of what can happen.

Florida Man Arrested for Constructive Possession of an SBR

On August 27, 2009, Jesus Amador, Jr., was arrested by an undercover officer when he sought to sell his Heckler and Koch SP89 pistol. But, one can legally sell an H&K SP89, so what’s the twist?

hk89

Unfortunately for Mr. Amador, he was selling the H&K SP89 with the accessories that he collected for it, which included a vertical front grip and a shoulder stock. If Mr. Amador merely possessed the vertical grip, the pistol would have to be registered under the NFA as an AOW. However, because he also had a stock, the pistol would have to be registered as a short-barreled rifle, PRIOR to purchasing or possessing the shoulder stock and/or vertical grip.

Mr. Amador posted the following on the FloridaGunTrader website,

    “Well folks my name is Jesus Amador, you out there might just know me as Digitalage03.   I recently met up with a prospected (sic) buyer for my sp89 clone pistol, well turns out the guy was a undercover cop and the reason he wanted to meet up with me is because he saw that i was selling the pistol with a stock as one of the accessories, which by the way it was never on the gun and it is legal to own, you just can’t install it without a tax stamp, well anyways once I met up with him not only did I get slammed to the ground and had about 7 armed cops (one of which) had a loaded 12ga to the back of my head while on the ground handcuffed they also illegally searched my car and even had the balls to drive off in my car from private property to a public place so they can tear thru it before the towtruck came and got , Well anyone here that know thier laws about this know they are in serious trouble, considering that the basis of all this is a misinformed sherriff called Mike Scott. Anyone out there that would like to help in this matter not because of me, but because if you are SICK and tired off all these power hungry cops screwing with your right feel free to contact me at (239)961-4208 if you want to read the liberal BS version on how it happend google Jesus Amador Lee County. Also just for the record i at all times stated it was a pistol, imagesZ7DHT8IQnever had the stock or grip on the pistol, notified the person it was illegal to put on without a stamp and even was going to assist in LEGALLY getting a sbr stamp thru a FFL , and of course i asked about if they where a florida resident as well as if they can legally own a gun. So in short i will have thier ass, any suggestions out there?”

Mr. Amador even posted pictures of his mugshot and more telling, a picture of the SP89 with all accessories in a case. Most damning for Mr. Amador, other than being caught in possession of the SP89 with the shoulder stock and vertical grip is the fact that the case has a cut out for the SP89 to be placed in the case WITH the vertical foregrip, which would seem to connote, contrary to his position, that the SP89 was fitted with the foregrip at one point. For a picture of the case with the SP89 and accessories,  see here.

Lee County Sheriff Mike Scott learned that the SP89 and accessories were apparently listed on Craig’s list, per NaplesNews.com.

As I stated before, one must be VERY careful when entering into the NFA realm, even where an individual does not assemble the firearm into a NFA configuration because of the legal implications under the doctrine of constructive possession.

Constructive Possession exists when a person knowingly has the power and intention at a given time to exercise dominion and control over an object, either directly or through others.

US v. Turnbough, 1997 U.S. App. LEXIS 11886, *6. The government may establish constructive possession by demonstrating that the defendant exercised ownership, dominion or control over the premises in which the contraband is concealed. Id.

ATF-Firearms Blog, Blog, PA Firearms Law Blog

3 Responses to “Florida Man Arrested for Constructive Possession of an SBR”

1.  NFA Gun Trust Lawyer, David Goldman Says:

August 31st, 2009 at 10:28 PM

Under Florida Statute 790.221 (1) it is illegal to be in possession of the parts to readily make a SBR, SBS, or Machine Gun unless (3) the firearms are lawfully owned and possessed under Federal Law. This case seems to deal more with possession than constructive possession. But remember that constructive possession is just another form of possession.

2.  Andrew S. Says:

September 1st, 2009 at 08:50 AM

Even before I started collecting NFA items, I researched enough to know that possession of parts that can be easily assembled into an SBR, AOW, or machine gun was a violation. While I don’t like it, it is the law. Mr. Amador was not aware that the possession of the parts that would make his pistol an AOW or SBR doesn’t hold any water. I don’t think this is going to work out for him the way he believes.

3.  J.C. Says:

September 10th, 2009 at 01:49 AM

There goes the saying “Ignorance to the law excuses no one!”   As a collector myself I know what I should have and the difference between legal and illegal. At one point in time, threaded barrels, collapsible stock, non-permanent pins for the receivers for ARs are illegal but now they are. The law is easy to understand but hard to really keep up, laws do change and it might be illegal to own a BB gun tomorrow. Regardless, as the law clearly states that it is illegal to own parts for a weapon that could be considered a modification and classified an SBR and or AOW weapon without the tax stamp. I feel bad for him because I think he bent the law too far that will ultimately break him. Win or lose, the cost of litigation may cost him his entire collection and then some if ever he will be allowed keep what he has left. I just wonder what is wrong with the stock H&K SP89? Sad to say, I don’t think he has a prayer and may not work out for him.

A Note About the BATFE From Historic Arms Corporation:

By the way, there are all kinds of urban myths about the ATF and law enforcement agents.  In over 40 years of our dealing with the ATF and law enforcement agents with regard to NFA devices we have never had a problem.  This is because we play by the rules.  Don’t even think about discussing an illegal NFA device with us nor asking us how to make/convert something into an illegal NFA device.