Constructive Possession in a Family Mental Health Crisis

German MG-08 water cooled machine gun

A lot of people argue constructive possession, citing US v. Turnbough. See more from Josh Prince. I am not a lawyer, so I don’t quite have the paranoia of one. But it seems to be that an interpretation of constructive possession for NFA items that doesn’t allow you to have a normal family life should be problematic. If constructive possession is to be extended to wives or children when the NFA owner leaves the home, unless the item is kept in a safe to which no one else has the combination, then family men really can’t own them if you don’t put them on a trust, with all your family members on the trust. Maybe that’s true, but it would seem to be there are a lot of people out there breaking the law if that’s true.

US v. Turnbough, is an unpublished (non-precedential) 7th circuit order pertaining to a highly unsympathetic defendent. Turnbough was raided for trafficking six 55-gallon drums of marijuana within a school zone (he lived within 1000 feet of a school). The firearm they went after him for was a “handmade .25 caliber handgun,” which I’m assuming (I don’t have the original case) must have been able to fire more than one shot per trigger pull, had a fore grip, or had a stock, because they busted him for a violation of 26 U.S.C. § 5861(i), which requires the gun in question be an NFA weapon and not an ordinary handgun.

Could a prosecutor come after you for even constructive possession of an NFA owners stuff if that owner’s doctor said they were suicidal, out of their minds on pain meds, and they should have firearms removed by family? Yes. But in truth, if a prosecutor wants to come after you that bad, they can probably find a dozen things, especially if you’re a gun owner already. But will they? Probably not, and I doubt they’d have an easy time gaining a conviction if they did, especially if you can show you made some effort to comply with the law.

If it were my family member, and they were going through a mental health crisis, I honestly wouldn’t give a rat’s ass what the law is. I think rendering the firearms inoperable without physically taking them into your possession is a good compromise. I think most reasonable people would agree. So I’d say don’t worry about what an unpublished decision in the one federal circuit has to say about it. Do what’s right by your family member.

Just remember, I am not a lawyer, and you could still get in a lot of trouble. If it makes you feel any better, if I’m on your jury, I won’t convict you under those circumstances.

10 thoughts on “Constructive Possession in a Family Mental Health Crisis”

  1. I’m guessing that the homemade handgun in your example was a smoothbore, and therefore an AOW.

  2. ATF has a process and has published guidance on these issues when it comes to a death in the family. See Transfers of National Firearms Act Firearms in Decedents’ Estates.

    I think something like this applies here, too. ATF explicitly notes that the situation is tough and that the ATF looks the other way while you get it all worked out. However, it strongly suggests getting in touch with them to make sure you don’t mess up. I think that advice is good for our newly mentally-challenged friend, too.

    If you have access to an NFA-smart attorney, then call them. But if not, you should call the NFA Branch and work it out. My personal experience with the NFA Branch at ATF has been uniformly positive (other than wait times). They even helped me get an NFA gun back from a too-slow manufacturer who claimed they “never got it in the mail” or “lost it”, depending on who you spoke with.

    Point is, if you don’t have the money to pay an attorney now, then you better call ATF to make sure you are not forced into paying for one later. It’s cheaper to lose guns than to lose 2 years of your freedom over bad paperwork. I know for a fact ATF has created transfer/travel paperwork over fax and in under a day, in order to keep people legal in extreme circumstances.

    They won’t help you until you ask.

    1. ATF’s basic interest and fundemental legal requirement of the registrant is that NFA be responsibly under control at all times. Again, if a small number of NFA items are involved, storage of the NFA in a bank safety deposit box is acceptable to ATF. ATF agrees that storage in a larger container that cannot be accessed by anyone other than the registrant or his legal agent is acceptable either at the registrant’s residence or another location. These are simple and immediate solutions to the problem of NFA that need to be removed temporarily or for a duration.

      Bob Naesss

  3. This problem never occurred to our founding fathers, because they did not make for any exceptions to the 2A. This is just another ploy for the government to take away our 2A right.

    1. Who is mentally ill currently is fairly well defined under the law. It requires adjudication. It takes more than seeking mental health treatment from a physician or therapist.

      1. Its always good to remind the people of what you posted…

        Lets make sure it stays that way

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