Call an attorney before making any statement to an ATF agent that can be used against you. Better yet, don't take possession of a firearm after a conditional non approval. ATF agents are taking very creative approaches in these cases and their approach can vary widely from one field office to another.
The ATF Agent might also serve you with a letter entitled “Warning Notice of Prohibited Firearm Transaction” from the ATF Resident Agent in Charge. The letter is an indication that the AFT believes you were prohibited from receiving or possessing a firearm because of an indictment, a pending felony charge, a conviction for a felony, an allegation that you are a current user of an illegal narcotic (drug), or other firearm disabilities under Federal Law.
The number of warning notices being issued has increased dramatically. The ATF has recently become more aggressive in investigating possible violations of federal firearm laws, particularly after a person attempts to purchase a firearm from a federally licensed firearm dealer (FFL) and doesn’t pass the background check after a non approval or conditional non approval.
In fact, recent federal grants are funding new "comprehensive gun crime reduction strategies" using ATF agents. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is a government agency responsible for enforcing the firearm laws at the federal level.
If you live in the Tampa Bay area, then an attorney at Sammis Law Firm can help you understand the law so that you avoid any prohibited acts, understand your rights to contest a wrongful action, illegal seizure or forfeiture of your firearm.
Nothing in this article should be considered to be legal advice. If you are suspected of a prohibited firearm transaction, you need a criminal defense attorney to represent you so that you understand whether an illegal transaction actually occurred, how to avoid a further accusation by coming into compliance with the law, or what to do if you have been falsely accused.
Before the ATF agent comes knocking on your door, call us at 813-250-0500 to schedule a consultation to discuss your case.
What is a Federally Prohibited Firearm Transaction?
The "Warning Notice of Prohibited Firearm Transaction" official notifies you that, because of the felony indictment, conviction, or other prohibiting federal firearm disability, Federal law prohibits you from receiving or possessing a firearm or ammunition and from providing false information to an FFL during the acquisition or attempted acquisition of a firearm or ammunition.For example, 18 U.S.C. § 922[g](1)- (9) prohibits certain individuals from possessing firearms, ammunition, or explosives. The penalty for violating this federal law is ten years imprisonment and/or a $250,000 fine.
Specifically, 18 U.S.C. § 922(g)(1-9) prohibits the following from possessing, shipping/ transporting, or receiving any firearm or ammunition:
- a person convicted of a crime punishable by imprisonment exceeding one year (a felony offense);
- a person who is a fugitive from justice (this could include having an outstanding arrest warrant or a capias after a failure to appear in court);
- a person who is an unlawful user of or who is addicted to a controlled substance (ATF sometimes takes the position that this can be demonstrated by a recent conviction or withhold of adjudication for a drug charge including misdemeanor possession of marijuana or even obtaining a medical marijuana card if the person also makes statements admitting the narcotics use);
- a person who has been adjudicated as a mental defective or who has been admitted to a mental institution;
- an alien who is unlawfully in the United States or who has been admitted to the United States under a nonimmigrant visa;
- a person who has been discharged from the Armed Forces under dishonorable conditions;
- a person who, having been a citizen of the United States, renounces his citizenship;
- a person subject to a court order that was issued after a hearing in which the person participated, which order restrains the person from harassing, stalking, or threatening an intimate partner or partner’s child, and which order includes a finding that the person is a credible threat to such partner or partner’s child, or by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner’s child (sometimes called an injunction for protection);
- a person who has been convicted of any misdemeanor crime of domestic violence (sometimes even if the court did not officially designate the offense as “domestic violence”).
What is Possession of a Firearm?
Under federal law, the possession of a firearm may be either actual or constructive. The term "actual possession" includes holding the firearm in your hand or a bag that you are carrying.The term "constructive possession" can cover a far broader range of activity. The courts have defined constructive possession to include: knowingly [having] the power and intention at a given time of exercising dominion and control over the object or over the area in which the object is located....” See U.S. v Booth, 111 F.3d 2 (1st Cir. September 1997).
In other words, if you know the firearm is present in your residence, vehicle, or business, and if it can be shown that you have the ability to access and exercise control over that firearm personally or through another individual, then you might be considered to have constructive possession of the firearm. Under these conditions, you could be subjected to new criminal charges.
Prohibitions Against Making False Statements to a FFL
Title 18, Chapter 44 U.S.C., Section 922(a)(6) and 924(a)(1)(A), provide that it is unlawful for any person to make a false statement to a federally licensed firearm dealer (FFL), when acquiring or attempting to acquire a firearm or ammunition.For example, it is unlawful to misrepresent on a Firearms Transaction Record Part 1 - Over-the-Counter, ATF Form 4473, that you are not prohibited from receiving or possessing a firearm by answering “No” throughout Question 11, or making any other false representations.
For example, one question provides:
Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.If federal law enforcement priorities shift in the future, the ATF could start taking the firearms of anyone who has recently admitted to using marijuana or obtains a medical marijuana card, even if the use of cannabis is legal under state law.
Penalties for a Prohibited Firearm Transaction
Under Title 18, Chapter 44 U.S.C. Sections 922(g), 922(n), 922(a)(1)(A), 924(a)(2), any person under a Federal firearms disability who acquires a firearm or ammunition or who makes a false statement or misrepresentation to a FFL when acquiring a firearm or ammunition may be imprisoned for up to ten (10) years and/or fined up to $250,000.Consequences of Getting the Warning Notice
If you receive this prohibited firearm transaction notice, then the ATF is taking the position that you are prohibited from receiving or possessing a firearm or ammunition because of your prior conviction or other Federal firearms disability.Options to Resolve the Prohibited Firearm Transaction
If you are currently in possession of a firearm and/or ammunition that you receive while under Federal firearms disability, then you have three options:- Hire an attorney who can tell the ATF agent where the firearms are located, don’t go to the location until the firearms have been seized by the ATF (or do anything else to “possess” the firearms until they have been seized) and then contest the forfeiture of the firearm and/or ammunition;
- Voluntarily provide the firearm and/or ammunition to the ATF or other law enforcement agency and agree not to contest the forfeiture of the firearm and/or ammunition;
- Transfer the firearm and/or ammunition, preferably through an FFL, to a third party non-prohibited resident of your State who does not reside in your house and who is not employed by you (this is particularly important if the firearm is expensive); or
- Get permission from the ATF to sell (or have someone else sell) the firearm and/or ammunition to a FFL, or arrange for an FFL to sell the firearm and/or ammunition on your behalf.
Additionally, after you receive the Warning Notice, a future violation is more likely to be investigated by the ATF and prosecuted by a prosecutor with the United States Attorney’s Office.
Additional Resources
Tampa Field Division of the ATF - Visit the website of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Tampa Field Division to learn more about its criminal enforcement efforts. Find information on news from the Tampa Field Division News and Reward Notices.
Appealing the FFL Non Approval under Chapter 11C-8, Florida Administrative Code - Learn more about the procedures to appeal the FFL non approval after an attempt to purchase a firearm.
Attorney to Contest the ATF Seizure or Forfeiture of the Firearm
If an ATF agent recently seized your firearms because of an allegation that you were involved in a prohibited firearm transaction in the Tampa Bay area, then contact an experienced criminal defense attorney at the Sammis Law Firm.We help individuals who have been wrongfully targeted by the ATF. We also help individuals who only recently learned that they are in violation of federal law and want to resolve the issue under the best possible terms. Call 813-250-0500 to schedule an office consultation to discuss your case.
