NFA national firearms act, Tennessee, and Sheriff Jeff Long

Discussion in 'In the News' started by kwikrnu, Oct 1, 2010.

  1. kwikrnu

    kwikrnu Banned

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    This probably won't get much attention because most care little about the NFA and the regulation of certain weapons. First off I do not think that short barreled rifles, shotguns, suppressors (silencers), and machine guns ought to be regulated by the government. That being said I don't want to go to jail so I will try and comply with the law.

    In 2003 the Tennessee legislature passed public chapter 275. The law passed with no opposition. It is TCA 39-17-1361.
    “The sheriff or chief of police of the city of residence of a person purchasing any firearm, defined by the National Firearms Act, 26 U.S.C. § 5845 et seq., shall execute within fifteen (15) business days of any request all documents required to be submitted by the purchaser if the purchaser is not prohibited from possessing firearms pursuant to § 39-17-1316."

    That seems fairly straight forward, the sheriff "shall execute...all documents."

    On February 9, 2010 I purchased a suppressor. I filled out the paperwork, was fingerprinted and photographed. The sheriff, at the end of 15 days gave me the document. It was signed, but two lines of the form were crossed out rendering it useless. I sent the NFA application to the BATFE and they refused it, stating that they cannot approve if the lines are crossed out.

    Tennessee law, TCA 8-47-101 and 8-47-103, state that a public official shall be investigated if on written complaint and that the official who failed to perform a statutory duty shall be ousted. I made a written complaint to both the District Attorney and the Attorney General. The District Attorney refered the matter to the Attorney General because she said she had a conflict of interest. The Attorney General basically said the sheriff had no statutory duty to execute the NFA document.

    The only remedy available to me to force the sheriff to obey the law is to petition the Chancery Court for a writ of mandate. Also known as a writ of mandamus. This petition is to ask the court to force a respondent to perform a statutory duty. I filed the writ of mandamus on September 20, 2010. I amended the writ on October 1, 2010 to correct a couple of errors. The sheriff motioned to dismiss on September 29, 2010.

    In my petition I ask the chancellor to mandate the sheriff execute my BATFE form 4.

    The sheriff in his motion to dismiss states that:
    1. There is no affidavit
    2. Petitioner does not identify a duty
    3. Petitioner has other available remedies

    Anyway, it goes to show how anti-gun some Republicans really are. This one convinced the county commision to ban guns in parks a few months ago.

    Petition 9-20-10 with documents

    Motion to dismiss 9-29-10

    First amended complaint 10-1-10

    Lomoy v O'neil

    Audio silencer denied and house and senate hearings

    TCA 39-17-1316
     
  2. GAGunOwner

    GAGunOwner Active Member

    As a registered MG owner and a person that would like to see GA pass a similar "shall-sign" law like TN, I am very interested in how this turns out.
     

  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Post the AG letter, please.
     
  4. kwikrnu

    kwikrnu Banned

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    Nearly every document is hosted on google documents. Most are in the first PDF file (linked to in the original post) and follow the original petition. Included in those are my correspondence with the DA, AG(pg. 20), sheriff, and the sheriff's correspondence with the ATF and the county attorney.

    I forgot to mention in the original post that the sheriff has notified the Attorney General. There is only one reason they would do so under law. They most likely intend to make the case the law is unconstitutional. I imagine the Tennessee Attorney General will be making arguments or briefs in this case.
     
  5. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Leonard, did Sheriff Long ever tell BATFE or the AG's office what information or knowledge he had about you that would make him think you were going to use a silencer for an unlawful purpose?

    I think there is PLENTY of evidence that you are likely to use that silencer to provoke a "Man With A Gun" call.

    But that's not a crime. So using the silencer in that way would not be unlawful.

    You've provoked two law enforcement encounters to date, right? And in neither case were you arrested or charged with any crime. Therefore I think it's pretty clear that the way you open carry your guns in public is not a crime, or at least not regarded as such by BellMeade Police or the State Park Rangers.

    Does Sheriff Long think that if you pulled one of your dumb stunts, maybe carrying a silencer-equipped carbine in your hands while visiting your local bank (to withdraw your own money, and nobody else's ) it would be a crime in his jurisdiction?
     
  6. lostprofit

    lostprofit New Member

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    I believe it was mentioned in another thread, but why not go the trust route if you just want to "have" the supressor? Or is it just the issue with the CLEO sign-off?

    eta: Of course Gunsmoker could have hit the nail on the head and it's just a stunt.
     
  7. kwikrnu

    kwikrnu Banned

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    I am unaware of any information. If you look at the documents I posted, he claims in a statement that he has no information.
    It is obvious I have black balled. They took my permit, they have posted bolos across the country, they have stated I am a criminal and have a domestic violence arrest, and they now refuse to execute the NFA document. I haven't broke a gun law.

    "shall not be infringed"
    :help:
     
  8. kwikrnu

    kwikrnu Banned

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    I don't want to do a trust, I'm an individual and will go the individual route. In Tennessee the sheriff "shall execute...all documents."
     
  9. lostprofit

    lostprofit New Member

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    Well, good luck with it. But from what you're saying, it does sound like you've been black-balled.
     
  10. gruntpain1775

    gruntpain1775 New Member

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    Why did you go talk to the sheriff about signing a form without marking the lines through something?


    Oh wait a minute, had he done so would have prevented you from taking him to court. Silly question, my bad.
     
  11. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Okay, let's make up a hypothetical situation that is not about any particular living person.
    Suppose a state law says that unless the Sheriff knows that the applicant is CURRENTLY DISQUALIFIED from owning a gun, the Sheriff "must" approve the NFA transfer/ build form.

    But suppose the Sheriff knew, or reasonably suspected, that the applicant was a borderline nutcase and troublemaker who seemed to be headed toward committing a gun crime in the near future? Let's say this information was not on the applicant's criminal history, but came from other LEOs in the community, and the person's reputation among his neighbors, co-workers, etc. (AGAIN, this is a HYPOTHETICAL. I'm making up stuff to illustrate a point).

    Should the State law really control, and force the Sheriff to sign a statement that he genuinely does not agree with? Remember the BATFE form has an additional requirement beyond just a criminal history check. BATFE is asking the Sheriff's opinion about the risk of a future gun crime by the applicant. Can the State demand the Sheriff sign a statement he thinks is false? I don't think so. Not if the Sheriff's opinion is well-founded and genuinely held.
     
  12. kwikrnu

    kwikrnu Banned

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    The state imposes many statutory duties upon the sheriff. If the applicant is not prohibited under TCA 39-17-1316 the sheriff must execute the document.

    Let's say the sheriff thinks when a certain prisoner gets out of jail he will commit a crime. Can the sheriff hold that prisoner indefinately?

    The NFA document does not ask if there is a possible risk of future violence. It specifically asks if the CLEO has knowledge that the applicant will use the weapon for illegal purposes.
     
  13. RedDawnTheMusical

    RedDawnTheMusical Well-Known Member

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    Well, in this example, it is a parole board that decides if someone should be freed and they do take into account the likelihood of future law violations, unless the full sentence has been served.
     
  14. kwikrnu

    kwikrnu Banned

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    Yes, what happens when the parole is denied and the sentence is served? Is that prisoner kept based upon some suspicion that the person may commit some future crime? I imagine that most crime is perpetrated by those with criminal records.
     
  15. Fallschirmjäger

    Fallschirmjäger I watch the watchers

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    Pardon me, but exactly where in the ATF Form 1 (5320.1) Revised September 2007 does it ask the Sheriff's opinion about anything, much less asking one to be some sort of Gypsy fortune teller who can predict the future?
    Two declaratory statements, either he has information that someone WILL use the firearm unlawfully, or that it is, or is not illegal according to the law.

    Kwikrnu, what two statements were marked out by the good Sheriff? Would it be possible that the two statements marked out are the two he is required to make in order to execute the Form 1?




    Why shouldn't the state law force the Sheriff to do something he disagrees with? People are forced every year to sign their Income Tax forms and state that the tax being paid is correct even if they fervently believe income taxes to be illegal, immoral, unethical, and fattening.
     
  16. GAGunOwner

    GAGunOwner Active Member

    The CLEO sign-off should be done away with. If you aren't a prohibited person, and the weapon is legal under federal, state, and local law, it should be approved. Shall-issue.
     
  17. kwikrnu

    kwikrnu Banned

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    The only 2 copies I have of the Form 4's are not very legible. The dealer has refused to give me a copy.

    The line crossed out is the one which states, "I have no information indicating that the transferee will use the firearm or device described on this application for other than lawful purposes." The form was signed March 1, 2010.

    On March 2, 2010 he stated in a letter, "I cannot in good conscience certify that I have no information indicating that this particular transferee will use the device for other than lawful purposes."

    On March 12, 2010 he stated in a letter, refering to a bolo from the City of Brentwood, "I would note that I did not rely on this information to determine that you "would" use a suppressor for other than lawful purposes. rather, I considered this information in reaching the determination that I could not unequivocally certify that I had no reason to believe that you would do so."

    Those documents are part of the documents which I linked to in the first post.
     
  18. GAGunOwner

    GAGunOwner Active Member

    Huh? :?
     
  19. kwikrnu

    kwikrnu Banned

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    I made the mistake of mailing my good copies to the AG and DA. When the BATFE denies an application they return the money and send one copy of the paperwork back to the dealer. I requested a copy back in May by certified return receipt, but they have not replied. I have paid for the suppressor and it is sitting in the safe of the dealer. The dealer is behaving badly.
     
  20. Adam5

    Adam5 Atlanta Overwatch

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    Did you not keep a copy when you applied? Whenever I fill out an important document that has to be mailed somewhere I make photocopies to keep.