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Thread: Old Sawed Off Shotgun

  1. #31
    Distinguished Member TitleIIToyLover's Avatar
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    Quote Originally Posted by BrianB View Post
    It's good that you bring up Staples, because it is the closest case on point here, but in my opinion you mischaracterized the holding of Staples as it would apply to this case. Staples does not require that one know that the firearm is contraband in order for criminal sanctions to attach. Staples held that in order for a person to be prosecuted for having a contraband firearm the person must know, or reasonably should have known, that the firearm possessed the feature that subjects it to regulation. Whether or not you are aware of the regulation is irrelevant.

    So in this case the court would have to determine if the possessor of the shotgun knew, or reasonably should have known, that one or more barrels of the shotgun were shorter than 18 inches in length. If that can be proven then it is irrelevant whether or not the possessor knew such a shotgun was illegal.

    Unfortunately mens rea isn't as important as it once was. It used to be that it was almost impossible to be convicted of a crime without it. But now there are so many "strict liability" criminal offenses that one can even be convicted of felonies if the statute does not include the right language to bring mens rea into play.
    Thanks Brian.

    You are so much better at this stuff than I am, and I will always defer to your opinion.

    This is from the opinion of the case and why I used the citation:

    In short, we conclude that the background rule of the common law favoring mens rea should govern interpretation of § 5861(d) in this case. Silence does not suggest that Congress dispensed with mens rea for the element of § 5861(d) at issue here. Thus, to obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act. [n.17]

    I agree that there is a distinction between not knowing that an AR15 has somehow become a machine gun v not realizing that a shotgun has a very short barrel, but it was the best I could do on a Saturday afternoon.

    ETA: May I suggest that mens rea (or its close family member) is still an element of many statutes, even F.S. Chapter 790. Eg.:

    790.115
    (b) A person who willfully and knowingly possesses any electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade or box cutter, except as authorized in support of school-sanctioned activities, in violation of this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
    (c)1. A person who willfully and knowingly possesses any firearm in violation of this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.775.084.

    Yes, I know there is a subtle difference, but it may be important someday when helping your lawyer prepare your defense.
    Last edited by TitleIIToyLover; 04-21-2018 at 05:15 PM.
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  2. #32
    Distinguished Member BrianB's Avatar
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    Quote Originally Posted by TitleIIToyLover View Post
    Thanks Brian.

    You are so much better at this stuff than I am, and I will always defer to your opinion.

    This is from the opinion of the case and why I used the citation:

    In short, we conclude that the background rule of the common law favoring mens rea should govern interpretation of § 5861(d) in this case. Silence does not suggest that Congress dispensed with mens rea for the element of § 5861(d) at issue here. Thus, to obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act. [n.17]

    I agree that there is a distinction between not knowing that an AR15 has somehow become a machine gun v not realizing that a shotgun has a very short barrel, but it was the best I could do on a Saturday afternoon.

    ETA: May I suggest that mens rea (or its close family member) is still an element of many statutes, even F.S. Chapter 790. Eg.:

    790.115
    (b) A person who willfully and knowingly possesses any electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade or box cutter, except as authorized in support of school-sanctioned activities, in violation of this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
    (c)1. A person who willfully and knowingly possesses any firearm in violation of this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.775.084.

    Yes, I know there is a subtle difference, but it may be important someday when helping your lawyer prepare your defense.
    Yes, fortunately mens rea is still an element of many criminal statutes, but FAR too many have dispensed with it. Though my comments did not so-indicate, my introduction of strict liability offenses was kind of separate from the discussion of Staples. It's a pet peeve of mine that so many crimes no longer require mens rea - but it made it appear as if I was saying that mens rea did not apply in Staples, which is of course not the case.

    With the Staples case the court decided that mens rea was required and that mens rea would be satisfied if Staples knew (or reasonably should have known) his AR15 possessed the features that subjected it to regulation - which he did not.

    The Staples case is a great precedent and I like to apply it to lots of fact patterns. We never get a free pass for not knowing the law, but, as articulated in Staples, we do get a free pass if we don't even know that the thing has the feature in question. In Staples case the government could not prove that he knew or reasonably should have known that his gun was capable of firing more than a single shot by a single function of the trigger, so the fact that it was proven that the gun could in fact do so was irrelevant.

    This may come in handy as we move into the bump-stock-ban era in Florida on October 1st. Over zealous prosecutors may attempt to assert that all manner of things qualify as "bump stocks" because they allow one to fire a semi-automatic firearm faster than would be possible without the device. Using techniques like the one I call the "Glock auto finger" one can fire most semi-automatic firearms quite quickly with no device at all. Though there are many definitions of a bump stock under the new law, one of them would require the government to prove that the device in question allows one to fire the semi-automatic firearm faster than one could without it. But under Staples, not only will they have to prove that fact, they will also have to prove that the possessor knew, or reasonably should have known of that fact. Unless they can demonstrate that you have used a shot timer to time how fast you can shoot the gun with the Glock auto finger technique, and how fast you can shoot the gun with the device, it might be difficult to satisfy the principle articulated in Staples.

    Personally I'd like to see a return to the days when nearly all crimes required mens rea. But I don't think it's ever going to happen. The state makes too much money and derives too much power from victimless crimes.
    Last edited by BrianB; 04-21-2018 at 06:50 PM.
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  3. #33
    Distinguished Member TitleIIToyLover's Avatar
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    And all I was trying to say, is that people that think they will never get caught... sometimes do.
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  5. #34
    Distinguished Member BrianB's Avatar
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    Quote Originally Posted by TitleIIToyLover View Post
    And all I was trying to say, is that people that think they will never get caught... sometimes do.
    I'm with you. I too would not be able to sleep at night if I had an illegal gun in the house. You never know when something is going to happen that invites the law into your house. Maybe you're the victim of whatever event that is, but maybe you end up leaving in cuffs at the end of it. Not worth it.
    NRA Certified Instructor (Pistol, Rifle, HFS, PPITH, PPOTH) and Chief Range Safety Officer
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  6. #35
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    Quote Originally Posted by AFJuvat View Post
    (Just throwing this out for the sake of discussion)

    If the owner legitimately did not know NFA rules, and did not know that the gun was a NFA item, is it really a crime?

    Lets be honest with ourselves, unless you are a serious gun person, you probably have NO idea what the NFA is, ir what it applies to.
    I can easily see a judge looking down his nose through his glasses saying "ignorance of the law is no excuse" even though it is impossible to fully know the law for any human being, much less a non-lawyer.


    And, would you trust a jury with that? Especially if the jury was say in Dade, or Broward, or Orange, or Palm Beach counties?

  7. #36
    Distinguished Member TitleIIToyLover's Avatar
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    The only profession that I know of, that requires that you know all of the regulations is commercial aviation. Title 14 CFR requires, by regulation, an airline captain know all the regulations. To not know know all of the regulations is careless and reckless and is prohibited by regulation.
    There are only 3 colors, 10 digits, and 7 notes; it's how we arrange them that is important.

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