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41F notification question

5K views 29 replies 5 participants last post by  pod 
#1 ·
41F is a few scant months away. The new provision of "CLEO Notification" will kick in. I've asked around before and the answers were mum about this.

My concern about "CLEO Notification" is the establishment of a local firearms registry. Is it a violation of Florida law? I know a registry of Title I arms is a violation of Florida and federal law. I know for Title II, the registry prohibition is obviously not applicable at the federal level.

But if you think about it, CLEO notification essentially creates local registries of Title II arms.

Besides the infringement, here's my concern - information security. The notifications, if they are logged at all, are likely to be stored in some Excel file on some clerk's computer or in a department server (or worse, cloud service) with the password set to '12345'. Or there's a file cabinet full of letters to the CLEO somewhere, and some janitor can swipe it at will.

That file is a gold mine to a thief. Instant shopping list of people with pricey guns. Since your NFA item owner likely has multiple pieces (Title I & II) in his or her possession. NFA is not a poor person's game.

That concern alone scares the crap out of me and I'm actually considering not doing any NFA item purchases past July because of it.

Is there any potential legal action on that front? Maybe I should notify the 2AF?
 
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#2 ·
Your concern is valid. I thought about that myself. Somewhere there will be a stack of notification letters packed in boxes at people's local sheriffs office. And those notification letters will have valuable info on them. Your name and address will be right there top left corner and below it will have all the item info.
My guess is the answer to your question does not exist because most likely Leos are still scratching their heads on exactly what is changing and how they are supposed to handle it. One would ASSume the BATF has sent out instructions on the new rule to all CLEOs nationwide, or somehow made them aware of it?
 
#6 ·
I guess whether or not it amounts to registration depends upon what the Sheriff does with them. Since it would be a felony for him to retain them he could simply shred them after he has done whatever due diligence (if any) he decides to conduct. Being that there is no funding to do anything with them I expect most Sheriffs will do nothing with them. As long as he doesn't retain them, compile them, etc., then there is no registry and no crime.

Now of course there is the potential that a crafty Sheriff will want to keep them so he knows who has what. If someone really wants to know if their Sheriff is keeping them, file a demand for records under Florida's "Sunshine Law" demanding all copies of any Form 1's or Form 4's in the Sheriff's possession (not just yours - ALL). If he has them he has to give you copies. If he's willing to defy the law to deny that he has them when he really does, then that's another matter altogether. It would seem difficult for the department to keep the records without multiple people knowing about it, so trying to keep something like that a secret would probably be kinda tough. All it takes is one 2A patriot to hang everyone involved on multiple felonies - and you wouldn't think it would be worth that risk.

Perhaps include a statement with your "notification" copies that says it is a felony under FS 790.335 to retain the submitted records or compile them in any way. Then even if the Sheriff doesn't know it's illegal (and might otherwise be inclined to hold on to them "just because") he'll be on notice, may ask legal counsel about it, and not do so.

That's my thoughts anyway.
 
#7 ·
790.335 has no distinction between Title I & II firearms. By the book, you are right, if the CLEO keeps an Excel file or a box of notification forms, this could be a violation of the law.

And yes, you are right, if there are records kept, multiple people would know about it, including people kindly disposed to our point of view.
 
#17 ·
Now if the CLEO destroys the notifications, then I guess the burden of proof would be on the item owner to prove he or she complied with the notification law?
Why? Your bare assertion that you complied should be sufficient absent proof to the contrary - in my opinion. What could they possibly do to you? If they charge you with a crime they are going to have to prove beyond a reasonable doubt that you didn't provide the notification. Since proving a negative is almost impossible how will they do that - especially if you sent it certified (just to be safe) and have that receipt?

Nonetheless, clarity on and preferably the removal of the notification requirement is needed.
Honestly I think we should be thankful that 41P ended up the way that it did. There was little to nothing stopping the Obama administration from implementing 41P as-written - which would have required a CLEO signoff for all entities - human and otherwise. That would have amounted to a de-facto ban on the purchase and transfer of NFA items in much of the country. The CLEO signoff has been challenged in court before and was always upheld. I don't know if it would have survived this go around, but I'm glad as hell we don't get to find out.

Make no mistake, I don't think the NFA is even constitutional - and I don't think any registration should be required at all - but it has been upheld under the Feds' taxation authority so it's probably not going anywhere any time soon. The NFA community has been trying to get rid of the CLEO signoff for as long as I have known what NFA was. It has finally happened. I'm dumbfounded that it never happened under a Republican president and happened under the Obama administration of all things. Even though I think the whole damn thing is an unconstitutional mess I personally expected 41P to be the end of NFA as we know it so am pretty thankful for how it actually ended up.
 
#19 ·
The NFAFA responded to my inquiries ... an NFAFA rep answered my email thusly.

This is a big concern. What you didn't mention is that those records are subject to a FOIA type request. The press could request and then publish the records. So YES you are correct...big problem.

Utah moved a bill to destroy the records but I'm not certain where it stands at the moment. We need an effort to pass similar laws in each state. That is something we will be working on in 2017.
So people are aware of an impending issue and are moving to do something about it. Good. The NFAFA is a small organization but they've helped score some victories recently, so they are growing.

Remember that the New York press used the FOIA to name and shame gun owners in NYC with an interactive map. The Miami New Times did a similar thing with CWFL holders about ten years ago before CWFL records were made exempt from public viewing.

Having any sort of registration is bad, what is worse is if the general public can get ahold of it.
 
#20 · (Edited)
The NFAFA responded to my inquiries ... an NFAFA rep answered my email thusly.



So people are aware of an impending issue and are moving to do something about it. Good. The NFAFA is a small organization but they've helped score some victories recently, so they are growing.

Remember that the New York press used the FOIA to name and shame gun owners in NYC with an interactive map. The Miami New Times did a similar thing with CWFL holders about ten years ago before CWFL records were made exempt from public viewing.

Having any sort of registration is bad, what is worse is if the general public can get ahold of it.
It's only an issue if the Sheriff commits a felony by retaining the records to begin with.

ETA: Also, FOIA only pertains to records kept by the Federal government, not by your Sheriff. And since these records are "tax records" they are exempt from FOIA when held by the Feds. The Florida Sunshine Law would possibly compel the Sheriff to release the records upon request (though there may be an exemption that would pertain), but since it's a crime for him to retain them in the first place he should never have a repository of such records to release.
 
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