Question about removal of serial numbers

[Elkins45]

I know it’s against both state and federal law to remove a serial number from a firearm. But does that apply to all parts of the gun or only the part that is legally the gun?

For example, I own a Glock 20 that suffered a cracked frame. The frame was replaced but my old slide and barrel were simply attached to the new frame. The Glock customer service rep told me the old frame was reported to ATF as having been destroyed. As you may know Glock follows the European practice of stamping the serial number on the slide and barrel as well as the frame. So now I have a gun with two serial numbers: one on the slide and barrel and a different one on the frame.

Has there been any sort of ruling or litigation around the legality of removing the serial numbers from the slide and barrel so the gun has only the (legally correct) number on the frame? It’s not really a pressing question but I am curious if the crime of defacing a serial number refers to any serial number or just the one that’s legally associated with the gun?

 

[Elkins45]

The Kentucky Revised Statutes say this:

527.030 Defacing a firearm.
(1) A person is guilty of defacing a firearm when he intentionally defaces a firearm. (2) Defacing a firearm is a Class A misdemeanor.

and

527.050 Possession of defaced firearm.
(1) A person is guilty of possession of a defaced firearm when he knowingly possesses a defaced firearm unless he makes a report to the police or other appropriate government agency of such possession prior to arrest or authorization of a warrant by a court.
(2) Possession of a defaced firearm is a Class A misdemeanor.

The question would seem to be how “defaced” is defined, and the definitions in the chapter say this:

(2) "Deface" means to remove, deface, cover, alter, or destroy the manufacturer's serial number or any other distinguishing number or identification mark.

The frame could be construed to be the part with the “manufacturer’s serial number” but the irrelevant old numbers could also be construed to be a “distinguishing number or identification mark” under the statute. I wonder about this interpretation because it doesn’t specify these markings must be original. A strict interpretation would imply if someone scratched their phone number onto a gun that a new owner couldn’t polish it away.

The use of the word “cover” also implies anyone with a S&W revolver that has the SN on the grip frame is committing a crime if they put a set of target stocks on it because they cover the SN.

Legal stuff makes my head hurt.

 

[Frank Ettin]

When these sorts of questions about how certain provisions in statutes will be applied by courts, one first looks for answers in case law applying the language in those statutes. In the absence of directly applicable case law one would turn to other legal authorities; but the further one gets from directly applicable case law, the less certain one can be of the answer.

But as long as there's doubt about what a statute might mean and how in might be applied in a specific situation, one in general can't get very far just looking at the statute. One needs to do the research. Remember, as I've said before, law in non-intuitive.

 

[dogtown tom]

https://www.firearmspolicy.org/this-week-may-23-2020
Odd Second Circuit ruling on serial numbers

In an opinion released by the Second Circuit Court of Appeals, the court determined that the sentencing enhancement for obliterating or altering a serial number on a firearm applies to any serial number on the firearm. Here’s why that’s wrong, and why this determination is bad for gun owners.

The Gun Control Act of 1968 requires that certain firearms have a serial number. Unfortunately the court overlooked the part where the Act specified the number must be on the frame or receiver. You know, the part that’s legally a gun.

The Court chose to take an aggressive, blanket approach. The law’s clear intention surrounds the serial number on the “firearm” component. However, factories choose to place serial numbers on more parts than are required. Slides, barrels, bolts, and other less regulated components often have serial numbers. The Second Circuit’s interpretation, at least with respect to a sentence enhancement, includes those non-essential serials on things like slides, which aren’t in and of themselves firearms.

Why is it inappropriate? Because you can replace parts on most modern firearms. The Sig Sauer P320, for example, is a fire control group embedded in a chassis, and it can be removed from the pistol grip. That’s why the chassis is stamped with the serial number. All kinds of parts are replaced for any number of reasons. Those parts might have a different serial number on them. That number should be of no consequence.

By misinterpreting this requirement, the Second Circuit has increased the probability of defendants spending more time in prison for something as immaterial as swapping out a barrel or a slide, even when the issue at trial has nothing to do with something related to ballistics. The Court should at least clarify that the Gun Control Act only affects the frame and receiver so as to prevent this decision from reaching conduct far beyond the intent of the legislature.


Link to that opinion: https://www.courthousenews.com/wp-content/uploads/2020/05/serialnumbers.pdf

 

[Ed Ames]

Question: Is this a situation where a prosecutor could and might argue that “identification mark” (as seen in the aforementioned Kentucky statute) includes anything that could be used to identify a firearm forensically? E.g hi points are said to have unusual rifling features to make them easy to identify. Is it likely a prosecutor would consider it worthwhile to argue that putting a polygonal rifling barrel on a hi point was “defacing”, or is that too tenuous?

 

[CapnMac]

As Frank points out, this seems less apt for Legal and more apt for General, perhaps.
After all, what happens when you buy a mis-matched Mauser?
The law appears to clearly state that the number on the receiver is the "legal" serial number.
Now, it would be more elegant if the Code explicitly state that all other numbers may be ignored.

OP state that he had been told that the previous s/n had been reported as destroyed to ATFE. So, that would appear to have satisfied Federal requirements, which also appears to be echoed by KY law (not that I'm an expert).

Really, the only issue would appear to be on the clerk at the next FFL this arm turns up within, as they will have to be smart enough to select the "correct" s/n to record.

Mind, the 2nd Circus has not helped matters.

 

[RickD427]

And a quick note for the California members here. The removal of any manufacturer's mark of identification is illegal and a peace officer encountering such an item is actually required by statute to take custody of it. Please refer to California Penal Code sections 537e and 1407.

 

[Frank Ettin]

...Here’s why that’s wrong,...

That's well and good, but the Second Circuit opinion (United States v. St. Hilaire, No. 19-640 (2nd Cir. 2020) still says what it says. So that's the law in the Second Circuit. As attractive as your arguments are, that horse has left the barn, at least in the Second Circuit.

In addition, the opinion in St. Hilaire cites to cases in other Circuits in which the courts reached a similar conclusion (United States v. St. Hilaire, slip op, at 8):

...the five Courts of Appeals that have considered the question hold that the Enhancement applies if any single iteration of a gun's serial number has been altered or obliterated. (The cases are in the margin.)....

So while your arguments are attractive, the horse has left the barn -- at least in the Second Circuit and five others. Your arguments could be tried in Circuits that haven't yet addressed the question, or one might argue that the sentence enhancement guidelines rules aren't necessarily applicable to prosecutions under the federal law prohibiting possession of a gun on which the serial number has been moneyed with (18 USC 922(k)). Reasons for yet further research.

And the cases referred to involve prosecutions in federal court for federal crimes. Your arguments could be tried in state court cases involving prosecutions for state crimes -- unless the question has been settled in the courts of the State.

But thank you for finding St. Hilaire. That case at least provides some guidance for the OP, even if the apparent answer isn't the one he'd like.

 

[Frank Ettin]

As Frank points out, this seems less apt for Legal and more apt for General, perhaps....

No, this is an appropriate question for the Legal Forum. It's just that a useful, legal answer isn't easy or obvious.

 

[Frank Ettin]

Question: Is this a situation where a prosecutor could and might argue that “identification mark” (as seen in the aforementioned Kentucky statute) includes anything that could be used to identify a firearm forensically? E.g hi points are said to have unusual rifling features to make them easy to identify. Is it likely a prosecutor would consider it worthwhile to argue that putting a polygonal rifling barrel on a hi point was “defacing”, or is that too tenuous?

That's a bit of a stretch. But there is a way that doing something like switching out a barrel could be brought up by the prosecution.

It's long been the fact that conduct can be evidence and that a jury may draw inferences from conduct.

• U.S. v. Perkins, 937 F.2d 1397 (C.A.9 (Cal.), 1990), at 1402:
  

  ...the instruction explicitly stated, "the jury may consider [the false statements] as circumstantial evidence of the defendant's guilt." Id. at 1104. Second, we have approved the use of this instruction on false exculpatory statements. See United States v. Boekelman, 594 F.2d 1238, 1240 (9th Cir.1979) (court noted approval of standard Devitt & Blackmar instruction and distinguished Di Stefano in upholding a variation from the standard instruction); United States v. Wood, 550 F.2d 435, 443 (9th Cir.1976)....

  
  
• State v. Wimbush, 260 Iowa 1262, 150 N.W.2d 653 (Iowa, 1967), at 656:
  

  ...In Wigmore on Evidence, Third Ed., section 276, Volume II, page 111, under the title 'Conduct as Evidence of Guilt' the editor states: 'It is today universally conceded that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.'
  
  McCormick on Evidence, section 248, pages 532, 533, puts it thus: "The wicked flee when no man pursueth.' Many acts of a defendant after the crime seeking to escape the toils of the law are received as admissions by conduct, constituting circumstantial evidence of consciousness of guilt and hence of the fact of guilt itself. In this class are flight from the locality after the crime, assuming a false name, resisting arrest, * * *.' See also Jones on Evidence, Fifth Ed., section 386, page 717.
  
  We have held many times that evidence of escape from custody and flight of an accused is admissible as a criminating circumstance. State v. O'Meara, 190 Iowa 613, 625, 177 N.W. 563, 569; State v. Heath, 202 Iowa 153, 156, 209 N.W. 279, 281; State v. Ford, Iowa, 145 N.W.2d 638, 641. See also 29 Am.Jur.2d, Evidence, section 280, and 22A C.J.S. Criminal Law § 625 a....

  
  
• State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (Neb., 1991), at 743:
  

  ... Although Clancy involved evidence of the defendant's attempted intimidation or actual intimidation of a State's informant or witness, evidence which was admissible under Neb.Evid.R. 404(2) ("other acts"), the rationale for "conscious guilt" evidence is equally applicable in Lonnecker's case.
  
  Lonnecker's hiding in the crawl space was evidence of his "conscious guilt" concerning the marijuana located on the premises which were under his control, that is, a conscious guilt concerning possession and cultivation of marijuana as a controlled substance. ...

  
  
• Martin v. State, 707 S.W.2d 243 (Tex.App.-Beaumont, 1986), at 245:
  

  ...In 2 RAY, TEXAS LAW OF EVIDENCE CIVIL AND CRIMINAL sec. 1538 (Texas Practice 3rd ed. 1980), we find:
  
  "Sec. 1538 Conduct as Evidence of Guilt
  
  "A 'consciousness of guilt' is perhaps one of the strongest kinds of evidence of guilt. It is consequently a well accepted principle that any conduct on the part of a person accused of crime, subsequent to its commission, which indicates a 'consciousness of guilt' may be received as a circumstance tending to prove that he committed the act with which he is charged." ...
  
  See also Cuellar v. State, 613 S.W.2d 494 (Tex.Crim.App.1981)....

Now let's consider how those principles might apply to a switching of gun barrels. To do so, we'll construct a hypothetical assuming a number of facts:

• Someone holds up a liquor store at gun point and shoots the clerk. The security camera footage doesn't clearly show the robber's face; but the gun looks like a Glock 17, and the bullet recovered from the wounded clerk was a 9mm. Also, a spent 9mm Parabellum case was recovered.
  
  
• After a lengthy investigation Fred is identified as a person of interest. The police find a considerable body of evidence pointing to Fred as the robber, including the fact that he has a Glock 17.
  
  
• During the course of the investigation, evidence is found that shortly after the date of the robbery Fred had his Glock "modified" by a local gunsmith. The modifications included replacing the factory barrel with an aftermarket, "match grade" barrel, replacing the firing pin, replacing the extractor, replacing the ejector, and polishing the breech face. The original parts can't be found.
  
  
• Fred is indicted and brought to trial. Among other prosecution evidence a firearms and toolmark examiner testifies that markings on a fired bullet from the gun barrel and marking on a spent case from the breech face, extractor and ejector can be used to identify the gun that fired the bullet; but that can't be done if those parts had been replaced.
  
  
• The prosecutor also introduces evidence of Fred's modifications of his Glock.
  
  
• The prosecutor can now argue that the jury can consider Fred's modifications to his Glock as an attempt to destroy evidence, thus supporting a inference that Fred is guilty.

Of course, that's a "stacked deck", but the hypothetical helps illustrate how conduct can be used as evidence of guilt.

And such things do happen in real life. See, for example State v. Lockett, 639 S.W.2d 132 (Mo. App. 1982), at 136:

....A permissible inference of guilt may be drawn from acts or conduct of an accused subsequent to an offense if they tend to show a consciousness of guilt by reason of a desire to conceal the offense or accused's role therein. State v. Williams, 600 S.W.2d 120, 122 (Mo.App.1980); and State v. Brooks, 551 S.W.2d 634, 647 (Mo.App.1977), cert. denied 434 U.S. 1017, 98 S.Ct. 736, 54 L.Ed.2d 763 (1978). For example, submission of a false name after arrest, State v. Russ, 599 S.W.2d 103, 104 (Mo.App.1980), and the spoliation of evidence, State v. Turner, 633 S.W.2d 421, 1982, bespeak of a consciousness of guilt from which a permissible inference of guilt may be drawn. Although no Missouri cases have been found directly in point, alterations or changes made by an accused to his physical appearance subsequent to commission of an offense as indicative of a consciousness of guilt and affording a basis from which an inference of guilt may be drawn has the imprimatur of at least two other courts. United States v. McKinley, 485 F.2d 1059, 1061 (D.C.Cir.1973); and People v. Slutts, 259 Cal.App.2d 886, 66 Cal.Rptr. 862, 866 (1968).

This is not a case where only a single, isolated bit of circumstantial evidence was presented from which an inference of guilt could be drawn. To the contrary, the state presented a combination of circumstances, all forming one continuous chain of events with a perceptible nexus--flight, joint possession of stolen goods, and alteration or change in physical appearance--which were singularly indicative of guilt and collectively afforded a basis for drawing an inference of guilt. Flight, joint possession of stolen property, and alteration of physical appearance were singularly and collectively consistent with each other and the hypothesis of defendant's guilt.....

This was an excursion off-topic to illustrate some related legal principles. Let's try to stay focused on the OP's question.

 

[dogtown tom]

That's well and good, but the Second Circuit opinion (United States v. St. Hilaire, No. 19-640 (2nd Cir. 2020) still says what it says. So that's the law in the Second Circuit. As attractive as your arguments are, that horse has left the barn, at least in the Second Circuit.

I didn't write what you quoted. I made no comment, I linked to that article at the Firearms Policy Coalition and included the paragraph pertaining to the Second Circuit decision. And posted the link to the decision.

In addition, the opinion in St. Hilaire cites to cases in other Circuits in which the courts reached a similar conclusion (United States v. St. Hilaire, slip op, at 8): So while your arguments are attractive, the horse has left the barn -- at least in the Second Circuit and five others. Your arguments could be tried in Circuits that haven't yet addressed the question, or one might argue that the sentence enhancement guidelines rules aren't necessarily applicable to prosecutions under the federal law prohibiting possession of a gun on which the serial number has been moneyed with (18 USC 922(k)). Reasons for yet further research.

And the cases referred to involve prosecutions in federal court for federal crimes. Your arguments could be tried in state court cases involving prosecutions for state crimes -- unless the question has been settled in the courts of the State.

But thank you for finding St. Hilaire. That case at least provides some guidance for the OP, even if the apparent answer isn't the one he'd like.

They aren't my arguments, but those of the FPC.

 

[Elkins45]

But thank you for finding St. Hilaire. That case at least provides some guidance for the OP, even if the apparent answer isn't the one he'd like.

Well, it’s not all that big of a deal. More of a curiosity than anything.

Since we’re in the land of “a court will probably have to rule” let me take it a step further. Consider the case of a gun made from a Polymer80 frame (80% lower) with a Glock slide and Glock barrel that came from different guns. In this particular case the gun has two different serial numbers, neither of which is legally a serial number by the ATF definition. It’s legal here to sell such a gun. Suppose the owner were trading it with an FFL: would he enter it into his books as “no SN” or would he pick one of the two numbers? I’m almost positive “none” would be the correct entry.

 

[Frank Ettin]

.... They aren't my arguments, but those of the FPC.

Fair enough, and I apologize for attributing those arguments to you. My observations regarding those arguments are apt no matter who made them.

 

[dogtown tom]

Well, it’s not all that big of a deal. More of a curiosity than anything.

Since we’re in the land of “a court will probably have to rule” let me take it a step further. Consider the case of a gun made from a Polymer80 frame (80% lower) with a Glock slide and Glock barrel that came from different guns. In this particular case the gun has two different serial numbers, neither of which is legally a serial number by the ATF definition. It’s legal here to sell such a gun. Suppose the owner were trading it with an FFL: would he enter it into his books as “no SN” or would he pick one of the two numbers? I’m almost positive “none” would be the correct entry.

The dealer is supposed to record the serial number on the frame or receiver....in this case NONE. I would hope the gun dealer has the smarts to recognise an 80% frame when he sees one. (unless that model was manufactured with the serial# on the barrel. Quite a few old guns were serialized on the barrel before 1968)

I posted this back in April, but it pertains to your post:
"A year ago January, I received a firearm trace request on a Glock 26. I went to my books and lo and behold ......its in my safe and had been there about a month. Customer was out of town and typically only picked up his transfers once a month. This was not a complete Glock 26, just the frame. The GunBroker dealer in Georgia takes complete NIB Glock pistols and sells the frames separately from the barrel/slide assembly. This is becoming increasingly more common.

Someone bought the barrel/slide assembly (with serial#'s on both slide and barrel) slapped it on a 80% pistol frame and thats the only serial# the officer had to run.

So........that's the downside of someone having your old barrel."

 

[unspellable]

A point too few people are aware of is that on military issue P08s the chamber date is actually the first four digits of the serial number. They also often neglect the letter suffix or lack thereof. With so many mismatches around it's a potential can of worms. In many cases, the number on the side plate has been scrubbed off. The German military neglected to align their serial numbering policy with US practice. As I recall, a similar situation may apply to P38s.