From: lvc@cbnews.cb.att.com (Larry Cipriani)
Subject: ATF puts it in writing, Form 4 signoff is discretionary
Organization: Ideology Busters, Inc.
Date: Sun, 20 Dec 1992 12:38:18 GMT
Keywords: batf, class iii weapons

The following letter will be added to the RKBA archive, the file
name will be "form4signoff".

Department of the Treasury
Bureau of Alcohol, Tobacco and Firearms
Washington, D.C. 20226

Mr. ..........
..............
..............

Dear Mr. ..........

This is in response to your recent follow-up inquiry to our May 5, 1992
letter about law enforcement officers in the State of Kentucky having
authority to execute the law enforcement certification on Part 3 of ATF
Form 4, application for Taxpaid Transfer and Registration of Firearm.

State and local officials are not legally obligated to execute the
certification on the Form 4, even if the transferee is qualified to
receive the firearm and has no criminal history.  In Steele v. National
Firearms Act Branch, et al., No. 82-2013-Civ.-ARONOVITZ, (S.D.> Fla. Dec.
6, 1985), the court held that the sole burden imposed by 27 CFR section
179.85 is upon the transferee to obtain the certification and that no
requirement is imposed on any law enforcement officer by virtue of the
regulation.  The court noted that action by a law enforcement officer
in this regard is purely discretionary, and that the officer may certify
the transfer or may refuse to do so.

As you know, the provisions of 27 C.F.R. 179.85 require that the Form 4
transfer application include "(a) certificate of the local chief of police,
sheriff of the county, head of the State police, State or local district
attorney or prosecutor or such other person whose certificate may in a
particular be acceptable to the Director."  In several instances, judges
have been to be acceptable certifying officials if they preside over courts
of general jurisdiction having original jurisdiction in all civil and
criminal matters, and if they have jurisdiction over the district where the
transferee resides.  Therefore, you may wish to check with the judges in
your area.

In order to determine the jurisdiction of the State criminal court judge,
it is necessary to get an overview of the court system in Kentucky.  The
Constitution of Kentucky, sections 110-113, provides for the establishment
of a Supreme Court, court of Appeals, circuit court, and district court.
The Supreme Court and Court of appeals have appellate jurisdiction only.
Ky. Const. Paras. 110 and 111.  Therefore, judges from these courts would
not be acceptable as certifying officials on ATF Form 4.

The circuit court is a court of general jurisdiction; it has original
jurisdiction of all cases not exclusively vested in some other court.
KY. REV. STAT. ANN. Para 23A.010 (Baldwin 1991).  Thus, a circuit court
judge would be an acceptable certifying official.  Finally, the district
court is a court of limited jurisdiction, with original jurisdiction over
civil cases which do not exceed $4,000 and over misdemeanor criminal
violations.  However, the district court does have concurrent jurisdiction
with the circuit court over felony cases.  KY. REV. STAT, Ann. Paras.
24A.110-24A.130 (Baldwin 1991).  Therefore, a district court judge would
also be an acceptable certifying official.

Accordingly, if the State criminal court judge in question is a district
court judge or a circuit court judge, he or she would be an acceptable
certifying official.  However as previously stated, to be acceptable, a
certifying official must also have jurisdiction over the place where the
transferee resides.

We trust this has been responsive to your request.

Sincerely.

[signed]

Wayne Miller
Chief, National Firearms Act Branch
-- 
Larry Cipriani, att!cbvox1!lvc or lvc@cbvox1.att.com
Newsgroups: talk.politics.guns