Tuesday, November 24, 2015

Goodbye and Thank You!

Skylark Law & Mediation, P.C. will no longer be handling bankruptcy, criminal defense or firearms cases, in order to concentrate our practice on resolving family conflicts.   While this blog will remain available as a resource, we will not be updating or posting new information after today.

If you have a question related to these practice areas, for bankruptcy we recommend The Law Offices of Lee Darst; for criminal defense we recommend Cappetta Law Offices; and for firearms related work we recommend Julie Tolek of Think Pink Law.  Julie recently became an Associate at Skylark Law & Mediation, PC, and will continue to run her own practice as well.

Julie will continue to represent both individual and business clients navigating second amendment compliance, and below is a message from Attorney Tolek regarding her 2nd amendment practice:
I think I was 20 years old when I shot my first gun. It was a Glock of some sort. I didn't pay attention to the model at the time because I was too busy listening to the instructor tell me I was a natural (obviously). We were shooting at a bullet proof glass panel that had been removed from a car. My mom had taken me with her to go shooting since she had worked with this instructor before, so I credit her with introducing me to firearms...although today she denies she had anything to do with it.

I continued to shoot over the years, but it wasn't until the summer that I took the bar exam (over ten years after I had shot my first gun, ever) that I actually applied for and received my License to Carry Firearm in Massachusetts. I took my safety class on my birthday that summer, as my present to myself. Getting my LTC had been on my bucket list since the day I pulled my first trigger so I was floored.

The day I took my firearms qualification exam (as required where I lived at the time) it was a gorgeous day, the sun reflecting in the Boston Harbor. The test was at Boston Police Firearms Range at Moon Island. It was three days before the bar exam. I couldn't have picked a better way to take a break from studying. I was the only girl there.

After my shooting test, I decided I like revolvers. Double action, mostly. To me, they are works of art. Revolvers demand respect (like all firearms.). Cool metal with curves. A revolver is a contradiction in itself; old school, yet modern - a timeless piece of handcrafted machinery, its mechanics unchanged over hundreds of years.

Lucky for me (and you!), my passion for firearms has intertwined itself with my passion for law. That I got my License to Carry AND my license to practice law at the same time is symbolic: I do what I love and I love what I do. Firearms law is a specialized type of law where having a passionate lawyer who just happens to also be a gun enthusiast makes for powerful advocacy for you, our clients.
For more information contact Julie at Think Pink Law.

Tuesday, February 17, 2015

Do you know how CORI reports work?

CORI stands for Criminal Offender Record Information, which is managed in Massachusetts by the CORI Support Services Unit.  According to their website, the CORI unit process an average of 100,000 requests per month to access the criminal records of individuals in Massachusetts. This does not include law enforcement agencies which may have access to a more complete report.

Also according to the CORI Unit website:
"The source of criminal history information contained in the iCORI database is the Office of the Commissioner of Probation (OCP), a subdivision of the Administrative Office of the Trial Court (AOTC).  Accordingly, OCP is the only state agency that can change information that appears in the iCORI database.  Further, only OCP can seal criminal convictions."
In 2010, Massachusetts reformed the CORI law which significantly updated how CORI's could be accessed, used, sealed, and shared.  This chart produced by the Boston Workers Alliance clarifies the changes in the 2010 reform and is a great overview of how CORIs work.

If you want to know what is on your report prior to someone else accessing it you can request a copy of your CORI here.

Monday, November 3, 2014

3-D Printed Firearm Leads to Jail Time

According to Mashable, the first person to go to jail for making a 3-D printed firearm was a 28 year old man from Japan, Yoshitomo Imura.  Read more about the story here.

In Japan gun ownership is heavily restricted and there is no exception for 3-D printed guns, though the arrested man claimed he didn't understand he was breaking the law.

In Massachusetts, a 3-D printed firearm will be treated like any other firearm manufactured in your home.  Just because the technology has made it easier for more people to manufacture firearms doesn't change the legality of doing so.  For more on that subject, and to avoid ending up like Mr. Imura, check out our recent post: Is Making a Firearm in Your Home Legal?

Friday, October 31, 2014

Matthew Trask Accepts Position with Remington Arms Company, LLC

We are very excited to announce that on November 10, 2014, attorney Matthew Trask will assume the role of Compliance Manager for Remington Arms Company, LLC in Ilion, New York.  He will be managing the compliance team for their New York facility, and will be responsible for maintaining Remington’s compliance with the Bureau of Alcohol, Tobacco, Firearms & Explosives (BATFE) regulations, including the NFA, GCA, ITAR and other applicable state and federal laws.

Although this departure from Massachusetts will prevent Attorney Trask from directly representing firearms clients in the Commonwealth, Kelsey & Trask, P.C. remains committed to protecting your rights secured by the Second Amendment.  In addition to collaborative divorce, mediation and bankruptcy, Kelsey & Trask, P.C. has represented the needs and interests of firearms owners, dealers and manufacturers by assisting them in navigating the numerous local, state and federal firearms regulations.

Firearms cases in our firm were primarily managed by Kelsey & Trask, P.C. partner, Matthew P. Trask, Esq., a lifelong firearms enthusiast and 2A advocate.  However, as with any legal endeavor, Attorney Trask was always backed by a team of attorneys, support staff, public interest groups such as Comm2A and GOAL, and fellow colleagues and attorneys sharing similar interests, abilities and devotion to the firearms community.

To continue to serve the firearms community, there are some changes that our clients and prospective clients can expect to see in the coming weeks.  However we will continue to assist clients and potential clients either within the firm or through special relationships we have formed with other respected firearms attorneys in the community.

Although not actively engaging in the practice of law in Massachusetts after November 10, 2014, Attorney Trask will remain a resource to Kelsey & Trask, P.C. for developments in the laws pertaining to firearms, self defense, personal protection and BATFE compliance.   He will continue to be available for consulting by both our referral and in-house attorneys on firearms related issues.

We hope you continue to consider us a resource through this transition and into the future.

It has always been the goal of Kelsey & Trask, P.C. to provide high quality legal representation to resolve our client’s matters.  These changes reflect Kelsey & Trask, PC’s continued commitment to that goal.  If you have any questions, please do not hesitate to contact Kelsey & Trask, P.C. partner Justin L. Kelsey, Esq. at 508.655.5980 with any questions.  

Thursday, October 9, 2014

Is Making a Firearm in Your Home Legal?

This past week, a compact, inexpensive, PC controlled CNC mill produced by Defense Distributed, capable of making a metal lower for an AR-15 at home, has reignited discussions over the legalities of manufacturing your own firearm.

The Legal Framework for Manufacturers:  The Gun Control Act of 1968 places numerous requirements on firearms manufacturers holding a Type 07 (or similar) Federal Firearms License, including requirements for record-keeping, import/export registration, serialization and marking of firearms.  These legally-required markings, including a unique serial number, manufacturer’s name and location, model and caliber are often used by state and federal agencies to track, trace or register specific firearms to specific individuals.

For the most part, the GCA marking requirements meant that nearly every gun produced domestically (and legally imported) bore these markings, and could be relied on by manufacturers, consumers and authorities for their own purposes.  This monopoly on marking largely resulted from the fact that the manufacture of a firearm was something best left to the professionals; a skill more appropriately left to the manufacturers, and not the casual tinkerer.  In recent years, the firearms industry has seen huge advances in technology that no longer require a machine shop or knowledge of a Bridgeport milling machine.  Inexpensive CNC mills, 3D printers and 80% components and their completion kits have made the challenge of building a personal firearm available to the casual builder.  

The Legal Framework for Individuals:  Making a firearm for personal use is legal.  Making a firearm for personal use without a federal manufacturing license is legal.  This has always been the case, even after the enactment of the Gun Control Act of 1968 ("GCA"). However, this right has been attacked as of late by gun control advocates – and has been advanced with renewed interest by 2nd Amendment supporters.

Before you begin, however, understand the applicable laws.  

Is it legal to manufacture a firearm for personal use? 

Yes.  Per provisions of the Gun Control Act (GCA) of 1968, 18 U.S.C. Chapter 44, an individual may make a “firearm” as defined in the GCA for his own personal use, but not for sale or distribution.

May I sell, trade, give away, or bequeath a firearm I make if I do not wish to keep it anymore?  

No.  The GCA prohibits the sale or distribution of a firearm made by an individual.  The firearm must be destroyed by approved ATF destruction techniques, and proof of destruction should be retained. 

Must my firearm have the required GCA 1968 Markings?  

No.  Marking requirements for manufactured firearms apply only to federally licensed manufacturers.  However, it is both a state and federal crime to deface, remove or modify a firearm serial number if it is already present. 

If I Make a Firearm do I have to Register It?

Federally, no, as long as it is regulated as a Title I firearm (most rifles, shotguns and handguns).  However, some states, Massachusetts included, require the registration or reporting of the acquisition of a firearm.  In the case of Massachusetts, although no federal registration is required, once the firearm were complete and functional, the builder must submit a completed FA-10 or E-FA-10 document within 7 days. 

Are there any other laws or regulations I should be aware of if I manufacture my gun? 

Yes.  The ability to manufacture a firearm for personal use does not permit the manufacture without registration of all types of firearms.  Firearms falling under Title II of the National Firearms Act (such as machine guns and machine gun components, short barrel rifles, short barrel shotguns, destructive devices and AOW’s) require compliance with the laws regulating their registration, manufacture and possession, including the National Firearms Act (requiring the payment of a manufacturing tax and registration of NFA firearms) and the Firearm Owners Protection Act of 1986 (banning the individual manufacture of machine guns).  For more on this subject see our previous post.

Some states, including Massachusetts, have additional prohibitions on disguised firearms; bans on certain cosmetic features (as found in some state’s Assault Weapons Bans); individual licensing requirements; magazine capacity restrictions and storage requirements.  In cases where a firearm is made by an individual, these laws still apply.  Be sure you are aware of your state’s laws, and if not, consult with a competent firearms attorney. 

What are the legal requirements for becoming a Federally-Licensed Firearms Manufacturer?

If the technological advances make you think you want to jump into the firearms manufacturing world with both feet to make firearms for sale or distribution, you would need to obtain a Federal Firearms License, such as a Type 07 FLL.  This process carries with it its own unique federal, state and local considerations, compliance requirements and practices.  If you are interested in becoming a 07 FFL, please contact Attorney Matthew P. Trask to discuss the process.  

For more information visit Kelsey & Trask, P.C. or Holdover Consulting, LLC

Thursday, September 18, 2014

Owning an SBR - Part 2: Complying with Federal, State and Local Regulations

The National Firearms Act of 1934, in conjunction with Title II of the Gun Control Act of 1986, regulates the ownership of certain firearms, including Short Barrel Rifles ("SBR").  A Short Barrel Rifle is defined as any rifle having barrel length of under 16 inches, as measured from the face of the closed bolt to the muzzle, and/or having an overall length of under 26 inches.

This is the story of how and why Kelsey & Trask, P.C. Partner and Holdover Consulting, LLC Principal Matthew Trask legally obtained an SBR.  Although this process was specific to the acquisition of an SBR, the process would be similar for any other Title II firearm.  To read how Matthew chose his SBR read our previous post: Owning an SBR - Part 1: Finding the right SBR for me.

Owning an SBR - Part 2: Complying with Federal, State and Local Regulations

To convert our DF94 into a legally owned SBR, we would next need to obtain the proper tax stamp.  Obtaining a tax stamp to own/manufacture a Title II firearm is theoretically straightforward, although a prospective SBR owner should be aware of a few regulatory considerations at the Federal, State and Local levels:

Federal Regulatory Considerations:  

The National Firearms Act imposes a statutory excise tax on the manufacture and transfer of certain firearms and mandates the registration of those firearms.  These firearms, often referred to as “Title II Firearms” or “NFA Firearms” fall into one of six categories:

a. Short Barrel Rifles
b. Short Barrel Shotguns
c. Destructive Devices
d. Machine Guns
e. Suppressors/Silencers
f. Any Other Weapons (AOW)

The manufacture of any of these types of firearms requires the purchaser or manufacturer to pay the requisite excise tax of $200.00 (or $5.00, for certain AOW’s transferred on a Form 4).  Additionally some manufacture or transfer do not require the payment of the excise tax – only registration – in certain cases, such as manufacture by a federal licensee who has paid a Special Occupational Tax or transfers pursuant to the administration of an estate.  Generally, if a nonlicensee seeks to acquire a Title II firearm, either by manufacture or acquisition from a Title II dealer, the nonlicensee will be required to pay the $200 excise tax.  Submission of registration documents is required in all cases.

The federal government also prohibits the manufacture for civilian sale of new machine guns, and the transfer of any machine gun which was not registered prior to 1986.  As before, there are some very narrow exceptions to this rule, and it is best to contact an attorney or knowledgeable NFA dealer if you are considering the purchase of a machine gun.

State Regulatory Considerations:  

Some states will limit or restrict the possession of firearms regulated by the National Firearms Act under state law.  Some states laws will ban the possession of certain NFA items outright, while other laws will ban the possession of certain NFA firearms indirectly.

For example, legislation in Massachusetts bans the possession of suppressors outright.  Short-barrel shotguns are not specifically banned, but Massachusetts does prohibit the possession of a “Sawed Off Shotgun” (a weapon, made from a shotgun that has a barrel length of less than 18 inches).  The sawed-off shotgun prohibition does not prevent the registration of all SBS’s; but it is illegal to manufacture a SBS and register it in MA on a Form 1.  A purchaser must register an SBS in Massachusetts on a Form 4, and the SBS must have originated from the original manufacturer as a Title II firearm.

In Massachusetts, machine guns are legal, but anyone seeking to obtain a machine gun must hold a MA License to Possess a Machine Gun issued by the Chief Law Enforcement Officer of the purchaser’s town of residence.  AOW’s and Destructive Devices are not specifically prohibited in MA, although a prospective buyer would need to be conversant on Massachusetts laws regarding (a) The MA Assault Weapons Ban; (b) MA laws regarding disguised firearms; and (c) Massachusetts laws regarding the possession of explosives or “infernal machines”.

Before purchasing a Title II firearm or attempting to obtain federal approval, ensure that such firearm will not violate your state's laws.

Local Regulatory Considerations:

As of September 14, 2014, if a Title II firearm is to be acquired by an individual (and not a corporation, trust, or other legal entity), the individual must obtain a law enforcement certification on the Form 1 or Form 4, as appropriate.  Such certification, by federal law, is not intended to be “discretionary” by the CLEO, but many law enforcement officers refuse to sign the certification, thereby preventing the purchaser from obtaining a Title II firearm.  It should be noted that presently purchases of a Title II firearm by a trust, corporation or LLC do not require (a) CLEO certification; (b) fingerprinting of the intended possessor of the firearm; and (c) the submission of photographs to the ATF.

Assuming that you have met all Federal, State and Local requirements, you may now begin the process to make and register your NFA firearm with the following important notes:

NOTE on Form 1:  In the case of registration on an ATF Form 1 (Application to Make and Register a Firearm), you MUST have the approved Form 1 back from ATF with a cancelled tax stamp BEFORE you manufacture your Title II Firearm.

NOTE on Form 4:  In the case of registration on an ATF Form 4 (Application for Tax Paid Transfer and Registration of Firearm), you MUST have the approved Form 4 back from ATF with a cancelled tax stamp BEFORE you take possession of your Title II Firearm.

Essentially, the NFA registration process is done before a firearm is manufacturer or changes hands. Transferring a Title II firearm without an approved Form 4, or manufacturing a Title II firearm without an approved Form 1 is a violation of federal law.

Therefore, although you may be in possession of certain components for your NFA firearm (a lower receiver or host gun for a Title II conversion), that firearm must remain in Title I configuration until you receive your approved registration documents.  Since the Form 1 will request that you provide certain information regarding the firearm, such as overall length, barrel length and caliber, it will be necessary for you to do a bit of research and planning to determine the specifications of the firearm you intend to build.  Remember that the dimensions disclosed in the Form 1 are for the configuration of the final Title II firearm.

Our Form 1 experience:

The appropriate document for manufacturing an NFA firearm from an existing Title I firearm is ATF Form 1 (5320.1).  The form can be downloaded in .pdf form from the ATF’s website, or completed electronically on via the ATF’s eForms system.  If possible, I highly recommend utilizing the ATF eForms system.  Electronically-submitted Form 1’s have been approved in as little as 25 days, while “hard copy” forms take more than six months and 8-12 month waits are not uncommon.

We submitted and Electronic Form 1 for manufacture (conversion) of our SBR, and received approval in thirty-nine days.

The completion of the Form 1 itself is fairly straightforward.  However, forgetting to attach certain documentation will result in the rejection of your Form 1.  In Massachusetts, this additional documentation which should be filed as part of your Form 1 is:

1. All Applications - Copy of your License to Carry Firearms (LTC)
2. If an Individual – 2”x2” photograph
3. If an Individual – Completed Fingerprint Cards, in duplicate
4. If an Individual – Completed Law Enforcement Certification
5. If a Corporation or Trust – Copy of Trust or Articles of Organization
6. All applications – Payment of $200.00

If you would like any assistance regarding the completion of your Form 1 or guidance on the purchase and registration of a Title II firearm, please contact Attorney Matthew Trask at 508.655.5980.

Thursday, August 7, 2014

Good Idea, Bad Idea - Cosigning a Loan

There are many good reasons why you may want to cosign a loan.  Some typical examples include helping a child obtain their college education by co-signing student loans, or assisting your spouse in purchasing a car. With any good idea, however, a small difference in the situation can make it a very bad idea.

Many people are unaware of the consequences of cosigning a loan, and in many many instances cosigning may be a very bad idea.  Take just the two examples described above:  If your child is unable to find a job after college and therefore unable to pay their student loan, that loan will be your responsibility.  If you and your spouse separate and he or she stops paying their car loan, your credit will be affected as well (even if they still have the car).

In these previous three posts we explored what happens when a cosigner or the primary borrower on a loan declares bankruptcy:

What happens to my Cosigner if I file for Bankruptcy?

I co-signed a loan and the primary borrower has filed for bankruptcy. What should I do to protect myself?

I am the primary borrower on a loan and my cosigner has filed for bankruptcy. What should I do to protect myself?


By the numerous comments and questions we receive on all three of those posts it is obvious that many cosignors don't realize how serious this obligation is when they signed the loan.  Many people feel that it should matter that they don't have access to the collateral (such as a house or car) or that they don't have a relationship with the primary borrower anymore.  These are all the inherent risks in co-signing a loan and it doesn't matter to the lender.  If you cosigned a loan, you agreed to pay the money back if the other person doesn't, regardless of the circumstances.

If it isn't paid on time your credit will be affected.  If it isn't paid at all, the lender can sue you for the funds.  If the primary borrower files for bankruptcy and the debt is discharged so that they no longer owe it, you still do!

Cosigning a loan is not something that should be taken on lightly.  There are often good reasons to do it, but you should also consider all of the reasons why you might not want to.  In short, if you can't pay back the loan yourself, then you'd better be 100% positive that the primary borrower will pay it back.  If the lender was convinced of that, then the primary borrower wouldn't need a co-signor in the first place.

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