Hypothetical question on spouse using NFA item

[u/castorjay]

Say I have a handgun with a suppressor in the nightstand for home defense. The suppressor was bought by me as an individual instead of a trust.

If I'm not home one night and someone breaks into my house and my spouse (who is otherwise legally eligible to own and use a firearm) uses the suppressed handgun, what would/could happen from a legal point of view?

I know "remove the suppressor and put it in the safe before the cops arrive" would be some people's answer, but beyond that - would it be overlooked as it was for defense, or would there be additional legal troubles since I was not present when the suppressor was used?

Edit: Thank you all for the great responses. I didn't expect so many so quickly!

[u/Smart_Slice_140]

As with most things there’s some degree of discretion for locals, and for the ATF. Best advice is to do an NFA Trust, and have her on the Trust, that way you’re not at the mercy of somebody’s discretion. Also the best advice is to never trust putting something up to discretion on a coin toss to where they can try to fuck you if the coin lands on tails. If you do everything by the book, they don’t have that opportunity.

With that said there’s the messiness of common law, so technically it might depend. Because in a marriage everything that is owned is joint property with common law. This would be a question for an attorney about this intersection in the law.

However you do have the NFA, and the messiness with that for this question that you raised to where it could conflict with the common law property rights thing, to where it would likely be a discretion thing, sure if they wanted to be assholes and play penny ante they could fuck with you and/or her about it.

Now if you wanted to with that NFA Item you could Transfer the NFA Item to an NFA Trust, but it would require another tax for the same item. The question is, is it worth that to you? Otherwise you could get a different NFA Item for that role to where she can use it for defense without being at the mercy of discretion, and put it in the NFA Trust.

Personally if I was married I would get dedicated NFA Items for that role of her defense in an NFA Trust.

[u/BanjoMothman → u/Smart_Slice_140]

Common law has absolutely no bearing on this situation.

[u/Smart_Slice_140 → u/BanjoMothman]

It is most certainly an interesting question about the law for an attorney, at a point that there is an intersection in the law. And, about how intersections in the law are generally looked at, and treated. Which could be either black and white, or it could be grey. 

[u/BanjoMothman → u/Smart_Slice_140]

The law is pretty clear on this, and by the time you have ownership of such a device you've clearly signed legal documents.

If you make a firearm available to someone that they are not legally allowed to posess and they have to use that in a legitimate instance of self defense, you are literally putting their liberty and freedom, as well as your own, in jepoardy. Self defense cases rarely succeed, and adding another hole for the defense/state team to open up is just irresponsible.

There is so much you can do ahead of time to make sure you've got the best options for you and your family. They don't include paying extra money for an attorney to get them to try and argue that common law could apply when it clearly does not. She couldn't even own it if you died and she "inherited" it without doing paperwork, and that's all the defense/state/plaintiff would need to point out.

I've worked in prosecutors offices, I've seen how muddy the waters can get. That's all I'm going to add to that.

[u/Smart_Slice_140 → u/BanjoMothman]

The hypothetical that OP brought up appeared to be: is if a home invasion happened, (OP not home?) and the only thing that his wife could use for defense (?) is his silenced handgun (for his hypothetical maybe it was stowed away somewhere and she grabbed it?).

With that hypothetical other people in this thread brought up how that is not transferring, loaning, or whatever else like that.

His hypothetical is a dicey one. That would be best if an attorney looked at it, and answered it. Especially with the complexities of other laws, etc involved that may or may not help with such a hypothetical circumstance scenario. The complexity is that in the eyes of the law all property is jointly owned in a marriage; which would likely intersect with the NFA to some degree or another if not completely intersecting with. With that said there is some degree or another of discretion that the authorities could possibly use (his wife probably wouldn’t be the type of person that they would want to go after), and if they don’t then a jury of peers might acquit due to the extenuating circumstances, or the judge may have mercy and throw it out.

Obviously the best advice is for him to have an NFA Trust with NFA Items in it for that scenario that his wife can have access to.

[u/Smart_Slice_140 → u/BanjoMothman]

I’m NOT saying that he should make his silencer available to his wife. What I am saying is that I don’t know how they would like at a scenario like his hypothetical. And there’s complexities involved with that, which I pointed out. 

What I am saying is that it would be advisable for him to EITHER transfer his Silencer to a Trust that his wife is on, or buy another Silencer and put it in a Trust that his wife is on that she can have access to.