Posted by jhingarat21 on 1st Sep 2015
GUN-RIGHTS DEFENDER OUTSMARTS BUREAUCRATS
This is the first in a two-part series about estate-planning attorney Dennis Brislawn’s creation of “gun trusts” to protect Second Amendment rights. This first article explains how Brislawn developed his “gun trust system” and began to market his innovative legal approach to complex state and federal firearms laws.
NEW YORK – When attorney Dennis Brislawn unexpectedly came across an innovative way to protect Second Amendment firearm rights, he didn’t waste time.
Brislawn was in a gun shop in Seattle, just across Lake Washington from his Bellevue office, when a customer uttered two words that grabbed his attention: “gun trust.”
“I whipped my head around,” Brislawn told WND in an interview, “and I asked him, ‘What’s a gun trust?’”
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“Next thing I know this guy in the gun store explained, ‘Well, I want to buy a silencer which is federally registered. The problem is that individuals must apply through their local sheriff or police chief and can get denied for any reason,’” Brislawn recalled the man saying.
The customer explained that using a trust bypasses local law enforcement and goes straight to the federal Bureau of Alcohol, Tobacco, and Firearms.
“At that point I knew two things; I wanted a silencer and a gun trust for myself,” Brislawn said.
The next week, he was scheduled to give a talk in Virginia for the National Rifle Association on charitable estate planning and planning for firearms, so he knew he had to get to work.
“Within a month, I had Gun Docx Version 1.0 drafted, with plans to make it into a system for attorneys to use,” he said.
“I created a slideshow for gun owners to explain the issues and the benefits of gun-trust planning in avoiding what I started calling ‘accidental felonies.’”
Brislawn emphasized that firearms possession and transfer done incorrectly risks criminal charges.
“And, I was thinking about the 80 to 100 million gun owners out there that might want to know about what I was learning and doing,” he said.
The conversation in the gun shop started a project that has transformed Brislawn’s life.
“On that day there was no guidebook to follow, no class to attend, no resource base to turn to about how this all worked,” he said. “But several friends and I had created trust-attorney software systems for the professional market over the last two decades, and I was confident that I could create a quality gun-trust system that did not exist anywhere.”
Gun Docx: The first clients
Brislawn drafted his first 200 gun trusts for clients who wanted silencers under a new Washington law permitting their use.
“The gun trusts I drafted were submitted to ATF for approval, and about six months went by,” he said. “Then, all of a sudden one, a small flood of gun trusts got kicked back to me by ATF for confusion about the name of the trust.”
Brislawn discovered the ATF has a naming requirement that differs from the way estate attorneys typically name conventional trust documents.
“Under Title II of the NFA, the trust is actually the person,” Brislawn explained. “The name of the trust alone without any other descriptive information is what ATF must see.”
Common trust practice, Brislawn explained, is to state both an informal name, such as “John Smith Gun Trust,” and a more formal name, such as “John Smith, Trustee, or his successors, of the John Smith Gun Trust, dated 1 May 2012, and any amendments thereto.” The formal trust name is commonly used or even required to title assets such as banks and investment accounts, real estate and other assets in the trust.
“I got pretty depressed and wondered how to fix it,” he continued. “I had worked hard on this project, and my concern was about how this would affect my gun owners, that they would not understand.
“That’s not what happened, though, and, best of all, we were able to work out an efficient way to correct the problem by asking for help.”
Brislawn immediately reached out to the National Firearms Branch (NFA) of the ATF in Martinsburg, West Virginia, described the scope of the problem and simply asked for their help.
“The chief of the examinations section stepped in, a former Marine who proved to be an awesome professional and nice guy with total customer-service focus,” Brislawn recalled. “He invited me to come for a working visit to NFA Branch with him and his team.”
Brislawn took up the chief on the offer and flew down to meet the NFA branch director and then the chief and a team that included a senior state examiner and an ATF attorney for the branch.
“We spent a few hours reviewing trust language, concepts, issues, made corrections and created a process to fix things, which I went home and did,” he said.
“They were thrilled to talk to a practitioner and get focus on their issues with gun trusts, and I was rewarded with a tour of the facility. I promised to get the word out to other lawyers. It was clear to me that NFA Branch folks appreciated the chance to help gun owners like you and me to understand and comply with the law.”
Brislawn credits much of his success to his decision to go straight to the regulators and ask for help.
“I said to the ATF guys, ‘We’re trying to do this the right way and we need some help,’” he explained. “We got what we needed from NFA Branch. As I left, the section chief said again, ‘We are here to help gun owners do it right.’
“I learned right there the value of having open dialogue with the regulators on gun law,” Brislawn said.
Back at home in Washington state, Brislawn’s NW Gun Law Group reached out to gun-shop and gun-trust owners, told them what happened with the ATF and then set about to adjust every gun trust he had written, without charge.
“Our gun-trust owners appreciated our efforts and thanked us for having their backs,” he said. “And, from then on, I have done my best to share all lessons learned in this complex area with gun owners we serve.”
Brislawn also is dedicated to teaching gun-trust law to other attorneys.
“To date I have taught both online and live courses in gun-trust drafting to hundreds of attorneys around the country,” he said. “I plan to do this for the rest of my life, as it is a fascinating and complex area of law.”
Gun-trust planning gives a person a way to own and transfer firearms without breaking the law, Brislawn told WND.
Before creating Gun Docx, Brislawn had considered using a variety of other legal instruments, including partnerships, corporations and limited liability corporations, or LLCs.
“I concluded that for most private-gun collections they were the wrong tools and that a trust remained as the preferred solution for gun owners,” he explained.
“Why?” he asked rhetorically. “Most of us want to ‘share’ firearms with those with whom it’s lawful to do so. But this is
technically a ‘transfer’ that can be an issue under federal and/or state law. Corporate- or partnership-owned firearms are not properly shared with non-officers, non-partners such as a friend. What legal relationship does a friend have to the corporation or partnership that owns firearms? None, and that’s the problem.”
Brislawn illustrated the point with a story a gun owner told him at a breakfast he attended with silencer enthusiasts,.
The gun owner, Brislawn explained, had created an online corporation to make and possess NFA and other firearms.
Then one day the man was approached by a forest ranger who saw his AR-equipped silencer.
“Yep, a ranger with a gun, badge and a Smokey Bear hat showed up to point at the AR-equipped silencer and ask, ‘Is that yours?’” Brislawn said.
“When the gentleman affirmed he was the owner, the forest-ranger officer asked, ‘Where is your Form 4?’”
Brislawn related that the man expressed surprise, since most people, even law enforcement officers, do not know anything about silencers or Title II of the Gun Control Act.
“The forest ranger, however, knew the law,” he continued. “So the gun owner produced the Form 4, which named the entity, a corporation, as owner of the silencer.”
For the next 45 minutes, Brislawn related, the gun owner tore his car and bags apart to find something that would link him to the corporation.
“She wanted to know why I had legal authority to possess corporate property.” Brislawn continued. “What would have happened if one of his friends was watching the firearms while he went to the local store for ice? I doubt that friend could prove he was an employee of ‘Billy Bob Corporation.’”
Brislawn pointed out that the moral of this story is that a well-drafted gun trust would have handled this without fuss by documenting the gun owner and also his friend as trustee-beneficiaries. Depending on state law, each would have the legal power to both possess and enjoy trust property.
Brislawn is a partner in the Private Client Law Group at Oseran Hahn, P.S. in Bellevue, Washington. He is licensed to practice in Washington, Oregon and Alaska, admitted to the federal courts and practices before the IRS. With more than 26 years of legal experience, he is nationally recognized as one of WealthCounsel, LLC’s legal systems architects and most recently as the creator of the Gun Docx Trust system.
He is a founding member of WealthCounsel, LLC, where he has authored or coauthored numerous systems and professional presentations such as “Gun Trusts, How Not to Shoot Yourself in the Foot”; “Drafting Gun Trusts” (2011-2015 WealthCounsel, National Business Institute, MyLawCLE, Lorman, state bars and attorney associations); “Probate: Beyond the Basics” (2007 National Business Institute, Inc.); “Asset Protection Strategies for Washington Physicians” (2006 National Business Institute, Inc.); and is a coauthor of WealthCounsel’s “Settlement Counsel, Family Limited Partnership, LLC, and Living Trust Compendia.”
He is currently a team member working with Washington’s Conservation Commission and Office of Farmland Preservation and the Washington State Bar developing programs focused on helping specialty crop growers and family farms with succession planning.
Brislawn is a recipient of the Martindale Hubbell AV Peer Review Rating, ranking him at the top of his profession for ethical standards and professional excellence. He rated a “10,” the highest rating on AVVO, and has been recognized for excellence in a number of publications.
He graduated from Gonzaga University with honors and from the University of Washington School Of Law following his active duty service in the U.S. Army. Brislawn received several U.S. and foreign decorations and awards while in the service, notably Airborne-Ranger, French Army Commando and Expert Infantryman qualifications.