Is this OK or am I flirting with trouble...


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Quoheleth
May 13, 2010, 10:09 AM
I'm trying to sell a pistol and have received an offer from an individual across the state.

He has a friend who lives nearby who will be traveling to see him in the next few weeks.

He wants to know if I would sell him the pistol but his friend pick it up for him.

I would ask for a copy of his DL and/or CHL, a copy of the DL/CHL of the individual picking it up, and the bill of sale to be in the buyer's name.

Is that cutting a little too close to a straw purchase? Am I better off insisting on FFL/FFL transfer?

Q

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stu454
May 13, 2010, 10:27 AM
I don't like it, but they might be overcautious.

I'd err on the side of caution and only transfer a weapon to the actual person who is buying it.

ambidextrous1
May 13, 2010, 10:31 AM
That wouldn't be a face-to-face transaction.

Don't risk more than you're willing to lose.:uhoh:

Monster Zero
May 13, 2010, 10:45 AM
"He wants to know if I would sell him the pistol but his friend pick it up for him. "

WARNING, WILL ROBINSON!! WARNING!! WARNING!!!

Sell it to someone else.

Better yet, just keep it.

ny32182
May 13, 2010, 10:46 AM
It doesn't sound like it is "close to" a straw purchase; it sounds like a textbook example of a straw purchase to me: You are 100% sure that the buyer is buying it for someone else. I would not do it.

CoRoMo
May 13, 2010, 10:48 AM
Hmmmm. Interesting. You might want to PM a mod and have them move this to Legal so that it'll get the right minds in on it. It is a legal question after all. My first reaction is that this would be a straw purchase, end of story. But then I'm not so certain though.

For those of you who are so quickly telling the OP to bail on the transaction, it would be nice to see you cite some of the US Code to back up your knee-jerk reactions. If you don't know, just say so.

The traveling friend is not buying the gun, he's simply the courier that will deliver it to the purchaser. You just need to get the money from the end buyer, and if you must, you could get his information for some sort of bill of sale. But getting all the personal information from the courier is overkill and might not be necessary.

IANAL, but I wish NavyLT was reading this thread.

Quoheleth
May 13, 2010, 10:49 AM
THis brings to mind another question - hypothetical, at this point

WHat happens if I were to send the gun to his FFL but he fails the NICS check?

Does he get another chance (I suppose it could be a clerical error on their end)?

Obviously he gets his money back if the NICS check is failed again.
What are the processes through which I would have to go to get my gun back - pay his FFL to ship it back to my FFL where I get to pay him to transfer it back to me?

I had never thought this through...but such a failure could be an expensive proposition.

Anyone ever have this happen before?

Q

NavyLCDR
May 13, 2010, 10:50 AM
It is perfectly legal to transfer the gun to any other Texas resident who is not prohibited. The only thing you, as a private seller, has to worry about is if you knowingly conspire to provide the gun to a prohibited person. Let's say you KNOW (or have reasonable belief) the person to whom the gun is going to end up with is prohibited. But you transfer the gun to a non-prohibited person (knowing they are going to give it to the prohibited person) thinking that you will be off the hook that way. Then you would be in trouble.

If you have no knowledge or reason to believe that either person in your transaction chain is prohibited from possessing a firearm then you are fine. There is no straw purchase in private sales. Straw purchase only applies to sales conducted by FFLs when a form 4473 is completed. The law that applies to private sales is providing a gun to a prohibited person. Two entirely different actions that may each occur by themselves separate from each other, or may be related to each other - but again - the straw purchase part only applies to FFLs and the form 4473.

BTW, the statute that is violated in a straw purchase is 18 USC 922(a)(6):
http://www.law.cornell.edu/uscode/718/usc_sec_18_00000922----000-.html
(a) It shall be unlawful—
(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;

As you can see, it only applies to FFL sales.

Look at it this way, would it be a concern if you were shipping the gun to him via FEDEX or UPS? There is no difference. The guy transporting the gun is no different than a UPS or a FEDEX driver.

IANAL, but I wish NavyLT was reading this thread.
You didn't really think I would pass this up did you? :-) IANAL either.

ny32182
May 13, 2010, 10:51 AM
Someone would have to pay return shipping, but his FFL could send it straight to your door; you would not need to involve your local dealer in any way to get it back.

rbernie
May 13, 2010, 10:54 AM
There is no straw purchase in private sales.This bears repeating.

Your job is to make sure that YOU can honestly state that you had no reason to believe that the buyer is a prohibited person. That's IT. If you ask him flatly if he is a prohibited person (as I do) and he states that he is not, then you have no further legal culpability. The questions over exchanging money and arranging for transport are not legal issues for in-state private sales.

WHat happens if I were to send the gun to his FFL but he fails the NICS check?

Does he get another chance (I suppose it could be a clerical error on their end)?

Obviously he gets his money back.
What are the processes through which I would have to go to get my gun back - pay his FFL to ship it back to my FFL where I get to pay him to transfer it back to me?
Normally, the shipping fees are not refunded if the buyer fails NICS. That means that you would get covered for shipping to the FFL (by not refunding that portion of the buyer's payment) but would have to eat the return shipping.

texas bulldog
May 13, 2010, 10:56 AM
Texas ain't that big. Just go deliver it.

Seriously, though...this seems a little sketchy to me. I'm not sure I'd take that risk. I'd almost rather the friend just be the buyer. What he does from there is on him. But since you know full well it's not going to him (and have now made an internet record of it to boot), I really think the FFL is the safest route.

Is it likely you'd have a problem doing what you describe? No, probably not. But is it worth the risk of possible jail time, fines, and losing your RKBA for life? Hell no.

NavyLCDR
May 13, 2010, 11:06 AM
What are the processes through which I would have to go to get my gun back - pay his FFL to ship it back to my FFL where I get to pay him to transfer it back to me?

If you send the gun to an FFL, and the buyer fails the NICS check, the buyer can appeal the NICS decision, but the process takes months. So, either the FFL can hold the gun until the appeal process is done; or, as you stated, you would have to obtain the gun back from an FFL after doing a 4473, NICS check, etc. Now, you could have the FFL ship the gun directly to you (if the FFL was in the same state), but you would have to comply with 18 USC 922 (c) - good luck finding an FFL willing to do this:
(c) In any case not otherwise prohibited by this chapter, a licensed importer, licensed manufacturer, or licensed dealer may sell a firearm to a person who does not appear in person at the licensee’s business premises (other than another licensed importer, manufacturer, or dealer) only if—
(1) the transferee submits to the transferor a sworn statement in the following form:
“Subject to penalties provided by law, I swear that, in the case of any firearm other than a shotgun or a rifle, I am twenty-one years or more of age, or that, in the case of a shotgun or a rifle, I am eighteen years or more of age; that I am not prohibited by the provisions of chapter 44 of title 18, United States Code, from receiving a firearm in interstate or foreign commerce; and that my receipt of this firearm will not be in violation of any statute of the State and published ordinance applicable to the locality in which I reside. Further, the true title, name, and address of the principal law enforcement officer of the locality to which the firearm will be delivered are XXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXX
Signature XXXXXXXXX Date XXXX.”
and containing blank spaces for the attachment of a true copy of any permit or other information required pursuant to such statute or published ordinance;
(2) the transferor has, prior to the shipment or delivery of the firearm, forwarded by registered or certified mail (return receipt requested) a copy of the sworn statement, together with a description of the firearm, in a form prescribed by the Attorney General, to the chief law enforcement officer of the transferee’s place of residence, and has received a return receipt evidencing delivery of the statement or has had the statement returned due to the refusal of the named addressee to accept such letter in accordance with United States Post Office Department regulations; and
(3) the transferor has delayed shipment or delivery for a period of at least seven days following receipt of the notification of the acceptance or refusal of delivery of the statement.
A copy of the sworn statement and a copy of the notification to the local law enforcement officer, together with evidence of receipt or rejection of that notification shall be retained by the licensee as a part of the records required to be kept under section 923 (g).

ClayInTX
May 13, 2010, 11:22 AM
If you have no concerns about it you would not have asked the question here.

NavyLCDR
May 13, 2010, 11:22 AM
Someone would have to pay return shipping, but his FFL could send it straight to your door; you would not need to involve your local dealer in any way to get it back.

The FFL would have to comply with 18 USC 922 (c) as posted above.

From page 182-183 of the Federal Firearms Regulations Reference Guide:
(F15) Must a dealer record firearms
received on consignment?

Yes. Firearms received for sale on
consignment must be entered in the
dealer's "bound book."

Sales of the firearms are handled in
the same manner as other firearm
sales. Return of the remaining fire-
arms by the licensee to the consignor
is entered in the dealer's disposition
record. An ATF Form 4473 and a
NICS check must be completed.

ny32182
May 13, 2010, 11:28 AM
So are you saying this is a different situation than when you ship a gun off to an FFL (in my case for some kind of work to be done) and they return it straight to your door? I've done that plenty of times with never a question asked by the receiving dealer and never had another transfer done on the return trip.

CoRoMo
May 13, 2010, 11:37 AM
Yes, transferring the ownership of a gun is different than sending it over to the smith to be tuned. When you send the gun in for repair, it is always your property. When you sell the gun to someone else who then fails a NICS, it isn't your property until it is transferred back to you. In order for the licensee to transfer it out of his bound book to an unlicensed individual, he's got to go through the requirements of §478.102.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr;sid=c58a59c9bf5f18fe38c581dd9e445ed7;rgn=div5;view=text;node=27%3A3.0.1.2.3;idno=27;cc=ecfr#27:3.0.1.2.3.6.1.12

rbernie
May 13, 2010, 11:42 AM
So are you saying this is a different situation than when you ship a gun off to an FFL (in my case for some kind of work to be done) and they return it straight to your door? I've done that plenty of times with never a question asked by the receiving dealer and never had another transfer done on the return trip.You're talking about shipping for repair (presumably to a FFL Type 1). The ATF FAQ quotes is for when the FFL is actually conducting the sale and (in the case of a consignment) is collecting the payment.

Bubbles
May 13, 2010, 11:57 AM
Should the buyer fail NICS, an alternative to shipping it back to the seller is to have the FFL consign the gun for him.

Either way, the buyer is going to be out some coin for the transfer fee, shipping fees, any consignment fees, etc.

NavyLCDR
May 13, 2010, 12:26 PM
So are you saying this is a different situation than when you ship a gun off to an FFL (in my case for some kind of work to be done) and they return it straight to your door? I've done that plenty of times with never a question asked by the receiving dealer and never had another transfer done on the return trip.

Yep. Even, let's say, I pawn a gun, and I go back to redeem my own, exact same gun, that I pawned - I have to do the 4473 and NICS check to get it back:

27 CFR 178.124: FIREARMS
TRANSACTION RECORD
(Also 178.125, 178.126a)
Certain reporting and recordkeeping
requirements of pawnbrokers
are explained.
ATF Rul. 76-15
The regulations do not require that
a pawnbroker execute Form 4473
when a firearm is pledged for a loan.
However, he must record the receipt
thereof in his permanent acquisition
and disposition record as required by
27 CFR 178.125(e). At the time a
firearm is redeemed by a nonlicensee
pledgor, Form 4473 must be executed
and the appropriate entry made in the
permanent acquisition and disposition
record. Although a redemption is not
considered a sale, it is a disposition
for purposes of 27 CFR 178.124(a),
178.125(e), and 178.126a. See Huddleston
v. United States, 415 U.S.
814 (1974).

Snowbandit
May 13, 2010, 12:34 PM
Assuming the gun is paid for when you ship it to his FFL you,re finished with the transaction at that point. If the buyer, who is now the owner, fails the background check he can't pick the gun up, or physically posses it, but he is still the owner. Suggest he arrange with his FFL to consign the gun for sale to someone else or pay to ship the gun to another FFL who will consign it but the original owner is out of the picture. He sold the gun legally and has no further obligation.

Quoheleth
May 13, 2010, 12:48 PM
Just found out the gentleman is a Texas CHL holder, so a lot of the issues regarding his background have been already resolved.

Q

ambidextrous1
May 13, 2010, 12:53 PM
Please be aware that firearm sales in Texas are receiving heightened scrutiny from BATFE because of concerns about the firearms ending up in Mexico.

Here's a safer option: Why don't you sell the firearm to the local person who was to pick it up and deliver it to the person who wants it? You would meet with him face-to-face, satisfy yourself that he was legally qualified to purchase a firearm, and transact the sale. You're home free, and not responsible with what the buyer does with what is now his legally-owned property.

No, I'm not a lawyer; haven't seen any posts by a lawyer in this thread, either; but I'm a free man, and desire to stay that way. I have described how I would deal with the situation. In any event, be sure of what you are doing.

ny32182
May 13, 2010, 12:58 PM
It sounds like a question of when ownership changes; I was thinking the buyer didn't own it before completing the transfer, but I guess not. Doesn't make the least bit of sense to me, but I guess gun laws don't have to.

How can the FFL know or be expected to know what is going on with the money behind the scenes? All he knows is, he received a gun that he didn't transfer, and now the owner wants it back. From his perspective, how can that be different than if he received a gun, polished the trigger parts, and then sent it back to the same owner?

If you guys who really know the law say it is different, I'll stand corrected and take your word for it.

earlthegoat2
May 13, 2010, 01:47 PM
I guess I do not see it as any different than selling to the original purchaser and then having them straw it to a felon friend of theirs. Or just unknowingly selling it to a felon for that matter.

I would still avoid this transaction as you are selling it to a person and not actually giving it to them so you have knowingly entered the gray area and could be held culpable.

paul
May 13, 2010, 01:53 PM
Please correct me if I'm wrong, but in Texas, I'm not convinced that you need an FFL involved in any way.
For in-state sales, your biggest problem is the shipper.



p

rbernie
May 13, 2010, 01:54 PM
you are selling it to a person and not actually giving it to them so you have knowingly entered the gray area and could be held culpable. How? What laws will have been broken?

Do you have any examples where this has happened?

earlthegoat2
May 13, 2010, 02:09 PM
I would still avoid this transaction as you are selling it to a person and not actually giving it to them so you have knowingly entered the gray area and could be held culpable.

If you would quote my whole statement you will see I have worded it in the form of an opinion.

By saying could be held culpable I mean that I have no idea what a jury or prosecutor is going to decide looking at it from the standpoint of hyperanalyzing every step that was taken in the transaction and even though the letter of the law was followed there were indicators in place that could have raised some red flags.

It is like buying merchandise for prices below market value. Maybe it is stolen. Maybe not. Ask no questions and hand over your money and book. Some would say a law was broken and some would say technically no law was broken. Depending on the jurisdiction and the amount of money you paid you may or may not have broken the law. It does not mean you just bought stolen merchandise. THat is for someone else to prove.

Bottom line, I (as in ME) would not make the transaction.

Anyway try to understand the point as I am not tuning back into this thread. I dont spend much time in the Legal section anyway and I always hesitate to post. Maybe I will hesitate harder next time.

CoRoMo
May 13, 2010, 02:16 PM
What charges would bring you in front of a jury or prosecutor?
You don't need to run away, just help us make sense of what you are posting here.

Oyeboten
May 13, 2010, 02:31 PM
If the would be purchaser submitted to the seller, an avadavit attesting to his being legally fit to own the arm, and, that the currier is only a trusted currier?

NavyLCDR
May 13, 2010, 02:41 PM
Assuming the gun is paid for when you ship it to his FFL you,re finished with the transaction at that point. If the buyer, who is now the owner, fails the background check he can't pick the gun up, or physically posses it, but he is still the owner. Suggest he arrange with his FFL to consign the gun for sale to someone else or pay to ship the gun to another FFL who will consign it but the original owner is out of the picture. He sold the gun legally and has no further obligation.

Actually, that is the correct answer to what happens if the gun is shipped to an FFL and the buyer does not pass the NICS check! I stand corrected... Thank you!

NavyLCDR
May 13, 2010, 02:44 PM
I guess I do not see it as any different than selling to the original purchaser and then having them straw it to a felon friend of theirs. Or just unknowingly selling it to a felon for that matter.

I would still avoid this transaction as you are selling it to a person and not actually giving it to them so you have knowingly entered the gray area and could be held culpable.

And I guess I don't see it as any different then selling it to the purchaser and having FEDEX deliver the gun to them. The person in the middle is only a courier, just like FEDEX would be, or a private courier service would be, or any other shipping company would be. Shipments of firearms between persons residing in the same state are perfectly legal.

mgkdrgn
May 13, 2010, 03:59 PM
It would be a "straw purchase" ... if you were an FFL.

However, since you are not, you are not legally obligated to do much of anything in an in-state purchase. (at elast not via federal law, your state laws may be entierly different)

If you are concerned about it, ship it to an FFL close to the buyer and have him complete the transaction. However, don't be suprised of the extra expense of doing that scotches the deal.

StarDust1
May 13, 2010, 04:29 PM
A private party sale to a person that you believe, or know, to NOT be barred by law from purchasing is a green light in my state, yours?
A red flag would be DOUBT of any kind! Good luck....

GunsBeerFreedom
May 13, 2010, 05:23 PM
To me, someone who is not a lawyer, the problem is not whether you are certain of the buyers background or not, but the issue of private sales across state lines, which is to my understanding, illegal without a FFL involved.

CoRoMo
May 13, 2010, 05:26 PM
This thread has nothing to do with private sales across state lines.

Sebastian the Ibis
May 13, 2010, 06:07 PM
oops

miestro_jerry
May 13, 2010, 06:12 PM
These days, I try to sell at gun shows and to dealers. At the gunshow I want to see a drivers license to make sure the person is of legal age and if it a 35 year old lady, she will probably smile at you for asking if she is old enough.

Jerry

Quoheleth
May 13, 2010, 06:19 PM
Both I and the interested party are in TX. I checked with my local FFL guy. He won't even waste his time to send it for me. He told me if I am worried about it, send it directly to the interested party's FFL. He said even if he had USPS deliver the gun, that flat-rate box plus insurance plus his fee would almost be the same as UPS or FEDEX.

I'm on the east side of Houston. He's north of Dallas. Someone said, "Why not just deliver it." Well, that's a day's vacation lost in driving plus fuel. Even if he meets me half-way, it's still a blown day and still most of a tank of gas.

The interested party is a Texas CHL holder, so he has undergone a series of background checks.

I told him, in brief:
1. He had to be able to buy & own a handgun in TX (CHL = check)
2. He had to send me a copy of the CHL for my review, to be returned to him with the gun
3. His buddy had to present a copy of his DL or CHL for my records and sign a receipt that he was taking possession as courier for transport from me to purchasing individual.
4. A signed bill of sale by both he and me.

I think he understood what I am doing (CYA). Now, he has to see if his buddy is willing to be the courier for us.

Q

CoRoMo
May 13, 2010, 06:24 PM
You are certainly going far above and well beyond what is necessary. If they are willing to jump through all of your required hoops, it sounds like you've made a deal.

NotSoFast
May 13, 2010, 06:33 PM
I don't like the sound of that.

I'm for shipping it to his local FFL and let them do the checks for you. You are far safer and your gun doesn't get into the wrong hands that way.

NavyLCDR
May 13, 2010, 07:04 PM
I don't like the sound of that.

I'm for shipping it to his local FFL and let them do the checks for you. You are far safer and your gun doesn't get into the wrong hands that way.

A perfect illustration of the difference between California and the free United States!

blackwalnut
May 13, 2010, 07:05 PM
It is better to err on the side of caution I would stay away from this transaction. You will find another buyer just be patient. Let me guess this potential sale is almost too good to be true. In other words they are probably not haggling too much and the person told you I cant find one of these in my area. You are probably scratching your head why cant you find one of these (fill in the blank with the name of a common firearm) that everyone sells. Stay away. Be like the deer in the woods that stops and all of a sudden walks away in the opposite direction from your stand. If you are hesitant something probably stinks about this. You dont need an attorney for this your guts are telling you its no good.

NavyLCDR
May 13, 2010, 07:10 PM
Again, I ask... what the hell is the difference in giving the gun to the buyer's chosen driver and dropping the gun off at UPS or Lone Star Overnight for shipment?

miestro_jerry
May 13, 2010, 07:29 PM
For all of the effort on doing this transaction, I could have sold it somewhere else by now.

Jerry

Sam1911
May 13, 2010, 07:44 PM
This is getting a bit tiresome. It is legal, according to all we've been told. All due diligence (and far more) has been done.

If the OP is convinced of the law, he should proceed.

If he has personal red flags he hasn't shared, he should go with his gut.

We don't need a poll to ask how many are still too trepidatious to follow the letter of the law.

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