Questions on Questionable Transfer I Witnessed

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gobsauce

gobsauce

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I was at my LGS being a nuisance as usual, when a man came in, I'll call him "J". His son, I'll call him "B".

J came in saying that his son,B, ordered a firearm, and J was there to pick it up. This immediately sets off a red flag, as I think it's a Straw Purchase.

After some constructive arguing (as in, the man at the counter and I were informing J that this is illegal , but J was certain he'd done this 4 times prior. ), J asked for the owner.

Owner comes in, and says it's okay, because B is military, and that makes it legal for J to pick up B's firearm. B is in San Francisco, out of town at the moment for work.

The owner explains to J that a Straw Purchase is only if J and B are in the same building, and B says " I'm paying for it, but J is doing the 4473". Then the owner handles the 4473.

Is this not a Straw Purchase? Is this actually legal?

I went through some of the rules and all, and could not find and exemptions. The Counter Man and I were privately expressing that this didn't sit well with either of us, and I think our reasoning was valid.

Our reasoning is that B is the one who ordered the firearm, indicating that B paid for it. As such, B should do the paperwork. J did the paperwork, so we believe that this is a Straw Purchase.

Is there something we're missing that makes this legal?
 
gobsauce said:
The owner explains to J that a Straw Purchase is only if J and B are in the same building,
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I'd say the owner is either ignorant of the law or thinks not losing the sale is worth risking federal prison.
ATF says: "In its 1992 FFL Newsletter, ATF explained that a straw purchase occurs when the actual buyer uses another person (“straw purchaser”) to execute the Form 4473 purporting to show that the straw purchaser is the actual purchaser of the firearm." (No mention of where either participant may be standing at the time.)
https://www.atf.gov/firearms/docs/n...ms-licensee-ffl-newsletter-june-2021/download
 
As far as I understand, you can legally purchase a firearm for immediate family (parent, spouse, child), as long as they are legally able to own a firearm. While this is not something specified on the 4473, it is not what the form is intending to weed out.

What you describe happening is a fairly unusual and specific situation, I don't know if 'military' has any input on it. It may well. It kind of sounds like they have done this before.
 
According to J, he's done this three times prior at that LGS.

To clarify, this was a transfer. B had bought a firearm Online , and had it shipped to this LGS. B then had J pick up the firearm up.
 
You can legally buy a firearm for anyone who is not a prohibited person if it's a gift.
The instructions of the 4473, page four: Question 21a Question 21.a. Actual Transferee/Buyer: "For purposes of this form, a person is the actual transferee/buyer if he/she is purchasing the firearm for him/herself or otherwise acquiring the firearm for him/herself. (e.g., redeeming the firearm from pawn, retrieving it from consignment, firearm raffle winner). A person is also the actual transferee/buyer if he/she is legitimately purchasing the firearm as a bona fide gift for a third party. A gift is not bona fide if another person offered or gave the person completing this form money, service(s), or item(s) of value to acquire the firearm for him/her, or if the other person is prohibited by law from receiving or possessing the firearm."
 
Old_Grouch said:
You can legally buy a firearm for anyone who is not a prohibited person if it's a gift.
The instructions of the 4473, page four: Question 21a Question 21.a. Actual Transferee/Buyer: "For purposes of this form, a person is the actual transferee/buyer if he/she is purchasing the firearm for him/herself or otherwise acquiring the firearm for him/herself. (e.g., redeeming the firearm from pawn, retrieving it from consignment, firearm raffle winner). A person is also the actual transferee/buyer if he/she is legitimately purchasing the firearm as a bona fide gift for a third party. A gift is not bona fide if another person offered or gave the person completing this form money, service(s), or item(s) of value to acquire the firearm for him/her, or if the other person is prohibited by law from receiving or possessing the firearm."
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But J didn't buy it, B did. B ordered it online, and had J do the paperwork.
 
Under an old federal circuit court decision, the intent of Congress was solely to prevent a person ineligible to buy a gun to have an eligible person to buy a gun for them.
Since then, it has been clarified that the letter of the law is that the person doing the 4473 (and the BG check) has to be the person buying the gun for their personal use with their personal funds.*
Some people may be operating under the assumption it is still OK to do what "J" did for "B".
It may have been once but it is not now.


____________
*(Legal personal use does include buying a gun as a bona fide gift to a person who the gifter has no reason to believe is ineligible to own or buy a gun themself.)
 
lsudave said:
As far as I understand, you can legally purchase a firearm for immediate family (parent, spouse, child), as long as they are legally able to own a firearm. While this is not something specified on the 4473, it is not what the form is intending to weed out…...
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On what do you base that understanding? It's not accurate -- details matter.

  1. Why would one think that the 4473 was not intended to "weed out" gifts of firearms to immediate family? What does that even mean in this context? What in the 4473, the applicable regulations, the applicable statutes, or any court decisions, could lead one to that conclusion.

    The 4473, on its face, is to weed out transfers of firearms to persons ineligible to possess one -- end of story.

  2. Of course there is nothing illegal about giving a gift of a firearm to anyone, relative or not, eligible to possess one. BUT any transfer of a gun to someone must comply with applicable federal and state law.

    • So if the transferor and transferee are residents of different States, federal law (with narrow exceptions not relevant here) will require that the transfer go through an FFL. There's no exception for gifts to family or anyone else.

    • If the transferor and transferee are residents of the same State, any transfer must still comply with state law. So in States with a universal background check law, some such laws provide exceptions for transfers to certain close relatives. Therefore, state law must be considered.
 
1942bull said:
Unless my brain died before I wrote this it was a straw purchase. The buyer is the person who paid for the gun. The background check must be of the buyer. If someone fills out the 4473 for the buyer and signs it that person is breaking the law. Full stop.
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That's exactly what I thought, there's no exemption period.

B's name is on the gun, and B should do the paperwork. Anyone else does it, that's illegal. Thank you all for setting this straight.

I guess I'll stay away from them now, that just reeks of bad ,bad juju.
 
Military is irrelevant. (scratch that part of the argument)

Outright gift of an otherwise legally-purchased weapon: OK

Using someone else's money (the son ordered/paid) to then fill out paperwork/take possession... and then hand over the weapon to paying person .....

Uuuuuhh.... No.
Classic straw.
 
Frank Ettin said:
On what do you base that understanding? It's not accurate -- details matter.
Click to expand...
It is legal to purchase a firearm from a licensed firearm retailer that you intend to give as a gift. There’s no law that prohibits a gift of a firearm to a relative or friend who lives in your home state. However, whether you purchase a new firearm or want to gift a gun you already own, keep in mind that some states (California, Colorado, Connecticut, Delaware, New York, Oregon, Rhode Island, Washington State) and the District of Columbia require you to transfer a firearm through a local licensed firearm retailer so an instant background check will be performed to make sure the recipient is not legally prohibited from owning the gun. Maryland and Pennsylvania require a background check for a private-party transfer of a handgun.
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you can never under any circumstances transfer a firearm to someone you know — or have reasonable cause to believe — legally can’t own one. That’s a federal felony, so be careful. Pre-January 1, 1899 antique firearms are generally exempt but be safe and check with your retailer or local law enforcement before you hand over your prized possession.

The next question is whether the person can own the gifted firearm where he or she lives. With more than 20,000 different gun laws on the books, even the kinds of firearms that law-abiding citizens can own vary from place to place; for example, juveniles (under age 18), generally speaking, are precluded by law from possessing a handgun, and some states restrict certain types of firearms and magazine sizes. Check out the ATF website for an overview of local laws or contact your state’s attorney general’s office.
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https://www.nssf.org/articles/giving-a-firearm-as-a-gift-some-reminders-from-nssf/

OP is in Texas, not one of the states that require a background check for a gift or private transfer.
I live in another state that does not require background checks for private transfer.

I do not pretend to have stayed on top of every change in every law regarding this. I suppose if you want to get technical, B and J could have agreed the purchase was a gift from father to son, and the son determined that he should reimburse his father for the purchase (because he loves his dad, or dad provided a service he felt was worth that cost, etc). To simplify the matter, it was done as a potential straw purchase.

Dad went to pick up his son's firearm, so it wasn't sitting in a store for an extended period of time.

Here's a question= is there a way to legally expedite this? Not just for firearms, but other major purchases (car, $2000 tv, etc)? Assign POA or something to that effect? So that someone in the military, active duty or deployed etc, can take advantage of an online deal, but have the gun shipped to his family for safe-keeping? We're going with the understanding that all parties involved would legally be able to possess such weapons.
 
ATF Form 4473v(5300.a9) is quite clear. Whoever buys the firearm, that is pays for it, is the buyer who must complete and sign the form. This is the language on the 4473.

Are you the actual transferee/buyer of the firearm(s) listed on this form and any continuation sheet(s) (ATF Form 5300.9A)?
Warning: You are not the actual transferee/buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual transferee/buyer, the licensee cannot transfer the firearm(s) to you.
Click to expand...
 
lsudave said:
....I do not pretend to have stayed on top of every change in every law regarding this.....
Click to expand...

If you don't have a solid basis for your opinion on a matter of law, don't express your opinion. A mistake on a question of law can have devastating consequences. And in law a solid basis would be applicable legal authority:
...Primary authorities are the rules of law that are binding upon the courts, government, and individuals. Examples are statutes, regulations, court orders, and court decisions. They are generated by legislatures, courts, and administrative agencies. Secondary authorities are commentaries on the law that do not have binding effect but aid in explaining what the law is or should be....
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lsudave said:
....B and J could have agreed the purchase was a gift from father to son, and the son determined that he should reimburse his father for the purchase (because he loves his dad, or dad provided a service he felt was worth that cost, etc)....
Click to expand...

That could certainly be prosecuted as a straw purchase.

lsudave said:
.... To simplify the matter, it was done as a potential straw purchase.....
Click to expand...

And so the father, son, and FFL committed a federal crime to simplify matters. Swell, but it's still a federal crime.

NOTE: For more extensive discussions of straw purchases, see this thread and this thread.

The reason the transaction described by the OP is a straw purchase is that the father would have had to claim on the 4473 to be the actual purchaser of the gun, but he was not.

lsudave said:
.... Here's a question= is there a way to legally expedite this? Not just for firearms, but other major purchases ...
Click to expand...

That question is meaningless. The legal issues here arises because we're talking about guns, and transfers of guns are heavily regulated.
 
What this clown did was a felony and what the owner allowed was a felony. They both should face the wrath of the ATF.
 
Alright well, thank you all for your valuable input. I was pretty sure the owner was being a troglodyte. Worst part is, he was so certain he did the legal thing because he'll "brag" about spending hours on the phone with the ATF to make he knows everything to a letter. I don't want anything to do with them anymore, which is a shame since I'm on a first name basis with everyone who works there.

Anyways, Mods, feel free to close this thread.
 
Funny story, I was deployed and 2019 and 2020 with my Guard unit. I was in the market for a good No4Mk1 Enfield when I got back, and I saw several pop up on my local Armslist and on Gunbroker that were seemingly amazing deals. I briefly toyed with having it shipped to an FFL I know, but he would have had to hold it for months and I didn´t know/trust him that well. On top of the fact that if it was a lemon any potential inspection/return time would be long past. I then saw one on armlist I briefly, and I mean about 5 seconds briefly, thought of having my son pick up for me. Then I realized he knew nothing about WWII battle rifles (he IS up to speed on your latest Glock or AR gizmo) and could not correctly appraise condition. I also realize that it would be illegal, even though no one would ever know with a private sell. My son and I are both cops, and it´s not something I want to have to knowingly explain nor for him to if we ever decide to go to another agency and interview. On top of it, it just violates federal law so we cannot do it.

I ever so briefly thought about trying this... err well sending my son to try it. Then I stopped as I realized it wasn´t legit. I got my Enfield anyway, albeit at an inflated price as things were already starting to go nuts in August/September 2020. But it was FTR´d and probably shot a handful of times since then, obviously re-barreled by Fazarkely, and shoots like an absolute dream. It is easily worth what I paid, and chances are I am happier paying what I did for an awesome example of a pristine enfield than I would have been picking up a shot out rifle for $350.00.

OP, by the letter of the law this was clearly a straw purchase. While I feel there maybe should be a deployed or out of state military ¨exception," as I´ve been there, at the end of the day there is not. If the dad wanted to buy it as a gift for his son, it would´ve been ok if it was a bona fide gift. Otherwise, straw purchase.
 
pect
5whiskey said:
While I feel there maybe should be a deployed or out of state military ¨exception," as I´ve been there....
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Why?
If "inconvenience" is allowed as an exception, it should be allowed for all.
While we don't like the GCA '68, we have to abide by it. That federal law requires the actual buyer/transferee to complete the Form 4473 and background check. Allowing exemptions to that specific requirement would gut the intent of Congress. ATF regulations are supposed to reflect that intent.

While it sounds great at first glance, imagine the required additional documentation that ATF would ask of your son:
-Birth certificate, showing your name as father.
-copies of your military orders, showing your deployment or posting out of state
-affidavit that your son is allowed to pick up the firearm on your behalf. Probably need to be signed by both of you.
It's entirely possible for the father to be a prohibited person and currently serving in the US military. Since the father is the actual buyer that becomes a problem.

ATF's view on the buyers state of residence is pretty liberal and makes an allowance for active duty military who may be stationed in a different state than where he actually resides.
This means if you are stationed in Oklahoma, but reside in Texas........for the purposes of acquiring firearms you are a resident of both states.
 
5whiskey said:
.... I briefly toyed with having it shipped to an FFL I know, but he would have had to hold it for months and I didn´t know/trust him that well. .
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Why do you not trust him?

I have no problem holding transfers for customers who are deployed or out of town for months....but they darn well better let me know before it arrives. I don't want a fifty pound Barrett w/massive Pelican case arriving with no space in my safes. I don't charge extra for that type of storage.

***I AM charging storage fees on the little Trailblazer Lifecard .22 thats been here since March and the Palmetto AK thats been here since August.....both buyers are within ten miles and have shown no interest in picking up their guns. :cuss:
 
There is a reason B had J do the paperwork. For some reason B is not eligible to purchase. This is illegal.
 
I briefly toyed with having it shipped to an FFL I know, but he would have had to hold it for months and I didn´t know/trust him that well.
Click to expand...

You don’t want to mess with NFA stuff at all then. Your stuff may sit at your dealer for the better part of a year waiting on a form 4.
 
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