Does out of state seller have to be present at FFL?

[docnyt]

OK THR gurus, please educate me

If I were to purchase or store a firearm from a seller from another state, with him driving to my home, does he have to be physically present at my home state's FFL place of business for the transaction, or can he leave the firearm with me in locked cases and I can bring it to my FFL?

It's an unusual situation that doesn't seem to be answered on the ATF FAQ's. I've had an out of state seller send to my FFL but I've never taken possession prior to doing paperwork.

As it is, my friend would like to store the firearm at my place safely (temporarily) so I will either store it in my safe or outright purchase and then sell it back to him at a future date.

Thanks in advance.

 

[allaroundhunter]

Okay, are you actually buying it from him, or are you just helping him by storing it?

 

[tyeo098]

You cannot take possession of it.

So he would need to be in possession of the firearm until the 4473 is completed.

So... yes, he needs to be there.

 

[docnyt]

You cannot take possession of it.

So he would need to be in possession of the firearm until the 4473 is completed.

So... yes, he needs to be there.

allaroundhunter-

Not sure if I'm buying or not. Depends on how long he plans to keep it in storage.

tyeo098-

Just planning on logistics of it so that we won't get stuck without access to an FFL, for example if he arrives at night. Thanks.

 

[docnyt]

I guess an implied question would be, what constitutes possession? Hypothetically if a seller leaves a firearm at your residence in a locked case for you to take to an FFL then later mails the key to you, would that be considered possession?

 

[dogtown tom]

docnyt If I were to purchase or store a firearm from a seller from another state, with him driving to my home, does he have to be physically present at my home state's FFL place of business for the transaction,

No, he could mail the firearm to your FFL with whatever documentation your dealer may require.

or can he leave the firearm with me in locked cases and I can bring it to my FFL?

Oh heck no! That would mean he has already transferred possession to you.......which is a violation of Federal law. It MUST be transferred through a licensed dealer.

It's an unusual situation that doesn't seem to be answered on the ATF FAQ's. I've had an out of state seller send to my FFL but I've never taken possession prior to doing paperwork.

It's not unusual and is clearly covered in the ATF FAQ's:

Q: To whom may an unlicensed person transfer firearms under the GCA?
A person may sell a firearm to an unlicensed resident of his State, if he does not know or have reasonable cause to believe the person is prohibited from receiving or possessing firearms under Federal law. A person may loan or rent a firearm to a resident of any State for temporary use for lawful sporting purposes, if he does not know or have reasonable cause to believe the person is prohibited from receiving or possessing firearms under Federal law. A person may sell or transfer a firearm to a licensee in any State. However, a firearm other than a curio or relic may not be transferred interstate to a licensed collector.

[18 U.S.C. 922(a)(3) and (5), 922(d), 27 CFR 478.29 and 478.30]


Q: From whom may an unlicensed person acquire a firearm under the GCA?

A person may only acquire a firearm within the person’s own State, except that he or she may purchase or otherwise acquire a rifle or shotgun, in person, at a licensee’s premises in any State, provided the sale complies with State laws applicable in the State of sale and the State where the purchaser resides. A person may borrow or rent a firearm in any State for temporary use for lawful sporting purposes.

[18 U.S.C. 922(a)(3) and (5), 922(b)(3), 27 CFR 478.29 and 478.30]

As it is, my friend would like to store the firearm at my place safely (temporarily) so I will either store it in my safe or outright purchase and then sell it back to him at a future date.

Sorry, if you are in possession when he leaves the state............thats a illegal interstate transfer of a firearm. It is immaterial whether you plan to buy it or resell it in the future or not.

 

[BSA1]

I am curious as to what legal concept and case law the Government is using to prevent me from storing / keeping my legally owned firearm(s) in another state where said firearm(s) are legal?

 

[smalls]

I am curious as to what legal concept and case law the Government is using to prevent me from storing / keeping my legally owned firearm(s) in another state where said firearm(s) are legal?

There's not. But your buddy can't keep possession of it for you without a 4473. You can keep it in storage, but you may not just give it to someone in another state for "safe keeping".

 

[mgkdrgn]

OK THR gurus, please educate me

If I were to purchase or store a firearm from a seller from another state, with him driving to my home, does he have to be physically present at my home state's FFL place of business for the transaction, or can he leave the firearm with me in locked cases and I can bring it to my FFL?

It's an unusual situation that doesn't seem to be answered on the ATF FAQ's. I've had an out of state seller send to my FFL but I've never taken possession prior to doing paperwork.

As it is, my friend would like to store the firearm at my place safely (temporarily) so I will either store it in my safe or outright purchase and then sell it back to him at a future date.

Thanks in advance.

The gun can not go to YOU first.

Have them take or ship it directly to the local FFL that will handle the transaction. They do not have to be present when the transfer takes place.

 

[Frank Ettin]

If you are going to store a gun for someone, you must not have access to the gun. The gun must be in a locked case to which you do not have the key or combination, or it must be sealed in a package you do not open.

If you are going to have access to the gun, it must be transferred to you with all necessary formalities. So if the transferor is from another State, you may not take possession of the gun until completing the process at an FFL.

 

[docnyt]

Yeah it looks like we need to coordinate with my FFL when my friend visits.

 

[BSA1]

If you are going to store a gun for someone, you must not have access to the gun. The gun must be in a locked case to which you do not have the key or combination, or it must be sealed in a package you do not open.

If you are going to have access to the gun, it must be transferred to you with all necessary formalities. So if the transferor is from another State, you may not take possession of the gun until completing the process at an FFL.

I never seem to have much luck with search functions. Can you direct to links that cite the legal concepts and case law that covers this topic?

 

[Frank Ettin]

If you are going to store a gun for someone, you must not have access to the gun. The gun must be in a locked case to which you do not have the key or combination, or it must be sealed in a package you do not open.

If you are going to have access to the gun, it must be transferred to you with all necessary formalities. So if the transferor is from another State, you may not take possession of the gun until completing the process at an FFL.

I never seem to have much luck with search functions. Can you direct to links that cite the legal concepts and case law that covers this topic?

My analysis is multilayered.

First, federal interstate transfer law deals with possession (not ownership), second definitions of "possession" and "transfer" and third ATF advice regarding one shipping a gun to himself.

• Let's look at the statutes:
  
  
  • 18 USC 922(a)(3), which provides in pertinent part (emphasis added) as follows:

    (a) It shall be unlawful—
    ...
    
    (3) for any person, ... to transport into or receive in the State where he resides ...any firearm purchased or otherwise obtained by such person outside that State,...

    
    
  • And 18 USC 922(a)(5), which provides in pertinent part (emphasis added) as follows:

    (a) It shall be unlawful—
    ...
    
    (5) for any person ... to transfer, sell, trade, give, transport, or deliver any firearm to any person ...who the transferor knows or has reasonable cause to believe does not reside in ...he State in which the transferor resides...

  
  
• Possession means:

  1 a : the act of having or taking into control...

  
  
• Some definitions of "transfer" (emphasis added):
  
  
  • http://legal-dictionary.thefreedictionary.com/transfer:

    ...Transfer encompasses the sale and every other method, direct or indirect, of (1) disposing of property or an interest therein or possession thereof;...

  • http://www.thefreedictionary.com/transferred:

    2. Law To make over the possession or legal title of; convey.

  • http://law.yourdictionary.com/transfer:

    Any and every method of removing something from one person or place to another; specifically, the handing over of possession or control of assets or title. ...

  
  
• Some people seek to resolve things under the limited exception for a loan of a firearm. You, yourself once did, and I answered you here. But let's look again at why the limited loan exception doesn't help.
  
  
  • Let's look at the applicable statutes again:
    
    
    1. 18 USC 922(a)(3), which provides in pertinent part (emphasis added) as follows:

       (a) It shall be unlawful—
       ...
       
       (3) for any person, ... to transport into or receive in the State where he resides ...any firearm purchased or otherwise obtained by such person outside that State,...

       
       
    2. And 18 USC 922(a)(5), which provides in pertinent part (emphasis added) as follows:

       (a) It shall be unlawful—
       ...
       
       (5) for any person ... to transfer, sell, trade, give, transport, or deliver any firearm to any person ...who the transferor knows or has reasonable cause to believe does not reside in ... the State in which the transferor resides; except that this paragraph shall not apply to
       
       

       (A) the transfer, transportation, or delivery of a firearm made to carry out a bequest ..., and
       
       (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;​

       ...

    
    
  • So you may go to another State where (under 18 USC 922(a)(5)) a friend may loan you a gun to, for example, go target shooting together, or an outfitter may rent you a gun for a guided hunt. But if you were to take the gun back to your home State with you, you would be violating 18 USC 922(a)(3), which has no "loan" exception, thus becoming eligible for five years in federal prison and a lifetime loss of gun rights. Since there is no loan" exception in 18 USC 922(a)(3), a load of a firearm may not cross state lines to the borrower's State of residence.
  
  
• ATF has advised here that one may ship a firearm to himself in care of another person in another State.
  
  
  • Specifically ATF has said (emphasis added):

    6. May I lawfully ship a firearm to myself in a different State?
    
    

    Any person may ship a firearm to himself or herself in the care of another person in the State where he or she intends to hunt or engage in any other lawful activity. The package should be addressed to the owner “in the care of” the out-of-State resident. Upon reaching its destination, persons other than the owner must not open the package or take possession of the firearm.​

 

[NavyLCDR]

OK.... so let's expand on this a little further.....

Seller brings the gun, in a locked case with him and gives the gun in the locked case to the buyer, along with the documentation that would normally be delivered to the FFL with the gun if it was shipped, such as a copy of the seller's driver's license. The seller never provides the key or combination to the locked gun case to the buyer.

The seller instead mails the key to the FFL who will do the transfer to the buyer. The buyer brings the locked gun case to the FFL, who then does the form 4473, background check, etc. When that is all done and the transfer approved by NICS, the FFL opens the gun case to obtain the information required from the gun itself to complete the transaction.

I know, completely far fetched and way out there scenario... but illegal?

1. It would be perfectly legal for the "buyer" to receive the firearm, even in an unlocked package, if shipped to the "seller" in care of the "buyer" for the "buyer" to take possession of the gun when they arrived in the "buyer's" state.

2. It would be perfectly legal for the seller to ship the gun to the FFL, without any locked case required.

 

[dogtown tom]

NavyLCDR OK.... so let's expand on this a little further.....

Seller brings the gun, in a locked case with him and gives the gun in the locked case to the buyer, along with the documentation that would normally be delivered to the FFL with the gun if it was shipped, such as a copy of the seller's driver's license. The seller never provides the key or combination to the locked gun case to the buyer.

The seller instead mails the key to the FFL who will do the transfer to the buyer. The buyer brings the locked gun case to the FFL, who then does the form 4473, background check, etc. When that is all done and the transfer approved by NICS, the FFL opens the gun case to obtain the information required from the gun itself to complete the transaction.

I know, completely far fetched and way out there scenario... but illegal?

1. It would be perfectly legal for the "buyer" to receive the firearm, even in an unlocked package, if shipped to the "seller" in care of the "buyer" for the "buyer" to take possession of the gun when they arrived in the "buyer's" state.

2. It would be perfectly legal for the seller to ship the gun to the FFL, without any locked case required.

There is no way I would accept the firearm for transfer as you describe above. NOTHING tells me that there is only one key. If the seller can ship or deliver the firearm to the buyer.........he sure as hell can ship or deliver that same firearm to me. Saying that the only key or combination is given to the dealer doesn't change the fact that the "buyer" can at any time break the lock.

What if the dealer never receives a key or combination?
What happens if the buyer is denied by NICS? The gun has not been logged into the dealers books, yet the buyer is going to leave with it? That will be fun explaining to the IOI that the firearm for a denied transaction left with the buyer.

I disagree with Frank Ettins belief that its okay to store a gun in a locked case with someone who is not a resident of the same state. While ATF does say its legal to ship a firearm (addressed to yourself) in care of another person, they do not state that storing a firearm with another person is somehow exempt from Federal law regarding interstate transfers.

 

[Frank Ettin]

...1. It would be perfectly legal for the "buyer" to receive the firearm, even in an unlocked package, if shipped to the "seller" in care of the "buyer" for the "buyer" to take possession of the gun when they arrived in the "buyer's" state....

I'm not exactly sure what you mean by this. It would only be legal under federal law if the parcel remained sealed. The buyer could not lawfully take actual possession of the gun except through a transfer by an FFL.

Note also that it is entirely within the discretion of an FFL whether or not, or how, he receives a gun for transfer from a transferee. Some FFLs will not accept a gun shipped by a private party for example. An FFL might not be willing to participate in the rather Byzantine device you posit.

...I disagree with Frank Ettins (sic) belief that its okay to store a gun in a locked case with someone who is not a resident of the same state. While ATF does say its legal to ship a firearm (addressed to yourself) in care of another person, they do not state that storing a firearm with another person is somehow exempt from Federal law regarding interstate transfers.

Well the ATF apparently is willing to stretch a point for someone shipping a gun to himself and consider that no transfer takes place if the the person receiving the package on behalf of the shipper doesn't open it. If that weren't the case, one could not ship a gun to oneself because custody of the parcel would constitute possession of the gun and therefore a transfer.

It's a question of when one comes into possession, and thus when a transfer takes place. If custody of a sealed parcel containing a gun constitutes possession of the gun, then receipt of that parcel on behalf of the shipper is a transfer, whether it's for storage of for the purposes of the owner shipping it to himself . And in any case, receiving a gun on behalf of someone who has shipped it to himself in your custody, necessarily involve storing it for some period.

 

[CoRoMo]

...by a common or contract carrier...

There is no way I would accept the firearm for transfer as you describe...

How about a very small and local contract carrier that delivers a parcel to you from across the Oklahoma state line there? The small, local contract carrier picked the package up from the seller in Oklahoma and delivers it to you for transfer to the Texas buyer. The buyer is the driver for that contract carrier and happens to be the very guy who picked up and delivered to you, the gun he purchased from that Oklahoma seller.

 

[dogtown tom]

Frank Ettin

Quote:
Originally Posted by dogtown tom
...I disagree with Frank Ettins (sic) belief that its okay to store a gun in a locked case with someone who is not a resident of the same state. While ATF does say its legal to ship a firearm (addressed to yourself) in care of another person, they do not state that storing a firearm with another person is somehow exempt from Federal law regarding interstate transfers.

Well the ATF apparently is willing to stretch a point for someone shipping a gun to himself and consider that no transfer takes place if the the person receiving the package on behalf of the shipper doesn't open it. If that weren't the case, one could not ship a gun to oneself because custody of the parcel would constitute possession of the gun and therefore a transfer.

It's a question of when one comes into possession, and thus when a transfer takes place. If custody of a sealed parcel containing a gun constitutes possession of the gun, then receipt of that parcel on behalf of the shipper is a transfer, whether it's for storage of for the purposes of the owner shipping it to himself . And in any case, receiving a gun on behalf of someone who has shipped it to himself in your custody, necessarily involve storing it for some period.

Again, ATF only mentions an exemption when shipping a firearm to oneself. The assumption is that the recepient will not do anything other than hold or store it for the owner/addressee.

Argue possession with a police officer. If you are pulled over with a locked container in your car and tell the officer "But, but, but I dont have a key, the key was mailed to my dealer!" Do you really believe you aren't in possession? If you are a prohibited person and in possession of a firearm.............its still possession even if in a locked container.

6. May I lawfully ship a firearm to myself in a different State?

Any person may ship a firearm to himself or herself in the care of another person in the State where he or she intends to hunt or engage in any other lawful activity. The package should be addressed to the owner “in the care of” the out-of-State resident. Upon reaching its destination, persons other than the owner must not open the package or take possession of the firearm.

I would argue that once you left home with the package containing the firearm, you would now be in possession.

CoRoMo

Quote:
There is no way I would accept the firearm for transfer as you describe...

How about a very small and local contract carrier that delivers a parcel to you from across the Oklahoma state line there? The small, local contract carrier picked the package up from the seller in Oklahoma and delivers it to you for transfer to the Texas buyer. The buyer is the driver for that contract carrier and happens to be the very guy who picked up and delivered to you, the gun he purchased from that Oklahoma seller.

That isn't what was described above. In your example I am the addressee. If I'm not the addressee...........then there is a violation of Federal law.

 

[BSA1]

Frank,

I understand your multilayer reasoning and definitions and respect your learned position but you are citing BATF regulations.

My question is are there any actual criminal cases or court rulings where a citizen that legally owns a firearm has been tried for storing a firearm that is legal in that state with a non-prohibited person?

For example; I reside in Kansas but hunt deer on relative's property in Oklahoma. If I understand your reasoning correctly I can not leave my deer rifle in their gun cabinet when I go back home without doing a transfer on a 4473 or locking it in a case they do not have the key to (which raises a interesting question about whether their knowledge of the contents might put them in legal trouble).

It should be no surprise that I have found other opinions that disagree with your position hence my quest for a actual criminal case.

 

[Frank Ettin]

I understand your multilayer reasoning and definitions but you are citing BATF regulations.

No I am not citing ATF regulations. I am citing statute law as enacted by Congress.

...I reside in Kansas but hunt deer on relative's property in Oklahoma. If I understand your reasoning correctly I can not leave my deer rifle in their gun cabinet when I go back home...

The words "possession" and "transfer" mean what they mean. The statutes (not regulations) say what they say. Do as you wish.

...My question is are there any actual criminal cases or court rulings where a citizen that legally owns a firearm has been tried for storing a firearm that is legal in that with a non-prohibited person?...

I have not found any cases involving the storage of firearms in another State. I suspect that the issue has not come up or at least reached of court of appeal. Most importantly, therefore, no court has said that storing a firearm with someone in a State not one's State of residence in a manner in which that person having custody of the firearm has access to and control of the firearm is not a transfer in violation of 18 USC 922(a)(5).

Given the plain meanings of "possession" and "transfer" and the plain language of the statutes, there is no reason to take comfort in the fact that a court apparently hasn't ruled on the question. You are, however, welcome to be a test case.

 

[Frank Ettin]

It should be no surprise that I have found other opinions that disagree with your position hence my quest for a actual criminal case.

Then by all means identify your sources so that others may form an opinion regarding their reliability. Or better yet, invite them to register here and join in the discussion.

Appeal to an absent, anonymous source for support of a contrary position is a particularly cheap rhetorical trick.

 

[vamo]

Without knowing the exact situation or what state you are in I don't know if this is something that would be amicable.

But why not have him ship it to your FFL, sure it will cost a bit more, but it would be worth it to not operate in a legal grey area (though what you originally suggested isn't grey and is blatantly illegal).

Or maybe the seller could drop it off at your FFL in person if you trust them.

 

[Jim K]

I seem to be reading a couple of conditions:

1) The seller cannot come to the buyer's state when the buyer's FFL is open.
2) Both parties are trying to avoid the cost of shipping the gun.
3) The buyer wants to examine the gun before making a deal.

The simple answer seems to be for the seller to bring the gun to the buyer for examination. Then, if an agreement to sell is made, for the seller to take the gun back home and ship (not mail) the gun to the buyer's FFL dealer, marked for the buyer. The buyer will have made arrangements with his dealer and obtained a copy of the dealer's FFL for the seller's records and for the carrier if necessary. The shipping cost will be high, but a bail bondsman and a defense attorney will cost a lot more.

Jim

 

[NavyLCDR]

Then, if an agreement to sell is made, for the seller to take the gun back home and ship (not mail) the gun to the buyer's FFL dealer, marked for the buyer.

Jim

Rifles and shotguns could be mailed to the buyer's FFL by the seller. Only firearms other than rifles and shotguns are prohibited from private party mailing by US Post Office.

 

[BSA1]

Frank thank you for the feedback if there have been any actual court cases about storing firearms out of state.

I think I may mention before that as a career government bureaucrat I view regulations from a different prism than a trained barrister as yourself. I'm sure we agree that if laws and regulations were written in plain and simple language there would not be a need for our complicated legal system or career bureaucrats!

And I will solicit other folks to join this forum.