handgun rights...is it MINE?

[carrottop]

I bought a handgun in the state of Missouri for my boyfriend. I had the criminal check done in my name, since it was a gift. Now, our relationship is coming to an end, and I want the handgun back for several reasons: I don't want any future trouble with the gun since it was criminal checked in my name, and he has a restraining order against him related to another individual. What rights to i have to this gun...i never registered it or transferred it to him. This is embarassing, because I have never bought a handgun before. How do I legally go about getting the gun back? What process is there to use? Do I have a right to the handgun? I cannot transfer ownership, because of his restraining order, and even if I could, he has denied giving me the gun back. The only reason why I want the gun back is because it was criminal checked in my name. What are my rights? Thank you for ANY help with matter.

 

[plunge]

i think you could be in some legal trouble if you DON'T get it back. might want to tell him you need to get it back or you will be talking with the police. probably the only option since you say he can't legally have it in his name

 

[MrCleanOK]

I am not a lawyer.

Purchasing a handgun in a free state like Missouri does not "register it" to you. While you can't buy a handgun from an FFL with the intention of selling it to someone else, once it is yours you may do as you pretty much please with it. You can give it as a gift, sell it to someone if you decide you don't want it any more, etc. Under normal circumstances, with no other legal considerations, you probably would have no legal ground to stand on to get the gun back. Just like if you had given your ex a microwave as a gift, and really wanted it back.

Given the circumstances, you probably need to talk to an attorney. If you had knowledge of the restraining order prior to purchasing the gun for him as a gift, the case could probably be made that you did what's called a "straw purchase". A straw purchase is when someone who is not prohibited from buying a gun purchases one on behalf of someone who is prohibited. That is a crime.

You obviously want to do the right thing here, but you need to consult a legal expert in your state, not people on the internet that you don't know.

 

[plunge]

you could be right. i was actually thinking about how in michigan pistols are registered thru the local police to whoever buys it.

 

[Sam1911]

I bought a handgun in the state of Missouri for my boyfriend. I had the criminal check done in my name, since it was a gift.

No worries there. You purchased the gun. The NICS check is a requirement of purchasing it from a dealer. It is not a registration, and it does not link the gun to you beyond that point of purchase. You could legally sell it, give it away, or otherwise dispose of it to any non-prohibited resident of your state -- or sell it to (or through) a dealer in any state). All that NICS does is assure the dealer that you are not a person prohibited from buying that gun at the moment of that sale. The only record of you having purchased that gun exists on the paperwork stored in the dealer's filing cabinet.

Now, our relationship is coming to an end, and I want the handgun back for several reasons: I don't want any future trouble with the gun since it was criminal checked in my name,

The fact that your name was on the original transfer paperwork is not damning evidence against you in the case that he does something unpleasant with it. The only "trouble" you might have is a visit from the police during the investigation of any future crime in which that gun was recovered.

What would happen is this:
1) IF they find a gun, and DON'T know who owned it or fired it, they'll contact the manufacturer who will give them the name of the dealer who first sold it. That dealer will give them the name of the first purchaser of it. (Assuming that's you.)
2) They'll contact you and ask you about the gun. You tell them the truth -- I gave it as a gift to my ex-boyfriend on or about such-and-such date.
3) They say, "thank you," and go talk to him.

... and he has a restraining order against him related to another individual.

Here is the only spot of possible trouble I can see. IF he was a prohibited person at the time you gave the gun to him, that's an illegal transfer. If he did something really bad with it and you gave it to him knowing that he was not legally allowed to purchase or receive a gun, that could come back to bite you. If he was NOT prohibited at the time you gave it to him, any subsequent trouble he might have gotten into is not your problem.

What rights to i have to this gun...i never registered it or transferred it to him.

No rights whatsoever. There would have been no registration, because there ISN'T a registration of handguns in your state. You DID transfer it to him, because giving it to him was a legal private transfer of ownership.

How do I legally go about getting the gun back?

I don't really see that you could. You gave it away as a gift. It belongs to him.

What process is there to use? Do I have a right to the handgun?

No. You have neither right to nor responsibility for that firearm.

I cannot transfer ownership, because of his restraining order,

If he has become a prohibited person (i.e. a felon who cannot own or even touch guns), he can -- in fact MUST -- dispose of his firearms. So he certainly could transfer them to you. Now, a restraining order will stop him from legally being able to BUY a firearm, but it doesn't put him into the "prohibited" class of folks who may not OWN one. If he's not been convicted of a crime, he doesn't have to give up his guns (yet).

and even if I could, he has denied giving me the gun back.

You mean he's refused? Fine. It is his property and his responsibility. Your hands are clean.

 

[NavyLCDR]

Given the circumstances, you probably need to talk to an attorney. If you had knowledge of the restraining order prior to purchasing the gun for him as a gift, the case could probably be made that you did what's called a "straw purchase". A straw purchase is when someone who is not prohibited from buying a gun purchases one on behalf of someone who is prohibited. That is a crime.

Once again, straw purchase is being confused with providing a firearm to a prohibited person. The two actions are completely unrelated to each other, although a straw purchase may be a way to facilitate providing a firearm to a prohibited person.

Straw purchase is when person A buys a gun with person B's money and then provides that gun to person B. That's all. The legality or not of person B to buy that gun themselves or possess that gun has no bearing on the situation.

If person A provides a gun to person B through any means knowing that person B is a prohibited person (such as has a restraining order or felony), that is the crime of providing a firearm to a prohibited person and may occur because a straw purchase was made, or because a gun was sold to the prohibited person, or because the gun was given to the prohibited person as a gift.

If our OP knew the boyfriend had an existing restraining order against him when she gave the gun to him, she committed the crime of providing a gun to a prohibited person.

If our OP bought the gun for the boyfriend using the boyfriend's money, she committed a straw purchase, regardless of the boyfriends legal status to possess the gun.

 

[NavyLCDR]

To the OP

As has been said....

If you gave the gun to the boyfriend knowing that he had an existing restraining order, the best advice is to seek an attorney because you committed a felony at the Federal level and probably at the state level too.

If the boyfriend was not prohibited from possessing the gun when you gave it to him, I don't see anything that can be legally done if he doesn't want to return the gun to you. It became his gun when you gave it to him.

In Missouri there is no firearms registration so there is no "the gun is in my name or the gun is in his name."

 

[dogtown tom]

carrottop I bought a handgun in the state of Missouri for my boyfriend. I had the criminal check done in my name, since it was a gift.......our relationship is coming to an end, and I want the handgun back.....

Too late. Gifts are gifts, he is not required under any law to return something that you GAVE him.

Of course, if he is prohibited from possessing a firearm that may be reason enough for him to "gift" it right back to you.

 

[gatorjames85]

Now, a restraining order will stop him from legally being able to BUY a firearm, but it doesn't put him into the "prohibited" class of folks who may not OWN one. If he's not been convicted of a crime, he doesn't have to give up his guns (yet).

I don't know if you are referring to Missouri specifically, but this isn't the case everywhere. I don't know what the law is in Missouri, but in Florida, you can be ordered to turn in your guns pursuant to an injunction (even a temporary injunction).

 

[Husker_Fan]

Someone let me know if I am wrong, but wouldn't the restraining order only affect gun ownership/purchases if the terms of the order say so, or it is based on allegations of domestic violence.

 

[Frank Ettin]

A real pickle --

On one hand, the OP bought a gun as a gift to someone and gave it to him. That is generally legal, and as a gift it now belongs to the recipient; and the OP has no claim to it.

On the other hand, there seems to be some suggestion that the OP knew, or had reason to know, that the recipient might have been a prohibited person. If that's the case, then the OP probably violated federal law by giving him a gun (even as a present).

So it looks like continuing to discuss this with a bunch of strangers in public is not a good idea. It also looks like discussing this confidentially with a qualified lawyer would be a good idea.

Of course the OP by getting the gun back isn't going to "unring the bell." She'll still have the problem that she gave a gun to someone she knew, or had reason to know, could not lawfully possess a gun (if that's the case). But it wouldn't hurt.

And if the guy who got the gift is a prohibited person, he wouldn't be very smart to hold on to the gun. But we don't know how smart he is, and folks sometimes do rather dumb things.

So I think that a conversation with a good lawyer is still the OP's best bet.

...Now, a restraining order will stop him from legally being able to BUY a firearm, but it doesn't put him into the "prohibited" class of folks who may not OWN one. If he's not been convicted of a crime, he doesn't have to give up his guns (yet)...

Sorry, Sam, not exactly correct. Someone subject to a restraining order, if the order meets certain criteria, would be a prohibited person under federal law, and could not legally possess a gun (see 18 USC 922(g)(8)).

 

[Sam1911]

Ahh, you're right, of course. We don't know the details on the restraining order, though.

The OP's liability with this seems to hinge on when the dear former boyfriend got himself into trouble. If she gave him the gun as a gift, and he did something (or had the order placed against him) days, months, or years later, she may wash her hands of the matter entirely.

If he was a naughty boy (allegedly) before hand and she gave him the gun anyway -- she needs a lawyer.

 

[Bubba613]

The short of it is, she bought the gun and gave it to the guy as a gift. He was, as far as she knew, legally able to own the gun.
The gun is his, period. Paragraph.
Whatever happens to him and the gun afterwards is none of her concern.

 

[bigfatdave]

He was, as far as she knew, legally able to own the gun.

Didn't you get the memo?
We're not giving any benefit of the doubt around here any more.

 

[kludge]

Agreed, Sam.

Carrottop, If the purchase was before the restraining order, then there's not a problem for you AFAIK. If it was after and you knew he had a restaining order, then there could be a problem. You need a lawyer, not advice from a bunch of internet junkies.

 

[Zundfolge]

The short of it is, she bought the gun and gave it to the guy as a gift. He was, as far as she knew, legally able to own the gun.
The gun is his, period. Paragraph.
Whatever happens to him and the gun afterwards is none of her concern.

^This.

Many a jilted man has learned this hard lesson with expensive engagement rings being kept by their Ex after a breakup.

If the OP is concerned that she might have some legal trouble visited upon her down the road should her Ex do something stupid with the gun, the simple answer is no, she has nothing to worry about (unless it can be proved in a court of law that she KNEW he was a "prohibited person" before gifting the gun to him ... which is going to be very difficult to prove and frankly isn't likely to come up).


Best thing to do at this point is to let the gun go with the Ex and be done with it.

 

[Kleanbore]

Posted by fiddletown: So it looks like continuing to discuss this with a bunch of strangers in public is not a good idea. It also looks like discussing this confidentially with a qualified lawyer would be a good idea.

Yes indeed.

Of course, not only has the deed, whether it was proper or not, been done, the electrons here are now arranged in the form of a permanent record.

So let's offer this: discussing any incident that may have involved a possible legal transgression, or that may end up being the subject of a civil suit, with a bunch of strangers in public is not a good idea. Discussing it confidentially with a qualified lawyer would be a good idea.

I do not mean to criticize the OP here. My motive is to remind others in advance. See this for more.

 

[Bonesinium]

The short of it is, she bought the gun and gave it to the guy as a gift. He was, as far as she knew, legally able to own the gun.
The gun is his, period. Paragraph.
Whatever happens to him and the gun afterwards is none of her concern.

Quoted for truth.

Unless she specifically knew he couldn't legally own a gun, she has done nothing wrong. Either way the gun isn't hers.

 

[Frank Ettin]

... (unless it can be proved in a court of law that she KNEW he was a "prohibited person" before gifting the gun to him ... which is going to be very difficult to prove and frankly isn't likely to come up)....

First, the test is "knew or had reason to know."

Second, it's often not all that difficult to prove.

Third, if the guy winds up in court involving the gun, her having given it to him is almost certain to come up.

ETA: Oops, I just checked, and the test is slightly different. It's "knowing or having reasonable cause to believe" (18 USC 922(c)). I originally posted on my iPhone and relied on my memory of the language of the statute. Although I was close, I wanted to clarifying things now that I have actually again looked at the statute.

 

[Owen Sparks]

Were there any witnesses when you it to him? Without witnesses it is your word against his as to how he got "your" pistol.

 

[Sam1911]

Were there any witnesses when you it to him? Without witnesses it is your word against his as to how he got "your" pistol.

Oh good grief. You're suggesting that she claim he stole it? Or that he took it without permission? That's not going to stand up very well to any kind of investigation.

If nothing else, there is now a permanent record here on THR that she gave it to him as a gift. Such statements would be absolutely admissible in court.

Do not lie.

 

[Greg528iT]

Asked and Answered by Sam and Navy.. Thanks guys

 

[BothellBob]

CarrotTop,
We are a bunch of gun nerds (for the most part) who have perhaps a bit more understanding of firearm law than the average person, but that does not make us experts. Asking us for legal advice makes about as much sense as asking an attorney for target shooting advice. I would agree with those who are telling you to talk to an attorney, and do not "talk" to us. Anything you write on the internet can be used AGAINST you in a court of law. Good luck,
-BothellBob

 

[CapnMac]

Dunno, but this is making me hungry for popcorn.
Something about how OP met a guy;
Guy becomes BF;
OP demonstrates qualifications for being most excellent GF;
Later BF has problems--perhaps related to service for unpaid support, so, perhaps BF is not so wonderful at all . . .

So, for an on-topic sort of question, if a person knows (or has reason to know) they are prohibited, then, they do have a duty to inform, correct?
This even if it requires admitting to having ex/exes with RO/TRO; serial 'dating' and the like.

 

[NavyLCDR]

So, for an on-topic sort of question, if a person knows (or has reason to know) they are prohibited, then, they do have a duty to inform, correct?
This even if it requires admitting to having ex/exes with RO/TRO; serial 'dating' and the like.

If the firearm is being received from an FFL - yes, they do have the "duty to inform" by answering the questions on the form 4473 truthfully.

In a private transaction, they have no "duty to inform" that they are prohibited. What they have is a "duty" to not receive or possess firearms in violation of Federal and state laws.