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

Discussion in 'Legal' started by Quoheleth, May 13, 2010.

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  1. Quoheleth

    Quoheleth Member

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    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
     
  2. stu454

    stu454 Member

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    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.
     
  3. ambidextrous1

    ambidextrous1 Member

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    That wouldn't be a face-to-face transaction.

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

    Monster Zero Member

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    "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.
     
  5. ny32182

    ny32182 Member

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    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.
     
  6. CoRoMo

    CoRoMo Member

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    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.
     
    Last edited: May 13, 2010
  7. Quoheleth

    Quoheleth Member

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    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
     
  8. NavyLCDR

    NavyLCDR member

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    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
    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.

    You didn't really think I would pass this up did you? :) IANAL either.
     
    Last edited: May 13, 2010
  9. ny32182

    ny32182 Member

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    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.
     
  10. rbernie
    • Contributing Member

    rbernie Member

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    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.

    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.
     
  11. texas bulldog

    texas bulldog Member

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    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.
     
    Last edited: May 13, 2010
  12. NavyLCDR

    NavyLCDR member

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    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:
     
  13. ClayInTX

    ClayInTX Member

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    If you have no concerns about it you would not have asked the question here.
     
  14. NavyLCDR

    NavyLCDR member

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    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.
     
  15. ny32182

    ny32182 Member

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    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.
     
  16. CoRoMo

    CoRoMo Member

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    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/tex...3.0.1.2.3;idno=27;cc=ecfr#27:3.0.1.2.3.6.1.12
     
    Last edited: May 13, 2010
  17. rbernie
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    rbernie Member

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    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.
     
  18. Bubbles

    Bubbles Member

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    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.
     
  19. NavyLCDR

    NavyLCDR member

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    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:

     
  20. Snowbandit

    Snowbandit Member

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    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.
     
  21. Quoheleth

    Quoheleth Member

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    Just found out the gentleman is a Texas CHL holder, so a lot of the issues regarding his background have been already resolved.

    Q
     
  22. ambidextrous1

    ambidextrous1 Member

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    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.
     
  23. ny32182

    ny32182 Member

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    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.
     
  24. earlthegoat2

    earlthegoat2 Member

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    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.
     
  25. paul

    paul Member

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    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
     
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