Question regarding FFL purchase

[OpelBlitz]

This just didn't seem right, so was wondering what the general consensus would be in this situation.

A friend of mine in Virginia (I'm in IL so I don't know any VA-specific laws) recently purchased a handgun from a gun shop. What he purchased wasn't on hand, so the shop ordered one after my friend paid for it. He said that because the firearm wasn't in hand, a background check wasn't made and that it would be once the firearm arrived.

He's worried that he might not pass a background check and what would happen to his money for the paid gun. I siad that it's my speculation that the shop would have to refund him, but I have no idea.

Short version:

1. Friend goes to shop
2. Pays shop for a gun
3. Shop orders gun
4. gun is shipped to shop
5. Background check to be made on friend (Let's say it fails)
6. Now what?

So, is it up to the shop whether he refunds money? Did something happen in a wrong order? This kind of seems like a special order. Any missing variables?

 

[45Frank]

Doesn't he need a permit first even in Virginia. If he does then he's already passed a back ground check.
Here in NC if you have a carry permit you walk in put down the cash and walk out. A wonderful thing. I mean there's a few papers to fill out but that's it.

 

[Bubbles]

There is no purchase permit to buy a handgun in Virginia.

Our policy for special orders in that situation is that we can do one of two things:

1) Refund your money, less any return shipping and distributor restocking fees, and we will return the gun to the distributor.

2) Sell the gun as a consignment.

 

[NavyLCDR]

Doesn't he need a permit first even in Virginia

A lot of free states don't require state permits for handguns. Virginia, Oklahoma, Texas, Wyoming, Montana, Idaho, New Mexico, Arizona...a bunch of others.

As far as the OP....

That's typically the order in which things work. He should have asked the store what their policy was regarding the failed background check. If he fails the background check he can expect to pay a fee which may be called a special order fee, restocking fee, etc.... maybe up to 15% of the price of the gun depending on the store. They may also charge him for the paperwork/NICs check.

1. What is in his background that he is worried about?

2. If he is concerned, he should have started with a gun that was in stock somewhere.

 

[longdayjake]

Around here if a dealer makes a special order for you and its illegal for you to own a gun then you lose your money. From what I understand, its a tactic that felons have used here to try and guilt dealers into selling a gun to them. I personally think that if someone tries to get me to do something illegal then they deserve to lose their money.

 

[oneounceload]

2) Sell the gun as a consignment.

I see what you're saying....BUT if he never took possession of it, how do you sell it on consignment. Consignment means you're making it available on behalf of the owner..........

I've seen this happen at a pawn shop where someone pawns a gun, goes back in a month to redeem the pawn, and can't pass the background and can't get his own gun back......

 

[Casaba]

Wow... I would think he should know for sure if he can pass a background check. Sounds like he is hoping to slip one by the ATF to me.

good luck

 

[OpelBlitz]

That's typically the order in which things work. He should have asked the store what their policy was regarding the failed background check. If he fails the background check he can expect to pay a fee which may be called a special order fee, restocking fee, etc.... maybe up to 15% of the price of the gun depending on the store. They may also charge him for the paperwork/NICs check.

1. What is in his background that he is worried about?

2. If he is concerned, he should have started with a gun that was in stock somewhere.

I totally agree, he really should have asked; because it's his first purchase I'm not as criticizing, but I did let him know there's several possible scenarios that could happen, worse case scenario he's out of the money he paid.

That being said, he did not elaborate on why he was worried about the background check. If it fails, sounds like it did its job though. Thanks for the information everyone. I'm loving this place.

 

[Geneseo1911]

I recently ordered a gun from Bud's, and my dealer & I filled out the 4473 and he called for the NICS check the same day, before I even ordered the gun. Now, he knows me, so maybe this isn't a standard practice, but the NICS doesn't require a S/N, so there's no reason (that I know of) it can't be done ahead of time. He does it this way because in IL we still have the 3-day waiting period on HGs, so when it shows up, I can take it home the same day.

Unfortunately, in your friends case it sounds like it's too late & the gun is on the way. If he is worried about passing a BG check, he really should have mentioned this before the gun was ordered. It's possible that if he goes back (or calls) RIGHT NOW, the dealer can run the check and stop the distributor from shipping if he fails, and save the restocking fee.

If the guy is just worried B/C he hasn't had a check done before, and he has no felonies etc., then he just needs to calm down, as the BG check database can be fixed (although I understand it is a PITA) if he gets a false negative. If he is reasonably aware that he can't pass a test, then he deserves to pay a little "stupid tax" for putting the dealer in a tough situation. Remember, when the dealer orders a gun, HE BUYS IT, and the distributor will charge him to take it back, so he either has to pay the restocking fee, or sit on it & hope he can sell it.

ETA: As dogtown tom points out, you can't finish the 4473 without the S/N, and you can't sign it until the transfer takes place, I would like to clarify that the 4473 was not signed until the transfer took place, and was only started in order the complete the NICS check and start the clock on the waiting period.

 

[Blackbeard]

I see what you're saying....BUT if he never took possession of it, how do you sell it on consignment. Consignment means you're making it available on behalf of the owner..........

Basically he IS the owner because he did pay for it, but he can't take possession of it. The FFL would be willing to sell his gun for him on consignment.

 

[GRIZ22]

It all depends on what the gunshop's policy is. If they can't transfer the gun to him they may give hime credit toward non-gun purchases or refund his money. they can take the gun and send it back (and would be justified in deducting the return shipping from what your friend paid) or sell it to someone who can pass a background check.

 

[waterhouse]

1) Refund your money, less any return shipping and distributor restocking fees, and we will return the gun to the distributor.

2) Sell the gun as a consignment.

That's what I do as well.

I see what you're saying....BUT if he never took possession of it, how do you sell it on consignment. Consignment means you're making it available on behalf of the owner..........

May be just semantics, but you put it up for sale and when it sells the customer can come pick his money back up.

Some distributors charge relatively hefty fees for restocking if the mistake wasn't on their end, so the customer will usually get more money back by the dealer "reselling" the gun.

It is important both for the dealer to explain this for special orders and for the customer to ask if they have any questions.

 

[oneounceload]

Basically he IS the owner because he did pay for it, but he can't take possession of it. The FFL would be willing to sell his gun for him on consignment.

Not trying to start anything here, but just a good mental exercise for me - IF he can't take possession because it would be illegal, and if the shop sold it on consignment, would they then be involved in some form of illegal activity - i.e. selling an gun for someone who is forbidden to own it?

Just asking.....

 

[CoRoMo]

If he's a prohibited from purchasing it, I don't know that 'owning' the gun is the problem, rather possessing it. He won't be in possession of it if it's getting sold on consignment.

Just guessing...

 

[Bubbles]

Not trying to start anything here, but just a good mental exercise for me - IF he can't take possession because it would be illegal, and if the shop sold it on consignment, would they then be involved in some form of illegal activity - i.e. selling an gun for someone who is forbidden to own it?

The FFL would be in the clear as long as the prohibited person never takes posession of the firearm.

Compare it to an NFA transfer - the firearm comes to the FFL on Form 3 (if from another SOT out of state), then gets transferred to the purchaser on Form 4. At no time does the transferring FFL 'own' that firearm, but for the 3-4 months until the approved Form 4 comes back from ATF, he is the only one who may possess it.

 

[dogtown tom]

Geneseo1911 I recently ordered a gun from Bud's, and my dealer & I filled out the 4473 and he called for the NICS check the same day, before I even ordered the gun. Now, he knows me, so maybe this isn't a standard practice, but the NICS doesn't require a S/N, so there's no reason (that I know of) it can't be done ahead of time...

Never, never, never let your FFL try that again.

At best he's an idiot. At worst he's committing a felony.

There IS a reason you cannot fill out a 4473 and do a NICS check before the actual purchase of a firearm. It's called ATF & FBI regulations.

Completing a 4473 and conducting a NICS check prior to the actual purchase is a violation of ATF (4473) and FBI (NICS) regulations. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=1998_register&docid=98-29109-filed.pdf

Your dealer and you are risking fines and/or imprisonment by signing the 4473 on a day that is not the actual date of transfer for the firearm. Buyers who get the DELAYED response from NICS and subsequently get a PROCEED, even have to sign the 4473 AGAIN verifying that none of their answers or biographical information has changed since the date of the original signature.



The serial number IS required on the 4473. You are correct that the serial number is not required by NICS.

 

[NavyLCDR]

Not trying to start anything here, but just a good mental exercise for me - IF he can't take possession because it would be illegal, and if the shop sold it on consignment, would they then be involved in some form of illegal activity - i.e. selling an gun for someone who is forbidden to own it?

Just asking.....

There actually is nothing illegal about a prohibted person selling a firearm. It is illegal for them to possess it and it is illegal if the firearm is stolen.

 

[Geneseo1911]

dogtown-
Allow me to clarify:

We DIDN'T SIGN the part of the form where you certify the transfer. Here in IL, you have to fill out and date the first page, then wait the required period (1 day for LG, 3 for HG), then sign the bottom of the second page when you actually transfer (pick up) the gun. The NICS check I believe is actually the official start of the waiting period. This has been the procedure for every gun I've ever bought, although this was the first time I've ordered something and done the first page before the gun arrived. You raise a very valid point that totally completing a 4473 would indeed be lying and would therefor be a felony. Correct me if I'm wrong, but in free states, do you not start the 4473, make the call, and then come back, put the approval number on the form, and then sign, date, & transfer? This is the same thing, just with a longer period of time in the middle.

Once the gun arrived, the NICS was complete and the waiting period expired; he filled out the relevant S/N portion on page two, and we both signed and dated

I followed your link, but I must admit I just scanned it, as there is a LOT of text there. Perhaps you could point out the part you wanted us to see?

 

[gun&knifecountry]

Geneseo1911

What your dealer did was not legal per ATF Regs if he did not fill out the portion regarding the make/model/serial number/type/caliber of the gun prior to calling in the gun. This is commonly done in IL with their stupid cooling off period but still not legal per the regs.

 

[hiphowitzer]

What your dealer did was not legal per ATF Regs if he did not fill out the portion regarding the make/model/serial number/type/caliber of the gun prior to calling in the gun. This is commonly done in IL with their stupid cooling off period but still not legal per the regs.

This is incorrect. On page 6 of the 4473 related to Section D (serial #'s etc.):

"Immediately PRIOR to transfering the firearm, the seller must complete all of the questions in Section D."

 

[OpelBlitz]

<redacted>

 

[butters]

Have your friend call or stop back in the shop and ask them what their policy is. That seems to be the easy way to find out.