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Transfer & Face to Face Question

Discussion in 'Legal' started by CoRoMo, Dec 10, 2008.

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  1. CoRoMo

    CoRoMo Member

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    Forgive me if this has been covered, but I couldn't actually find either of these specific scenarios using the search function, and reading through the ATF's 'Unlicensed Persons' didn't really answer them either.:confused:

    I got the following scenario-questions yesterday when I ran into a fellow gunnut...

    1.
    Is this legal?

    2.
    What about that one?

    If this has been covered, maybe I don't know some term for a single transfer intended to be ultimately received by two parties. After this gets a few replies that sound coherent, I'll tell you what my guess was and add a twist as well.:D
     
  2. rondog

    rondog Member

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    I would say that neither scenario is legal. The first is two separate purchases, requiring two 4473 forms, and the second is a straw purchase.
     
  3. Riss

    Riss Member

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    In both cases it appears that the proper persons could have taken direct transfer, so really they should. IIRC the only time it is actually illegal to make a purchase for another, a straw purchase, is when the buyer knows that the other person is not legally permitted to take a weapon in transfer. The father - son transfer is covered in some states as not needing to be recorded, but it still should be. The buddy to buddy transfer likewise may not be illegal, but the paper transfer should take place none the less and be delivered directly to the second friend directly from the FFL. If all else fails go to the atf.gov site and look it up. They have quite an extensive list of answers to questions such as this.
     
  4. CoRoMo

    CoRoMo Member

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    I agree. I believe that in both scenarios, the receiving of these transfers by one person might be illegal since one of the items is not intended to be their property. Both parties of each scenario should be receiving their respective gun through the FFL transfer. Would an FFL seperate a shipment and transfer one of two items in that shipment to another party that shows up with you? I don't know that one.

    In scenario 1, the seller knows he made two seperate transactions to two buyers, but both items will be shipped together to one FFL for transfer.

    In scenario 2, the seller thinks he made one transaction to one buyer and ships two items to one FFL for transfer, so Dude#2's name isn't anywhere on the shipment. Does that matter?

    (twist to scenario 1) Then my friend asked... What if the father lives in another state? The son goes to visit and takes Daddy the handgun that Daddy bought? My reply was... Now that state lines are being crossed, I doubt it is legal.
     
  5. CoRoMo

    CoRoMo Member

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    Not that I can find. I only find the "To whom may... and From whom may..." type of legal speak rather than a, "Can my buddy and I both receive a combined shipment..." type of question.

    I don't see a way that Dude#2 can acquire an AR through Dude#1's price cutting membership without it being a straw purchase. He has to give Dude#1 the money before or after the transaction, either way SP.
     
  6. 22lr

    22lr Member

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    I scenario #2, gosh I do that all the time, never had a problem yet. But again I'm in Indiana and all transaction that I do like that are at gunshows so....
     
  7. Bubba613

    Bubba613 member

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    Right answer: both scenarios are illegal.
    True answer: probably happens all the time and no problem if people understand that.
     
  8. CoRoMo

    CoRoMo Member

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    Am I correct?
     
  9. Riss

    Riss Member

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    Combined shipment is not an issue. Remember that the FFL is actually getting the guns transferred to him, on paper. He then transfers the gun out to whom ever he wishes. His will want to transfer the gun out to the guy that paid him the money if he forwarded the money out .
     
  10. NavyLCDR

    NavyLCDR member

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    Both scenarios are straw purchases.

    Riss,

    That is absolutely an incorrect statement. A straw purchase occurs anytime that a person answers yes to the 4473 question, "Are you the actual purchaser of the firearm", if they are not the actual purchaser, IE: they have already sold that firearm to someone else, or they are intending to immediately sell it to someone else. The legality of the second buyer of the firearm to possess it has no bearing on the straw purchase whatsoever.

    Page 165 of the 2005 Federal Firearms Regulations Reference Guide (notice the bolded part):
     
    Last edited: Dec 11, 2008
  11. NavyLCDR

    NavyLCDR member

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    22lr,

    So long as an FFL is not involved, it is not a straw purchase. Straw Purchase is merely, and only, lying to an FFL regarding the identity of the true purchaser of the firearm, either verbally, or written via the 4473.

    If you bought a gun at a gun show, from a private party, with the intent of selling that gun at a profit, then you are guilty of dealing in firearms without a dealer's license.

    If you bought a gun at a gun show, from a private party, with the intent of giving/selling/trading that firearm to a prohibited person, then you are guilty of providing a firearm to a prohibited person.

    Both of the above are seperate felonies under sections in 18 USC 922 and have nothing to do with straw purchase. If you did either of the two above, obtaining the firearm from an FFL, then they could tack on the second charge of the straw purchase in addition to the original charge.
     
  12. NavyLCDR

    NavyLCDR member

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    You are correct. Now the son has committed two seperate felonies. The first one was the straw purchase, and the second one was providing a firearm to an out of state private party. Two separate sections of 18 USC 922, two separate felonies. Family relationship has no bearing on the case.
     
  13. CoRoMo

    CoRoMo Member

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    Page 165 of the 2005 Federal Firearms Regulations Reference Guide:
    15. STRAW PURCHASES
    Scenario #2 could actually take place legally...
    Dude#1 places the online order with the seller through which he receives his price deal. Online seller sets up the order and waits to receive payment in the mail. Dude#2 sends payment in the form of his personal check or money order. Online seller transfers the rifle to the FFL in their state and Dude#2 receives the transfer of the firearm he paid for with his money. Dude#2 fills out 4473 and answers yes to the 4473 question, "Are you the actual purchaser of the firearm" because he is the actual purchaser. The actual purchaser of this firearm paid for and honestly completed the form 4473.
     
  14. leadcounsel

    leadcounsel member

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    Both scenarios are gray 'straw purchaser' violations. The others have answered the question. But the law is poorly designed.

    My soapbox:

    These FUZZY areas of the law are created because of the same legal fiction that is similar to "what is prostitution..."

    You can give away sex, you can have sex with someone after a date where the other person pays for the dinner and movie, you can have random sex with a stranger you just met for free, but you cannot offer to pay or receive money for it... :banghead:

    Now let's look at the gun industry. You can buy/sell a gun in a private transaction. You can gift a gun. But you cannot buy a gun with the intent to sell it later??? :banghead: How is that even possible??? :confused: Can anyone honestly say that they would never sell their guns, under any circumstances?? If not, then you have SOME (albeit tiny) intention to sell your firearms. So, given that, it just becomes a matter of degree....

    Much like our tax code, 'victimless crimes' and other BS laws, our gun laws have run astray of common sense.

    Politicians have created these arbitrary 'classes' of people that cannot practice their constutional rights. Ex-felons. The "insane." "Domestic abusers." These are feel good measures yet if you look critically at them they are unfair. Felons have served their time - and should have a clean slate. The insane - who is to judge? Slippery slope. Domestic abusers - too loosely defined.
     
  15. Riss

    Riss Member

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    Like I said, go check the Regs on the site.
     
  16. zombienerd

    zombienerd Member

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    What about husband and wife?

    I spend a lot of time on the road. If I want a new gun while I'm gone, and the wife buys it and it's in her name, what could be the possible problems if I use it exclusively?

    I've wondered about this a few times.
     
  17. rondog

    rondog Member

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    As I understand it, if she buys it....does the paperwork and pays for it, then gives it to you as a gift, that's legal.

    But, if you give her the money and say "Honey, buy me one of these while I'm gone", that's a straw purchase and illegal.

    Same thing if your 10 y.o. son wants a .22 rifle, and saves up the money himself by doing a paper route and mowing yards. He can't legally buy it himself, and he can't legally give you the money to buy it for him. But, you can buy it yourself and give it to him as a gift!

    Definitely a goofy gray area, IMO.
     
  18. Lone_Gunman

    Lone_Gunman Member

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    Both of these situations could be dealt with legally.

    A person can buy a gun from an FFL, honestly answer they are the actual buyer (because they used their own money), and then immediately decide to sell it to someone else for whatever reason.
     
  19. NavyLCDR

    NavyLCDR member

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    Not according to the BATFE. BATFE has stated to me, and it is probably in writing in a newsletter or the guide, that the gun must be purchased by the purchaser either to be given as a gift, or to be in the personal collection of the purchaser. The written regulation for FFL's selling their private collections is that the gun must be in their private collection, and off their FFL books for 1 year, then can be sold by the FFL as a private sale. BATFE recommends, but does not require, the same for private individuals to show, beyond reasonable doubt, that the gun was a part of a private collection and not bought with the intention of selling.
     
  20. Bubba613

    Bubba613 member

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    BATFE can recommend whatever it wants. It doesn't make it law. And that's the case here.
    Even for FFLs, the requirement of keeping it one year only applies, to my knowledge, where the FFL is run as a Schedule C company or partnership. Where the FFL is a corporation there is no such requirement.
    That said, I wouldn't recommend a dealer signing stuff out to himself personally and then going around to a gun show to sell it.
     
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