Wanting to buy an AR as a gift and was told it was a straw purchase?!?

[dbmjr1]

Just call around until you find a shop that will sell gift certificates.

 

[RetiredUSNChief]

The problem is that the law about straw purchases does not cover intent. It does not matter that you are actually buying the gun for your nephew as a gift if you are not in full compliance with the law.

Look at it this way: If YOU buy the gun with YOUR money and YOU take possession of the gun, then it's clearly YOURS.

From this point, you have much greater freedom to do with the gun what you wish, including legally gifting it to your nephew. (Though since he's in another state (I'm assuming), you'll have to do this through an FFL transfer. If you're both residents of the same state, you can just give it to him.)

Once you start changing how the gun is purchased, where the money is coming from, and who is taking possession of the gun, you run a much greater risk of such a purchase being a "straw purchase".

I have a 15 year old son who cannot buy a long gun because he's underage. I can buy a long gun using the process I outlined above and give it to him and it's perfectly legal. HOWEVER, I cannot buy him a long gun using his money that he's saved up for that purpose. That is a straw purchase.

Likewise, buying a gun with your money and having someone else take possession of it at the point of sale is also a straw purchase.

Clearly, buying a gun for someone else who cannot legally possess a firearm is also a straw purchase. (This is what the law is actually written for, however the wording does not recognize deviations in the purchasing process based on intent.)

If you really want to get him a gun as a gift, especially with him in a separate state, you can go about it several other ways. You can give him a cash graduation gift, which he may spend as he sees fit. You can give him a gift card, if a LGS in his area has them. You can give him a VISA gift card as well. You can buy the gun yourself, locally, contact an FFL in your nephew's area, and arrange to ship it to the FFL to have it transferred to your nephew, who will fill out a Form 4473 when he picks up the gun.

 

[MAKster]

If the OP pays for the gun but the nephew fills out the paperwork, no dealer is going to believe it is a gift to the nephew. They will all think that the gun is for the OP, but he cannot pass the background check.

 

[danez71]

Not to hijack the thread but is the following a straw purchase?

Hypothetically.... 20 yrs ago....


Me and a friend walk in to the same store at the same time.

I pick out a gun and he picks out his own gun. (both hand guns)

I fill out my 4473 paperwork and he fills out his own 4473.


We walk to the register and I pay for both guns in a single credit card transaction.

10 days later (waiting period), we both go to the same store at the same time,,,,,, I take possession of mine and he takes possession of his.



Is that a straw purchase?

 

[justice06rr]

Either outright buy him the gun or just give him the money to buy it himself.

Simple and straight to the point.

 

[RetiredUSNChief]

Not to hijack the thread but is the following a straw purchase?

Hypothetically.... 20 yrs ago....


Me and a friend walk in to the same store at the same time.

I pick out a gun and he picks out his own gun. (both hand guns)

I fill out my 4473 paperwork and he fills out his own 4473.


We walk to the register and I pay for both guns in a single credit card transaction.

10 days later (waiting period), we both go to the same store at the same time,,,,,, I take possession of mine and he takes possession of his.



Is that a straw purchase?

Hypothetically speaking...yes. An argument could be made that since both of you actually filled out 4473's, you were both legally able to buy a handgun, which is what the whole intent of the issue is all about...preventing people not allowed to buy a gun from getting one through someone else purchasing it. However, as I said above, the law doesn't care about intent...it cares about the mechanics of the sales process. If you hypothetically purchased the gun with your money and someone else hypothetically takes possession of it, then it's a straw purchase.

 

[natman]

The ATF defines “straw purchases” as the illegal purchase of a firearm by one person for another.

The test is "Is the person filling out the 4473 going to be the actual owner of the gun?"

Who pays for the gun is legally irrelevant. Now it's true that certain ways of paying for the gun may make it appear that it's a straw purchase, and I can't blame the dealer for being suspicious in the scenario the OP described. Using a pre-paid Visa card removes the appearance of a straw purchase, but the OP is still paying for the gun. However, since the nephew is filling out the 4473 and he is indeed the actual owner, it's not a straw purchase in either case.

 

[burk]

At the gunshow a couple of weeks back, I watched a guy make a gift of a brandy new S&W MP15 to my friend. Paid for it (at the largest local FFL who owns half the show) with a credit card that was declined 3 times before it went through. My friend filled out the 4473 and was the "actual purchaser." It's irrelevant who pays for it. Joe

Not in the eyes of the ATF. The person paying for the gun is the actual buyer.

Question 11.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party. ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANS- FEREE/BUYER of the firearm and must answer “NO” to question 11.a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual transferee/buyer of the firearm and should answer “YES” to question 11.a. However, you may not transfer a firearm to any person you know or have reasonable cause to believe is prohibited under 18 U.S.C. § 922(g), (n), or (x). Please note: EXCEPTION: If you are picking up a repaired firearm(s) for another person, you are not required to answer 11.a. and may proceed to question 11.b.

The person PAYING FOR THE FIREARM is considered the "actual buyer" even if it is being bought for the immediate purpose of being given as a gift. It is not illegal to buy a gun as a gift for someone under federal law, provided that person can legally posses a firearm. What you witnessed "someone paying for a gun who filled out the 4473 as the actual buyer" was a violation, it was not a "straw purchase". But it was fraud, the person answering question A as the "actual buyer" clearly was not the actual buyer. The confusion is this, the 4473 does not ask who is the actual "owner", and it is perfectly legal to buy a gift of a gun for someone as long as all other state and federal laws are adhered too.*


*This is what pertains to federal law, state law is an entirely different issue.

 

[natman]

Not in the eyes of the ATF. The person paying for the gun is the actual buyer.

Question 11.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party. ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANS- FEREE/BUYER of the firearm and must answer “NO” to question 11.a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual transferee/buyer of the firearm and should answer “YES” to question 11.a. However, you may not transfer a firearm to any person you know or have reasonable cause to believe is prohibited under 18 U.S.C. § 922(g), (n), or (x). Please note: EXCEPTION: If you are picking up a repaired firearm(s) for another person, you are not required to answer 11.a. and may proceed to question 11.b.

The person PAYING FOR THE FIREARM is considered the "actual buyer" even if it is being bought for the immediate purpose of being given as a gift.

The relevant part in the example is:

Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith.

In the example Jones fills out the 4473, but Smith is to be the actual owner. That's what makes it a straw purchase.

Who pays for it is only relevant in the special case of a purchase as a gift. If Brown pays for a gun with his own money and gives it to Black it's a gift. If Brown pays for a gun with Black's money and gives it to Black, it's a straw purchase.

Again, in the OP's scenario who paid for the gun is irrelevant, since the person filling out the 4473 is to be the owner of the gun.

 

[RetiredUSNChief]

The ATF defines “straw purchases” as the illegal purchase of a firearm by one person for another.

The test is "Is the person filling out the 4473 going to be the actual owner of the gun?"

Who pays for the gun is legally irrelevant. Now it's true that certain ways of paying for the gun may make it appear that it's a straw purchase, and I can't blame the dealer for being suspicious in the scenario the OP described. Using a pre-paid Visa card removes the appearance of a straw purchase, but the OP is still paying for the gun. However, since the nephew is filling out the 4473 and he is indeed the actual owner, it's not a straw purchase in either case.

Absolutely, positively, NOT TRUE.

The ATF is NOT concerned at all about "intent". They are ONLY concerned about the actual mechanics of the purchase.

IF YOU GO THROUGH THE PROCESS INCORRECTLY, THEN THE ATF CAN HAMMER YOU FOR IT.

This has always stuck in the craw for people who would like to purchase a gun for someone. The intent of the law is to prevent people from buying a gun for someone else who is not legally able to do so. But the law is enforced based on the mechanics of the purchase itself, not the intent of the purchase.

There is a straw purchase case before the Supreme Court (Abramski v. United States) which MAY resolve this issue in favor of the intent of the law and not the mechanics of the purchase itself. But until this case is decided one way or the other, if you do not go about purchasing the gun the correct way, the actual intent and eligibility of the people involved is NOT a factor in mitigating the charge of a straw purchase.

http://www.scotusblog.com/case-files/cases/abramski-v-united-states/

http://www.roanoke.com/news/article_17e0216c-83d0-11e3-b4cb-001a4bcf6878.html

 

[RetiredUSNChief]

The issue of straw purchases seems to go around the site periodically. Here's a link to a posting by Frank Ettin on the subject under the thread "What is a 'Straw Purchase'?"

http://www.thehighroad.org/showpost.php?p=8706822&postcount=23

Here's his posting:

Originally Posted by sota
...LEGALLY (folllowing all rules and regulations) buying 2* guns in my name with the explicit intent of selling 1 of those to a friend (also following all rules and regulations regarding private transfers) can not be considered a straw purchase, ...

Wrong.

Originally Posted by dogtown tom
...A straw purchase is not solely "buying for a prohibited person", but buying on behalf of ANYONE else.....from a licensed dealer.

Correct.

The actual offense is violation of 18 USC 922(a)(6), making a false statement on the 4473 (specifically about who is the actual buyer), and has nothing to do with the ultimate recipient being a prohibited person.

See the ATF publication Federal Firearms Regulation Reference Guide, 2005, at page 165 (emphasis added):

15. STRAW PURCHASES

Questions have arisen concerning the lawfulness of firearms purchases from licensees by persons who use a "straw purchaser" (another person) to acquire the firearms. Specifically, the actual buyer uses the straw purchaser to execute the Form 4473 purporting to show that the straw purchaser is the actual purchaser of the firearm. In some instances, a straw purchaser is used because the actual purchaser is prohibited from acquiring the firearm. That is to say, the actual purchaser is a felon or is within one of the other prohibited categories of persons who may not lawfully acquire firearms or is a resident of a State other than that in which the licensee's business premises is located. Because of his or her disability, the person uses a straw purchaser who is not prohibited from purchasing a firearm from the licensee. In other instances, neither the straw purchaser nor the actual purchaser is prohibited from acquiring the firearm.

In both instances, the straw purchaser violates Federal law by making false statements on Form 4473 to the licensee with respect to the identity of the actual purchaser of the firearm, as well as the actual purchaser's residence address and date of birth. The actual purchaser who utilized the straw purchaser to acquire a firearm has unlawfully aided and abetted or caused the making of the false statements. The licensee selling the firearm under these circumstances also violates Federal law if the licensee is aware of the false statements on the form. It is immaterial that the actual purchaser and the straw purchaser are residents of the State in which the licensee's business premises is located, are not prohibited from receiving or possessing firearms, and could have lawfully purchased firearms...

So, if --

1. X says to Y, "Here's the money; buy that gun and then we'll do the transfer to me [when I get back to town, or whenever else].", or


2. X says to Y, "Buy that gun and hold it for me; I'll buy from you when I get my next paycheck."

or anything similar, if Y then buys the gun, he is not the actual buyer. He is buying the gun as the agent of X, on his behalf; and X is legally the actual buyer. If Y claims on the 4473 that he is the actual buyer, he has lied and violated 18 USC 922(a)(6). His subsequently transferring the gun to X in full compliance with the law, does not erase his prior criminal act of lying on the 4473.

Some more examples --

- If X takes his own money, buys the gun and gives the gun to someone else as a gift, free and clear without reimbursement of any kind, X is the actual purchaser; and it is not a straw purchase.

- If X takes his money and buys the gun honestly intending to keep it for himself and later sells it to another person, X is the actual purchaser; and it is not a straw purchase.

- If X takes his money and buys the gun intending to take it to the gun show next week to see if he might be able to sell it to someone at a profit, X is the actual purchaser; and it's not a straw purchase. He may, however have other problems if he manages to sell the gun at the gun show, and the transfer there isn't handled properly. He might also have problems if he does this sort of thing too frequently, and the ATF decides he's acting as a dealer without the necessary license.

- If X takes his money and buys the gun with the understanding that he is going to transfer the gun to Y and that Y is going to reimburse him for it, X is not the actual purchaser. He is advancing X the money and buying the gun for and on behalf of Y, as Y's agent. So this would be an illegal straw purchase.

Whether or not a transaction is an unlawful straw purpose will often be a question of intent. But prosecutors in various situations can convince juries of intent, often from circumstantial evidence. A slip of the tongue, posting something on the Internet, tracks left by money transfers have all, in one way or another, and in various contexts, helped convince a jury of intent.

 

[F-111 John]

Nevermind

 

[Jackal]

Just send the kid a prepaid card or money order and let him buy it.

 

[Warp]

Just send the kid a prepaid card or money order and let him buy it.

That already happened.

 

[Art Eatman]

See Post #21.