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What is a "Straw Purchase?" (see post 23)

Discussion in 'Legal' started by HEAVY METAL 1, Jan 31, 2013.

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  1. HEAVY METAL 1

    HEAVY METAL 1 Member

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    Let's say your buddy has the opportunity to purchase 2 guns of the type you both are wanting and he offers to sell one to you. You are not under any legal prohibition from buying one yourself, but you live some distance away and are unable to travel to the seller's place to buy it yourself.

    I know a straw buy is buying one for an unqualified individual, but is the above hypothetical situation considered a straw purchase as well? In my mind this is no different than buying 2 guns on sale and you turn around and sell one for a profit.
     
    Last edited by a moderator: Jun 16, 2014
  2. suemarkp

    suemarkp Member

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    Yes I think this is a straw purchase, especially if he gives you money for it in advance. The eligibility of the other person isn't the issue -- the 4473 asks if this gun is for YOU. So either you are lying on the form or the transaction will be denied.

    There is a gift provision, but doesn't seem to fit your scenario.

    If you're specifically buying it to sell, and make a profit at it, you're close to dealing in firearms without a license.
     
  3. dogtown tom

    dogtown tom Member

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    The term "straw purchase" is often used in the wrong context. A straw purchase occurs when somone OTHER THAN the actual buyer/transferee attempts to acquire a firearm from a licensed DEALER. If the seller is not a licensed dealer then a straw purchase is impossible.

    If the straw purchaser signs the 4473 they commit perjury as they were NOT the actual buyer. ATF makes it clear on the 4473 that buying a firearm as a "gift" is completely legal as long as the third party is not otherwise prohibited from possessing the firearm.

    A straw purchase is not solely "buying for a prohibited person", but buying on behalf of ANYONE else.....from a licensed dealer.
     
  4. BK

    BK Member

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    If the seller is a dealer then it is a straw purchase because your friend is not the actual purchaser of that firearm and when he has to answer this question on the 4473 he will either have to lie or the truth will negate the transaction. A straw purchase doesn't have to mean that the intended end user is prohibited from taking posession. It means the end user used another purchser to acquire the gun.
     
  5. Davey Wavey

    Davey Wavey Member

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    What if the original buyer sells the gun and transfers out of state through an FFL? Is that still a straw purchase?

    I ask because my out of state brother in law was looking for some ar15 lowers and I offered to buy one off him if he were able to find any.
     
  6. john wall

    john wall Member

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    If the person buys the guns for himself WITH HIS OWN MONEY and later decides to sell or gift one or both of them he is good.

    He might buy the guns and five minutes later have buyer's remorse and want to sell one. If no laws are violated in transferring, no problem. It is how you say it more than what you say.;)
     
  7. Fryerpower

    Fryerpower Member

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    Edit: Left as is for historic record, see post 24 for modified statement.

    Your buddy can buy two with his own money, test shoot both, pick out the one he likes, and then sell the other. Completely legal.

    (In my non attorney humble opinion.)

    Jim
     
    Last edited: Feb 1, 2013
  8. Kiln

    Kiln Member

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    Buying any firearm with the intention to turn around and directly sell it to another person is a staw purchase regardless of whether or not the other person is prohibited.

    You can buy a gun with the intent to sell it later for a profit but you can't buy one knowing that you're about to flip it for a profit right afterwards to an unlicensed individual (private sale).
     
  9. CWS515

    CWS515 Member

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    As John Wall states above it is in the "intent" of the purchaser. However it gets hard to straight face say you had buyer's remorse five minutes after purchase and then sell it as quickly. The further you are from the purchase (purchase date to sell date) when you resell the easier it would be to to keep out of trouble for a "straw purchase". The argument can be made in reselling that you decided it was silly to own two of the same or similar weapon and you weren't using it so you just sold it to your buddy, brother-in-law, whomever. However you do it, you are rolling the dice and taking your chances if you are caught being less than truthful.
     
  10. curlymaple42

    curlymaple42 Member

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    I would guess that your brother rendering it through an ffl to you negates the straw purchase clause. He didn't just hand it to you, rather went through your ffl.

    Sent from my DROID RAZR
     
  11. sean326

    sean326 Member

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    Maybe it's a frequency thing... I've been buying guns for 30 years. very infrequently, maybe every couple years if a friend or family member wants a gun that i'm tired of i'll sell or maybe even give it to them. Thats not a straw purchase. when i buy or sell something on GB its FFL to FFL. I even just had a family member knowing that i was going to a gun auction ask me to find a cheap 12g pump for him to keep around the house. I bought an old sears pump for $80.00 that looked dependable and handed it to him a couple days later..... not a straw purchase. Recently sold an '03 to a neighbor for $250.00 that i bought in the '80s for $75.00.... big profit, not a family member, not a straw purchase.
     
  12. sota

    sota Member

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    I'm sorry but...
    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, especially if he is LEGALLY able to own the firearm himself. if all rules and regulations are followed then how can IN-REGION geography be used as a means to declare a sale invalid or a "straw purchase"?

    maybe it's because I'm in NJ and work to understand the draconian nature of the laws here, but because of them you can't accidentally have a straw purchase. we have to fill out STS-033 to get a pistol purchase permit, which is then populated with my info (seller) and his info (buyer) and shipped off to the state and local PD's. the only form I would have completed and he wouldn't have would have been 4473. i don't see how it would be lying. Also I think the instructions for line 10.a are ambiguous... which I can't copy/paste here from the PDF for some bizarre reason. My issue is with the wording of buy vs. gift... if someone gives me money to use to buy a handgun it's Bad; but if I use my own money and gift it to them it's Good? it seems like it's a splitting of hairs as to when money changes hands (and from whose hands it comes from.)

    To me, 'straw purchasing' as illegal is intent to stop the "he man... I need a gun. go buy one for me" crowd/bad-people, not the "Joe! I'm at CTYM** guns! they got in ONE of that pistol you wanted!" (and Joe can't physically get to the store in a reasonable amount of time for whatever reason.)

    * note: yes I know I can only "buy" 1 handgun every 30 days in this state (NJ). technically that's not true... i can buy (physically pay for) as many as I want at one time... I just can't have TRANSFERED to my possession mor than 1 handgun every 30 days without trying to get the exemption put through. so I could buy 12 handguns on Jan 1st, but wouldn't physically take possession of the 12th one until December, without the exemption processed.

    ** note: please tell me someone got that reference.
     
  13. CWS515

    CWS515 Member

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    Purchasing and later reselling a gun, as it may or may not relate to a so called "straw purchase", has to do with the original intent and context of the purchase and possible "gifting" or reselling of it. If by chance the gun you sell to whomever was ever used for some nefarious purpose the transfer of the gun would be "investigated" taking into account what the factors were that went into the purchase and its subsequent sale or transfer and whether it meets the "straw purchase" definition. Of course what I'm saying here is in the context of dealing with people on all sides who possess some common sense which all too often is sadly lacking.
     
  14. Kiln

    Kiln Member

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    All that internet law sounds great in theory but good luck if you happen to end up in court explaining that you didn't perform a straw purchase for somebody and that you just happened to buy two of the same gun and then just happened to decide to sell it immediately.

    If you buy a gun FOR somebody with the intent to accept cash for it right afterwards, you're performing a straw purchase.
     
  15. Bubbles

    Bubbles Member

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    Is dealing without a license.
     
  16. beatledog7

    beatledog7 Member

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    There are two questions here: The expressed question, "Is it a straw purchase?" is easy to answer, and it has been answered. The second, unexpressed question is a little more gray: "Is it ethical/responsible?"

    That's a question we toss about in many ways on THR, and it always seems to end the same way, with guys on the "keep it ethical/responsible" side being called wimps by guys on the "if it's not technically illegal then I'm doing it" side, and guys on the IINTITIDI side being called out as less-than-respectful by those on the KIER side.

    Nobody wins.
     
  17. Krusty783

    Krusty783 Member

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    http://www.atf.gov/training/firearms/ffl-learning-theater/swf/toon4.html

    Yes, this is a straw purchase, albeit with good intentions. You should purchase 1 of the firearms as a gift, but I don't know the proper way to do that. I suppose you'd have to get the FFL to hold it while your friend sends him a copy of his ID and use that to fill out the paperwork. Assuming your buddy passes the background check and pays for the firearm, you could then take possession of it on his behalf to transport it to him. Though, given today's market, I haven't seen a single dealer willing to hold anything without payment in hand which means you'd have to pay for your friends gun, which would be a grey area between a straw purchase and a gift, legally.

    In reality, you could decide to buy two yourself and then realize you don't need two and sell one of them. Doing this repeatedly will constitute a business. Doing this infrequently will probably not land you in any trouble because I don't see the authorities going after everyone selling marked up ARs and ammo on gunbroker and gunsamerica, so I doubt they'll come looking for you. Also, there is no "gun registry" and the only evidence of intent is your testimony in the gunbroker listing, etc. So yes, this is a straw purchase and illegal, but I highly doubt anyone doing this for a friend who is eligible to purchase the firearm, but happens to not be in the right place, will get caught unless they start blabbing about it.
     
  18. CLP

    CLP Member

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    Whether it is or isn't a straw purchase, I have no moral objections to the scenario posted by the OP.
     
  19. Phatty

    Phatty Member

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    As others have mentioned, when determining whether a transaction is a "straw purchase" it makes no difference whether the gun is being purchased for a prohibited person.

    But, from a practical point of view, the odds of you being prosecuted for a "straw purchase" go up dramatically if the person you turn around and sell the gun to is a prohibited person. There are two reasons for this: (1) if the transferee is not a prohibited person than it is a "no harm, no foul" situation where its not worth anyone's time to prosecute, and (2) it makes it extremely difficult to prove intent when there was no barrier to the transferee simply buying the weapon on his own from the dealer.

    Not a straw purchase: You go into a gun store and see a great deal on a shotgun that you know your friend has been saying he really wants. You buy it, hoping to immediately sell it to your friend.

    Straw purchase: You mention to your friend that you saw a great deal in a gun shop the day before on shotguns and you plan to go there again today to buy one. You ask him if he wants you to buy one for him too. He says yes and gives you money to buy one for him. You go to the store later that day and buy the shotguns.
     
  20. CoRoMo

    CoRoMo Member

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    Emphasis added...
    Not necessarily. As has been stated, and since the OP never mentioned buying from a dealer, straw purchases can only occur illegally when buying from a dealer. If you buy the estate of a deceased gun owner while only interested in keeping one of the items, with the premeditated intention of selling off the remaining lot that came with it, directly thereafter, you are not "in a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the firearms".

    A straw purchase is ONLY defined as a transaction where the purchaser lies when answering question 11a on the 4473 form: http://www.atf.gov/forms/download/atf-f-4473-1.pdf
     
  21. grahluk

    grahluk Member

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    I know I'm going to catch it from some here but after reading through all of this I'm not buying it. Too many vagaries of intention and too many ways to fall afoul of the law or skirt it for reasons benign or malicious. Call me what you like but I think this is one area I can support the antis on. Background check and recorded transfer for all sales and transfers. "Assault weapon" ban. No. Magazine restrictions. No. Registration. No. Improving databases of prohibited individuals, NICS checks on all sales & transfers, putting serious teeth into prosecution of crimes. Yes. Sorry if it's an inconvenience for someone who just wants to pick up a firearm for their buddy because they just happen to be at the dealer and could pick it up for him. If he wants it that bad he can get his ass down there with cash & ID to purchase it himself. If he's far away or out of state that's not a problem either in this day and age. Call up the dealer, put a deposit down on CC and start the sale then FFL>FFL the weapon to him.
     
  22. CoRoMo

    CoRoMo Member

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    The only reason you should catch any flak is because you are trying to drift the discussion away from the original topic and onto gun control ideology.

    I would point out that the universal background checks that you advocate would not prevent someone from buying two guns from a dealer, one with his own money and one with his buddy's money, only to turn around and hand one of those guns to the buddy. You can't regulate that action away, it will occur regardless of what new law is written. Criminal straw purchases cannot be prevented by writing laws. Few can be caught at the point of purchase by an observant dealer, many cannot.

    They take place multiple times a day, all across this nation, every day and they are already illegal and almost entirely undetectable. Making them double-nasty illegal with spit on top... won't affect this.
     
  23. Frank Ettin

    Frank Ettin Moderator

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    Note: The Supreme Court has issued its ruling in the "straw purchase" case, Abramski v. U. S.. Based on that ruling the following explanation of what constitute a straw purchase under the ATF interpretation reflects current law. See here for a discussion of the Abramski ruling.


    Wrong.

    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):

    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.
     
    Last edited: Jun 16, 2014
  24. Fryerpower

    Fryerpower Member

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    And the current and past failure of the DOJ to effectively prosecute this is a huge part of the problem. I keep bringing this up, but a couple of months ago a teacher in Huntsville, Alabama was sentenced for four counts of straw purchasing, one was an AR-15, to a known felon. What did she get? Two years of probation and six months of electronic monitoring. FAIL!

    We don't need new laws on this. Enforce the existing ones!

    So back to the thread, I guess I should modify my earlier post to:
    "Your buddy should buy two with his own money without ever having talked to you about what he found or asking you if you were interested, test shoot both, pick out the one he likes, and then see if you or anyone else wants to buy the other. Completely legal.


    Jim
     
  25. wildbilll

    wildbilll Member

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    Perhaps if, after buying both of these guns, the buyer was to shoot both of them. The buyer would have purchased both guns for the intent of using both of them. Then at some point later, when one of them was sold, it would be a used gun.
    That sounds like it walks the line very close, but doesn't seem like a purchase with an immediate transfer to someone else.
     
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