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Old March 15, 2011, 09:17 PM   #1
osallent
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Need to buy a gun to find out if you can own one?

I was shopping for supplies for my new shotgun today at a local dealership when a man walked through the door and explained to the gun dealer that he had a restraining order issued 18 years before when his wife divorced him, and that the restraining order had expired many years ago, but other than that he had a clean record and wanted to know if he could buy a gun.

The dealer told the man that the local police no longer did these checks, and the only way for him to find out if he could own a gun was to buy one and see if he passed the background check, but he would risk paying for a gun he may or may not be able to own.

I was enraged at what I was listening for two reasons:

1) Is it true that if a restraining order is expired, you still can never own a gun? That doesn't seem right, and if it is, it seems messed up. I'm studying law, and I know for a fact that some family law lawyers tell the women to get a temporary restraining order because it will help the case, even if they have no reason to fear anything. And temporary restraining orders are handed out like candy without proof of anything.

2) It seemed hypocritical for this dealer to tell the man he couldn't run a simple $5 background check for him unless he bought a firearm that he may/or may not be able to take home. So what the dealer was basically saying was this: "Buy the gun, and if you don't qualify, I keep the money and the weapon since I have a no return policy." He didn't quite say it like that, but you get the point. Very immoral if you ask me.

I almost butted in to tell the man to get a lawyer and go buy a gun somewhere else than with this con-artist who calls himself a dealer, but decided instead not to cause a scene and left the store and went to another guns store instead to buy the supplies I needed.

Any thoughts on any of the two things above?
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Old March 15, 2011, 09:24 PM   #2
Kodyo
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I agree, that seems really sketchy. I don't see why they couldn't run the background check prior to the sale and then have an easy sale after running it. I'm not a dealer though, so maybe there is some weird stipulation on background checks.
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Old March 15, 2011, 09:24 PM   #3
osallent
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PS: I know it sounds like an odd question coming from a law student, but law school teaches you very little state law, only general legal doctrines....and for some reason my computer is not letting me log into the state's website to check the state statutes.

One thing is for sure, I think I will stick to my regular gun dealer from now on. This was the first time I shopped for gun supplies somewhere else (I really needed a new choke for the shotgun and this guy's place was closer to the range.) I noticed this guy's prices for everything was higher than my regular dealer....and I didn't like what he was telling that guy either.
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Last edited by osallent; March 15, 2011 at 09:30 PM.
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Old March 15, 2011, 09:35 PM   #4
raftman
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Just about every dealer I've ever bought from didn't even take any money until after you've passed the background check, however, even if they did accept money before the would-be buyer goes through the check, if the buyer fails to pass, that does not entitle the dealer to keep both the money and the firearm.
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Old March 15, 2011, 09:39 PM   #5
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The dealer CAN'T keep the money. The "purchase" of a firearm is NOT complete until the buyer takes possession. The buyer can not legally take possession until the background check has been completed and a proceed was issued, or until three business days have elapsed.

As it stands, I don't know of a way to run someone through NCIS/FDLE without an attempt to purchase a firearm.

What you can do, is order a copy of your criminal history with dispositions, from all of the counties you had an arrest in, and read the laws for your state, and compare them.
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Old March 15, 2011, 09:44 PM   #6
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I thought it was actually illegal for a prohibited person to attempt to buy a firearm, not just illegal for him to actually own one. In fact, I thought that if you try to buy a firearm and fail the background check, they advise you to appeal right away because otherwise the failed attempt itself is illegal and can result in the Police showing up at your door.

This is a case where the guy should be talking to a lawyer who is knowledgable about firearms law, and not asking a gun store clerk.
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Old March 15, 2011, 09:45 PM   #7
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If your nics check disqualifies you from purchasing, it means just that. Buying a handgun is not a crapshoot where ya pays your money and take your chances. In otherwords, if you're prevented from purchasing from a FFL the sale cannot take place. Buyer keeps his money and seller keeps the gun.

I think the clerk simply meant he would have to try and purchase to find out. And really, unless he actually wants to purchase a handgun, the point is moot.

If the court order is expired, then it's not an obstacle. Can there be erroneous information on a background, sure. But these are clerical or ministerial issues.

If you ever deal with domestic relations in your practice, you may discover why many lawyers avoid it like the plague. Even so-called "good" people may become unhinged. There is no other field of law where you will witness more raw emotion.
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Old March 15, 2011, 09:47 PM   #8
osallent
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I'm glad I've never done anything that would get me arrested or in any sort of trouble. All the background checks and paperwork to get a gun is bad enough as it is.

However, I was doing a background check on myself prior to applying to law school (just for fun to see what the records said about me) and I found out an ugly little thing about myself that I had forgotten: I had a traffic ticket from 10 years previous for $120 for crossing a solid line

I guess no one is perfect.
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Old March 15, 2011, 10:14 PM   #9
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To me it sounds as if the Dealer was maybe feeding this guy manure so as not to waste his time if something did come back and he was unable to sell the firearm. In any case he was stereotyping him... that happens a lot. My grandfather who has money will pay straight cash for a car. But if he went to a dealership the way he normally looks (shorts tshirt) most people wouldn't think he had a buck to put down on a car. But they would be wrong.
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Old March 16, 2011, 01:06 AM   #10
Mello2u
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ATF Form 4473 Look at question 11.h.
"Are you subject to a court order restraining you from harassing, stalking or threatening your child or an intimate partner or child of such partner?"

This would seem to be the applicable Federal issue that the man you overheard was concerned about. Whether there are state laws which also apply I do not know. The pertinent language above to me would be ". . . subject to . . ." If the restraining order was many years old, I would argue that he is no longer subject to that order.
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Old March 16, 2011, 08:02 AM   #11
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He can't legally take his money. He didn't make a purchase yet until after the NICS check. The dealer must be smelling too much Hoppe's.
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Old March 16, 2011, 08:25 AM   #12
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An expired restraining order does not make him a prohibited possessor.

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Old March 16, 2011, 08:37 AM   #13
oletymer
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Apply for a concealed weapon permit and you will know if you would have a problem buying. If you get the permit then background checks are not required every time you buy a gun.
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Old March 16, 2011, 02:06 PM   #14
Don H
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Quote:
Originally Posted by oletymer
If you get the permit then background checks are not required every time you buy a gun.
That's not always true. A few years ago BATF notified a number of states that the permits they issued did not qualify for bypassing the NCIS check.
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Old March 16, 2011, 02:18 PM   #15
aarondhgraham
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Quote:
The dealer told the man that the local police no longer did these checks, and the only way for him to find out if he could own a gun was to buy one and see if he passed the background check, but he would risk paying for a gun he may or may not be able to own.
I had one dealer at a gun show try this lame trick on me,,,
He said I had to pay for the gun before he could call in the form 4473.

Now I know (barring some error) I will not be tuned down,,,
But no way in Hades am I going to hand over my money before he calls it in,,,
Even if I did pay first, and was denied by the powers that be, I would get my money back.

This is just trash merchandising at it's worst,,,
Find someone else to buy your gun from.

You simply don't give him your money until after you have cleared the 4473 process.

I hate predatory merchants!

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Old March 16, 2011, 05:16 PM   #16
Aguila Blanca
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Quote:
Originally Posted by Don H
Quote:
Originally Posted by oletymer
If you get the permit then background checks are not required every time you buy a gun.
That's not always true. A few years ago BATF notified a number of states that the permits they issued did not qualify for bypassing the NCIS check.
You are confusing two issues.

If you can't pass a background check you won't be issued a carry license/permit. The background check for those is essentially the same as the NICS to buy a firearm.

And the fact that some states' CCWs don't qualify for BYpassing the NICS doesn't mean that you would not pass a NICS if your name is called in. It only means that for whatever reason the BATFE has a burr under their saddle about that state's permit process. So ... is getting a carry permit a 100 percent guarantee that you'll pass a NICS? No -- but it's a pretty good start at finding out.

Last edited by Aguila Blanca; March 16, 2011 at 10:46 PM.
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Old March 16, 2011, 06:18 PM   #17
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Quote:
only way for him to find out if he could own a gun was to buy one and see if he passed the background check, but he would risk paying for a gun he may or may not be able to own.
Perhaps the dealer was just trying to convince the gentleman from even starting the process because he didn't think he'd pass the background check. I'm sure the dealer hears a lot of "I'm not sure if I can pass but let's fill out the forms and see....."
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Old March 16, 2011, 10:03 PM   #18
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Sounds like he and Nancy Pelosi might have been classmates (We have to pass the Bill so we can find out what is in the Bill...) :barf:

Both of the above should be standing in an unemployment line, or better yet, behind bars.

Unethical at best, criminal at worst.

At the local (DFW TX area) gun shows, some vendors display a sign that if you fail the background check, you will be charged $15. So it appears that they can run the check pre-purchase.

(I have a TX CHL so for me it is a non-issue...)

Last edited by orionengnr; March 16, 2011 at 10:53 PM.
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Old March 16, 2011, 10:42 PM   #19
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Quote:
It seemed hypocritical for this dealer to tell the man he couldn't run a simple $5 background check for him unless he bought a firearm
I am not sure if it runs different from state to state. I am a dealer, and I was instructed by my assigned ATF investigator, that I could not run a check until the weapon was paid for. Physical possesion of the weapon is not met, until the 4473 form is filled out and the weapon is paid for. In fact, the regs state, that if the background check is denied, the weapon has to placed on hold for 30 days, until the completetion of the appeal process and is is still considered the persons' who bought it. If they fail the appeal process, most dealers I know return the monies, minus 10%.

An FFL dealer got stung by ATF in Orlando for doing back ground checks without the purchase of a firearm. I believe the reason why they do this, is to help track straw purchases and track people who are trying to by guns that can't own them. Plus, when you call in a background check, and you have to tell the operator, handgun, long gun, or both. Also, you have to indicate in your log books the corresponding firearm with transaction, even if it is a denied.

When I have visted the shot show, I have spoken to other dealers from around the country and rules and regs seem to vary from area to area. I think it has alot to do with the ATF regional offices, and their particular interputation of the regs or how they choose to run things.
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Old March 17, 2011, 02:20 AM   #20
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One of my brothers had domestic violence charges brought against him a few years ago. As such, he had to get rid of his firearms (still in the family), and forfeited his CCW permit.

Over the course of 12-18 months, all charges were dropped.

Earlier this year, he wanted to apply for a Pronghorn Antelope tag. Before doing so, we told him to check on the legality of possessing a firearm (he never got a clear ruling on the subject, after the charges were dropped).

After many, many phone calls to various agencies; his only option was going to the local BCI office in person.

Long story short:
BCI told him they could not tell him if he was able to buy a gun, unless he tried to do it. He has to attempt to buy a firearm, in order to find out if it is legal to do so. If the BCI check gets approved, he can buy a firearm and/or possess them. If it gets denied, he can pursue the matter further at that time.

The way I understand it, the current process goes back to a bill that passed just after 9/11. It is illegal for BCI to check the background of an individual, without being prompted by a firearm purchase or law enforcement inquiry.
(The same bill that blocked public access to DMV records. ...A topic that really gets me angry when I get door-dinged, hit in a parking lot, or hit by drive-by vandals - but LEOs won't fill out a report, because the damage isn't a high enough dollar value by their uneducated, eyeballed estimates.)


My brother called around, to see if any of the shops would be willing to make a quick $50 for nothing, but a background check on a firearm that would instantly be "returned". No one would do it. They claimed it wasn't worth the risk, an some stated it was out-right illegal. Whether they don't want to "waste" their time, or it is actually against some kind of regulation - he's going to have to save his money for a new firearm, before he can find out if he's even legal to possess one.
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Old March 17, 2011, 03:54 AM   #21
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Here's the current Florida law:

Quote:
It is unlawful for:
any convicted felon to have in his or her possession any firearm or to carry a concealed weapon unless his civil rights have been restored.

The following persons to own, possess or use any firearm - drug addicts, alcoholics, mental incompetents, and vagrants.

For persons to have in their care, custody, possession, or control any firearm or ammunition if the person has been issued a final injunction that is currently in force and effect, restraining that person from committing acts of domestic violence.
Last paragraph pretty much makes it clear the restraining order must be currently in effect to deny purchase.
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Old March 17, 2011, 02:46 PM   #22
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Why not go to the sheriffs office and ask them to run your info. After Brady laws went into effect the state allowed sheriffs to give out permits to purchase for buying handguns, now it is req by law. Depending on your state they may be able to help you out.

If he wants to see if he can buy a gun, why doesnt he just go and buy one? A 100.00 rossi single shot shotgun would do it.
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Old March 17, 2011, 03:02 PM   #23
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Quote:
Why not go to the sheriffs office and ask them to run your info. After Brady laws went into effect the state allowed sheriffs to give out permits to purchase for buying handguns, now it is req by law. Depending on your state they may be able to help you out.

If he wants to see if he can buy a gun, why doesnt he just go and buy one? A 100.00 rossi single shot shotgun would do it.
The laws in this state don't allow that as an option. BCI controls the information, and won't access it without a valid reason (firearm purchase, or LE inquiry).

And... we have no use for a Rossi single shot. Buying a firearm that won't be used is a waste of money. Another brother, and I, are in the market for a couple of firearms. We have spent a bit of time, trying to find a legal way to allow the "grey area" brother to try purchasing something for us. But... we always decide there is no way around it being a straw purchase. (No matter what the circumstances are, it would be our money. By definition, that's a straw purchase.)

He'll just have to save his money, and find something for himself.
(He'll be needing a new .30-06, anyway. The one he sold off when he was charged will not be leaving the hands of its current owner.)
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Old March 17, 2011, 03:19 PM   #24
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I don't know where it is in writing, if at all, but dealers have told me that BATFE policy is that the background (NICS) check is to be used ONLY in connection with the purchase of a gun, not for checking up on your cousin Joe, your daughter's boyfriend, or the guy who wants to borrow money from you. I suspect dealers want to make sure the prospective buyer is serious before running the check; it is a PITA and takes time and if there is no intent to purchase a gun it might be seen as not "in connection" with a gun sale.

Jim
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Old March 17, 2011, 08:39 PM   #25
ursavus.elemensis
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Having never been subjected to the business end of a protection from abuse order, I am wondering, Do these things have some sort of expiration date? The OP mentions that the restraining order was long ago. Is it still in effect, and if not, how do you KNOW it is not in effect. In other words, did it have an expiration date? Did it get revoked by a court order? Do your homework, find out if it is still in effect, and then get a good lawyer who understands gun laws in your state. Isn't there an NRA database of lawyers who understand gun case law?

Sounds like at least 2 forum members have found out first hand that, NO, you can't even pay someone to run a background check unless you are seriously trying to actually buy a firearm. But I still think that TRYING to buy a firearm as a prohibited person is illegal in and of itself, so he is kind of stuck. the only way to find out if he is going to be deemed a prohibited person is if he tries to buy a firearm, but according to me, if he does and fails the background check, he is guilty of being a prohibited person and trying illegally to obtain a firearm.

Get yourself qualified legal counsel as sson as you can.
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