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Old October 14, 2010, 09:56 AM   #1
leadcounsel
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Straw purchase??

Scenario:

Buyer and wife life in town X in Wyoming. Buyer is out of town. Seller lives in town Y, also in Wyoming. Buyer, wife, and seller all legal to own, purchase, etc.

Buyer wants to buy gun from Seller. Seller offers to deliver gun to buyer's home to buyers wife, on behalf of buyer.

1) Straw purchase? Or is a straw purchase only through an FFL?
2) Better for buyer to send funds through the mail to Seller, or to have wife pay Seller directly.
3) Or better to have seller to sell to wife, and then wife can sell/gift to Buyer?
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Old October 14, 2010, 10:20 AM   #2
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Quote:
Originally Posted by leadcounsel
1) Straw purchase? Or is a straw purchase only through an FFL?
Since the legal definition of "straw purchase" is giving a false answer to question 11a, ("Are you the actual transferee/buyer of the firearm(s) listed on this form?"), it is impossible to have a "straw purchase" without a 4473.

As long as the above transaction conforms to all state and local laws and ordinances and everybody is legally allowed by the federal government to possess firearms, I can't see what federal laws or regulations it would break, but I'm no lawyer, nor do I play one on the intertubes.
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Old October 14, 2010, 01:57 PM   #3
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A more practical definition of a straw purchase is when a non-prohibited person makes a purchase and accepts a transfer of a firearm for a prohibited person, then illegally turns the firearm over to the prohibited person. It doesn't really matter if the seller is or isn't an FFL, or if a 4473 is or is not involved.

In the scenario above, the wife is not a prohibited person, so I don't see anything to turn the transaction into a straw purchase.
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Old October 14, 2010, 02:19 PM   #4
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If I'm understanding the question right the wife is going to accept the delivery for the husband? Like it was stated no problemo if I understood the question right.

While we are at it being I have a FFL-03 can my wife sign and accept delivery of a firearm if I am not at home on my behalf?
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Old October 14, 2010, 02:28 PM   #5
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Quote:
Originally Posted by Aguila Blanca
A more practical definition of a straw purchase is when a non-prohibited person makes a purchase and accepts a transfer of a firearm for a prohibited person, then illegally turns the firearm over to the prohibited person...
I agree that would violate the GCA (at least the ultimate transfer to the prohibited person), but that's not what ATF would consider a "straw purchase." See http://www.atf.gov/publications/down...f-p-5300-4.pdf (pg 165):
Quote:
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...
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Old October 14, 2010, 02:38 PM   #6
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Tamara is right, the crime is lying on form 4473.

It is still an illegal straw purchase even if the person you're giving it to is not a prohibited person (because again, the crime is lying on the form).

It seems in OP no form 4473 was ever used and thus this is not a straw purchase.

so to answer:

1. Not a straw purchase. Star purchases can only happen when a 4473 is involved, which is only involved when dealing with an FFL.
2. Doesn't matter who pays for it because you're not dealing with an FFL. If you were dealing with an FFL it matters very much who pays for it.
3. If dealing with an FFL this would be the best course of action, but again, no FFL here.

4. State laws apply

I am also not a lawyer.
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Old October 14, 2010, 04:51 PM   #7
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If you knowingly transfer a gun to a non gun allowed person you break other laws. Like a brother has domestic issues cannot get a gun so you give him one knowing he cant buy one, that is against the law. Be careful.
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Old October 14, 2010, 05:05 PM   #8
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It is perfectly legal for a husband/wife, father/mother, brother/sister etc. to purchase a firearm for a close relative so long as all parties involved are permitted to possess the weapon. Example: a father may buy a firearm for his son even though his son is not old enough to buy it for himself.
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Old October 14, 2010, 05:22 PM   #9
Tamara
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Quote:
Originally Posted by Aguila Blanca
A more practical definition of a straw purchase...
"practical" does not matter.

There is no such federal crime as a "straw purchase".

Lying on a Form 4473 to obtain a firearm for someone else is a crime. It is popularly known as a "straw purchase".

Please, please study the laws carefully before offering opinions on these topics.
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Old October 14, 2010, 07:45 PM   #10
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Quote:
It is perfectly legal for a husband/wife, father/mother, brother/sister etc. to purchase a firearm for a close relative so long as all parties involved are permitted to possess the weapon. Example: a father may buy a firearm for his son even though his son is not old enough to buy it for himself.
Let's be careful here.

There is a difference between possessing and purchasing. Sometimes the requirements differ.

For instance, here in MI it is legal for an 18 y/o to possess (own) a handgun. That is a state law. But federal law states it is illegal for anyone under 21 to purchase a handgun from an FFL. So a 19 y/o here in MI could own a handgun but he could not buy it.

So the obvious question is now "how does one come to own a handgun but not purchase it?"

Here in MI, the normal process is through gifting. Dad buys a handgun, Dad then goes to the sheriff's office and has the gun's registration (it's called a safety check here in MI) transferred to 19 y/o Johnny. This is kosher. What is NOT kosher is if Johnny gives Dad money to buy the handgun and Dad goes and buys the handgun and then transfers it to Johnny. This is a straw purchase. Even though Johnny is able to possess a handgun.

It would also be illegal (here in MI) to gift the pistol to Johnny if Johnny is under 18.

Here is where it gets strange. If you're not an FFL, it is totally legal for 19 y/o Johnny to buy a handgun from you here in MI. As long as you're not an FFL. This is state law. He just can't buy it from you if he is under 18.

All previous examples apply only to MI law (I think I covered them all anyways, but making a blanket statement here).

I am not a lawyer, but I did sleep at Motel 6 last night.
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Old October 14, 2010, 08:31 PM   #11
divil
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Quote:
Lying on a Form 4473 to obtain a firearm for someone else is a crime. It is popularly known as a "straw purchase".
+1, this is absolutely correct.

Quote:
If you're not an FFL, it is totally legal for 19 y/o Johnny to buy a handgun from you here in MI. As long as you're not an FFL
Just to add to that: I am pretty sure that FFLs can, under federal law, make a limited number of "private" transfers per year, as long as they privately own the guns for a certain limited time beforehand. In such cases, it's as if they didn't have an FFL (I think). Of course the law in your state overrides that, unless there is a similar clause.
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Old October 14, 2010, 09:05 PM   #12
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In such cases, it's as if they didn't have an FFL (I think). Of course the law in your state overrides that, unless there is a similar clause.
MI doesn't really care. If the pistol is transferred, the registration has to be transferred. Has nothing to do with an FFL and their private transfers.
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Old October 14, 2010, 11:00 PM   #13
Aguila Blanca
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Quote:
Originally Posted by Tamara
Quote:
Originally Posted by Aguila Blanca
Originally Posted by Aguila Blanca
A more practical definition of a straw purchase...
"practical" does not matter.

There is no such federal crime as a "straw purchase".

Lying on a Form 4473 to obtain a firearm for someone else is a crime. It is popularly known as a "straw purchase".

Please, please study the laws carefully before offering opinions on these topics.
There is no federal OR state crime specifically called a "straw purchase." But according to you, the ONLY crime committed if a straw man (or straw woman) buys a handgun for a prohibited person and subsequently transfers it to said prohibited person is the false statement on the 4473? NO other crime has been committed? It isn't illegal for the straw man to transfer the weapon to the prohibited person, or for the prohibited person to receive it?

I respectfully disagree with your analysis. I think you're overlooking a few salient points. Such as 18 U.S.C. § 922(d).

Last edited by Aguila Blanca; October 14, 2010 at 11:13 PM.
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Old October 14, 2010, 11:17 PM   #14
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Quote:
Originally Posted by Aguila Blanca
...It isn't illegal for the straw man to transfer the weapon to the prohibited person, or for the prohibited person to receive it?...
Of course it's a crime. It just doesn't go by the name of "straw purchase", at least as far as BATF is concerned.
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Old October 15, 2010, 12:34 AM   #15
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So, fiddletown and Tamara, essentially what you are saying is that in any state that allows direct, face-to-face sales of handguns without going through an FFL, if Jane Doe comes to your house in response to a for sale ad you placed in the local Shoppers' Gotcha paper, she says she'll take the gun, and shows you a carry permit from that state to prove to you that she's not prohibited ('cause you're a law-abiding type citizen and you asked), then after paying you she immediately drives home and hands to gun to her ex-convict, gang banger boyfriend who just finished 15 years of hard time ... no straw purchase has taken place because she didn't have to lie on a Form 4473?

That IS what you're both saying, but I hope you don't believe it. 'Cause I'll bet if the BATFE guys came to ask you about the details of the transaction, they'd be calling it a straw purchase.
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Old October 15, 2010, 12:44 AM   #16
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Quote:
Originally Posted by Aguila Blanca
... no straw purchase has taken place because she didn't have to lie on a Form 4473?...
That doesn't mean that Jane Doe hasn't committed the federal felony of transferring a gun to a prohibited person (and perhaps a bunch of state crimes as well). Why does that particular crime need to be called a straw purchase?
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Old October 15, 2010, 02:15 AM   #17
Aguila Blanca
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Quote:
Originally Posted by fiddletown
Why does that particular crime need to be called a straw purchase?
The title of this thread is "Straw Purchase?"

I don't think the OP was interested in finding out what the BATFE FAQ refers to as a straw purchase just to find out what the BATFE FAQ refers to as a straw purchase. I think he was interested in understanding what type(s) of transfers are legal and what types are not.

To make a blanket statement that the only "straw purchase" is one involving lying on the 4473 just because that's the only place the term appears in the BATFE FAQ is grossly misleading, since the "practical" (as I continue to regard it) meaning of a straw purchase is ANY purchase conducted by a buyer as a surrogate for a person who isn't legally allowed to make the purchase him/herself.
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Old October 15, 2010, 09:01 AM   #18
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Quote:
shows you a carry permit from that state to prove to you that she's not prohibited ('cause you're a law-abiding type citizen and you asked), then after paying you she immediately drives home and hands to gun to her ex-convict, gang banger boyfriend
Aguila, I have no real knowledge here, so I'll ask this question. Isn't it stated in the laws that a seller, FFL or private, must HAVE KNOWLEDGE that it is a straw purchase, in order for their actions to be illegal?
Otherwise, in this example, this seller is satisfied with proof, that the buyer is a legal person. Dealer/seller is totally legal. Is that not correct? I would interpret this as once the gun transfers from legal seller to legal buyer, seller is covered, and buyer's actions afterwards, are purely their own. The intent of the party/parties is important here.
Simply my opinion,
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Last edited by sixgun67; October 15, 2010 at 09:13 AM.
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Old October 15, 2010, 09:03 AM   #19
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Quote:
since the "practical" (as I continue to regard it) meaning of a straw purchase is ANY purchase conducted by a buyer as a surrogate for a person who isn't legally allowed to make the purchase him/herself.
Not so. According to the ATF publication quoted earlier, it makes no difference to a straw purchase whether or not the recipient is prohibited:

Quote:
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...
According to the ATF (in that statement), therefore, a straw purchase is lying about the identity of the purchaser. Technically, it's a crime whether they transfer the gun or not (although it would be difficult to prove if the transfer never takes place). If you transfer to someone who's prohibited, that's a separate crime.

I think you are confusing the legality of "purchasing" vs "transferring". In your example where Mrs Doe buys the gun privately for her husband, the purchase is perfectly legal. Until such time as she actually transfers the gun, no crime has been committed. And once she does transfer it, she's guilty whether she purchased the gun for that purpose or not. The ATF may call that a "straw purchase", and the media certainly will, but that is not consistent with their own published documentation (as quoted above).
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Old October 15, 2010, 09:13 AM   #20
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Quote:
Isn't it stated in the laws that a seller, FFL or private, must HAVE KNOWLEDGE that it is a straw purchase, in order for their actions to be illegal?
The law says that the seller must not have reasonable cause to believe that the recipient is prohibited. A driver's license to verify that the buyer resides in the same state is normally acceptable. I don't believe there is anything in the law that says the seller is responsible for who the buyer transfers it to afterwards.

However, that didn't save that guy in the gun show in Texas from being convicted: http://thefiringline.com/forums/show...=422790&page=2

Regarding that case, this ATF report fails to accuse the seller of violating any statute: http://www.foxnews.com/projects/pdf/...pelandCase.pdf

He went to jail all the same though. Presumably it's that whole "aiding and abetting" thing.

Note that they referred to this as a "straw" purchase, but as previously noted, that is in contrast with the ATF publication that fiddletown quoted.
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Old October 15, 2010, 11:54 AM   #21
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Quote:
Originally Posted by sixgun67
Aguila, I have no real knowledge here, so I'll ask this question. Isn't it stated in the laws that a seller, FFL or private, must HAVE KNOWLEDGE that it is a straw purchase, in order for their actions to be illegal?
Otherwise, in this example, this seller is satisfied with proof, that the buyer is a legal person. Dealer/seller is totally legal. Is that not correct? I would interpret this as once the gun transfers from legal seller to legal buyer, seller is covered, and buyer's actions afterwards, are purely their own. The intent of the party/parties is important here.
You are correct, insofar as the seller's culpability. That's exactly why I threw in the bit about the seller verifying the buyer's status. Remember, this is an example of a face-to-face purchase without an FFL or a Form 4473. The fact that the seller has no reason to believe that the buyer is a prohibited person (and, in fact, she is not) does not mean that the transaction is not a straw purchase. It only means that the seller should not be held liable or culpable.

The fact that the legal girlfriend buys the firearm for the prohibited person boyfriend makes it a straw purchase, irrespective of whether or not the seller was a willing and knowing participant in the overall transaction.

Even if there was no 4473 for her to lie on.
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Old October 15, 2010, 12:01 PM   #22
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The fact that the legal girlfriend buys the firearm for the prohibited person boyfriend makes it a straw purchase
So you are saying a straw purchase is not necessarily illegal then - because in that example, there is nothing illegal about the purchase. Only the subsequent transfer.
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Old October 15, 2010, 01:22 PM   #23
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Quote:
Originally Posted by Aguila Blanca
...The fact that the legal girlfriend buys the firearm for the prohibited person boyfriend makes it a straw purchase, irrespective of whether or not the seller was a willing and knowing participant in the overall transaction...
Isn't it enough that doing so is illegal (violation of 18 USC 922(d), conspiracy to violate 18 USC 922(g), violation of 18 USC 922(h))? Does it have to be called a straw purchase? Can you cite some authority for classifying that particular crime as a straw purchase?

It appears from the ATF's Federal Firearms Regulations Reference Guide I cited earlier, the ATF considers only a violation of 18 USC(a)(6), and only with regard to the first question of the 4473, to be a straw purchase. Nonetheless, I suspect that ATF would still prosecute violations of 18 USC 922(d), conspiracies to violate 18 USC 922(g) or violations of 18 USC 922(h), even it ATF wouldn't call those crimes "straw purchases."
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Old October 15, 2010, 01:48 PM   #24
divil
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Can you cite some authority for classifying that particular crime as a straw purchase?
Actually I can - that same ATF report of the Copeland case:
http://www.foxnews.com/projects/pdf/...pelandCase.pdf

The opening paragraph states that Copeland had reasonable cause to believe the person he was selling to was prohibited

Later they refer to the middle man as the "straw purchaser" (page 2)

I agree with you though - it makes no sense given their statement in the publication you quoted earlier. To the ATF, every transfer they don't like is either a "straw purchase" or a "gun-show loophole".

So where does that leave us in interpreting the term "straw purchase"? Well, since it generally is intended to describe in illegal act, it only makes sense if it means lying on form 4473 - because that is the only way in which an eligible buyer, buying a legal firearm, can make a purchase illegal. If it's a private sale, and the gun itself is legal, and the buyer is eligible, then it's a legal transfer, period (even if the seller is prohibited, the buyer is still not breaking the law). So why call it by a name that smacks of illegality?

Last edited by divil; October 15, 2010 at 01:50 PM. Reason: taking out some irrelevant bits
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Old October 15, 2010, 03:15 PM   #25
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Quote:
Scenario:

Buyer and wife life in town X in Wyoming. Buyer is out of town. Seller lives in town Y, also in Wyoming. Buyer, wife, and seller all legal to own, purchase, etc.

Buyer wants to buy gun from Seller. Seller offers to deliver gun to buyer's home to buyers wife, on behalf of buyer.

1) Straw purchase? Or is a straw purchase only through an FFL?
See answer A.

2) Better for buyer to send funds through the mail to Seller, or to have wife pay Seller directly.
It makes no difference except I advise sending only a certified USPS money order.

3) Or better to have seller to sell to wife, and then wife can sell/gift to Buyer? It makes no difference. see answer A. Paragraph 3 in bold type. Also see answer B. (B1) & (B2)
The OP asked some specific questions. These are specific answers. Source: Federal Firearms Regulations reference guide. ATF Pub. 5300.4

A. 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 from the licensee.

An example of an illegal straw purchase is as follows: Mr. Smith asks Mr.
Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the
money for the firearm. If Mr. Jones fills out Form 4473, he violates the law byfalsely stating that he is the actual buyer of the firearm. Mr. Smith also violates the law because he has unlawfully aided and abetted or caused the making of false statements on the form.

Where a person purchases a firearm with the intent of making a gift of the
firearm to another person, the person making the purchase is indeed the true purchaser. There is no straw purchaser in these instances. In the above example, if Mr. Jones had bought a firearm with his own money to give to Mr. Smith as a birthday present, Mr. Jones could lawfully have completed Form 4473. The use of gift certificates would also not fall within the category of straw purchases. The person redeeming the gift certificate would be the actual purchaser of the firearm and would be properly reflected as such in the dealer's records.


The following pertains to is what is commonly known as a face to face transfer between two private parties and without an FFL.


B. UNLICENSED PERSONS

(B1) To whom may an unlicensed person transfer firearms under the
GCA?


A person may sell a firearm to an unlicensed resident of his State, if he
does not know or have reasonable cause to believe the person is prohibited
from receiving or possessing firearms under Federal law. A person
may loan or rent a firearm to a resident of any State for temporary use
for lawful sporting purposes, if he does not know or have reasonable
cause to believe the person is prohibited from receiving or possessing
firearms under Federal law. A person may sell or transfer a firearm to a
licensee in any State. However, a firearm other than a curio or relic may
not be transferred interstate to a licensed collector.
[18 U.S.C 922(a)(3) and (5), 922(d), 27 CFR 478.29 and 478.30]

(B2) From whom may an unlicensed person acquire a firearm
under the GCA?


A person may only acquire a firearm within the person’s own State,
except that he or she may purchase
or otherwise acquire a rifle or shotgun, in person, at a licensee's premises
in any State, provided the sale complies with State laws applicable in
by law or by official departmental policy. An officer subject to a disabling
restraining order would violate the law if the officer received or possessed
a firearm or ammunition for other than official use. (See Question
Q13 on officers’ receipt and possession of firearms and ammunition after
a conviction of a misdemeanor crime of domestic violence. The government
exception does not apply to such convictions.)
[18 U.S.C. 921(a)(32), 922(g)(8) and 925(a)(1)]
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