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Old June 18, 2011, 05:21 AM   #51
mavracer
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b) there is no block on the 4473's I've ever filled out for "purchasing as gift."
Quote:
But say I were in a shop, and wanted to buy my lady a handgun. How should I fill out the form?
on the form in the box for question 11a at the bottom of the question in ()
it says "see important notice 1 for actual buyer definitions and examples".
If you are buying it as a gift you are the actual buyer. so the answer to question 11a is "yes"
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Old June 18, 2011, 05:32 AM   #52
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Originally Posted by MLeake
Even so, fiddletown, I'd still like to know what the procedure is, with regard to the 4473, to purchase a gift firearm?...
That is not, however, the topic of this thread. However, that might be done, the OP described, as I've quoted, a straw purchase.
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Old June 18, 2011, 09:52 AM   #53
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If you are buying the gun as a gift you are the purchaser.....

you can mark yourself as the purchaser on the 4473.

That is what the ATF says.

why is that so hard to understand?


If you are buying the gun for someone else who is inelegible to purchase a firearm that is a straw purchase.

If your brother John who is out of town calls you and says hey I notice Joe's Gun shop is running a special on the SA 1911 GI Spec model go buy me one and I will pay you back when I get home. That is a straw purchase because you are not the actual purchaser and it is still a straw purchase.
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Old June 18, 2011, 12:35 PM   #54
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fiddletown, I agree with you that the OP's case would be a straw purchase, as the intent seems to have been to have the NY guy pay for the gun all along.

That makes me wonder why the NY guy didn't simply arrange a down payment toward an FFL interstate transfer with the NC dealer in the first place. Seems the OP's friends made the process overly complicated, and probably more expensive, in addition to possibly running afoul of the Feds.

Unless the OP isn't clear on the situation, and the NC guy did NOT get reimbursed by the NY guy; in which case he bought it as a gift, and had it legally transferred via a NY FFL, once the NY paperwork was completed. Which seems like it would have been legal, no?

Correct me if I'm wrong, but the issue really comes down to whether or not NY guy ever paid for the gun.
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Old June 18, 2011, 12:46 PM   #55
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Originally Posted by MLeake
Correct me if I'm wrong, but the issue really comes down to whether or not NY guy ever paid for the gun.
Not fiddletown, but if I may offer my view on your question, I still think that intent counts. Someone has posted a link to the BATFE FAQ, and that specifically addresses exactly this situation: A prospective buyer who is not a "prohibited person" by virtue of being a convicted felon, but who cannot purchase a handgun because he is not in his state of residence. That's what we have been given as the situation.

Now you are suggesting that the NC relative decides to buy the handgun and give it to the NY relative as a gift. IMHO, that would be legal -- if that's what went down. That would entail the NC relative saying, "Gosh, Bob, it's a bummer you can't buy that gun because of a technicality. Tell you what, I got a big bonus check last week, so I'll just buy it for you and it'll be my gift to you."

But that's not what happened, is it? Let's look at how the original poster described the unfolding transaction:

Quote:
A day later, he brought his relative into the gunstore to buy that pistol. His relative kept posession of the pistol in NC until he got back home and filed the appropriate paperwork to legally take possesion of it in NY. When his NY pistol permit was amended and the pistol from NC was put on it, he had his relative send him the pistol through the proper FFL channels.
I have asked two or three times in the course of this thread for the OP to tell us who actually paid for the pistol, and he has not provided that information. In the absence of a definitive answer, does the above description of what went down sound to you -- in all honesty -- like the NC relative bought the pistol on his own initiative, with his own money, as a gift?

Doesn't sound that way to me.
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Old June 18, 2011, 12:48 PM   #56
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While it is possible to have a change of heart in 15 minutes it would be a hard sell to a jury.
Most prospective jurors would have heard of, or even experienced, "buyer's remorse".
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Old June 18, 2011, 12:55 PM   #57
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Correct me if I'm wrong, but the issue really comes down to whether or not NY guy ever paid for the gun.
not really it comes down to intent.

Hypothectical
NY guy tells NC relative about gun. NC relative says I been looking at getting one of those and goes down to shop and buys it. NY guy goes back home. NC relative shoots gun in backyard and manages to kill his lawnmower. now he's got to buy a new lawnmower but doesn't have the money because he bought a gun. Calls the NY relative and offers to sell it to him. NY relative pays for it and has it transfered legaly through his FFL.
this is not a straw purchase because NC guy bought the gun with the intent to keep it.
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Old June 18, 2011, 01:11 PM   #58
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Aguila Blanca, since when do gifts have to be solely at the gift-giver's initiative?

I've given several gifts in the past, that had been wanted and asked for by the recipients.

In the OP's case, the money is where the issue would lie, as the intent was clearly for NY guy to end up with the gun. The OP having not stated how the money worked, and the OP's account being hearsay, I think the legal basis for saying "THIS IS A STRAW PURCHASE" would be shaky. Then again, assuming the OP has been accurate so far, and assuming NY guy gave NC guy the money for the gun, then it looks like a straw purchase.

I'm just not too keen on ATF regulations, which seem to be intentionally written so as to be at least a little bit confusing. No offense to the lawyers here (fiddletown, Aguila Blanca, et al) but I've always felt there should be a requirement for laws to be written in very plain, clear, and easily understood English. Granted, that would be bad for legal business, but it would be so much easier for all the rest of us...

But you can see the result in the mass of threads where TFL members think it's a straw purchase for a parent to buy a handgun for their 18yo son in Florida - who can't buy (from an FFL) but can own a handgun at that age in Florida - even though it's legal for them to buy the gun as a gift.

So, in this case, intent was a given - NY guy would have the gun. I still think you'd need to establish that NY guy paid for the gun; otherwise, is there a rule that says a gift can't have been requested?

Edit: Also, does the fact that the NY guy didn't take theoretical possession until the NY 4473 was completed have any bearing? One would think that would, at minimum, be a mitigating factor in that it shows intent to comply with the requirement.

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Old June 18, 2011, 01:13 PM   #59
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Sorry for the drift, but it would be interesting to see how SAF's recent victories could eventually be applied to getting rid of the GCA of 1968, downsizing the ATF drastically, and making this kind of thread an anachronism.
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Old June 18, 2011, 02:27 PM   #60
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There was nothing confusing in those excerpts from the ATF Regulations guide. They were crystal clear.

NC Guy came in but was a prohibited purchaser. The next day NC Guy and NC Relative comes in and buys the pistol then has it shipped to NY Guy via FFL.

If I were a prosecutor I would subpoena NC Guy and NC Relatives bank records to see if there were any withdrawals and deposits in those accounts for about the same purchase price as the pistol. Then let those two decide what thier testimony is going to be on the stand.

Maybe NC Relative did buy the gun as a gift. If that is case then there is no straw man purchase.

However, in my long years of dealing with human nature when people have to ask if something they or someon else did is wrong then something not kosher was done usually.

With out all the facts we will never know. The excerpts from the ATF Regulations guide are clear as to what constitutes a straw purchase and who the purchaser is when the firearm as being a gift.

We know that a gift is something given to another person without compensation.

If I took compensation from another person to buy them a firearm then I am not the real purchaser and it is a straw purchase.

If the ATF was indeed reduced under your scenario

I would still support an instant background check for firearm buyers to weed out people who do not need to buy firearms and laws against straw purchasers who are buying for a person prohibited from buying a firearm.
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Old June 18, 2011, 02:53 PM   #61
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A straw purchase definitely took place.

That said, given that the gun was eventually transferred to the final recipient via an FFL and the final recipient has now filled out a 4473, passed the NICS, etc., it seems somewhat unlikely that the authorities would be concerned about this particular transaction at this point.
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Old June 18, 2011, 02:59 PM   #62
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Originally Posted by MLeake
...since when do gifts have to be solely at the gift-giver's initiative?

I've given several gifts in the past, that had been wanted and asked for by the recipients....
Again, it's a question of intent, which must be inferred from the totality of the circumstances.

Quote:
Originally Posted by MLeake
...I'm just not too keen on ATF regulations, which seem to be intentionally written so as to be at least a little bit confusing...
I'm not sure it's as much a problem with the ATF guidance or the statute as it is with the nature of discussing these matters with limited facts or by using hypotheticals.

Hypotheticals can be infinitely tweaked to nudge them toward one conclusion or another. Sketchy descriptions of events invite missing pieces to be assumed -- leading one down one path or another.
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Old June 18, 2011, 03:07 PM   #63
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Following MLeake's drift...

I would also like to thank fiddletown and the other lawyers who have responded in this thread, for making the distinctions in the law more clear to the laymen among us. I am not a lawyer, and while laws may appear clear on their face, applying them to individual circumstances can occasionally be challenging.

With respect to the BATFE's prosecution of firearms laws regarding "straw purchases", as a layman my general understanding is that US law applies equally to all US citizens, and that no one is above the law even up to the highest offices in the land. Moreover, it is my understanding that "good intentions" do not justify breaking the law, and that under US law the ends do not justify the means. It is disturbing, then, to read congressional testimony that appears to describe BATFE itself - who should understand definitions to include "straw purchasers" and the requirements of Form 4473 - as condoning straw purchases on a broad scale apparently in contravention of US firearms laws:

"The congressional hearings held this week by the House Committee on Oversight and Government Reform revealed that the gun smuggling investigation known as “Fast and Furious” that was implemented out of the Phoenix Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) office was conducted in a reckless manner that led to the illegal sale of thousands of firearms. Many of those firearms ended up in the hands of Mexican drug cartels and other criminals, and may have contributed to the death of Border Patrol agent Brian Terry.

Some of the most important findings of the hearing and the investigative report compiled by the Committee staff include:

BATFE knowingly allowed as many as 2,500 firearms to be sold illegally to known or suspected straw purchasers. One of those purchasers accounted for over 700 illegal guns. (emphasis added)

BATFE ordered its agents working the program not to arrest illegal gun buyers or to interdict thousands of guns that were allowed to “walk” into criminal hands.

Senior BATFE officials in Washington were regularly briefed on the operation and approved of the tactics employed.

BATFE agents who opposed the operation and who raised objections were told to “get with the program” and threatened with job retaliation if they continued their opposition.

A number of BATFE agents who were assigned to “Fast and Furious” testified about the operation."

The full article is here:
http://www.nraila.org/Legislation/Fe...d.aspx?id=6927

I must admit that until straw purchases were defined and clarified in this thread, my understanding of US law that covers them was cloudy at best. It would appear either that senior BATFE officials were as misinformed as I was about laws covering straw purchases, or that senior BATFE officials did not feel compelled to abide by US laws.

(Alternately, of course, it could be the case that US law does not always apply in all cases, particularly in cases where BATFE wishes to allow some laws to be set aside.)

[Edit - no intent to hijack the thread, so Mods, if this 'drift' is excessive, feel free to delete my post.]
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Old June 18, 2011, 03:55 PM   #64
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Eghad, in the example cited, the only reason NY guy couldn't make the purchase is because of Federal regulation of interstate handgun sales... which, while I will obey the law, I still feel are BS and should be found unconstitutional.

That's one of the things I meant about future potential for SAF to attack various aspects of GCA. If the right to firearms is not supposed to be infringed, then how is it considered ok to say otherwise-eligible persons can only buy in their home state? (I believe there's a suit about that right now, because citizens in DC can't actually buy anywhere; there was one (1) FFL in DC, according to the article I read, and he was using his monopoly to charge outrageous fees.)
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Old June 18, 2011, 04:21 PM   #65
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Originally Posted by MLeake
...in the example cited, the only reason NY guy couldn't make the purchase is because of Federal regulation of interstate handgun sales... which, while I will obey the law, I still feel are BS and should be found unconstitutional....
The thing is that there was probably a way for the NY fellow to buy the gun directly and legally. I've certainly bought handguns in States other than my State of residence. And the BATF Q&As even tell you how to go about it.

One has the handgun shipped to a cooperating FFL in his home State. With NY there may be a few more hoops to jump through, but I suspect it's doable. If the fellow's NC relative could ship the handgun to an NY FFL for transfer to the NY relative, I suspect that the NY fellow could have paid the NC dealer and made arrangements with the NC dealer to hold the gun and then ship the gun to the NY FFL upon receipt of the appropriate paperwork. That's how I've always been able to work things.

But the fact that there is a way to do something legally doesn't really make it less illegal to do it in an illegal manner.

And whether or not these provisions of federal law are possibly unconstitutional doesn't really mean anything until a court has actually tossed them out.
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Old June 18, 2011, 06:20 PM   #66
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The BATF OPINION is not the law. Looking at the law itself, there is much more room for doubt as to whether this is a straw purchase.
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Old June 18, 2011, 08:58 PM   #67
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Lying on the 4473 in the particular way that the purchaser did in this example is defined as a straw purchase. This isn't a matter of anyone's opinion, not even the BATF's--it's clearly a straw purchase.
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Old June 18, 2011, 09:02 PM   #68
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Originally Posted by maestro pistolero
The BATF OPINION is not the law. Looking at the law itself, there is much more room for doubt as to whether this is a straw purchase.
Technically, it's not even an opinion. The publication quoted in post 17 and 18 is guidance for FFLs.

But it does tell us how BATF interprets and will enforce the statute.

Even if a judge ultimately disagrees with BATF in a situation like the one raised in this thread, some poor slob will have been arrested by federal officers, subjected to extensive interrogation and investigation, had to post bail, probably indicted and wind up spending $10K, $20K, $50K or more to try to beat the rap.

Doesn't sound like a very good plan to me.
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Old June 18, 2011, 09:14 PM   #69
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Originally Posted by JohnKSa
Lying on the 4473 in the particular way that the purchaser did in this example is defined as a straw purchase. This isn't a matter of anyone's opinion, not even the BATF's--it's clearly a straw purchase.
I agree. It's always barely possible a judge could be persuaded to disagree. But getting there would be an expensive trip through a meat grinder.

I think that's a really lousy idea, especially when, as long as one is not a prohibited person, there is probably a completely legal way (at least under federal law) for him to get the gun he wants.

If one understands the law, one can usually find a way to (1) accomplish his reasonable and lawful purpose; and (2) minimize the chances for legal complications.
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Old June 18, 2011, 10:40 PM   #70
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Originally Posted by fiddletown
If one understands the law, one can usually find a way to (1) accomplish his reasonable and lawful purpose; and (2) minimize the chances for legal complications.
As you have stated multiple times in this discussion, what counts is the intent.

If one sets out with the intent of following the law, one is likely not to encounter legal problems.

If one sets out with the intent to circumvent (rather than comply with) the law, one significantly increases one's probability of encountering legal problems.
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Old June 18, 2011, 11:25 PM   #71
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I feel that there are a lot of BS laws but as a citizen I dont get to pick and choose which laws I will follow. As a citizen there are other venues to get laws changed.

As a responsible gun owner I don't get to pick and choose which laws I will follow. It is the gun owners who pick and choose laws like that and get caught doing it who give responsible gun owners a bad name. I do support efforts various ways to get those laws changed.
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Old June 18, 2011, 11:37 PM   #72
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Like I said before, I think the law is BS, but I follow it.

Meanwhile, I hope SAF can do something to remedy the problem, and I think the situation in DC may be the door to future change.

With regard to the OP, he's an anonymous guy relating a story told him by an unnamed source. We don't know how credible he is; we also have had no answer with regard to whether NY paid NC. We can assume he did, in which case we have a straw purchase. OTOH, it could also be the case that NC cousin bought NY cousin a gun he wanted, without expectation of reimbursement, in which case it should have qualified as a gift, and NC could have legitimately answered yes to 11a.

Do we all think that was the scenario? Odds are, no, but there is a way in which the transaction could have been legit (IE a solicited but no less legitimate gift from NC). The fact of the later NY 4473 means this situation probably would not draw attention.

With regard to the scenario, I agree with those who've recommended having the gun sent to a NY FFL from the NC dealer in the first place. Please note that's exactly what I said I did, when buying a father's day gift for my lady's father. Ordered from J&G, had sent directly to the MO FFL in her dad's name.

I'm not suggesting people skirt laws. I am simply suggesting that there is a way in which the OP's scenario could actually have been lawful, even if we suspect it was probably otherwise.
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Old June 19, 2011, 04:11 AM   #73
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well, im not worried of the legal ramifications due to it being on the internet.
Think again.

You have confessed to falsifying a Federal record (the 4473), and of completing a "straw purchase" of a firearm in violation of Title 18, US Code.

You have noted your intent to circumvent the law in that case.

You have confessed to a Federal level felony offense.

Whether the law is stupid or not is not the issue. Whether the law makes sense is not the issue. Whether you agree with the law or not is not the issue. The fact is that Title 18, US Code, is codified as a part of Federal law.

Were I you, I would read fully and understand both Escobedo v. Illinois, 378 U.S. 478 (1964), and Miranda v. Arizona, 384 U.S. 436 (1966).

You also might want to take a detailed look at Berghuis v. Thompkins, 560 U.S. (2010).

You, sir, have willfully and with intent broken the law. Period.
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Old June 19, 2011, 08:01 AM   #74
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I am not a lawyer, nor do I play one either on the internet or in real life. I do appreciate the lawyers opinions and views. (Heck, my own lawyer has even kept me from making a few mistakes now and then. )

But I fall in to the camp of "It was a straw purchase."

I was with my wife and she told me to pick out a gun for my birthday. I picked out two and told her to choose the one she liked best. It is my understanding it was not a straw purchase, it was a gift.

I had been looking for a 9mm to carry as a concealed gun. I could not find anything I liked. My buddy showed up one day and handed me a 9mm that he had seen and bought it for me, thinking I would like it. (If I had not, he would have kept it.) There was no exchanging of money. It was a gift, not a straw purchase. (We have traded guns in the past, helped each other out with one thing or another. He is actually more like a brother.)

My mothers friend is a convicted felon and can not legally buy a firearm. He has been trying for years to get me to buy him a handgun. He is even willing to pay me "Double your money." I refuse because it would be a straw purchase.

I was visiting my father in NH. We went to Welches Gun Shop. I saw several pistols and a rifle I wanted. Dad said he would buy one of them for me and he would ship it to me. He paid for the gun and I had to call back to Missouri to get the FFL to send the documents so we could get it shipped. That was not a straw purchase. It was a gift. Now I do believe that if I had asked Dad to buy me the gun BECAUSE I could not legally purchase it, both of us would have broken the law.

If I ask you to buy me a gun because I can not get it legally, and you buy it, you have gotten yourself in to a straw purchase arrangement. It does no good to say the intent was so that you could hold it until I could get the proper clearance to have the gun legally.

Like other have said, there is a right way and a wrong way to do something. It may be a little harder to do things the lawful way, but it is certainly cheaper than having to hire a lawyer to defend you after you get caught.
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Old June 19, 2011, 08:12 AM   #75
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Powderman wrote: YOU, YOU, YOU, YOU, YOU, YOU
Actually, if you read the OP, he states that a friend of his is the one who did all of those things. So, how is it that he is the guilty one?

Relax, and might I suggest ingesting a low-temperature pharmacutical...?
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