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Old August 1, 2012, 07:41 AM   #1
fxdrider
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Does a felon get to decide who gets the guns he can no longer own?

This is some serious stuff, so please bear with me. I find myself in an awkward situation: I have a son, in his mid-twenties, who has a felony conviction. I have had possession of two rifles: one given to him by his mother (now my ex), and another - a .22 that I bought for him when he was a child (not yet a criminal). I have had these guns in my safe since January, 2008, since he and his wife separated and he bounced from place to place to live. Along the way, he got into trouble and was convicted of a felony (originally car-jacking but plead down to unauthorized use of a vehicle)

He recently got out of jail, and moved to another state - coincidentally near his mother. Since the day he was released, he has been discussing with various family members (not me) getting these guns - even though he is no longer allowed to be in possession of a firearm. (Hasn't learned much, I guess). Recently his mother approached me with a request to send the guns to her, saying that he has decided to "give" them to her. My question is, what legal standing does he have? Does he even have a say over these guns anymore? It's not that I care about keeping the guns myself, but more along the lines of what I know will happen - if she gets the guns, HE gets the guns, as she does virtually everything he says. This concerns me on so many levels: Aside from the obvious...he's a felon and will go back to jail for being in possession of them, I'm also concerned with what he might do with them. A little history - he has a long history of substance abuse and mental instability, and he has two little children and is going through a contentious divorce/custody/visitation battle with his soon-to-be ex-wife. He has threatened in the past to take the kids from her and disappear. These are my grand-kids, so naturally I take threats like that very seriously.
I replied to my ex, saying that there's no way in hell I'm going to send these guns to her - and why. I wouldn't be surprised at this point if he decides to sue me for them in civil court. I know the court won't grant him possession of them, but my fear is they will assert his ability to decide their disposition. The state where I live and where the guns are kept, and the venue of his conviction - is Virginia. If anyone can give me an idea about what I might expect from the courts in a case like this, I'd sure appreciate it.

Thanks.
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Old August 1, 2012, 08:03 AM   #2
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Consult a lawyer!

I've been in a similar position as you, in VA. You may find that he doesn't have legal ownership of either gun anyway, and I certainly doubt that he'll take you to small claims court over two guns that he can't own (cheaper just to get mommy to straw purchase him another gun, not condoning that mind you, but you said she'll do whatever he says). You will probably lose all hope of seeing your grandkids again while they're young, but at least you wouldn't have contributed to a dangerous situation for them.

Perhaps your son only wants to sell the guns and get the cash anyway. So, tell him/them you plan to sell them right away and give him the money. See if he's ok with that. You may be able to save your relationship with your grandkids that way.

I'm in Stafford too. PM me if you want to talk!
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Old August 1, 2012, 08:27 AM   #3
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Quote:
I'm in Stafford too. PM me if you want to talk!
Thanks! PM sent.
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Old August 1, 2012, 09:52 AM   #4
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What guns???

AFS
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Old August 1, 2012, 10:06 AM   #5
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Possession is 9/10th's of the law. Also, there is no such thing as "HOLDING" a firearm for someone as far as the courts concerned. When he left them in your possession, the courts view that as being "transferred" to YOU. As in you own them and your responsible for them until such time as you transfer them back. The only thing he'd have a leg to stand on is if he had a letter claiming a sale of the guns and you didn't pay.

Quite frankly, a call to his parole agent will solve this in about 2 seconds. Also, when he was convicted he would have been required to give them up immediately, and since it was you who had them that will be good enough for the courts.

If it really bugs you, you could offer them the used value of the rifle your ex bought and leave it at that.
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Old August 1, 2012, 10:27 AM   #6
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Measure the attitude !!!

fxdrider
When I read your post, I had to go back to see if by chance, you were from Iowa as all this sounded too familiar. Have to ask if by your measure, your son's attitude has changed since he has gone through his latest adventure? I suspect, the answer, is NO. ....

In one case that I know of, if he is even caught with a bullet, his dumb butt goes back to jail. I understand you trying to save your son but that's up to him, in the long run. ...

It all comes down to a matter of trust ....

Be Safe !!!
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Old August 1, 2012, 10:29 AM   #7
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I'm in the same situation. I took my son's 12 gauge, .22 and 243. They were never in his name anyway. They now live in my gun safe, 1100 miles away from him. My ex also gives into every request that our son makes, no way in heck I will allow her to have the guns in her house.

You're doing the right thing. It's the tough love thing that most ex's are not willing to handle.
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Old August 1, 2012, 10:48 AM   #8
Willie Sutton
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Let's (again) let old' Willie cut thru the crap:

If YOU posess the guns, they were TRANSFERRED to you, and YOU are the owner.

Got that?

There is NO SUCH THING AS LOANING A GUN TO SOMEONE

(save for some very specific 'day of hunt' exceptions).

Got that?


When he "left them with you" he essentially SOLD them to you, even if you did not realize it at the time.


Got that?


YOU ARE THE OWNER OF THE GUNS. Not your son.

Got that?


If you facilitate the transfer of a firearm to a felon, then YOU are a felon too.

Simple, eh? It's not a matter for further debate. They are not his, and he has bugger-all choices to make regarding YOUR property.


So... keep YOUR guns and enjoy them.



(or do society a favor, call his parole officer, tell him what's up, cooperate, let a controlled exchange take place, and then wave and smile as they haul him off to jail again... hate to say it... it might be best for him and the rest of the world for him to be, uhh... "supervised".)





Dave


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Last edited by Willie Sutton; August 1, 2012 at 10:58 AM.
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Old August 1, 2012, 11:38 AM   #9
dogtown tom
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Quote:
fxdrider ....I wouldn't be surprised at this point if he decides to sue me for them in civil court. I know the court won't grant him possession of them, but my fear is they will assert his ability to decide their disposition.
Doubtful that he would sue, and even more doubrful that the court would order you to turn over possession to a felon.



Quote:
NJgunowner ....Quite frankly, a call to his parole agent will solve this in about 2 seconds...
This.

Quote:
Willie Sutton ....If YOU posess the guns, they were TRANSFERRED to you, and YOU are the owner.
Nope. Possession and ownership are two distinctly different things....especially with regards to firearms.



Quote:
When he "left them with you" he essentially SOLD them to you, even if you did not realize it at the time.
Again, nope.



Quote:
YOU ARE THE OWNER OF THE GUNS. Not your son.
Once again, nope.
Your understanding of common law is terrible.




Quote:
If you facilitate the transfer of a firearm to a felon, then YOU are a felon too.
If you buy/sell/trade/give/etc a firearm to a felon it is a violation of Federal law. "Facilitation" is a not necessarily a crime: (ex. you ship the firearm to a licensed dealer in your sons state, you commit no Federal crime)

And, btw, you have to be convicted before you become a felon.
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Old August 1, 2012, 12:15 PM   #10
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"Once again, nope.Your understanding of common law is terrible"


And, for the first time:

"Your understanding of federal firearms transfer law is terrible".


To whit:

As far as federal and state law is concerned, the firearms described have been "transferred" to the posessor. The transferee might not be satisfied with the commercial side of the transaction, and might challenge to be compensated according to whatever "contract" was entered into, but the "Transfer" under firearms law is a fait accompli.


Willie


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Old August 1, 2012, 12:24 PM   #11
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Willie has it right, this isn't the same thing as loaning out your car where the law is concerned.

If he had STOLEN the firearms then he'd be in possession. But knowingly and willfully leaving them to his father is enough for the law. The felony just seals it.
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Old August 1, 2012, 02:37 PM   #12
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Willie nailed it - for all intents and purposes the guns belong to you. There is no such thing as loaning a firearm. As the old saying goes "possession is 9/10 of the law" In this case it's 10/10

To transfer them back to someone you know to be a convicted felon with a history of substance abuse would not only be irresponsible, but a felony itself.

I would only contact his PO should the issue be pressed further.
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Old August 1, 2012, 02:50 PM   #13
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And to close, even if you agreed to "go along to get along" (either because you decide to, or because in some alternate universe he's actually sued you, won, and you now need to dispose of them to his benefit), the right thing to do would be to cheerfully tell your son that you are going to take them to your local FFL, and wish him "good luck" in getting them re-transferred back. The worst thing that can happen to you at that point is that you're freed of their burden, and the best that your son can hope for is that they sell quickly at the FFL so he can receive the benefit of the sale, less comission to the FFL. Last time I checked... well, he's gonna get scrrewed by the FFL on that part of the deal.


In any event my free and "worth what you paid for it" advice is:

"Don't sweat it" to you,

and

"If you want to sue me for them, go ahead" as your next reply to him.



Just never *ever* transfer them to anyone (including ex-wife) "not via an FFL". It's cheap insurance, especially bearing in mind that the buyer pays the fees. It's a no-loss-possible game for you.


If it were me... <insert best Bart Simpson look here> "Guns? What guns?"


Willie

.
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Old August 1, 2012, 03:11 PM   #14
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Chiming in a bit late, but I would be hesitant to send them to the mother, even legally. While it's doubtful you'd be held liable, he will have a good chance at access to them.

Depending on locality, he might have the right to expect to be reimbursed for the monetary value of his property, but there's no way it can be legally returned to him as it stands.
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Old August 1, 2012, 04:21 PM   #15
dogtown tom
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Quote:
Willie Sutton "Once again, nope.Your understanding of common law is terrible"


And, for the first time:

"Your understanding of federal firearms transfer law is terrible".
Ummmm............you don't understand ATF regulations or Federal law any better than you do common law.

You made this statement above: "Willie Sutton ....If YOU posess the guns, they were TRANSFERRED to you, and YOU are the owner."

You repeatedly told the OP that he was the OWNER of the firearms......which is utter nonsense.

Whether possession was ever transferred legally or illegally, the ownership never changed. You are completely and wholly wrong as to the ownership of the firearms.

And it's possible for the firearms to have never been transferred in any manner if they were stored by the son with the intent to retrieve them later.

Example: Son, the felon lives with his father (bounced from place to place as the OP put it) and stored his firearms there. As he was living there, he likely never transferred the firearm to his father.....they were just stored there when he moved on. Under common law the firearms are still owned by the son, but he is not in actual possession. If he were not a felon he could actually return to his fathers state and take possession legally as they were simply left in storage.

Now that the son is out of state and a felon there is no legal way for him to possess any firearm. He continues to OWN those firearms, but Federal law prohibits him from possessing them. He CAN direct how the OP disposes of the firearms, otherwise the OP may be facing a charge of "conversion". It is possible that property abandonment laws are applicable, but typically that requires legal notice to the owner.


Quote:
Stressfire ..... There is no such thing as loaning a firearm.
Again, more wrong info.
Quote:
Q: 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]
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Old August 1, 2012, 05:17 PM   #16
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Too much contradiction here. Make a call to his PO and a lawyer.

Personally I would say "what guns?"


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Old August 1, 2012, 09:34 PM   #17
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Quote:
Originally Posted by dogtown tom
Whether possession was ever transferred legally or illegally, the ownership never changed. You are completely and wholly wrong as to the ownership of the firearms.

And it's possible for the firearms to have never been transferred in any manner if they were stored by the son with the intent to retrieve them later.

Example: Son, the felon lives with his father (bounced from place to place as the OP put it) and stored his firearms there. As he was living there, he likely never transferred the firearm to his father.....they were just stored there when he moved on. Under common law the firearms are still owned by the son, but he is not in actual possession. If he were not a felon he could actually return to his fathers state and take possession legally as they were simply left in storage.
There is another possible scenario: The OP mentioned that one of the rifles was "given" to the son when he (the son) was a child. The other rifle was given to the son by the mother (when was not stated). It is entirely possible that neither of these firearms was ever formally and legally transferred TO the son.
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Old August 1, 2012, 09:42 PM   #18
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short answer to a long post (not that that is a bad thing...it is a good thread):

you are either going to give the guns to the woman who carried this son or you are going to keep the guns. It seems that it is your choice...if you are going to end up caving anyways then do it nonreluctantly

PS - we all know you can send the guns so excuses or fibs aren't necessary. make a decision and stick to it. "Don't complain, don't explain."

all the best
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Old August 1, 2012, 09:48 PM   #19
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Quote:
Let's (again) let old' Willie cut thru the crap:

If YOU posess the guns, they were TRANSFERRED to you, and YOU are the owner.

Got that?

There is NO SUCH THING AS LOANING A GUN TO SOMEONE
(save for some very specific 'day of hunt' exceptions).

Got that?
Thats fine for the feds but a state's laws can say otherwise.
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Old August 1, 2012, 09:53 PM   #20
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this is obviously about more than legality

but legality does come up inevitably:

Quote:
Thats fine for the feds but a state's laws can say otherwise.
that is a good point, but there is absolutely no way this convicted felon has any rights to these guns without a court order. period. he can't sell them, he can't give them away, he can't own them, he can't possess them, he can't share them, he can't designate them(without a court order signed by a judge), and he can't loan them. plus the rightful owner now came upon them legally.
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Old August 1, 2012, 10:17 PM   #21
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I am also uncertain that you can leave firearms with someone for a period of time and not relinquish possession. Last time I left the US I gave all my guns to a buddy and told him legally they were his, but I hoped he would give them back if I returned.

Locked safe might work.

I don' have any legal citations to back this up.
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Old August 1, 2012, 11:57 PM   #22
Willie Sutton
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"Thats fine for the feds but a state's laws can say otherwise."


None do. And endless speculative nonsense is not helping the OP solve his problem.


That's why old Willie is "cutting thru the crap"... Facts are facts and nonsense is nonsense.


Fact: You cannot give sole posession of a firearm, unsupervised, for an indefinate period of time, to another person in any state and not have it be considered a "Transfer", "Gift", "Sale", or whatever other words a statute may use to indicate a permanent change in the ownership of the firearm. Any such transfer needs to be done in accordance with State Law if between two individuals, and in accordance with applicable Federal Law at all times. No state permits a transfer to a convicted felon. The subject firearms are in the custody of the current posessor, to whom they were transferred. Any further debate is on if they were "gifted" at no cost, or if some amount of money is still demanded. Sans any written contract specifying a sum owed, the "old owner" is pretty much out of luck.


Another opined:

"And it's possible for the firearms to have never been transferred in any manner if they were stored by the son with the intent to retrieve them later."


He better have stored them in a locked safe then, with nobody but himself holding the combination. Otherwise they are not stored... they are transferred. You cannot give a firearm to someone to take home and keep and not have it fall under the statutes that are applicable to the jurisdiction regarding the transfer of a firearm. Have a little chat with your friendly BATFE folks and your local AG or State Police and I think you'll come to realize the error of your logic. Note that in most jurisdictions, no formal transfer is required, IE: no paperwork, receipt, etc. The mere fact that the transferer is satisfied with the legality of the transfer (same state, of age, not know to be a felon, etc) is sufficient. I've "lent" firearms to friends for testing, etc., but I knew at the moment that he was now the sole posessor, owner, transferee, or however you wish to define it. Often this is a casual "hey, shoot this for a week and let me know how you like it". That's legal IF (a+b+C) are true (same state, age, not known felon, etc). But it's not a loan. Ditto if I say "hey, I am going to the desert for a year, hold onto this for me". That's not recognized anywhere as other than a transfer and all laws apply. The "loaning" of a firearm for sporting purposes quote that you cited above is taken by the BATFE to be "under direct suopervision of the lender, and for the time period of the activity", meaning "same day, same place" for hunting.


Segue... Try "storing" your NFA things by handing them to your Mom to keep safe and sound for a year or so and try explaing to the BATFE and your local LEO's that it was not a transfer after your Mom is in handcuffs...


"you don't understand ATF regulations or Federal law any better than you do common law"

Sadly... for you... it seems that I understand the ATF regs and state law regarding firearms transfers better than you do. I am also an FFL, a collector of NFA goodies, and I have not just jumped off the apple cart. When a firearm leaves my immediate control, either as an individual or as a licensee, it's a transfer.


I fully agree that the commercial law part of dealing with the financial terms of the transaction are arguable, but not the fact that the transfer in the eyes of firearms law was complete the day he left the house and left them behind. There are really two things at play here, the OP's question revolved around the legality of how to handle it as a firearms posession and transfer issue, not one of contracts. I concede the point on the possibility of disputing the terms of the transfer but not that a transfer has been completed.



Smile,


Willie

.

Last edited by Willie Sutton; August 2, 2012 at 12:27 AM.
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Old August 2, 2012, 05:15 AM   #23
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Possession =/= ownership.

I have owned my grandfather's .22 caliber rifle since he died in 1972. For most of the time between then and last year the rifle was in the possession of a cousin in another state. We kept hoping I'd get a chance to drive out there and pick it up, but it never happened and, since my cousin is getting on in years, we finally just boxed it up and sent it to me through a pair of FFLs.

The FFLs transferred physical possession to me, but ownership was mine since 1972.

(Before anyone starts in about how FFLs aren't necessary for inherited firearms, the rifle was not listed in his will and I was not a named heir, so that provision of Federal law did not apply.)
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Old August 2, 2012, 06:00 AM   #24
fxdrider
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Wow! Thanks for all of the replies. This seems to be an interesting topic. For now, I'm going to consider the guns mine and use and enjoy them accordingly. Noelf2 had a neat idea during a PM conversation we were having - hold on to them for the grand-kids (assuming of course, that they turn out to have good character). So they'll stay put in my safe.

I am going to consult an attorney just for my own peace of mind. Can't hurt.

Quote:
Pahoo: "fxdrider
Have to ask if by your measure, your son's attitude has changed since he has gone through his latest adventure? I suspect, the answer, is NO. ....
Pahoo, I'm in Virginia, and you are quite correct - if anything his attitude has gotten worse. He's had two years of nothing to do but talk with other inmates about better ways of "getting away with it". Now his arrogant ass is more emboldened than ever. I think some people have the character to learn from their mistakes and try to do better after they've paid their time. Others, like him, blame everyone else for their problems and refuse to better themselves in life, continuing on the road of bad choices.

Quote:
In one case that I know of, if he is even caught with a bullet, his dumb butt goes back to jail. I understand you trying to save your son but that's up to him, in the long run. ...
You are correct here as well - it IS up to him. I've done all I can. As the old saying goes, "You can lead a horse to water, but you can't make him drink".

Quote:
It all comes down to a matter of trust ....
Agreed - and trust flew out the window with him a loooonnnnggggg time ago.
I've always taught (or tried to teach) my kids that trust is everything. It's very easy to lose and takes a long time to rebuild. My daughter got the message - my son...not so much.


Thanks again everyone.
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Old August 2, 2012, 07:39 AM   #25
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While nothing I can add to the legal discussion ... I must commend the father here for sticking to his guns (no pun intended) rather than making excuses for the ne'er-do-well offspring...

Folks often ask me if I am serious about my absolutist views on trust, honor and integrity from everyone doing business with me including my kids... And, yes, there is ALOT of business to be had 'tween young 20's offspring and their parents...

My reply to the inquisitive... "IN A HEARTBEAT..."

Brent
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