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Old August 5, 2012, 06:18 PM   #51
Willie Sutton
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^^^^^^^^^^^^^
State law is the applicable thing to look at.

Since these "household" agreements are just intrastate "transactions" for lack of a better term, it's not a Federal legal question. There are 50 states, and probably 200 answers depending on what authority you ask.



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Old August 5, 2012, 07:41 PM   #52
Aguila Blanca
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Originally Posted by Willie Sutton
Hypothetical: I am going to "loan" you a firearm. For how long can we persuade a cop or DA that it was an actual loan and that I did not transfer it to you?

To take home and keep for a year? Uhh... no.
No?

How about, "Yes."

As it happens, I work with a young man who recently obtained his carry permit. So did his wife. Neither of them has had much experience with firearms and they expressed an interest in getting in some range time to practice and get a feel for what's comfortable before spending money on one or more handguns they might soon decide aren't right for them.

The wife, in particular, is very slender, not very strong, and is greatly intimidated by centerfire handguns. But she shoots a .22 pretty well. I own a Ruger 22/45 that I dislike intensely and never use, so I offered to lend it to them for the wife to use as practice while she becomes more accustomed to shooting. Being generally law-abiding types, we agreed that the offer was contingent upon legality.

So I called the state agency that issues carry permits and runs the background checks for gun sales. I described the situation as exactly as I could, including that at the time I made the call the kids were still awaiting final approval and issuance of their permits. The state told me that once they had their permits I could legally lend them the firearm ... without transfer papers.

Of course, there are 49 other states out there.
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Old August 5, 2012, 07:57 PM   #53
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As it happens, I work with a young man who recently obtained his carry permit. So did his wife. Neither of them has had much experience with firearms and they expressed an interest in getting in some range time to practice and get a feel for what's comfortable before spending money on one or more handguns they might soon decide aren't right for them.

The wife, in particular, is very slender, not very strong, and is greatly intimidated by centerfire handguns. But she shoots a .22 pretty well. I own a Ruger 22/45 that I dislike intensely and never use, so I offered to lend it to them for the wife to use as practice while she becomes more accustomed to shooting. Being generally law-abiding types, we agreed that the offer was contingent upon legality.

So I called the state agency that issues carry permits and runs the background checks for gun sales. I described the situation as exactly as I could, including that at the time I made the call the kids were still awaiting final approval and issuance of their permits. The state told me that once they had their permits I could legally lend them the firearm ... without transfer papers.

Of course, there are 49 other states out there.
True on that. As stated there other states and the laws might be different in those states. For example in Oklahoma where I am as long as they meet the criteria for being a law abiding person then you can loan them your firearm. Does not matter if they have their CC or not. They just have to follow the laws while in possession of a firearm. As always find out the law where you live.
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Old August 5, 2012, 08:14 PM   #54
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Salmoneye If leaving a gun overnight with someone is not a 'transfer', then why does a Gunsmith have to log the 'acquisition' in, and the 'disposition' out, if he keeps a gun overnight?
Quote:
Why? Because Federal law requires it.

You can leave it with him at 8am to be repaired, go to work, come back at 6pm and he can hand you the firearm.......no 4473/NICS required.

This has NOTHING whatsoever to do with the transfer of firearms between nonlicensees.
I am well aware of the fact that Federal Law requires it...That's why I asked...But taking a gun to a Smith is not a 'transfer'...

You state that I can leave and come back in the same day with no "4473/NICS required"...Neither of those have anything to do with the scenario I posed...The Smith is only required to log in/out in his 'Bound Book', and no 4473/NICS is required as long as I am the one that dropped off the gun and picked it up the next day...

Q: Is an ATF Form 4473 required when a gunsmith returns a repaired firearm?

No, provided the firearm is returned to the person from whom it was received.

[27 CFR 478.124(a)]


My real question is why does ATF consider it fine to leave the gun for the business day, but not fine to leave it overnight (unless logged)...

It reminds me of the 'lending for a day' issue that was being discussed earlier...

At the very least, it certainly appears that BATF finds leaving a gun with someone overnight to be much more serious than leaving it with them for a few hours during the day...Business, or not...

I'm simply trying to grasp everyone's understanding of the laws so that I never run afoul of them...
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Old August 5, 2012, 08:28 PM   #55
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"if leaving a gun overnight with someone is not a 'transfer', then why does a Gunsmith have to log the 'acquisition' in, and the 'disposition' out, if he keeps a gun overnight? "

The gunsmith is in business. The gunsmith has a license issued by the regulating authority. The bound book is required by said regulating authority. Follow the regs or lose your license. Surely you know this.

Surely you also know that us common non-gunsmith folk don't have an FFL and aren't bound by those ATF regs.

My uncle borrowed a Marlin .444 from his brother in law and hunted with it for 7 years. When his BIL wanted it back it was returned. There isn't a court in the country that would find this to be anything other than a loan. That's just one example.

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Old August 5, 2012, 08:35 PM   #56
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"We can argue this until the cows come home"

No we can't. You appear to have no understanding of the law. You seem to be making this stuff up as you go along.

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Old August 5, 2012, 09:04 PM   #57
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My uncle borrowed a Marlin .444 from his brother in law and hunted with it for 7 years. When his BIL wanted it back it was returned. There isn't a court in the country that would find this to be anything other than a loan. That's just one example.
And if your Uncle had broken a game law, or committed a crime with it, the 'system' would not have given a whit if his BIL had asked for it back when it was confiscated...

My question is, at what point does it stop being a 'loan' or is in another's constructive 'possession'...

A person may loan or rent a firearm to a resident of any State for temporary use for lawful sporting purposes,

How long is 'temporary' according to the ATF?...Is that a week?...A month?...Or is it overnight for everyone like it is in the case of a licensee?

As I said...Not looking to argue...Trying to understand...
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Old August 5, 2012, 09:26 PM   #58
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A person may loan or rent a firearm to a resident of any State for temporary use for lawful sporting purposes,

How long is 'temporary' according to the ATF?...Is that a week?...A month?...Or is it overnight for everyone like it is in the case of a licensee?

As I said...Not looking to argue...Trying to understand...
You ask a valid question, but it just isn't that simple(as you probably already guessed). A judge or a lawyer on TFL could probably give a better answer(especially a judge maybe). Law is very simple sometimes and also very complex. There are grey areas that can teeter totter in the courtroom before you have an answer(one reason why historical and/or past cases are cited).

Another example is a cash loan or cash verbal or even written contract. Someone can admit to a loan and to owing money, but their legal contract might say they will "pay when they can" or they will pay "when they have enough money to do so". A judge is going to side with the plaintiff and explain that a loan isn't indefinite, it has been shown the money is owed, you have had a reasonable time to pay the debt, and you need to pay the money.

Another different example is punishments. You can't give punishments to people whether thru court systems or even a higher ranking soldier in the military saying as an example: "well, this is going to stay this way until I see changes and/or until I am satisfied". This does happen but it is not correct especially with official punishments. The IG would stop this.

It is up to a judge to determine when that loan is no longer a loan anymore..............sooner than later would be my guess(so the longer it has been the easier it is to sayso I mean).

*wasn't trying to focus on courts; it just sortof fit with the example...court isn't always necessary...I myself don't enjoy going to court unless needbe*

***another answer is calling it in stolen if you have to. I mean someone borrows a car. OK, "how come you still have it 2 1/2 days later?" states the cop to the person in cuffs...
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Old August 5, 2012, 09:39 PM   #59
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IMO: Its unlikely the former wife or son of the OP would sue. Lawsuits between folks living in different states usually involve big ticket items. Methinks very few judges would hand guns over to a convicted felon or to his mother in whose house the felon lives.
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Old August 5, 2012, 11:16 PM   #60
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And if your Uncle had broken a game law, or committed a crime with it, the 'system' would not have given a whit if his BIL had asked for it back when it was confiscated...
Seizure of evidence or criminal property has nothing to do with who owns it. Ask the thousands of car owners who's BILs have had their cars siezed from a drug bust whilst it wasn't in their possession.

Quote:
It is up to a judge to determine when that loan is no longer a loan anymore..............sooner than later would be my guess(so the longer it has been the easier it is to sayso I mean).
^^ This. Its a civil property dispute. In the op's case the son doesn't have a case. The son will have a hard time explaining to the judge that he gave the guns to his mother before conviction but they have been in his father's possession and separate household for so long. Not to mention that there is the whole obvious possibility of access to the guns if they were in his mothers possession.
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Old August 5, 2012, 11:41 PM   #61
Willie Sutton
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"No we can't. You appear to have no understanding of the law. You seem to be making this stuff up as you go along"


Apparently we *can*, as I called a friend earlier who was a prosecutor here for about a decade. I asked him a hypothetical question or three, and he was of the opinion that if I "lent" a firearm and was not in immediate supervision of the object in question, IE: I allowed it to be taken home to the household of the person to whom I lent it, he would consider it a "transfer" in respect to the laws regarding posession and transfer of firearms in our state (Wisconsin). As a follow on to the hypothetical, he stated that if that person was a prohibited person and I was knowlagable of that fact, I could be prosecuted for violation of Wisconsin firearms laws for transferring a firearm to a prohibited person. His comment was that even if I expected to get it back tomorrow, I was not able to contol it's disposition any longer, and thus I had conducted a transfer. This was his unambiguous opinion.

It also does not address the concept of "ownership", simply compliance or lack of compliance with state laws REGARDING GUN SALES AND TRANSFERS.

For the life of me I cannot imagine why anyone is not differentiating between the two subjects, and that I am not commenting AT ALL on the contractual basis of ownership v/s exectations of return after temporary posession.



Willie

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Old August 5, 2012, 11:43 PM   #62
Aguila Blanca
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Originally Posted by teeroux
^^ This. Its a civil property dispute. In the op's case the son doesn't have a case. The son will have a hard time explaining to the judge that he gave the guns to his mother before conviction but they have been in his father's possession and separate household for so long. Not to mention that there is the whole obvious possibility of access to the guns if they were in his mothers possession.
I disagree. I think the son certainly DOES have a case. He is not legally allowed to possess firearms, but he is still the owner of them. A somewhat similar situation might apply to a gun owner whose wife obtains a protective order during a divorce. The shop at my range had a HUGE gun safe stored on the premises for about eight months for just this reason. The owner was under a restraining order so the police required that the guns be removed from the man's house. The cops didn't want them, so the entire safe was stored at the range until the order was dissolved. To owner wasn't allowed to possess the firearms, but they were still his property.

In this case, the son could credibly claim that the father is preventing him (or his mother) from selling his guns. IANAL but I think this would be something akin to "theft by conversion."

I really think the OP needs to consult an attorney.
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Old August 6, 2012, 07:31 AM   #63
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I really think the OP needs to consult an attorney
I think this is more a family&personal issue rather than a legal issue. People might be fed up, so goodwill might not be so inclined at this time. The OP wouldn't need to seek legal advice until a legal issue was forced from the other side anyways, but maybe he could send some cash or verbally let the son's mom know he is storing for grandkids etc. Those are just examples and might not suffice either at this point, but he has a good debating tool on his side: no one is going to argue with the fact that the son is now a convicted felon + people need to take this seriously and not just 'do this or that' without proper planning. I guess you could keep the guns as repayment of just debt and call everything even now
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Old August 6, 2012, 07:27 PM   #64
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Originally Posted by youngunz4life
I think this is more a family&personal issue rather than a legal issue.
"Ownership" is a legal principle, not a family relations question.

Quote:
People might be fed up, so goodwill might not be so inclined at this time. The OP wouldn't need to seek legal advice until a legal issue was forced from the other side anyways, but maybe he could send some cash or verbally let the son's mom know he is storing for grandkids etc.
What part of "They aren't his guns" don't you understand? It is NOT the OP's decision to "store them for the grandkids" if the person who OWNS them doesn't want them stored (by the prospective grandfather) for the grandkids.

Quote:
Those are just examples and might not suffice either at this point, but he has a good debating tool on his side: no one is going to argue with the fact that the son is now a convicted felon + people need to take this seriously and not just 'do this or that' without proper planning.
The fact that the convicted felon cannot physically possess the firearms does not convey to the father or to anyone else (absent a court order) a right to deprive the felon son of whatever monetary value the guns may have. And it is not the father's call to unilaterally decide how much they're worth ... or to decide that he'll buy them, or sell them on Gunbroker, if the son does not want them sold. The father, unfortunately, does NOT have a good debating tool on his side.

Quote:
I guess you could keep the guns as repayment of just debt and call everything even now
Where is this alleged "just debt" documented? Weren't you the person who just a sentence or two previously wrote, "people need to take this seriously and not just 'do this or that' without proper planning"? Yes, I thought you were. People can't just make up debts. Suppose I unilaterally decide that you owe me $500. If I take you to court, how far do you suppose I'll get?
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Old August 6, 2012, 09:42 PM   #65
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1)
Quote:
What part of "They aren't his guns" don't you understand? It is NOT the OP's decision to "store them for the grandkids" if the person who OWNS them doesn't want them stored (by the prospective grandfather) for the grandkids.
however you want to view the situation, it seems(at least to me) that the dad has a lot of control over how this is going to end

2)
Quote:
Quote:
I guess you could keep the guns as repayment of just debt and call everything even now
Where is this alleged "just debt" documented? Weren't you the person who just a sentence or two previously wrote, "people need to take this seriously and not just 'do this or that' without proper planning"? Yes, I thought you were. People can't just make up debts. Suppose I unilaterally decide that you owe me $500. If I take you to court, how far do you suppose I'll get?
I was only joking, but I said before I wasn't going to judge the dad either way. blood comes before guns but I believe - like many family relationships - it is a tangled line sometimes never undone

3)
Quote:
The father, unfortunately, does NOT have a good debating tool on his side.
absent a court order or a really Loud, Convincing Female voice over the airwaves, this dad doesn't have to release these weapons legally. I believe that is why I mentioned it is more than a legal issue and more personal in my opinion. you may feel you know right is right or wrong is wrong but the bottom line is this man doesn't seem to be in a position of having to release these weapons unless he decides to do so
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Old August 6, 2012, 10:01 PM   #66
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Do your son a favor and keep them. If they want to take civil actions I'm pretty sure once you explained the situation to the judge or official it would be dead in the water. Or cut the guns up and end the argument. I don't think your ex understands the seriousness of being a felon in possession of a firearm. or she is in serious denial.
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Old August 7, 2012, 12:30 AM   #67
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Originally Posted by youngunz4life
absent a court order or a really Loud, Convincing Female voice over the airwaves, this dad doesn't have to release these weapons legally. I believe that is why I mentioned it is more than a legal issue and more personal in my opinion. you may feel you know right is right or wrong is wrong but the bottom line is this man doesn't seem to be in a position of having to release these weapons unless he decides to do so
I think you are wrong. The decision will be made based on how far and how hard the son and the ex-wife/mother want to push the matter. The mother is not a prohibited person. The son could sell the guns to her, give her a signed bill of sale, and she could then take legal action against the father for refusing to release her property to her.

I understand the moral issue, but what's morally correct here is different from what's legal. If the guns do not belong to the father (and he has acknowledged that they do not), then he has NO legal right to refuse to send them to whatever non-prohibited person the owner of the guns tells him to send them to.
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Old August 7, 2012, 07:32 AM   #68
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A small side-point to all of this - my son has never verbally expressed to me his desire to release these rifles to his mother - neither by telephone, e-mail, face-to-face, smoke signal or otherwise. All I have is the word of his mother, which, in my experience isn't worth a nickle. (But I'm a bit biased.... )

So, if he really, really, reallllllllly wanted me to do this, you'd think he'd at least be on the phone discussing it. As such, it seems I don't have a trustworthy directive of what to do with them. So, in my safe they'll sit (excepting maybe the occasional trip to the range - you know...to make sure they're still functioning properly. )

Another small point, I happen to know that his mother's new husband has a gun that he keeps in the house, unsecured at that. Not faulting them for that - they do live out in the country and have no small children visiting. The PROBLEM is that my felon son visits the house on a daily basis, and they both (son and mother) know the law concerning his being in the presence of a firearm - that it is illegal. It doesn't seem to bother them in the least. That shouldn't surprise me, since blatant disregard for the law is kind-of what got him into this mess to begin with.

It is this disregard for the law that they both exhibit which gives me pause over placing weapons in their hands. If they(or he - same difference) pursue the matter in court, and the judge is wacky enough to order me to transfer the rifles to her - I'll request that I be allowed to hand them to an officer of the court/deputy/whatever - so long as I am not the one placing them in her hands. Her receipt of those guns, if it happens, will directly result in my son's re-incarceration. I just cannot bring myself to be a part of that.
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Old August 7, 2012, 08:03 AM   #69
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thx for the update fxdrider, that was one of my reads on this. he probably has no clue what to do(1st step being call you about it), and he knows he is in the wrong so doesn't even have that mindset right now...aka: it is the least of his worries and he knows you are taking care of them. the mom mentioning it might get a tfl thread but anything else is few and far between. that is why I told Aguilar I disagree andor don't see any point in you paying for lawyer advice(I think they give fifteen minutes for free)....the ball isn't really in your court unless you decide to be generous.....back to my other point though, this is a serious situation and does desever thought before action.

all the best
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Old August 7, 2012, 08:56 AM   #70
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Is there a gun buy back program in your state?

Take the rifles there, get the $25.00 for them and a receipt, send the $25.00 and a copy of the receipt to your son, and you won't have to deal with this anymore.
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Old August 7, 2012, 02:32 PM   #71
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pretty sad that he is living by a different "code" at this time and he can't just write a certified, notarized letter explaining why he feels the guns are his(in a non-threatening way).
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Old August 7, 2012, 03:43 PM   #72
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So, if he really, really, reallllllllly wanted me to do this, you'd think he'd at least be on the phone discussing it. As such, it seems I don't have a trustworthy directive of what to do with them. So, in my safe they'll sit (excepting maybe the occasional trip to the range - you know...to make sure they're still functioning properly.
Good decision. Don't bring up the subject with either your son or ex: Maybe it will go away.
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Old August 8, 2012, 10:03 AM   #73
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Take the rifles there, get the $25.00 for them and a receipt, send the $25.00 and a copy of the receipt to your son, and you won't have to deal with this anymore.
Worst idea ever. Then he gets sued for the value of the rifle and potentially faces criminal charges over destruction of private property or the illegal sale of firearms that may or may not be his.

I still think they are his at this point, but I wouldn't risk it. Besides, giving the gun grabbers guns validates what they are doing. Horrible idea.
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Old August 8, 2012, 10:49 AM   #74
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Sounds to me like a lawsuit may be brewing. What she is going to argue is that she paid for one, so she should get that one. What he'll argue is that he was in ownership of them both and they he should decide who gets them (obviously, the topic of your post).

I would say that she may have legitimate claim over the one she purchased, however, it's not like there are any receipts for either. You feel that if she gets the guns, she'll hand them right to him, which you could argue in court, but you'd have to show that this would be the case. What she needs to be aware of is that if she knowingly gives the firearms to a person that cannot legally possess a firearm (as I see it, it's no different than handing it to a random child on the street), then she may be committing a crime herself.

If it were me, I would say keep the guns and tell her that your son is not to have anything to do with firearms any more, and she isn't going to get them because all she's going to do is harbor his problems. If they really want them back, let them get a lawyer and spend their money first before getting your own. Chances are, they won't do anything about it.
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Old August 8, 2012, 02:19 PM   #75
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What she is going to argue is that she paid for one, so she should get that one. What he'll argue is that he was in ownership of them both and they he should decide who gets them (obviously, the topic of your post).
Quote:
I would say that she may have legitimate claim over the one she purchased, however, it's not like there are any receipts for either.
Actually, she did not purchase the one she gave to him. It was a gift to her from me, back when we were married. And, I still have the receipts for both of them. Unfortunately, they were given as gifts, so the receipts won't indicate ownership. He did have legal ownership of them at one time. Now, he cannot possess them.
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