The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools
Old February 16, 2013, 05:15 AM   #1
TDL
Senior Member
 
Join Date: January 25, 2013
Posts: 179
Question on best temporary transfer method from ffl to related 3rd party

So I have ordered a handgun from gunsamerica that isn't enumerated on my state rooster. the general model is there but not the specific iteration ( I dont want to name it but it is an e e). Looking at the local forum I see that some FFL's are passing them and some are not.

I will be moving one state over in July (when the kids are out of school) to a state with no rooster and much more lax laws. I also have a first cousin who is extremely responsible, has a number of firearms, a monster safe, and lives in a nearby jurisdiction with few controls (PA) and whom I completely trust. He is fully eligible to own this handgun. I am willing to wait for it, especially sicne I can drive 90 minutes and practice with it at his place in the meantime

If I get hung up at my local FFL and I want to have my cousin have custody of this firearm for a few months and transfer back to me in the summer what is the best most legal strategy for us both?

At my FFL would I as it to be sent to his FFL as a gift or as a (re)sale to my cousin?
TDL is offline  
Old February 16, 2013, 07:16 AM   #2
TDL
Senior Member
 
Join Date: January 25, 2013
Posts: 179
to make it clear I do not propose to skirt any intent. It isnt a straw I just want to make sure it doesn't even come close. If the weapon makes the rooster (it is under consideration but will take at least three more months) I can take possession of it at that point. And if not I would take it when relocating to another jurisdiction in July.
Just want to make sure to cross the t's and dot the i's.
TDL is offline  
Old February 16, 2013, 08:12 AM   #3
Sport45
Senior Member
 
Join Date: May 25, 1999
Location: Too close to Houston
Posts: 4,090
Try throwing the rooster a little extra cracked corn and maybe he'll let you take the thing.

Seriously, If you've already ordered it and it's being shipped to your local FFL it may be too late to redirect it without the appearance of a straw purchase. Your cousin can't collect your gun from a FFL in his state and you can't collect it from a FFL in a state you don't reside in. At least that's my interpretation of the rules. But I'm not versed in gun law and could be wrong...
__________________
Proud member of the NRA and Texas State Rifle Association. Registered and active voter.
Sport45 is offline  
Old February 16, 2013, 08:57 AM   #4
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 5,216
This is problematic. Your cousin cannot get the handgun from your FFL because: (1) he is not a resident of your state; and (2) doing so would be a straw purchase. He would not be the actual purchaser. Frankly, you should have waited until after your move to order the handgun. You might just call your FFL and ask if he's going to transfer it to you, or not. If not, has the pistol left the seller? Can you find another FFL?
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old February 16, 2013, 09:11 AM   #5
TDL
Senior Member
 
Join Date: January 25, 2013
Posts: 179
I think you guys misunderstand. In my jurisdiction there is a roster. It is common practice for non returnable purchases to be resold from one FFL to another FFL out of state if not passing roster.

I already know it is perfectly legal for me tor arrange sale to a complete stranger and have my FFL ship it to that buyer's FFL. My FFL actually does this often because of varying determinations of roster, appeals etc.

For me to Sell it to my cousin via my FFL isn't straw since my cousin is not in any way encumbered from buying it himself. the forms indicate that straw is determined based on his encumbrance and he has no encumberance. he is not a forbidden person and the weapon is not forbidden in his jurisdiction.

Since I would formally appeal an off roster determination, it would be pretty clear that my intent isn't straw, since resale would be my last recourse if I lose the appeal in 90 days) .

Again looking at my states local firearm owner forums half the people with the exact same model have passed roster and about half have been held up. It is common for FFL to resell on behalf of buyers when turned down for off roster

I am just wondering if it is preferential to sell it, or if I may gift it. I was under the impression I may gift to any party entitled to own it


Quote:
Your cousin cannot get the handgun from your FFL because: (1) he is not a resident of your state; and (2) doing so would be a straw purchase.
I understand your caution but selling it to him by having my ffl ship it to him via transfer to an ffl in his state would in no way qualify as a straw purchase. I am looking at the straw purchase rules and it doest fit the rules or tests.
I have no doubt if it were investigated it could be shown to not be a straw purchase. I am just looking for the way to raise the least red flags and hassle of showing it isn't a straw.

Last edited by TDL; February 16, 2013 at 09:28 AM.
TDL is offline  
Old February 16, 2013, 09:30 AM   #6
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 5,216
Quote:
Originally Posted by TDL
I think you guys misunderstand. In my jurisdiction there is a roster. It is common practice for non returnable purchases to be resold from one FFL to another FFL out of state if not passing roster.

I already know it is perfectly legal for me tor arrange sale to a complete stranger and have my FFL ship it to that buyer's FFL. My FFL actually does this often because of varying determinations of roster, appeals etc.
That's helpful, because that may be exactly what will have to happen. Your cousin cannot go "pick up" the firearm in another jurisdiction for you. However, I am unaware of any restriction that would prevent you from selling him the firearm.

Quote:
Originally Posted by TDL
For me to Sell it to my cousin via my FFL isn't straw since my cousin is not in any way encumbered from buying it himself. the forms indicate that straw is determined based on his encumbrance and he has no encumberance. he is not a forbidden person and the weapon is not forbidden in his jurisdiction.
I think you misunderstand the meaning of "straw purchase." It has nothing to do with whether your cousin is a prohibited person. It has to do with the fact that he would not be the actual purchaser of the handgun. If you are the actual purchaser of the gun, he would have to lie on the 4473 in order to have the weapon transferred from the FFL.

Edited: It looks like you were editing while I was drafting: (1) You may give him the firearm as a gift, but as residents of different states, the x-fer still must go through an FFL in his state; (2) You could sell him the pistol, again through an FFL.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old February 16, 2013, 09:44 AM   #7
TDL
Senior Member
 
Join Date: January 25, 2013
Posts: 179
Quote:
Edited: It looks like you were editing while I was drafting: (1) You may give him the firearm as a gift, but as residents of different states, the x-fer still must go through an FFL in his state; (2) You could sell him the pistol, again through an FFL.
Thanks, I know I can do that. Was just trying to figure if either way raised less flags.

I am going to pm you with some specifics that I don't wan to get into here
TDL is offline  
Old February 16, 2013, 09:47 AM   #8
KnotRight
Member
 
Join Date: February 6, 2013
Location: Savannah, GA
Posts: 91
I would call ATF and ask. Most of the field agents that I have deal with are more willing to help you. If you do not want the caller ID showing up as you, call from work. I had a question about a transfer from a 503c fundraising banquet and they did not ask what 501c or when it was but told me the way to hand the transfer.
KnotRight is online now  
Old February 16, 2013, 10:46 AM   #9
TDL
Senior Member
 
Join Date: January 25, 2013
Posts: 179
yes I may call the atf, but will wait to see if it passes roster interpretation. I did have to have the atf call an ffl who would not pass me a handgun without magazines. I had ordered it for a seller with 15 round mags (not legal for me) and taken a credit for no mags and then had an ffl tell me they could not give it to me without some kind of magazine which was incorrect according to the atf.

I certainly don't fault ffl's for being cautious even when wrong the laws are complex and it isn't shocking that they will err on the side of caution
TDL is offline  
Old February 16, 2013, 04:58 PM   #10
JimDandy
Senior Member
 
Join Date: August 8, 2012
Posts: 2,479
Quote:
I think you misunderstand the meaning of "straw purchase." It has nothing to do with whether your cousin is a prohibited person. It has to do with the fact that he would not be the actual purchaser of the handgun. If you are the actual purchaser of the gun, he would have to lie on the 4473 in order to have the weapon transferred from the FFL.
You're both right and wrong.

You can't do the me-you-dance. That is a straw purchase. But prohibited person still matters. Read the blurb on "the back" of the 4473 form- or Page 2ish of the PDF download.
JimDandy is offline  
Old February 16, 2013, 05:26 PM   #11
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 5,216
Of course prohibited status matters, and you cannot provide a firearm to one who is prohibited. However, that status is not what determines whether a sale is a straw sale or not. IOW, prohibited status has nothing to do with determining whether a sale is straw or not.

From the back of the 4473:
Quote:
For purposes of this form, you are the actual buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (for example, redeeming the firearm from pawn/retrieving it from consignment). You are also the actual buyer if you are acquiring the firearm as a legitimate gift for a third party. ACTUAL BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT the actual buyer of the firearm and must answer “no “ to question 12a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to
buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual buyer of the firearm and should answer “yes” to question 12a.
Notice that status as prohibited or not is never mentioned.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old February 16, 2013, 05:39 PM   #12
JimDandy
Senior Member
 
Join Date: August 8, 2012
Posts: 2,479
It is on the PDF version I just looked at on the ATF website. http://www.atf.gov/forms/download/atf-f-4473-1.pdf Page 4 And it's question 11a
JimDandy is offline  
Old February 16, 2013, 05:57 PM   #13
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 5,216
Perhaps I shouldn't have said "the back" of the 4473, but those are the instructions I quoted above.

Unless I am mistaken, the term "straw sale" is descended from an old practice in property law, and here's how that practice worked, assuming I remember my days in Property Law correctly. (Well, it's a little hazy in my memory, but I'll lay it out as best I can.) If a person owned property and got married, the title would remain in his name, but he and his wife would be tenants-in-common (or maybe joint tenants, I forget). Anyway, if he wanted to create a tenancy-by-the-entirety (a type of ownership only available to married persons), it was difficult because the law didn't recognize transfers between man and wife, due to their status as one legal unit. Accordingly, if the couple wanted to create this tenancy-by-the-entirety, they would "sell the property to a straw man," usually their lawyer, who would immediately sell the property back to them both, creating the tenancy-by-the-entirety.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old February 17, 2013, 08:19 AM   #14
TDL
Senior Member
 
Join Date: January 25, 2013
Posts: 179
Thanks for all the comments. I have my answer of line where I was able to give more specifics.

Again I understand you guys being conservative about all of this.

My point is simple. My intent is to do whatever legally possible to keep the weapon. If I fail appealing a decision of off roster, which could take many months I am fairly clear at that point I can sell it through my FFl to any qualified buyer residing out of state where there are less controls.

In states with rosters of "approved weapons" right now there are a good number of weapons sitting in FFL safes that were purchased and transferred to those in-state FFLs that were judged to be off roster where the buyer is a) appealing or b) asking the state board or authority to approve the weapon.
That is what I would do first.

If you look on local gunowner forums of states with rosters you see that there are also cases where sometimes the exact same UPC gun is approved transfer by some FFL and registration office and sometimes where it is not. So there is a subjective element to whether it is "on list."

So there is no question of my answer on 11a. I am the buyer and the weapon is for me.
The question is what to do if a final judgment is made down the road that it is non conforming and therefore what the status and saleablity is. ie would selling it or gifting it to a qualified extended family member be any different than selling it to a an unknown qualified person?
TDL is offline  
Old February 17, 2013, 08:30 AM   #15
TDL
Senior Member
 
Join Date: January 25, 2013
Posts: 179
Quote:
Unless I am mistaken, the term "straw sale" is descended from an old practice in property law, and here's how that practice worked, assuming I remember my days in Property Law correctly.
Yes, that is the history, but how that definition applies to real estate, how it applies to tax situations, and how it applies to federal gun law are not all the same.

I am looking at the prosecutions on findlaw. It is all about getting weapons into the hands of unqualified persons, or qualified persons in unqualified jurisdictions.

My situation is not that. I have no intent to possess or control or use this weapon in my jurisdiction of it is judged as unqualified, ie if it fails to be judged as on roster. I am background check qualified so the question is the somewhat subjective issue of "on list". the roster determination in reality is a process. You are allowed to appeal. In many states, in addition to appeal of roster interpretation, you are allowed to submit an unlisted weapon as a private citizen to the board for their own safety check and determination.

Obviously during that process there has been no transfer to the buyer by the FFL but the buyer is allowed to have the FFL send the physical weapon into the state board.

So at the end of such a process which can take three months or more, it would be a due process problem if the buyer could not then sell it a qualified person outside the state under a straw purchase claim
TDL is offline  
Old February 17, 2013, 08:44 AM   #16
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 5,216
Quote:
Originally Posted by TDL
Yes, that is the history, but how that definition applies to real estate, how it applies to tax situations, and how it applies to federal gun law are not all the same.
The "straw sale" in firearms involves a buyer lying on the 4473, which asks, "Are you the actual transferee/buyer of the firearm(s) listed on this form?" In a straw firearms sale, then, the firearm is transferred to someone who is not the "actual transferee/buyer." In the property law version, the property is transferred to someone who was not the "actual transferee/buyer," usually a lawyer. In that principle, they're very much the same, and that is the principle that makes it a straw sale.

As far as prosecutions, I'm not surprised that they're hard to find. In the grand scheme of priority targets, the violent felon who winds up with a gun is much higher up the list (& easier to prosecute) than a basically law-abiding guy who gave his buddy $250 to grab a rifle that's on sale.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old February 17, 2013, 04:21 PM   #17
wally626
Senior Member
 
Join Date: July 31, 2009
Posts: 637
You can sell or gift the gun to an out of state relative using a FFL Dealer. What you can not do his tell your relative that he has to give the gun back after a certain date or provide him the money to buy the gun. The sale or gift has to have no conditions on it.
wally626 is offline  
Old February 19, 2013, 01:29 PM   #18
TDL
Senior Member
 
Join Date: January 25, 2013
Posts: 179
I would sell it with no conditions.

In any case the specific model I am looking at is on schedule on the local board to be review in the next two weeks.

My FFL will hold it for up to three months during this process. In unlikely case it is denied for approved list I will have my FFL sell it outright to an out of state buyer and simply rebuy a new one from an ffl when I move out of state.
TDL is offline  
Old February 19, 2013, 01:30 PM   #19
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 5,216
We wish you the best of luck with the review.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old March 2, 2013, 09:06 PM   #20
TDL
Senior Member
 
Join Date: January 25, 2013
Posts: 179
I think this all brings up interesting questions with all the various different state eligibility allowances for weapons types and models instead of focusing on prohibited classes of people.

for example if I lived in Maryland and was assigned (or in the military, deployed) to NY state, it is possible my Maryland legal weapon would be illgal in NY state. It seems transferring to a close friend or relative who IS both personally and locally legal to own the weapon, and then taking back ownership when returning would be a "straw" transaction. In fact that transaction is all legal persons engaging in activity specifically to insure that the weapon is kept in the hands of persons who are legal, in jurisdictions where they are allowed-- yet creating a straw!

Don't forget in quite a few jurisdictions (like mine) you must be the registered owner to be the possessor, so a a legally qualified (UBC wise) person cant just hold a weapon for you, they have to register a buyer.

Let's say I legally own an eight shot revolver in say Washington DC, and it and I am legal, and I legally own and have it registered in DC legally and am in th military. I am deployed to NY State for eight months. It seems that technically my only recourse e is to sell and give up the weapon. Transferring it to a cousin in DC who is legal can be construed to be a straw.

I think the increasing variety of laws on what is allowed in different states, along with a lot of temporary mobility is already probably causing a lot of straws where the intent is actually full compliance with the spirt of the law: ie no prohibited persons owning and no prohibited weapons possessed in a jurisdiction that prohibits that weapon.



It also brings up interesting questions about even transfers due to inheritance. I think a lot of parents may have their guns in their wills. In many states executors can only hold onto weapons for very short periods of time. if the heir is under age and another family member who can, as a person and in that locality, legally own the specify weapon until the actual heir is of age, that could be construed as a straw as well, intentionally taking ownership of weapon for the purpose of transferring it to another at a later time. In other words if you have a 5 shot SW 38 legal in 995 of juristictions, and a 19-year old son who is clear in every way except age, but your jurisdiction requires ownership for possession, you cant specify your brother holding the weapon via ownerships until your son is 21, as this would be technically a straw.
TDL is offline  
Old March 2, 2013, 09:28 PM   #21
Aguila Blanca
Senior Member
 
Join Date: September 25, 2008
Location: CONUS
Posts: 6,713
Whether you sell it or give it or simply transfer it makes no difference. The law is only concerned about the chain of custody, not whether or not you made a buck on the deal. Your cousin is in another state, so for a handgun he MUST take possession through an FFL in his state of residence. Just have your FFL send it to your cousin's FFL. There is no need to "declare" the transfer as a sale or as a gift, since I don't recall any place on any form that asks for this information.

It is what it is -- a transfer.
Aguila Blanca is online now  
Reply

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 08:57 PM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.13099 seconds with 7 queries