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Old November 5, 2017, 02:58 PM   #1
fredvon4
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Join Date: January 18, 2010
Location: Lampasas Texas
Posts: 71
Follow on to legal questions thread

I think I gave very bad advice to a family member in my state

Basically family to family transfer of guns question

Reading a few threads here has me thinking some or all of the transactions were not within the law

Several scenarios I would like advice on--- and if not legal how to get it straight

I did suggest to my BIL to find a good gun rights lawyer...BUT still asking for opinions and free advice here

Texas Father has some bought and some inherited weapons. On Sons different birthdays gifted some the weapons to the under (like a Ruger 10/22 at age 16) and now well over 21 YO son...no paper work or anything

Later this son got convicted of Felony Injury DWI and was plea bargained down to felony DWI third...sentenced to 90 day and ten years probation. All that long in the past now... and no one ever noted the son he had no gun rights... He asked parole officer about his gun collection about the 5 year mark and got a shrugged response... been out of the system now 2 years

Father wants to gift a new rifle to son...I said drive on

BUT>>Now as I read in a few threads--- If someone buys a weapon and has self as buyer owner on forms... they might have to get FFL holder to do transfer paper work to new owner "even if family" ... This confuses me as I always thought private sales and gifts need not do more than exchange item for compensation...cash or trade or gift

OK one question is...can a family member Gift a weapon to another family member without a series for paper work transfer steps?

In one thread it was suggest it does not matter how long the confinement that was imposed...but the TERM the statute designated for a particular crime...further suggested that any term (In Texas) exceeding one year losses gun rights in a felony conviction

Question is, in above conviction sentenced 90 day, I know max is ten years and I do not know min under state law, BUT assume more than a year for Felony Third DWI...

How was this convict (the son) suppose to be notified he has/had lost gun rights?....
Is the fact of zero notice a positive defense ?

Is there a way to determine if one has or does not have gun rights?

BTW this son has privately AND store bought more than one weapon and NOT flagged NICS

Second scenario.
This father is a retired Army guy and VFW member. A few years back he donated a Stoger 20Ga coach gun value $489 to a raffel to help a veteran in need.

My understanding is he delivered the shot gun to the VFW Master at Arms who had to get a Texas Alcoholic Beverage Commission letter certifying the unloaded weapon COULD be " on premises" for the auction as a display of the prize...

IN Texas NO weapons can be in a Bar/canteen with alcohol...but VFWs have exceptions like this as in the Case of a ceremony with a armed color guard or Rifle drill team training

OK none of that is really relevant but interesting

Some raffle #459 is called and a under 21 kid is the winner... no sweat give the prize to his mother who takes possession of the shot gun...no FFL or any paper work.. 7 years ago...now father listening to me about what I am reading is freaked out that he may be in jeopardy some way

If this was an illegal transfer how can it be fixed

Winner are long gone and zero record other than a given name of winner are in the VFW minuets

I am sorry and accept all the GO get a lawyer calls...

BUT I am really confused on how this works... I have a lot of my weapons I intended to gift my son and grand son in the near future and I have often entertained donating some to the VFW for raffles to help needy VETS
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Old November 5, 2017, 04:37 PM   #2
Spats McGee
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Quote:
Originally Posted by fredvon4
. . . . I did suggest to my BIL to find a good gun rights lawyer...
A good start. He'll need a lawyer licensed in the appropriate jurisdiction(s) and well-versed in criminal law and firearms law.
Quote:
Originally Posted by fredvon4
. . . . Texas Father has some bought and some inherited weapons. On Sons different birthdays gifted some the weapons to the under (like a Ruger 10/22 at age 16) and now well over 21 YO son...no paper work or anything

Later this son got convicted of Felony Injury DWI and was plea bargained down to felony DWI third...sentenced to 90 day and ten years probation. All that long in the past now... and no one ever noted the son he had no gun rights... He asked parole officer about his gun collection about the 5 year mark and got a shrugged response... been out of the system now 2 years

Father wants to gift a new rifle to son...I said drive on. . . .
Full stop. If the crime was punishable by more than one year in jail, this son is a prohibited person under 18 U.S.C. 922, meaning that he may not possess firearms or ammunition. I'd be willing to bet that there's a matching TX counterpart, too.

Quote:
Originally Posted by fredvon4
BUT>>Now as I read in a few threads--- If someone buys a weapon and has self as buyer owner on forms... they might have to get FFL holder to do transfer paper work to new owner "even if family" ... This confuses me as I always thought private sales and gifts need not do more than exchange item for compensation...cash or trade or gift

OK one question is...can a family member Gift a weapon to another family member without a series for paper work transfer steps?
First, let's be specific. We're not talking about "weapons." We're talking about firearms. A sharp stick can be a weapon, but it's not regulated by federal law.

Second, the issue of private transfers is a separate issue from the prohibited person issue. I may not transfer a firearm or ammunition to a prohibited person under any circumstances.

Federal law does not regulate gifts or private sales, except to the extent that: (a) such transfers involve prohibited persons; or (b) such transfers involve residents of different states. If I want to give a gun to my buddy, and he and I are residents of the same state, there's no requirement to use an FFL. I hand him the gun, and we're good. If I want to sell it to him, he hands me cash, I hand him the gun, and we're good.

If he and I were residents of different states, however, federal law intervenes and we have to make the transfer through an FFL. It does not matter if he's my buddy, my brother, or some stranger. With the exception of certain particular transfers (bequests), interstate transfers have to go through an FFL.


Quote:
Originally Posted by fredvon4
....In one thread it was suggest it does not matter how long the confinement that was imposed...but the TERM the statute designated for a particular crime...further suggested that any term (In Texas) exceeding one year losses gun rights in a felony conviction

Question is, in above conviction sentenced 90 day, I know max is ten years and I do not know min under state law, BUT assume more than a year for Felony Third DWI...
It doesn's matter that he got 90 days. 18 U.S.C. 922 speaks in terms of "crimes punishable by more than a year of incarceration." So if he could have gotten more than a year in jail, he's now prohibited.
Quote:
Originally Posted by fredvon4
How was this convict (the son) suppose to be notified he has/had lost gun rights?....
Is the fact of zero notice a positive defense ?
I've never seen it litigated, and I'd be surprised if it worked. Further, even if it worked once, it wouldn't restore his gun rights. At best, it might be a "get out of jail free" card one time, and only one time.

Quote:
Originally Posted by fredvon4
Second scenario.
This father is a retired Army guy and VFW member. A few years back he donated a Stoger 20Ga coach gun value $489 to a raffel to help a veteran in need.

My understanding is he delivered the shot gun to the VFW Master at Arms who had to get a Texas Alcoholic Beverage Commission letter certifying the unloaded weapon COULD be " on premises" for the auction as a display of the prize...

IN Texas NO weapons can be in a Bar/canteen with alcohol...but VFWs have exceptions like this as in the Case of a ceremony with a armed color guard or Rifle drill team training

OK none of that is really relevant but interesting

Some raffle #459 is called and a under 21 kid is the winner... no sweat give the prize to his mother who takes possession of the shot gun...no FFL or any paper work.. 7 years ago...now father listening to me about what I am reading is freaked out that he may be in jeopardy some way

If this was an illegal transfer how can it be fixed

Winner are long gone and zero record other than a given name of winner are in the VFW minuets

I am sorry and accept all the GO get a lawyer calls...

BUT I am really confused on how this works... I have a lot of my weapons I intended to gift my son and grand son in the near future and I have often entertained donating some to the VFW for raffles to help needy VETS
First of all, let me admit to having never done any research on firearms raffles. That said, it sounds to me like: (a) if the transfer was illegal, the "Let's Fix This Ship" sailed a long time ago; and (b) if there was an illegal transfer, it was likely between the VFW and the auction winner's mother (sounds like your dad had already transferred the shotgun to the VFW). That's all a hunch and should not be construed as legal advice, however.
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Old November 5, 2017, 05:32 PM   #3
JohnKSa
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There are no forms/paperwork mandated for private transfers.

Transfers to family members are just like any other transfers. There are no special requirements or exemptions for transfers to family members. Family has nothing to do with any of this.

The only exceptions in federal law for transfers to family members involves transfers from parents to children under 18 years of age. It is not applicable here.
Quote:
Question is, in above conviction sentenced 90 day, I know max is ten years and I do not know min under state law, BUT assume more than a year for Felony Third DWI...
The actual penalty/sentence assessed is irrelevant. If the specific crime COULD have carried a sentence exceeding a year (or is a misdemeanor crime of domestic violence) then the person is now a prohibited person. According to this website, any felony DWI in TX is punishable by more than a year of jail time.

https://www.dwi-texas.com/texas-dwi-penalties/

Assuming the website and your characterization of the conviction are accurate, the son is a prohibited person. He is committing a federal crime by possessing firearms and anyone who knew about his conviction and has transferred a firearm to him since his conviction has also committed a federal crime.
Quote:
...under 21 kid is the winner... no sweat give the prize to his mother who takes possession of the shot gun...no FFL or any paper work.. 7 years ago...now father listening to me about what I am reading is freaked out that he may be in jeopardy some way
7 years ago is probably long enough that it's no longer an issue in any event.

21 years of age has nothing to do with any federal restrictions on private transfers of firearms.

If the person at the VFW who he transferred the firearm to was a resident of his state and he had no reason to believe that person was a prohibited person, then he didn't break any laws and no paperwork or FFL transfer was required by law. I wouldn't have done it that way, but I don't know of any law against it.

From there on out, it's got nothing to do with your friend.

Federal law is concerned with ONLY the following when it comes to transfers:

1. What is the state of residence of each of the two parties?

2. Is the recipient a prohibited person/does the current owner have reason to believe that the recipient is a prohibited person? This could be due to age, current illegal behavior, or criminal convictions for crimes with a maximum sentence of over 1 year or criminal convictions for misdemeanor crimes of violence.

3. Is the transfer permanent or is it a temporary loan?

What it boils down to is this:

1. Permanent transfers from a resident of one state to a resident of another state must involve an FFL. There is only one exception to that and it is a bequest. "Bequest" has a VERY specific meaning and it is not a synonym for 'gift' or 'gift to a family member' or for any other transfer other than a 'bequest'.

2. If the current owner knows/has reason to believe, that the recipient is a prohibited person then the transfer is illegal.

3. Temporary loans can take place across state lines, but that's not really relevant to any of your questions.

Quote:
I have a lot of my weapons I intended to gift my son and grand son in the near future and I have often entertained donating some to the VFW for raffles to help needy VETS
As long as your son and grandson are not prohibited persons and reside in the same state you do then you can transfer firearms to them legally without involving an FFL. If the recipient is under 18 then it may be necessary to transfer to their parents, rather than directly to them, especially if handguns are involved. If they live outside of your state, you would need to do the transfer through an FFL OR, you could specifically leave them the firearms in your will as a bequest.

You can donate to the VFW (what you're really doing it is transferring it to a person involved with the VFW) as long as the specific person you are transferring it to is a resident of your state and as long as they are not a prohibited person. However, I, personally, wouldn't do that. I would take it to an FFL and have the FFL hold the firearm until the prizewinner shows up at the FFL to claim the prize via a standard 4473 transfer. Either you or the the VFW or the prizewinner would need to pay the FFL for the transfer.

ALL of this is based on Federal law. State law may impose additional restrictions.
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Old November 6, 2017, 12:42 PM   #4
Frank Ettin
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The OP has gotten good and correct information from Spats McGee and JohnKSa. There's really nothing more to add here.

The parties involved need to consult their lawyers who are knowledgeable about gun rights and gun laws.

And we as gun owners need to remember that whether we like it or not, and whether we think it ought to be, having guns is a highly regulated activity. We need to understand the laws that apply. We need to take responsibility for doing so and keeping up with changes as they occur.

What we don't know can get us into a lot of trouble. There is all sorts of information out there regarding law relating to or affecting the ownership and use of guns, including: various Internet gun forums and blogs; the NRA ILA NRA gun law website and NRA alerts; many local RKBA groups publish legal information; state agencies often maintain websites with legal information; and the ATF website.

And when questions come up, don't just guess. Look things up. By the way, that what lawyers like Spat McGee and I do -- we are looking things up all the time.
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