October 15, 2010, 03:18 PM | #26 | ||||
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When it comes to definitions I'll take webster's version because a "Straw Purchase" doesn't even have to be guns. you can straw purchase a car.IE you purchase it and finance it through your bank for your buddy cause his credit sucks.It's also used quite often in real estate. Quote:
Just cause the ATF call's a horses tail a leg doesn't mean a horse has 5 legs. .
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October 15, 2010, 11:03 PM | #27 | ||
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October 16, 2010, 05:20 AM | #28 | |||
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A "straw purchase" or "straw-man purchase" by definition is any purchase where a "Buyer" uses a third party to purchase something from a seller for any reason that the buyer can't do it himself. A straw purchase is not nesessarily a crime. If you have me pick you up a pack of smokes because I'm at the store and your not that's by definition a straw purchase.Now that can certianly become a crime if you are under 18. Therefore any crime involving a third party purchasing a firearm either transfering to a prohibited person or just lying on the form is by definition a straw purchase. Quote:
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October 16, 2010, 09:29 AM | #29 | |
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October 16, 2010, 09:47 AM | #30 |
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Here is a handy ATF cartoon about straw purchases:
http://www.atf.gov/training/firearms...swf/toon4.html The cartoon says pretty explicitly that it's still a crime if you are buying a handgun for someone else even if that someone else is legally able to own a handgun. This is because, again, the crime is lying on the question that asks if you are the actual purchaser. It then goes on to say it would be legal to buy the gun and then transfer it as a gift, but that's not what we are talking about.
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October 16, 2010, 11:50 AM | #31 | |||
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so the gorrect explination of what a straw purchase is would be both pertinent and fitting. then going on to explain that the only straw purchase that the ATF is concerned with is one involving lying on the 4473. because while your statement is true Quote:
telling someone that only "lying on the 4473" is the definition of a straw purchase is wrong and misleading.
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October 16, 2010, 12:29 PM | #32 | ||
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[2] And it's not a matter of lying in general on the 4473, although that's still a crime. It's specifically about lying on the first question on the 4473. |
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October 16, 2010, 01:01 PM | #33 |
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There are really two very distinct ways that a straw purchase can take place. One way is through a corrupt FFL Dealer or Pawnbroker and the other way is by means of a private transaction by a non licensee and a straw purchaser. A good number of these transactions occur at gun shows, hence the term "gun show loophole" whereby a firearm can be purchased by a non licensee.
Either way, ATF investigations have averaged two years and in the past. An investigation is not normally been initiated as the result of a single illegal transaction. This is not to say that sting operations do not occur. Recently the ATF has stepped up activity with their operation Gun Runner as a result of the unusually high amount illegal gun trafficking in 4 boarder states adjacent to Mexico. Gun shows in particular have been targeted. It would be unusual if ATF agents were not working almost every gun show in those states. Using any other definition of the term "straw purchase" or "straw man" than what the Justices Department - BATFE uses as "their" definition is irrelevant to illegal firearms purchases. ATF investigates only on the basis of what the Justice Department considers to be a "straw purchase". A long running campaign initiated by ATF to inform and educate dealers and customers is called "Don't Lie For the Other Guy". You may have seen the mats or posters in your gun shop. We are required by law to post them. The FBI through NICS also recently stepped up its effort to better inform dealers and offers free seminars in all states. When a person is arrested for straw purchases, the charges will be violations of the Federal Gun Control Act and in some states violation of various State firearms statutes in addition to Federal law.
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October 16, 2010, 01:05 PM | #34 | |||||
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however all straw purchases are no more just lying on question 1 of form 4473 than all even numbers are the number 2. Quote:
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October 16, 2010, 01:47 PM | #35 |
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Other examples of 'strq purchases' are NOT germaine.
The BAYFE has defined the 'straw purchase' of a firearm as lying on the 4473 to question 1. While in a more general sense bying a gun for someone else might be called a 'straw purchase,' that is not what BATFE is calling it. They have defined it as lying on the 4473 to question 1. While the law uses the 'normal meaning' of words, that is ONLY if the law has NOT defined a different meaning. The National Firearms Act ("NFA") of '34 uses the language of 'firearms' repeatedly. It is DEFINED in the act as meaning a machine gun. For purposes of the NFA, a machine gun IS a firearm (and non-machine guns are NOT firearms). Other pieces of law have other definitions of their terms. Under GCA68 muzzle loading guns are also NOT 'firearms' and not subject to the GCA68 rules. Buying for a prohibited person is a violation of GCA68 period. Lying on the 4473 is illegal, and BATFE has defined a 'straw purchase' based on lying to question 1. As far as BATFE, no 4473 means a 'straw purchase' cannot occur. No one lied about who the 'actual buyer' was (under penalty of perjury no less). There remain other illegal acts, like selling to a person you have reason to believe is prohibited, or selling to a resident of another state. If you sell it to Billy and he then gives (sells, lends, etc.) it to Frank the felon , Billy is the one who made an illegal transfer. Billy never signed anything saying he was the purchaser. |
October 16, 2010, 01:59 PM | #36 |
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What does mortgage fraud or buying a car have to do with the transfer of a gun? All we care about in this discussion it buying/selling/transferring guns.
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October 16, 2010, 03:46 PM | #37 | |||
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http://www.foxnews.com/projects/pdf/...pelandCase.pdf Further, the BATFE has not "defined" straw purchase anywhere. They use the term in their documents but, as fiddletown has pointed out, the term is not part of any law or administrative regulation. Quote:
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October 16, 2010, 04:00 PM | #38 | |
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The "Copeland" document appears to be an internal ATF report written by one or more investigating agents. In such communications terms of art can sometimes be misused. And in such documents, such misuse is of no consequence because the underlying facts and nature of the apparent violations are spelled out in detail. Thus any "short hand" description becomes surplusage and irrelevant. |
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October 16, 2010, 06:04 PM | #39 | ||
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So then you start looking at those portions of the regulations that actually pertain to transfers. 478.32(a) - (c) ... No mention of straw purchase or straw purchaser. 478.32(d) ... No mention of straw purchase or straw purchaser. 478.99(c) ... No mention of straw purchase or straw purchaser. So where is this term defined? Answer: It isn't. It is industry jargon, which is used by the BATFE informally to describe certain types of prohibited transfers. I am not a lawyer (and I know you are), but I respectfully stand by my position that saying the only situation that constitutes a straw purchase is a purchase from an FFL and involving falsifying answers on the Form 4473 is to ignore other types of prohibited transfers that the BATFE itself considers to be "straw purchases" (as indicated by the Copeland memo. And since the original question wasn't really intended to spark an argument over the definition but to find out if the proposed transaction is or is not legal, I respectfully suggest that continuing to insist that ONLY transfers involving giving false statements on the 4473 constitute straw purchases ill serves the original poster and the firearms owners community in general. Here's the link to the 2005 BATFE Guide - it's the most recent edition I could find on-line: http://permanent.access.gpo.gov/lps4...005/p53004.pdf |
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October 16, 2010, 06:30 PM | #40 | |||
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October 16, 2010, 08:28 PM | #41 | |
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The fact that you can't be ticketed for speeding if you run a red light doesn't mean that anyone is ignoring the violation of running the red light. It just means that running a red light is not a speeding violation. So even though you can't be ticketed for speeding when you run a red light you CAN be (and will be if observed by an LEO) ticketed for running a red light when you run a red light.
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October 16, 2010, 09:12 PM | #42 |
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If I am a prohibited person in a state where face-to-face sales are legal, I can find some private party selling a firearm and I can buy it directly from him, using my own money, and just lie to him and tell him I am not prohibited. Not a straw purchase, but highly unlawful nonetheless.
Or ... I can send my wife/mother/girlfriend/brother over to make the buy for me, using my money. As soon as my wife/mother/girlfriend/brother gets home with the firearm, he/she hands it to me. No 4473, no making of false statements under oath. The original purchase was illegal (I think) because my wife/mother/girlfriend/brother used MY money to make the buy, even though he/she isn't a prohibited person. Subsequently transferring the firearm to me is certainly illegal. Are you all SERIOUSLY saying this isn't a straw purchase? And then we might have the exact same scenario as directly above, except that I am NOT a prohibited person. Maybe I'm ill, or busy, so I send my wife/mother/girlfriend/brother over with MY money to make the buy for me. Private seller, no 4473 involved. He/she isn't prohibited, I am not prohibited, but he/she used MY money to buy the firearm for me -- not as a gift to me, but acting in my stead using my money. I respectfully submit that if you call your local BATFE field office and ask, they'll tell you this is a straw purchase. |
October 16, 2010, 09:48 PM | #43 | |||||
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A thing is illegal because there are laws against it. A law enforcement organization enforces laws that pertain to its jurisdiction. If a firearm transaction takes place between a non-dealer seller and a non-dealer purchaser both residing in the same state and the firearm is a legal firearm not specially regulated by federal law and if the purchaser is a qualified person then there are no federal laws broken and therefore the BATF doesn't have jurisdiction.
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October 16, 2010, 09:49 PM | #44 | ||
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The original purchase might be a violation of 18 USC 922(h) if case law and/or the circumstances would support a finding that the wife/mother/girlfriend/brother was in the employ of the prohibited person for the purposes of acquiring the gun. If not, it's not clear that the original purchase would otherwise violate federal law, at least if everyone is a resident of the same State. In general, the GCA/Brady Bill does not regulate transactions between residents of the same State. If you think it does otherwise violate federal law, please specify the statute violated (don't just call it a straw purchase). The transfer to the prohibited person would be a violation of federal law, specifically a violation of 18 USC 922(d) and possibly also conspiracy to violate 18 USC 922(g). It may also violate state law, depending on the State. It doesn't have to be a straw purchase to be illegal. Quote:
And do you contend that the described transaction would violate federal law? If so, exactly what provision of federal law has been violated (don't just call it a straw purchase)? |
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October 16, 2010, 10:19 PM | #45 | |||
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October 16, 2010, 11:02 PM | #46 | ||
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There have been multiple instances reported on various gun boards wherein husbands and wives have been tossed out of gun shops because the hubby, as the resident expert, did most of the tire kicking in picking out a gun for the wife, then when the wife wanted to buy it the FFL decided it was a straw purchase (there's that term again) and refused to deal with them. |
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October 16, 2010, 11:21 PM | #47 | ||
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October 16, 2010, 11:23 PM | #48 | |
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1. An FFL can refuse business to anyone at their sole discretion for any reason provided it is not in violation of their Constitutional civil rights. 2. Where the money comes from is not a legal issue and does not constitute an illegal purchase. A person could buy a firearm by cash from another persons wallet, purse or credit card. Often married people have joint checking accounts and a single credit card account with two or more names on the cards. 3. What counts is who is buying the gun. The person who fills out ATF form 4473, presents their identification, signs form 4473, has his background check run by the FFL is the TRUE purchaser and owner of the firearm.
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October 16, 2010, 11:54 PM | #49 | |
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The licensing scheme was pure genius by the antigunners. They couldn't simply extend federal juridiction because they wanted to, but they COULD create a new group of people who were, BY CHOICE, bound to follow the new laws. Because an FFL has CHOSEN to have a federally issued license he is bound by laws that do not apply to people who do not have the license. He is also exempted from some other laws as well but that's another story. An FFL can't sell handgun ammunition to someone under 21. You can as long as your state laws don't prohibit it. An FFL can't sell a handgun to someone under 21. You can as long as your state laws don't prohibit it. An FFL can't sell a firearm without having someone fill out a 4473. You can as long as your state laws don't prohibit it. Because you aren't bound by the law requiring a 4473 for all transactions like an FFL IS, you can legally buy and sell firearms from non-dealers with no 4473 involved. Since you don't have to use 4473s for some of your purchases, in those cases you also aren't bound by any of the laws that apply specifically to filling out a 4473. Since the infraction we are discussing is specifically defined as answering a particular question on a 4473 with false information then you can not be charged with violating that law if you engage in a transaction that does not require/involve a 4473. You may certainly be charged with other infractions if you violate other laws, but that's a separate issue.
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October 17, 2010, 12:46 AM | #50 | |
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That's the problem. I can't find any law that prohibits it, but I know for a fact that any FFL who sees Person A looking at a gun with great interest, then Person B reaches into his pocket/her purse for a roll of cash and says "We'll take it" will end the transaction right there. The BATFE has certainly convinced the FFLs that it's illegal. Quote:
The operative words in the quote above are "We'll take it" With the exception of NFA class III items purchased by a corporation, all small arms regulated by Federal law under the GCA can only have ONE owner. That is the person who fills out ATF form 4473, identifies himself to the FFL and has his background checked by NISC or a POA in certain states. The source of the money to pay for the gun is completely immaterial. Here is a good example: We sell firearms on-line. We accept credit cards from any individual with a valid and verifiable credit card. By law we can not ship a firearm directly to a non licensee. We send the firearm to the on-line buyer's preferred FFL (C&R's excepted). We require a copy of the FFL's license certificate and verify it before we ship. Once the firearm arrives at the FFL, A Person comes to the FFL for an over the counter transaction. At this time That person's identification is checked, ATF Form 4473 Part A is completed by that person in the presence of the FFL or his trained employee. An NICS background check is then made. If NICS returns a "proceed," That person becomes the "true" and legal owner. NO money except for a transfer fee is paid by the purchaser since it has already been paid for by credit card to the original FFL dealer. You could have your hands full of packages and ask your kid or you spouse or friend to carry the gun out of the store and it would still not be an illegal transaction or a "straw purchase" on the part of the FFL or the "true" owner. What the "true" owner does with the gun at a later time IS subject to applicable Federal and state laws.
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