FFL is trying to steal my father in laws pistol

[SARDiver]

You are combining two separate actions into one, a common mistake.

Buying a firearm from an FFL on behalf of another person is a straw purchase, violating 18 USC 922 (a)(6). Period, end of definition.

Okay. Fair enough. But there's a distinction there that is getting lost. The brother, with a bill of sale and transfer of funds, is not buying on behalf of another person. He (after filing the paperwork with the FFL) is receiving the firearm on his own behalf. He's not buying it for the father-in-law...He can't be; The FIL is already the owner. The FFL would then be an intermediary in a perfectly legal sale.

 

[ThePunisher'sArmory]

What in the hell happened to America? He should be able to put his holster/belt on, place the pistol in the holster, get on his horse (car), and ride south to Montana. All these stupid......rules are just that. STUPID! If I can ever afford to move out of Illinois all my guns are going in the truck and moving. Period. I just can't stop shaking my head and saying *** at all this.

 

[tarosean]

What in the hell happened to America? He should be able to put his holster/belt on, place the pistol in the holster, get on his horse (car), and ride south to Montana. All these stupid......rules are just that. STUPID! If I can ever afford to move out of Illinois all my guns are going in the truck and moving. Period. I just can't stop shaking my head and saying *** at all this.

He could have and this whole headache would have been avoided. Or took it on the plane (locked check baggage) if that was his mode of transportation.

 

[NavyLCDR]

It sure sounds to me like he's presently a resident of Montana. He's moving, therefore no longer a resident of Alaska. The fact that he has intent to become a resident of some other state does not negate the fact he is presently residing in Montana.

Actually, it IS exactly the fact that he has intent to become a resident of some other state that DOES negate his claim of Montana as a state of residence.

http://edocket.access.gpo.gov/cfr_2003/aprqtr/27cfr478.11.htm

27 CFR 478.11:

State of residence. The State in which an individual resides. An
individual resides in a State if he or she is present in a State with
the intention of making a home in that State.

 

[SARDiver]

He could have and this whole headache would have been avoided. Or took it on the plane (locked check baggage) if that was his mode of transportation.

Except he had to pass through Canada on the way.

Air travel fine....Driving, nope.

 

[gym]

If they honor dual residency, he can just go get a part time reident ID, my mom did it here in FL. Then they gave her problems back in NY untill I got the bank manager on the phone. These people are like robots. You have to explain things in an orderlly fasion or you will waste your entire day. Tell them you have several homes and this is just one of them, If needed hook up a phoneline. Walk in with your untility bill and get a residency id. That should fix it.Once you have a mailing adress and a utility bill or two, you are a resident. You don't have to get a drivers license, just a part time resident ID card.Open a bank account and thet should take care of it in an hour.

 

[mgkdrgn]

The FFL is correct, he can't release a handgun to anyone that isn't a resident of that state.

Just have the brother pick it up.

 

[mnrivrat]

There have been many opinions put forth but the simple answer may be is to pay for the receiving FFL, after coordination with sending FFL, to send the gun back to the sending FFL. Back to square one.

+1 FOR THE RIGHT ANSWER !

Pay Montana dealer to ship gun back to FFL dealer in Alaska - have that dealer hold & transfer the gun back to an FFL in the state of residence after owner decides where. If Montana dealer refuses to ship the gun back to Alaska for a reasonable fee, then file a stolen gun report with Montana law enforcement. But until then - attempt to do it the right way

 

[briney11]

I understand about the transfer issue, but the ffl IS trying to steal the gun. He telling your FIL to do something IMPOSSIBLE or else he will keep it. There is no possible way to become a resident of Montana in 30 days. I have a hard time believing that the ffl doesn't know what he is doing.

http://mt.gov/howdoi/worklive.mcpx

 

[Onward Allusion]

Have the FFL send it back to the AK FFL. 2nd option is to become a MT resident and get a State ID. In which case, your FIL will probably have to trade in his CDL (or re-test).

 

[dogtown tom]

This isn't rocket science for goodness sake......

ThePunisher'sArmory What in the hell happened to America?...

Americans have been saying that since Plymouth Rock.
These regulations aren't new, they've been Federal law for the last forty three years.

gym If they honor dual residency,...

Doesn't matter.....the OP's FIL has no intention of making Montana his home.

mgkdrgn The FFL is correct, he can't release a handgun to anyone that isn't a resident of that state.

Just have the brother pick it up.

Aren't you an FFL?
That would be a straw sale and a Federal crime.

briney11 I understand about the transfer issue, but the ffl IS trying to steal the gun.

Seriously?
If he actually does steal the gun it will be pretty darn easy to prove. Why don't we wait and see if the dealer was engaging in a bit of humor first.

He telling your FIL to do something IMPOSSIBLE or else he will keep it. There is no possible way to become a resident of Montana in 30 days.

Sure there is. What ATF considers as your state of residence is not the same as what most states require for voting, etc. All you have to do is intend to make your home in that state, then you need to get documentation from a government source that shows your new residence address....it doesn't have to take thirty day. I covered all this in a previous post.

 

[cyclopsshooter]

Having just gone through an ATF audit the Montana dealer is dead right to pucker up and play by the rules- his licence is his life!
like others have said, your FIL goofed and should pay the Montana FFL to mail the pistol back to the AK dealer to hold till things get settled.

 

[natman]

1) The FFL can't release the pistol to the FIL because the FIL isn't a Montana resident. That's clear.

2) The FFL can't release the pistol to the brother because it would be a straw purchase. That should be clear, but just in case:

http://www.atf.gov/publications/download/p/atf-p-5300-4.pdf
page 166

15. STRAW PURCHASES
Questions have arisen concerning the lawfulness of firearms purchases from licensees by persons who use a "straw purchaser" (another person) to acquire the firearms. Specifically, the actual buyer uses the straw purchaser to execute the Form 4473 purporting to show that the straw purchaser is the actual purchaser of the firearm. In some instances, a straw purchaser is used because the actual purchaser is prohibited from acquiring the firearm. That is to say, the actual purchaser is a felon or is within one of the other prohibited categories of persons who may not lawfully acquire firearms or is a resident of a State other than that in which the licensee's business premises is located. Because of his or her disability, the person uses a straw purchaser who is not prohibited from purchasing a firearm from the licensee. In other instances, neither the straw purchaser nor the actual purchaser is prohibited from acquiring the firearm.

In both instances, the straw purchaser violates Federal law by making false statements on Form 4473 to the licensee with respect to the identity of the actual purchaser of the firearm, as well as the actual purchaser's residence address and date of birth. The actual purchaser who utilized the straw purchaser to acquire a firearm has unlawfully aided and abetted or caused the making of the false statements. The licensee selling the firearm under these circumstances also violates Federal law if the licensee is aware of the false statements on the form. It is immaterial that the actual purchaser and the straw purchaser are residents of the State in which the licensee's business premises is located, are not prohibited from receiving or possessing firearms, and could have lawfully purchased firearms from the licensee.

In short if it's not for the person who's filling out the 4473, it's a straw purchase, period, no matter what the extenuating circumstances might be. And since the Montana FFL now has every reason to suspect it's not really for the brother, his hands are tied.

So this begs the question - where DOES the FIL intend to become a resident? Have the Montana FFL ship the gun to an FFL in that state and have the FIL pick it up there after he establishes residency in the new state. This may take a while, so this time arrange things with the new FFL IN ADVANCE. There's no point in shipping it to Alaska.

The moral of the story: Find out what the law is BEFORE you act, not AFTER.

 

[lechiffre]

If i were your father in law, I would decide to be a resident of your state for at least as long as it took me to get my gun back. I would get an in state ID. I would pick up my gun. Then I would make plans on where to move.

 

[SARDiver]

How the hell can you make a straw purchase for someone who already owns the weapon? There is no "purchase" of the firearm at all, unless the brother buys it from the FIL. You guys can keep highlighting "PERIOD" all you want, but the FIL wouldn't be buying the weapon at all. He would be selling it, not having it bought on his behalf. The sale would then be taking place through the MT FFL, AND if the brother sold it back to the FIL at some future point, they would use another FFL to make that interstate transfer.

I realize I'm arguing a narrow point, but I also think it's a correct point. If the the FIL came in one day, did not own the weapon, and was there to pick it up from the FFL after buying it from someone out of state, was rejected, then showed up with the brother, then absolutely, that's a straw buy.

Yeah, I get that the FIL wanted to pick the weapon up for himself. IF the two can show that a sale has been committed, and the brother is then picking the weapon up for himself, then it ISN'T a straw purchase, by definition. Would that be good enough for the FFL? Maybe not. Would it hold up in court?

 

[pintler]

1)Re: straw sale. Maybe, maybe not. If the MT resident relative intends to fill out the 4473, pick up the gun, and then give it to the passing thru relative sans paperwork, that would be a straw sale. OTOH, if the current owner is thinking 'Hmmm, option 1, FFL keeps gun w/o reimbursement, option 2, I sell it to relative and it stays in the family', and the MT relative in fact keeps it, that's not a straw sale. Even if a year from now, the MT relative decides to sell it to the original owner (complying with all laws in the process).

As a hypo, I sell a gun to Fred on gunbroker, and ship to a FFL. Fred dies before picking up the gun. Who owns the gun - the FFL or Fred's estate? It's the same situation - the person who was supposed to pick up the gun is no longer able to do so. That doesn't mean the gun is a freebie to the FFL. The FFL rules are about who the FFL can transfer to, not who owns the gun. In Fred's case, Fred's estate is the current owner, and can direct the FFL to transfer the gun in any legal way - ship to another FFL, sell to a specified state resident, whatever. If Fred's executor walks in and says 'give me the gun' (and the executor isn't a prohibited person), the FFL has to comply. If Fred's executor sells the gun on gunbroker and directs the FFL to ship to an FFL in Florida, the MT FFL needs to comply. If the MT FFL wants to charge reasonable fees or whatever, that's OK, but the FFL can't refuse to transfer the gun and then claim it himself as abandoned property.

3)As a low budget resolution, the AK resident could sell to the MT relative. The MT relative could attempt pickup. If the FFL refuses, the MT relative could sue for the value of the gun in small claims court.

 

[natman]

How the hell can you make a straw purchase for someone who already owns the weapon? There is no "purchase" of the firearm at all, unless the brother buys it from the FIL. You guys can keep highlighting "PERIOD" all you want, but the FIL wouldn't be buying the weapon at all. He would be selling it, not having it bought on his behalf. The sale would then be taking place through the MT FFL, AND if the brother sold it back to the FIL at some future point, they would use another FFL to make that interstate transfer.

I realize I'm arguing a narrow point, but I also think it's a correct point. If the the FIL came in one day, did not own the weapon, and was there to pick it up from the FFL after buying it from someone out of state, was rejected, then showed up with the brother, then absolutely, that's a straw buy.

Yeah, I get that the FIL wanted to pick the weapon up for himself. IF the two can show that a sale has been committed, and the brother is then picking the weapon up for himself, then it ISN'T a straw purchase, by definition. Would that be good enough for the FFL? Maybe not. Would it hold up in court?

Your making a distinction between "buying" and "transferring without payment" that I don't think makes a difference to ATF. I realize that the phrase is straw purchase, and that words like "seller" and "selling" are used, but whether or not money changes hands is immaterial.

Regardless of the nature of the transaction, the FFL can't release the gun without someone filling out a 4473, and if the gun isn't intended for the person filling out the 4473 - which it isn't in this case - then it's a straw purchase, regardless of whether it's a sale, transfer, whatever.

Here's the text, right off the 4473 form:

a. Are you the actual buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring
the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to
you.

 

[Sam1911]

SARdiver and pinter, I think you are technically correct. It would, and maybe SHOULD be possible for the FIL to decide that he'd rather sell it to his brother than lose the gun, and so ask the dealer to transfer it to the brother as a legal interstate sale.

However, the point dogtown tom and NavyLCDR are making is that the dealer sees a man who screwed up and now can't get his gun, has asked and been refused once to let the brother pick it up for him, and who is now CLAIMING that he's decided to sell the gun outright to the brother.

If I were that dealer, I would be 99% certain that if I did go ahead with the sale to the brother, they would simply head out the door and the brother would give the gun directly to the FIL. I'd have just enabled a blatant straw sale.

Now, if as that dealer, I somehow was NOT entirely convinced that they would go break the law that way, I would be within my rights to make the transfer to the Brother...

BUT, if the dealer at all suspects that this is a straw purchase, he's supposed to refuse.

And, while I personally am certain that the FIL and brother would adhere to federal law strictly and wait to handle the transfer properly once the brother is established in his new state ... if I was that dealer I'd probably be thinking, "Who are you trying to kid? You're going to walk out the door, hand him the gun, and will have played me for a fool. No WAY!"

 

[ny32182]

Makes you wonder how anyone ever gives a gun as a gift.

 

[Sam1911]

Makes you wonder how anyone ever gives a gun as a gift.

Really? It is simple. Buy gun with your money, as a gift. Give it as a gift (to a resident of your state, where legal). If you walk into a dealer's shop and say, "This is my brother. I want to buy him a new 1911 as a gift." A knowledgeable gun dealer will proceed with that sale, as it is clearly legal. In fact, you wouldn't be breaking the law (or offending that dealer, most likely) if you turned around, handed your brother the gun and said, "Happy birthday!"

Now, if you walk up to the counter, ask your brother which one he wants, and he hands you a stack of $100 bills to pay for it, that's going to send up red flags. Clearly this is no gift -- you are purchasing a gun in his stead. That's not legal.

Also, if you try to take transfer of a gun and are refused for some reason, and then show up the next day with your brother and say, "now HE'S going to buy that gun I wanted," -- that's going to send the dealer's blood pressure up, too, and neither of you will likely be welcomed back.

It is a fine distinction -- and the line can get MIGHTY blurry, especially if you consider certain scenarios like a husband and wife buying guns for each other with a joint bank account, or something like that -- and all absurd on a very basic level, but in this case the dealer is probably making the "right" call.

 

[jmorris]

Why in the world would you pay not one but two FFL's to transfer a gun you own to yourself?

 

[ny32182]

So how is it not legal to:

1) Sell the gun to the brother for $1 or whatever quantity floats your boat
2) Have brother pick up his gun
3) Have brother give gun as a gift to the FIL.

What distinction could possibly exist, much less be proven, between buying the gun "for someone else" or buying it "as a gift"? Assuming neither party is a prohibited person here.

 

[pintler]

However, the point dogtown tom and NavyLCDR are making is that the dealer sees a man who screwed up and now can't get his gun, has asked and been refused once to let the brother pick it up for him, and who is now CLAIMING that he's decided to sell the gun outright to the brother.
...
Now, if as that dealer, I somehow was NOT entirely convinced that they would go break the law that way, I would be within my rights to make the transfer to the Brother...

That's an argument the FFL can make to the small claims court judge. And maybe that judge would buy the argument, and direct the FFL to return the gun to the Alaska FFL, hold it to transfer to a FFL in the eventual state of residence, or even sell the gun and give the proceeds to the original owner. But I just can't see the judge saying 'sure, keep the gun for yourself, or sell it and keep the money yourself'.

I'm a mechanic and have worked on your car. You come to pick up the car and are blind drunk. Of course I can refuse to hand you the keys. But if you show up sober later, or with a designated driver, I can't say 'nope, I think your friend will give just give you the keys before you're sober, so I'm gong to sell the car in 30 days and keep the money'.

There are a lot of resolutions that fully comply with the law, even for an extremely cautious FFL. The FFL personally confiscating the gun just isn't one of them.

I, personally, would go to small claims. The FFL can't object to that, no matter what the judge decides. The FFL is covered because he is complying with the court's instructions. IANAL, but I don't think you can ever get in trouble complying with a judge's orders.

 

[pintler]

So how is it not legal to:

1) Sell the gun to the brother for $1 or whatever quantity floats your boat
2) Have brother pick up his gun
3) Have brother give gun as a gift to the FIL.

Remember that (since the brothers aren't residents of the same state) the *transfer* in #3 has to go through a FFL in the recipient's state of residence.

 

[natman]

So how is it not legal to:

1) Sell the gun to the brother for $1 or whatever quantity floats your boat
2) Have brother pick up his gun
3) Have brother give gun as a gift to the FIL.

What distinction could possibly exist, much less be proven, between buying the gun "for someone else" or buying it "as a gift"? Assuming neither party is a prohibited person here.

Because:

1) The FIL is a prohibited person in this transaction, because he is not a MT resident.
2) The dealer has every reason to suspect that if the brother filled out the 4473, it would be to give the gun to the FIL, which would be a straw purchase. Therefore he can't give it to the brother.

The licensee selling the firearm under these circumstances also violates Federal law if the licensee is aware of the false statements on the form.

3) Even if the dealer DID release the gun to the brother, the brother can't give it to the FIL because the FIL is not an MT resident. He would have to ship it to an FFL in a state where the FIL was a resident. Which I believe I suggested already, only skipping the illegal part by having the MT FFL ship directly to an FFL in the FIL's new state of residence.