What are the legalalities for buying a gun for a family member as a gift?

[EOD Guy]

Not wanting your name on the dealers records doesn't make you a prohibited person.

Read the case I cited. It's pretty clear.

No but the recipient does not have to be a prohibited person for the transaction to be a straw purchase. The BATF stated in a recent newsletter that a purchase on behalf of another person is a straw purchase even if that person could legally purchase the same firearm from the same dealer.

 

[BOBE]

Call Sara Brady and ask her. She bought one for her son.

 

[Rockstar]

EOD: How about a link to that newsletter??

 

[TaxPhd]

OK. I'll do your research for you. From the case I cited:

"E. Count 6--False Statement to a Licensee in the Acquisition of a Firearm, Aiding andAbetting
Count 6 of the indictment charged Polk with aiding and abetting the purchase of a firearm through a false and fictitious statement. In particular, the Government alleged that Polk purchased weapons from Liberty Sports through Davidson, a "straw purchaser." Such purchases, argues the Government, violate 18 U.S.C. 167; 922(a)(6) because they involve the buyer making a false statement about the true purchaser of the weapon(s)."

And the courts response to the charge:

"We find that the Government's construction of 167; 922(a)(6) sweeps too broadly so that the evidence is insufficient to support a conviction on Count 6.(7) Although 167; 922(a)(6) on its face does not prohibit "straw purchases," we have nonetheless held that such transactions violate 167; 922(a)(6). See, e.g., United States v. Ortiz-Loya, 777 F.2d 973, 979 (5th Cir. 1985). It is clear to us--indeed, the plain language of the statute compels the conclusion--that 167; 922(a)(6) criminalizes false statements that are intended to deceive federal firearms dealers with respect to facts material to the "lawfulness of the sale" of firearms. (Emphasis added.) Thus, if the true purchaser can lawfully purchase a firearm directly, 167; 922(a)(6) liability (under a "straw purchase" theory) does not attach. See, e.g., Barrett v. United States, 423 U.S. 212, 220, 96 S.Ct. 498, 503, 46 L.Ed.2d 450 (1976) (holding that purpose of 167; 922(a)( 6) was "'to make it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency'" (quoting S.Rep. No. 1501, 90th Cong., 2d Sess. 22 (1968) U.S. Code Cong. & Admin. News 1968 p. 4410)); United States v. Moore, 109 F.3d 1456, 1460-61 (9th Cir. 1997) (en banc), petition for cert. filed, ---- U.S.L.W. ---- (U.S. June 2, 1997) (No. 96-9227); United States v. White, 451 F.2d 696, 699 (5th Cir. 1971) ("One goal sought by Congress [ through 167; 922(a)(6)] was control over the ease with which criminals may acquire firearms."), cert. denied, 405 U.S. 998, 92 S.Ct. 1268, 31 L.Ed.2d 468 (1972).(8)


Sorry, but the 5th Circuit of Appeals trumps any ATF newsletter.




Scott

 

[waterhouse]

Sorry for the very long post, there is a lot to cover.

For the original poster: Yes, you can buy a gun, quite legally, as a gift for someone. They don't have to be your family member. If you know they aren't legally allowed to own a gun, it is against the law to give them one. Important Notice #1 on the back of 4473 reads:

For purposes of this form, you are the actual buyer if you are purchasing the firearm for yourself or otherwise aquiring the firearm for yourself (for example, redeeming the firearm from pawn/retrieving it from consignment). You are also the actual buyer if you are aquiring the firearm as a legitimate gift for a third party.

As to the straw purchases issue, I find the court case very interesting. Perhaps you could win in court. But you'd probably also end up paying to win in court. Below is the text from the Federal Firearms Regulations Reference Guide. The emphasis is mine.

16. "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.
An example of an illegal straw purchase is as follows: Mr. Smith asks
Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the
money for the firearm. If Mr. Jones fills out Form 4473, he violates the law
by falsely stating that he is the actual buyer of the firearm. Mr. Smith also
violates the law because he has unlawfully aided and abetted or caused the
making of false statements on the form.
Where a person purchases a firearm with the intent of making a gift of
the firearm to another person, the person making the purchase is indeed the
true purchaser. There is no straw purchaser in these instances. In the above
example, if Mr. Jones had bought a firearm with his own money to give to Mr.
Smith as a birthday present, Mr. Jones could lawfully have completed Form
4473. The use of gift certificates would also not fall within the category of
straw purchases. The person redeeming the gift certificate would be the
actual purchaser of the firearm and would be properly reflected as such in the
dealer's records.

My point is that the ATF believes what is quoted above. They are the ones who will arrest you. You may get your day in court, and you may win, but do not think that just because your buddy is not a felon you can go buy a gun for him. According to the ATF, you are breaking the law.

PCF

I used to buy and resell pistols, for profit, all the time. Once again I obeyed all state and federal laws and handled transfers through an FFL.

I'd be careful how you word that in the future. If you bought guns every once in a while and ended up making some money off of them, that's cool. If you bought them specifically to resell for profit and you did it all the time it sounds like you were a "dealer in Firearms." This requires a license, and the ATF will get you for that one too.

(c) Dealer in firearms other than a gunsmith or a pawnbroker. A
person who devotes time, attention, and labor to dealing in firearms as a
regular course of trade or business with the principal objective of
livelihood and profit through the repetitive purchase and resale of
firearms, but such a term shall not include a person who makes occasional
sales, exchanges, or purchases of firearms for the enhancement of a
personal collection or for a hobby, or who sells all or part of his
personal collection of firearms;

 

[EOD Guy]

Sorry, but the 5th Circuit of Appeals trumps any ATF newsletter.

Legally, that is true, but currently only in the States of Louisiana, Mississippi, and Texas. The 5th Circuit decisions are only binding in those states, although I imagine that the decision could be brought up in another jusidiction for another court's consideration.

In the mean time, BATF calls the shots and you would have to defend yourself in court and might very well win, but at what cost?

Personally, I don't think I would buy for another person no matter what their eligibility. Buying a firearm as a legitimate gift is another matter.

By the way, thanks for posting the court's decision. I had no idea where to look.

 

[Drewcat]

Horses Mouth

Going straight to the horses mouth, here is what the BATFE thinks (from their web site).

http://www.atf.gov/firearms/ffrrg/theater/toon4.html

 

[Rockstar]

I'll just take my chances with the courts. Won't incur any legal fees, either.

 

[Gewehr98]

If we FFL holders were to believe TaxPhd...

Then line 12a in the 4473 asking whether or not you are the actual buyer of the firearm should be obsolete or removed, it no longer has any relevance.

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. (See Important Notice 1 for actual buyer definition and examples.

1. 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.

Bottom line: I'm not going to risk the status of my FFL based on internet legal advice. You get what you pay for, in that respect. I've already stopped transactions based on a shady purchase, and wouldn't hesitate to do so again.

Here's one where the straw man purchase put somebody into prison for a goodly stretch:

http://caselaw.lp.findlaw.com/data2/circs/2nd/021326p.pdf

 

[Wastemore]

I'm sorry if my post seem irrelevant to the direction of the thread, but it irritates me that this question even has to be asked.

 

[TaxPhd]

Gewehr98,

In the case you posted, Lotto is prohibited from purchasing or possessing. Big difference.




Scott

 

[Northslope Nimrod]

The BATF will look at a quick turn around (ie: I buy gun today and sell it to someone else next week) with scrutiny. However, the law states that you cannot purchase a firearm for someone who is otherwise restricted from possessing or purchasing a firearm.
Can someone point me to a law that prohibits a purchaser from buying a firearm for his brother/friend/mother-in-law, etc who is legally entitled to purchase or possess the firearm themselves? I see what the form states, but forms are forms. Where is the referenced code section?

 

[waterhouse]

Northslope,

The Feds get you on aiding and abetting the purchase of firearms by falsifying info. on the 4473. Here's the charge from an earlier post.

E. Count 6--False Statement to a Licensee in the Acquisition of a Firearm, Aiding andAbetting
Count 6 of the indictment charged Polk with aiding and abetting the purchase of a firearm through a false and fictitious statement. In particular, the Government alleged that Polk purchased weapons from Liberty Sports through Davidson, a "straw purchaser." Such purchases, argues the Government, violate 18 U.S.C. 167; 922(a)(6) because they involve the buyer making a false statement about the true purchaser of the weapon(s).

 

[Gewehr98]

TaxPhd, from my FFL paperwork, there's no difference.

In the case you posted, Lotto is prohibited from purchasing or possessing. Big difference.

Read the info from the Form 4473 I posted above. A gift to a family member is specifically authorized by example. Buying for the purpose of immediately selling the firearm to somebody who chooses not to undergo the Form 4473 paperwork and background check is not authorized, regardless of whether they were eligible to purchase that firearm or not. It's called a "false statement" with respect to block 12a on the Form 4473.

If I as the FFL dealer knew you were doing something like that, I'd terminate the transaction immediately and ask you to leave the premises. I've done it already, and have no qualms doing it again, I'll even call and warn nearby FFL's to prevent them getting in trouble when the same straw purchaser shows up. FFL holders are already under tremendous scrutiny, the government would like nothing better than to reduce their numbers to 0. (Heck, they even have a map of our businesses, windows, doors, and where the guns are stored) If you're willing to lie on a Form 4473 you can go somewhere else and test the will of the courts. See if other FFL holders are willing to let a transaction finish if they know the same is happening...

 

[Northslope Nimrod]

Waterhouse

I agree. One must answer the form correctly or be subject to falisification in government documents. Perhaps I worded my post incorrectly.
I think the feds are pulling a fast one....so to speak... by putting that language on the form. Why? Because I don't think there is a statute that criminalizes the purchase of a firearm for another if the person can legally purchase & possess the firearm themselves. I think they are using the form language to "catch" circumstances where someone "may" be making an illegal strawman purchase. (ie: for a restricted person)
Scenario: Let's say "A" buys a gun for his bed-ridden father, "B"...who loves to shoot chipmunks from his mobile bed up at his cabin. "A" knows "B", a non-restricted citizen, will pay him for the gun. "A" fills out the form and correctly indicates that he is NOT the acutal purchaser. The dealer...let's say...mistakenly sells him the firearm. "A" cannot be charged with false information. Can "A" be charged with making an illegal "strawman purchase"? If so....where is that code? It appears as though the 5th Circuit case cited above answers my question.....there is no such code.

 

[Sleeping Dog]

The original question was about rifles & shotguns. If you give one to a person living in the same state, there's no federal problem. Some states are more restrictive, but probably not MN. In MI it's fine. Assuming giftee is not a felon, etc.

Same with pistols. Except in MI you have to get a green "inspection" card (we don't call it registration ) from the local PD or Sheriff. I don't know about other states' handgun rules.

Regards.

 

[Gewehr98]

In that scenario...

Scenario: Let's say "A" buys a gun for his bed-ridden father, "B"...who loves to shoot chipmunks from his mobile bed up at his cabin. "A" knows "B", a non-restricted citizen, will pay him for the gun. "A" fills out the form and correctly indicates that he is NOT the acutal purchaser. The dealer...let's say...mistakenly sells him the firearm. "A" cannot be charged with false information. Can "A" be charged with making an illegal "strawman purchase"? If so....where is that code?

1. The transaction should have been terminated once question 12a was answered in the negative.

2. The dealer just made himself liable by being sloppy and permitting the transaction. Truthfully, I've yet to find an FFL holder who isn't absolutely scrupulous with respect to proper 4473 documentation. ATF holds that over our heads like a huge sledgehammer.

3. Were the dealer or ATF to discover the error, the firearm may very well be retrieved from owner "B" by law enforcement, even though it was the dealer who permitted the straw man purchase. I've seen similar situations happen, especially before "Insta-Check" phone calls to NICS.

 

[TexasRifleman]

I have no input here other than to say I applaud and thank all of you that keep your FFLs current. I can't imagine the PITA that it must be sometimes.

That's why I do business with my local dealers for their sometimes way overpriced merchandise. I'd be sick if the day came that I couldn't find a dealer at all......

 

[Dionysusigma]

1) Buy it. Say on the 4473 that the gun is for yourself.

2) On the way home, stop by the range (even if it's 20min. in the other direction) and run a box of ammo through it.

3) Take it home, clean it, wrap it in shiny paper, and present it as a gift.

4) Buy one for yourself.