[familyman357]

Doesn't the law say that in order for the Licensee to have committed the crime of facilitating a straw purchase, he had to have known that the intended straw recipient was an ineligible person?

In other words, if a guy buys a gun from a dealer, and while he's completing the paperwork he says "I plan to give this to my 25-year-old son for his birthday," and to the dealer's knowledge the son isn't a felon/draft dodger/drug user/underage etc., is the dealer now guilty of a crime?

The way I understand it, gifting a firearm at some point after transfer is fine but for purposes of the initial transfer from the dealer you better be the intended recipient. The first question on the 4473 is whether that person is the actual transferee of the weapon. It's a disqualifying answer if you answer "no". I would think that once the dealer has reason to suspect that it's a straw purchase (in this case somebody giving the transferee the money) it follows that the dealer has reasonable suspicion that the answer to the first question is a lie and that he is not to proceed with the sale. The questions on the 4473 aren't just for fun.

 

[Bren]

Thanks for the reply. That's all I was getting at. I am not a lawyer, and it's nice to hear a laywers opinion on the matter. I knew it's really on a case by case basis depending on the facts of the case, and the FBI does have some protection against civl suits.

Two post into this thread before more infomation came out, I did not see this case really rising to the level of a clear cut case of a civil rights violation where the ATF was way out of line. Seemed like a dispute of opinions whether the particular gun that was sold needed a backround check or not.

If the story was really what the guy claimed in the first article, that he sold a gun made in 1898 and the ATF arrested him for not getting a NICS check, then it would be a civil rights violation. When the charge was dismissed, he would sue the agent who arrested him, in his individual capacity, for malicious prosecution. The dealer would sin, because the agent's lack of knowledge would not be an excuse, where it was a concrete, easily verified fact, like the gun being made before 1898. The law says "this only applies to guns made after 1898" and "this gun was made in 1898" leaves no room for a dispute of opinion.

 

[nrajeff]

The way I understand it, gifting a firearm at some point after transfer is fine but for purposes of the initial transfer from the dealer you better be the intended recipient. The first question on the 4473 is whether that person is the actual transferee of the weapon. It's a disqualifying answer if you answer "no". I would think that once the dealer has reason to suspect that it's a straw purchase (in this case somebody giving the transferee the money) it follows that the dealer has reasonable suspicion that the answer to the first question is a lie and that he is not to proceed with the sale. The questions on the 4473 aren't just for fun.

I found this explanation on the NRA's site, and I like it.

(Here is the wording on the 4473)
Are you the actual transferee/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 Instructions for Question 11.a.) Exception: If you are picking up a repaired firearm(s) for another person, you are not required to answer 11.a. and may proceed to question 11.b.

NRA:"...If you answer “(no)” to this question, the sale cannot proceed. If you answer “(yes),” you are stating under penalty of law that you are not buying the firearm for someone else, other than as a bona fide gift. .., if the purchaser knows or has reason to believe that the person for whom the gun is being bought is a felon or otherwise prohibited from possessing a firearm, or if the purchaser knows or has reason to believe that the gun will be used in a crime, those are federal felonies, each punishable by up to 10 years in prison and a $10,000 fine."

Seems like any of us could purchase a gun from a dealer and tell him flat-out "I intend to give this to my wife as a Christmas present" and no crime has been committed by anyone.

This is from FFL123: "Simply put, a straw purchase is when one person buys a gun for another person who is not allowed to own a gun. It is a way for a person who is not prohibited from owning a gun to get a gun to somebody who is.
Straw purchases are a common way for felons, gang members and criminals to get guns. However, there are exceptions to what constitutes a straw purchase. For instance, you can legally buy a gun with the intent to gift it to a non prohibited person. That isn’t a straw purchase. A straw purchase would involve either a prohibited person or an exchange of money."

The "exchange of money" clause might be problematic, but no moreso than when we use Paypal Friends and Family to "gift" money to a GlockTalk buddy who "gifted" us a holster. If I buy a Henry Golden Boy for my non-felon son's 18th-birthday present, and he gives me $600 from his landscaping salary as a Father's Day gift, are we both felons?

 

[1cm]

This is from FFL123: "Simply put, a straw purchase is when one person buys a gun for another person who is not allowed to own a gun.

That is incorrect.

A SP is when the identity of the actual buyer is masked.

 

[1cm]

This store apparently was allowing straw purchases to happen right under their noses, and it wasn't just one issue. They sound like they have 200 violations.

Pretty much impossible for a FFL to have 200 violations before an IOI inspection takes place.

 

[DaleGribble]

While I'm no fan of the BAT****ers, the stupid background checks that are required, or the 4473 tracking file, being an FFL holder and not following the rules to a T is just plain dumb.

 

[SDGlock23]

I'm just going to say, abolish the ATF

 

[Walter Bishop]

Bona fide gifts are legal. But when guy comes into a store and looks at a gun and leaves and then a minute later a woman walks in and asks to buy that same gun without even asking to look at it and clearly knows nothing about firearms that is a huge red flag. I worked in a gun shop many year ago and blatant attempted straw purchases happened on a daily basis.

 

[SargeMO]

Not long before the 94 background checks, I stopped at a gunshop in an outer suburb of KCMO. The owner was putting a pristine High Standard Sentinel 22 snub in the case. I've always liked them so I asked to see it and inquired about the price. He hands it to me and prices it 75 bucks under the going rate. I've got the cash and am about to buy it when he says "No paperwork on this one, it came in before I closed yesterday and I haven't logged it in yet."

I handed it back with the cylinder open and said "No thanks" turned around and walked out. Several months later I mentioned this to an established FFL in that area, who I've known 40 years. He laughed and said he heard Mr. No Paperwork got pinched by the Feds and was 'working it off' setting up violations.

Play by the rules, it pays off in the long run.