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Scarecrow Repair
06-02-2012, 9:02 PM
The thread on the two Sac deputies, the FFL, and civilians being busted for PPT of off-roster handguns has provoked an unsatisfying back-and-forth on what a straw purchase is. I think I understand only why so many people are confused; I do not understand the answers, and would like some clarification.

In most other states, people can sell long guns to each other with no FFL involved; this is the so-called gunshow loophole. In California, we can do that with C&R long guns only. My understanding is that nowhere can handguns be sold without an FFL involved. Guns in stores require the 4473 form being filled out and the NIC instant background check.

Now if someone in a free state buys a rifle, intending to sell it face to face to a friend so the friend can avoid the 4473 and NIC check, that is a straw purchase, even if the friend would pass the NIC check and not have to lie on the 4473. The friend just wants his name kept out of the deal, or lives too far away or can't get off work during business hours. This is all irrelevant if the friend wouldn't pass the NIC; no one is confused about that.

That's what I think I understand.

In California for modern long guns, and in all states for handguns, this all seems moot. These transactions have to go through an FFL anyway, so there is zero gain and time and fees lost by taking the extra PPT step. California does have the roster for handguns, but that is not a federal restriction, and these were federal busts.

My confusion is partly from that question on the 4473 about being the ultimate purchaser. Since the followup sale has to be a PPT through an FFL, why is it considered lying on the 4473 to say the the buyer is the ultimate buyer? Even if the buyer turns around and sells it by PPT 5 seconds later, that new transaction requires a new 4473 and DROS, so why is the original answer considered a lie? Would a one day, one month, or one year delay have made it acceptable?

I understand the idea that too many PPTs makes you look like a dealer, but that's not lying on the 4473. I understand about getting around the roster, but that's a California crime, not federal.

So what exactly is the straw purchase in this case?

Librarian
06-02-2012, 9:12 PM
There have been a couple of contentious threads; it's pretty much all covered in this one -- http://www.calguns.net/calgunforum/showthread.php?t=562886

motorhead
06-03-2012, 12:31 AM
lying on the 4473. just that, nothing else. goes to intent. doesn't matter who you buy for. even if it's jesus himself.

some states still allow ftf handgun sales between private parties.

SilverTauron
06-03-2012, 2:16 AM
The thread on the two Sac deputies, the FFL, and civilians being busted for PPT of off-roster handguns has provoked an unsatisfying back-and-forth on what a straw purchase is. I think I understand only why so many people are confused; I do not understand the answers, and would like some clarification.

In most other states, people can sell long guns to each other with no FFL involved; this is the so-called gunshow loophole. In California, we can do that with C&R long guns only. My understanding is that nowhere can handguns be sold without an FFL involved. Guns in stores require the 4473 form being filled out and the NIC instant background check.

Incorrect. Handguns sold and possessed by FFLs in free states require a Brady Check to be released, but in Free America handguns can be sold between one private party to another without a background check. This is the infamous "gun show loophole";firearms in free states can conceivably change hands several times without having a 4473 attached to them. In the case of firearms made before enactment of the Brady system, its totally possible-however unlikely-that a firearm which has only been sold from one person to another will have NO paper attached to it at all, anywhere. This fact generates a good deal of insomnia episodes for the Disarmament Lobby,as such a weapon will be nigh untraceable. Even a 4473 that's over 15 years old is useless if its all the government has to work with in tracking the owner or the gun's whereabouts.

The political overlords in California , NY, and NJ understood this problem and enacted legislation mandating documented transfers at FFLs accordingly. Among other things, this makes establishing a straw purchase case frightfully easy for the Feds to do-all they need is to pull the state maintained purchase and ownership records for Gun X , and voila. Instant evidence of a federal felony. If the ATF wanted to nail someone in , say , Texas for a straw purchase they have the uphill battle to prove the disposition of the weapon after the initial sale. Without documented proof, their case is shaky to non-existent.



Now if someone in a free state buys a rifle, intending to sell it face to face to a friend so the friend can avoid the 4473 and NIC check, that is a straw purchase, even if the friend would pass the NIC check and not have to lie on the 4473. The friend just wants his name kept out of the deal, or lives too far away or can't get off work during business hours. This is all irrelevant if the friend wouldn't pass the NIC; no one is confused about that.

That's what I think I understand.

In California for modern long guns, and in all states for handguns, this all seems moot. These transactions have to go through an FFL anyway, so there is zero gain and time and fees lost by taking the extra PPT step. California does have the roster for handguns, but that is not a federal restriction, and these were federal busts.

Again handguns do not need an FFL when its a PPT transfer outside of California. Neither do long guns for that matter. I can buy a handgun from another gun owner just like I can buy a DVD or a socket wrench.

The roster only serves as a motive for people to run straw purchases to get around the restriction. It has no other bearing on the charges. The cops aren't being hit with violations due to evading California Safe Handgun Laws;as far as CA is concerned the transactions were legal as the people initially buying the weapons were in fact peace officers authorized to own off-roster firearms.

The violation is of Federal statute regarding felony perjury on the 4473, hence the Federal charges and the ATF's involvement. All the CA authorities did is provide documentation of the DROS and PPT records alongside the FFL documentation.








My confusion is partly from that question on the 4473 about being the ultimate purchaser. Since the followup sale has to be a PPT through an FFL, why is it considered lying on the 4473 to say the the buyer is the ultimate buyer?

The name of the game is proving intent. If the Feds can show that when someone bought a gun that an arrangement was in place to sell it to someone else afterward, the die is cast for a Straw Purchase conviction.
How would those same ATF agents prove this? Read on...







Even if the buyer turns around and sells it by PPT 5 seconds later, that new transaction requires a new 4473 and DROS, so why is the original answer considered a lie? Would a one day, one month, or one year delay have made it acceptable?



In most states in America an FFL is not required to transfer a weapon from one private owner to another. We can freely buy and sell arms without involving paperwork , registration, or a background check. This is the way things should be nationwide,and this kind of setup poses problems for a certain firearm related Federal Enforcement agency trying to build a straw purchase case. Without documentation after the initial sale, the agents have no case;there's no way for the ATF to prove someone straw purchased a PPT'd gun in Montana, because there's no record of the PPT to use. The Feds have no idea if a gun was sold ten seconds or ten years after the initial sale. In "Free America", if the ATF gets a tip that someone's running a straw purchase hustle the Feds HAVE to catch the perp in the act cold, or there's no case. This sort of police work can't be used to turn an innocent sale into an arrestable offense, sans a state gun registry that tracks private sales.

Put differently, if your state law didn't mandate FFL involvement -and its attendant documentation-in a private sale this case wouldn't even see the light of day.

As far as what the "time cutoff" is concerned, that number id just as soon guess to be zero. What stops the Feds from indicting Joe and Jane Gunowner is the lack of documented proof on follow up transactions, not an acknowledgement by the ATF that there's a distinction between straw purchases for money and selling a gun for innocent reasons.If anyone-including myself and you-sold a gun privately to someone else the Feds CAN assert it was a straw purchase no matter how long the gun was owned by the original buyer. The charges may or may not stick, but the ATF technically has the power to pursue a case. The reasons why they don't are because of lack of evidence, a problem which would be rectified for that agency by closing the "gun show loophole"

redcliff
06-03-2012, 5:25 AM
The problem is the BATFE doesn't believe purchasing an item for resale makes you the actual buyer. Never mind that in every other type of transaction, from purchasing automobiles to real estate you have the right as a property owner to resell your purchased item.

It's absolutely ludicrous that they can bring "straw purchase" charges against a buyer who purchases through an FFL, and who turns around and sells through an FFL, with 4473 and background checks being done every step of the way.

I can understand "dealing without a license" charges if the seller exceeds the allowable threshhold, but not "straw purchase" charges.

Cannon-Arms
06-03-2012, 5:48 AM
Hmmm, so I cannot buy a gun for investment purposes, as I intend to sell it off at a later date for profit, whether that be ten years or ten minutes.

Interesting that I cannot treat my real firearm property like other real property (real estate, vehicles, etc.).

ap3572001
06-03-2012, 7:22 AM
Talked to a relative who is an attorney.

"straw purchase" when it comes to firearms is when a person who is buying a firearm from an FFL has a buyer for it AND THAT BUYER WOULD NOT BE ABLE TO BUY THAT FIREARM ON THEIR OWN.

We like examples.:)

If a mans girlfriends brother CAN'T own firearms and a man buys a gun for him that is a "straw purchase" .

If I am in a gunstore and I see a really good deal on a rare rifle that one day I may sell it or trade it for profit ,that is NOT "straw purchase" . AND THAT IS NOT DEALING W/O a license.

If ANYONE tries to say that it is , they will be destroyed in court by any attorney.

Your legally owned firearms are Your property. Just like any other property You own.

Many laws are just plain SICK and have nothing to do with making our streets safe.

tenpercentfirearms
06-03-2012, 8:12 AM
Talked to a relative who is an attorney.

"straw purchase" when it comes to firearms is when a person who is buying a firearm from an FFL has a buyer for it AND THAT BUYER WOULD NOT BE ABLE TO BUY THAT FIREARM ON THEIR OWN.NO NO NO NO NO NO NO!

Your lawyer is wrong.

Ladies and gentlemen. We can't make it any simpler for you.

ARE YOU THE ACTUAL PURCHASER/BUYER OF THE FIREARMS LISTED ON THE FORM?

YES or NO!

If you are using your money to buy the firearm and no one else previously gave you money to buy said firearm, then you are the actual purchaser. If you are buying the firearm as a gift for someone else, you are the purchaser. That is it.

If someone gives you money to buy them a firearm and then you lawfully transfer it back to them, that was a straw purchase. The ATF can use your checking records against you to prove this was the case.

You can buy a gun for investment purposes. Just make real sure the buyer you end up selling it to didn't give you roughly the sales amount in cash or check or trade prior to you buying the firearm. If you take it home and sell it 5 years later to a total stranger who pays by check or cash, you should be fine.

If you want to go all :TFH: take payment by check or money order so there is a clear paper trail you didn't get paid until after the fact, which means your money was used to make the purchase.

This isn't that hard. Just read the 4473, which has also been posted here numerous times!

question 11.a -- the first yes/no question -- reads (in part) as follows: 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.

Note this also means that if I wanted to buy you a gun as a gift, I could pay the gun shop for your gun and you can still transfer it because you are the transferee. If the ATF comes and starts asking questions about that and they find the firearm is still in your possession and not mine, that would be a pretty strong indicator you were the actual transferee. If the find it over at my house or they see we PPTed it over to me sometime there after, we might be in trouble. I guess I could pay you for it and then it might make it legit since I gave it to you, then later on I decided I liked it and bought it off of you.

Again a lot of this is moot as you will be under the radar unless you involve a lot of people, a lot of transactions, or involve high profile targets. Still, it is an excellent example that you should all be taking this seriously and not screwing around on the 4473 with questionable activities.

kemasa
06-03-2012, 8:29 AM
To me, as well as it appears the BATF, the definition is pretty clear:

http://www.dontlie.org/why.cfm


Straw Purchasing

Buying a gun for someone who is prohibited by law from possessing one or for someone who does not want his or her name associated with the transaction is a "straw purchase."

1. An illegal firearm purchase (straw purchase) is a federal crime.
2. An illegal firearm purchase can bring a felony conviction sentence of ten years in jail and a fine of up to $250,000.
3. Buying a gun for someone who can't can cost you your good name and land you in big trouble.

Never buy a gun for someone who is unwilling or unable to do so.


http://www.dontlie.org/FAQ.cfm


What is a straw purchase?

A straw purchase is an illegal firearm purchase where the actual buyer of the gun, being unable to pass the required federal background check or desiring to not have his or her name associated with the transaction, uses a proxy buyer who can pass the required background check to purchase the firearm for him/her. It is highly illegal and punishable by a $250,000 fine and 10 years in prison.


Filling out the DROS and a 4473 with you name indicates that you are not attempting to not have your name associated with the transaction.

The above referenced site is:


What is the Don't Lie for the Other Guy campaign?

A campaign led by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATFE) ...


Unless you can find somewhere that it is considered a straw purchase when a person buys and later sells the item, even when a DROS and 4473 is filled out, thereby documenting the buyer, I would say that it is not considered a straw purchase. With that said, it is still best to avoid getting involved with such things since even if you "win" in the end, it can cost you far more than it is worth.

tenpercentfirearms
06-03-2012, 8:43 AM
The problem Kemasa is that the Don't Lie for the Other Guy website is not Title 18, United States Code, Section 924(a) (1) (A). Your lawyer could try and make the argument that you were following the www.dontlie.org instructions and that since the www.dontlie.org website claimed it was created with a partnership with the BATFE, you thought you were following the rules.

However, the US Attorney is going to then show that the www.dontlie.org website is registered to Laura Springer of the NSSF and it not a government website. Further, did you sign the said 4473 that states you were the actual purchaser of the firearm? Did you not receive a check from Wesley Morris in the amount of $350 which covered the $325 cost of the Ruger LCP you bought for him with your department ID and $25 for your time before you DROSed said LCP? Did you not use that money to actually purchase the firearm? Since you did use his money to purchase the firearm, you are not the actual purchaser are you? Wesley Morris actually bought that Ruger LCP didn't he? It is a Yes or No question Mr. Kemasa. Please answer yes or no. Did you use your money or Wesley Morris's money to buy that handgun?

Good luck with your Don't Lie for the Other Guy definitions in Federal court. The more I read www.dontlie.org, the more I think they actually cover this scenario. You even bolded the phrases above that prove that an officer buying a non-roster handgun for someone is violating the law. The end user did not want their name associated with the transaction because the end user is unable to purchase the firearm. Not because they are not prohibited, but because state law doesn't allow it.

Also note that the crime is occurring when the officer is buying the firearm. No where is the end user's name being associated with the transaction. The end user should have started the paperwork, but because they can't, they are having the officer do it for them. That there is another 4473 and DROS later and it is lawful, does not erase the fact that the first 4473 and DROS was done in order to conceal the end user's eventual purchase of the firearm.

Again, this would not be a crime, if the money was handled correctly.

kemasa
06-03-2012, 8:56 AM
The key, which you seem to be missing, is that one of the factors of a straw purchase is an intend to hide who the actual purchaser is. For someone who needs to have the word "single" defined in the CA PC, it is quite interesting to see your view on this.

The end of your little strawman argument above is: was the firearm legally transferred from you to the other person by submitting a PPT DROS and that the other person filled out a 4473? Yes or No. The firearm was legally transferred and there was no attempt to hide this person, correct?

tenpercentfirearms
06-03-2012, 9:02 AM
The key, which you seem to be missing, is that one of the factors of a straw purchase is an intend to hide who the actual purchaser is. For someone who needs to have the word "single" defined in the CA PC, it is quite interesting to see your view on this.

Was the end user's name associated with the transaction? No it was not. The end user did not purchase the firearm directly from the FFL because the end user could not lawfully purchase the firearm from the FFL. So the end user had the officer purchase the firearm for them by concealing their identity on the officer's 4473. That is what you are missing.

Are you saying that 4473s are now linked? Are you saying that Officer Smith's 4473 that he filled out to buy a LCP is the same 4473 that I used to PPT the LCP from Officer Smith? Very interesting concept.

I would refrain from taking any of this personal Kemasa and throwing out personal attacks. Your position is not defensible in court. Unless you can prove the new linked 4473 theory.

The end of your little strawman argument above is: was the firearm legally transferred from you to the other person by submitting a PPT DROS and that the other person filled out a 4473? Yes or No. The firearm was legally transferred and there was no attempt to hide this person, correct?So your defense attorney brings this up. Then the prosecutor blows a Tannerite sized hole in your argument by stating, "Then Mr. End User, if you didn't mind having your name associated with Officer Smith's transaction, why didn't you DROS the firearm directly?" End user replies, "I could not DROS the firearm directly because it was not lawful for the FFL to DROS me the firearm directly." Prosecutor replies, "So that is why you paid Officer Smith to purchase the firearm for you and that is why Officer Smith was not the actual buyer, but a proxy buyer for a person who could not legally purchase the firearm."

Kemasa, the straw purchase occurred when Officer Smith purchased the firearm. 4473s are not linked. That the end user didn't mind associating his/her name to that firearm, does not excuse the fact that the end user did not want to associate their name with the Officer Smith transaction and 4473. Sorry, you are going to lose this argument, unless you can argue 4473s are linked and that a 4473 filled out at a later time excuses lying on the first 4473. Again, good luck with that one.

That is why the charges against Grant Early are interesting. He was being truthful on his 4473. He was the actual purchaser. However, the officer that bought it first was the liar and that is why he is getting charged.

SilverTauron
06-03-2012, 9:12 AM
]
The end of your little strawman argument above is: was the firearm legally transferred from you to the other person by submitting a PPT DROS and that the other person filled out a 4473? Yes or No. The firearm was legally transferred and there was no attempt to hide this person, correct?

The PPT DROS after the fact only establishes evidence of the transfer for the prosecution.

Lets move this incident to , say , Wyoming. No state registry or DROS there. So the only 4473 that would be accomplished is the false one stating that Officer X is buying a Ruger LCP, when in fact he is not the intended owner or buyer of the gun. Officer X then transfers the weapon to the third party in the cover of night at a Taco Bell parking lot.

Believe it or not this scenario probably happens more often than it should in Free America, although not for the same reasons as in California. Someone interested in a Law Enforcement or Military discount on a firearm -but is not themselves a cop or troop-may ask a friend to buy it for them at the discounted price. Ive had friends unaware of the law back in Illinois ask me if I could order guns and for them to get a "military discount", since a military discount on a Glock is a substantial discount compared to retail.I turned them down flat and explained why. My pal isn't prohibited in any respect, and in fact bought his own weapon legally not long after our 'talk'. The ATF would still have locked me up had I lied on the 4473 and transferred the weapon privately to him.

kemasa
06-03-2012, 9:26 AM
Was the end user's name associated with the transaction? No it was not. The end user did not purchase the firearm directly from the FFL because the end user could not lawfully purchase the firearm from the FFL. So the end user had the officer purchase the firearm for them by concealing their identity on the officer's 4473. That is what you are missing.


Yes, it was. Before the end buyer take possession of the firearm the proper paperwork was filled out. That is what you are missing. There was NO attempt to hide the people involved as the paperwork shows.


Are you saying that 4473s are now linked? Are you saying that Officer Smith's 4473 that he filled out to buy a LCP is the same 4473 that I used to PPT the LCP from Officer Smith? Very interesting concept.


Wes, please don't be silly. You know that there is a paperwork trail. Each FFL's bound book shows where the firearm went from and to. This is to be able to trace a firearm.

Did the end buyer fill out all the legally required paperwork (DROS & 4473)?


I would refrain from taking any of this personal Kemasa and throwing out personal attacks. Your position is not defensible in court. Unless you can prove the new linked 4473 theory.


We shall see, but then again you think it is legal to add additional firearms to a previously submitted DROS, so I think I will stick with my opinion rather than yours.


So your defense attorney brings this up. Then the prosecutor blows a Tannerite sized hole in your argument by stating, "Then Mr. End User, if you didn't mind having your name associated with Officer Smith's transaction, why didn't you DROS the firearm directly?" End user replies, "I could not DROS the firearm directly because it was not lawful for the FFL to DROS me the firearm directly." Prosecutor replies, "So that is why you paid Officer Smith to purchase the firearm for you and that is why Officer Smith was not the actual buyer, but a proxy buyer for a person who could not legally purchase the firearm."


Because it was easier than doing a SSE, finding a seller to do a PPT, buying a place out of CA or moving out of CA and then moving back to CA.


Kemasa, the straw purchase occurred when Officer Smith purchased the firearm. 4473s are not linked. That the end user didn't mind associating his/her name to that firearm, does not excuse the fact that the end user did not want to associate their name with the Officer Smith transaction and 4473. Sorry, you are going to lose this argument, unless you can argue 4473s are linked and that a 4473 filled out at a later time excuses lying on the first 4473. Again, good luck with that one.


Really? So it is straw purchase when Officer Smith purchased the firearm? What if Officer Smith fills out the paperwork and then decides that he really likes the firearm and keeps it instead of transferring it? When did it suddenly no longer become a straw purchase? Was it a straw purchase and suddenly no longer be a straw purchase?

Wouldn't it make more sense for the straw purchase to have occurred when the firearm is given to an undisclosed buyer instead?

You are attempting to make up additional requirements of saying that the original 4473 should have future buyers listed on it.


That is why the charges against Grant Early are interesting. He was being truthful on his 4473. He was the actual purchaser. However, the officer that bought it first was the liar and that is why he is getting charged.

A person can buy something and then sell it, planning on selling it in advance. One of the key aspects which you are missing is that a straw purchase is when the end buyer is hidden, but in this case nothing is hidden.

dantodd
06-03-2012, 9:36 AM
Is this a straw purchase?

My grandparents and parents have no interest in firearms and do not own any.

I am 20 years old and have a decent job and want and can afford a handgun.

My parents and grandparents have no interest in gifting me the gun.

How can I acquire a handgun legally?

Can my parents buy the gun and then sell it to me legally?

dantodd
06-03-2012, 9:39 AM
Here's another question.

How can a purchase be a straw purchase if it is never transfered from the person who completed the DROS?

If itmust be transfered outed the possession of the person who performed the DROS/4473 to be a straw purchase how can the fact that a new DROS/4473 was completed not be relevant?

kemasa
06-03-2012, 9:54 AM
Here's another question.

How can a purchase be a straw purchase if it is never transfered from the person who completed the DROS?

If itmust be transfered outed the possession of the person who performed the DROS/4473 to be a straw purchase how can the fact that a new DROS/4473 was completed not be relevant?

:-)

If Bob pays Steve $1000 to buy a firearm for him and Steve buys the firearm, but fails to turn it over to Bob, has Steve committed fraud for getting a "free" firearm or has Steve done a straw purchase? What if Steve never intended to turn over the firearm to Bob and instead just intended to defraud Bob and blackmail him claiming he attempted to do a straw purchase?

dantodd
06-03-2012, 10:09 AM
:-)

If Bob pays Steve $1000 to buy a firearm for him and Steve buys the firearm, but fails to turn it over to Bob, has Steve committed fraud for getting a "free" firearm or has Steve done a straw purchase? What if Steve never intended to turn over the firearm to Bob and instead just intended to defraud Bob and blackmail him claiming he attempted to do a straw purchase?

You assume that Steve used Bob's money. Some are arguing that this isn't a requirement. I would argue that it is a requirement until such time that the gun is transfered to someone who is prohibited or does not want their name associated with the firearm.


You will note that even the ATF only specified transactions I which "Steve" uses "Bob's" money as requiring a No answer on the 4473. They also state specifically that you can answer Yes if you are gifting the fun. They have no guidance on a situation where "Steve" pays for the gun with the intention of ultimately selling it to "Bob."

Scarecrow Repair
06-03-2012, 11:33 AM
Mainly, it is one of these ill-defined pseudo-crimes that means whatever the prosecutor and judge want it to mean :-)

But I do see I was confused by that phrase "actual buyer". To me, the common sense translation is the guy who fills out the 4473 and DROSes it. It shouldn't matter if someone else gave the buyer money in advance, or that the DROSer turns around and PPTs it as soon as the FFL finishes the paperwork.

But it does, because it's one of those not-a-real-crime laws, or, as Librarian said, maloderous prohibitum or whatever that jargon was ...

I just have to accept that I do not really understand it, because it is not meant to be understandable as common sense, like being able to use a 30 round mag in a featureless rifle but limited to 10 in a fixed mag rifle. Common sense says if you really wanted to make guns less dangerous, it would be reversed, but this is hoplophobia at work, not common sense.

kemasa
06-03-2012, 11:37 AM
You assume that Steve used Bob's money. Some are arguing that this isn't a requirement. I would argue that it is a requirement until such time that the gun is transfered to someone who is prohibited or does not want their name associated with the firearm.


Actually, I don't think that the money means much of anything other than giving an indication of what might be going on.

What matters is whether the firearm is transferred to someone else in a hidden manner, whether it is legally done (ie. private sale in another state which does not require the transfer through a FFL) or illegally done.


You will note that even the ATF only specified transactions I which "Steve" uses "Bob's" money as requiring a No answer on the 4473. They also state specifically that you can answer Yes if you are gifting the fun.


Yep. They also don't address when it becomes a straw purchase. It does not mention if it is required for Bob to actually receive the firearm (perhaps it is assumed) or that just when the paperwork is done that it is a problem.


They have no guidance on a situation where "Steve" pays for the gun with the intention of ultimately selling it to "Bob."

Perhaps because unless it becomes political, it is not an issue. In other states, where the sale to Bob does not have to go through a FFL, it might be an issue, but if the firearm does go through a FFL, with all the required paperwork, it does not seem like it would be an issue since the end buyer is known due to the paperwork.

mofugly13
06-03-2012, 11:53 AM
So what if you find a ridiculously underpriced firearm at a shop, and you buy it knowing you can right away turn around and sell it for more?

kemasa
06-03-2012, 12:00 PM
But I do see I was confused by that phrase "actual buyer". To me, the common sense translation is the guy who fills out the 4473 and DROSes it. It shouldn't matter if someone else gave the buyer money in advance, or that the DROSer turns around and PPTs it as soon as the FFL finishes the paperwork.


The money does not really matter, but it can be a sign of what is going on. The main thing is what happens to the firearm. To me, but perhaps not others, it also depends on how the firearm is transferred.

If you were to buy a firearm, start the 10 day wait, then suddenly have a money issue and arrange a sale of the firearm before you get it, pick it up and do a PPT the same day, is that a straw sale?

Think about what a straw sale is supposed to accomplish. One of the key aspects is that the final buyer is hidden, at least that is my view based on what I know and what I have read. If every time the firearm is transferred it is processed through a FFL and the DROS and 4473 is filled out, then it does not seem anyone is hiding anything.

If you take a different view and only care that the firearm goes to someone else, then it means that otherwise legal transactions are illegal. Could it be that someone decides to give another person a gift in order to hide the transaction? That could be an issue as well, although in CA it generally has to go through a FFL, so it would seem to me to have less meaning.

If a parent were to buy a long gun and give it to their child as a gift because the child did not want a record of buying a firearm, would that be a straw purchase? The intent matters, but it can be hard to prove.

kemasa
06-03-2012, 12:03 PM
So what if you find a ridiculously underpriced firearm at a shop, and you buy it knowing you can right away turn around and sell it for more?

And what if you know exactly who wanted such a firearm and who had been looking for it for a long time?

dantodd
06-03-2012, 12:11 PM
And what if you know exactly who wanted such a firearm and who had been looking for it for a long time?

This is an example I use all the time. If a friend of mine is at a fgn show and someone is walking around wanting to PPT a Colt 1911 govt model in my birth year and he knows I really want that gun would it be illegal for him to buy it knowing I want one and intending to sell it to me? Would it make a difference if he called me first to confirm the price was acceptable etc? Would it make a difference if I PayPal the money to him before he picks the gun up or while he's in the process of filling out the 4473?

kemasa
06-03-2012, 12:19 PM
This is an example I use all the time. If a friend of mine is at a fgn show and someone is walking around wanting to PPT a Colt 1911 govt model in my birth year and he knows I really want that gun would it be illegal for him to buy it knowing I want one and intending to sell it to me? Would it make a difference if he called me first to confirm the price was acceptable etc? Would it make a difference if I PayPal the money to him before he picks the gun up or while he's in the process of filling out the 4473?

Personally, I don't think so as long as it is properly transferred to you, BUT it seems that those in power could view it differently and then both of you could have serious problems.

If he calls you, then it could be a problem. If you pay first, then it could be more of a problem. In reality, it should not be a problem as long as the firearm is transferred to you by means of a FFL transfer (PPT, DROS, 4473). I am sure that there will be some who don't agree though.

If your friend is honest and says that you want it and gives the seller to money to hold it, then it looks a straw purchase for your friend.

Even if your friend calls you and you pay directly, it could be viewed as a straw purchase since it was your friend who noticed the firearm. It is hard to tell what is really going on.

What should be the key issue is whether you are trying to keep your name off of the transaction or not.

hoffmang
06-03-2012, 12:24 PM
Let me add a wrinkle.

US v Polk overturned a conviction where the supposed straw purchaser was elligible to possess the firearm at the time anyway.

http://openjurist.org/118/f3d/286/united-states-v-polk

We find that the Government's construction of § 922(a)(6) sweeps too broadly so that the evidence is insufficient to support a conviction on Count 6.7 Although § 922(a)(6) on its face does not prohibit "straw purchases," we have nonetheless held that such transactions violate § 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 § 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, § 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 § 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 § 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

Note however that I haven't had a chance to shephardize this.

-Gene

SilverTauron
06-03-2012, 12:43 PM
Thanks for the reference Gene.

Now we come to an interesting juncture-is state law included in definition of the "True Purchaser" being legally entitled to possess,or is it just the Federal statutes which matter?

Federally speaking the 'true buyers' in the Sacramento case were not prohibited. State law however disqualified the recipients from going into an FFL and buying the weapons themselves;thus from my read it would seem the ATF & State's Attorney is arguing that these people violated Federal law on account of circumventing state law that the ATF is not empowered to enforce.

dantodd
06-03-2012, 12:45 PM
Let me add a wrinkle.

US v Polk overturned a conviction where the supposed straw purchaser was elligible to possess the firearm at the time anyway.

http://openjurist.org/118/f3d/286/united-states-v-polk



Note however that I haven't had a chance to shephardize this.

-Gene

I did find the timing of the charges in this case were "interesting" as they relate to the publication of US v. Johnson

ETA: oops wrong name, it's Johnson here's the decision. http://www.ca9.uscourts.gov/datastore/opinions/2012/05/29/11-10290.pdf

tenpercentfirearms
06-03-2012, 2:21 PM
Yes, it was. Before the end buyer take possession of the firearm the proper paperwork was filled out. That is what you are missing. There was NO attempt to hide the people involved as the paperwork shows.Simple question. Give a simple answer. Why didn't the end user do the paperwork themselves? I will answer it for you. They could not legally complete the paperwork as the dealer could not sell the end user the handgun. The end user is the true buyer and the end user had the officer buy the firearm by proxy in order to conceal their true identity. When the firearm was purchased, we cannot predict the future. The only thing that matters is the now. Was the officer the actual purchaser if the end user paid for the gun. Again, good luck with this one in court.

Wes, please don't be silly. You know that there is a paperwork trail. Each FFL's bound book shows where the firearm went from and to. This is to be able to trace a firearm.Ken, please don't be silly. Are 4473s shared? Can I tell an ATF auditor that the true purchaser was not hidden because he filled out a 4473 for the LCP a month later and I have that paperwork? Is that the officer's get out of jail free card? Who is the one being silly here?

At the time of purchase when the officer bought the LCP, were they the actual purchaser if they used someone else's money to buy the firearm and then turned around and sold it to that person 10 days or more later? My answer and most likely a jury's answer will be no. Kemasa seems to think it will be yes. You readers need to make your own decision on that one.

Did the end buyer fill out all the legally required paperwork (DROS & 4473)?Sure, that is why they don't get charged with making a false statement.

We shall see, but then again you think it is legal to add additional firearms to a previously submitted DROS, so I think I will stick with my opinion rather than yours.Just like hundreds of other dealers in this state and just like the penal code allows.

Because it was easier than doing a SSE, finding a seller to do a PPT, buying a place out of CA or moving out of CA and then moving back to CA.The easier defense. Classic.

Really? So it is straw purchase when Officer Smith purchased the firearm? What if Officer Smith fills out the paperwork and then decides that he really likes the firearm and keeps it instead of transferring it? When did it suddenly no longer become a straw purchase? Was it a straw purchase and suddenly no longer be a straw purchase?Whose money did Officer Smith use to purchase the firearm? His money? No crime. Someone else's money? Crime.

One more time. The perseon is not being charged with making a straw purchase. The person is being charged with lying on the 4473. At the time of purchase, was the purchaser (Officer Smith) the actual buyer/transferee. It is a yes or no question. Period. That is it.

If Officer Smith used their own money, then they were the actual buyer/transferee. If they did not, they were not. It is that simple.

Wouldn't it make more sense for the straw purchase to have occurred when the firearm is given to an undisclosed buyer instead?Sense means nothing. These people have been charged for lying on the 4473. They lied on the 4473 at the time of purchase. Not sure how you don't understand that, but clearly you do not. There isn't much more I can do for you on this one.

You are attempting to make up additional requirements of saying that the original 4473 should have future buyers listed on it.I said no such thing. You are making up additional requirements that these people are being charged with making a straw purchase which does not include people who fill out the proper paperwork after the fact. They are not being charged with making a straw purchase. They have been charged with lying on the 4473. They said they were the actual buyer when they were actually using someone else's money to buy the firearm in order to conceal the identity of the other buyer at the time of purchase. That they lawfully transferred it after the fact has nothing to do with lying on the form at the time of purchase.



A person can buy something and then sell it, planning on selling it in advance. One of the key aspects which you are missing is that a straw purchase is when the end buyer is hidden, but in this case nothing is hidden.No, it seems you have already forgotten your own quotes from the www.dontlie.org website. Here they are again.

Straw Purchasing

Buying a gun for someone who is prohibited by law from possessing one or for someone who does not want his or her name associated with the transaction is a "straw purchase."

1. An illegal firearm purchase (straw purchase) is a federal crime.
2. An illegal firearm purchase can bring a felony conviction sentence of ten years in jail and a fine of up to $250,000.
3. Buying a gun for someone who can't can cost you your good name and land you in big trouble.

Never buy a gun for someone who is unwilling or unable to do so.

AndWhat is a straw purchase?

A straw purchase is an illegal firearm purchase where the actual buyer of the gun, being unable to pass the required federal background check or desiring to not have his or her name associated with the transaction, uses a proxy buyer who can pass the required background check to purchase the firearm for him/her. It is highly illegal and punishable by a $250,000 fine and 10 years in prison. So Officer Smith buys an LCR on 4473 #24398. Officer Smith then sells through the private party transfer process said LCR on 4473 #25210. You are telling us that somehow 4473 #25210 is linked to #24398. That somehow when Officer Smith purchased the LCR on 4473 #24398 that he did not hide the end user's name because the end user's name is on 4473 #25210 that was completed at a future time and date.

The absurdity of such a claim does serve a useful purpose. What the FFL or Officer Smith ought to do is write in on 30c. "For use by FFL" is Note: the actual purchaser will actually be End User who will PPT this from me at some future date. We didn't want to conceal his identity so we are writing it in here so you can't charge me with answering Yes to 11.a when he is the actual buyer. Thank you.That way at least the end user will have their name associated with the transaction, because as is, it certainly appears the end user is trying to hide their identity in order to buy firearms they otherwise couldn't purchase, otherwise they would just buy the firearm themselves.

Really after thinking about it, Kemasa seems to think that the end user lawfully PPTing the firearm after the fact shows it is not a straw purchase and is proof that they tried to do things legally. I actually think it is self-incrimination. Doing the paperwork after the fact proves the original officer was not the actual purchaser, especially when financial documents are subpoenaed and show that Officer Smith did not use his own money to purchase the firearm. Basically the straw purchasers are making a paper trail to show that they did.

I believe the US Attorny's office probably looks at the same way, hence the indictments.

But what do I know? Don't take my word on it. However, you might want to ask Bob Snellings or Grant Early what they think about it. They probably agree with kemasa and look forward to all of these charges just going away.

curtisfong
06-03-2012, 3:02 PM
IMO this whole "their own money" stuff isn't relevant.

Money is fungible. There is no such thing as "my" money or "not my money" before/after time "t" since there are a million different financial instruments that move money and funds around such that the "time" at which actual "cash" is transferred is immaterial.

Using that "time" as a benchmark for "who" is the actual purchaser simply doesn't make sense.

IMO, the intent of strawpurchase prohibitions is exactly this

''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"

Just because an overzealous DA/prosecutor and/or incompetent defense caused somebody to get convicted for something less doesn't change (to me) the meaning and intent of the law itself.

kemasa
06-03-2012, 3:12 PM
Simple question. Give a simple answer. Why didn't the end user do the paperwork themselves? I will answer it for you. They could not legally complete the paperwork as the dealer could not sell the end user the handgun. The end user is the true buyer and the end user had the officer buy the firearm by proxy in order to conceal their true identity. When the firearm was purchased, we cannot predict the future. The only thing that matters is the now. Was the officer the actual purchaser if the end user paid for the gun. Again, good luck with this one in court.


Incorrect as the true buyer did not attempt to conceal their identity as shown by filling out the DROS and 4473.

If you can not predict future, then you don't know what will happen, so until it happens there is nothing wrong.

Who paid is not really relevant, as in the case of a gift. You are trying to put too much meaning on the money aspect and not enough on ALL of the paperwork.


Ken, please don't be silly. Are 4473s shared? Can I tell an ATF auditor that the true purchaser was not hidden because he filled out a 4473 for the LCP a month later and I have that paperwork? Is that the officer's get out of jail free card? Who is the one being silly here?


Yes, the end buyer was not hidden because they did fill out the DROS and 4473. How can you say that they were hidden since before they took possession of the firearm, the proper forms were filled out?


At the time of purchase when the officer bought the LCP, were they the actual purchaser if they used someone else's money to buy the firearm and then turned around and sold it to that person 10 days or more later? My answer and most likely a jury's answer will be no. Kemasa seems to think it will be yes. You readers need to make your own decision on that one.


I guess gifts are illegal then since the person is using someone else's money.


Sure, that is why they don't get charged with making a false statement.


Interesting, but they are saying that they are the actual buyer, but if they already bought it, then they are not now buying it, they are just doing the paperwork to coverup the previous transactions, so then they would be making a false statement.


Just like hundreds of other dealers in this state and just like the penal code allows.


Only in your dreams. FFLs might get away with it, but it is just not the case that it is allowed and it shows a serious flaw in your judgment.


The easier defense. Classic.


The point, which you are missing, is that there are other ways to do it.


Whose money did Officer Smith use to purchase the firearm? His money? No crime. Someone else's money? Crime.


Really? You would make a really good judge.


One more time. The perseon is not being charged with making a straw purchase. The person is being charged with lying on the 4473. At the time of purchase, was the purchaser (Officer Smith) the actual buyer/transferee. It is a yes or no question. Period. That is it.


Yes and they are buying it, even though they intend to sell it and they intend to fill out all the required paperwork.


If Officer Smith used their own money, then they were the actual buyer/transferee. If they did not, they were not. It is that simple.


Not really. So you really think it is all about money? You are saying that the same transaction would be legal if they officer used their own money? What if the money that was used was not from the final buyer?


Sense means nothing. These people have been charged for lying on the 4473. They lied on the 4473 at the time of purchase. Not sure how you don't understand that, but clearly you do not. There isn't much more I can do for you on this one.


Yeah, right, from someone who doesn't know what the word "single" means. What you don't get is that someone can buy something and flip it in order to make a profit.


I said no such thing. You are making up additional requirements that these people are being charged with making a straw purchase which does not include people who fill out the proper paperwork after the fact. They are not being charged with making a straw purchase. They have been charged with lying on the 4473. They said they were the actual buyer when they were actually using someone else's money to buy the firearm in order to conceal the identity of the other buyer at the time of purchase. That they lawfully transferred it after the fact has nothing to do with lying on the form at the time of purchase.


If it really was a straw purchase, then there would be no need to fill out the additional paperwork in order to transfer the firearm. If they lawfully transferred it later, then it was not previously a straw purchase.

So if you borrowed money to buy some firearms in order to sell and make money, that would be illegal?



No, it seems you have already forgotten your own quotes from the www.dontlie.org website. Here they are again.


I remember and the main part is in hiding who is ending up with the firearm, which was not done.


AndSo Officer Smith buys an LCR on 4473 #24398. Officer Smith then sells through the private party transfer process said LCR on 4473 #25210. You are telling us that somehow 4473 #25210 is linked to #24398. That somehow when Officer Smith purchased the LCR on 4473 #24398 that he did not hide the end user's name because the end user's name is on 4473 #25210 that was completed at a future time and date.


What is amazing is that you are trying to link the end buyer before they fill out the paperwork. The officer bought the firearm and it was transferred to him, then later the firearm was transferred to another person. None of the names were hidden, but for some reason you have an issue that the end buyer's name was not on the original paperwork, so you assume that even though they later filled out the paperwork, that they were attempting to hide that they were buying it, even though they never took possession until after their name was on the paperwork.


The absurdity of such a claim does serve a useful purpose. What the FFL or Officer Smith ought to do is write in on 30c. "For use by FFL" is That way at least the end user will have their name associated with the transaction, because as is, it certainly appears the end user is trying to hide their identity in order to buy firearms they otherwise couldn't purchase, otherwise they would just buy the firearm themselves.


While they could not buy the firearm directly, by that means, does not make it illegal. Some people can get special deals, then they turn around and sell the items.


Really after thinking about it, Kemasa seems to think that the end user lawfully PPTing the firearm after the fact shows it is not a straw purchase and is proof that they tried to do things legally. I actually think it is self-incrimination. Doing the paperwork after the fact proves the original officer was not the actual purchaser, especially when financial documents are subpoenaed and show that Officer Smith did not use his own money to purchase the firearm. Basically the straw purchasers are making a paper trail to show that they did.


And how does it show that the person did not want their name on the transaction? I guess someone had best not to loan people money so that they can make money.


I believe the US Attorny's office probably looks at the same way, hence the indictments.


I suspect that the CA DOJ is pushing it because they want to make an example and they want the practice to stop. It is also why there is a push to change to law to prevent it from happening because it is not illegal for the officer to do it. If it was illegal, the law would not need to be changed.


But what do I know? Don't take my word on it. However, you might want to ask Bob Snellings or Grant Early what they think about it. They probably agree with kemasa and look forward to all of these charges just going away.

Yeah, what do you know. You think you can add firearms to an existing DROS, but your partner thinks otherwise, so either you don't do, won't admit that you do it in public for fear that your partner will find out or you don't do it because your partner doesn't think it is legal, but you still claim that it is legal, regardless of what the DOJ says.

They might get a jury that swallows the claim, just like you do, or perhaps they will get a jury that thinks about it (doubtful). It might get overturned on appeal, which in another thread a case reference was interesting about straw purchases since the end buyer was not prohibited.

dantodd
06-03-2012, 3:16 PM
IMO, the intent of strawpurchase prohibitions is exactly this

''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"

Just because an overzealous DA/prosecutor and/or incompetent defense caused somebody to get convicted for something less doesn't change (to me) the meaning and intent of the law itself.

There was a case in Alabama that I can't find right now, where a non-prohibited person asked a friend to buy a number of firearms for him. He asked him to do this because he didn't want his name associated with said firearms in a bound book. Alabama permits FTF transfers with no FFL and neither person was prohibited. The man was convicted. Does that fit the intent of the law in your mind?

curtisfong
06-03-2012, 3:25 PM
No but it fits the other part of my post mentioning overzealous DA/prosecutors and/or incompetent defense.

And in CA, there is no telling what might happen when it comes to firearms. You can end up in jail for just about any reason these days.

kemasa
06-03-2012, 3:27 PM
There was a case in Alabama that I can't find right now, where a non-prohibited person asked a friend to buy a number of firearms for him. He asked him to do this because he didn't want his name associated with said firearms in a bound book. Alabama permits FTF transfers with no FFL and neither person was prohibited. The man was convicted. Does that fit the intent of the law in your mind?

That fits since the person was attempting to not have his name associated with the transaction. He was attempting to hide the purchase.

What if the person only bought firearms from private parties so that his name would not be listed in a bound book? Would that be a straw purchase? I don't think so.

tenpercentfirearms
06-03-2012, 8:57 PM
Yeah, what do you know. You think you can add firearms to an existing DROS, but your partner thinks otherwise, so either you don't do, won't admit that you do it in public for fear that your partner will find out or you don't do it because your partner doesn't think it is legal, but you still claim that it is legal, regardless of what the DOJ says.LOL. You might want to go research your own old threads. This statement is false. As usual you are confused.

I am done arguing with you guys. Stick to your guns. See what happens. We already know what happened to four guys in Sacramento because they must have had the same view. In time we will see if your analysis or my analysis is correct. Sadly, I would rather not be correct for once.

kemasa
06-03-2012, 9:10 PM
LOL. You might want to go research your own old threads. This statement is false. As usual you are confused.


So are you saying that you still do it? I am not the one who is confused.


I am done arguing with you guys. Stick to your guns. See what happens. We already know what happened to four guys in Sacramento because they must have had the same view. In time we will see if your analysis or my analysis is correct. Sadly, I would rather not be correct for once.

What is it that you say about "DOJ masters"? In this case it is your US DOJ masters.

It is best to stay out of such a mess since even if you win, you have already lost.

I do find it interesting for people like you to claim that it was a straw purchase even before the next person touches the firearm and that the next person does not get the firearm until after the paperwork has been filled out.

tenpercentfirearms
06-03-2012, 9:21 PM
So are you saying that you still do it? I am not the one who is confused.Yes you are. Go look. We have argued about two issues in the past. Adding a long gun to a handgun DROS and adding long guns to an incomplete transaction. You are confused on which one is which. Again, not surprisingly either. You have always had a hard time keeping up with these things.



What is it that you say about "DOJ masters"? In this case it is your US DOJ masters.

It is best to stay out of such a mess since even if you win, you have already lost.

I do find it interesting for people like you to claim that it was a straw purchase even before the next person touches the firearm and that the next person does not get the firearm until after the paperwork has been filled out.Read the 4473 again. No where does it mention anything about other 4473s or additional paperwork. It says I understand that answering yes to Question 11.a if I am not the actual buyer of the firearm is a crime punishable as a felony.So why are you still completing DROS? Because the ATF and DOJ tell you to? Why are you bowing to your DOJ masters? LOL. Just blatantly ignore the clear instructions on the 4473. Get some Kemasa! Get some!

In fact, put your money where your mouth is. Have someone give you some money, run a DROS and use a 4473 to buy them a gun, then PPT it to them. Post up your 4473 control numbers, your banks statements, and send it to the DOJ. If you are so sure what you are doing is legal, then you wouldn't mind doing that right?

LOL! :43: You won't, which proves you are advocating illegal activity while not doing it yourself. LOL some more. You are such a hypocrite. However, that doesn't bother me. You are entitled to your own opinion, even if it is not consistent with your other opinions. Some people are just that way.

dantodd
06-03-2012, 9:30 PM
Perhaps the most important thing to take away from all of this is that the entire FFL system is screwed up and one should not need a special license to do commerce in firearms. We already have case law on the illegality of such licenses in context of the first amendment.

tenpercentfirearms
06-03-2012, 9:37 PM
Perhaps the most important thing to take away from all of this is that the entire FFL system is screwed up and one should not need a special license to do commerce in firearms. We already have case law on the illegality of such licenses in context of the first amendment.

That isn't what I take from this. What I take from this is even if that is your opinion, still be prepared to go to prison if you lie on the 4473. I like your theory, but the reality is not the same.

dantodd
06-03-2012, 9:49 PM
That isn't what I take from this. What I take from this is even if that is your opinion, still be prepared to go to prison if you lie on the 4473. I like your theory, but the reality is not the same.

Don't take anything I said as suggesting that it is advisable to ignore the laws that Arron the books. I believe the laws should be followed while we try to make the law what it should be. Surely there are times for civil disobedience but I don't think the FFL require,m is that time.

Shanghai guy
06-03-2012, 10:02 PM
I still do not understand what happens if a parent or a sibling wants to buy you a rifle for your birthday and give it to you as a gift.

Is this a violation?

strongpoint
06-03-2012, 10:14 PM
I still do not understand what happens if a parent or a sibling wants to buy you a rifle for your birthday and give it to you as a gift.

Is this a violation?

the law in question makes a specific exemption for legitimate gifts.

IBTL. this question has been asked and answered exhaustively in the thread librarian cited earlier (which should be stickied, not that it'll do any good). besides, a lot of this particular discussion has been nothing but kemasa and tenpercentfirearms throwing dishwater at each other anyway.

Librarian
06-03-2012, 10:17 PM
I still do not understand what happens if a parent or a sibling wants to buy you a rifle for your birthday and give it to you as a gift.

Is this a violation?
No.

Giving gifts is specifically called out by the BATF as legal.

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

P 15 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.

dantodd
06-03-2012, 10:18 PM
I still do not understand what happens if a parent or a sibling wants to buy you a rifle for your birthday and give it to you as a gift.

Is this a violation?

Gifts are specifically permissible. However; if your parents give it to you there is no need for a visit to an FFL, you just fill out an OpLaw form for handguns. if it's your sibling that gives you the weapon it has to go through an FFL.

BigJ
06-03-2012, 10:50 PM
Not to sir the pot but one question comes to mind reading these arguments. A lot of this seems to hinge on whether or not the secondary buyer can legally buy the gun or not. And in the case of an off roster handgun the argument is that since its off roster the secondary non LEO buyer can't legally buy the gun. Here's my question: is it the buying of the gun that is illegal or the selling of it by the FFL?

As I understand it, is the sale that is prohibited. If so then there was no straw transaction. Just because you cannot sell me something does not mean it its illegal for me to buy it.

Shanghai guy
06-03-2012, 11:00 PM
Thanks for the help, guys. Sorry I missed Librarian's thread covering this, I am new and still learning my way around here.

snobord99
06-04-2012, 1:19 AM
Let me add a wrinkle.

US v Polk overturned a conviction where the supposed straw purchaser was elligible to possess the firearm at the time anyway.

http://openjurist.org/118/f3d/286/united-states-v-polk



Note however that I haven't had a chance to shephardize this.

-Gene

I believe I shepardized this case a while back (maybe a year ago) and, at the time, the case was still good law but there's a circuit split on the issue.

4th Cir: "[t]herefore, under 922(a)(6), Davis's and Lubin's false statements of the identity of the actual buyer satisfy the "fact material to the lawfulness of a sale" element, regardless of whether the actors were all lawfully eligible to purchase a firearm." United States v. Frazier, 605 F.3d 1271 (4th Cir.).

Also, there's another statute for which a person could be prosecuted for a straw purchase. I can't remember the specific cite for it but I believe it was another subsection of 922. I know I saw a case from a Circuit court distinguishing the two (sub)sections and I recall that the conviction was upheld under the other (sub)section. I think that was out of the 5th Circuit but I'm nowhere near 100% sure about that.

snobord99
06-04-2012, 1:46 AM
The key, which you seem to be missing, is that one of the factors of a straw purchase is an intend to hide who the actual purchaser is. For someone who needs to have the word "single" defined in the CA PC, it is quite interesting to see your view on this.

The end of your little strawman argument above is: was the firearm legally transferred from you to the other person by submitting a PPT DROS and that the other person filled out a 4473? Yes or No. The firearm was legally transferred and there was no attempt to hide this person, correct?

Funny that your straw purchase "factor" isn't an element of the crime.

snobord99
06-04-2012, 1:50 AM
Here's another question.

How can a purchase be a straw purchase if it is never transfered from the person who completed the DROS?

If itmust be transfered outed the possession of the person who performed the DROS/4473 to be a straw purchase how can the fact that a new DROS/4473 was completed not be relevant?

But you're presupposing that it has to be transferred out of the possession of the person to be a straw purchase legally. It doesn't. 922(a)(6) doesn't prohibit the transfer, it prohibits lying on 4473.

snobord99
06-04-2012, 1:54 AM
Actually, I don't think that the money means much of anything other than giving an indication of what might be going on.

What matters is whether the firearm is transferred to someone else in a hidden manner, whether it is legally done (ie. private sale in another state which does not require the transfer through a FFL) or illegally done.

18 USC 922(a)(6) would disagree with you. You focus a lot on the intent to hide the true purchaser, but notice that there's no "with the intent to hide the true purchaser" element in the code?

strongpoint
06-04-2012, 4:09 AM
Seems that if you really want to be on the safe side of things, you should only sell firearms you purchase 5 years (or more) after the date of purchase? That way, even if they can "prove" you lied on your 4473, you are immune from prosecution via the statute of limitations. Of course, the real problem here is that there is no strict legal definition of "actual purchaser".

you don't have to wait five years to sell a firearm; that's undiluted FUD. tenpercentfirearms cited this figure in post #8 as an example.

the only way you have lied on question 11.a is if you bought the firearm in question on behalf of another person -- in other words, if your intent at the time of purchase was that the gun would wind up in that specific person's hands as something other than a legitimate, uncompensated gift. simple solution: don't do that.

form 4473 contains some fairly clear guidance on who should be considered the actual buyer. read it (http://www.atf.gov/forms/download/atf-f-4473-1.pdf) -- especially the entirety of question 11.a, the certification paragraph right above the signature line, and the section about 11.a in the instructions on page 4.


At the moment in time when the LEO's purchased those firearms, they were in fact the actual purchaser. The fact that they went through a dealer for the subsequent sale proves this to be true. It doesn't matter if they intended to sell the firearm little later down the road. When they filled out the form 4473, they weren't lying, they WERE the actual purchaser. Now maybe they only intended to own the firearm for 10 minutes, 10 days, or 10 years, it doesn't matter. For that instant in time, they were the actual purchaser.

not true. an LEO or anyone else buying with the intent to resell to a particular individual or individuals would not be the actual purchaser, as outlined above.


Let's say you walk into your local gunshop and you see an original Walker Colt for sale for $1000. You buy it, knowing it's worth far more than your $1000 investment, and after taking possession you immediately auction it off for a huge profit. Illegal? Would it have mattered if you waited a month? A year?

buying in order to resell for a profit -- as long as you're not doing it with such frequency that you become an unlicensed dealer (see below) -- is perfectly legal. when you make the purchase, you can truthfully answer yes on question 11.a because you are buying for yourself, even though your motive is to flip it right away for a profit.


Here's another scenario. Let's say you are a detail freak, and you want the absolute best specimen of a particular firearm. So you buy a dozen of the same gun, try them all out, and end up keeping only the best one. You sell the others a week later. Illegal?

maybe, but not necessarily because there's a straw-purchase issue. from PC 12070:

(a) No person shall sell, lease, or transfer firearms unless he or she has been issued a license pursuant to Section 12071. Any person violating this section is guilty of a misdemeanor.

(b) Subdivision (a) does not include any of the following:

(4) The infrequent sale, lease, or transfer of firearms.
(c)
(1) As used in this section, "infrequent" means:
(A) For handguns, less than six transactions per calendar year. For this purpose, "transaction" means a single sale, lease, or transfer of any number of handguns.
(B) For firearms other than handguns, occasional and without regularity.

if this involves handguns, you might also run into the one-in-30 limit -- PPTs are exempt, but not in LA (jeez), according to the CGF wiki (http://wiki.calgunsfoundation.org/Buying_and_selling_firearms_in_California#Selling_ as_a_Private_Party). also, i presume you can see how dumping this number of firearms might raise a red flag in the AG's office. if i were selling the 11 guns in your example, i would be ready to answer any questions the DOJ/BOF might have.

strongpoint
06-04-2012, 4:09 AM
Not to sir the pot but one question comes to mind reading these arguments. A lot of this seems to hinge on whether or not the secondary buyer can legally buy the gun or not. And in the case of an off roster handgun the argument is that since its off roster the secondary non LEO buyer can't legally buy the gun. Here's my question: is it the buying of the gun that is illegal or the selling of it by the FFL?

As I understand it, is the sale that is prohibited. If so then there was no straw transaction. Just because you cannot sell me something does not mean it its illegal for me to buy it.

i think you're misunderstanding the case in the OP. FFLs weren't selling the guns in question; LEOs were. LEOs can legally buy off-roster handguns. they can also legally transfer those guns to other buyers face-to-face, since PPTs are roster-exempt. also, the roster is defined by california law, so the feds wouldn't be interested in roster violations.

as for what the accused could be prosecuted for, see above.

tenpercentfirearms
06-04-2012, 5:25 AM
Please go read this thread again since there is new data there.

http://www.calguns.net/calgunforum/showthread.php?t=562886&page=5

Fiddletown claims to be a lawyer and does a rather nice job outlining what I have already attempted to outline. Kemasa will be posting up where he got his law degree shortly. It might have been from the NSSF website.

dantodd
06-04-2012, 5:30 AM
But you're presupposing that it has to be transferred out of the possession of the person to be a straw purchase legally. It doesn't. 922(a)(6) doesn't prohibit the transfer, it prohibits lying on 4473.

But if there is another 4473 on the subsequent transfer to the next owner doesn't that suggest that the initial buyer believed that they were, in fact, the actual buyer? If they believed somone else was actually the buyer why would they need to execute another 4473? While I agree completely that in the case of using another person's money you are not the "actual buyer" but to use your own money and then properly document any subsequent transfers seems the very definition of being the "actual buyer."

tenpercentfirearms
06-04-2012, 5:47 AM
While I agree completely that in the case of using another person's money you are not the "actual buyer" but to use your own money and then properly document any subsequent transfers seems the very definition of being the "actual buyer."

I think we are all in agreement there. If you use your own money you are the buyer. If you use someone else's money, you are not the buyer.

strongpoint
06-04-2012, 6:17 AM
But if there is another 4473 on the subsequent transfer to the next owner doesn't that suggest that the initial buyer believed that they were, in fact, the actual buyer? If they believed somone else was actually the buyer why would they need to execute another 4473? While I agree completely that in the case of using another person's money you are not the "actual buyer" but to use your own money and then properly document any subsequent transfers seems the very definition of being the "actual buyer."

why should it matter what the initial buyer believes? what matters is a) what the initial buyer actually did, and b) what the law actually prohibits. ignorantia juris non excusat ("ignorance of the law is no excuse") has been firm legal principle since rome.

the 4473 defines "buyer" as "the person for whom the firearm is intended," not "the person who is putting up the money right this second." the exact wording on the form is:

warning: you are not the actual buyer if you are acquiring the firearm(s) on behalf of another person.

in boldface type. the responsibility for understanding that falls upon the person who signs the form, and the principle in question is explained in several places for anyone who cares to read it.


I think we are all in agreement there. If you use your own money you are the buyer. If you use someone else's money, you are not the buyer.

don't take "money" too literally. if i purchase a firearm intending to transfer it to dantodd in exchange for any consideration (i.e., not a gift), it's a straw purchase -- even if the consideration dantodd plans to pay me with is, say, mowing my lawn for the next six months.

BigJ
06-04-2012, 7:06 AM
i think you're misunderstanding the case in the OP. FFLs weren't selling the guns in question; LEOs were. LEOs can legally buy off-roster handguns. they can also legally transfer those guns to other buyers face-to-face, since PPTs are roster-exempt. also, the roster is defined by california law, so the feds wouldn't be interested in roster violations.

as for what the accused could be prosecuted for, see above.Thanks. I think you're right. What got me confused that someone said:
...one of the factors of a straw purchase is an intend to hide who the actual purchaser is.
and in response, someone else said:
...The end user did not purchase the firearm directly from the FFL because the end user could not lawfully purchase the firearm from the FFL. So the end user had the officer purchase the firearm for them by concealing their identity on the officer's 4473.The way I read that its on buyer's purchase-ability / legal state that defines (in part) a straw purchase. Its a very different thing to say the FFL could not lawfully *sell* the firearm to the end user.

So my question was if the secondary buyer can legally own and purchase firearms, is it a "straw" purchase if the seller can't sell the firearm to him directly because of laws imposed on the seller?

That's probably picking knits. But the distinction between legal purchase and legal sale seems to have been glossed over (probably because it doesn't matter in this case?)

dantodd
06-04-2012, 7:10 AM
Please go read this thread again since there is new data there.

http://www.calguns.net/calgunforum/showthread.php?t=562886&page=5

Fiddletown claims to be a lawyer and does a rather nice job outlining what I have already attempted to outline. Kemasa will be posting up where he got his law degree shortly. It might have been from the NSSF website.

I've met Fiddletown a number of times, he is a real attorney and pretty much dead on AFAIK.

fiddletown
06-04-2012, 9:17 AM
I believe I shepardized this case a while back (maybe a year ago) and, at the time, the case was still good law but there's a circuit split on the issue.

4th Cir: "[t]herefore, under 922(a)(6), Davis's and Lubin's false statements of the identity of the actual buyer satisfy the "fact material to the lawfulness of a sale" element, regardless of whether the actors were all lawfully eligible to purchase a firearm." United States v. Frazier, 605 F.3d 1271 (4th Cir.).

Also, there's another statute for which a person could be prosecuted for a straw purchase. I can't remember the specific cite for it but I believe it was another subsection of 922. I know I saw a case from a Circuit court distinguishing the two (sub)sections and I recall that the conviction was upheld under the other (sub)section. I think that was out of the 5th Circuit but I'm nowhere near 100% sure about that.

The other statute is 18 USC 924(a)(1)(A), and the case is United States v. Johnson (9th Circuit, No. 11-10290, 29 May 2012, For Publication) (www.ca9.uscourts.gov/datastore/opinions/2012/05/29/11-10290.pdf). This is the case called to our attention by dantodd in post 28.

18 USC 924(a)(1) provides, in pertinent part (emphasis added):(a)

(1) Except as otherwise provided in this subsection, subsection (b), (c), (f), or (p) of this section, or in section 929, whoever—

(A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter;

(B) ...;

(C) ...; or

(D)...,

shall be fined under this title, imprisoned not more than five years, or both....

This seems to avoid the issue identified in the split between Circuits you've noted.

924(a)(1)(A) had not previously been on my radar screen in connection with this issue. But it certainly reinforces, as noted by the 9th Circuit, that the offense generally called a straw purchase is making a false statement regarding who is the actual purchaser -- without regard to whether the subsequent transfer contemplated by the straw purchase is (1) legal; or (2) "on the books."

kemasa
06-04-2012, 9:37 AM
Yes you are. Go look. We have argued about two issues in the past. Adding a long gun to a handgun DROS and adding long guns to an incomplete transaction. You are confused on which one is which. Again, not surprisingly either. You have always had a hard time keeping up with these things.


Sorry, but you are the one who is confused because you keep saying different things, perhaps because don't want to admit to what you are doing. Yes, it is hard to keep up with someone who keeps changing what they are saying.


Read the 4473 again. No where does it mention anything about other 4473s or additional paperwork. It says So why are you still completing DROS? Because the ATF and DOJ tell you to? Why are you bowing to your DOJ masters? LOL. Just blatantly ignore the clear instructions on the 4473. Get some Kemasa! Get some!


That is so funny. You are grasping at straws to try to defend your position.

Where does it say on the 4473 what you have to do in order to sell a firearm to another person? Why wouldn't it say what to do? For some strange reason you seem to think that the 4473 should document everything and if it doesn't, it proves your claimed point.


In fact, put your money where your mouth is. Have someone give you some money, run a DROS and use a 4473 to buy them a gun, then PPT it to them. Post up your 4473 control numbers, your banks statements, and send it to the DOJ. If you are so sure what you are doing is legal, then you wouldn't mind doing that right?


Just because it would be legal does not mean it is a good idea to do.

So if someone loaned me money to buy a good deal on a firearm so that I could sell it and make money, that would be illegal, right? You had best not use your credit card to buy any firearms since that is money from another source.


LOL! :43: You won't, which proves you are advocating illegal activity while not doing it yourself. LOL some more. You are such a hypocrite. However, that doesn't bother me. You are entitled to your own opinion, even if it is not consistent with your other opinions. Some people are just that way.

Sorry, but you are just plain wrong. Unlike you, who have promote illegal activity, I have not.

I don't think that you have thought this all through and are instead just reacting. You seem to think that the second the person bought the firearm it is a straw purchase, but what if the person never gives it to the other person. Oh, it is just about the money. If you give me the money to buy a gun for you and I buy the gun, have I committed a crime? I suspect you would say yes, but what if I never give it to you? Does that change the crime from a straw purchase to fraud? When does it change?

What would be interesting would be if a LEO were to also have a FFL since then they could buy the firearm personally and not have to fill out a 4473. Then they could sell it, but it would have to go through their own book. Would you also consider that a straw purchase?

fiddletown
06-04-2012, 9:48 AM
...So if someone loaned me money to buy a good deal on a firearm so that I could sell it and make money, that would be illegal, right? You had best not use your credit card to buy any firearms since that is money from another source....No, because you have assumed a legal obligation to repay the debt. You did not buy the gun on behalf of, as agent or proxy for, the lender.

tenpercentfirearms
06-04-2012, 10:13 AM
I don't think that you have thought this all through and are instead just reacting. You seem to think that the second the person bought the firearm it is a straw purchase, but what if the person never gives it to the other person. Oh, it is just about the money. If you give me the money to buy a gun for you and I buy the gun, have I committed a crime? I suspect you would say yes, but what if I never give it to you? Does that change the crime from a straw purchase to fraud? When does it change?The second a person buys a firearm for someone else and they are not the actual purchaser, they have committed a crime. The 4473 is clear on this. If someone else gives you money to buy them a firearm, you are not the actual buyer, you have lied on a 4473 and you might be prosecuted on felony charges. The 4473 is clear on this.

Of course Fiddletown has additionally explained this to you numerous times, but you for some reason can't answer to it. http://www.calguns.net/calgunforum/showpost.php?p=8693237&postcount=132

What would be interesting would be if a LEO were to also have a FFL since then they could buy the firearm personally and not have to fill out a 4473. Then they could sell it, but it would have to go through their own book. Would you also consider that a straw purchase?You are still hung up on what a straw purchase is. What a straw purchase is means nothing in regards to these prosecutions. These people are being prosecuted for lying on a 4473. The government is probably going to prove through the evidence of bank records that the people buying firearms and putting they are the actual buyer of the handgun were not the actual buyers. It really is that simple.

So if a LEO who is a dealer buys a non-rostered handgun and does not complete a 4473, they cannot be prosecuted for lying on a 4473. No one is being prosecuted for making a straw purchase, they are being tried for lying on a 4473.

kemasa
06-04-2012, 10:19 AM
BTW, who do you claim that the LEOs were actually buying the firearms for? The FFL or someone else?

Connor P Price
06-04-2012, 10:20 AM
You are still hung up on what a straw purchase is. What a straw purchase is means nothing in regards to these prosecutions. These people are being prosecuted for lying on a 4473. The government is probably going to prove through the evidence of bank records that the people buying firearms and putting they are the actual buyer of the handgun were not the actual buyers. It really is that simple.

So if a LEO who is a dealer buys a non-rostered handgun and does not complete a 4473, they cannot be prosecuted for lying on a 4473. No one is being prosecuted for making a straw purchase, they are being tried for lying on a 4473.

The bold portion is why so many people have trouble understanding this issue I think. "Straw purchasing" is not the crime, lying on 4473 is. We most commonly think of a straw purchase as a way of avoiding having a gun being traceable to a particular person or as a way to obtain a firearm for somebody who may not legally be able to. In most cases those are probably the only circumstances in which the .gov bothers prosecuting people for lying on 4473 because that's what they are actually worried about. However there are certainly ways that one can be guilty of lying on the 4473 even if every transfer involved goes through an ffl.

tenpercentfirearms
06-04-2012, 10:25 AM
BTW, who do you claim that the LEOs were actually buying the firearms for? The FFL or someone else?

I make no claims. It is irrelevant unless being questioned by a Federal agent in which case one should not lie.

Someday the light bulb is going to go on in your head and you will understand these people are being tried for lying on the 4473. Not for committing a straw purchase. Not sure when that time will be, but someday you will figure it out.

dantodd
06-04-2012, 10:37 AM
BTW, who do you claim that the LEOs were actually buying the firearms for? The FFL or someone else?

You should really read the indictment.

kemasa
06-04-2012, 10:37 AM
I make no claims. It is irrelevant unless being questioned by a Federal agent in which case one should not lie.

Someday the light bulb is going to go on in your head and you will understand these people are being tried for lying on the 4473. Not for committing a straw purchase. Not sure when that time will be, but someday you will figure it out.

Actually, you are making claims. You are claiming that they lied on the 4473, that they were not the actual buyer instead of a buyer who then quickly became a seller and sold the firearm.

It is kind of funny since you are saying that they are going after them for lying on the 4473. What did they lie about? Being the actual buyer. If they are not the actual buyer, then it would be a straw purchase. But you say it is not for committing a straw purchase. So if it is not a straw purchase, it could not be about lying about being the actual buyer, so what did they lie about?

Perhaps your light bulb is solar powered and you are in the dark :-).

Connor P Price
06-04-2012, 10:44 AM
It is kind of funny since you are saying that they are going after them for lying on the 4473. What did they lie about? Being the actual buyer. If they are not the actual buyer, then it would be a straw purchase. But you say it is not for committing a straw purchase. So if it is not a straw purchase, it could not be about lying about being the actual buyer, so what did they lie about?

It's not for "committing a straw purchase" because that's not actually a crime. It's just a term that we use to describe a certain action. There is simply no crime called "straw purchase."

The crime that one would be tried for is lying on form 4473.

tenpercentfirearms
06-04-2012, 10:49 AM
It is kind of funny since you are saying that they are going after them for lying on the 4473. What did they lie about?

Read for yourself.

http://www.calguns.net/calgunforum/showpost.php?p=8687780&postcount=129

and

http://www.calguns.net/calgunforum/showpost.php?p=8687783&postcount=130

taperxz
06-04-2012, 1:19 PM
Gifts are specifically permissible. However; if your parents give it to you there is no need for a visit to an FFL, you just fill out an OpLaw form for handguns. if it's your sibling that gives you the weapon it has to go through an FFL.

I know this quote is from last night.

If you can't receive from a sibling, IS IT LEGAL to have a sibling to parent transfer and then parent to OTHER sibling transfer. YES circumventing the sibling to sibling transfer? Just want to know it this is expressly illegal.

dantodd
06-04-2012, 1:24 PM
I know this quote is from last night.

If you can't receive from a sibling, IS IT LEGAL to have a sibling to parent transfer and then parent to OTHER sibling transfer. YES circumventing the sibling to sibling transfer? Just want to know it this is expressly illegal.

I don't really know. I suppose if sibling A bought the weapon and then immediately transferred it to his/her parent and then back to sibling B there would be the potential that sibling A lied on the 4473.

taperxz
06-04-2012, 1:44 PM
I don't really know. I suppose if sibling A bought the weapon and then immediately transferred it to his/her parent and then back to sibling B there would be the potential that sibling A lied on the 4473.

Here's the thing though, there is no requirement to actually register the gun upon transfer from sibling to parent is there? Or then to parent to OTHER sibling. It would seem especially ceremonial with a long gun. Sibling hands gun to parent who hands to other sibling.

If this can be done, its kind of a silly law that siblings can't perform this, except that as they get older there may not be parents to complete this transfer.

dantodd
06-04-2012, 1:49 PM
Here's the thing though, there is no requirement to actually register the gun upon transfer from sibling to parent is there? Or then to parent to OTHER sibling. It would seem especially ceremonial with a long gun. Sibling hands gun to parent who hands to other sibling.

If this can be done, its kind of a silly law that siblings can't perform this, except that as they get older there may not be parents to complete this transfer.

It would seem, according to many of the things said on this thread and others, that if the gun was one the sibling had for a considerable time it would be ok. If the sibling bought it specifically to transfer it it might be problematic.

mrdd
06-04-2012, 2:06 PM
I know this quote is from last night.

If you can't receive from a sibling, IS IT LEGAL to have a sibling to parent transfer and then parent to OTHER sibling transfer. YES circumventing the sibling to sibling transfer? Just want to know it this is expressly illegal.

Illegal per the Penal Code:

27515. No person, corporation, or dealer shall sell, loan, or transfer a firearm to anyone whom the person, corporation, or dealer knows or has cause to believe is not the actual purchaser or transferee of the firearm, or to anyone who is not the one actually being loaned the firearm, if the person, corporation, or dealer has either of the following:

(a) Knowledge that the firearm is to be subsequently sold, loaned, or transferred to avoid the provisions of Section 27540 or 27545.

(b) Knowledge that the firearm is to be subsequently sold, loaned, or transferred to avoid the requirements of any exemption to the provisions of Section 27540 or 27545.

27545. Where neither party to the transaction holds a dealer’s license issued pursuant to Sections 26700 to 26915, inclusive, the parties to the transaction shall complete the sale, loan, or transfer of that firearm through a licensed firearms dealer pursuant to Chapter 5 (commencing with Section 28050).

27545 is the requirement to do a PPT.

ETA:

27875 is the exemption to 27545 which covers intra-familial transfers:

27875. Section 27545 does not apply to the transfer of a handgun, and commencing January 1, 2014, any firearm, by gift, bequest, intestate succession, or other means from one individual to another, if all of the following requirements are met:
(a) The transfer is infrequent, as defined in Section 16730.
(b) The transfer is between members of the same immediate family.
(c) Within 30 days of taking possession of the firearm, the person to whom it is transferred shall forward by prepaid mail, or deliver in person to the Department of Justice, a report that includes information concerning the individual taking possession of the firearm, how title was obtained and from whom, and a description of the firearm in question. The report forms that individuals complete pursuant to this section shall be provided to them by the Department of Justice.
(d) The person taking title to the firearm shall first obtain a handgun safety certificate, if the firearm is a handgun.
(e) The person receiving the firearm is 18 years of age or older.

taperxz
06-04-2012, 2:13 PM
Illegal per the Penal Code:



27545 is the requirement to do a PPT.

NO, because its legal to do a son/daughter to parent transfer without the use of an FFL. Its also legal to do a parent to son/daughter without the use of an FFL.

mrdd
06-04-2012, 2:19 PM
NO, because its legal to do a son/daughter to parent transfer without the use of an FFL. Its also legal to do a parent to son/daughter without the use of an FFL.

27515 specifically forbids any act which evades any exemption to doing a PPT.

taperxz
06-04-2012, 2:23 PM
Its not an evasion. Its a legal loophole. You would have to prove evasion, IE: prove how long the ownership lasted, document when it took place, what the actual intent was. More specifically for long guns in this case.

I'll wait for Wes or Librarian to chime in on handguns.

mrdd
06-04-2012, 2:23 PM
Also note that starting in 2014 paperless transfers of long guns (except for loans) will no longer be legal between family members.

mrdd
06-04-2012, 2:25 PM
Its not an evasion. Its a legal loophole. You would have to prove evasion, IE: prove how long the ownership lasted, document when it took place, what the actual intent was. More specifically for long guns in this case.

I'll wait for Wes or Librarian to chime in on handguns.

You asked whether it was legal. It is not legal. Proving it is another story.

taperxz
06-04-2012, 2:25 PM
Also note that starting in 2014 paperless transfers of long guns (except for loans) will no longer be legal between family members.

That remains to be seen. I don't think it will make it.

taperxz
06-04-2012, 2:28 PM
You asked whether it was legal. It is not legal. Proving it is another story.

You can't say if its legal or illegal! You would have to know the intent of what the family was doing first to call it illegal.

If a son gives a gun to a parent, and the parent holds it for a month and decides they don't want it and then gives it to another lets say daughter, how is this illegal?

mrdd
06-04-2012, 3:03 PM
I know this quote is from last night.

If you can't receive from a sibling, IS IT LEGAL to have a sibling to parent transfer and then parent to OTHER sibling transfer. YES circumventing the sibling to sibling transfer? Just want to know it this is expressly illegal.

You can't say if its legal or illegal! You would have to know the intent of what the family was doing first to call it illegal.

If a son gives a gun to a parent, and the parent holds it for a month and decides they don't want it and then gives it to another lets say daughter, how is this illegal?

That's not what you asked originally. You asked whether sib to sib transfers through a parent was legal without PPT. You indicated circumventing sib to sib transfer.

Perhaps I misunderstood you, but according to PC 27515 (b) it is not legal if there is intent to avoid the PPT requirement.

Librarian
06-04-2012, 3:08 PM
Demonstrating intent, if one is the transferor or transferee, and proving intent, if one were an investigator or prosecutor, is going to be difficult when analyzing intrafamilial transfers (and through-FFL transfers as this thread and a few other active threads are suggesting).

I think we can look at these transactions from three different approaches:
the letter of the law
the likelihood of prosecution
the enthusiasm for prosecuting
Sticking with the sibling to parent to other sibling transfer, all being within-California intrafamilial transfers, there are a couple of considerations -
* for long guns, (1) says the parent needs to actually be likely to keep the gun after the first transfer, but (2) is extremely low, since there are not yet any required records, and I would say (3) is also extremely low, even if the non-conforming nature of the transfer should somehow be revealed.

* for handguns, inside CA, PPT is actually cheaper ($35 compared to 2 x $19 for the pair of OPLAW forms). There may be reasons of geography that makes the intrafamilial route seem attractive.

When we get to off-Roster handguns, however, things get a tiny bit stickier.

A typical question is 'can an out of state child transfer an off-Roster handgun to a CA-parent, who then would use intrafamilial transfer to pass that handgun on to a CA-resident sibling of that out of state child?'; that is, can we get an off-Roster handgun into the state?

Procedurally, this can be made to work, with a gift from the out of state child, through a CA FFL, to the CA-parent. Intentionally, that transfer is supposed to actually be to the CA-parent; knowingly being just a link in a chain to move that gun somewhere else rolls us right into the 4473 question problem which is so vexing this week. Here I'd say (1) is still at risk, (2) is not high, but not negligible, and (3) remains quite low, absent some other criminal behavior.

This question is comparable to (but distinguishable from) the 'can LEO buy an off-Roster handgun, and later sell it to a non-LEO CA resident?' situation. Since folks have been indicted, clearly (1) has a probability of 1.0 (in the opinion of the prosecutors), (2) also has a probability of 1.0, and (3) is pretty high - but I don't have any idea why it should be so.

snobord99
06-04-2012, 3:21 PM
But if there is another 4473 on the subsequent transfer to the next owner doesn't that suggest that the initial buyer believed that they were, in fact, the actual buyer? If they believed somone else was actually the buyer why would they need to execute another 4473? While I agree completely that in the case of using another person's money you are not the "actual buyer" but to use your own money and then properly document any subsequent transfers seems the very definition of being the "actual buyer."

The law is not going to distinguish if you were paid the money before the purchase or merely promised to be given the money after the purchase. At the end of the day, you bought a firearm you otherwise wouldn't have to give to someone else (not as a gift).

hoffmang
06-04-2012, 5:44 PM
The law is not going to distinguish if you were paid the money before the purchase or merely promised to be given the money after the purchase. At the end of the day, you bought a firearm you otherwise wouldn't have to give to someone else (not as a gift).

I know exactly what you mean but there is one little problem with this interpretation. What exactly are you if you pay your own money and take possession of a firearm for more than 24 hours and then create a subsequent Dealers Record of Sale and an additional 4473 that requires someone to be a purchaser or transferee?

What is the legal term for a guy who paid for and possesses something with demonstrable Federal proof of the time period in which he possessed it and when he ceased possession? Owner? Buyer? Possessor?

Beyond a reasonable doubt is a pretty high standard.

-Gene

snobord99
06-04-2012, 6:07 PM
I know exactly what you mean but there is one little problem with this interpretation. What exactly are you if you pay your own money and take possession of a firearm for more than 24 hours and then create a subsequent Dealers Record of Sale and an additional 4473 that requires someone to be a purchaser or transferee?

What is the legal term for a guy who paid for and possesses something with demonstrable Federal proof of the time period in which he possessed it and when he ceased possession? Owner? Buyer? Possessor?

Beyond a reasonable doubt is a pretty high standard.

-Gene

I get where you're coming from. I'm not saying I think it would be easy to prove, if provable at all. I'm just talking about it as if it was on a motion for summary judgment (let's just pretend it exists in the criminal context for a second).

Let's assume the prosecution has proved all the facts it wants to prove, is there a crime or would it be dismissed at prelim? In your scenario, IMO, the outcome would be very different between a guy who bought it to sell and found a buyer 24 hour later vs a guy who bought it because a buyer approached him 24 hour ago. For the former, I'd call him a seller; for the latter, I'd call him a straw purchaser.

hoffmang
06-04-2012, 7:24 PM
In your scenario, IMO, the outcome would be very different between a guy who bought it to sell and found a buyer 24 hour later vs a guy who bought it because a buyer approached him 24 hour ago. For the former, I'd call him a seller; for the latter, I'd call him a straw purchaser.

You just called him the straw purchaser. It only says purchaser on the 4473?

-Gene

fiddletown
06-04-2012, 7:35 PM
...What is the legal term for a guy who paid for and possesses something with demonstrable Federal proof of the time period in which he possessed it and when he ceased possession? Owner? Buyer? Possessor?

Beyond a reasonable doubt is a pretty high standard....True. But we're really talking on three levels.

[1] What are the elements of a violation of 18 USC 922(a)(6) and/or 18 USC 924(a)(1)(A), specifically making a false statement on a 4473 regarding who the actual purchaser is.

[2] What facts might show the violation.

[3] What evidence is needed/available to prove the violation.

Our focus has been primarily at level [1] and [2]. The practical matter of finding sufficient evidence to prove a violation is another, and case specific, matter.

So for one thing, the longer X holds onto the gun before transferring it to Y, the harder it would be to show that he bought the gun as the agent of Y. But then again, if somehow a letter shows up from Y to X asking X to buy the gun for Y and hold onto it for 3 months until Y gets back from Europe, the significance of the delay diminishes.

There's a difference between knowingly being legal and knowingly not being legal but betting no one finds out and can prove it.

hoffmang
06-04-2012, 8:03 PM
There's a difference between knowingly being legal and knowingly not being legal but betting no one finds out and can prove it.

I think we're only talking about 924(a)(1)(A) as the materiality of the other statute would be destroyed by a second 4473...

I also think there is a third category which largely mirrors the qualified immunity analysis for police. Though there may certainly be circumstances where 924(a)(1)(A) is clearly violated even when there is a second 4473, most of the usual courses of events can't possible implicate the congressional purpose behind 924(a)(1)(A). Recall that at least intermediate scrutiny does apply to 924(a)(1)(A) where the last purchaser is otherwise law abiding.

-Gene

fiddletown
06-04-2012, 8:46 PM
I think we're only talking about 924(a)(1)(A) as the materiality of the other statute would be destroyed by a second 4473...Well it looks like in the 5th Circuit (U.S. v. Polk, 118 F.3d 286 (C.A.5 (Tex.), 1997)), apparently not in the 11th Circuit (U.S. v. Ortiz, 318 F.3d 1030 (11th Cir., 2003) and United States v. Frazier, 605 F.3d 1271 (11th Cir., 2010)), and maybe not in the 7th Circuit or 1st Circuit (U.S. v. Queen, 408 F.3d 337 (Fed. 7th Cir., 2005) and United States v. Crandall, 453 F.2d 1216 (1st Cir., 1972))

...I also think there is a third category which largely mirrors the qualified immunity analysis for police. Though there may certainly be circumstances where 924(a)(1)(A) is clearly violated even when there is a second 4473, most of the usual courses of events can't possible implicate the congressional purpose behind 924(a)(1)(A). Recall that at least intermediate scrutiny does apply to 924(a)(1)(A) where the last purchaser is otherwise law abiding...Of course if you're under indictment and the U. S. Attorney has some decent evidence, that's the argument you'd have to make. But it is somewhat uncharted territory, and if you're making that argument, you've already spent a bunch of money in lawyer fees.

But in bringing this up you've given me cause to talk a bit about the two roles of the lawyer: the lawyer as SAR and the lawyer as guide.

[1] The lawyer as SAR

When the client calls the lawyer up and says, "I've just been arrested.", he's already tried taking his shortcut through the swamp; and now he's lost and stuck. The lawyer will need to try whatever he can muster to get his client out, or at least into the best possible position. If the client is too deep in the morass, the lawyer will need to try novel arguments that might or might not be effective.

[2] The lawyer as guide

But if the client comes to the lawyer before he starts his trip, the lawyer has a chance to help get the client where he wants to be with minimal risk, or at least a level of risk known and satisfactory to the client. This purpose is usually best service by sticking to solid ground and well marked paths. It generally makes sense to strike out through uncharted territory only when (1) the risk is understood; and (2) the possible payoff is great.

I'm not sure what sort of a payoff would make attractive betting five years in the federal slammer that a court would toss 924(a)(1)(A) in my case.

dantodd
06-04-2012, 9:53 PM
What is the legal term for a guy who paid for and possesses something with demonstrable Federal proof of the time period in which he possessed it and when he ceased possession? Owner? Buyer? Possessor?

thanks for putting it better than I could.

To my non-lawyer mind an "agency relationship" as Fiddletown keeps pointing out reminds me of a real estate agent or leasing agent who certainly do not purchase the product in question and then flip it. They bring a buyer and seller together (sometimes anonymously) and take a fee for their services. If the deal falls through for whatever reason the agent doesnt end up owning the item or possessing it, he walks away and may or may not lose his fee. Someone who purchases, possesses and then sells a property is a speculator, flipper, etc.

Likewise, when a gun dealer special orders a gun for a customer the FFL does take possession of the gun and is liable for the cost of the deal falls through.

If the Transfers in question were paid for with the 4483 signer's own money and he took physical possession of the gun he was, for whatever length of time the legal owner and possessor of that firearm. Much like an FFL is the legal owner and possessor of a gun entered into his bound book. It seems that the only potential claim against someone in this situation is dealing without a license. Then we can discuss the exact limits the Feds and CA pale on ones ability to at as a dealer before needing a license. I believe the federal definition is related to an attempt to make a profit and CA adds a 5 handgun/year limit. If the government cannot show the sellers violated these laws it seems there is no violation.

snobord99
06-04-2012, 10:50 PM
You just called him the straw purchaser. It only says purchaser on the 4473?

-Gene

When I say straw purchaser, I just mean he's broken the law by buying the firearm for someone else. If we want to go strictly by statute/legalese, he "knowingly...[made a] false or fictitious...written statement...intended or likely
to deceive...[the] dealer...with respect to any fact material to the lawfulness of the sale or other disposition of such firearm" and broke the law by acting as what is commonly referred to as a "straw purchaser."

snobord99
06-04-2012, 10:52 PM
I think we're only talking about 924(a)(1)(A) as the materiality of the other statute would be destroyed by a second 4473...

I also think there is a third category which largely mirrors the qualified immunity analysis for police. Though there may certainly be circumstances where 924(a)(1)(A) is clearly violated even when there is a second 4473, most of the usual courses of events can't possible implicate the congressional purpose behind 924(a)(1)(A). Recall that at least intermediate scrutiny does apply to 924(a)(1)(A) where the last purchaser is otherwise law abiding.

-Gene

I'm just going to sign on to everything Fiddle said in post #92.

I certainly don't agree that the materiality of 922(a)(6) is destroyed by a second 4473, except maybe in the 5th Cir.

fiddletown
06-05-2012, 10:33 AM
...To my non-lawyer mind an "agency relationship" as Fiddletown keeps pointing out reminds me of a real estate agent or leasing agent who certainly do not purchase the product in question and then flip it. They bring a buyer and seller together (sometimes anonymously) and take a fee for their services. ...That's certainly one type of agency relationship that is within ordinary experience.

But in law, an agency relationship is merely one in which one person (the agent) undertakes to act on behalf of, as proxy for, another person (the principal), subject to the direction and control of the principal.

It's the difference between (I know that you wouldn't do either, but let's pretend) --

[1] I say to you, "I like that gun but can't get to the shop right now. Will you buy it for me and hold it until I get back to town when we'll do the transfer to me, and I'll pay you back (there's the direction and control element and also a definition of the scope of the agency authority)? You agree by either saying "Yes" or just by doing it.

and

[2] You see a gun and say to yourself, "Fiddletown said he liked that gun. I bet if I bought it, fiddletown will buy it from me."

Example [1] describes an agency relationship. Example [2] describes buying a gun to "flip" it and taking the risk that you won't be able to sell it.

Now in example [1], you might be unwise to advance the funds. But there is nothing about an agency arrangement that would preclude the agent from advancing funding. But your advancing the funds as agent also makes it harder to prove the underlying agency agreement and thus might help keep you off the ATF hook. On the other hand, sometimes it's all been well documented on the Internet: The OP, "Hey guys. My buddy and I are going [to do this]. It's not illegal is it?"

And here are some examples of transaction which might look like a straw purchase, but would not be:


If X takes his money, buys the gun and gives the gun to Y as a gift, free and clear without reimbursement of any kind, X is the actual purchaser; and it is not a straw purchase.


If X takes his money and buys the gun honestly intending to keep it for himself and later sells it to Y, X is the actual purchaser; and it is not a straw purchase.


If X takes his money and buys the gun intending to take it to the gun show next week to see if he might be able to sell it to someone at a profit, X is the actual purchaser; and it's not a straw purchase. He may, however have other problems if he manages to sell the gun at the gun show, and the transfer there isn't handled properly. He might also have problems if he does this sort of thing too frequently, and the ATF decides he's acting as a dealer without the necessary license.



...If the Transfers in question were paid for with the 4483 signer's own money and he took physical possession of the gun he was, for whatever length of time the legal owner and possessor of that firearm. ...This is how I analyzed that sort of thing in another post (http://www.calguns.net/calgunforum/showpost.php?p=8698063&postcount=152) that issue:...Under established principles of agency law, the way the transaction really breaks down is --


X, the straw purchaser buying the gun on behalf of Y, as Y's agent, takes physical possession of the gun when he picks it up from the FFL.


But because he has acting as the agent of Y, Y has what is known as equitable title (or ownership), i. e., the right to have it physically transferred to him by X.


X, until he transfers it to Y, has physical possession, but in trust for Y.


And as previously discussed, because X was buying the gun by prior arrangement on behalf of Y, as Y's agent and proxy, X is not the actual purchaser and therefore committed a crime (violating 18 USC 922(a)(6) and/or 18 USC 924(a)(1)(A)) by falsely claiming on the 4473 to be the actual purchaser.

dantodd
06-05-2012, 1:04 PM
[1] I say to you, "I like that gun but can't get to the shop right now. Will you buy it for me and hold it until I get back to town when we'll do the transfer to me, and I'll pay you back (there's the direction and control element and also a definition of the scope of the agency authority)? You agree by either saying "Yes" or just by doing it.



So, if instead, you say "hey, I can't get down to the store and I saw online that they have one X gun in stock, if you buy it before someone else does, I'll buy it from you after you pick it up."

Is that a non-agency and thus legal purchase because you committed to buy it from me rather than "pay [me] back?"

fiddletown
06-05-2012, 3:53 PM
So, if instead, you say "hey, I can't get down to the store and I saw online that they have one X gun in stock, if you buy it before someone else does, I'll buy it from you after you pick it up."

Is that a non-agency and thus legal purchase because you committed to buy it from me rather than "pay [me] back?"It may be a distinction without a difference. If you'd like to try it out with a judge in real life, be my guest.

Seriously, arguments like that tend to be high risk and fairly unpredictable. Some judges will see it as sophistry, too cute and lacking substance; and they will generally respond negatively. Occasionally a judge will embrace that type of argument to avoid applying a law he just doesn't like.

As I said before, if you're already under indictment, you need to make do with what you have. But if you can avoid putting yourself in the position of perhaps having to make that type of argument, you'll be much better off.

dantodd
06-05-2012, 5:09 PM
It may be a distinction without a difference. If you'd like to try it out with a judge in real life, be my guest.

Seriously, arguments like that tend to be high risk and fairly unpredictable. Some judges will see it as sophistry, too cute and lacking substance; and they will generally respond negatively. Occasionally a judge will embrace that type of argument to avoid applying a law he just doesn't like.

As I said before, if you're already under indictment, you need to make do with what you have. But if you can avoid putting yourself in the position of perhaps having to make that type of argument, you'll be much better off.

Funny, a distinction without a difference is exactly how I was going to describe it in my post.

So, if the edge lies between those two why would the judge choose one assertion of facts over the other? In other words, why is the presumption with an agency model rather than a pre-order sale? Isn't the presumption supposed to be I. Favor of the defendant?

curtisfong
06-05-2012, 5:22 PM
Isn't the presumption supposed to be I. Favor of the defendant?

When it comes to gun law in CA, everything seems to be an affirmative defense. IOW, you have to prove you didn't do anything illegal.

And that doesn't come cheap. A PD certainly can't do that.

Mike's Custom
06-05-2012, 5:37 PM
If you are buying a gun INTENDING to give/sell (?) to someone else it is a straw purchase. If a LEO buys a OFF ROSTER firearm with the intention of selling to someone that would otherwise be prohibited from buying a off roster firearm then that is a straw purchase. If anyone that is NOT a FFL purchases a firearm with the intention of RESELLING it then they MUST have a FFL. Buying with the intention of reselling makes you a firearms dealer.

As a FFL. if someone calls or comes in wanting a non rosted firearm and I inform them that they can not purchase it and they tell me that they will have their buddy that is a LEO buy it and then transfer it to them I will not handle that sale. No licensed dealer should or they could get into trouble. ONce they inform me of their intention I am done.

According to the BATFE, buying one gun to resell or a 100 to resell, you need a FFL. In the case of a gift, a parent or someone can buy a firearm because in CA you have to do a PPT through a FFL but the intention is a gift and not a intention of getting around a law that prohibits you from buying it yourself. This makes it a straw purchase. I am really surprised that this loophole hasn't been closed up by the DOJ yet. Some counties do not let their LEO purchase off roster firearms or even let CCW holder have firearms on their permits that are not on the roster.

fiddletown
06-05-2012, 6:03 PM
...So, if the edge lies between those two why would the judge choose one assertion of facts over the other? In other words, why is the presumption with an agency model rather than a pre-order sale? Isn't the presumption supposed to be I. Favor of the defendant?Dan, it would depend on the totality of the circumstances and the arguments presented on both sides. There's just no way to handicap it in a vacuum. Which is a big reason one wants to avoid the situation.