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thegratenate
02-11-2008, 11:02 AM
I just want to make double sure of something.

My dad, who lives in a free state can sell or give me a handgun that is not on the CA "safe list" and I can file the forms to put it in my name.

No threads on the barrel or forward grip to make it "evil".

Is there anything I need to worry about? Or should I inform my dad that I can only borrow his gun and have to give it back to him in a few weeks?

Thanks

bwiese
02-11-2008, 11:31 AM
Since it's crossing state lines/moving between residents of 2 states, the gun has to go thru a CA FFL to keep the *FEDS* happy.

Otherwise, it indeed can be non-Rostered handgun. Just no threaded bbls on semiauto pistols. Also, it can't chamber shotgun shells (i.e., can't bring in a Taurus Judge), nor can it have an unrifled bbl.

thegratenate
02-11-2008, 11:55 AM
He is coming to visit in CA, he has a home here, but it is not his full time residence.

hawk1
02-11-2008, 11:58 AM
You will need a Handgun Safety Certificate as well

http://ag.ca.gov/firearms/hscinfo.php

thegratenate
02-11-2008, 12:01 PM
My card is still good for a few more months.

bbc26
02-11-2008, 2:16 PM
What if it's an uncle. Can the intra-familal transfer still be done?

Toolbox X
02-11-2008, 2:39 PM
If he does not presently own the handgun, make sure when he buys it that he specifies that it is going to be a gift for his son. Otherwise it will be a straw purchase. I ran into that exact situation myself.

thegratenate
02-11-2008, 2:48 PM
He bought it some time ago.


But on that subject,
Did your family member buy the gun out of state?

Quiet
02-11-2008, 3:42 PM
What if it's an uncle. Can the intra-familal transfer still be done?
No.
Needs to be parent or grandparent to qualify.

bbc26
02-11-2008, 10:36 PM
That sucks.

pepsi2451
02-11-2008, 10:50 PM
He is coming to visit in CA, he has a home here, but it is not his full time residence.

If he is not a CA resident it has to go through an FFL. It should be legal to transfer a non rostered handgun but some FFLs might not know that.

What if it's an uncle. Can the intra-familal transfer still be done?

No, but if you have a grandparent living in CA he may be able to transfer it to them (through an FFL) then they could transfer it to you (fill out form and send $19 to CA DOJ).


If he does not presently own the handgun, make sure when he buys it that he specifies that it is going to be a gift for his son. Otherwise it will be a straw purchase. I ran into that exact situation myself.

Can you explain how this would be a straw purchase if he is legally transferring it to a non prohibited person and not making a profit?

Toolbox X
02-12-2008, 10:32 AM
I will explain what a Straw Purchase is.

The gun purchaser fills out a form 4473 when he does the DROS. Question 12a is the Straw Purchase question:

12a. Are you the actual buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring
the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to
you.

Let's say you are in a gun shop and you stumble upon Gun X for a great price. Your best friend has been looking for a Gun X for years, but hasn't been able to find one. The shop won't hold Gun X and your buddy is out of town. You decide to purchase Gun X, and when your friend gets back you can PPT it to him.

Congratulations, you are now a felon, guilty of a straw purchase.

A straw purchase used to be basically defined as someone purchasing a gun for someone who could not legally own or purchase a gun. Such as your drug dealer or friendly neighborhood felon gang member.

For a long time the ATF recognized that as long as the firearm was legally transferred to each person, and each person was legally able to own the firearm, it was not a straw purchase. Not anymore.

I forget exactly when this policy changed, but I think the ATF woman I spoke with said it was in the mid 1990's. The way they did this is by re-examining question 12a. The way 12a is written, you are lying if you are buying that Gun X for your friend.

So now if you buy a firearm for someone else, period, it is a straw purchase.

However, the exception to this is if you are buying the firearm as a gift for someone. If you buy Gun X as a gift for you friend then it is no longer a straw purchase.

I spent over an hour on the phone with the ATF about this.

The lesson I learned is you MUST use the word GIFT throughout the entire transaction, otherwise you and the dealer who does the transfer are both guilty of a felony straw purchase.

It is important to note that this applies directly to Intra-family purchases and transfers as well. If you have a father/son out of state and you want them to buy you that shiny new HK45, they MUST buy it for you as a GIFT.

-Grant

(Sheesh. Do I get the Bill Weise boy scout patch for this post?)

ohsmily
02-12-2008, 10:58 AM
-Grant

(Sheesh. Do I get the Bill Weise boy scout patch for this post?)

No, because you don't provide any support for your assertion. You simply state that you forget when the policy changed and got this information from an ATF representative over the phone. We know how reliable information obtained from representatives over the phone can be.

If a gun is going through legal channels whenever it changes hands, it isn't a straw purchase. Granted, I am not citing to anything other than the question: "are you the actual buyer" (answer yes, but I might give or sell this LEGALLY to someone else at a later date). But, you didn't cite to anything either. I need more.

pepsi2451
02-12-2008, 12:51 PM
I will explain what a Straw Purchase is.

The gun purchaser fills out a form 4473 when he does the DROS. Question 12a is the Straw Purchase question:

12a. Are you the actual buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring
the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to
you.

Let's say you are in a gun shop and you stumble upon Gun X for a great price. Your best friend has been looking for a Gun X for years, but hasn't been able to find one. The shop won't hold Gun X and your buddy is out of town. You decide to purchase Gun X, and when your friend gets back you can PPT it to him.

Congratulations, you are now a felon, guilty of a straw purchase.

A straw purchase used to be basically defined as someone purchasing a gun for someone who could not legally own or purchase a gun. Such as your drug dealer or friendly neighborhood felon gang member.

For a long time the ATF recognized that as long as the firearm was legally transferred to each person, and each person was legally able to own the firearm, it was not a straw purchase. Not anymore.

I forget exactly when this policy changed, but I think the ATF woman I spoke with said it was in the mid 1990's. The way they did this is by re-examining question 12a. The way 12a is written, you are lying if you are buying that Gun X for your friend.

So now if you buy a firearm for someone else, period, it is a straw purchase.

However, the exception to this is if you are buying the firearm as a gift for someone. If you buy Gun X as a gift for you friend then it is no longer a straw purchase.

I spent over an hour on the phone with the ATF about this.

The lesson I learned is you MUST use the word GIFT throughout the entire transaction, otherwise you and the dealer who does the transfer are both guilty of a felony straw purchase.

It is important to note that this applies directly to Intra-family purchases and transfers as well. If you have a father/son out of state and you want them to buy you that shiny new HK45, they MUST buy it for you as a GIFT.

-Grant

(Sheesh. Do I get the Bill Weise boy scout patch for this post?)

That is the way you and the person you talked to on the phone interpret it. I always thought the intent behind that was to keep people from buying guns then transferring them without an FFL. Like ohsmily said information you obtain over the phone isn't always accurate.

ETA:

According to the AFT website a straw purchase is:
The acquisition of a firearm(s) from a federally licensed firearms dealer by an individual (the “straw” purchaser) for the purpose of concealing the identity of the true intended receiver of the firearm(s).
If you transfer it to someone legally you are not trying to conceal their identity.

Toolbox X
02-12-2008, 1:05 PM
If a gun is going through legal channels whenever it changes hands, it isn't a straw purchase. That is exactly what I assumed as well, and it is completely wrong.

This is on the back of the form 4473:

For purposes of this form, you are the actual buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (for example, redeeming the firearm from pawn/retrieving it from consignment). You are also the actual buyer if you are acquiring the firearm as a legitimate gift for a third party. ACTUAL BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT the actual buyer of the firearm and must answer “no “ to question 12a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual buyer of the firearm and should answer “yes” to question 12a.
This is above where you sign your name:
I certify that the above answers are true and correct. I understand that answering “yes” to question 12a when I am not the actual buyer
of the firearm is a crime punishable as a felony.

http://www.titleii.com/pdf/4473.pdf

The reason this policy sucks is because it is based completely on intent, which creates a HUGE grey area that the ATF gets complete control over.

For example, take that guy in the Marketplace who is selling that HK45 for $2000. If he truly bought that HK45 in order to try it out as a replacement for his duty weapon, decided he didn't like it and put it up for sale, then he 100% legal. However, if he really bought it with the intention of reselling it in CA because it is off list and he can sell it for twice what he paid for it, that is a straw purchase and he is guilty of a felony because he lied on 12a of the form 4473.

In both cases the same action was taken. A guy bought a pistol and is now trying to sell it. But depending on his intent, what he is doing is either 100% legal, or it is a felony.

(I'm just using this case as an example. I'm sure the guy's intent was legitimate.)

You are 100% correct to point out that I only talked to one ATF person, and we all know how well we can rely on that kind of info. The woman I talked to had to go check with different people numerous times to give me the correct answers to my questions. Ultimately she is correct, as proven by the form 4473 itself.

It's totally retarded, but it's the law.

-Grant

Toolbox X
02-12-2008, 1:19 PM
According to the AFT website a straw purchase is:

The acquisition of a firearm(s) from a federally licensed firearms dealer by an individual (the “straw” purchaser) for the purpose of concealing the identity of the true intended receiver of the firearm(s).

If you transfer it to someone legally you are not trying to conceal their identity.

That is exactly what I assumed as well. That is the old ATF policy/definition. The new one is printed on the back of the Form 4473.

It is so evil of them to list that definition on their website still.

Another possibility exists. I might be using the term "straw purchase" incorrectly. I was having someone out of state who was moving here buy some AR pistol recievers. The ATF said it was a straw purchase, but they may have got their terminology wrong. Maybe it should be called a "12a Violation", instead of a straw purchase.

-Grant

hawk1
02-12-2008, 1:38 PM
I have to disagree with you (or the lady you spoke with) on this. If I purchased a firearm with the intent to sell it later for a profit, that is not a straw purchase. The later sale, with profit may I add :D, will go through a FFL either by PPT or direct FFL to FFL paperwork with the new buyer and would be totally legal. It would be a straw purchase if I purchased the firearm for someone else. That is, buying for a person so that person would not have to go through the process themselves. Thus concealing their identity and ownership.
I'm not saying she didn't tell what you passed on to us. I am saying she is wrong in her analysis of section 12(a).

ohsmily
02-12-2008, 2:03 PM
That is exactly what I assumed as well, and it is completely wrong.

This is on the back of the form 4473:

For purposes of this form, you are the actual buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (for example, redeeming the firearm from pawn/retrieving it from consignment). You are also the actual buyer if you are acquiring the firearm as a legitimate gift for a third party. ACTUAL BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT the actual buyer of the firearm and must answer “no “ to question 12a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual buyer of the firearm and should answer “yes” to question 12a.
This is above where you sign your name:
I certify that the above answers are true and correct. I understand that answering “yes” to question 12a when I am not the actual buyer
of the firearm is a crime punishable as a felony.

http://www.titleii.com/pdf/4473.pdf


It's totally retarded, but it's the law.

-Grant

The example on the 4473 does not preclude the example given earlier and doesn't support your argument (it doesn't detract from it either...it has no bearing). The Mr. Smith and Mr. Jones example does not contemplate that Mr. Jones will then legally transfer the firearm to Mr. Smith. The example assumes that Mr. Jones will simply hand the gun to Mr. Smith after Mr. Jones receives the money from Smith.

Toolbox X
02-12-2008, 2:35 PM
I have to disagree with you (or the lady you spoke with) on this. If I purchased a firearm with the intent to sell it later for a profit, that is not a straw purchase. The later sale, with profit may I add :D, will go through a FFL either by PPT or direct FFL to FFL paperwork with the new buyer and would be totally legal. It would be a straw purchase if I purchased the firearm for someone else. That is, buying for a person so that person would not have to go through the process themselves. Thus concealing their identity and ownership.
I'm not saying she didn't tell what you passed on to us. I am saying she is wrong in her analysis of section 12(a).

I understand exactly what you are saying and you are being 100% logical. You think that because all of the transfers are going through FFL's and everything is legal, it is therefore legal. But the fact that everything is being done legally has nothing to do with it. That is exactly why this is so stupid.

Question 12a is it's own little monster, completely independent of the legal transfer process. If your answer to 12a is a lie, you commit a felony. Period. Don't take my word for it. Read the form 4473. (http://www.titleii.com/pdf/4473.pdf)

12a creates a huge gray area. People lie when they answer 12a all the time, and they get away with it. It's really hard to prove intent, and it's ultra-rare that the ATF even cares. In my Gun X scenario, you could buy Gun X for your friend, and PPT it to him later, get away with it and no one would ever care. People do it all the time.

But if you ever get yourself into a situation when someone like a FFL is asking what your intent is, your better understand exactly how 12a works because if you don't you will likely find your FFL unwilling to do the xfer, or worst case could have felony charges brought against you by the ATF.

Again, I understand what you are saying. This gray area can be very confusing. Per your example, you can buy a bunch of guns as an investment, and later sell them for profit, but when you buy them you are buying them for yourself, so you are telling the truth when you answer 12a. You most likely kept the guns for a while, which further proves your intent of buying them for yourself, and supports your "yes" answer of 12a.

If you were to buy that same bunch of guns and the same day turn around and sell them for profit, the ATF might look closely at if you were doing business as a dealer without having your FFL, or if your real intent was to just turn around and sell them for profit. In both cases you did all the transfers legally through FFL's, but you lied when you answered 12a so your purchases were illegal and you could be charged.

Call ATF and ask them about what you are suggesting. Here is the list of their phone numbers. (http://www.atf.treas.gov/contact/field.htm)

Ask them if you can buy a gun for someone else, so long as you legally transfer it to them through a FFL.

Hopefully you will prove me wrong.

-Grant

Toolbox X
02-12-2008, 2:50 PM
The example on the 4473 does not preclude the example given earlier and doesn't support your argument (it doesn't detract from it either...it has no bearing). The Mr. Smith and Mr. Jones example does not contemplate that Mr. Jones will then legally transfer the firearm to Mr. Smith. The example assumes that Mr. Jones will simply hand the gun to Mr. Smith after Mr. Jones receives the money from Smith.

Wrong.

The Mr. Smith and Mr. Jones example assumes no such thing. They never get to the part where Mr. Smith gives or transfers the gun to Mr. Jones because the law was already broken. The make it confusing by adding that Mr. Jones gives Mr. Smith the money, but that has no bearing.

When Mr. Smith buys the gun for Mr. Jones he must answer question 12a on the form 4473. If he says YES he just lied and committed a felony. If he says NO the FFL will not transfer the firearm to Mr. Smith. Mr. Smith's intent to later legally transfer the firearm to Mr. Jones has no bearing on 12a.

I argued exactly what you are saying with the ATF for more than an hour because that is exactly what I was doing. My wife's father was buying a firearm with the intent of later legally transferring it to me through an FFL. Unfortunately the FFL wondered why I was taking such a role in helping my wife's father buy the firearms and his intent regarding 12a came into question. That's when the ATF got involved and I learned all about question 12a.

hawk1
02-12-2008, 3:10 PM
Well, until the day they put us in jail for "intent" or "thinking" about what you may or may not do in the future, I still say she's wrong.

As for your statement to,

Ask them if you can buy a gun for someone else, so long as you legally transfer it to them through a FFL.

You'd be asking for trouble on that one. You cannot "buy" a firearm (gifts aside) for someone else. We all agree thats a true statement.
How about asking them "if I buy a firearm and then decide to sell it to someone else at a future date (one day, two weeks, three months, etc.), through an FFL is that legal. I bet they'll say yes...

Toolbox X
02-12-2008, 3:36 PM
How about asking them "if I buy a firearm and then decide to sell it to someone else at a future date (one day, two weeks, three months, etc.), through an FFL is that legal. I bet they'll say yes...

As long as when you buy it, you have no plans to sell it to the person, you are totally legal. You can even sell it the same day. Say you bought a Beretta 92FS and DROS'd it. Then you did some research and you decided you made a mistake, you really want a 1911. Your friend offers to buy the Beretta from you, so the day your 10 days is up you PPT the 92FS to your friend. That is totally legal. You just can't have bought the 92FS with the intent of selling it to your friend.

I believe the reasoning behind 12a is the ATF does not want non-FFL's operating gun businesses, even if they are small. All of the laws seem to force citizens to buy their own guns, and discourage citizens from acting as dealers.

Personally I think the solution is to create some kind of official Kitchen Table FFL class for people who are more than casual gun purchasers. They could limit the class to a certain number of transfers per year, or something.

-Grant

pepsi2451
02-12-2008, 7:01 PM
You have made some very good points. I will admit I was wrong. While the ATF couldn't prove your intent, if someone was to admit they bought it with the intent of transferring it to someone else, I think it would indeed be illegal.

bwiese
02-12-2008, 8:25 PM
I don't remember all the details, there was a case awhile back in Michigan where a dude bought a gun for another dude.

Both parties (and maybe the FFL) were charged with straw purchase.

The case didn't hold even at appeal because the 2nd dude was not a prohibited person, and apparently just didn't wanna be on a list.

I am unsure if this was before any rewrite of the questions on the 4473 or any ATF regulatory changes, etc. however.

Perhaps ohsmily can dig that up.

Also I believe "flipping" the gun via PPT some time after the original sale, is not the same as "buying on behalf" esp if the original purchaser used his own funds.

ohsmily
02-12-2008, 8:34 PM
I don't remember all the details, there was a case awhile back in Michigan where a dude bought a gun for another dude.

Both parties (and maybe the FFL) were charged with straw purchase.

The case didn't hold even at appeal because the 2nd dude was not a prohibited person, and apparently just didn't wanna be on a list.

I am unsure if this was before any rewrite of the questions on the 4473 or any ATF regulatory changes, etc. however.

Perhaps ohsmily can dig that up.

Also I believe "flipping" the gun via PPT some time after the original sale, is not the same as "buying on behalf" esp if the original purchaser used his own funds.

I will spend some time tomorrow researching it....This week (and next week) are a bad week to be pissing time away at work :p Got a big deadline on the 21st. Although, if I cut back my CalGuns time, I will have PLENTY of time to poke around on Lexis.

thegratenate
02-12-2008, 8:41 PM
The OP asked about a transfer that had nothing to do with a flip.

My dad has owned the gun for a while, even told others that it wasn't for sale. It is now being offered as a gift, upon confirmation that said gift would be legal.

If the one legible stamp on the receiver is trustworthy to go by it puts the manufacture of said gun at 1949.

Does that change anything?

This may end up being returned on the grounds of "to much of a PITA"

Toolbox X
02-12-2008, 9:03 PM
You are totally in the clear. Your dad can gift you that pistol no problem.