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Thread: STRAW BUY

  1. #1
    Regular Member simmonsjoe's Avatar
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    Does it constitute a crime to purchase a weapon for someone who CAN LAWFULLY OWN a firearm?

    I'm asking in relation to purchasing a firearm as a gift.

    I'm asking those of you who can post the law or caselaw or relevant materials.

    Obviously its not legal to purchase a gun for someone who CAN'T own I firearm so we don't need to discuss it.
    illegal ≠ immoral legal ≠ moral
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  2. #2
    Regular Member TFred's Avatar
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    simmonsjoe wrote:
    Does it constitute a crime to purchase a weapon for someone who CAN LAWFULLY OWN a firearm?

    I'm asking in relation to purchasing a firearm as a gift.

    I'm asking those of you who can post the law or caselaw or relevant materials.

    Obviously its not legal to purchase a gun for someone who CAN'T own I firearm so we don't need to discuss it.
    This question came up for me recently when I set up a FTF purchase for my father, who does not live in the immediate vicinity.

    The question I was dealing with was did my dad have to be physically present at the FTF exchange (as this presented somewhat difficult logistical considerations).

    I studied the rules pretty carefully and the non-lawyerly conclusion that I arrived at was that even though my father is a qualified person, the fact that I would be buying the gun with the foreknowledge that it was going to be quickly sold to someone else would be a technical violation of the law, as I read it. While I doubt the law intended for this particular pair of transactions to be prohibited as a criminal act, the letter did seem to prohibit it.

    Again, IANAL, and that was my own interpretation, which is what I have to live with.

    During that process, I did run across several references to "true gifts", for which it does seem to be OK to purchase for. But that means what it says, a true gift, with no exchange of money or other goods for the gun. Chance of getting caught is slim to none, especially if you stick to cash, but if you're trying to follow the rules, that's what I concluded.

    TFred


  3. #3
    Regular Member TFred's Avatar
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    By the way, the reason I assume that the intent of the law was not to prohibit me buying a gun FTF for my father who is just not present is the definition of "Straw Purchase", which has an implicit element of trying to circumvent the denial of a prohibited person.

    My father is not a prohibited person, but as I read through the actual "can dos" and "can't dos", the law did not provide for what I wanted to do.

    You'd never get that through the General Assembly, but it would be helpful to add provisions for such transactions where all parties are certain of eligibility.

    TFred

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    I had the same question with regard to purchasing a handgun for my brother who is not prohibited from owning a handgun but is prohibited from purchasing a handgun from a FFL (he is under 21). I never felt like I had a clear answer, but decided to play it safe and did not follow through with the transaction.

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    First off...the obligitory IANAL

    My take on it would be that buying a firearm as a gift for someone legally entitled to own a firearm, is an entirely different set of circumstances than buying a firearm for someone, as a way to circumvent the law, who can't legally purchase a firearm. My first gun was bought for me by my wife, the FFL was her best friend, I wasn't present, the FFL knew it wasn't for her, that it was for me and it was given as a gift to me for Father's Day. I would imagine that if the FFL thought there was anything illegal about it, she wouldn't have made the sale...as at the time their license was being heavily scrutinized by BATF because her husband (now ex) took all kinds of shortcuts...they eventually lost their store because of him.


    Editted for spelling...

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    Buying a gun for someone with their money: Straw Purchase.

    Buying a gun and giving it to them with you getting nothing in return: Gift.

    Sarah Brady bought a rifle for her son when he was under 18 and that was not considered a straw purchase. So buying a handgun as a gift to someone 18+ is not a straw purchase since they can legally own it even though they can't legally buy it from a FFL.

    IANAL.

  7. #7
    Regular Member TFred's Avatar
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    nova wrote:
    Buying a gun for someone with their money: Straw Purchase.

    Buying a gun and giving it to them with you getting nothing in return: Gift.

    Sarah Brady bought a rifle for her son when he was under 18 and that was not considered a straw purchase. So buying a handgun as a gift to someone 18+ is not a straw purchase since they can legally own it even though they can't legally buy it from a FFL.

    IANAL.
    IANALE (either) , but I don't think this is right. I believe there must be an intent to circumvent the prohibited person restriction in order for it to be an actual straw purchase.

    I'm looking for the US Code cite.

    TFred

    ETA: Here's the US Code, but almost all of it seems to apply to FFLs, not private sales.

    http://www.law.cornell.edu/uscode/71...2----000-.html


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    Accomplished Advocate peter nap's Avatar
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    I'm not sure why this makes a difference to anyone. If it's illegal to buy for another, don't. However if you buy it to try and don't like it. Give it away.

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    § 18.2-308.2:2.

    M. Any person who purchases a firearm with the intent to (i) resell or otherwise provide such firearm to any person who he knows or has reason to believe is ineligible to purchase or otherwise receive from a dealer a firearm for whatever reason or (ii) transport such firearm out of the Commonwealth to be resold or otherwise provided to another person who the transferor knows is ineligible to purchase or otherwise receive a firearm, shall be guilty of a Class 5 felony. However, if the violation of this subsection involves such a transfer of more than one firearm, the person shall be sentenced to a mandatory minimum term of imprisonment of five years.


    That would make my dad a felon for taking me to pick out my first shotgun, yes?

  10. #10
    Regular Member TFred's Avatar
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    SaltH2OHokie wrote:
    § 18.2-308.2:2.

    M. Any person who purchases a firearm with the intent to (i) resell or otherwise provide such firearm to any person who he knows or has reason to believe is ineligible to purchase or otherwise receive from a dealer a firearm for whatever reason or (ii) transport such firearm out of the Commonwealth to be resold or otherwise provided to another person who the transferor knows is ineligible to purchase or otherwise receive a firearm, shall be guilty of a Class 5 felony. However, if the violation of this subsection involves such a transfer of more than one firearm, the person shall be sentenced to a mandatory minimum term of imprisonment of five years.


    That would make my dad a felon for taking me to pick out my first shotgun, yes?
    Interesting, a casual read of that paragraph would seem to say that, if you are ineligible to purchase from a dealer yourself.

    This same paragraph also covers straw purchases, and does say that you must be intending to circumvent otherwise prohibited transactions.

    Also interesting, near the bottom of the page, section 2.i states that the subsection (I assume the whole subsection) does not apply to private sales.

    My searching yields lots of assertions that a straw purchase does not require intent to circumvent a prohibited person transfer, but I have yet to see a cite to either Federal or State code to back that up.

    TFred


  11. #11
    Founder's Club Member Hawkflyer's Avatar
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    Peter is right, this has come up before.

    There is no exception in the law for straw purchase of a firearm for a person NOT otherwise disallowed. Straw purchases for any reason are proscribed by the law.

    That said, it seems to be legal to buy a gift for someone, but you better be careful in this area as well.

    IANAL, your mileage may vary, following advice from internet forums can cause headache, diarrhea, death, hair loss or other undesirable side effects.

    Regards
    "Research has shown that a 230 grain lead pellet placed just behind the ear at 850 FPS results in a permanent cure for violent criminal behavior."
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  12. #12
    Activist Member Wolf_shadow's Avatar
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    When a person is buying a firearm as a gift for someone else it is not a straw purchase SeePage 164 of the Federal Firearms Regulations Reference guide: http://www.atf.gov/publications/down...f-p-5300-4.pdf


    FEDERAL
    FIREARMS REGULATIONS REFERENCE GUIDE 2005
    GENERAL INFORMATION
    15. STRAW PURCHASES


    Where a person purchases a firearm with the intent of making a gift of the firearm to another person, the person making the purchase is indeed the true purchaser. There is no straw purchaser in these instances. In the above example, if Mr. Jones had bought a firearm with his own money to give to Mr. Smith as a birthday present, Mr. Jones could lawfully have completed Form 4473. The use of gift certificates would also not fall within the category of straw purchases. The person redeeming the gift certificate would be the actual purchaser of the firearm and would be properly reflected as such in the dealer's records.
    If posible why not get the gift certificate and let your dad pick out what he wants?


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  13. #13
    Regular Member TFred's Avatar
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    Hawkflyer wrote:
    Peter is right, this has come up before.

    There is no exception in the law for straw purchase of a firearm for a person NOT otherwise disallowed. Straw purchases for any reason are proscribed by the law.

    That said, it seems to be legal to buy a gift for someone, but you better be careful in this area as well.

    IANAL, your mileage may vary, following advice from internet forums can cause headache, diarrhea, death, hair loss or other undesirable side effects.

    Regards
    This is what I see all over the place. Assertions, but no cites to code.

    The Form 4473 says it, but that is not code. And that is for dealers.

    I would really like to see it in the code.

    TFred


  14. #14
    Founder's Club Member Hawkflyer's Avatar
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    TFred wrote:
    Hawkflyer wrote:
    Peter is right, this has come up before.

    There is no exception in the law for straw purchase of a firearm for a person NOT otherwise disallowed. Straw purchases for any reason are proscribed by the law.

    That said, it seems to be legal to buy a gift for someone, but you better be careful in this area as well.

    IANAL, your mileage may vary, following advice from internet forums can cause headache, diarrhea, death, hair loss or other undesirable side effects.

    Regards
    This is what I see all over the place.* Assertions, but no cites to code.

    The Form 4473 says it, but that is not code.* And that is for dealers.

    I would really like to see it in the code.

    TFred
    Ok. It is in the Gun Control Act of 1968. Specifically Title 18,
    United States Code, Sections 922(a)(6) and 924(a)(2) and/or Title 18, United States Code, Section 2. This last cite is actually a catch all code section that basically says if you do something that leads to a violation of the law, that act constitutes a separate violation.

    Keep in mind, AFAICT this only applies to FFA dealer transactions. So two guys transferring a gun as individuals can probably do a straw transaction legally.

    IANAL so do not rely on this information for gun buying purposes. Seek legal advice if you need more information.

    Regards
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  15. #15
    Regular Member virginiatuck's Avatar
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    TFred wrote:
    Hawkflyer wrote:
    Peter is right, this has come up before.

    There is no exception in the law for straw purchase of a firearm for a person NOT otherwise disallowed. Straw purchases for any reason are proscribed by the law.

    That said, it seems to be legal to buy a gift for someone, but you better be careful in this area as well.

    IANAL, your mileage may vary, following advice from internet forums can cause headache, diarrhea, death, hair loss or other undesirable side effects.

    Regards
    This is what I see all over the place. Assertions, but no cites to code.

    The Form 4473 says it, but that is not code. And that is for dealers.

    I would really like to see it in the code.

    TFred
    So, is your question "what makes it illegal for a licensed dealer to transfer a firearm to you if you are not the actual purchaser?" As in the example on the back of the form?:
    "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."

    In trying to find where in the code that is illegal, I turned to the definitions and think I may have found the answer (USC Title 18, Chapter 44 §921(11)).

    (11) The term “dealer” means
    (A) any person engaged in the business of selling firearms at wholesale or retail,
    (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or
    (C) any person who is a pawnbroker. The term “licensed dealer” means any dealer who is licensed under the provisions of this chapter.



    If you are taking money or any form of compensation from someone for the purposes of furnishing them with a firearm from a licensed dealer, then you are engaged in the business of selling firearms at wholesale or retail, i.e. a dealer. If you are not licensed, then you are in violation of Title 18, Chapter 44 §923(a).

    That's all I can figure, since a "straw purchase" is not explicitly forbidden in any other section of Title 18 Chapter 44.

    And since there's nothing else in USC Title 18 Chapter 44 or VA Title 18.2 that prohibits giving a firearm to a non-prohibited person and purchasing the firearm with your own money means that the business transaction with the licensed dealer ends with you: Your gift of the firearm is not part of the business transaction and so it is legal.

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    TFred wrote:
    nova wrote:
    Buying a gun for someone with their money: Straw Purchase.

    Buying a gun and giving it to them with you getting nothing in return: Gift.

    Sarah Brady bought a rifle for her son when he was under 18 and that was not considered a straw purchase. So buying a handgun as a gift to someone 18+ is not a straw purchase since they can legally own it even though they can't legally buy it from a FFL.

    IANAL.
    IANALE (either) , but I don't think this is right. I believe there must be an intent to circumvent the prohibited person restriction in order for it to be an actual straw purchase.

    I'm looking for the US Code cite.

    TFred

    ETA: Here's the US Code, but almost all of it seems to apply to FFLs, not private sales.

    http://www.law.cornell.edu/uscode/71...2----000-.html
    If you say you're the actual buyer when filling out form 4473 then you are lying. If you lie on form 4473 you're committing a crime.

    Form 4473 does not apply to private sales.

  17. #17
    Regular Member altajava's Avatar
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    Hawkflyer wrote:
    SNIP..following advice from internet forums can cause headache, diarrhea, death, hair loss or other undesirable side effects.

    Regards
    This certainly explains a few things.

  18. #18
    Regular Member simmonsjoe's Avatar
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    SaltH2OHokie wrote:
    § 18.2-308.2:2.

    M. Any person who purchases a firearm with the intent to (i) resell or otherwise provide such firearm to any person who he knows or has reason to believe is ineligible to purchase or otherwise receive from a dealer a firearm for whatever reason or (ii) transport such firearm out of the Commonwealth to be resold or otherwise provided to another person who the transferor knows is ineligible to purchase or otherwise receive a firearm, shall be guilty of a Class 5 felony. However, if the violation of this subsection involves such a transfer of more than one firearm, the person shall be sentenced to a mandatory minimum term of imprisonment of five years.


    That would make my dad a felon for taking me to pick out my first shotgun, yes?
    It appears that you must be purchasing for someone you know or have reason to believe is not eligible to purchase a firearm.

    I think a parent's presence allows the dealer to transfer the firearm to you, because your parents are legal guardians and may legally take possession of your property for you, and are over 21.


    I appreciate all the help people! Since my intecded purchase is a true gift the law is clear.
    illegal ≠ immoral legal ≠ moral
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    Regular Member MSC 45ACP's Avatar
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    I purchased a pistol for my daughter as a gift on her 18th Birthday. Not a straw purchase. She is 18 and allowed to own and possess a pistol, yet she cannot legally purchase one from a dealer, but she CAN buy from aprivate seller. She also cannot buy ammunition for a pistol from a dealer, but I can buy ammo for her and again it is NOT a straw purchase.

    She is not prohibited from buying because of felony status, but for her age. It states in the law that an 18 year old may OWN and POSSESS a pistol just not purchase from a dealer.

    Clear enough?
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  20. #20
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    Wolf_Shadow is correct. When one purchases a firearm for the purpose of giving it to another person as a gift. When he does so he is buying the gun for his own purposes, and it is thus his own purchase of a gun for himself. It is not a straw purchase.

    It is, as others have said, still a felony to give the gun to someone who is ineligible to be in possession of firearms. Slight technical correction: you can transfer ownership of the gun (i.e., title) to such a person, but you cannot transfer possession of the gun itself.

    The closer your relationship to the person to whom you intend to deliver the gift, the less likely you will be held to have made a straw purchase. If you're giving it to a spouse, parent, or adult child, you're cool; if you're giving it to someone you met at the car-wash that same day, you're probably screwed.

    Note that federal and Virginia laws are slightly different on this subject, and technically, it doesn't make any difference in the law whether you're getting reimbursed for the purchase.
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    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Regular Member MSC 45ACP's Avatar
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    user wrote:
    The closer your relationship to the person to whom you intend to deliver the gift, the less likely you will be held to have made a straw purchase. If you're giving it to a spouse, parent, or adult child, you're cool; if you're giving it to someone you met at the car-wash that same day, you're probably screwed.

    Now THAT is some funnychit right there!!!

    User: You just caused me toviolently exhaleMt Dew through my nose at extreme velocity. Fortunately it didn't get on my laptop. I turned my head in time, but DAYUM it HURTS!

    THANKS for the best laugh I've had in WEEKS!

    mike



    "If I know that I am headed for a fight, I want something larger with more power, preferably crew-served.
    However, like most of us, as I go through my daily life, I carry something a bit more compact, with a lot less power."
    (unknown 'gun~writer')

    Remington 1911 R1 (Back to Basics)
    SERPA retention or concealed...

    "Those who hammer their guns into plows will plow for those who do not." ~Thomas Jefferson
    (Borrowed from "The Perfect Day" by LTC Dave Grossman)

  22. #22
    Campaign Veteran marshaul's Avatar
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    OK, with that in mind, what about private party transfers?

    No law against buying a gun, deciding you don't like it, and selling it. No law specifying how long you must possess it before doing this.

    So, when is a PPT no longer a straw purchase? What legally differentiates the two? Surely it cannot be how close you are to the buyer.

  23. #23
    Activist Member Wolf_shadow's Avatar
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    marshaul wrote:
    OK, with that in mind, what about private party transfers?

    No law against buying a gun, deciding you don't like it, and selling it. No law specifying how long you must possess it before doing this.

    So, when is a PPT no longer a straw purchase? What legally differentiates the two? Surely it cannot be how close you are to the buyer.
    IANAL but I would think you would need to have it and use it at least a couple days. Think overzealous feds or DAs.


    Yes I carry a Bible and a Gun, your point.
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  24. #24
    Regular Member TFred's Avatar
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    marshaul wrote:
    OK, with that in mind, what about private party transfers?

    No law against buying a gun, deciding you don't like it, and selling it. No law specifying how long you must possess it before doing this.

    So, when is a PPT no longer a straw purchase? What legally differentiates the two? Surely it cannot be how close you are to the buyer.
    I haven't been able to find any code (Federal or State) which applies to a private purchase for another person that is not otherwise prohibited.

    That certainly doesn't mean it's not there, I just haven't been able to find it.

    TFred


  25. #25
    Regular Member simmonsjoe's Avatar
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    marshaul wrote:
    OK, with that in mind, what about private party transfers?

    No law against buying a gun, deciding you don't like it, and selling it. No law specifying how long you must possess it before doing this.

    So, when is a PPT no longer a straw purchase? What legally differentiates the two? Surely it cannot be how close you are to the buyer.
    Messing around in the ATFE's territory is dangerous. they are the only paramilitary tax agency, and they don't care about your rights.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
    G19 Gen 4; Bersa Thunder 380; Sig Sauer P238; Kel-Tec su-16c

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