Can I pay for somebody else's gun?

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The one case everyone is worried about involved a circumstance where A gave B money that B used to buy a gun for A. B., a police officer, had a special discount on Glocks. He bought the gun (with A's money) filled out a 4473, took the gun to A (his uncle) and transferred it to him at a dealer with a 4473. It was not the source of the money, per se, but that B was buying a gun with A's money FOR A. B was convicted of perjury. The fallacy of the whole case is that if B had bought the gun with his own money, taken it to his uncle and sold it to him, there would have been no issue.

That said, if I take my money and pay for a gun on the internet, and have the seller send it to an FFL for a transfer to someone else, and that someone fills out the 4473 as the "buyer", there is no straw purchase. I have done this before when gifting to an out of state child. And the reason I went this route is (a) this being California, the selection is limited, and if the gun is not on the Roster, I cannot complete the transaction; (b) if it is a rostered firearm, I would have to pay DROS [a California background check fee]($25), state tax (8.5%), and a dealer transfer fee ($40-$75), wait ten days for the background check to clear, then ship the gun to an out of state FFL ($70), where my child would have to pay for a NICS check ($20-$40). The distinction here is that I am using my money to buy a gun for someone who will be the "buyer," not using someone else's money to by a gun for someone else. Plus the fact that I don't ever fill out the 4473, so there is no possibility of their being perjury on the form,.
 
62coltnavy said:
That said, if I take my money and pay for a gun on the internet, and have the seller send it to an FFL for a transfer to someone else, and that someone fills out the 4473 as the "buyer", there is no straw purchase.
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Respectfully, if some BATFE agent knew about your transaction and chose to construe it as a straw purchase, you would have to engage an attorney to defend yourself and I don't think it's exactly a slam dunk that you would prevail. Remember, there was no intent to commit a straw purchase in the Abramski case. The problem was that the person who filled out the 4473 as the purchaser did not provide the money, so he wasn't the purchaser.

How is that materially different from your example?
 
Aquila, your employer doesn't even have to cut your paycheck before the money you earned is yours. Die at your desk and your estate gets the wages you earned that pay period.

I used to tell people at work I was 'gruntled, thank you', in the morning. It's surprising how many folks have no idea words mean things.

I would be very surprised if the BATFE would look at an underage provider of funds to another purchaser, selecting the firearm, ordering the firearm, doing everything commensurate with a purchase except signing the 4473 form, living in the same household, and thus jointly in constructive possession of the firearm, as anything but a straw purchase.
 
Because once we perform whatever service it is the payment is compensation for, it's OUR money, not the company's....
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OK, this applies to our ownership of money OWED to us. Not money we physically have in hand. So, I don't think it applies directly to the case under discussion.

And lets be clear, in the Abramski case, (and, potentially, anything similar) what we are talking about is the intent of the actors, BEFORE the act, is what made it a crime.

Since both parties were legally able to buy & possess the gun, there was no intent to transfer a gun to a prohibited person.

Do we all agree?

Now, absent a verified statement from the person who physically receives the gun (fills out the 4473) how does one determine their intent?? One CANNOT.

One can only infer what their intent was, based on their actions. Do we agree on this?

When a person buys a gun intending to later sell it to someone else, the government often prosecutes the initial buyer under 18 U.S.C. § 922 (a)( 6 ) for making a false statement about the identity of the buyer that is "material to the lawfulness of the sale." These prosecutions rely on the court-created "straw purchaser" doctrine, a legal fiction that treats the ultimate recipient of a firearm as the "actual buyer," and the immediate purchaser as a mere "straw man."

The lower courts uniformly agree that a buyer's intent to resell a gun to someone who cannot lawfully buy it is a fact "material to the lawfulness of the sale." But the Fourth, Sixth, and Eleventh Circuits have split with the Fifth and Ninth Circuits about whether the same is true when the ultimate recipient can lawfully buy a gun.
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-from americanbar.org

So, we have the courts themselves split on the issue when the ultimate recipient is legal. In the Abramski case, the argument was that since he intended to sell the gun to someone else BEFORE he bought it, then he lied on the 4473 about being the "actual purchaser".

This case does NOT give us a good review of the law as applied, because Abramski pled "conditionally guilty". (he received probation and a $200 fine)

So the concept was not fully tested in court by this case.

SCOTUS approved of what was done, 5-4.

DO we have a situation here where you can be charged with a crime, based on what the government says was in your mind at the time you performed the legal act of buying a firearm???

It seems so to me, or am I missing something??
 
So I talked to another 2 FFLs and my ATF regional office and they all said the same thing. They all told me I can pay for the gun and put the order under the recipient's name. Then the recipient can go to the store and fill out the background check and pick it up.

The way it was explained to me, the element of a straw purchase that's a crime is lying on the form. The person receiving the gun as a gift is the actual transferee/purchaser as noted on the form. This way, as long as the intent is for the person doing the background check to receive it, all I'm doing is providing the funds, no different from giving cash in the exact amount of the price of the gun. I'm supplying it either way.

So say the FFLs I've spoken to and my local ATF office.
 
I think your situation is pretty clearly legal as long as you are not actually intending to own the firearm yourself.

I like the safe idea anyways. Give her some flexibility in what she chooses unless she already picked something specific out.

My wife probably enjoys the shopping aspect of any purchase, including a firearm, as much as the actual item.
 
Respectfully, if some BATFE agent knew about your transaction and chose to construe it as a straw purchase, you would have to engage an attorney to defend yourself and I don't think it's exactly a slam dunk that you would prevail. Remember, there was no intent to commit a straw purchase in the Abramski case. The problem was that the person who filled out the 4473 as the purchaser did not provide the money, so he wasn't the purchaser.

How is that materially different from your example?
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Because in this case the person that paid the money for the gun NEVER filled out a 4473...NEVER took possession of the gun. Simply picked up the tab, so to speak.

If a buddy and i are at a gunshop and i choose to pay for a gun he wants out of the kindness of my heart. But HE does the 4473 and its his gun. Thats fine
 
There is a specific item that I can only find online and none of the stores are able to special order... So ordering it online now and picking up the tab would be the only way to get it by Christmas and keep the surprise. We've looked at guns before and it was one that we both liked as far as feel and it fits well in our price range. Found something of a special model online.
 
If this helps anyone to understand the straw purchase firearms issue, it is from the 2005 FEDERAL FIREARMS REGULATIONS REFERENCE GUIDE.

15. STRAW PURCHASES

Questions have arisen concerning the lawfulness of firearms purchases from licensees by persons who use a "straw purchaser" (another person) to acquire the firearms. Specifically, the actual buyer uses the straw purchaser to execute the Form 4473 purporting to show that the straw purchaser is the actual purchaser of the firearm. In some instances, a straw purchaser is used because the actual purchaser is prohibited from acquiring the firearm.

That is to say, the actual purchaser is a felon or is within one of the other prohibited categories of persons who may not lawfully acquire firearms or is a resident of a State other than that in which the licensee's business premises is located. Because of his or her disability, the person uses a straw purchaser who is not prohibited from purchasing a firearm from the licensee. In other instances, neither the straw purchaser nor the actual purchaser is prohibited from acquiring the firearm. In both instances, the straw purchaser violates Federal law by making false statements on Form 4473 to the licensee with respect to the identity of the actual purchaser of the firearm, as well as the actual purchaser's residence address and date of birth. The actual purchaser who utilized the straw purchaser to acquire a firearm has unlawfully aided and abetted or caused the making of the false statements. The licensee selling the firearm under these circumstances also violates Federal law if the licensee is aware of the false statements on the form. It is immaterial that the actual purchaser and the straw purchaser are residents of the State in which the licensee's business premises is located, are not prohibited from receiving or possessing firearms, and could have lawfully purchased firearms from the licensee.

An example of an illegal straw purchase is as follows: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. If Mr. Jones fills out Form 4473, he violates the law by falsely stating that he is the actual buyer of the firearm. Mr. Smith also violates the law because he has unlawfully aided and abetted or caused the making of false statements on the form.

Where a person purchases a firearm with the intent of making a gift of the firearm to another person, the person making the purchase is indeed the true purchaser. There is no straw purchaser in these instances. In the above example, if Mr. Jones had bought a firearm with his own money to give to Mr. Smith as a birthday present, Mr. Jones could lawfully have completed Form 4473. The use of gift certificates would also not fall within the category of straw purchases. The person redeeming the gift certificate would be the actual purchaser of the firearm and would be properly reflected as such in the dealer's records.
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I have no idea if BATF currently applies or interprets the straw purchase rule the same.
 
It is interesting that the situation I'm asking about is not directly reflected there. The example given would be as if I paid for the firearm for this person, had them fill it out, and then took possession of the firearm. I'm inclined to think, as I was told, that buying it online with intent for the actual recipient to pick it up would be like using a gift certificate
 
It is interesting that the situation I'm asking about is not directly reflected there.
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It would seem so. the case under discussion is the closest thing we can find where there was no intent to transfer to a prohibited party.

It appears that paying for the gun, that someone else picks up, and which is not intended to come to you, is ok.
 
The example given would be as if I paid for the firearm for this person, had them fill it out, and then took possession of the firearm.
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Which example was that and who takes possession? I f they fill out the paperwork and you take possession, it is a classic straw purchase. If you are saying you should be able to order it for your buddy and you can pay for it, but he completes the 4473 and it is his gun, that is something entirely different. I have heard of dealers killing a sale when the spouse goes to pay for their hubby's firearm, but I think that is the dealer being overly cautious. The dealer has a duty to try to detect and not allow straw sales and some err on the side of protecting their license.

Edit: After revisiting what you wrote, the answer is a resounding "no".
 
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Sharkbite said:
Because in this case the person that paid the money for the gun NEVER filled out a 4473...NEVER took possession of the gun. Simply picked up the tab, so to speak.
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But that's the problem, right there. The person who signs the 4473 didn't provide the money, so how can he/she be the purchaser?
 
The example given would be as if I paid for the firearm for this person, had them fill it out, and then took possession of the firearm.
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Which example was that and who takes possession? I f they fill out the paperwork and you take possession, it is a classic straw purchase. If you are saying you should be able to order it for your buddy and you can pay for it, but he completes the 4473 and it is his gun, that is something entirely different. I have heard of dealers killing a sale when the spouse goes to pay for their hubby's firearm, but I think that is the dealer being overly cautious. The dealer has a duty to try to detect and not allow straw sales and some err on the side of protecting their license.
 
What I believe you are referring to was the example I talked about. The link given from ATF does not include any examples where a person pays for a gun that the recipient does a background check on without the person funding it intending on taking control or possession of it.

I'm not sure how you're coming up with a "resounding no" when an ATF agent and 2 FFLs have told me otherwise. It looks like more of a gray area than a resounding yes or no
 
dakota.potts said:
I'm not sure how you're coming up with a "resounding no" when an ATF agent and 2 FFLs have told me otherwise. It looks like more of a gray area than a resounding yes or no
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I agree that it's probably a gray area. The problem is that it only takes one BATFE agent having a bad hair day to ruin your life. I know an FFL who was almost put out of business a number of years ago because he happened to have in his shop at the time of an audit (if that's what it's called) a personally-owned black powder, percussion cap firearm that was old enough to be exempt from requirements for being sold through an FFL. In other words, John Doe could legally sell it to Joe Blow, even across state lines. It wasn't even for sale, it was just there. But -- it was in the shop and it wasn't in his bound book, so this agent made A BIG DEAL out of it.

As I posted previously, how far down the bear's throat do you want to stick your arm? I'm a senior citizen, and I've been around long enough to know that the government is generally NOT here to help you. When it suits their agenda, they can and will throw any citizen under the bus -- I've had it done to me (non-firearms related). My philosophy when looking at gray areas is to sit back and let someone else be the test case. Lawyers are expensive.

Your call.
 
It isn't a grey area at all.

The reason most FFLs don't like these situations is it is common for a prohibited person to send a spouse or girl/boyfriend to buy a gun for them.

I was in a shop when a couple came in and the man was supposedly buying a pistol for the woman, he told them which one he wanted, handled it without ever giving it to her, she seemed entirely disinterested, etc. I think at one point he asked her if 'this one is ok?" and she sort of shrugged and said "sure." The guy was incensed when the counter person said they would both have to perform the 4473 and stormed out. It is something they see a lot.

If you do not live together and "her" pistol ends up being stored in your residence you probably have a legal problem. If you pay for the pistol and it is stored at a shared residence or her residence the ATFE is not going to care at all. If you end up carrying it daily and she never shoots it that may be a problem. As long as it is actually going to be her gun that she has regularly possession and use of, even if you occasionally take it to the range, I wouldn't worry about it one bit.
If you really want to buy a pistol for yourself before you are 21, she isn't really interested, and you think this is a good way to go about it, you are looking for trouble. If legal in your state check to see if you can buy one face to face locally through armslist or similar. In some states a FTF pistol purchase is legal at 18. For one thing, I have seen people do some harsh things to others in break-ups. Worse than calling ATFE and telling them an Ex coerced one into making a straw purchase. Then it turns out you carry it, she only shot it one day, it is stored at your residence and you refuse to give it to her, even though you broke up, etc. Hello federal penitentiary.

Where you may run into problems is with the person behind the counter. The situation is similar in outside appearance to a straw buy they commonly see attempted. A lot of it is going to have to do with how you talk about the purchase. I went with my wife to look at CCW pistols after she got her license. The person behind the counter was clearly suspicious of the situation when we first started looking. As I gave her advice on how to gauge the fit of individual models and explained the controls to her, then let her pick out the ones we looked at and such they were at ease.
 
The person who signs the 4473 didn't provide the money, so how can he/she be the purchaser?
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I don't know, I can only assume they are the purchaser under the same logic the government uses to determine that the person who supplied the money, but DID NOT fill out the paperwork OR pick up the gun IS the "actual purchaser".

We have three different, but co-mingled things here.
First, the OP, which is, essentially, "I want to give a gun as a gift. I cannot buy it legally (yet). Can I PAY for it, and let them BUY it, legally?"

Second, we have the law, which essentially says "if you cannot legally buy the gun, you cannot have someone else buy it for you". This is something very few of us would oppose. BUT, the law says more than just that, which is the third point.

Where it says "if you can buy the gun legally, BUT you have someone else do it for you, AND they do not declare they are doing it as a gift, then BOTH of you are committing a crime."

NOT the crime of getting a gun for someone prohibited, but the crime of LYING to the government because they have created a system where THEY decide WHO is the actual purchaser, based on what they believe is the INTENT of the person who picks up the gun, AND where the money paying for it comes from. And if/when they decide you have lied to them, they charge you with a crime for what is otherwise an entirely legal activity.

ALSO, there appears to be no specific time limit in which this decision must be made. In the Abramski case, the govt. found a receipt showing A "gave the Glock to" B "in exchange for $400" (that was the language used in the report I saw. The author did NOT use the word "sold", he said "gave in exchange for $400"...now I wonder, how is that NOT a sale???)

The govt found the receipt in the calendar year AFTER the gun was purchased. THEN they decided a crime had been committed, the crime of lying on the 4473.

Other details in the summary I read (americanbar.org) said the govt found the receipt as a result of a search warrant issued because Abramski was being investigated for bank robbery. No mention was made that A was ever charged with bank robbery or what the outcome was if he had been.

This leads the cynic in my to believe that the govt. didn't come up with enough evidence to support bank robbery, but did find a receipt allowing them to charge him with the gun crime of lying on the 4473.

Abramski pled "conditionally guilty" to that. This is not a poster child case for our side, it was not fought to conclusion due to the plea.

But, the principles used in the govt's case were approved by the high court, and that is what concerns me. How might those principles be applied or misapplied to other situations????

I can see the improbably far fetched, but not impossible situation where, if you have EVER sold a gun they could claim you didn't buy it for yourself (because you sold it, at some later date), and then, because you didn't mark "gift" on the 4473, you lied to them, and should be prosecuted.

and speaking of which, can someone tell me just what the government considers a "gift" to be? If you mark "gift" on the 4473, then later change your mind and keep it, or sell it, not "give it", did you lie on the form? If you get something in return for the gift (no matter what the value) did you lie on the form??

This appears to be a matter of principle, where the government is deciding, based on your actions with your property, an indefinite amount of time AFTER the purchase, that you broke the law when you purchased the gun.

I really don't relish the thought of winding up in court because I decided to give/sell a pistol I bought in 1985, for myself, to someone else in 2000, when the govt finds out about it in 2015.
Sounds crazy, I know, but I don't see anything that prohibits the govt from doing that, other than possibly the statute of limitations, if it applies?

Conviction on such a far fetched charge would be another matter, and even less likely, I think, but the fact that they might not get a conviction doesn't mean you aren't out tens of thousands of dollars in legal costs.

I bring this up in relation to the OP because while CURRENTLY it appears they don't mind if you pay for someone else's gun (providing it never comes to you), they COULD change their mind at any time.

if they do, whether or not you have committed a prosecutable offense will be determined by govt administrative rules and policies, NOT by law passed by Congress.

And, if they do this, it will remain in effect until they either change their policies voluntarily, (unlikely) or go to court and actually LOSE, and have the court rule against them.

as I see it, the potential for open ended abuse of these principles is staggering.
The fact that it hasn't happened yet does not guarantee that it never will.
 
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