Family situation with firearms

M

MMABC

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I've got an interesting family situation with inherited firearms. My father passed away recently, and I've asked my brother for his firearms. He had a rifle and shotgun I want for sentimental reasons. In addition, he had a Luger 9mm pistol, which he was awfully proud of. He lives quite a long way away, and initially, I just asked him to take the guns down to a dealer and have them transferred to me. At first, he told me that he only had the rifle. After talking with him further, I found out he did have the other guns, but he's reluctant to give them up because he has a felony from long ago on his record. He feels like he needs the guns for protection, and he's reluctant to give them up because it would obviously be difficult to replace them.

He's in kind of an interesting dilemma. He lived with my father, and now he's in illegal possession of the guns. I'm wondering if he can even deliver the rifle to a dealer without a real risk of getting in trouble. He's willing to give up the Luger and the shotgun if I would trade another gun/s with him. I'm wondering what legal ramifications that would have for me, and how I would even make the trade without actually driving it to him.

Was it legal for him to reside there before my father died with the guns in the house? In his current situation, how exactly is he supposed to legally rid himself of the guns even if he wanted to? Can he deliver a gun to a dealer for transfer without revealing his felony? If I were to transfer a gun to a dealer near him, he'd be required to have the NCIS check right? It's an interesting situation. I'm not real familiar with what the rules are here.

I don't want to get him in trouble. I don't want to get in trouble. The felony was a minor theft forty years ago, and I definitely understand him wanting the guns for protection. On the other hand, I sure would like to get those guns. This may be my last chance. No telling what will happen to the guns from here on out. Any advice would be appreciated.
 
I believe that your brother would not be allowed to be in possession of the firearms if he has a felony.I understand that he is your brother, but I would seriously consider the legal ramifications that might occur if you were caught giving or trading guns.
That said, I would do anything for my brother, and I understand the dilemma. I would check the laws of the state you're dealing with and consult an attorney.
Best of luck with everything!
 
1. It is illegal, if he has a felony conviction, for him to be in possession of any firearms, period.

2. No background check is required to deliver the firearms to the dealer. Once delivered to the dealer, a background check is required to retrieve those guns from the dealer, even by the original owner, EXCEPT a gun delivered for repair can be returned to the original owner without a background, as can a replacement gun.

3. Under NO circumstances should you transfer any firearm to him via an FFL or not.

4. If you are same state residents, and your state is like most where private party transactions are not restricted, he can just give you the guns, no FFL involvement at all.

5. Since you know that your brother is a felon, and you know that he is in possession of firearms, if you are somehow associated with a crime that he commits involving firearms, you might be charged as an accessory or co-conspirator.

6. It was NOT illegal for him to be in the same house as your father who owned the guns, if those guns were kept inaccessible to your brother, IE in a safe that only your dad had the combo to.
 
Was it legal for him to reside there before my father died with the guns in the house?
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I'm pretty sure yes, but see disclaimer below.

He's willing to give up the Luger and the shotgun if I would trade another gun/s with him.
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I for sure wouldn't do that. That would get you involved with whatever trouble he's in.

You need to talk to a lawyer. A real one, not InnerWebz hearsay.
 
I believe that the law would look at him as a felon in possession of firearms. LEO's aren't going to make a judgement about the nature of the felony or age of it. It's pretty cut and dried in their eyes.

On one hand a judge could give him a break based on the time and nature of the crime. Another judge could observe that he is supposed to know better, know that he was commiting another felony (bigger and better this time) and throw the book at him.
 
"I sure would like to get those guns. This may be my last chance. No telling what will happen to the guns from here on out. Any advice" You might not want to do this, get what guns he will give you now, then go back in a day or two and tell him you want the rest of them or your going to drop a dime on him. orchidhunter
 
He inherited my father's entire estate. We both live in Texas.
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He can just give you the guns, no paperwork required. There is no law making it illegal to receive a gun from a felon. You would NOT be able to give him any guns, including the original guns, back to him because you KNOW he is a felon.
 
Look at it this way. If it comes to official notice, the cops will get the guns and the family (the OP) will have none. The decent thing for him to do is to quietly pass you the guns and say no more about it.

He gets everything else, he should be satisfied with the balance.
 
NavyLT said:
1. It is illegal, if he has a felony conviction, for him to be in possession of any firearms, period.

2. No background check is required to deliver the firearms to the dealer. Once delivered to the dealer, a background check is required to retrieve those guns from the dealer, even by the original owner, EXCEPT a gun delivered for repair can be returned to the original owner without a background, as can a replacement gun.

3. Under NO circumstances should you transfer any firearm to him via an FFL or not.

4. If you are same state residents, and your state is like most where private party transactions are not restricted, he can just give you the guns, no FFL involvement at all.

5. Since you know that your brother is a felon, and you know that he is in possession of firearms, if you are somehow associated with a crime that he commits involving firearms, you might be charged as an accessory or co-conspirator.

6. It was NOT illegal for him to be in the same house as your father who owned the guns, if those guns were kept inaccessible to your brother, IE in a safe that only your dad had the combo to.
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Thanks NavyLt. That's what I thought. From what you've said, it wasn't illegal for him to be in the house before my father died. Now, through no fault of his own, he's in illegal possession, and I don't see how he can legally rid himself of the guns. The safest thing for him is for someone to come to the house and take the guns. I'm curious if there is any legal way to rid himself of the guns?

I am now aware he's illegally possessing firearms. It's not conceivable that I will ever be associated with any potential firearm crime he might commit, and even so, this is my brother. I'm sure not going to turn him in on this. He's a prime example of why the felony restriction is grossly unfair. It was a petty theft of used goods forty years ago that got trumped up to a felony. He's had no other trouble with the law since then, and I have absolutely no reason to believe he ever will. It's certainly possible though I suppose.

So, is it criminal for me to trade guns with him? I do in fact now know he has a felony conviction, but it's easily plausible that I wouldn't know that. I don't have a civil and legal obligation to do a criminal background check on my brother before I give him a gun.
 
Is this a federal law he's in violation of? It looks like it's only illegal in Texas up to five years after his release from prison:

Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM. (a) A person who has been convicted of a felony commits an offense if he possesses a firearm:

(1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or

(2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.

(b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person's family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of:

(1) the date of the person's release from confinement following conviction of the misdemeanor; or

(2) the date of the person's release from community supervision following conviction of the misdemeanor.

(c) A person, other than a peace officer, as defined by Section 1.07, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision, who is subject to an order issued under Section 6.504 or Chapter 85, Family Code, under Article 17.292 or Chapter 7A, Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88, Family Code, commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order.

(d) In this section, "family," "household," and "member of a household" have the meanings assigned by Chapter 71, Family Code.

(e) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) or (c) is a Class A
 
Unless the guns you are talking about were manufactured in Texas and never left the state of Texas, the following Federal law applies (notice the key word is PUNISHIABLE, not sentenced to):
18 USC 922:

(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
 
So, is it criminal for me to trade guns with him?

Yes.

The best solution is for you to go get all of the guns.

Your brother ought to get a cap and ball pistol for self defense, otherwise, he is in violation of federal law, and if the feds should catch him, a hard rain will fall upon him.
 
So, is it criminal for me to trade guns with him? I do in fact now know he has a felony conviction
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Yes. You are committing your own felony, again 18 USC 922:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) has been adjudicated as a mental defective or has been committed to any mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who [2] has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
(B)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) has been convicted in any court of a misdemeanor crime of domestic violence.
 
The best solution is for you to go get all of the guns.

Your brother ought to get a cap and ball pistol for self defense, otherwise, he is in violation of federal law, and if the feds should catch him, a hard rain will fall upon him.
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+1. And you if you gave him any firearm he is in possession of.

Again, there is no law making illegal to receive a firearm from a felon. Also, on the 4473, there is an extra caveat that it is illegal for a person convicted of a misdemeanor in a state court that is punishable by a sentence of 2 years or more is also illegal to purchase a firearm.
 
You said your brother wants the guns for household defense.
You could buy him a nice Pietta 1860 Colt Army .44, and a pound of powder, and caps and balls and the other stuff he would need for $300.

These old time guns are reliable, and quite lethal.
 
Consult a lawyer before anyone with the authorities catches on that he's been in illegal possession of firearms. Inheritance won't get around felony possession.
 
"to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

I presume you're all correct. It was my understanding that being in possession would be illegal. It's not clear to me exactly how this statute applies though. It would appear to restrict him from receiving a gun that was, like you said, at one time shipped in interstate commerce. Given the circumstances, it's a bit of an odd situation. Has he automatically committed a crime just by the death of my father, or perhaps when he probates the will and officially takes legal ownership of my father's estate? That doesn't seem right. It also looks like it's legal under state law. Wouldn't he have to get busted by federal agents?

BTW, I haven't committed any crime. I'm merely trying to understand the legality of his situation and of trading guns with him.

Seems pretty clear that knowing he has a felony, it would be illegal for me to trade with him. Although, I'd think it would be a far stretch to see how I could ever get convicted for it. If it ever came back to me, I could always claim I gave it to my father, not my brother. Personally, I don't see anything morally or ethically wrong with a trade. He's already got the guns.

It's only a hypothetical. I'd like to get the guns, but I'm not sure it's worth the hassle. I think he'll give me the rifle and shotgun, assuming that is, that I can actually get him to take the guns to a dealer. I'm not a collector, and I'm not sure I want to give up my next gun purchase to get a Luger.

Not trying to argue in any event. It's just an interesting dilemma.
 
Of course they could convict you of giving firearms to a felon if they found out your father had already passed away. Then not only would you have provided a felon with firearms, but lied in order to do it. I think it best that you not trade guns with your brother.
 
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