Good sales prevention technique.

[mehavey]

The issue comes down to when/where/condition under which the actual "transfer" takes place;
and must Purchase/Transferee be one-in-the same (an "AND" gate), or is Purchaser/Transferee an "OR" gate ?

From the ATF:
Transfer.
This term and the various derivatives thereof shall include selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of.
https://atf-eregs.18f.gov/479-11/2016-00192#479-11-p798004987
For want of a better term, I'll use "constructive possession"

Question -- has it ever been answered -- if so I have not seen it.
Transferee/Buyer:
You can be the buyer -- and thereby transfer ownership/take actual/constructive possession.
Or you can be handed the gun w/o being an actual buyer and still take actual/constructive (permanent) possession.

Can anyone cite an actual case wherein straw purchase was determined wherein a parent compensated the dealer, who directly transferred the weapon via 4473 to a son/daughter or other eligible third person ?

I'll accept the answer -- just haven't seen it.

 

[jonnyc]

To be frank and "real worldly", in many cases it is up to the perception of the FFL or employee. If I am convinced that the child chose the firearm, and then filled-out the paperwork, I'm ok with it, comfortable with the fact that the parent paid for the gift.
The fact that the OP's deal was an internet sale and over state lines does complicate things, but 3 minutes of conversation could have easily settled the issue.

 

[jag2]

I hate these word games, they give me a headache but I’ll throw one out there anyway.
Is he/she who provides the funds automatically considered to be the buyer? Is that addressed in the rules? If I go to my LGS with my buddy to purchase a gun and fill out paper work and get approved then I go to pay and realize I left my wad of cash at home, I ask my buddy and he loans me the money. I’m guessing you’ll say that was a straw buy.

 

[mehavey]

If/when the intended/permanent transferee/possessor is the one actually filling out the 4473; the one actually approved via NICS; and to whom the weapon is actually delivered/kept. . . . I'm having a hard time seeing that as a straw buy.

But I'm willing to be convinced if someone has a court ruling an/or a published ATF finding/letter.

 

[mehavey]

Interesting read . . . the ATF regs:
https://www.atf.gov/firearms/docs/g...ions-reference-guide-2014-edition-atf-p-53004

Also interesting was the finding of phraseology

"Form 4473 shall be submitted, in duplicate, to a licensed importer, licensed
manufacturer, or licensed dealer by a transferee who is purchasing
or otherwise acquiring a firearm by other than an over–the–counter transaction. . . "

.. . which brought to mind the situation repeated likely hundreds (thousands?) of times each week in which Person A sends a weapon through an FFL to Person B. Before taking possession, Person B must fill out the 4473 as the Transferee -- not the Buyer -- and pass the NICS check.

In this light, the phrase "Buyer/Transferee" appears to be an 'OR' gate.





..... but I'm continuing to read .....

 

[44 AMP]

It might come down to who's opinion carries the most weight with the jury. If I give someone money, or a gift certificate, as a gift, to spend on anything that they want to buy with it, and they buy a gun (doing all the required things, 4473 paperwork, background check, they are the one picking it up, etc.), then I say I gave them a gift, and they bought a gun with it.

But a prosecutor can say I gave them a gift (money) to buy a gun with, and that makes me a criminal for doing a straw purchase.

In this case, the prosecutor is making their own determination of what I had in mind (my intent), and that my intent was criminal. If he can convince a jury that he's right, I could be convicted.
Even though in my mind there was no criminal intent, unless they believe me (or my lawyer) over the state, I'm going bye-bye for some time.

Its a virtual trap that can easily catch the unwary.


There is one thing, the more time that passes between the gift of funds and the purchase of the firearm, the more difficult it is to convince people that the gift was "for the purchase of the firearm". If for example, I give my daughter $500 for her birthday in September, and she spends $500 on a gun for Christmas, that looks much different than if I gave her money today, and she bought a gun tomorrow.

Or so it seems to me...

 

[Aguila Blanca]

I hate these word games, they give me a headache but I’ll throw one out there anyway.
Is he/she who provides the funds automatically considered to be the buyer? Is that addressed in the rules? If I go to my LGS with my buddy to purchase a gun and fill out paper work and get approved then I go to pay and realize I left my wad of cash at home, I ask my buddy and he loans me the money. I’m guessing you’ll say that was a straw buy.

Read the instructions for question 11.a. I provided a link to the 4473 in post #13. The part I quoted is not the entire instruction. The case you posit is rather explicitly addressed in the instructions and, yes, the BATFE says that is a straw purchase.

 

[mehavey]

-- delete --

Actually, the more I read/background this thing, the more I see the vulnerability in a situation wherein a third party filling out the paperwork -- however innocent/legitimate it may be -- can send up red flags.
(I will bow to better safe than sorry)

 

[zukiphile]

Read it again. That is exactly NOT a straw purchase,
The daughter fills out the 4473 as the receiver of the weapon.
Read, gentlemen. Read.

Indeed.

The Abramski case isn't what the OP, jaysouth, is describing.

In jaysouth's scenario, he is only paying the bill and is not the purported or actual transferee. His daughter is filing out the 4473 and is the actual transferee, not an agent of the transferee; she will possess the arm. She is not acquiring the arm on behalf of her father, but for herself.

In Abramski, two people conspired to transfer possession of an arm to one man, while the other, a mere agent of the real transferee, falsely represented himself as the real transferee.

 

[Aguila Blanca]

The Abramski case isn't what the OP, jaysouth, is describing.

In jaysouth's scenario, he is only paying the bill and is not the purported or actual transferee. His daughter is filing out the 4473 and is the actual transferee, not an agent of the transferee; she will possess the arm. She is not acquiring the arm on behalf of her father, but for herself.

Understood. But one of the BATFE's defining criteria for "straw purchases" seems to be whose money is used to pay for the firearm. The BATFE regards "transferee/buyer" as one and the same. In the case we are discussing, the daughter is the transferee, but she did not pay for the gun. Nor did jaysouth send her the money and tell her to buy whatever she wanted. So she is not the actual purchaser.

And jaysouth did not buy the gun and take delivery himself, and then subsequently give it to his daughter. So in BARFE speak, it also isn't a gift.

I understand that the transaction seems to be innocent enough. The problem is that, as the saying goes, "the devil is in the details." If the BATFE criterion is "Did you pay for this firearm with your own money," the answer here is "No" and that's why I believe it is -- technically -- a straw purchase.

 

[mehavey]

The BATFE regards "transferee/buyer" as one and the same.

Notwithstanding that I've already taken the position advocating least vulnerability, where is that ever established in print ?
As before, I'm willing to roll over and play dead-cockroach at first cite.

(See again post #25 wherein the ATF uses the words "... or otherwise acquiring...", as well as simple transfers with no money involved at all.)

 

[zukiphile]

The BATFE don't have authority to define what is or is not a straw purchase, but note that the instructions don't indicate that jaysouth's transaction would be one.

Understood. But one of the BATFE's defining criteria for "straw purchases" seems to be whose money is used to pay for the firearm. The BATFE regards "transferee/buyer" as one and the same.

Even the instructions to 11a don't suggest that.

Question 11.a. Actual Transferee/Buyer:
For purposes of this form, a person is
the actual transferee/buyer if he/she is purchasing the firearm for him/herself or
otherwise acquiring the firearm for him/herself.

In jaysouth's scenario, his daughter is acquiring it for herself; he is only paying the distributor.

In the case we are discussing, the daughter is the transferee, but she did not pay for the gun. Nor did jaysouth send her the money and tell her to buy whatever she wanted. So she is not the actual purchaser.

Paying isn't who determines the true transferee. The regulation at issue regulates transfers, not purchases. (That seems counter-intuitive given the ordinary consumer experience of paying for something in order to rightfully possess it.)

And jaysouth did not buy the gun and take delivery himself, and then subsequently give it to his daughter. So in BARFE speak, it also isn't a gift.

The gift issue here doesn't arise because it was transferred to the true transferee.

Had jaysouth financed the transaction in an effort to falsely represent his daughter as the transferee, with an understanding with his daughter that he would come to possess the arm, then this would be a straw purchase. However jaysouth's scenario lacks this last part.

 

[Aguila Blanca]

^^^ But if you look at Abramski, the crux of the case was exactly whose money paid for the gun. Abraamski took possession from the vendor FFL by way of a 4473, and Abramski was not a prohibited person. Abramski then sent the gun to an FFL in Pennsylvania (his uncle's state of residence), and the uncle took possession by way of filling out a 4473. The uncle likewise was not a prohibited person.

BUT ... Abramski did not use his own money to by the gun. Prior to the initial purchase, the uncle sent the money to Abramski. And he issued a receipt -- it was that document that triggered the whole case. In other words, the whole problem was that Abramski "bought" the gun using someone else's money.

Isn't that essentially what happened with jaysouth and his daughter?

 

[zukiphile]

In other words, the whole problem was that Abramski "bought" the gun using someone else's money.

Isn't that essentially what happened with jaysouth and his daughter?

The whole problem in the Abramski case isn't the source of the money, but the principle-agent relationship of the true transferee and the represented transferee. The source of the money, paid through the agent, was viewed as evidence of the principle-agent relationship. The agent was buying an arm for his principle with money given to him by his principle for the purpose of posing as the true transferee.

In contrast, JS's daughter hasn't functioned as JS's agent. She is completing the 4473 because the arm really is for her.

 

[Spats McGee]

. . . .So in BARFE speak, . . .

Quoting this just because it's funny.

Back to the thread at hand. While I understand the concerns, and think a gift card would have alleviated some of these concerns, I don't think this is a straw purchase. Jaysouth is paying for the gun, but the daughter is picking it up the gun and filling out the 4473. There does not appear to be any agreement for daughter to deliver the pistol to jaysouth, which is what made for a straw purchase in Abramski. I can buy a pistol. I can buy someone else a pistol as a gift. I can give someone else money to buy a pistol, for themselves. What I cannot do is give someone money to buy a pistol for me.

 

[Aguila Blanca]

Spats, that was a typo. Unfortunately, that happens more often than I like, and more often when I'm using a notebook computer (as I am now, because my home internet is down due to storm damage).

I understand your point, but I remain unconvinced. Maybe I'm just excessively risk-averse. This is not a clear-cut question, as demonstrated by the fact the the nine SCOTUS justices could not agree on what the law is in the Abramski decision.

You are an attorney -- I am not. My layman's takeaway remains that the basic principle is that the person receiving the firearm must be the person whose money pays for the firearm. I'm sure it's not that simple, but I think that's what the first FFL jaysouth talked to thought, and my estimation is that if that rule (of thumb) is followed it's not difficult to stay out of trouble.

 

[zukiphile]

You are an attorney -- I am not. My layman's takeaway remains that the basic principle is that the person receiving the firearm must be the person whose money pays for the firearm. I'm sure it's not that simple, but I think that's what the first FFL jaysouth talked to thought, and my estimation is that if that rule (of thumb) is followed it's not difficult to stay out of trouble.

It's certainly possible that jaysouth ran into a sort of rough and ready rule applied by the counter people at a shop, a rule so simple that a clerk can't get it wrong.

That can be distinguished from the Rule of Abramski.

It's worth noting that the four justice dissent in Abramski argued that the federal regulation itself wasn't violated by Abramski, who as the person who bought the arm was the true buyer; that majority implied common law agency principles into the code, then ignored the common law definition of a straw purchase (an agent purchasing for a principle who is legally prohibited from purchase) where the principle was not prohibited from the transfer.

Even poorly reasoned Sup Ct opinions are binding until they aren't, but if we understand the reasoning of the majority in Abramski, then we can apply it to situations like jaysouth's.

 

[Aguila Blanca]

It's worth noting that the four justice dissent in Abramski argued that the federal regulation itself wasn't violated by Abramski, who as the person who bought the arm was the true buyer; that majority implied common law agency principles into the code, then ignored the common law definition of a straw purchase (an agent purchasing for a principle who is legally prohibited from purchase) where the principle was not prohibited from the transfer.

It's a common misconception that a straw purchase only occurs when someone purchases a firearm for someone else, who is prohibited. That's not so. That's part of it, and the dissenting opinion in Abramski[/] seemed to think that's the underlying purpose of the law (which is probably correct). BUT ...

What hung Abramski was that he didn't buy the gun with his own money. The uncle sent him the money prior to the purchase -- and created a paper trail. So, even though neither Abramski nor his uncle was a prohibited person, since it was the uncle's money it was deemed that Abramski was not the "actual purchaser."

Again, from the 4473 instructions for question 11.1:

Actual TRANSFEREE/buyer examples: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith (who may or may not be prohibited). Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer "NO" to question 11.a. The licensee may not transfer the firearm to Mr. Jones.

It's worth noting that we've had similar discussions previously: https://thefiringline.com/forums/showthread.php?t=552247

 

[Theohazard]

AB, notice that in the example you provided from the instructions on the 4473, the firearm is not for the person who is filling out the 4473. But in the case of the OP, the person who filled out the 4473 is the person who is getting the firearm. That’s the difference here.

If the person who is filling out the 4473 is the actual person who is getting the firearm (transferee), it doesn’t matter who pays for it; it’s not a straw purchase. But in the example from the 4473, the person paying for it is the person who is to receive the firearm, but they’re not the one who is filling out the 4473. That’s a straw purchase, and that’s why the ATF uses it as an example.

 

[zukiphile]

It's worth noting that the four justice dissent in Abramski argued that the federal regulation itself wasn't violated by Abramski, who as the person who bought the arm was the true buyer; that majority implied common law agency principles into the code, then ignored the common law definition of a straw purchase (an agent purchasing for a principle who is legally prohibited from purchase) where the principle was not prohibited from the transfer.

It's a common misconception that a straw purchase only occurs when someone purchases a firearm for someone else, who is prohibited. That's not so. That's part of it, and the dissenting opinion in Abramski[/] seemed to think that's the underlying purpose of the law (which is probably correct). BUT ...

It isn't a misconception that a straw purchase involves a principal disqualified from purchasing and using an agent to materially mislead, because that element is a part of the concept generally. The idea of a straw purchase isn't exclusive to arms transactions. The Abramski case isn't a great primer on straw purchases in part because the holding is something of an innovation on or deviation from commonly accepted ideas of the relationship. In the context of prior cases, you will see convictions upheld in straw purchase cases, but the principal is a prohibited person.

The source of the money and timing of the payment are prominent in the Abramski decision, but they are a prominent evidentiary matter. Payment isn't what makes a straw purchase; in the Abramski case it is evidence that the relationship was one of principal and agent. Payment isn't an element of the definition of the relationship.

Had no money changed hands, but the nephew had written a note -- "Dear Uncle, please misrepresent to the FFL that you are the transferee for a pistol so that it can really be transferred to me", that note would have had a similar effect in proving the nature of the relationship. Yet, a written note isn't necessary to, or part of the definition of, that relationship.

It's easy to see why a reader of Abramski could focus on the payment issue, but for the purpose of understanding the rule, it's a distraction.