New firearm return from manufacturer in WA

[physicsdudewa]

It looks like the Taurus Carter settlement has been upheld by the appeals court. This means there are going to be people, like me, sending in our class pistols to get an upgraded G2 of similar caliber.

In Washington state, I would like to know if I will need a background check to receive my new pistol? I have been thinking about going through an FFL for the whole process, I may HAVE TO go through them. I would prefer that I didn't have unnecessary background checks.

Am I even allowed, in WA, to send my pistol straight to the manufacturer. If YES, can I receive the replacement pistol to my door?

I have attempted to research this. I asked an FFL and they said I would have to go through a FFL... however ... they couldn't tell me why.

Thanks

 

[Snyper]

Federal law allows individuals to send guns for repair and have then sent directly back.
You need to be asking the LEO's in Washington this question since their laws may be different.

 

[cjwils]

I suggest that you should google I-594 and read the actual text of that measure, which is now the law of Washington State. It says that when you send a gun to a licensed manufacturer for repair, that is an exception, and you do not need to go through an FFL (See Sec 3 (4) (e)). However, your situation, where you expect to get a new gun back from the manufacturer, is not covered by the exceptions; therefore I think you are required to go through an FFL.

I must disagree with Snyper. Don't ask an LEO. Many don't understand the this law, and in some parts of Washington State you will find that some might be hostile to gun owners.

I would hope that your FFL would be willing to look at the actual text in order to get a better understanding.

 

[Frank Ettin]

....You need to be asking the LEO's in Washington this question since their laws may be different.

In general LEOs aren't in the business of interpreting laws and giving citizens advice on how laws might apply to a specific question. They tend to be a poor choice for information on laws that don't apply to their daily activities.

The Washington State background check law is now found at RCW 9.41.113:

RCW 9.41.113

Firearm sales or transfers—Background checks—Requirements—Exceptions.

*** CHANGE IN 2017 *** (SEE 5552-S.SL) ***

(1) All firearm sales or transfers, in whole or part in this state including without limitation a sale or transfer where either the purchaser or seller or transferee or transferor is in Washington, shall be subject to background checks unless specifically exempted by state or federal law. The background check requirement applies to all sales or transfers including, but not limited to, sales and transfers through a licensed dealer, at gun shows, online, and between unlicensed persons.

(2) No person shall sell or transfer a firearm unless:

(a) The person is a licensed dealer;

(b) The purchaser or transferee is a licensed dealer; or

(c) The requirements of subsection (3) of this section are met.
​

(3) Where neither party to a prospective firearms transaction is a licensed dealer, the parties to the transaction shall complete the sale or transfer through a licensed dealer as follows:

(a) The seller or transferor shall deliver the firearm to a licensed dealer to process the sale or transfer as if it is selling or transferring the firearm from its inventory to the purchaser or transferee, except that the unlicensed seller or transferor may remove the firearm from the business premises of the licensed dealer while the background check is being conducted. If the seller or transferor removes the firearm from the business premises of the licensed dealer while the background check is being conducted, the purchaser or transferee and the seller or transferor shall return to the business premises of the licensed dealer and the seller or transferor shall again deliver the firearm to the licensed dealer prior to completing the sale or transfer.

(b) Except as provided in (a) of this subsection, the licensed dealer shall comply with all requirements of federal and state law that would apply if the licensed dealer were selling or transferring the firearm from its inventory to the purchaser or transferee, including but not limited to conducting a background check on the prospective purchaser or transferee in accordance with federal and state law requirements and fulfilling all federal and state recordkeeping requirements.

(c) The purchaser or transferee must complete, sign, and submit all federal, state, and local forms necessary to process the required background check to the licensed dealer conducting the background check.

(d) If the results of the background check indicate that the purchaser or transferee is ineligible to possess a firearm, then the licensed dealer shall return the firearm to the seller or transferor.

(e) The licensed dealer may charge a fee that reflects the fair market value of the administrative costs and efforts incurred by the licensed dealer for facilitating the sale or transfer of the firearm.
​

(4) This section does not apply to:

(a) A transfer between immediate family members, which for this subsection shall be limited to spouses, domestic partners, parents, children, siblings, grandparents, grandchildren, nieces, nephews, first cousins, aunts, and uncles, that is a bona fide gift;

(b) The sale or transfer of an antique firearm;

(c) A temporary transfer of possession of a firearm if such transfer is necessary to prevent imminent death or great bodily harm to the person to whom the firearm is transferred if:

(i) The temporary transfer only lasts as long as immediately necessary to prevent such imminent death or great bodily harm; and

(ii) The person to whom the firearm is transferred is not prohibited from possessing firearms under state or federal law;​

(d) Any law enforcement or corrections agency and, to the extent the person is acting within the course and scope of his or her employment or official duties, any law enforcement or corrections officer, United States marshal, member of the armed forces of the United States or the national guard, or federal official;

(e) A federally licensed gunsmith who receives a firearm solely for the purposes of service or repair, or the return of the firearm to its owner by the federally licensed gunsmith;

(f) The temporary transfer of a firearm (i) between spouses or domestic partners; (ii) if the temporary transfer occurs, and the firearm is kept at all times, at an established shooting range authorized by the governing body of the jurisdiction in which such range is located; (iii) if the temporary transfer occurs and the transferee's possession of the firearm is exclusively at a lawful organized competition involving the use of a firearm, or while participating in or practicing for a performance by an organized group that uses firearms as a part of the performance; (iv) to a person who is under eighteen years of age for lawful hunting, sporting, or educational purposes while under the direct supervision and control of a responsible adult who is not prohibited from possessing firearms; or (v) while hunting if the hunting is legal in all places where the person to whom the firearm is transferred possesses the firearm and the person to whom the firearm is transferred has completed all training and holds all licenses or permits required for such hunting, provided that any temporary transfer allowed by this subsection is permitted only if the person to whom the firearm is transferred is not prohibited from possessing firearms under state or federal law; or

(g) A person who (i) acquired a firearm other than a pistol by operation of law upon the death of the former owner of the firearm or (ii) acquired a pistol by operation of law upon the death of the former owner of the pistol within the preceding sixty days. At the end of the sixty-day period, the person must either have lawfully transferred the pistol or must have contacted the department of licensing to notify the department that he or she has possession of the pistol and intends to retain possession of the pistol, in compliance with all federal and state laws.​

[2015 c 1 § 3 (Initiative Measure No. 594, approved November 4, 2014).]

If someone needs the most authoritative information regarding the application of the law to a specific set of facts, he should hire a knowledgeable lawyer.

 

[Aguila Blanca]

(1) All firearm sales or transfers, in whole or part in this state including without limitation a sale or transfer where either the purchaser or seller or transferee or transferor is in Washington, shall be subject to background checks unless specifically exempted by state or federal law. The background check requirement applies to all sales or transfers including, but not limited to, sales and transfers through a licensed dealer, at gun shows, online, and between unlicensed persons.

Recognizing that I am not a lawyer, I would read this clause and think that, since federal law does not prohibit a firearms manufacturer from replacing a defective firearm and "returning" the replacement directly to the customer, this language should allow that to take place in Washington without having to pass the return through an FFL for a background check.

 

[Frank Ettin]

....I would read this clause and think that, since federal law does not prohibit a firearms manufacturer from replacing a defective firearm and "returning" the replacement directly to the customer, this language should allow that to take place in Washington without having to pass the return through an FFL for a background check.

That's an attractive argument. The open question will be whether a Washington State court would see it that way.

There's also paragraph (4)(e):

(4) This section does not apply to:

(a) ..

(b) ...

(c) ...

(d) ...

(e) A federally licensed gunsmith who receives a firearm solely for the purposes of service or repair, or the return of the firearm to its owner by the federally licensed gunsmith;

(f)...

(g)...​

But there's still the question of how a Washington State court would apply that, i. e., would such court read "federally licensed gunsmith" to include a federally licensed manufacturer. A court should, but we won't know for sure until the question comes up.

 

[Aguila Blanca]

That's an attractive argument. The open question will be whether a Washington State court would see it that way.

...

But there's still the question of how a Washington State court would apply that, i. e., would such court read "federally licensed gunsmith" to include a federally licensed manufacturer. A court should, but we won't know for sure until the question comes up.

That's the sticky wicket. No matter what we think it says, what matters is what the court of jurisdiction thinks it says. And the only way to find that out is for someone to be arrested and tried as the test case.

Any volunteers?

I suppose another technical question might be, if the manufacturer is outside of Washington state and the owner returns the firearm to said manufacturer for repair, and the manufacturer determines that replacement is to be the mode of "repair," that's interstate commerce. Can Washington state law impose itself on a transaction under interstate commerce when federal law expressly allows the transaction?

 

[Snyper]

In general LEOs aren't in the business of interpreting laws and giving citizens advice on how laws might apply to a specific question.

They tend to be a poor choice for information on laws that don't apply to their daily activities.

They rate higher than strangers in other states in an internet chat room.

 

[Aguila Blanca]

They rate higher than strangers in other states in an internet chat room.

Not really. Example:

Many years ago, before I had my carry permit, I was dating a woman whose nephew was a police officer in a nearby municipal police department. We were at the cop's father's place for a 4th of July fireworks show (totally illegal in my state), and somehow the subject of going to a shooting range came up. I asked the cop if it was legal for me to take an old handgun I owned to a range for practice. He said "Sure, as long as it's unloaded."

I'm glad I never got around to doing it, because when I later read the law I discovered that transporting to a range to shoot is NOT one of the places an unlicensed person is allowed to transport in my state. And doing so is a felony offense.

If I had asked on the Internet (if this had taken place after Al Gore invented the Internet), someone would have asked me "What state?" and then someone would have looked up and quoted the law.

 

[carguychris]

...there are going to be people, like me, sending in our class pistols to get an upgraded G2 of similar caliber.

I have attempted to research this. I asked an FFL and they said I would have to go through a FFL... however ... they couldn't tell me why.

There IS a potential explanation in federal law.

18 USC § 922(a)(2)(A) allows a FFL to return a "replacement firearm of the same kind and type" to a non-licensed person (my emphasis underlined).

(a) It shall be unlawful—

(2) for any importer, manufacturer, dealer, or collector licensed under the provisions of this chapter to ship or transport in interstate or foreign commerce any firearm to any person other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, except that—

(A) this paragraph and subsection (b)(3) shall not be held to preclude a licensed importer, licensed manufacturer, licensed dealer, or licensed collector from returning a firearm or replacement firearm of the same kind and type to a person from whom it was received; and this paragraph shall not be held to preclude an individual from mailing a firearm owned in compliance with Federal, State, and local law to a licensed importer, licensed manufacturer, licensed dealer, or licensed collector...

27 CFR § 478.124(a) allows the replacement to be sent directly to a non-licensed person with no Form 4473 and thus no FFL transfer.

(a) A licensed importer, licensed manufacturer, or licensed dealer shall not sell or otherwise dispose, temporarily or permanently, of any firearm to any person, other than another licensee, unless the licensee records the transaction on a firearms transaction record, Form 4473: Provided, That a firearms transaction record, Form 4473, shall not be required to record the disposition made of a firearm delivered to a licensee for the sole purpose of repair or customizing when such firearm or a replacement firearm is returned to the person from whom received.

HOWEVER... the Carter v. Forjas Taurus settlement allows the owner to claim a G2 in exchange for several other Taurus pistol models.

AFAIK there is some ambiguity regarding the interpretation of the "same kind and type" language in 18 USC § 922(a)(2)(A), and some manufacturers have taken a very conservative and literal approach to the clause—i.e. they will only ship a replacement firearm that is THE EXACT SAME MODEL directly back to the owner.

The FFL may have gotten burned in the past in a similar situation, and is hesitant to promise better results this time.

I don't really know much of anything about the Carter v. Forjas Taurus settlement specifically, so I can't comment on how Taurus is handling such situations.

 

[motorhead0922]

Hi physicsdudewa. Welcome to TFL.

https://www.tauruscartersettlement.com/ says:

The Taurus Companies will pay all costs associated with this enhanced warranty, including but not limited to the cost of shipping to and from the Taurus Companies and the cost to inspect the Class Pistol.

This sounds like Taurus will pay for an FFL if needed. Of course, I take "pay all costs" to mean "pay all costs".

Call Taurus or the number listed at the bottom of the link above and see what they say.

 

[Shenna9220]

Ruger replaced my new SP101. Had to be sent to an FFL and I had to pay for a background check. If the serial number changes they said it has to go through an FFL.

 

[Aguila Blanca]

Ruger replaced my new SP101. Had to be sent to an FFL and I had to pay for a background check. If the serial number changes they said it has to go through an FFL.

Conversely, I had a revolver replaced by the manufacturer, and they sent it directly to me. I won't name the manufacturer, but it's a large company that's still in business so I'm going to assume they know what's legal. (Possibly a dangerous assumption.) It certainly seems to be consistent with the language of the federal law (I am not in Washington state, and this took place several years ago anyway). The law was quoted in post #10, above.

After all, what's the purpose of the 4473 and the background check? To verify that the buyer is not prohibited from taking possession of the firearm. Once it has been established that the buyer is not prohibited, what difference does it make if a firearm sent in for warranty service is repaired and returned, or replaced? The owner still has just one firearm, and he has already passed a background check.

In states such as New York, where firearms are registered by serial number, then perhaps a replacement might have to go through an FFL to get it into the system. But, in that case, how does the old serial number get removed from the system? In my case, I shipped the gun directly to the manufacturer, I didn't use an FFL. This is not uncommon -- a number of manufacturers will issue a call tag and pay for the shipping if you ask nicely.

 

[drunder40]

Recognizing that I am not a lawyer, I would read this clause and think that, since federal law does not prohibit a firearms manufacturer from replacing a defective firearm and "returning" the replacement directly to the customer, this language should allow that to take place in Washington without having to pass the return through an FFL for a background check.

If you are receiving back a repalcement firearm form a manufacturer and that firearm has a different serial number from the one originally purchased, wouldn't that require a background check by default..

Just curious..

 

[carguychris]

If you are receiving back a repalcement firearm form a manufacturer and that firearm has a different serial number from the one originally purchased, wouldn't that require a background check by default..

Not necessarily, provided that it is a "...replacement firearm of the same kind and type..," and such a transaction is not prohibited by state law. There is a specific "carve-out" in federal law for this type of transaction. See the excerpts that I posted earlier.

Federal law is silent on the topic of the replacement firearm's serial number, so the transaction is treated the same way regardless. FWIW the transaction will be recorded in the manufacturer's bound book, so the replacement firearm's initial disposition can still be traced by the ATF, despite the lack of a 4473 on the receiving end.

I'm not addressing WA state law, nor the hypothetical NY licensing scenario posited by Aguila Blanca, as I don't know enough about either state's laws. The important takeaway is that this transaction is allowed by federal law, but it could be prohibited by state law, either explicitly or implicitly.

 

[drunder40]

Not necessarily, provided that it is a "...replacement firearm of the same kind and type..," and such a transaction is not prohibited by state law. There is a specific "carve-out" in federal law for this type of transaction. See the excerpts that I posted earlier.

Federal law is silent on the topic of the replacement firearm's serial number, so the transaction is treated the same way regardless. FWIW the transaction will be recorded in the manufacturer's bound book, so the replacement firearm's initial disposition can still be traced by the ATF, despite the lack of a 4473 on the receiving end.

I'm not addressing WA state law, nor the hypothetical NY licensing scenario posited by Aguila Blanca, as I don't know enough about either state's laws. The important takeaway is that this transaction is allowed by federal law, but it could be prohibited by state law, either explicitly or implicitly.

Understand.. Appreciate the clarification

 

[Aguila Blanca]

If you are receiving back a repalcement firearm form a manufacturer and that firearm has a different serial number from the one originally purchased, wouldn't that require a background check by default..

Why? That would be the "default" only if the law makes that the default.

The law was quoted in post #10. Read the law. Where does it require a new background check (and a new 4473) for a firearm replaced by the manufacturer under warranty?