Gift of handgun to 18 year old non-relative

This is a discussion on Gift of handgun to 18 year old non-relative within the General Firearm Discussion forums, part of the Related Topics category; Originally Posted by NavyLT Not according to some BATF agents and the FFLs who won't stand up to them. But, you are correct according to ...

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Thread: Gift of handgun to 18 year old non-relative

  1. #46
    Distinguished Member Array Agave's Avatar
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    Quote Originally Posted by NavyLT View Post
    Not according to some BATF agents and the FFLs who won't stand up to them. But, you are correct according to the law and BATF's own written regulations and manuals I am good to go.
    Documentation overrules any individual agent. A police officer may arrest me for having brown hair, but that doesn't mean it's illegal or will stand up in court. Why? Because there is no documentation, rule, or law saying that I can't have brown hair. A four dollar lawyer could get that thrown out.

    I plan to go to the pawn shop tomorrow. I'll copy the example from a 4473 word-for-word and post it here. It's plain as day that a gift is not a straw purchase.
    The preceding post may contain sarcasm; it's just better that way. However, it is still intended with construction and with the Love of my L-rd Y'shua.

    NRA Certified Pistol Instructor, Tennessee Certified Instructor

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  3. #47
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    It's plain as day that a gift is not a straw purchase.

    Agave,

    It's not as plain as day. It's written one way on the form and the word "gift" is open to interpretation and that interpretation is and can be enforced by field agents in some locales with restrictions . That's a muddy puddle, not a clear lake.

    You are correct, A gift is not a straw purchase. No one has argued differently here that I've seen. What constitutes a "gift" can, however, be interpreted differently by agents. Though the form doesn't list restrictions as to what a gift constitutes, there can be and is an interpretation of that word and what the local agents feel it means. The interpretation of a gift is the muddy water and what makes this not "plain as day".

    You don't argue with BATF field agents interpretations without consequences. I've not argued that a gift is not a straw purchase, in fact people buy guns as gifts in the shop all the time [ they fill out the 4473 with our full knowledge and consent to legally do so all the time ].

    A four dollar lawyer could get that thrown out.

    When you find one of those atty's that will guarantee his fee is 4.00 and he'll pay any fines the BATF imposes later, let me know. I'd be more than happy to pass that to the boss who's license is in jeopardy if we let someone "gift" a gun in direct conflict with two field agents interpretation of what they consider a legal "gift" and not a straw purchase.

    Apparently you aren't too familiar with the court systems, as you'd understand everything depends on an "interpretation" of facts in a court of law, not the written laws themselves. The courts are full of case law where an interpretation [ the finding ] is made by a jury or judge, and then appealed in hopes of getting a different interpretation from another jury or judge.

    Nothing is "plain as day" in law. Having worked within the justice/court systems for almost 3 decades I've seen many a law "interpreted" in one way by one judge and "interpreted" another way by an appeals judge or panel of judges, therby overturning the first judges interpretation of law.

    BTW, make sure you provide a copy of the new yellow 4473 form that's 6 pages and to be used no later than Nov 15 by all ffl dealers [ though it can be used now ], not the old forms.

    Brownie
    The mind is the limiting factor

    Quick Kill Rifle and Pistol Instructor

  4. #48
    Distinguished Member Array bandit383's Avatar
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    Quote Originally Posted by Agave View Post
    Documentation overrules any individual agent. A police officer may arrest me for having brown hair, but that doesn't mean it's illegal or will stand up in court. Why? Because there is no documentation, rule, or law saying that I can't have brown hair. A four dollar lawyer could get that thrown out.

    I plan to go to the pawn shop tomorrow. I'll copy the example from a 4473 word-for-word and post it here. It's plain as day that a gift is not a straw purchase.

    I have to chuckle...good luck.

    Rick

  5. #49
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    Documentation overrules any individual agent

    The only "documentation" that would overrule a local field agent or field office would be case law which has set precedent in this matter at some federal level, based on an appealed ruling and federal courts decision which has been argued by a plaintiff [ the ffl holder ] for relief on an explicit case within the context of the definition of "gift" in this instance.

    Once someone shows me case law anywhere/somewhere that defines a "gift" at the federal level based on case law, we can continue this discussion. Until that case law is found, if there is one or more instances of same, it's going to be on a case by case basis at the local level within the regional offices or field agents interpretation of the meaning of "gift".

    In other words-----

    One mans gift is another mans straw purchase until case law has set precedent in this discussion.

    Brownie
    The mind is the limiting factor

    Quick Kill Rifle and Pistol Instructor

  6. #50
    VIP Member Array CLASS3NH's Avatar
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    Quote Originally Posted by Tubby45 View Post
    This is again false. There is no federal law stating the person receiving the gift has to be an immediate family member or blood relative. None.


    As a business decision, they have the right to do that.
    Tubby
    I called 4 different FFL's I'm familliar with, and NONE of them would ever heard of a legal PRIVATE handgun sale to a COUSIN, who wishes to "GIFT" a gun to another COUSIN., or Nephew, or in-law who is under 21 The FFLs also mentioned that if they had the feeling the gun in front of them was going from a person 21 and older to a person UNDER 21, they would in fact STOP all motion with the sale, and one even said they'd contact the local PD about the attempt. You can go all day and night long about this, BUT, one thing stands out. Do you wish to take the chance of going to prison, with the way the BAFT Agent, or the PD sees what might be interpeted as a straw purchase?
    A private sale of the handgun to a person, who you may know or NOT know, could also be considered as illegal.
    Old saying is: "Don't fool with the bull, cuz ya might get the horns"
    I'm not going to post another reply to this thread, because it sounds like the thread will go on and on.
    To the original poster, who was asking the question, maybe you should go straight to the BATF, and WA State patrol Dept of Safety, and get the answer you are seeking. They will set the record straight.
    As far as FFL owners are concerned, it's their decision to sell, or deny a sale, based on what they see and hear. I'd never risk losing my license, just because....
    To the Admins and Mods, I appologize for being long winded about this, most of you know me from way back in the CC days. I just get passonate about some things like this
    Why Waltz when you can Rock-N-Roll

  7. #51
    Member Array stolivar's Avatar
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    you still don't get it do ya

    Gifting the gun to another individual does not make it a straw purchase. That is perfectly legal to do.

    BUT.......

    It is a straw purchase when you buy a gun to give to somebody that is not legally able to buy that same weapon from the FFL because he is not over 21. The kid is not able to buy the weapon from an ffl. so therefore somebody else has to get it for him. That is what makes it a straw purchase.

    Example:
    Signs of a Straw Purchase
    This section may contain original research or unverified claims.
    Please help Wikipedia by adding references. See the talk page for details.(August 2008)

    * The customer seems preoccupied as if he or she is trying to remember something they were supposed to get.
    * The customer seems ignorant about firearms and has no real desire to learn about them, yet still wants to buy one.
    * The customer comes into the store, notes the cheapest guns and then comes back with money.
    * The customer attempts to buy multiple handguns that cost less than $200 each.
    * The customer walks in with somebody who directs them on what to buy for them.
    * The customer says that he's actually buying the guns for someone else, underage.

    If the shopkeeper notices any of these signs, he or she has the right to refuse the sale regardless of the results of the NICS background check.

    Also: While a purchase as a gift is not considered a straw purchase under US federal law, as long as the recipient is not prohibited from possessing the firearm;




    steve

  8. #52
    VIP Member Array AZ Husker's Avatar
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    Geez LT, seems like you're certain. Just to ahead and do it. I still can't figure out why his Mom can't buy it for him...
    Treat me good, I'll treat you better. Treat me bad, I'll treat you worse.

  9. #53
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    Quote Originally Posted by CLASS3NH View Post
    Tubby
    I called 4 different FFL's I'm familliar with, and NONE of them would ever heard of a legal PRIVATE handgun sale to a COUSIN, who wishes to "GIFT" a gun to another COUSIN., or Nephew, or in-law who is under 21 The FFLs also mentioned that if they had the feeling the gun in front of them was going from a person 21 and older to a person UNDER 21, they would in fact STOP all motion with the sale, and one even said they'd contact the local PD about the attempt. You can go all day and night long about this, BUT, one thing stands out. Do you wish to take the chance of going to prison, with the way the BAFT Agent, or the PD sees what might be interpeted as a straw purchase?
    I've personally done 3 sales to this effect.

    Buyer wants to gift a handgun to an 18-20yo known person. It's been one brother-sister, one boyfriend-girlfriend's son, and one cousin to cousin.

    I contacted the ATF local office in Grand Rapids as well as in DC. I told them exactly what was taking place. They said that's a gift transaction, not a straw purchase.

    Here's how everything went down:

    Buyer filled out 4473 form. Went to local PD to register pistol. Filled out Pistol Sales Record form listing the gift recipient as the buyer (person receiving firearm). Gift recipient registered pistol in their name. 100 percent legal and in compliance with local, state, and federal law.

    ATF defines a straw purchase as “the acquisition of a firearm(s) from an FFL by an individual (the “straw”) done for the purpose of concealing the identity of the true intended receiver of the firearms.” (ATF Order 3310.4B, Firearms Enforcement Program, Chapter K, Section 143(ee).)
    07/02 FFL/SOT since 2006

  10. #54
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    Finally Final.... really

    Received the response from the Seattle Division Office. In short, the ATF agent said exactly what I did. It's legal. Probably won't find an FFL that will do it with the kid there to pick out his own gun. It's a sad state of affairs when legitimate business owners have to be afraid of the government's agents while conducting perfectly legal business. Hmmmm.... sounds like some other countries we read about.

    Lt. H(edited),

    Part 11a of the ATF form 4473 (firearms transactions record) certifies you are the actual buyer of the firearm. I would not advise taking your girlfriends son with you during the purchase. It will raise too many and questions by the FFL and look like a straw purchase which is illegal. Form 4473 states that you are the purchaser if you are legitimately purchasing the firearm as a gift for a third party. So, you would answer YES to question 11a. However; you may not transfer a firearm to any person you know or have reasonable cause to believe is prohibited under 18 USC 922. Please keep in mind that 18 year olds are prohibited from purchasing firearms. They may possess them but not purchase them.

    I hope that I did not confuse you with my answer. Bottom line is you can purchase the firearm as a gift. My advise would be have the girlfriends son pick one out online that he like (of course he can’t get the “feel” or “comfort” by looking at a picture) then YOU go buy it for him. Taking him in could just cause too many headaches for you. If you have any other questions please feel free to contact me.

    Nick (edited)
    Special Agent/Senior Operations Officer
    Bureau of Alcohol, Tobacco, Firearms and Explosive
    Seattle Field Division
    915 Second Ave. Suite 790
    Seattle, WA 98174

  11. #55
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    Part 11a of the ATF form 4473 (firearms transactions record) certifies you are the actual buyer of the firearm. I would not advise taking your girlfriends son with you during the purchase. It will raise too many and questions by the FFL and look like a straw purchase which is illegal.

    Seems the agent has confirmed what I've stated repeatedly here. What you do with your purchase after you leave the store has no bearing on the ffl, and if the ffl is made aware of this scenario [ intent to gift it to the kid ], you'll likely not be buying the gun as it's considered a straw purchase, whether that is right or wrong, that is the way it is.

    It also appears the two agents who stated we were not to allow this type of sale were also correct, at least in theory, so they weren't full of crap.

    Brownie
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  12. #56
    Ex Member Array NavyLT's Avatar
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    AND....

    Regarding the family member falacy:

    Lt.

    If you read the example given on the back of the 4473 it describes the gift purchase. It does not say anything about immediate family member. You should have no issue with this purchase. I checked with the Seattle Division Area Supervisor for Inspections and she too sees no issue with your planned purchase. Take care and be safe until your return.

    God Bless you Sir and thank you for what you do.

    Nick

    Sent: Sat Oct 25 01:42:42 2008
    Subject: RE: Handgun gift to 18 year old

    Thank you very much for your reply, Nick.

    There seems to be an opinion floating around FFL's that gift purchases are only allowed to be made when the gift is for an immediate family member. At least two FFL's had told me that their ATF Field Agents conducting audits at their store told them flat out that any gift purchase for a person other than an immediate family would be viewed by them as a straw purchase with appropriate action taken by the ATF. Obviously this is blantantly in error according to page 165 of the FFL's Guide to Fed Regs of 2005 which states gifts to any other person are not straw purchases. Do you happen to know where this idea may have come from?

    Unfortunately, these discussions occured online and the affected FFLs would not disclose to me the name of the field agent nor the disctrict they were from. It certainly sounds to me like these field agents are playing gestapo and enforcing their own opinions rather than written regulation.

    The Seattle Field Office has always given me straight-up by the book answers and I appreciate your efforts very much.

    Thank you,
    Very Respectfully,
    LT John (edited)

  13. #57
    Ex Member Array NavyLT's Avatar
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    Quote Originally Posted by AzQkr View Post
    Part 11a of the ATF form 4473 (firearms transactions record) certifies you are the actual buyer of the firearm. I would not advise taking your girlfriends son with you during the purchase. It will raise too many and questions by the FFL and look like a straw purchase which is illegal.

    Seems the agent has confirmed what I've stated repeatedly here. What you do with your purchase after you leave the store has no bearing on the ffl, and if the ffl is made aware of this scenario [ intent to gift it to the kid ], you'll likely not be buying the gun as it's considered a straw purchase, whether that is right or wrong, that is the way it is.

    It also appears the two agents who stated we were not to allow this type of sale were also correct, at least in theory, so they weren't full of crap.

    Brownie
    Considered a straw purchase ONLY BY THE FFL, not by the law, and not by the ATF. But, the guy who has what you want also has the power. And the agents were full of crap, because the ATF says it is a LEGAL purchase, it is NOT a straw purchase. The ATF is advising me that the FFL will likely not perform a completely LEGAL transaction.

  14. #58
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    "If you read the example given on the back of the 4473 it describes the gift purchase. It does not say anything about immediate family member. You should have no issue with this purchase. I checked with the Seattle Division Area Supervisor for Inspections and she too sees no issue with your planned purchase. Take care and be safe until your return."

    Both of those phrases by the two agents mentioned are only their opinions, not a cited case law decision determined by a federal court judge based on a trial decision.

    There's those ugly phrases inferring their "interpretation" again that both worded very carefully in reading the response. Should have no issue, sees no issue, are not the same as stating emphatically NO ISSUE and citing case law. Ifthere were case law, they'd have likely been aware of and stated the federal decision which would have settle this.

    And the agents were full of crap, because the ATF says it is a LEGAL purchase, it is NOT a straw purchase.

    See above on "interpretations". The two agents you quoted stated opinions, not law making it legal. That's your own "interpretation" of what they answered as opinions.

    I don't see where their interpretation [ and thats all they stated by their wording ] has any more validity than the agents dealing with our shop John. Show me a case law precedent setting decision, then I'll take it to boss and field agents. Until then, everyone has an opinion on this, and I'll abide by our local agents opinions as they have jurisdiction over the shop.

    Brownie
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    Quick Kill Rifle and Pistol Instructor

  15. #59
    Member Array stolivar's Avatar
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    Even the ATF agent said it would look funny

    and it does. If you would have bought the gun and took it home and then transferred it to him legally for you state you would not have had a problem. That is by not telling the FFl what you wanted to do.

    The problem is when you told the FFL or us the same thing it looked like a straw purchase. Most if not all FFL's will not risk their license for you......

    I still would let him pick it out on the internet, then let momma do it for him and whalla, you would have no problem with the FFL.

    That is what we have been telling you the whole time. Now in my state before last sept of last year you could not have even done what you wanted in Missouri. It would have been illegal. We had to have a permit to acquire a handgun then.


    steve

  16. #60
    Ex Member Array NavyLT's Avatar
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    Quote Originally Posted by stolivar View Post
    Gifting the gun to another individual does not make it a straw purchase. That is perfectly legal to do.

    BUT.......

    It is a straw purchase when you buy a gun to give to somebody that is not legally able to buy that same weapon from the FFL because he is not over 21. The kid is not able to buy the weapon from an ffl. so therefore somebody else has to get it for him. That is what makes it a straw purchase.

    Example:
    Signs of a Straw Purchase
    This section may contain original research or unverified claims.
    Please help Wikipedia by adding references. See the talk page for details.(August 2008)

    * The customer seems preoccupied as if he or she is trying to remember something they were supposed to get.
    * The customer seems ignorant about firearms and has no real desire to learn about them, yet still wants to buy one.
    * The customer comes into the store, notes the cheapest guns and then comes back with money.
    * The customer attempts to buy multiple handguns that cost less than $200 each.
    * The customer walks in with somebody who directs them on what to buy for them.
    * The customer says that he's actually buying the guns for someone else, underage.

    If the shopkeeper notices any of these signs, he or she has the right to refuse the sale regardless of the results of the NICS background check.

    Also: While a purchase as a gift is not considered a straw purchase under US federal law, as long as the recipient is not prohibited from possessing the firearm;




    steve
    Sorry, Stolivar, but you are absolutely wrong. According to the written interpretation of the law, provided by the ATF which I have posted, and according to the written opinion in email I received from an ATF agent and his supervisor, all three of those ATF sources have said that you are wrong.

    A gun purchased with the intention of gifting that firearm to ANY OTHER PERSON is not a straw purchase. PERIOD. NO IF ANDS OR BUTS.

    If I give that gun to an ineligible person to POSSESS that gun, not purchase it, but POSSESS it, than I am guilty of a different section of 18 USC 922 - the section regarding transfer, sale, or GIFT of a firearm to an ineligible person. However, three different sources from the ATF had said that I would NOT be guilty of the straw purchase part of the 18 USC 922. Do you even know what section of 18 USC 922 straw purchase is covered under? It is the section that say no false written or oral statement shall be made to a dealer in regards to the purchase of a firearm or ammunition.

    I can give that gun to person who is ineligible to purchase it from a dealer, because I am not a dealer!, and as long as they are eligible to POSSESS that gun, I have broken no laws, not one.

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