Posted: 4/12/2017 9:59:20 AM EDT
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The friends of Nra Is having an annual raffle and guns are being raffled off.
So, hypothetical question. If an item was won at a raffle by a prohibited person, could the winning raffle ticket be given to someone else to take possession of the item, to be later transferred to the prohibited person once they were no longer prohibited, or would that be straw purchase? Thanks! |
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Not a lawyer but I'll give my input. I think the scenario can be separated up into 2 different things.
#1: Giving the ticket away prior to claiming the prize. I don't think there is any law that would prevent a person from giving a winning ticket to another person prior to the prize being claimed. The prize itself doesn't really matter before it is claimed. #2: A person/friend holding onto firearms while a person is prohibited or giving them back after the person is no longer prohibited. This too is legal; it does get a bit more "sticky" but it is a common occurrence for a non-prohibited person to hold onto firearms for a prohibited person for a time; this would typically be a friends/family type deal. I see little difference between that, and a friend claiming a prize with a ticket you gifted him, under the agreement that if at some point in the future you are no longer prohibited he would gift the firearm to you. Worst case scenario if you wanted to be sure it was all legal and no straw-purchase was going on, gift the ticket to the friend under an agreement that in the future he will gift the firearm back to you (or sell to you for $1) AND the transfer takes place through an FFL when the time comes. This would entirely avoid the straw-purchase argument because it makes it clear that nobody is trying to avoid a background check. |
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I am not a lawyer nor did I spend last night in a Holiday Inn Express, so take what I am about to say with a large grain of salt.
According to the scenario described above; aren’t you committing a felony by responding yes to question 11a on Form 4473? Form 4473 question 11a asks: “Are you the actual transferee/ buyer of the firearm(s) listed on this form? Warning: You are not the actual transferee/buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual transferee/buyer, the licensee can not transfer the firearm(s) to you.” I am not trying to tell you what to do, but be aware that you better be able to articulate why answering yes to this question is a truthful answer (and your explanation, as stated above, sounds like a definite “NO” to me). If this was my friend, I probably would not do it. If it was a relative, I would have them gift me the raffle ticket prior to the drawing. Then if I won, the gun would be mine. If at some later date I decided I really didn’t want the gun, I would sell it. If my relative happened to be interested in buying the gun, I would probably let them have it at a pretty good price (but the transfer/sale would be through an FFL). |
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Quoted:
I am not a lawyer nor did I spend last night in a Holiday Inn Express, so take what I am about to say with a large grain of salt. According to the scenario described above; aren’t you committing a felony by responding yes to question 11a on Form 4473? Form 4473 question 11a asks: “Are you the actual transferee/ buyer of the firearm(s) listed on this form? Warning: You are not the actual transferee/buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual transferee/buyer, the licensee can not transfer the firearm(s) to you.” I am not trying to tell you what to do, but be aware that you better be able to articulate why answering yes to this question is a truthful answer (and your explanation, as stated above, sounds like a definite “NO” to me). If this was my friend, I probably would not do it. If it was a relative, I would have them gift me the raffle ticket prior to the drawing. Then if I won, the gun would be mine. If at some later date I decided I really didn’t want the gun, I would sell it. If my relative happened to be interested in buying the gun, I would probably let them have it at a pretty good price (but the transfer/sale would be through an FFL). Giving firearms to another for safe keeping during periods when the rightful owner will be a prohibited person is not illegal. If a 4473 were to be filled out when giving them to that person would he/she be able to answer Yes to that question? If so, I don't see how the transferee in this situation couldn't also answer YES. They are the transferee. Gifting of firearms is not prohibited provided the person is not a prohibited person; buying or receiving firearms with the explicit purpose of gifting them also is not prohibited. Buying them on behalf of somebody else that IS prohibited is illegal. I think this definitely treads on a fine line, but in my non-lawyer opinion, especially given that a 2nd background check will be performed when the firearm goes back to the previously prohibited person, I don't think it crosses the line. I'm curious to hear what the actual legal-eagles have to say. Questions I think play a very important role in the answer include: If it is unknown if the person will ever become non-prohibited (don't know if that applies in this case), can an argument even be made that the transferee is acquiring it for somebody else? Does it matter if there is an actual time-line for the 2nd transfer to the previously prohibited person? If so, what period of time is acceptable and what is not? If doing this is legal, is the 2nd background check a necessity or just an "insulator" against legal scrutiny? If the original winner transfers the ticket prior to claiming the prize was/he the original rightful owner of the property? How does that play a role in this? How does the holding of weapons during periods of prohibition correlate to receiving a new firearm by a 3rd party during periods of prohibition? What if instead of a raffle this were a case of inheritance, how would that correlate? |
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A lot of people go to prison because they do not know the law and therefore say something stupid to the wrong person. I think this is possibly one of those scenarios.
My whole point was and is, be very careful how you articulate what you are thinking about doing. Another point you seem to be missing is that lying on a Form 4473 is a felony, this is a stand alone crime. Nothing else going on in this story has any bearing on that crime. You can purchase (acquire) a firearm from an FFL only for your own personal use (which includes purchasing said firearm as a gift for someone else). But you must be the actual purchaser and if you intend to give it to somebody else, it must truely be a gift. Also to the best of my knowledge timing has nothing to do with the law. I can buy a firearm from an FFL and as I walk out of the store realize it isn’t what I wanted, then sell it to the first person I see on the sidewalk. I am perfectly legal as long as my original intention was to purchase the firearm for myself. There is no provision in the law for an individual to purchase a firearm for somebody else and sure as hell not for a prohibited person (to hold until they possibly become an un-prohibited person). I assume you don’t remember the story that was in the papers from a few years back about a police officer who went to prison for purchasing a Blue label Glock for his uncle (I believe a retired police officer). It was perfectly legal for the uncle to purchase the Glock, but he wanted the Blue label police price discount that active LEO get. It was also perfectly legal for the nephew to give his uncle any firearm he wanted to. The uncle wrote his nephew a check for the purchase price and in the “For” portion of the check wrote: “purchase of a Glock pistol”. Nephew took the check to the bank and cashed it, then went to the FFL and purchased the Glock with cash. He answered “Yes” to 11a. I don’t remember how or why the ATF found out about the whole deal, but said police officer was prosecuted, found guilty and went to prison for the straw purchase of a firearm on the basis of the note on the check. The whole point of my first response (if you read between the lines) was/is be able to articulate what you intend to do in a way that is 100% legal and then only tell that story. As a second issue, I would never transfer a firearm to anybody I had any reason to think may have ever been a prohibited person (another stand alone felony) without going through an FFL to insure I was not committing a felony. IANAL & YMMV |
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Quoted:
A lot of people go to prison because they do not know the law and therefore say something stupid to the wrong person. I think this is possibly one of those scenarios. My whole point was and is, be very careful how you articulate what you are thinking about doing. Another point you seem to be missing is that lying on a Form 4473 is a felony, this is a stand alone crime. Nothing else going on in this story has any bearing on that crime. You can purchase (acquire) a firearm from an FFL only for your own personal use (which includes purchasing said firearm as a gift for someone else). But you must be the actual purchaser and if you intend to give it to somebody else, it must truely be a gift. Also to the best of my knowledge timing has nothing to do with the law. I can buy a firearm from an FFL and as I walk out of the store realize it isn’t what I wanted, then sell it to the first person I see on the sidewalk. I am perfectly legal as long as my original intention was to purchase the firearm for myself. There is no provision in the law for an individual to purchase a firearm for somebody else and sure as hell not for a prohibited person (to hold until they possibly become an un-prohibited person). I assume you don’t remember the story that was in the papers from a few years back about a police officer who went to prison for purchasing a Blue label Glock for his uncle (I believe a retired police officer). It was perfectly legal for the uncle to purchase the Glock, but he wanted the Blue label police price discount that active LEO get. It was also perfectly legal for the nephew to give his uncle any firearm he wanted to. The uncle wrote his nephew a check for the purchase price and in the “For” portion of the check wrote: “purchase of a Glock pistol”. Nephew took the check to the bank and cashed it, then went to the FFL and purchased the Glock with cash. He answered “Yes” to 11a. I don’t remember how or why the ATF found out about the whole deal, but said police officer was prosecuted, found guilty and went to prison for the straw purchase of a firearm on the basis of the note on the check. The whole point of my first response (if you read between the lines) was/is be able to articulate what you intend to do in a way that is 100% legal and then only tell that story. As a second issue, I would never transfer a firearm to anybody I had any reason to think may have ever been a prohibited person (another stand alone felony) without going through an FFL to insure I was not committing a felony. IANAL & YMMV That being said, proving intent is VERY hard unless there is concrete evidence like in the scenario you posted. Time is one thing that makes proving intent more difficult. Other factors where-in the involved parties take steps to attempt to do things right can also make it harder to prove intent to A) do wrong, or B) carryout a straw-purchase. I would like to hear from a legal expert how the 2nd background check affects all of this. I think it forms a pretty good insulation against the intent of straw-purchase if, at a later date, the firearm is gifted back and the background check is completed. Yes, the "intent" may have been there all along but how is it proven? |
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Yes, the "intent" may have been there all along but how is it proven?
The easiest (and usual) way is for the guilty party to make statements proving their own guilt. I do quite a bit of training with LEO and I can’t remember the number of times (dozens) they have talked about contacting an individual who would not shut up, admitted to crimes the LEO was unaware of (or had no proof of) and basically talked themselves into an arrest. This is apparently a big enough problem that when I went to a presentation (about 10 years ago) put on by the local police department to discuss then recent changes in state firearms laws, the first thing out of the presenting officer’s mouth to the audience was: “Don’t tell me any stories or start any questions with, once upon a time I ..., It is probably illegal and I don’t want to have to arrest anybody tonight.” |
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I’m not telling you to do it or not do it. What I am saying is be very careful how you and your friend phrase your intentions.
If this was a very good friend of mine and he was being unreasonably classified as a prohibited person (due to an ugly divorce or a vindictive ex-girlfriend’s false accusations), I would probably help him out. (If he was reasonably being classified as a prohibited person due to criminal tendencies or immaturity, I would run the other direction and find a new friend.) If I decided to do it, we would both understand the process was going to be: That he would give/gift the raffle ticket to me now, prior to the drawing. Then if I won the raffle, the gun would be mine. If at some later date (probably after he was no longer a prohibited person) I decided that I really didn’t want the gun, I would sell it (because it is mine and I can do whatever I want with it). If I decided to sell the gun, my friend would probably get the first chance to buy it. If my friend decided to buy it, I would probably sell it to him for a really good price. But I would insist the transfer/sale would be through an FFL. Because there is a chance that while both you and your friend think he is no longer a prohibited person, the criminal justice system does not feel the same way. Going through an FFL would insure you were not selling to a prohibited person and should insulate you from possible future legal ramifications. I’m from Wyoming so all of the “transfer through an FFL” talk is CYA for me. Since you are from Colorado, it is my understanding, you are required by state law to go through an FFL for any gun transfer. |