Background checks and trading

[def90]

On another note, Colorado used to charge for background checks in the past but it was found to be unconstitutional or some other ruling came down and they had to stop collecting the fee. What is different now and why can't a simple lawsuit refer back to the previous decision?

[james_bond_007]

On another note, Colorado used to charge for background checks in the past but it was found to be unconstitutional or some other ruling came down and they had to stop collecting the fee. What is different now and why can't a simple lawsuit refer back to the previous decision?

This has some relevant info...http://www.denverpost.com/breakingne...gun-background

[BlasterBob]

Thanks to the OP for starting this thread!

So, here is one scenario that could possibly take place and wonder how it'd be handled since the BGC can be initiated ONLY when a transfer is taking place.
So, the FFL just finishes up getting the OK on the BGC and is about ready to have the buyer/transferee start filling out the 4473. Just before doing so, the buyer gets an emergency phone call from his spouse advising him that they are going to need some IMMEDIATE major home repair or immediate very high priced vehicle repairs and he should not spend that $1,000 on that firearm. So, here is an instance where a BCG was made and the transfer did not or will not materialize. The $10 fee would surely have to be paid to the FFL by the intended buyer but since the FFL did not make a transfer, only the BGC, wonder what he'd charge for just making the phone call over and above the required $10?? This could be one instance where a non-FFL could get a BGC on another non-licensed individual. Right?

[SA Friday]

Thanks to the OP for starting this thread!

So, here is one scenario that could possibly take place and wonder how it'd be handled since the BGC can be initiated ONLY when a transfer is taking place.
So, the FFL just finishes up getting the OK on the BGC and is about ready to have the buyer/transferee start filling out the 4473. Just before doing so, the buyer gets an emergency phone call from his spouse advising him that they are going to need some IMMEDIATE major home repair or immediate very high priced vehicle repairs and he should not spend that $1,000 on that firearm. So, here is an instance where a BCG was made and the transfer did not or will not materialize. The $10 fee would surely have to be paid to the FFL by the intended buyer but since the FFL did not make a transfer, only the BGC, wonder what he'd charge for just making the phone call over and above the required $10?? This could be one instance where a non-FFL could get a BGC on another non-licensed individual. Right?

Disregard. I missed Brian's previous post.

[brutal]

Meh, not really. At my shop, have had people run BGCs and then flake out. I'm sure all have. We charge the $10 for the BGC and then it goes into the transfer not completed file. There is no need to go beyond that. If the transfer isn't finished, there isn't a need to share the info or charge for more than Dickinpooper's $10 douchebag tax.

I suspect the biggest issue will be once the gun is transferred into the bound book and then the receiver is denied. Then we have to run the original owner and they are denied. Now the shop has obtained a firearm with two pissed off people and no real desire for the firearm and a very unclear road ahead. If one or both of the denials is overturned, then the transfer can be completed and holding the gun for 30 days isn't that big of a deal. CO has the 3rd highest denials (3.6%) and is number one for overturns on appeal, about 60% of the denials are overturned. The above scenario is going to happen. The kicker is when both denials are sustained. Well crap, what to do now? Call the cops? Obviously the original owner wasn't allowed to own the gun in the first place. Does the gun have to be turned over to the local LE?

Nobody knows. There is absolutely ZERO guidance in 1229 on this. My boss has asked the ATF twice on this and they don't have a clue either. The local LEs don't want to screw with it. It's primarily a Federal violation and a 4473 violation at most. Now you have a gun that no LE is going to take, tell the FFL it's released to sell as it's really not theirs, and two people with claim that can't have it. It's a liability paperweight.

This is ultimately the problem with the law. What a nightmare for FFLs. I can't blame a single one of them that decides to NOT do these transfers.

Is there any reason, as a seller, I could not request and pay the fee to an FFL, to have a BGC run on myself before committing to a transfer and BGC for a buyer?

[Brian]

Is there any reason, as a seller, I could not request and pay the fee to an FFL, to have a BGC run on myself before committing to a transfer and BGC for a buyer?

Technically, you can only do this when you are indicating you are buying a gun. FFL has to mark whether the BGC is for a long gun, hand gun or other.
That being said, you really were interested in that handgun the FFL had in stock, but changed your mind, right?

[SA Friday]

Technically, you can only do this when you are indicating you are buying a gun. FFL has to mark whether the BGC is for a long gun, hand gun or other.
That being said, you really were interested in that handgun the FFL had in stock, but changed your mind, right?

[Brian]

Thanks to the OP for starting this thread!

So, here is one scenario that could possibly take place and wonder how it'd be handled since the BGC can be initiated ONLY when a transfer is taking place.
So, the FFL just finishes up getting the OK on the BGC and is about ready to have the buyer/transferee start filling out the 4473. Just before doing so, the buyer gets an emergency phone call from his spouse advising him that they are going to need some IMMEDIATE major home repair or immediate very high priced vehicle repairs and he should not spend that $1,000 on that firearm. So, here is an instance where a BCG was made and the transfer did not or will not materialize. The $10 fee would surely have to be paid to the FFL by the intended buyer but since the FFL did not make a transfer, only the BGC, wonder what he'd charge for just making the phone call over and above the required $10?? This could be one instance where a non-FFL could get a BGC on another non-licensed individual. Right?

I guess that depends on how your FFL values his/her time.

Especially those of us who are home-based probably would not enjoy having to schedule some time to have guys meet, sit around waiting for the background check, and then leave, and receive zero compensation for it. FTF transfers are a PITA for the FFL, and even the $10 Colorado says can be charged for the service is so low many refuse to get involved at all.

Wasn't sure what you meant with your last comment. Non-FFLs can't do BGCs...?

[Brian]

Brian: Thank you for chasing down all the details.
I have some comments on the "exclusive possession" clause. Please provide your comments when you have digested mine, below .

I don't believe the seller has to leave the premise to allow "exclusive possession" to occur.
EX:
1) Selling on Consignment- seller retains ownership, but gives "exclusive possession" to the FFL. This may be in the form of a verbal or written contract for the FFL to sell the firearm on behalf of the owner (similar to previous methods). The FFL logs the firearm into his/her A/D list.

2) Background checks taking multiple days - As like earlier this year, sometimes a multi-day backlog can occur in processing BGCs. The seller "could" leave the firearm with the FFL (i.e. give him exclusive possession) to prevent the seller from having to come back a 2nd time when the BCG is finally executed/completed. I believe "exclusive" possession occurs when the seller agrees to leave the firearm in the care of the FFL...not when the seller leaves the premise. The FFL logs the firearm into his/her A/D list.

Further, before taking exclusive possession, an ethical FFL "should" explain the ramifications of the requirement for a BGC and associated costs for the seller, should the FFL need to return the firearm to the seller (viz. buyer's BGC fails or item doesn't sell under the consignment contract), but is under no obligation to do so.

Your thoughts ?

Note: This post is my opinion and is not to be construed as legal advice.

Agree 100% with your assessment. Definitely a seller can intentionally give possession just by saying so, or in either of the scenarios above. I was approaching it more from the perspective of "accidental possession" - I wouldn't want a seller to be afraid to hand a gun to the FFL to look it over (heck one of the best parts about transfers is seeing what someone else had the money to buy!). On the other hand, if the BGC is taking a while, I wouldn't put either yourself or your FFL in the position of leaving your gun with them while you run to get coffee or something, unless you know them very well. Even that probably doesn't achieve "exclusive possession," but somewhere in there, the grey starts to get a bit darker, and better safe than sorry.

edit: not a lawyer, don't trust a word I say.

[Hound]

FFL 07/02 here. I want to revise what I said earlier. Looks like ATF has released updated instructions to us, which means as long as a seller does not "relinquish" the firearm, they can leave with the gun at any point. Don't release your gun to the dealer when you're doing the transfer!

A 4473 is required for all transfers, and logging in/out of FFL books is still required before any FTF transfer can proceed. However, the BGC can happen prior to the transfer, and if the buyer fails, the seller can walk out. The $10 still gets charged to the FFL regardless, and you can bet they are going to want their service fee up front too, regardless of pass/fail.

Also, keep in mind the $10 you pay to CBI is not to the ATF. Colorado requires the $10 fee to pay for its own internal check, because "it's better" than the free federal NICS check, I guess.

For your viewing "pleasure":
https://www.atf.gov/sites/default/fi...rough_ffls.pdf

Short version:
1) Buyer fills out 4473
2) FFL checks and records buyer ID, marks handgun/longgun/other (no SN# yet), and runs the BGC. CBI charges $10 at this point
3) If pass, FFL takes gun & confirms SN, enters gun into books, writes the SN# on the 4473, and logs the book out to buyer. Buyer/seller leave happy.
4) If fail, seller takes the gun and leaves. FFL did not take possession. FFL does not enter the gun into the books. 4473 gets filed (without SN/gun info).
5) If the seller ever gives "exclusive possession" to the FFL (not a lawyer but you'd probably have to actually leave to do this), then seller has to pass a BCG to get their gun back. Seller still owns it, just can't take possession. If seller fails BGC, you'll have to work something out with the FFL (likely consignment as mentioned above, or find another buyer).

So it could be worse. Could be a LOT better though.
Be nice to your FFL if you found a good one. This stuff is as much BS for us as it is for you. Also, keep in mind not every FFL does it exactly this way. You can certainly direct them to the linked doc, but don't be a jerk about it.

This post should be stickied!..... Please