Guide to Private Firearm Sales
Originally published by AmmoLand.com.
USA – People have asked me, “what is my responsibility to vet a buyer as an acceptable customer when conducting private firearm sales?”
The answer to this has several parts.
First, I am not an attorney, so consult with an attorney if you want a more licensed opinion.
Second, let’s divide this question into five parts:
- Moral responsibility
- Responsibility under state law
- Responsibility under federal law
- Potential civil liability
- And practical matters.
(5) for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides; except that this paragraph shall not apply to (A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes
All of Section 922 is posted here.
Civil Liability.
Under the Law of Torts, the general rule is that you are not responsible for the criminal or negligent activities of another person unless you knew or should have known of their intent. That means that the default is you can assume that a buyer’s intent is lawful. However, if a seller is sued by an injured person alleging that the seller knew or should have known that the buyer would likely use the firearm sold to cause the injury, then the question will likely come before a jury to decide. In addition to having to pay an attorney to defend him, the seller could also have a stiff award against him or her and in favor of the plaintiff.
Thus, a prudent seller will be cautious when selling firearms. There are ways to make the process safer.
Practical Matters.
When a private person (not an FFL) is selling a firearm to another private person, there are a number of ways a reasonable and prudent seller can reduce legal and moral risk.
Sell to known people. A person selling a firearm privately will be better off selling to someone the person knows well if you have confidence that the person is not prohibited under federal law and is not a flaky or unsound person. This might be a neighbor you’ve know for years, a longtime co-worker, or a member of your gun club. Selling to unknown people is where more due diligence is required to keep the seller on safe legal and moral ground.
Other indicators. If the buyer has a currently valid concealed weapon permit, that usually means that the person has recently passed a federal background check and is not a prohibited person under federal law. If you know (for sure) that the person has recently purchased a firearm from a federally-licensed dealer, then the person has cleared the Brady Law background check system and is not a prohibited person. In either case, the prudent seller also will wish to have confidence that the buyer is a solid and stable person, and not flaky or unsound.
General impressions. A seller will want to notice other indicators determine if a sale to a stranger is copacetic. Is the buyer driving a vehicle with license plates that match his or her claim of residence? Does any identification offered match the buyer? Is the buyer calm and businesslike or nervous and unsettled? With any red flags, it would be prudent to not consummate the sale.
Identification. Many careful people when selling a firearm privately to an unknown buyer will ask the buyer to present identification such as a drivers license, and will write down relevant information from the ID.
Receipt and records. A private seller should also prepare a duplicate receipt for the sale that includes the name and ID type and number of the buyer. It should also include the date of the sale, and the make, model and a serial number of the firearm. The buyer should want a copy of this receipt in case the buyer is ever asked to prove that he or she obtained the firearm lawfully. The seller should definitely retain a copy of the receipt. If some law enforcement agent ever comes to the seller claiming that the sold firearm has been retrieved from a crime scene, it will be ever so helpful to have this receipt to document the transfer out of the seller’s possession.
Finally.
If all usual vetting fails to get a seller into a comfort zone about a particular buyer, yet the seller really wants to make the sale, the seller can always ask the buyer to meet him at the location of a willing licensed firearms dealer (”FFL”), such as a gunsmith or pawn shop that handles guns, where the buyer can be run through a Brady Law check for the sale. Phone the FFL in advance to confirm availability of and price for this service, which may range from $25 to $60. If the buyer refuses to do a transfer via an FFL, then the buyer may be a person the seller doesn’t wish to sell a firearm to. Remember, it’s willing seller, willing buyer.
Depending on your state laws and compliance with these laws and principles, it is perfectly legal and possible for private individuals to sell firearms to other individuals.
Reprinted with permission from AmmoLand.com.
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