Lending to family?

MD 5-117.1 does not prohibit a loan for shooting AFAIK. Attached is an AG opinion on the meaning of receive as it pertains to the HQL. I can't ascertain if it seems legal or not.

Maybe Esq can comment.

IANAL.
.

esqappellate said:

That is actually not correct, viz., it can be a straw purchase if you are buying a firearm for someone else, *regardless* of whether they can legally buy the firearm. Here is the statutory definition found in Md Code Public Safety 5-101(t):
(t) "Straw purchase" means a sale of a regulated firearm in which a person uses another, known as the straw purchaser, to:
(1) complete the application to purchase a regulated firearm;
(2) take initial possession of the regulated firearm; and
(3) subsequently transfer the regulated firearm to the person.

A straw purchase of a regulated firearm is prohibited by PS 5-136 which provides that "A person may not knowingly or willfully participate in a straw purchase of a regulated firearm." And PS 5-141 provides that "A dealer or other person may not be a knowing participant in a straw purchase of a regulated firearm to a minor or to a person prohibited by law from possessing a regulated firearm."

Now the penalties are different for a straw purchase, depending on whether the purchase is for a prohibited person or for a non-prohibited person. For the knowing participation in a straw sale to a prohibited person (or a minor), the penalty is 10 years in state prison (PS 5-141). For the knowing "participation" in a straw purchase (or any other sale in violation of Section 5, subtitle 1, like a sale or receipt of a handgun in violation of the HQL requirements) even for a non-prohibited person is punishable by up to 5 years in prison (PS 5-144).

BTW: A straw purchase is also a false statement on federal Form 4473 in violation of 18 U.S.C. 922(a)(6). Question 11.a. on Form 4473 asks (with bolded emphasis appearing on the form itself):
“Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you."

See Abramski v. United States, 134 S.Ct. 2259 (2014). That applies to the sale of *any* firearm (including long guns) and includes sales for otherwise perfectly legal purchasers. (Id.). That is punishable under federal law with 10 years in prison under 18 U.S.C. 924(a)(2).

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Under the present circumstances, it would seem to hinge on the definition of "Transfer", and whether lending to someone would be so considered.

I confess I cannot answer that question.

Further, if the pistol in question was long in the possession of the OP, it would be difficult, IMO, to consider it a straw purchase.

Is there any validity to my points above?

namrelio said:

Whatever you decide, if there is a slight chance he might shoot an intruder with it, you both better make damn sure everything is as legal as legal can be.

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It's Laurel. There is a good chance he'll have to use it. Do you really want to argue with some assistant states attorney about the finer details of the law.

traveller said:

It's Laurel. There is a good chance he'll have to use it. Do you really want to argue with some assistant states attorney about the finer details of the law.

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Yeah, and suppose a lent handgun gets stolen from their home.

Easier to help the sibling get a shotgun for the short term (Walmart gift card), and then work toward an HQL so he'll have other options in the future. Hi Point 9mm carbines also run about $250.

Biggfoot's suggestion of S&W Model 10-4 or earlier (that I'm presuming is old enough to avoid needing an HQL) is also appealing. Your brother would just have a seven day wait if getting it through an FFL.

swinokur said:

MD 5-117.1 does not prohibit a loan for shooting AFAIK. Attached is an AG opinion on the meaning of receive as it pertains to the HQL. I can't ascertain if it seems legal or not.

Maybe Esq can comment.

IANAL.
.

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Handing someone a firearm under direct supervision is a bit different from giving a someone a gun to take home to keep.

Just lend him a shotgun until he can get his own handgun.

traveller said:

Handing someone a firearm under direct supervision is a bit different from giving a someone a gun home to keep.

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I understand that, but thise was an opinion on the word receive that I don't care to interpret. hence I asked Esq for one if he chooses to.

I also understand a transfer will be construed as a change of physical possession away from a range or the legal owner.

Lastly, Chow was ruled upon before the HQL became law.

traveller said:

It's Laurel. There is a good chance he'll have to use it. Do you really want to argue with some assistant states attorney about the finer details of the law.

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So far over the last 10 years the number of those charged with "straw purchase" violations in MD is in the single digits, meanwhile there were about 1/4 of a MILLION violent crimes committed, I'd take my chances. Even then I don't think there have been any convictions as it requires the defendant to basically admit they bought a gun for someone else and lied on the form instead of just selling it or giving it away. I realize every family is different, but if my brother was in a dangerous area, needed a firearm for protection, and was short on cash, I'd just give him one.

alucard0822 said:

So far over the last 10 years the number of those charged with "straw purchase" violations in MD is in the single digits, .....

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I wouldn't worry about a straw purchase prosecution.

What I would worry is the following. Drunk guy kicks down brothers door, brother meets him gun in hand. Nobody gets hurt, popo gets called. Popo freak out when they hear a gun was involved, ask brother for his HQL and charge him with a laundry list of charges like 'illegal ammunition', 'unregistered firerarm' etc. etc. A good defense attorney will get all of these dismissed, but not until about 50k are spent in fees.

Or you could drop him at one of the IPs here on Saturday morning, get all the training & paperwork stuff done in a day and for $120 or so and buy himself his own handgun.

traveller said:

I wouldn't worry about a straw purchase prosecution.

What I would worry is the following. Drunk guy kicks down brothers door, brother meets him gun in hand. Nobody gets hurt, popo gets called. Popo freak out when they hear a gun was involved, ask brother for his HQL and charge him with a laundry list of charges like 'illegal ammunition', 'unregistered firerarm' etc. etc. A good defense attorney will get all of these dismissed, but not until about 50k are spent in fees.

Or you could drop him at one of the IPs here on Saturday morning, get all the training & paperwork stuff done in a day and for $120 or so and buy himself his own handgun.

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Why would they ask to see his HQL? I'd be willing to bet that 2/3 of the cops on the street don't even know the HQL exists.

rseymorejr said:

Why would they ask to see his HQL? I'd be willing to bet that 2/3 of the cops on the street don't even know the HQL exists.

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Because every handgun in maryland is bad until the holder can prove that it is not bad.
He seems to be a young kid and sometimes sticky situations happen in apartment buildings. Why would the cops not dig into the legality of a firearm if they encounter it in the course of their investigation ?

swinokur said:

MD 5-117.1 does not prohibit a loan for shooting AFAIK. Attached is an AG opinion on the meaning of receive as it pertains to the HQL. I can't ascertain if it seems legal or not.

Maybe Esq can comment.

IANAL.
.

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Yes, I have a copy of that letter too. Several points:

1. This is an informal opinion by Assistant AG Kathryn Rowe. It is not even a formal opinion by the AG. This is an important distinction, as an informal opinion is not given nearly the same weight as a formal opinion under MD law. See Public Service Com'n of Maryland v. Wilson, 389 Md. 27, 58 n.18, 882 A.2d 849 (2005) (making this distinction).

Even a formal AG opinion is not binding on State Attorneys much less the courts. See, e.g., Brown v. Cty. Comm'rs of Carroll Cty., 338 Md. 286, 296, 658 A.2d 255, 260 (1995) ("Attorney General's opinions on issues of state law, while not binding, are 'entitled to careful consideration and serve as important guides to those charged with the administration of the law."), citing Mitchell v. Register of Wills, 227 Md. 305, 310, 176 A.2d 763, 766 (1962). See also Montgomery County v. Atlantic Guns, Inc., 302 Md. 540, 548, 489 A.2d 1114, 1118 (1985); Auto. Trade Ass'n v. Harold Folk Enter., 301 Md. 642, 662, 484 A.2d 612, 622 (1984)." See also Action Committee for Transit, Inc. v. Town of Chevy Chase, --- A.3d ----2016 WL 4570428 (Ct. of Sp. Appeals September 1, 2016 )("Courts carefully consider, but are not bound by, the analyses and conclusions contained in Opinions of the Attorney General."), citing Fuller v. Republican Central Committee of Carroll County, 444 Md. 613, 631, 120 A.3d 751 (2015); ACLU of Maryland v. Leopold, 223 Md.App. 97, 109, 115 A.3d 649 (2015).

So relying on the informal opinion of Assist. AG Rowe is risky. At a minimum, you really need a formal interpretative regulation by the MSP, which is statutorily entitled to issue binding regs. MSI specifically requested such an interpretation in comments on the proposed HQL rules back in 2013 and the MSP ignored that request (while accepting many other points MSI made in those comments). That suggests that the State wishes to keep its powder dry for a prosecution.

2. Second, the reasoning of Rowe's informal opinion is pretty good, but not logically compelled. Rowe indicates that while 5.117-1 states that a "person may purchase, rent, or receive a handgun" only if they have an HQL, it also states that "a dealer or any other person may not sell, rent, or transfer a handgun to a purchaser" without a HQL Rowe relies on Chow for the argument that "transfer" means a permanent transfer, not a loan. She then states that the "transfer" (by the dealer or other person) is simply the mirror transaction of "receive" (by the purchaser or recipient) and that therefore "receive" also must mean a permanent "receipt" of the handgun. Arguable, but that conclusion is hardly compelled as a matter of formal logic. It is at least theoretically possible for the GA to want to punish the "receipt" more broadly than a "transfer" as a "receipt" implies a broader reach than "transfer" and the recipient is required to obtain the HQL, not the seller. The general rule is that words in a statute are given their ordinary meaning and "transfer" means something different than "receive." Nesbit v. Government Employees Ins. Co., 382 Md. 65, 854 A.2d 879 (2004) ("We assign words their ordinary and natural meaning when interpreting statutory language."). In federal law, "receipt" means simple possession (no matter how temporary) for purposes of 18 U.S.C. 922(g) (providing that a prohibited person may not "receive any firearm or ammunition"). A court could conclude that the GA wanted to ban even the temporary receipt of a handgun without an HQL, especially given the reality that the GA thinks that handguns are the very embodiment of evil and would ban them completely if it could. Don't forget, this is Maryland. And don't forget that Bass Pro Shops refused to let customers even handle a handgun at the store after the HQL law was enacted based precisely on this interpretation of "receipt."

Rowe does not address PS 5-144 which provides that a person may not "knowingly participate in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm." That is a major crime, punishable by 5 years in jail. That list of terms is in the disjunctive, indicating that "transfer" means something different than "receipt" or "sale" for purposes of that statute. Generally, statutes are interpreted so as not to render a term superfluous. Maryland Div. of Labor and Industry v. Triangle General Contractors, Inc., 366 Md. 407, 784 A.2d 534 (2001) ("we avoid reading a statute in such a way as to render a word or phrase “ ‘surplusage, superfluous, meaningless, or nugatory.’ ”), quoting Atkinson v. State, 331 Md. 199, 209, 627 A.2d 1019, 1024 (1993). Chow was a prosecution under this statute for a violation of a statute in what is now codified as PS 5-117. The Chow court did not address "receipt" in that opinion. Now, you could argue, as Rowe implies, that "receipt" and "transfer" under PS 5-144 are likewise just different sides of the same coin, and thus a "receipt" would not be illegal if the "transfer" was not, but Chow did not have occasion to address that point. Again, that's an open question.

Rowe is arguably correct that illegalizing simple possession of the firearm as a "receipt" would make it impossible to train individuals for the HQL, but that is true only if you used an actual firearm (which would be the case under the MSP "one live round" rule but that requirement is in the regs, not the statute and that rule in the regs is unauthorized by statute and thus illegal, as MSI alleges in its Sept. 30, 2016 HQL complaint). She is also right that it would make the instruction authorized for minors under PS 5-133(d) impossible, but the courts could easily exempt that express activity while applying a broader interpretation of "receive" to other activities, like that posited in the OP. Let's not forget that the State litigated Chow all the way to the highest MD court in a criminal prosecution, a prosecution in which they prevailed in the lower courts and lost only at the highest court after cert had been granted. Cert is discretionary and hard to obtain. Throughout the litigation, the State insisted that the temporary transfer of a handgun was fully criminal. A state's attorney is free to adopt that stance in a new case involving 'receipt' for all activities not expressly permitted by statute (or, arguably, the MSP regs). I would expect the State Attorneys in some parts of this State to do exactly that at some point in the right case.

3. There is always a fact question. In Chow, the lower trial court had expressly found (as a matter of fact) that the "transfer" was temporary. On that premise the Chow court held that such a temporary transfer was not covered a statute which provided that "a person who is not a regulated firearms dealer may not sell, rent, transfer, or purchase any regulated firearm." That same requirement is essentially currently codified in MD Code, Public Safety, § 5-117. Here the factual scenario posed in the question by the OP would be whether this "receipt" or "transfer" was, in fact only temporary or whether it was intended to be a permanent gift (which is likewise permitted only if the recipient has an HQL under MD Code, Public Safety, § 5-136). That's a jury question and it could go either way. Lord help you if you are an unsympathetic defendant. Now, Chow held that a conviction under what is now codified as 5-144 was allowed only where the defendant actually had the specific intent or mens rea, i.e., knew that the firearm was being intentionally transferred in violation of law. That means that "the actor must know that he or she is committing an 'illegal sale.'” Chow, 393 MD. at 471. That is a wonderful requirement or element of the crime that defense counsel can raise, but, again, it is generally a *jury* question; that won't necessarily stop a prosecution on these facts (which can bankrupt a person, even if he wins). Good luck with that. The prosecutor is not your friend.

thank you counselor.

Okay, wow. A lot more responses than I was expecting, haha. Yeah, I thought better of it this morning, and decided it would be a pretty bad idea--especially if, God forbid, it got stolen or he had to use it.

For the guys who keep mentioning straw purchases, the Hi-Point would definitely be mine, and I would only be lending it to him until he could afford a 12 or 20 Ga--he's been looking, but like I said money's tight. I am not about to do anything illegal; I'm a law-abiding citizen, even if I think the law's a bunch of bunk--if I didn't care I wouldn't be asking ya'll, now would I?

As for the suggestions with HQLs, I'm going to run him through a ton of training before I try to get him to apply. When I got mine, I think I paid $120 for it, total--special thanks to the guys over at Engage Armament, btw.

The C&R was a clever idea, but again, if it got stolen or he had to use it... There's too much risk there.

I've got a carbine I don't take out too often; I'll probably lend him that for now, and I guess worst case I'll just hand him some cash for a shotgun come Christmas.

I'd just buy him a basic Simplisafe alarm system. Unlike your gun, it won't get stolen.

I have now learned that 'nugatory' is a word.

nmyers said:

I'd just buy him a basic Simplisafe alarm system. Unlike your gun, it won't get stolen.

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Simplisafe alarm system is awesome fwiw

yes, when seconds count, the policeare just minutes away.

yellowsled said:

A straw purchase is to purchase a firearm for someone that can not legally purchase one themselves. I do not think this is the case. fwiw

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There was a SCOTUS case on this recently. A man was convicted when he bought a firearm for a relative that could have bought it himself, but did not because of a discount that the purchaser could get. Let me see if I can find it for you.

https://www.nraila.org/articles/201...aw-purchase-rules-in-abramski-v-united-states

Summary is this. Nephew buys handgun in his state at a reduced price for his uncle. Then, he ships it to a FFL in his uncle's state. Both the nephew and the uncle went through the Form 4473. Neither were prohibited. The nephew merely bought the handgun for his uncle so his uncle could get the discount. Because the nephew answered on the Form 4473 that he was buying it for himself, he was found guilty of violating the law.

With all that said, I do not think the op's issue is a straw purchase issue. If the firearm in question was an "assault weapon", I would say he could not loan it to his brother. However, I do not know the answer regarding a handgun off the top of my head, and I am too tired to look it up right now. Maybe tomorrow evening.

esqappellate said:

That is actually not correct, viz., it can be a straw purchase if you are buying a firearm for someone else, *regardless* of whether they can legally buy the firearm. Here is the statutory definition found in Md Code Public Safety 5-101(t):
(t) "Straw purchase" means a sale of a regulated firearm in which a person uses another, known as the straw purchaser, to:
(1) complete the application to purchase a regulated firearm;
(2) take initial possession of the regulated firearm; and
(3) subsequently transfer the regulated firearm to the person.

A straw purchase of a regulated firearm is prohibited by PS 5-136 which provides that "A person may not knowingly or willfully participate in a straw purchase of a regulated firearm." And PS 5-141 provides that "A dealer or other person may not be a knowing participant in a straw purchase of a regulated firearm to a minor or to a person prohibited by law from possessing a regulated firearm."

Now the penalties are different for a straw purchase, depending on whether the purchase is for a prohibited person or for a non-prohibited person. For the knowing participation in a straw sale to a prohibited person (or a minor), the penalty is 10 years in state prison (PS 5-141). For the knowing "participation" in a straw purchase (or any other sale in violation of Section 5, subtitle 1, like a sale or receipt of a handgun in violation of the HQL requirements) even for a non-prohibited person is punishable by up to 5 years in prison (PS 5-144).

BTW: A straw purchase is also a false statement on federal Form 4473 in violation of 18 U.S.C. 922(a)(6). Question 11.a. on Form 4473 asks (with bolded emphasis appearing on the form itself):
“Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you."

See Abramski v. United States, 134 S.Ct. 2259 (2014). That applies to the sale of *any* firearm (including long guns) and includes sales for otherwise perfectly legal purchasers. (Id.). That is punishable under federal law with 10 years in prison under 18 U.S.C. 924(a)(2).

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lol - I should have read further before wasting my time writing about Abramski.