Privately selling handguns...really that simple?

[user]

A common issue, and the comments pretty much reflect the feelings of people I've spoken with about the topic. Clearly, in Virginia, you can sell pretty much any personal property you own to anyone who wants to buy it, and the level of formality legally required is whatever the buyer and seller choose to agree to. I suggest the use of the form I wrote because it does everything I think is legally desirable, and provides civil and criminal protection for both parties fairly. In other words, I think it accurately reflects the nature of the routine gun transaction as far as rights between the parties is concerned, as well as protection from third parties. Note that it will not protect anyone who has actual knowledge of facts that contradict what the form says: if you know, for example, that the gun was stolen, or that it's being sold for the purpose of murdering someone, or some such thing as that, you can't count on the piece of paper to save you (you'll need me as your defense attorney for that, and there ain't no guarantees on that one).

Here's one I wrote for general use; feel free to copy and use it. I suggest downloading the file rather than clicking on the link - Adobe Acrobat Reader futzes up the clarity of the print somehow, at least on my machine, if I open PDF files from within the browser. PC/Windows users can right-click on the link and choose "save as" from the popup menu.

Please be sure to read the instructions on page 2 - that page does NOT need to be included with the bill of sale form when you're using it.

http://www.virginialegaldefense.com/Pvt ... ferBOS.PDF

[zephyp]

@Garrett, yes any document can be forged but in the scenario I described it was far better for me to have something in hand (even if it could be proven rightfully or wrongfully that is was forged) than nothing at all...

That is your perception of it, but the challenge is to show me where the law agrees with your assertion. If someone can show me in the case law where a BOS provided genuine legal protection against the future criminal misuse of a firearm, then I'll back off. Until then, the legal protection from a BOS is a myth and if you really think you need that for any sale, go through an FFL.

If you want criminal protection, go through an FFL. If you want some civil protection, a proper BOS is a good route, but those being passed around the Internet are often lacking. Trusting a non-witnessed/non-notarized BOS for criminal protection and suggesting to others that it provides such, without any supporting case law, can be a real harm to them. Until someone can show me that, I can't in good conscience recommend a BOS for anything other then basic civil protection. It can't be said more strongly, if you want criminal protection, use the FFL.

Ok...I promise never to use any kind of paperwork or ID ever again for a private transaction... [let it please the court to know I've never asked for anything more than a valid VA ID anyway...and I only ask "can you legally possess this weapon...]

[user]

@Garrett, yes any document can be forged but in the scenario I described it was far better for me to have something in hand (even if it could be proven rightfully or wrongfully that is was forged) than nothing at all...

That is your perception of it, but the challenge is to show me where the law agrees with your assertion. If someone can show me in the case law where a BOS provided genuine legal protection against the future criminal misuse of a firearm, then I'll back off. Until then, the legal protection from a BOS is a myth and if you really think you need that for any sale, go through an FFL.

If you want criminal protection, go through an FFL. If you want some civil protection, a proper BOS is a good route, but those being passed around the Internet are often lacking. Trusting a non-witnessed/non-notarized BOS for criminal protection and suggesting to others that it provides such, without any supporting case law, can be a real harm to them. Until someone can show me that, I can't in good conscience recommend a BOS for anything other then basic civil protection. It can't be said more strongly, if you want criminal protection, use the FFL.

Gunderwood, I've just reread your last post on the thread, and I have a more specific observation about what you'd said about the myth of legal protection.

The first thing that is really important to remember is about the law of evidence. That's what the piece of paper is designed for, after all - if one never anticipated a future need for evidence in a legal dispute, there would be no need for written contracts, wills, deeds, etc. Generating the piece of paper is specifically for the purpose of making sure things will go your way when the poop hits the fan, to use the technical, legal phrase.

Secondly, "real" or "direct" evidence in Virginia does not consist of documents, pictures, or objects. It's the testimony of a live witness, given under oath, as to facts within his personal observation and knowledge. The documents, pictures and whatnot only support the evidence and are "indirect". They have to be identified and authenticated by a live person who knows, firsthand, what they are. Only then can they be admitted into evidence (with a few statutory exceptions - ATM pictures don't need someone to say, "I saw the person being photographed and the photograph truly and fairly reflects what I saw.", while taped phone conversations are not admissible, period, unless the recording itself contains certain information).

So, with a bill of sale form, presumably someone will show up and say, "Yup, I signed that form, Joe Blow, the seller/purchaser was there at the time, and I saw him sign it, too. We both identified ourselves to each other, and I had no idea he was actually someone else who'd recently escaped from Talledega Federal Penitentiary where he'd been imprisoned for bank robbery and murder."

The point is that the piece of paper establishes a specific date on which the seller cut off his liability, both civil and criminal, for what may happen with the gun thereafter (e.g., to take care of the question, "We, the police, have information from BATFE that you purchased the gun that was used in the murder. What did you do with that gun?"); and the purchaser is cut off from liability for what happened prior to that date (e.g., the gun had already been used in a murder, had been stolen, etc.).

By the way, as to stolen guns - in Virginia, a bona-fide purchaser who gives value for stolen property is the true owner of the property. The rights of the "real" owner were cut off by the theft. He has recourse against the thief, but not against the third-party BFP. The state can take the stolen gun as evidence, pursuant to a subpoena, but cannot simply seize the gun, and has to give it back.

I think it's a good idea to use the piece of paper. I do not think people should go overboard in requiring documentation such as photocopies of operator's permits (it may be a crime to make such copies, btw). They ought to look at some kind of state-issued photo id and verify the address, but should not write down any personal information. They need to be able to testify that they identified the person to their own satisfaction, and had no reason to believe he was anyone other than who he said he was.

A critical factor in criminal cases is intent. The form takes care of that by showing that the innocent party had no reason to know at the time of the transaction that there was anything wrong.

So you're clearly not wrong in suggesting the use of an FFL; but in my opinion, that will not do everything the form will do, but the form (in conjunction with live testimony) will do what the parties need to have done.

[gunderwood]

@user

What sort of criminal protection does that form provide? Assuming the seller/firearm are all legal up until the private transaction, the only criminal accusation they could pin on you for a private sale, is an illegal transfer. It is the states burden to prove beyond a reasonable doubt that the seller knew the transfer was illegal. Take a look at these scenarios:

1. They trace the firearm to me and I, with my lawyer right there, state I sold it in a private transaction to a buyer who claimed to be a resident of VA and claimed they were not prohibited from owning the firearm. I saw a (presumed valid) VA DL and no other indications that the buyer was lying (no out of state plates, funny looking ID, nervousness about the transaction, etc.). I *might* be able to provide them with a generic description, but given that the sale may have occurred some time ago that is not a good indicator. At that point I have met all legal obligations for a private transfer, what can I be charged with? How am I linked to any future crimes with no further evidence?

or

2. Same thing, but I have a BOS directly linking me to a buyer. If that buyer happens to be ineligible to possess a firearm (which may or may not be the crime/buyer immediately in question), I have now linked myself to an illegal transfer. Granted, the buyer lied to me (or so I claim), but what are the odds I will be charged with an illegal transfer and have to defend myself in court? Pretty good because they have proof I was linked to an illegal sale and only my testimony says otherwise.

In the first case, I am not linked to anything other than being the last buyer the state has record of. In the second, I have linked myself to a crime. In an ideal world, the LEA would not charge me with any crime. However, the LEO does not know if I am guilty or not, they simply know I have provided a written statement that I am linked to a crime.

The absolute worst case for #1 is that the transfer was recent and the buyer can pick me out of a line up. At which point it practically degrades into #2. However, in either case, since the BOS was not signed or witnessed by a third party, the written BOS is only marginally better than verbal testimony. The correct question is:

Given that the transfer was illegal, despite all of my efforts and observations to the contrary, which method provides the state with more evidence linking me to anything?

Scenario 2 does and any increase in evidence linking me to anything increases the odds I will be in court. Not presenting a BOS I do have would require I lie to a LEO, which will only get me in more trouble. I suggest that the probability of #2 requiring you to defend yourself in court against a criminal charge is much higher than #1.

[user]

People who commit crimes generally avoid evidence, thinking that's going to make it better for themselves. But generally what that really means is that the only substantial evidence presented at trial will be the prosecutor's evidence. And the criminal can be made to look like he knew he was guilty because he concealed evidence of the crime.

Because most people the cops catch and prosecute really are guilty of something (I generally win in such cases only because the warrant charged them with the wrong thing), most lawyers really don't want to put their clients on the witness stand and have them testify. In fact, every attorney I know who does criminal defense makes it a rule to never allow his client to testify. The problem is that they have no idea what the client will say on cross-examination. I take the opposite approach. In my experience, the truth is almost always on the side of the defendant, even if only to minimize the damage. Jurors can be stupid, lazy, cynical, and ignorant, just like most humans; but what I've found is that they almost always have a good "crap detector". The defendant who comes in with the truth and is up front and honest about it (and doesn't get stuck with trying to remember who he lied to last and what that lie was) will pass the "crap detector" test. That guy has a really big advantage, unless he really is a psychopath killer/rapist or child molester. (There is a role for plea-bargains in this world.)

So you're right; all you can fall back on is your testimony. But that's primary evidence, and unless the prosecutor can prove you had reason to know that the purchaser was ineligible to be in possession of a firearm ("I saw the defendant day before last at the Circuit Court where I personally observed him reviewing the record of the case in which the purchaser was involuntarily committed to treatment for psychosis arising out of his having been an illegal immigrant who had previously been convicted of felonies."), your unrebutted evidence will be the only relevant evidence in the case.

I tell people in my firearms law seminar, that I have a real problem with them. Gun owners, generally, tend to be law-abiding, socially-responsible, and rational people. Such people, and the ones who shell out the big bucks to sit through a seminar on gun law in particular, do not produce business for lawyers. I need crimes and lawsuits to pay my mortgage!

Which gets me to people who are part of the system of social control that relies on shame, fear, and guilt, worry a whole lot about things they imagine that they're afraid of, or feel guilty about. Lots of people were raised to feel guilty all the time. I'm a lawyer, not a psychologist, so I can't really deal with all that stuff. Such people should, for their own peace of mind, not do things (like engage in private gun transactions) that scare them. Sometimes, based on my own experience in trying cases, such people should not buy guns at all. These are the people who tend to commit crimes, and who, when caught, weasel around and act guilty (even if they're not really guilty of whatever it was they're charged with) and who produce work for lawyers.

[gunderwood]

The BOS falls under my "I don't answer any questions policy." Take the example of a self defense shooting.

When LE shows up, the most I will say is "I feared for my life, I thought he/she was going to kill me." If that. At that point, the LEO only has immediately observable facts. Someone has been shot/is dead and I have a gun. Anything I say can be used against me in court, even if I am innocent. Most defense attorney's I have talked to recommend you say no more than that or even less. Yes, it will be a long, rough day as the law tries to get answers out of you before your lawyer shows up, but at least your odds of not being convicted of murder go way up. If you say "I shot him/her," what do you think the LEO will testify too?

Anything I say, do or provide to the LEO can and will be used against me in court. I willingly will provide them with nothing. Innocent people have gone to jail for opening their mouths and getting tripped up. The BOS is in effect a written statement by me and someone else. Why would I provide anything that could be used against me?

I have nothing to hide. I have dived into the details to make sure what I am doing for any particular transfer is legal to the best of my knowledge. I don't know everything though. I have not committed an illegal sale nor do I intend to at any point in the future. However, if a LEO comes knocking on my door, get a warrant.

[zephyp]

The BOS falls under my "I don't answer any questions policy." Take the example of a self defense shooting.

When LE shows up, the most I will say is "I feared for my life, I thought he/she was going to kill me." If that. At that point, the LEO only has immediately observable facts. Someone has been shot/is dead and I have a gun. Anything I say can be used against me in court, even if I am innocent. Most defense attorney's I have talked to recommend you say no more than that or even less. Yes, it will be a long, rough day as the law tries to get answers out of you before your lawyer shows up, but at least your odds of not being convicted of murder go way up. If you say "I shot him/her," what do you think the LEO will testify too?

Anything I say, do or provide to the LEO can and will be used against me in court. I willingly will provide them with nothing. Innocent people have gone to jail for opening their mouths and getting tripped up. The BOS is in effect a written statement by me and someone else. Why would I provide anything that could be used against me?

I have nothing to hide. I have dived into the details to make sure what I am doing for any particular transfer is legal to the best of my knowledge. I don't know everything though. I have not committed an illegal sale nor do I intend to at any point in the future. However, if a LEO comes knocking on my door, get a warrant.

Dont answer any questions when the LEO shows up after you legally shoot someone and when the LEO shows up inquiring about a gun used to murder someone are two entirely different things...oh, did I mention that you were the last legal owner of the gun. You bought it new and filled out the paperwork, sold it to someone on VGOF, and it found its way into a BG's hands...who used it to send 4 young innocents to heaven...a mere 6 months after you bought it brand new...

Not answering any questions in the first scenario is simply a smart thing to do...not answering any in the second will no doubt bring great scrutiny upon yourself and your collection of guns...

[user]

Any evidence that you'll want to be introduced in court should be given to your attorney, only. If you give it to a party with an interest adverse to yours (e.g., the cop who wants to charge you with a crime), you'll probably never see it again. Sort of like Luis Chama's problem with the burned-down courthouse ("Joe Kidd").

The cop is not the court. What you say to a cop is your statement to an investigating officer whose job it is to discover and capture people who have committed crimes. If he already has probable cause to arrest you, he is going to do so, almost regardless of anything you say. If he does not have probable cause, talking to him will provide it. Save your evidence for your attorney for use at trial.

"Tell the truth but don't blab it."

[gunderwood]

The BOS falls under my "I don't answer any questions policy." Take the example of a self defense shooting.

When LE shows up, the most I will say is "I feared for my life, I thought he/she was going to kill me." If that. At that point, the LEO only has immediately observable facts. Someone has been shot/is dead and I have a gun. Anything I say can be used against me in court, even if I am innocent. Most defense attorney's I have talked to recommend you say no more than that or even less. Yes, it will be a long, rough day as the law tries to get answers out of you before your lawyer shows up, but at least your odds of not being convicted of murder go way up. If you say "I shot him/her," what do you think the LEO will testify too?

Anything I say, do or provide to the LEO can and will be used against me in court. I willingly will provide them with nothing. Innocent people have gone to jail for opening their mouths and getting tripped up. The BOS is in effect a written statement by me and someone else. Why would I provide anything that could be used against me?

I have nothing to hide. I have dived into the details to make sure what I am doing for any particular transfer is legal to the best of my knowledge. I don't know everything though. I have not committed an illegal sale nor do I intend to at any point in the future. However, if a LEO comes knocking on my door, get a warrant.

Dont answer any questions when the LEO shows up after you legally shoot someone and when the LEO shows up inquiring about a gun used to murder someone are two entirely different things...oh, did I mention that you were the last legal owner of the gun. You bought it new and filled out the paperwork, sold it to someone on VGOF, and it found its way into a BG's hands...who used it to send 4 young innocents to heaven...a mere 6 months after you bought it brand new...

Not answering any questions in the first scenario is simply a smart thing to do...not answering any in the second will no doubt bring great scrutiny upon yourself and your collection of guns...

Not answering questions is always the smart thing to do. The state came knocking on your door because a crime was committed. If there hadn't been one, it stands to reason they never would have run the serial and wouldn't be at your door right now. They are there to find a bad guy and unlike you, they have no reason to believe you are not him. The problem with explaining this to people is they always presume their innocence. The LEO is doing no such thing. In general, they are doing the opposite. They are at your door because they think you *might* be guilty and they want to get you.

Just like the self defense shooting, there is nothing you can say or do *right then* which can help you. Let the detectives, lawyers and courts figure it out later. You can not help your case during an interrogation; at best you break even, at worst an innocent man goes to jail. I believe in being a team player and my team always has a lawyer present and advising me.

Nice strawman. Ignoring the obvious aspects of such a strawman, I'll address the secondary issue. A LEO is entirely capable of lying to you during an interrogation with no consequences. The firearm in question may have just been reported stolen, but the LEO may tell you it was "used it to send 4 young innocents to heaven." In fact the serial number in question, which was reported stolen, may just be a simple typo by some clerk. You don't know, but you must understand that a LEO may lie to you to get his answers. Until you are playing with your whole team, opening your mouth is always the wrong thing to do.

[gunderwood]

Any evidence that you'll want to be introduced in court should be given to your attorney, only. If you give it to a party with an interest adverse to yours (e.g., the cop who wants to charge you with a crime), you'll probably never see it again. Sort of like Luis Chama's problem with the burned-down courthouse ("Joe Kidd").

The cop is not the court. What you say to a cop is your statement to an investigating officer whose job it is to discover and capture people who have committed crimes. If he already has probable cause to arrest you, he is going to do so, almost regardless of anything you say. If he does not have probable cause, talking to him will provide it. Save your evidence for your attorney for use at trial.

"Tell the truth but don't blab it."

+1

Exactly!

[zephyp]

I totally agree that silence is almost always the best option...but the big difference in the scenarios above are that on one hand you have a dead person in your living room and you are holding a smoking gun. Unless its immediately and intuitively obvious that you had no other choice you are going to be immediately presumed guilty especially up here where we live. Best not to say anything until you can get with your attorney. Even in a justified shooting you have already placed yourself at the mercy of the investigators, witnesses (if any), your attorney, the law, the prosecutor, and the court. Plus, your whole day is ruined and you will most likely get a trip to the local police station...in the other (gun used by someone else) a crime has been committed elsewhere. Yes, your dinner might get interrupted but a simple "I sold that gun to DK and here is his address" will most likely send them on their way to my house. At this point they are following up. Now you have time to finish your dinner, make sure you have the BOS, and call your attorney. With a private BOS you can at least tacitly show you sold the gun.

In the first scenario (dead BG on your floor) it is clearly understood why you might not answer any questions - you are already the prime suspect...in the second, refusing to answer a simple question will place you immediately under suspicion...in that case if I were the LEO we would go downtown for fingerprinting, questioning, etc...

Bottom line is we can what if something like this until doomsday. Regarding suspicion, I am immediately suspicious anytime an LEO knocks on my door and generally react accordingly (say as little as possible). AFAIC, 95% of the time they are not there to help you out. 4% of the time they might be there because a crime was committed next door, and 1% of the time they want money...

And, I think we are talking past each other. I honestly cant imagine that in the second scenario (you sold a gun) when they knock on your door you will immediately plead the 5th...you will no doubt have some sort of discourse if for no other reason merely to get them off your property...I would because my dinner is getting cold along with my sweet beautiful wife...

[allingeneral]

Very good discussion, gentlemen. I would like to just say one thing with regard to the OP and the question posed in this thread:

Yes, it really is that simple to sell a firearm, just as selling anything else that you own. No BOS is required and it is incumbent upon the seller to ensure, to the best of his or her ability, that the sale is done legally. To that end, here are the firm requirements for a legal private sale of a firearm:

1) Ask the buyer to produce a valid Virginia Driver's license or state-issued ID to prove residence

2) Ask the buyer if they are legally allowed to own a firearm.

If you aren't comfortable making a private sale in this manner, then it's up to you how you want to handle it with either a bill of sale (not necessary), or take it to your local FFL and conduct a transfer (overkill).

[abraxas]

A common issue, and the comments pretty much reflect the feelings of people I've spoken with about the topic. Clearly, in Virginia, you can sell pretty much any personal property you own to anyone who wants to buy it, and the level of formality legally required is whatever the buyer and seller choose to agree to. I suggest the use of the form I wrote because it does everything I think is legally desirable, and provides civil and criminal protection for both parties fairly. In other words, I think it accurately reflects the nature of the routine gun transaction as far as rights between the parties is concerned, as well as protection from third parties. Note that it will not protect anyone who has actual knowledge of facts that contradict what the form says: if you know, for example, that the gun was stolen, or that it's being sold for the purpose of murdering someone, or some such thing as that, you can't count on the piece of paper to save you (you'll need me as your defense attorney for that, and there ain't no guarantees on that one).

Here's one I wrote for general use; feel free to copy and use it. I suggest downloading the file rather than clicking on the link - Adobe Acrobat Reader futzes up the clarity of the print somehow, at least on my machine, if I open PDF files from within the browser. PC/Windows users can right-click on the link and choose "save as" from the popup menu.

Please be sure to read the instructions on page 2 - that page does NOT need to be included with the bill of sale form when you're using it.

http://www.virginialegaldefense.com/Pvt ... ferBOS.PDF

Thanks very much for the link to this form. I'm considering my first private purchase and am apprehensive of using the BOS form stickied in the Firearms for Sale or Trade sub-forum--my qualms are providing my driver's license and CHP numbers on the form itself. I don't mind showing either as a good faith affirmation of my ability to purchase a firearm in VA, but according to the VSP website:

What are the laws concerning the private sale of a handgun?
To privately sell a firearm, it is recommended that you safeguard information pertaining to the transaction such as the date the firearm was sold, the complete name and address of the buyer, and the make, model, and serial number of the firearm. The seller and buyer of a handgun must be a resident of the state in which the transfer occurs. Additionally, Virginia’s handgun purchase limitation applies in private transactions.

As someone else mentioned earlier in the thread, identity theft is a real concern, and I don't feel comfortable divulging any more personally identifiable information than is legally required.