Should a dealer call NICS before or after the customer pays...

[TED]

A debate occurred today in that one customer argued that by calling NICS before he paid, the dealer would be violating his privacy and the privacy act since the only legitimate reason the dealer has to check his background is the sale which is the triggering event. Then the call to NICS is simply to see if he is allowed to take physical possession of it.

I do understand that reasoning and it seems logical.

Is there any case law about this or other info about this?

TED

NOTE: I do not know why but the system will not allow me to reply.

So, anyways, bottom-line is that it does not make any difference what sequence the payment and the NICS check come in, right?

[jackblack73]

If a person is consenting to the check, how is it a violation?

[7.62NATO]

If a customer completes and signs the 4473 and hands it to the clerk, there is great inference that he wants to purchase the firearm, regardless of whether money has traded hands.

[Leuthas]

If it is understood that a NICS check is part of the entire process of the sale, then it would be argued that handing the 4473 to the clerk would be 'inconsistent with a No.'. A common phrase in business/contract law.

[Iraqgunz]

This is stupid and there shouldn't be any debate. You fill out the 4473 after the purchase and the check is conducted. If he doesn't like the rules he can go elsewhere. Pretty simple.

[MountainRaven]

This is stupid and there shouldn't be any debate. You fill out the 4473 after the purchase and the check is conducted. If he doesn't like the rules he can go elsewhere. Pretty simple.

I think you have that backwards.

In any case, I've never been in a gun store (or any other retail establishment that sells firearms) where the payment came first and the background check second (except places that are selling NFA items or in the case of special orders where a down payment up to the full value of the firearm is required before the item is ordered).

I've seen plenty of people ask for a background check before they shop so they know they can buy a firearm, but I've never seen or heard of anybody refusing to do the background check until after they have paid.

I do not think it is in a business's best interest to do it any other way, unless the guy is paying in cash. If he's paying with a check, then you're inviting a bounced check situation. If it's with a card, then the customer has to deal with the charge being on his account for nearly a week - or the money being gone from his checking account for the same period if a debit card.

If the customer believes his privacy is being violated, then I believe that he or she would be best off taking it up with their favored Congresscritter or an attorney - if they can find one to take the case.

In any event, if the customer refuses to fill out a 4473, I would refuse the sale. Whether they refuse because they want to pay first or for some more nefarious reason is irrelevant.

[SpeedRacer]

As far as I know either way is fine. Our local shop's policy is to do the NICS check first, so they don't have to deal with refunding credit cards and all that if you are denied. However, when you buy a gun online the opposite occurs and payment is collected upfront, so obviously that is okay too. Just up to the store I guess. I don't know how the hell it's an invasion of privacy, you either want to buy the gun or not. If you do, it shouldn't matter whether the chicken or the egg comes first. If you don't, then why the hell are you there wasting their time?

I do know they also will not do a background check until a gun is selected and agreement to purchase is made.

[SteyrAUG]

Here is the simple answer.

It should be up to the private business owner to DECIDE how he runs his business and it should be up to the customer to DECIDE if he wants to conduct his business there.

That said, if the FFL calls in the check PRIOR to you making payment, and for some reason you fail, not only did he just save you a chuck of money but "technically" you haven't attempted to purchase a firearm since there was no "transaction." That somebody would actually suggest this practice is some kind of invasion of privacy is one of the stupidest things I've read on "this" forum in a long, long time.

NICS doesn't give you any information about the individual, they don't tell you if they got busted for weed back in the 60s or if they skipped school. They simply tell you the transaction is "approved" or "non approved", they don't tell you why. The customer actually provides far more information on the 4473 when he fills it out.

I doubt there is any case law, but OBVIOUSLY the call has to be done PRIOR to completing the 4473 because you put that information on the 4473. There is no law regarding when payment has to be made. This is because if a FFL gives away a gun for free or as a promotion, there is no transaction but a 4473 still must be completed in most cases so a law regarding when NICS must be called in relation to payment made would be stupid and ridiculous, just like the customer who raised this issue.

Having this issue raised, as much as I advocate personal privacy and freedom issues, would be enough for me to decline the sale completely and there would be no need to call NICS at all. I don't need nutjobs in my life or on my books.

[Iraqgunz]

Well from what I have seen in AZ it's pretty normal. Also, if you don't know if you can purchase a firearm, then you shouldn't be trying to purchase a firearm. People that aren't prohibited, know if they are prohibited. You do realize that it's unlawful for a prohibited person to attempt to purchase a firearm, right?


I think you have that backwards.

In any case, I've never been in a gun store (or any other retail establishment that sells firearms) where the payment came first and the background check second (except places that are selling NFA items or in the case of special orders where a down payment up to the full value of the firearm is required before the item is ordered).

I've seen plenty of people ask for a background check before they shop so they know they can buy a firearm, but I've never seen or heard of anybody refusing to do the background check until after they have paid.

I do not think it is in a business's best interest to do it any other way, unless the guy is paying in cash. If he's paying with a check, then you're inviting a bounced check situation. If it's with a card, then the customer has to deal with the charge being on his account for nearly a week - or the money being gone from his checking account for the same period if a debit card.

If the customer believes his privacy is being violated, then I believe that he or she would be best off taking it up with their favored Congresscritter or an attorney - if they can find one to take the case.

In any event, if the customer refuses to fill out a 4473, I would refuse the sale. Whether they refuse because they want to pay first or for some more nefarious reason is irrelevant.

[Iraqgunz]

At our shop, you fill out the 4473. Once it's done a NICS check is conducted unless you have an AZ CCW. Information from the 4473 is then provided to the NICS operator.

You make a very valid point about attempting to make a transaction.


Here is the simple answer.

It should be up to the private business owner to DECIDE how he runs his business and it should be up to the customer to DECIDE if he wants to conduct his business there.

That said, if the FFL calls in the check PRIOR to you making payment, and for some reason you fail, not only did he just save you a chuck of money but "technically" you haven't attempted to purchase a firearm since there was no "transaction." That somebody would actually suggest this practice is some kind of invasion of privacy is one of the stupidest things I've read on "this" forum in a long, long time.

NICS doesn't give you any information about the individual, they don't tell you if they got busted for weed back in the 60s or if they skipped school. They simply tell you the transaction is "approved" or "non approved", they don't tell you why. The customer actually provides far more information on the 4473 when he fills it out.

I doubt there is any case law, but OBVIOUSLY the call has to be done PRIOR to completing the 4473 because you put that information on the 4473. There is no law regarding when payment has to be made. This is because if a FFL gives away a gun for free or as a promotion, there is no transaction but a 4473 still must be completed in most cases so a law regarding when NICS must be called in relation to payment made would be stupid and ridiculous, just like the customer who raised this issue.

Having this issue raised, as much as I advocate personal privacy and freedom issues, would be enough for me to decline the sale completely and there would be no need to call NICS at all. I don't need nutjobs in my life or on my books.

[Alex V]

IG and Steyr,

This is what I was going to as. Say a person makes payment for a gun, then I run his NICS and it comes back "Not Approved" Did I just make a sale to a prohibited person? I know he has not taken possession of the firearm, but a sale was made. Can I go to the pockey for that one?

The internet sale is interesting tho. I made payment in full for a couple of guns and some lowers online, prior to the NICS check being run by my local FFL which was being used to transfer them. What happens if I come back as "Not Approved" Obviously I am out my money until the gun is returned, but does anyone get in trouble?

[7.62NATO]

Here is the simple answer.

It should be up to the private business owner to DECIDE how he runs his business and it should be up to the customer to DECIDE if he wants to conduct his business there.

That said, if the FFL calls in the check PRIOR to you making payment, and for some reason you fail, not only did he just save you a chuck of money but "technically" you haven't attempted to purchase a firearm since there was no "transaction." That somebody would actually suggest this practice is some kind of invasion of privacy is one of the stupidest things I've read on "this" forum in a long, long time.

NICS doesn't give you any information about the individual, they don't tell you if they got busted for weed back in the 60s or if they skipped school. They simply tell you the transaction is "approved" or "non approved", they don't tell you why. The customer actually provides far more information on the 4473 when he fills it out.

I doubt there is any case law, but OBVIOUSLY the call has to be done PRIOR to completing the 4473 because you put that information on the 4473. There is no law regarding when payment has to be made. This is because if a FFL gives away a gun for free or as a promotion, there is no transaction but a 4473 still must be completed in most cases so a law regarding when NICS must be called in relation to payment made would be stupid and ridiculous, just like the customer who raised this issue.

Having this issue raised, as much as I advocate personal privacy and freedom issues, would be enough for me to decline the sale completely and there would be no need to call NICS at all. I don't need nutjobs in my life or on my books.

I strongly disagree with your statement highlighted above. Completing and signing the 4473, and checking "Yes" to "Are you the actual transferee/buyer of the firearm(s) listed on this form?" is a clear, bonafide attempt to purchase the firearm in question, regardless of payment yet having taken place, and I suspect the ATF and most District Courts agree with me.

[longball]

IG and Steyr,

This is what I was going to as. Say a person makes payment for a gun, then I run his NICS and it comes back "Not Approved" Did I just make a sale to a prohibited person? I know he has not taken possession of the firearm, but a sale was made. Can I go to the pockey for that one?

The internet sale is interesting tho. I made payment in full for a couple of guns and some lowers online, prior to the NICS check being run by my local FFL which was being used to transfer them. What happens if I come back as "Not Approved" Obviously I am out my money until the gun is returned, but does anyone get in trouble?

I am NOT a lawyer so this is worth exactly what you are paying for it:

It was the policy of both gun stores I've worked at in the past to complete the 4473 before payment was accepted. Their reasoning was to avoid time consuming refunds and as an extra layer of protection against being accused of transferring a firearm to a prohibited person.

Even if they pay first, as long as you do not transfer possession of the gun to a prohibited person you should be fine. For the licensed seller, the law regards transferring of possession, not the acceptance of payment.

Regardless of when payment is accepted, if the decision to fill out a 4473 has been made I would suggest that the firearm stay in the possession of the seller until a proceed response if received from NICS.


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[SteyrAUG]

IG and Steyr,

This is what I was going to as. Say a person makes payment for a gun, then I run his NICS and it comes back "Not Approved" Did I just make a sale to a prohibited person? I know he has not taken possession of the firearm, but a sale was made. Can I go to the pockey for that one?



No because you haven't completed the transaction.

[SteyrAUG]

I strongly disagree with your statement highlighted above. Completing and signing the 4473, and checking "Yes" to "Are you the actual transferee/buyer of the firearm(s) listed on this form?" is a clear, bonafide attempt to purchase the firearm in question, regardless of payment yet having taken place, and I suspect the ATF and most District Courts agree with me.

You are probably right, what I'm saying is payment hasn't yet been made so we are sorta in that "grey area." A good lawyer might be able to save your bacon.

Really doesn't matter, not once in any "non approved" situation I've had did anyone do anything about it. Nobody came and got the guy. ATF never got his information and picked him up later. He was simply told "No" and he went home.

[JusticeM4]

In all my LGS firearm purchases, the 4473 is filled out and NICS is called first before payment is made. I'm sure this can be done in reverse, but it doesn't make sense to pay or accept payment when the background check hasn't cleared. Also filling out the 4473 is an expressed consent to purchase and check your background, no?

Even if you do pay before the NICS check and it comes back not approved, you as the buyer technically have not bought the gun because it has not been transferred to you. A complete transaction/sale involves payment and receipt of an item. So if you didn't receive it, it was not sold to you regardless of payment. JMO, and I'm not a lawyer, but wouldn't this make more sense?

[Boba Fett v2]

A debate occurred today in that one customer argued that by calling NICS before he paid, the dealer would be violating his privacy and the privacy act since the only legitimate reason the dealer has to check his background is the sale which is the triggering event. Then the call to NICS is simply to see if he is allowed to take physical possession of it.

I do understand that reasoning and it seems logical.

Is there any case law about this or other info about this?

TED

NOTE: I do not know why but the system will not allow me to reply.

So, anyways, bottom-line is that it does not make any difference what sequence the payment and the NICS check come in, right?
The customer is an idiot.

[NCPatrolAR]

You are probably right, what I'm saying is payment hasn't yet been made so we are sorta in that "grey area." A good lawyer might be able to save your bacon.

Really doesn't matter, not once in any "non approved" situation I've had did anyone do anything about it. Nobody came and got the guy. ATF never got his information and picked him up later. He was simply told "No" and he went home.


SOP here is for ATF to visit the person within several days of his NICS failure

[ramairthree]

In the six states I have lived in, and the multiple stores and gun shows I have purchased from in each state,
the procedure has always been:

I want that gun.

We agree on a price.

I fill out the form.

They check the form,

then add the permit info to the form.

or, if no permit involved, call NICS, then add the approved number to the form.

Then I pay.
CC if wife will know about it.
Or whip out the pimp roll and drop some cash if she will not.

Then I leave the store happy.

I would find it odd if they had me pay before seeing the permit or calling NICS.

[williejc]

One reason for the customer to complete the form first is this: if he answers questions showing that he is a felon or has been dishonorably discharged or has been convicted of family violence, bla, bla, bla, then there is no need to make the phone call.

[7.62NATO]

SOP here is for ATF to visit the person within several days of his NICS failure, and not prosecute

Corrected it for you.