Violation: Sale or transfer of a firearm to a prohibited person
The ATF Form 4473 is designed to facilitate the transfer of firearms from Federal Firearms License holders to non-licensees. The understanding and proper execution of form 4473 is a critical element of the conduct of business for all retail level licensees. The 4473 properly used, may also protect your firearms business from civil litigation. Licensees should become thoroughly familiar with the requiremements of the ATF F 4473 in order to avoid a possible transfer of firearms to a prohibited person. Extensive knowledge of form 4473 is likely a licensees best defense against beign cited during an ATF inspection.
How common is this violation?
Safeguards built into the system by regulation, and redundancy in the process of FFL transfers to non-licensees makes this violation relatively rare. The violation is somewhat difficult to discuss in this format because in general the circumstances surrounding the violation will be complex and distinct. The violation is typically an anomalous finding in a compliance inspection. It’s very rare that the violation is found to be willful.
What can firearms licensees do to safeguard against this violation?
In addition to the processes and systems already in place by regulation, FFLs should develop in-house strategies, implement policies, internal controls, and quality assurance systems that could virtually eliminate the chances of this violation. The ATF regulations already go a long way in assisting the FFL in this area. If the FFL follows the rudimentary elements of the transfer procedure, the chance of transferring a firearm to a prohibited person is almost zero. The failure can usually be attributed to lack of attention to detail by the FFL or employees of the FFL. This particular violation is at times the result of the FFLs failure to examine the ATF Form 4473 after it is filled out by the buyer/transferee. It’s the FFLs responsibility to ensure the ATF Form 4473 is executed in accordance with the instructions on the form. A proper quality assurance check of the form prior to transfer goes a long way to preventing improper transfers.
What are some typical reasons for failure in this area?
Prohibited transfers are generally rare because of the regulatory procedures in place for transfers to non licensees. The execution of the ATF Form 4473, the required certifications by transferees, and the NICS process are designed to ensure firearms are not transferred to prohibited persons. Failure to follow established procedures, failure to examine the form for completeness, and lack of attention to detail when examining Item 11 (prohibited categories) are generally the reasons for failure in this area. Lack of proper training and accountability of employees can also be a major factor. Employees generally do not have a vested interest in the business and may cut corners if not held strictly accountable. Proper training of employees is also a critical element of compliance; your sales staff should know and understand pertinent regulations thoroughly.
How can the ATF Form 4473 protect my business?
As a FFL, you should commit to knowing and understanding the requirements of the ATF Form 4473. The ATF Form 4473 is probably a licensee’s best protection against transfers to prohibited persons and protection against civil liability. Your sales staff should be well trained on those requirements and held accountable for inaccuracies. Proper execution of the ATF Form 4473 will require the buyer/transferee to certify that they are not prohibited from receiving or possessing firearms. Section A Item 11 requires the buyer/transferee to check “yes” or “no” to prohibiting questions. It is important that the buyer/transferee acknowledge that they are not prohibited. The FFL must ensure that item 11 and the certification signatures of the transferee indicate that the person receiving the firearm is not prohibited. The ATF Form 4473 must be examined thoroughly for correctness BEFORE the firearm is transferred.
A common mistake FFLs make is the failure to examine Section A Item 11 for answers given by buyers/transferees which place them in prohibited categories. It’s extremely important that FFLs take special care in examining this section of the form. FFLs may not transfer firearms to persons who answer “yes” to prohibiting questions in Section A Item 11 et al; even if given a “proceed” by NICS or a state POC. A licensee must immediately stop a transaction if a person indicates they are prohibited from receiving or possessing firearms.
What can happen if I fail to see a “yes” answer to a prohibiting question and transfer a firearm?
If a buyer/transferee answers “yes” to a prohibiting question, and the FFL fails to stop the transfer for any reason, there are a number of possible scenarios; all can’t be discussed here.
1) The person is actually prohibited and walked out of your shop with a firearm, the situation is discovered by the FFL, or during a compliance inspection. The firearm is retrieved from the prohibited person.
2) The person made a mistake on the form and should have answered “no”. Probably the best possible scenario. There may be a violation, but a gun did not go to a prohibited person.
3) A prohibited person who admitted to being prohibited by checking “yes” in Item 11 to a prohibiting question commits a crime using the gun you transferred to them, or transfers the firearm to another prohibited person. Could there be a worse scenario? Give this some thought.
If you hold a Federal Firearms License and are reading this, hopefully you understand how important it is for you to examine the ATF Form 4473 carefully prior to transferring a firearm.
NICS can not be relied upon as the sole determinant of whether a person is prohibited from receiving or possessing firearms. It is entirely possible to get a “proceed” from NICS or a state POC for a prohibited person.
Can a FFL absolutely rely on the NICS system to identify a prohibited person?
Some FFLs believe that prohibited persons will be identified and denied once the NICS background check is conducted. The FFL should never rely solely on the NICS background check. If the transferee answers “yes” to a prohibiting question, the transaction can not proceed. If the FFL has knowledge that a person is prohibited from receiving or possessing firearms, the FFL may not transfer a firearm to that person.
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