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Zero Tolerance Protection: Who Not to Sell Firearms To

Written by Orchid


August 17, 2022


White text atop black background next to grayscale photo of President Joe Biden

As a firearms dealer, you never know who may walk through your doors. After all, guns are purchased by people of all ages, genders, races, ethnicities, and political backgrounds. However, that doesn’t mean every customer can legally buy or possess a gun under federal, state and local law.

Under the Biden administration’s new zero tolerance policy, transferring a firearm into the wrong hands is considered a “willful” ATF violation that will likely cost your FFL its license. As we covered in our last Zero Tolerance Protection series article, regulations have established a list of persons prohibited from purchasing firearms, but other categories and requirements of individuals exist.

To avoid the risk of revocation, FFLs should prevent selling or transferring firearms to the following customers:

Prohibited Persons
Under the Gun Control Act, the following categories of individuals, with exceptions, may not ship, transport, receive, or possess firearms or ammunition as prohibited persons:

  • Persons convicted of a crime punishable by imprisonment exceeding one (1) year
  • Fugitives from justice
  • Unlawful users of or person addicted to marijuana or other controlled substance
  • Persons adjudicated as a mental defective or committed to a mental institution
  • Persons dishonorably discharged from the U.S. armed forces
  • Persons subject to restraining orders
  • Persons convicted of a domestic violence misdemeanor
  • Persons who have renounced their U.S. citizenship
  • Nonimmigrant visa aliens or aliens illegally in the U.S.

Invalid Identification
Every prospective firearm purchaser or transferee must present valid identification to an FFL before beginning an ATF Form 4473, Firearms Transaction Record. Acceptable identification must by issued by a government entity and have the following:

  • Transferee’s name
  • Transferee’s date of birth
  • Transferee’s current residence address
  • Photograph of the transferee
  • Valid expiration date (i.e., unexpired)

While a driver’s license is typically used, a combination of government-issued documents may also be used to supplement the requirements of an identification document, including U.S. and foreign passports, vehicle registration, hunting/fishing licenses or permits, and concealed weapons permits, where accepted.

Customers who do not possess or cannot provide valid, accepted identification documentation may not proceed with a firearm transaction. A failure to verify and document buyer eligibility is also considered a willful violation by the ATF.

Generally, an FFL may not lawfully sell a firearm to a nonlicensee who resides in a state other than the state in which the seller’s licensed premises is located. For example, if a customer is a resident of Texas but is shopping for a gun at a retailer in Colorado, the firearm transaction may be denied by the dealer. However, this rule is not without two exceptions.

First, the sale may be made if the firearm is shipped from an FFL to a licensee whose business is in the purchaser’s state of residence. This is how ecommerce firearm sales are made, referred to as an FFL transfer.

Second, a licensee may sell a rifle or shotgun to a non-resident in an over-the-counter transaction, provided the transaction complies with state law in both the FFL’s state and in the state where the purchaser resides. However, it is the choice of licensees whether to perform such transactions.

It is always illegal for firearm dealers to sell handguns to non-residents in person.

Underage Buyers
Another reason for proper identification is to avoid transferring firearms to underage buyers. At a federal level, individuals must be at least 18 years old to purchase rifles, shotguns and related ammunition, while individuals must be at least 21 years old to purchase handguns, handgun ammunition, NFA firearms, and ATF-classified “firearms.”

However, numerous states have enacted their own laws restricting minimum purchase age for firearms. As an FFL, you must be aware of both federal and local laws to ensure firearms are not transferred to buyers of unlawful age.

Straw Purchasers
Defined as when an actual firearm buyer or transferee uses another individual to execute a Form 4473 as if they were the true firearm buyer/transferee, straw purchasers act as pawns for those who may be prohibited from purchasing or possessing a firearm, unwilling to have their name associated with a firearm transaction, or simply cannot afford a firearm to obtain one.

Because straw purchasers know how to correctly complete a 4473, answering ‘yes’ to Question 21.a, and can pass a NICS background check, these individuals are often extremely difficult for firearm dealers to thwart. But, if FFLs can identify the signs of a straw purchase or have reason to believe a person is attempting a straw purchase, the firearm transaction should be denied.

Dealer Denials
As a retail FFL, your business exists to sell firearms. However, selling guns comes with complex compliance and high risk, especially under the administration’s zero tolerance policy and increased ATF enforcement. In the best interest of your license, your business has the right to deny anyone of any firearm transaction at any time – legal or otherwise.

From suspected straw purchases and mental instability to customers under the influence of alcohol or other controlled substances, trust your gut to deny a firearms sale or transfer and protect your FFL.

NICS Denials & Expirations
Unlike dealer denials, where it is at the discretion of the licensee to deny a firearm sale or transfer, FBI National Instant Criminal Background Check System (NICS) denials are to be considered final until appealed and overturned. Should a customer be NICS denied as part of a transaction, the firearm(s) must not be transferred and the 4473 appropriately completed.

Even if approved, FFLs must be careful not to transfer firearms to customers whose NICS checks were approved more than 30 days from when the background check was initiated and recorded on the 4473. Though approved, these customers must start a new firearms transaction record and wait for new NICS approval before taking possession.

Orchid Zero Tolerance Protection

At Orchid, our team of operations, technology and legal professionals understand the risks of today’s firearm businesses. For over a decade, we’ve worked with FFLs big and small to implement leading compliance best practices and software solutions to eliminate violations and protect licenses from revocation.

As we continue our Zero Tolerance Protection series, we’ll share our expertise and experience in proactive compliance as we look closer at Biden’s policy and its impact on the firearms industry, review how to avoid and correct violations, and suggest ways to protect your FFL from the risk of revocation. Next, we’ll go beyond prohibited persons to cover other individuals dealers should avoid selling firearms to.

In the meantime, contact us today to schedule your in-person or remote mock ATF inspection, get started with leading compliance software, and enroll in an attorney-backed FFL Protection Plan. One phone call or email could protect your FFL from a zero tolerance revocation.

Protect Your FFL Today