Legal Ownership and Straw Purchases: SCOTUS


PDA






Gaiudo
January 22, 2014, 04:01 PM
Looks like we'll finally get this sorted out at SCOTUS:

http://www.foxnews.com/politics/2014/01/22/supreme-court-weighs-gun-rights-challenge/?intcmp=latestnews

The Supreme Court took up a new gun rights case on Wednesday, weighing whether it should be a crime for someone to buy a gun for somebody else, if both people are legally allowed to own one.

Justices on Wednesday heard from Bruce James Abramski, Jr., a former police officer who got in trouble with the law after he bought a Glock 19 handgun in Virginia -- and transferred it to his uncle in Pennsylvania.

Abramski bought the gun because he could get a discount, and checked a box on the relevant form saying the gun was for him. But he sold it to his uncle.

Abramski was later indicted under federal law for making a false statement material to the lawfulness of a firearm sale -- and for making a false statement with respect to information required to be kept in the records of a license firearm dealer.

But Abramski's lawyers told the high court that since both he and his uncle were legally allowed to own guns, the law shouldn't have applied to him.

His team argued that Congress never intended for a lawful buyer who transfers a gun to another lawful owner to be prosecuted under this law -- and that the intent was all about making sure straw buyers don't purchase guns for people not allowed to have them, like certain convicted criminals.

But the government argued that he violated the plain language of the law, when he said on the form that the gun was for him. They argued he never gave the seller any idea that he planned to essentially resell the gun to someone else the dealer would have no opportunity to vet.

Much of Wednesday's arguments centered on the question on the form -- prepared by the Bureau of Alcohol, Tobacco, Firearms and Explosives -- and whether the agency's decision to include the question gives it the force of law, enough to make it a crime to answer untruthfully.

A decision in the case is expected by June.

Adjacent, but fairly important to my mind is that they will be determining what holds greater weight: whether he broke the congressional law (legislative), or whether he broke an BATFE question on a form (executive), and which one applies here.

I could see this going either way. I can see them ruling that the plaintiff didn't break the congressional law on straw purchases, but that he still broke the law by lying on a federal form. Hopefully we at least get a clarification of what a straw-purchase actually is, and best case scenario requires changes to the enforcement practices.

If you enjoyed reading about "Legal Ownership and Straw Purchases: SCOTUS" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!
NavyLCDR
January 22, 2014, 04:26 PM
I could see this going either way. I can see them ruling that the plaintiff didn't break the congressional law on straw purchases, but that he still broke the law by lying on a federal form. Hopefully we at least get a clarification of what a straw-purchase actually is, and best case scenario requires changes to the enforcement practices.

You do understand that the "congressional law on straw purchases" is only lying on the form and nothing else, right? This is the "straw purchase" law:

http://www.law.cornell.edu/uscode/text/18/922

18 U.S. Code § 922 - Unlawful acts

(a) It shall be unlawful—
(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;

That's all. Making a "straw purchase" is an entirely seperate offense from providing a gun to a prohibited person, although the "straw purchase" can certainly be one action to facilitate providing a gun to a prohibited person.

What makes a "straw purchase" illegal is the fact that the FFL is required to perform a NICS check (or equivelant) prior to transferring a gun to the recipient. By making a "straw purchase," I am circumventing the background check requirement on the final recipient - regardless of if that final recipient could pass the background check themselves.

Gaiudo
January 22, 2014, 04:38 PM
Isn't the operative clause here as follows?

"with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition"

Certainly it's not a cart blanc statement against making false statements in general; I could say I'm 35 when I'm only 31, but that has no bearing. Only "with respect to a fact material to the lawfulness of the sale". And isn't the fact material to the lawfulness of the sale whether I'm a restricted person?

If so, the question is whether there is a congressional act that states one can't purchase a firearm for a different unrestricted person. Is there? I confess my ignorance here. But that seems to be the gist of the defendant's argument here.

NavyLCDR
January 22, 2014, 04:48 PM
If so, the question is whether there is a congressional act that states one can't purchase a firearm for a different unrestricted person. Is there? I confess my ignorance here. But that seems to be the gist of the defendant's argument here.

There is no Federal law that says that I cannot purchase a firearm on behalf of another person. But there is a law that says the FFL must do the background check on the purchaser. If I purchase a firearm on behalf of another person then the FFL is doing the background check on me, the "strawman", and not on the purchaser. That is the law that is violated.

Now, here's an interesting fact in the US....most states do not require a background check when firearms are bought/sold between two residents of that state - and neither does Federal law.

I live in Washington state. So, let's say my buddy wants a particular gun, and my next door neighbor is selling that gun - there is no law at all broken for me to get money from my buddy, buy the gun from my next door neighbor, and then deliver the gun to my buddy - so long as we are all residents of Washington state, none of us are prohibited from owning a firearm, and none of us possesses an FFL (Federal Firearms License, IE: dealer, manufacturer, importer or collector).

Now, if I take my buddy's money and buy that gun from a licensed dealer - now it becomes illegal - against Federal law - even though my buddy and I are the exact same two people.

lpsharp88
January 22, 2014, 04:57 PM
Please excuse my ignorance, but the article says it was transferred to his uncle in Pennsylvania, does it matter how? What I mean is, for this to have been a criminal case, does that mean that he bought the firearm in VA, then did a face to face transaction with his uncle, no FFL involved, in PA? Or did he buy the firearm in VA, then go to a FFL in PA and do the transfer there? If the latter, what's the big deal? I thought that if a transfer from person to person is done through a FFL, a new NICS check had to be done.

NavyLCDR
January 22, 2014, 05:23 PM
Please excuse my ignorance, but the article says it was transferred to his uncle in Pennsylvania, does it matter how? What I mean is, for this to have been a criminal case, does that mean that he bought the firearm in VA, then did a face to face transaction with his uncle, no FFL involved, in PA? Or did he buy the firearm in VA, then go to a FFL in PA and do the transfer there? If the latter, what's the big deal? I thought that if a transfer from person to person is done through a FFL, a new NICS check had to be done.

http://sblog.s3.amazonaws.com/wp-content/uploads/2013/09/Abramski-Petition-for-Writ-of-Certiorari.pdf

Petitioner Bruce Abramski, a former police offi cer,
bought a gun for his uncle. Abramski’s uncle is a lawabiding
citizen legally entitled to buy a gun himself. But
because Abramski worked in law enforcement, he receives
a discount at many gun stores. So Abramski bought the
gun to save his uncle some money, then drove to his uncle’s
hometown, met his uncle at a nearby gun store, and signed
the necessary ATF paperwork to transfer ownership.

This is going to be interesting since the firearm was transferred to the uncle via an FFL and the required NICS check and form 4473 was done on the uncle.

If the second transaction did not involve an FFL - then Abramski would be guilty of violating additional Federal (and possibly state) laws by transferring the gun to someone who was not a resident of the same state as himself, without going through an FFL.

This truly is a 100% straw purchase case only - usually these cases involve some additional illegal action.

Gaiudo
January 22, 2014, 05:24 PM
There is no Federal law that says that I cannot purchase a firearm on behalf of another person. But there is a law that says the FFL must do the background check on the purchaser. If I purchase a firearm on behalf of another person then the FFL is doing the background check on me, the "strawman", and not on the purchaser. That is the law that is violated.

But what is the "law" that's been violated, if the purchaser is given a background check? I'd say that's precisely what's unclear and being decided here in this ruling: whether it is in fact illegal to purchase for another person who is a nonrestricted person. There is no federal law stating "the intended owner" has to have a background check, only the purchaser. The defense is arguing that this law was clearly intended to keep restricted persons from purchasing firearms, and should have no bearing on a transfer from one legal owner to another. To wit:

Please excuse my ignorance, but the article says it was transferred to his uncle in Pennsylvania, does it matter how? What I mean is, for this to have been a criminal case, does that mean that he bought the firearm in VA, then did a face to face transaction with his uncle, no FFL involved, in PA? Or did he buy the firearm in VA, then go to a FFL in PA and do the transfer there? If the latter, what's the big deal? I thought that if a transfer from person to person is done through a FFL, a new NICS check had to be done.

It's my understanding that the purchaser legally transferred, through an FFL, to his uncle. Yes, a NICS background check would have been done. And yes, in the BATFE's eyes the original purchaser still broke the law by lying on the form.

This is actually about as clean a case as we could hope for. A law enforcement official, clearly not trying to transfer to a restricted person, in fact using an FFL to do the transfer, who in my eyes anyways isn't guilty of transgressing congressional law on purchasing but rather contravening BATFE policy and lying on a form.

ETA:
This truly is a 100% straw purchase case only - usually these cases involve some additional illegal action.

Yep, it's a pretty good test case for this. I can see why they granted cert; will be interesting to watch.

MErl
January 22, 2014, 05:25 PM
nevermind

NavyLCDR
January 22, 2014, 05:34 PM
A law enforcement official, clearly not trying to transfer to a restricted person, in fact using an FFL to do the transfer, who in my eyes anyways isn't guilty of transgressing congressional law on purchasing but rather contravening BATFE policy and lying on a form.

Except that lying on the form IS the "congressional law." But the key phrase and argument is going to be:

18 U.S. Code § 922 - Unlawful acts

(a) It shall be unlawful—
(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;

Personally, I don't see how anything was "intended or likely to deceive." I sincerely hope that the Supreme Court rules that this must be a condition that has to be met to be convicted of "lying" on the form.

Frank Ettin
January 22, 2014, 06:00 PM
A while ago I outlined current law on straw purchases in this thread (http://www.thehighroad.org/showthread.php?t=700331):

...The actual offense is violation of 18 USC 922(a)(6), making a false statement on the 4473 (specifically about who is the actual buyer), and has nothing to do with the ultimate recipient being a prohibited person.

See the ATF publication Federal Firearms Regulation Reference Guide, 2005, (http://www.atf.gov/files/publications/download/p/atf-p-5300-4.pdf) at page 165 (emphasis added):15. STRAW PURCHASES

Questions have arisen concerning the lawfulness of firearms purchases from licensees by persons who use a "straw purchaser" (another person) to acquire the firearms. Specifically, the actual buyer uses the straw purchaser to execute the Form 4473 purporting to show that the straw purchaser is the actual purchaser of the firearm. In some instances, a straw purchaser is used because the actual purchaser is prohibited from acquiring the firearm. That is to say, the actual purchaser is a felon or is within one of the other prohibited categories of persons who may not lawfully acquire firearms or is a resident of a State other than that in which the licensee's business premises is located. Because of his or her disability, the person uses a straw purchaser who is not prohibited from purchasing a firearm from the licensee. In other instances, neither the straw purchaser nor the actual purchaser is prohibited from acquiring the firearm.

In both instances, the straw purchaser violates Federal law by making false statements on Form 4473 to the licensee with respect to the identity of the actual purchaser of the firearm, as well as the actual purchaser's residence address and date of birth. The actual purchaser who utilized the straw purchaser to acquire a firearm has unlawfully aided and abetted or caused the making of the false statements. The licensee selling the firearm under these circumstances also violates Federal law if the licensee is aware of the false statements on the form. It is immaterial that the actual purchaser and the straw purchaser are residents of the State in which the licensee's business premises is located, are not prohibited from receiving or possessing firearms, and could have lawfully purchased firearms...

So, if --


X says to Y, "Here's the money; buy that gun and then we'll do the transfer to me [when I get back to town, or whenever else].", or


X says to Y, "Buy that gun and hold it for me; I'll buy from you when I get my next paycheck."

or anything similar, if Y then buys the gun, he is not the actual buyer. He is buying the gun as the agent of X, on his behalf; and X is legally the actual buyer. If Y claims on the 4473 that he is the actual buyer, he has lied and violated 18 USC 922(a)(6). His subsequently transferring the gun to X in full compliance with the law, does not erase his prior criminal act of lying on the 4473.

Some more examples --

If X takes his own money, buys the gun and gives the gun to someone else as a gift, free and clear without reimbursement of any kind, X is the actual purchaser; and it is not a straw purchase.


If X takes his money and buys the gun honestly intending to keep it for himself and later sells it to another person, X is the actual purchaser; and it is not a straw purchase.


If X takes his money and buys the gun intending to take it to the gun show next week to see if he might be able to sell it to someone at a profit, X is the actual purchaser; and it's not a straw purchase. He may, however have other problems if he manages to sell the gun at the gun show, and the transfer there isn't handled properly. He might also have problems if he does this sort of thing too frequently, and the ATF decides he's acting as a dealer without the necessary license.


If X takes his money and buys the gun with the understanding that he is going to transfer the gun to Y and that Y is going to reimburse him for it, X is not the actual purchaser. He is advancing X the money and buying the gun for and on behalf of Y, as Y's agent. So this would be an illegal straw purchase.

Whether or not a transaction is an unlawful straw purpose will often be a question of intent. But prosecutors in various situations can convince juries of intent, often from circumstantial evidence. A slip of the tongue, posting something on the Internet, tracks left by money transfers have all, in one way or another, and in various contexts, helped convince a jury of intent.

The foregoing is reflected in the instructions to Question 11.a. on the current Form 4473 (http://www.atf.gov/files/forms/download/atf-f-4473-1.pdf) (emphasis in original):Question 11.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party. ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer ”NO” to question 11.a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual transferee/buyer of the firearm and should answer “YES” to question 11.a. However, you may not transfer a firearm to any person you know or have reasonable cause to believe is prohibited under 18 U.S.C. § 922(g), (n), or (x). Please note: EXCEPTION: If you are picking up a repaired firearm(s) for another person, you are not required to answer answer 11.a. and may proceed to question 11.b.

The real issue here is likely to be the language of the statute (18 USC 922(a)(6), emphasis added):(a) It shall be unlawful—

...

(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter; ...

The general legal definition of "material" (http://thelawdictionary.org/material/) is:Important; more or less necessary; having influence or effect; going to the merits; having to do with matter, as distinguished from form....

So is the misrepresentation as to who the actual purchaser is material when the subsequent transfer was done at an FFL on a 4473?

The argument may have some merit, and indeed the Fifth Circuit in United States v. Polk, 118 F.3d 286 (5th Cir. 1997) decided that the misrepresentation as to the actual purchaser was not material when the subsequent transferee (the actual purchaser) could legally buy a gun directly.

But the Fourth Circuit in this case does not agree, nor do the Sixth Circuit (United States v. Morales, 687 F.3d 697 (6th Cir. 2012)), and Eleventh Circuit (United States v. Frazier, 605 F.3d 1271 (11th Cir. 2010)).

The Supreme Court decision here will resolve that split among Circuits.

Gaiudo
January 22, 2014, 06:30 PM
Yes, that's helpful Frank.

Except that lying on the form IS the "congressional law."

With regard to 18 USC 922(a)(6) the question at hand is whether it states "don't lie on the form" or whether it says "don't lie in order to make an unlawful purchase".

Now, ATF obviously have a specific take on the matter, as they designed the 4473 in the first place and given their instructions in the FFRRG. But with the split decision between Polk and Morales it seems to me precisely this question the court will be deciding.

Trent
January 22, 2014, 09:38 PM
From the article in the OP:

"An answer to this question is expected by June"

Not familiar with Supreme Court operating procedures. Why "June"?

Are there hearings? Additional testimony? etc? I figured all of that would have been done in the appeals process and little (if any) new material would be submitted. So if all they are doing is reviewing the cases and making an answer, why the duration?

(Not trying to be asinine; I really don't know why it would take that long?)

Gaiudo
January 22, 2014, 09:49 PM
End of session decisions are in June, I believe. I believe that arguments have already been made.

Between now and June they'll assign the opinions and write them up. That takes a while. They typically announce the decisions en mass.

joeschmoe
January 22, 2014, 09:58 PM
Additionally, did the ATF exceed their authority by adding questions to the form that criminalized the defendants actions even if that was not the intent of Congress? Although agencies do have broad rule making power there are limits and procedures which the ATF frequently violates. If so then the ATF may have created a crime that it did not have the power to do.

shep854
January 22, 2014, 10:06 PM
To my simple mind, it's hair-splitting: If I buy a gun, I'm the actual buyer. What I do with it after that should be my own business, unless I allow it to come into the possession of a prohibited person*, at which time I become an accessory, especially if the gun is used in a crime.

*Ensuring that a firearm doesn't fall into 'wrong' hands is part of the responsibility of gun ownership.

Gaiudo
January 22, 2014, 10:14 PM
Right, though you should have stopped after "my own business", shep854, IMHO. Can't agree with you on the asterisk, and fortunately neither does federal law. You can't expect people to be running background checks on classified add responses.

shep854
January 22, 2014, 10:25 PM
That's why I will only sell directly to someone I know personally and trust.

JRH6856
January 22, 2014, 10:50 PM
Here's one for Frank Etten

It seems to me this is more a 5A case than a 2A cse. Can a person be forced to perjor or incriminate himself in order to exercise a fundamental 2A right when such incrimination would prevent that exercise?

Shouldn't 4473 have a "plead the 5th" box to avoid perjory or self-incrimination?

If you exercise your 5A rights, on such a 4473 can that be used to diqualify you from exercising your 2A rights? Or would the govt. first have to prove your guilt?

steve4102
January 22, 2014, 11:04 PM
Shouldn't 4473 have a "plead the 5th" box to avoid perjory or self-incrimination?

Not Frank, but I believe the answer is No.

Pleading the 5th is not an option when purchasing a firearm. You are Not required to purchase the firearm, you wish to purchase the firearm, so the 5th does not apply. You have the option to simply Not purchase.

JRH6856
January 22, 2014, 11:28 PM
Pleading the 5th is not an option when purchasing a firearm. You are Not required to purchase the firearm, you wish to purchase the firearm, so the 5th does not apply. You have the option to simply Not purchase.

So you are saying that fundamental protected rights are preclusionary? If I exercise my 5A right against self incrimination, I am precluded from exercising my 2A right to obtain a firearm. And if choose to obtain a firearm, I am precluded from exercising my 5A right agains self-incrimination. I have a right to do both but I can only do one or the other?

Arkansas Paul
January 22, 2014, 11:38 PM
Shouldn't 4473 have a "plead the 5th" box to avoid perjory or self-incrimination?

The 5th amendment state "no person shall be compelled in any criminal case to be a witness against himself".

A 4473 form isn't a criminal case, thus the 5th amendment does not apply. It's not a blanket rule so you never have to talk to the police.


So you are saying that fundamental protected rights are preclusionary?

Pleading the 5th in a non criminal court setting is not a fundamental protected right.
You do have the right to an attorney and to not speak to police without an attorney under the 6th amendment and precedent via Miranda v. Arizona. That is what many people are thinking of when it comes to not speaking to authorities.

Still doesn't apply on a 4473.

Frank Ettin
January 22, 2014, 11:45 PM
...It seems to me this is more a 5A case than a 2A cse. Can a person be forced to perjor or incriminate himself in order to exercise a fundamental 2A right when such incrimination would prevent that exercise?

Shouldn't 4473 have a "plead the 5th" box to avoid perjory or self-incrimination...You're way off base. You have no Fifth Amendment right here. Do you even know what the Fifth Amendment says? The clause at issue reads:No person shall ...be compelled in any criminal case to be a witness against himself,...

Filling out a 4473 involves no compulsion. You don't have to buy a gun. You can avoid filling out a 4473 just by going without a gun, and you cannot go to jail for not having a gun. But if you choose to have a gun and fill out a 4473 to buy it lawfully from a dealer, you can then be held criminally responsible if you lie and violate 18 USC 922(a)(6).

JRH6856
January 22, 2014, 11:50 PM
Yeah, I know what the 5th and 6th say, just thinking a little too creatively. :o

BSA1
January 22, 2014, 11:56 PM
This could be a slippery ruling on "gifts" also.

I recently purchased a gun as a Christmas gift for my wife who is legally allowed to own firearms. I had no intention of keeping for myself. My wife selected the gun for herself, I put it on layaway and made the payments. When my wife and I left the store the clerk handed me the gun which I carried to our vehicle. We both knew the entire time was gun was going to be hers.

So this really seems to more about where the money came from. A gun purchased with my money is legal as a gift even though I have no intention of keeping it. Maybe the Court will consider giving firearms to your spouse legal based on marriage laws and children as part of the family unit. But what about children that no longer live at home?

In the case being heard the only difference is where the money for the purchase came from.

Arkansas Paul
January 22, 2014, 11:57 PM
Yeah, I know what the 5th and 6th say, just thinking a little too creatively.

I gotcha.
I read a book (FICTION) where an attorney's motto was "If the law don't work, work the law". :evil:
Hey with a jury, who knows? With the SCOTUS you prolly wouldn't have much chance of succeeding with that. ;)

Doc7
January 23, 2014, 12:06 AM
never mind Frank Ettin's post cleared it up for me.

Arizona_Mike
January 23, 2014, 12:12 AM
This could be a slippery ruling on "gifts" also.

I recently purchased a gun as a Christmas gift for my wife who is legally allowed to own firearms. I had no intention of keeping for myself. My wife selected the gun for herself, I put it on layaway and made the payments. When my wife and I left the store the clerk handed me the gun which I carried to our vehicle. We both knew the entire time was gun was going to be hers.

So this really seems to more about where the money came from. A gun purchased with my money is legal as a gift even though I have no intention of keeping it. Maybe the Court will consider giving firearms to your spouse legal based on marriage laws and children as part of the family unit. But what about children that no longer live at home?

In the case being heard the only difference is where the money for the purchase came from.
Gifts are unambiguously allowed and it says so right on the instructions on the back of the Form 4473.
Question 11.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party.

Frank Ettin
January 23, 2014, 12:18 AM
...In the case being heard the only difference is where the money for the purchase came from.Not really. The source of the money is evidence of intent. The result flows from the law of agency -- one person acting on behalf of another.

This was all laid out in post 10. It's non-intuitive because the law of agency involves concepts which are not really within the scope of normal, everyday experience. While we all superficially deal with people who are employees of someone or of some entity (and thus agents of that person or entity), the underlying structure of responsibilities, duties, relationships and liabilities aren't obvious -- until one has studied the law of agency.

Gaiudo
January 23, 2014, 12:38 AM
In the case being heard the only difference is where the money for the purchase came from.

I believe there is an exception for gifts. From section 15 of the FFL guide:
Where a person purchases a firearm with the intent of making a gift of the firearm to another person, the person making the purchase is indeed the true purchaser. There is no straw purchaser in these instances. In the above example, if Mr. Jones had bought a firearm with his own money to give to Mr. Smith as a birthday present, Mr. Jones could lawfully have completed Form 4473.

The issue is with money, it seems. The distinction seems an arbitrary one, but there it is.


ETA: "And he walks in late to the party...."

JRH6856
January 23, 2014, 12:46 AM
Oh yes. Agency. I remember that class. :banghead: It's all wound up in intent, and proving intent without an admission of intent. is, (as you said, Frank) usually circumstantial. A chain of action and/or statements. You can say it's one thing but if it looks like something different...

I suspect this will not be the last we hear of a 4473 questions. What the Court decides in htis case can be really important down the road. I anticipate something coming out of Washington or Colorado involving question 11e that won't involve agency.

Queen_of_Thunder
January 23, 2014, 01:19 AM
You're way off base. You have no Fifth Amendment right here. Do you even know what the Fifth Amendment says? The clause at issue reads:

Filling out a 4473 involves no compulsion. You don't have to buy a gun. You can avoid filling out a 4473 just by going without a gun, and you cannot go to jail for not having a gun. But if you choose to have a gun and fill out a 4473 to buy it lawfully from a dealer, you can then be held criminally responsible if you lie and violate 18 USC 922(a)(6).
Actually I believe you can make a very strong 5th amendment argument.

Frank Ettin
January 23, 2014, 01:26 AM
Actually I believe you can make a very strong 5th amendment argument. Good for you. Go ahead and try. But do it properly and cite case law and proper legal authority.

Gaiudo
January 23, 2014, 01:27 AM
Actually I believe you can make a very strong 5th amendment argument.

Please do share.

Ignition Override
January 23, 2014, 03:51 AM
NavyLCDR:
When you summarized that neither federal nor state laws prohibit a personal FTF sale within a given state,
doing FTF deals at gun shows-even though it is just as legal in most states- seems to have attracted a very disproportionate amount of attention after some recent tragedies.

NavyLCDR
January 23, 2014, 07:26 AM
NavyLCDR:
When you summarized that neither federal nor state laws prohibit a personal FTF sale within a given state,
doing FTF deals at gun shows-even though it is just as legal in most states- seems to have attracted a very disproportionate amount of attention after some recent tragedies.
As do black plastic parts on rifles making them "assault weapons" and magazines over any given round capacity (7 rounds in New York) making them "high capacity".

JoePfeiffer
January 23, 2014, 08:06 AM
NavyLCDR:
When you summarized that neither federal nor state laws prohibit a personal FTF sale within a given state,
doing FTF deals at gun shows-even though it is just as legal in most states- seems to have attracted a very disproportionate amount of attention after some recent tragedies.

While these tragedies seem to be exploited by people wanting to change the law, it isn't clear to me that FTF sales at gun shows actually have any relevance to them. Newtown was the most conspicuous example of this, where it was claimed that we somehow owed it to the victims to require universal background checks when the shooter had acquired the guns by murdering his own mother and taking them.

Elkins45
January 23, 2014, 08:15 AM
Interesting that the fellow could simply have GIVEN the gun to his uncle and have violated no law. It's only when the uncle reimbursed him for the purchase that it veered off into the territory that landed him in court.

I am very much reminded of this quote from Any Rand in Atlas Shrugged: “There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

Tirod
January 23, 2014, 10:04 AM
The issue is that the uncle paid cash for the gun, therefore, it's not a gift.

Is the lesson to learn "don't complete the second transaction thru an FFL?" What were they thinking? They attempted to comply with the law, not break it. While the intent may have been to purchase a gun to get the discount, the reality is that nobody "straw" purchased to keep the identity of the final recipient clouded from the BATF.

To be a straw purchase, the final possessor has to be unknown. In this case, he is known and did comply with the law. Therefore it's not straw.

This will also answer whether the Fast and Furious guns were straw. In that case, the intent was to deliver the guns to someone who could not legally buy them or pass an NICS, right?

Do I see the potential for this blowing up in the face of the BATF?

Sorry, natural born punster.

Colonel
January 23, 2014, 11:05 AM
This is actually about as clean a case as we could hope for. A law enforcement official, clearly not trying to transfer to a restricted person, in fact using an FFL to do the transfer, who in my eyes anyways isn't guilty of transgressing congressional law on purchasing but rather contravening BATFE policy and lying on a form.

What puzzles me is why the fed govt chose to push this case in the first place.

It seems to me that by taking this all the way to SCOTUS, the prosecution has everything to lose and almost nothing to gain.

I mean, what's the best possible outcome in the eyes of the prosecution?

That the law gets upheld, that a "crime" that harmed no one is held indeed to be a crime, and that and an otherwise lawful, upstanding citizen goes "up the river"?

Seems like that would be a Pyrrhic victory at best.

Trent
January 23, 2014, 11:28 AM
I just hope the Supreme Court has more common sense than the goofy check-box on the form has.

If you aren't prohibited, and the other guy isn't prohibited, there shouldn't be any crime.

NavyLCDR
January 23, 2014, 11:30 AM
What puzzles me is why the fed govt chose to push this case in the first place.

It seems to me that by taking this all the way to SCOTUS, the prosecution has everything to lose and almost nothing to gain.

I mean, what's the best possible outcome in the eyes of the prosecution?

That the law gets upheld, that a "crime" that harmed no one is held indeed to be a crime, and that and an otherwise lawful, upstanding citizen goes "up the river"?

Seems like that would be a Pyrrhic victory at best.
The prosecution didn't take it to the Supreme Court, the defendant did. The prosecution was probably betting on the defendent rolling over belly up, paying a fine and moving on. I mean after all, who would dare take on the ATF and Federal government?

Remember, something like this is not about punishing or deterring crime - it is about establishing and expanding the authority of the government to exercise control over the citizen.

Queen_of_Thunder
January 23, 2014, 12:20 PM
Good for you. Go ahead and try. But do it properly and cite case law and proper legal authority.
OK. I'll give this a whirl. Maybe you can set up a poll and let the members of THR decide if your argument or mine comes out on top.

Frank Ettin
January 23, 2014, 01:16 PM
Good for you. Go ahead and try. But do it properly and cite case law and proper legal authority.
OK. I'll give this a whirl. Maybe you can set up a poll and let the members of THR decide if your argument or mine comes out on top.A poll would be completely irrelevant. It doesn't matter what the members here might think of our respective arguments. What matters would be which a court would be likely to accept.

In fact, there is a good deal of case law on Fifth Amendment issues, and I know that you will find none to support your contentions.

There are cases in which the Fifth Amendment privilege against being compelled in a criminal case to testify against yourself has been found to bar prosecution of a failure to file a tax return (Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968)) and failure to register an illegally possessed NFA firearm (Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968)). There are similar cases, but they all reflect a common theme:

A person's sole choices are, essentially, to commit a crime by failing to register or file something or admit a crime by registering or filing something.


And thus a person is compelled by law to testify against himself because if he doesn't do so by registering or filing something he can be prosecuted for failing to register or file.

But you commit no crime by not buying a gun. Therefore, you are not compelled to fill out a 4473 and thus, if you do so honestly, admit to another crime (if you were a prohibited person or not the actual buyer or subject to some other disqualification). And since you are not legally compelled, on pain of criminal prosecution, to buy a gun, the Fifth Amendment, based on the reasoning of the cases I've cited, would not bar prosecution for your false statements on a 4473 in violation of 18 USC 922(a)(6) it you chose to attempt to buy a gun.

To support your Fifth Amendment argument you would need to find cases ruling that a mere desire or want is sufficient compulsion to support invoking the Fifth Amendment. Good luck with that.

Furthermore, looking at a sampling of appeals from convictions for making false statements on a 4473, the lawyers for none of those defendants raised the Fifth Amendment. It would be hard to imagine that all of those lawyers were incompetent for failing to raise the Fifth Amendment if it could have been a viable defense. I looked at these cases: U.S. v. Hawkins, 794 F.2d 589 (C.A.11 (Fla.), 1986); Brown v. U.S., 623 F.2d 54 (C.A.9 (Cal.), 1980); United States v. Beebe, 467 F.2d 222 (10th Cir., 1972); U.S. v. Ortiz, 318 F.3d 1030 (11th Cir., 2003); U.S. v. Ortiz-Loya, 777 F.2d 973 (C.A.5 (Tex.), 1985); and U.S. v. Graves, 554 F.2d 65 (C.A.3 (Pa.), 1977).

So I'll be interested to see what you can come up with.

NavyLCDR
January 23, 2014, 01:28 PM
A poll would be completely irrelevant. It doesn't matter what the members here might think of our respective arguments. What matters would be which a court would be likely to accept.

I saw that reply coming a mile away! ;)

Arkansas Paul
January 23, 2014, 01:44 PM
OK. I'll give this a whirl. Maybe you can set up a poll and let the members of THR decide if your argument or mine comes out on top.

What does the opinions of internet forum members have to do with how the 5th Amendment to the US Constitution is worded? It plainly states IN ANY CRIMINAL CASE. On what planet does that apply to filling out a form to purchase a firearm?

Pizzapinochle
January 23, 2014, 01:47 PM
For a case to reach the supreme court, someone must be harmed. You can't just say "This law is bad, I want you to review it," there has to be a specific person that has been harmed, in this case, Abramski.

Individuals (usually with the backing of a group), will sometimes intentionally violate a law in controlled circumstances to "create" a case that they can push through the appeals process to try and reach the supreme court if they feel the SCOTUS will give them a favorable ruling.

Any idea if this case was one of those set-ups?

Nothing wrong with it if it was, setting up these cases with the backing of a powerful organization is a great way to fight laws (although there is a high risk that you could just get convicted and your appeals denied). I'm just curious.

MErl
January 23, 2014, 01:56 PM
I don't think this was a setup case, more like "we've got to find something to charge you with."
http://www.scotusblog.com/2014/01/argument-preview-checking-up-on-gun-buyers/#more-204128
A former state police officer, Abramski got caught up — mistakenly – in a federal investigation of a bank robbery in Rocky Mount in 2009, apparently because he was said to look like the bank robber, although the robber was masked. Abramski was ultimately cleared of any role in the bank robbery and of any federal charges related to the robbery.

However, during the federal investigation of Abramski, FBI agents searched his former residence in Rocky Mount. That search turned up a receipt that his uncle, Angel Alvarez, had written to him for buying a Glock 19 handgun.

Gaiudo
January 23, 2014, 02:21 PM
Man, that will ruin your day.

Trent
January 23, 2014, 02:49 PM
Oh wow, I never realized how the whole case got started until now.

Sounds like that poor guy's life got turned upside down for a while.

Queen_of_Thunder
January 23, 2014, 02:51 PM
What does the opinions of internet forum members have to do with how the 5th Amendment to the US Constitution is worded? It plainly states IN ANY CRIMINAL CASE. On what planet does that apply to filling out a form to purchase a firearm?
Apparently you have never watched hearings before Congressional Committees. And since you chose to even deny me a chance to put my argument before you and others for consideration I'll just pass. If you remember I said I could make a good case for a 5th Amendment case but you won't even consider allowing me to present it. Of course I can make a good argument but dealing with Closed minds get us nowhere.

medalguy
January 23, 2014, 02:58 PM
My understanding of this case is that because the uncle gave defendant the money to purchase the specific firearm, the law says this was not purchased for the defendant, but for the uncle, and therein lies the difference. Had defendant purchased the firearm, and at a later date transferred the firearm to the uncle and been paid for it, no violation would have occurred.

Frank Ettin
January 23, 2014, 03:05 PM
...And since you chose to even deny me a chance to put my argument before you and others for consideration I'll just pass. If you remember I said I could make a good case for a 5th Amendment case but you won't even consider allowing me to present it....Who won't let you present your argument? I wish you would try.

But it does have to be a good legal argument that might convince a judge. As I discussed, I seriously doubt you could do it, but I'd be glad to see you try.

...Of course I can make a good argument but dealing with Closed minds get us nowhere. And what's this "Closed minds" nonsense? This isn't a junior college metaphysics class. We're talking about the law and what happens and would work in court.

So if you think you could make a good legal argument, supported by case law and applicable legal authority, which could conceivably convince a judge, by all means make it.

Frank Ettin
January 23, 2014, 03:09 PM
...Had defendant purchased the firearm, and at a later date transferred the firearm to the uncle and been paid for it, no violation would have occurred. Unless the defendant and uncle had made prior arrangement for the subsequent transfer to, and reimbursement by, the uncle.

In that case the legal analysis would run that the defendant advanced the funds on behalf of the uncle against the uncle's promise of reimbursement.

Arkansas Paul
January 23, 2014, 03:32 PM
As far as I know, I don't have the authority or the ability to keep anyone from making an argument.

Bubbles
January 23, 2014, 04:01 PM
More on the backstory:
http://blogs.roanoke.com/dancasey/2010/12/is-a-former-roanoke-cop-getting-railroaded-by-the-feds/

NavyLCDR
January 23, 2014, 04:01 PM
I don't think this was a setup case, more like "we've got to find something to charge you with."
http://www.scotusblog.com/2014/01/argument-preview-checking-up-on-gun-buyers/#more-204128
However, during the federal investigation of Abramski, FBI agents searched his former residence in Rocky Mount. That search turned up a receipt that his uncle, Angel Alvarez, had written to him for buying a Glock 19 handgun.


OH! OH! Hey, can we reopen a discussion about Bills of Sale now?!? :evil:

MErl
January 23, 2014, 04:05 PM
OH! OH! Hey, can we reopen a discussion about Bills of Sale now?!?
Only if you add the caveat "Don't document illegal activity."

Trent
January 23, 2014, 04:13 PM
NavyLCDR, might not be a bad idea.

Man, I keep trying to tell people, if you aren't required to keep a bill of sale, consider not doing it.

We're required to keep records as SELLERS in Illinois (for 10 years; violation is a petty offense).

Buyers here are under NO obligation to keep records of face to face transactions.

Anyway .. back to the point.

This guy got railroaded for doing something that shouldn't have been against the law in the first place. I really hope it works out for him, and straightens it out for the rest of us, in the process. Long overdue, IMO.

Pizzapinochle
January 23, 2014, 04:37 PM
I don't think this was a setup case, more like "we've got to find something to charge you with."
http://www.scotusblog.com/2014/01/argument-preview-checking-up-on-gun-buyers/#more-204128
Thanks Merl, I had mostly seen the legal arguments, but not the backstory. Just thought it might be because it seems like such a "clean" case without a lot of baggage.

Former LEO, did the transfer through an FFL to a relative, almost seems like a "best case scenario" for a favorable ruling.

denton
January 23, 2014, 04:53 PM
The transcript of the oral arguments is fairly long. It can be found at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-1493_2135.pdf

Heckifino how this will turn out, but it seems that the question about whether a person is the actual purchaser is not in the law. The ATF made it up and put it in the form. One of the questions that the Court agreed to settle is whether they exceeded their authority when they did that. If the ATF cannot compel an answer to a question as a condition of acquiring a firearm, then they cannot compel a truthful answer.

Further, the law specifies which entries on the form are material. Whether the person buying the gun is the "actual purchaser" is not among them.

CHIEF JUSTICE ROBERTS: I think it's very - it's very problematic to talk about the overriding purpose [which is what the government's attorney was arguing at this point] when you're dealing with a very sensitive compromise. There's, as far as I can tell, nothing in the language of the statute that talks about straw men or actual buyers or anything like that.

My guess is that the government's arguments will fail, but for a reason that hasn't been discussed here, yet. Abramski's attorney made hay with it during his rebuttal.

The government conceded that there were at least two plausible interpretations of the law covering the Abramski case. One interpretation was put out in an ATF circular to dealers in 1979, stating that what Abramski did was perfectly OK. In 1994, ATF reversed their interpretation and took the position that it was illegal. In the meantime, there was no change in the law.

If there are two plausible interpretations of a criminal law, the defendant is entitled to the one most in his favor. It is entirely unreasonable to expect a person to correctly resolve an issue that the Supreme Court might take up, and then split 5-4.

So I think Abramski walks, thanks to the rule of lenity.

Gaiudo
January 23, 2014, 04:59 PM
The government conceded that there were at least two plausible interpretations of the law covering the Abramski case. One was put out in an ATF circular to dealers in 1979, stating that what Abramski did was perfectly OK. In 1994, ATF reversed their position and took the position that it was illegal. In the meantime, there was no change in the law.

Fascinating. Nice find in the oral arguments.

Queen_of_Thunder
January 23, 2014, 05:46 PM
.......

Queen_of_Thunder
January 23, 2014, 05:47 PM
Who won't let you present your argument? I wish you would try.

But it does have to be a good legal argument that might convince a judge. As I discussed, I seriously doubt you could do it, but I'd be glad to see you try.

And what's this "Closed minds" nonsense? This isn't a junior college metaphysics class. We're talking about the law and what happens and would work in court.

So if you think you could make a good legal argument, supported by case law and applicable legal authority, which could conceivably convince a judge, by all means make it.
Arkansas Paul said:
Quote:

What does the opinions of internet forum members have to do with how the 5th Amendment to the US Constitution is worded? It plainly states IN ANY CRIMINAL CASE. On what planet does that apply to filling out a form to purchase a firearm?






As you can see from the above post I was challenged and questioned before even setting one word down. This is simply an indication of an unwillingness to consider any other position other than their own.

This argument will take time for me to bring forth and frankly its not worth the effort if its not going to receive a fair hearing so to speak. As I said, I believe I could provide a good argument for a 5th Amendment case but getting jumped before I can put my case forward simply undermines my willingness to invest the time to do so.

Anyway I have contracts and ordinances to read plus a blog to launch and frankly I don't feel like investing the time now. Maybe later.

barnbwt
January 23, 2014, 06:57 PM
"The government conceded that there were at least two plausible interpretations of the law covering the Abramski case. One was put out in an ATF circular to dealers in 1979, stating that what Abramski did was perfectly OK. In 1994, ATF reversed their position and took the position that it was illegal. In the meantime, there was no change in the law."

Not only fascinating, this has been the case on a number of other ATF rulings. They've been so fickle, in fact, that their opinions can't truly be relied upon, and are seen by builders and manufacturers as a mere risk aversion measure, rather than a true "ruling" with attendant expectation of precedence, similarity, etc.

Offhand, PPSH parts kits, pistol to rifle conversions, broomhandle Mauser stocks, open bolt semi autos...the list goes on. I am surprised that something as central to "what the ATF does" in enforcement as straw purchases isn't more explicitly baked into the law. As aggressive as they are on that front, I figured they had explicit instruction to do so, when it's really just that they have been increasing these efforts for so long that they have created their own legal authority to do so in the interim. I imagine that fact surprised many ranking officials in the Bureau, too.

I would be...interesting, to see how the court addresses this whole scheme of agencies both writing and enforcing regulations without congressional input or consent. I imagine they will avoid the issue, in the interest of not raising too big a fuss from a single court ruling. As reliant as our governments have become on this mechanism, I have to wonder if they could even function without the ability to write (or bend) their own rules on a whim.

TCB

Arkansas Paul
January 23, 2014, 07:33 PM
As you can see from the above post I was challenged and questioned before even setting one word down. This is simply an indication of an unwillingness to consider any other position other than their own.

It has nothing to do with my position. It has to do with what is protected under the 5th Amendment to the U.S. Constitution, and all it protects is an accused criminal's right to not incriminate themselves. (That part of it anyway. It also covers grand jury, double jeopardy, due process and eminent domain, but none of those are in question here)

Frank Ettin
January 23, 2014, 08:50 PM
...As you can see from the above post I was challenged and questioned before even setting one word down. This is simply an indication of an unwillingness to consider any other position other than their own...Of course you were questioned and challenged. Why would you expect not to be? You stated a position on a matter of law, which position, based on my training and over thirty years experience as a lawyer, I have excellent reason to believe is specious. So of course I'm skeptical.

If you decide to opine, I will read your opinion. I will be a "tough sell", and it will be your burden to convince me. Are you up to the challenge? Maybe not.

Arkansas Paul
January 23, 2014, 10:14 PM
Frank, she was referring to my comment as the one "challenging and questioning" her. To clarify, when I said "On what planet does that apply to filling out a form to purchase a firearm" I did not mean it as a personal attack. I was just stating that in no way can the amendment be construed to mean such a thing.

I do not have anything close to Frank's experience in the legal field. I have an Associates Degree in Paralegal Technology, worked in private law firms handling civil matters for 3 years and currently work for the prosecuting attorney's office. It will be another year before I complete my BA and can even apply to law school.
So while I in no way hold myself out to be as knowledgeable as Frank, I am not totally ignorant on the subject either when compared to the average citizen who gained all of their knowledge of the legal system from watching "Law and Order".

I'm not comparing anyone here to that mind you, that's just how the average joe is that doesn't work in the legal profession.

Frank Ettin
January 23, 2014, 10:31 PM
Frank, she was referring to my comment as the one "challenging and questioning" her....Well, she also quoted me. Maybe we were both "challenging and questioning."

But someone with an opinion can not expect not to be challenged and questioned. Nor should he or she expect an opinion not to be doubted or greeted with skepticism.

Indeed given our backgrounds we expect our opinions to be subject to challenge, resistance, questioning, and possible rejection. Which is why we learn to back up our opinions with research and data.

Trent
January 24, 2014, 02:29 AM
Our legal system is based upon the adversarial system. If you want to armchair quarterback a legal case in an internet forum where there's legal professionals lounging around, it's best to be prepared to back up your opinion with something substantive enough to get through a round or two of debate.

I know when I'm over my head (I am for sure on this particular forum), so I'm content to sit back and watch; asking the occasional question to something I don't understand.

Which I fortunately DO have such a question!

Earlier it was mentioned that the two individuals were in different states.

If the sale had happened exclusively within the same state, and the firearm wasn't moved from one state to another; would the federal government have jurisdiction? Or just the fact that the firearm itself has crossed state lines at *some* point give them jurisdiction?

(And if that is the case, what if the firearm was made IN the state, and sold in the state with a straw purchase of two non-prohibited persons? Still their jurisdiction? How? It's not interstate commerce...).

Gaiudo
January 24, 2014, 02:51 AM
(And if that is the case, what if the firearm was made IN the state, and sold in the state with a straw purchase of two non-prohibited persons? Still their jurisdiction? How? It's not interstate commerce...).

giggle snort... sob...

Frank Ettin
January 24, 2014, 02:52 AM
...If the sale had happened exclusively within the same state, and the firearm wasn't moved from one state to another; would the federal government have jurisdiction? Or just the fact that the firearm itself has crossed state lines at *some* point give them jurisdiction?...The short answer is yes.

The offense charged was the federal crime of making a false statement to a dealer licensed by the federal government. That's where the federal jurisdiction comes from. And that act was complete when the nephew bought the gun -- even before the gun was taken to another State to be transferred to his uncle (based on the prosecution's theory of the case as upheld by the Fourth Circuit).

So the nephew taking the gun to another State to transfer to his uncle doesn't really have anything to do with the underlying crime. That's another issue, and the fact that the gun was transported to another State for transfer means that under another federal law the transfer had to be done by an FFL. Had that transfer not been done by an FFL, it would have been a separate, additional federal crime.

...And if that is the case, what if the firearm was made IN the state, and sold in the state with a straw purchase of two non-prohibited persons? Still their jurisdiction? How? It's not interstate commerce...If the gun had been purchased at an FFL, yes. Again, the crime is really, in effect, lying to a guy with a federal license to sell the gun.

If this involved entirely intrastate transactions and if they were private transactions (without the use of an FFL -- assume legal in that State), the federal government would not have jurisdiction because this particular federal crime can not be committed unless someone fills out a 4473.

Let's leave the "wholly made within a State" business off the table here. Since the Supreme Court declined to hear the Montana case (http://www.thehighroad.org/showthread.php?t=740803), it can be a can of worms.

Gaiudo
January 24, 2014, 02:58 AM
Again, the crime is really, in effect, lying to a guy with a federal license to sell the gun.

Seems to be the boiled down heart of the matter, good description. Also seems to be what SCOTUS will be ruling on: is it a "straw-purchase" if the only crime was lying on a form, even if the lying was not to "deceive regarding the lawfulness" of ownership as per congressional law.

Frank Ettin
January 24, 2014, 03:25 AM
...Also seems to be what SCOTUS will be ruling on: is it a "straw-purchase" if the only crime was lying on a form,...Way back when ATF started referring to this as a straw purchase, they really confused the matter. The garden variety understanding of a "straw" transaction involves the use of a straw man to hide something fishy about a deal or to do something that you couldn't do yourself. So when ATF decided, for some unknown reason, to apply the term to what is in effect just misrepresentation, it confused matters to the point that a lot of people did not understand the law.

What this then comes down to is the question of materiality -- does the incorrect information really matter? The Fifth Circuit said basically that it didn't matter if the the next transfer was legal and the transferee was not prohibited from possessing a gun. Other courts of appeal thought differently.

We'll have to see where SCOTUS comes out on the question.

shep854
January 24, 2014, 07:49 AM
Frank, thank you for your last statement. I pretty much stated what you called the 'garden variety' understanding of 'straw purchase'. Your comment clarified how it morphed into something far more general and threatening.

dogtown tom
January 24, 2014, 12:16 PM
Queen_of_Thunder ....This argument will take time for me to bring forth and frankly its not worth the effort if its not going to receive a fair hearing so to speak.
Um yeah. "not worth the effort" is internet doublespeak for "I haven't a clue what I'm talking about, just realized it and need to go hide until this blows over".:rolleyes:


As I said, I believe I could provide a good argument for a 5th Amendment case but getting jumped before I can put my case forward simply undermines my willingness to invest the time to do so.
Do not confuse disagreement with "getting jumped on". No one called you names, insulted you or otherwise belittled you personally...........but many disagreed with your statement regarding the 5th.

Now, rather than present an argument you bail out with the lamest of reasons.


Anyway I have contracts and ordinances to read plus a blog to launch and frankly I don't feel like investing the time now. Maybe later.
A blog about the scarcity of .22 rimfire in West Texas? I can't wait.

denton
January 24, 2014, 01:33 PM
Can't help but wonder what role this might play in the decision....

The firearms laws generally operate in terms of possession, not ownership. That's deliberate, because we don't want anyone loaning a firearm to their no-good second cousin who is between incarcerations for violent crimes. The fact that Abramski's uncle gave him the money to buy the gun goes to the issue of transfer of title. I think that is pretty close to irrelevant.

Abramski did NOT transfer possession of the firearm to his uncle. He transferred possession to an independent, licensed third party, the FFL. There can be nothing wrong with that. I'm sure that if you checked the FFL's book, you would find a written record of Abramski relinquishing possession of the firearm.

The FFL was not even involved in transfer of title. He just handled transfer of possession, after he did the legally required background check.

So as I've thought about this, it seems to me that the situation is more clear if we discard the issue of ownership and title, and follow the chain of possession and control, which is what the law does.

Trent
January 24, 2014, 02:00 PM
So.. how is what Abramski done, ANY different than what credit card companies do?

I've paid for guns with a credit card before. THEY technically pay for the gun. I later, at some future date, pay them back for it.

Abramski may have acted as an "agent" but in no different fashion than credit card companies, banks, payroll / cash advance places, and Paypal (although Paypal isn't relevant since you can't buy firearms with them, according to TOS).

denton
January 24, 2014, 02:41 PM
Trent, that's a good question. We don't always think about what our common processes are actually doing.

Still, I think the whole issue of title and ownership is a distraction.

I think that under our current laws, Al Capone could legally own a Thompson. However, he could not legally possess it. So long as the item is under the control and in the possession of an independent party, and he can't hold it in his hand, I think he's legal.

Frank Ettin
January 24, 2014, 02:44 PM
The firearms laws generally operate in terms of possession, not ownership. That's deliberate, because we don't want anyone loaning a firearm to their no-good second cousin who is between incarcerations for violent crimes....When dealing with legal issues one can't necessarily make those kinds of generalizations. Various laws need to be understood on their own terms, based on the exact words used in statutes and case law and based on the case law applying various laws to various situations.

So the various federal laws we discussed in the past dealing with interstate firearm transfers deal with matters of possession. That conclusion is driven by the words used in those statutes and some consideration of the policies embodied in those statutes.

This prosecution however is based on the application of a different statute, 18 USC 922(a)(6). That statute reads:(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;...

This prosecution is driven by an interpretation of ATF regarding the enforcing of that statute with regard to a particular type of misrepresentation made in the course of acquiring a firearm. Three federal courts of appeals have supported that interpretation.

...Abramski did NOT transfer possession of the firearm to his uncle. He transferred possession to an independent, licensed third party, the FFL. There can be nothing wrong with that. I'm sure that if you checked the FFL's book, you would find a written record of Abramski relinquishing possession of the firearm.

The FFL was not even involved in transfer of title. He just handled transfer of possession, after he did the legally required background check.

So as I've thought about this, it seems to me that the situation is more clear if we discard the issue of ownership and title, and follow the chain of possession and control, which is what the law does. And all of that is ridiculous because none of it has anything whatsoever to do with the way the courts which have looked at this question have addressed it, nor does it have anything to do with the way the Supreme Court has been asked to consider the matter.

If you want to properly understand a law and how it may be applied, you must read the law and the case law applying it. You can't achieve any sort of worthwhile understanding sitting in your easy chair imagining things.

...how is what Abramski done, ANY different than what credit card companies do?

I've paid for guns with a credit card before. THEY technically pay for the gun. I later, at some future date, pay them back for it...Well for one thing, you weren't buying the gun for or on behalf of the credit card company. You had not made a prior arrangement with the credit card company to give them the gun after you got it from the dealer.

And not only was the plan that you'd keep the gun, but also you had to give them the money back.

denton
January 24, 2014, 05:20 PM
You are absolutely right that we have to carefully read the applicable laws. I'm just trying to understand the situation, and this kind of public discourse helps.

So my next interest is, what does the law mean by "acquire"?

If I lie down with dogs, I can acquire fleas. But I don't own the fleas. So I don't think acquire means to hold title.

If Abramski had told the store clerk, "Look, I intend to turn around and transfer possession of this firearm to another FFL. Is that a problem?", I don't think the store clerk would raise an issue. At least, I wouldn't, if it were me. So I don't see how there is any intended or actual deception or false statement. I think that the rule of lenity gets Abramski off the hook. It's not reasonable to expect an ordinary person to reliably make a decision if the rules are not clear and simple.

So far, I'm still thinking that the whole title and ownership thing is almost irrelevant.

Frank Ettin
January 24, 2014, 07:10 PM
You are absolutely right that we have to carefully read the applicable laws. I'm just trying to understand the situation, and this kind of public discourse helps....To understand the situation from a legal perspective you need to understand the applicable law. And to do that you must start with the actual statute and the case law. Once you have read the statute and have begun to understand the case law, discussion can help clarify matters.

But you need to start with a proper foundation for discussion to be worthwhile. Otherwise one winds up just discussing faulty assumptions, misinformation, irrelevancies, and similar junk. Discussing wrong answers, without understanding what the right answers are, will not help anyone learn anything worthwhile.

...So my next interest is, what does the law mean by "acquire"?...What makes you think it even matters in this context? What do the cases say? Do the courts looking at this statute and similar convictions deal with the question? If so, how? And if not, maybe it's not even relevant?

...If Abramski had told the store clerk, "Look, I intend to turn around and transfer possession of this firearm to another FFL. Is that a problem?", I don't think the store clerk would raise an issue....Why would that be relevant? Is there anything in the various court of appeals decisions dealing with convictions under 18 USC 922(a)(6) that would suggest that could be relevant? And in any case, there's no evidence that Abramski said that; and what a clerk might have said in response is pure conjecture.

...So I don't see how there is any intended or actual deception or false statement...Then you haven't read the cases, nor have you read the ATF material I've quoted.

...It's not reasonable to expect an ordinary person to reliably make a decision if the rules are not clear and simple....Except that ATF has explicitly explained in the 4473 the rule from their perspective and made it exquisitely clear that as far as the ATF was concerned Abramski was committing an illegal act. See the instructions to Question 11.a. on the current Form 4473 (http://www.atf.gov/files/forms/download/atf-f-4473-1.pdf) (emphasis in original):Question 11.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party. ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer ”NO” to question 11.a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual transferee/buyer of the firearm and should answer “YES” to question 11.a. However, you may not transfer a firearm to any person you know or have reasonable cause to believe is prohibited under 18 U.S.C. § 922(g), (n), or (x). Please note: EXCEPTION: If you are picking up a repaired firearm(s) for another person, you are not required to answer answer 11.a. and may proceed to question 11.b.

...I think that the rule of lenity gets Abramski off the hook....How nice. But it's now what the Supreme Court thinks that's important, and we'll know that when it publishes the decision.

denton
January 24, 2014, 11:38 PM
Except that ATF has explicitly explained in the 4473 the rule from their perspective and made it exquisitely clear that as far as the ATF was concerned Abramski was committing an illegal act.

I'm very well aware of that. The problem, from the government's point of view, is that ATF gave exactly the opposite interpretation of the law from 1979 to 1994. And the Justices were quite interested in that fact, plus the fact that there were no changes to the law to justify the reversal.

How nice. But it's now what the Supreme Court thinks that's important, and we'll know that when it publishes the decision.

Of course. I base my conjecture on the fact that the Justices gave Abramski's attorney encouragement on the rule of lenity argument, and he devoted a good share of his rebuttal time to the point. I expect he's qualified, and he thought it was a productive use of limited time.

So how will it turn out? As I said, heckifino. Meanwhile, it's interesting to try to understand the reasoning.

limpingbear
January 24, 2014, 11:57 PM
The latest that I read from Yahoo (take that for what its worth) was that the glock was purchased in Virginia by the by the ex-cop then driven to Pennsilvania and transferred through an FFl there.
I would think that, that would make the original purchaser the legal purchaser at the point of sale. then the gun was legally transferred through an FFL in a different state. That should make the whole straw purchase thing moot. Not to mention that neither person was a prohibited person

dogtown tom
January 25, 2014, 12:45 AM
limpingbear The latest that I read from Yahoo (take that for what its worth) was that the glock was purchased in Virginia by the by the ex-cop then driven to Pennsilvania and transferred through an FFl there.
I would think that, that would make the original purchaser the legal purchaser at the point of sale.
Where the buyer signs the 4473 has no bearing on his answering truthfully to to Question 11a.



then the gun was legally transferred through an FFL in a different state. That should make the whole straw purchase thing moot.
Which also has no bearing on what happened with his original 4473.




Not to mention that neither person was a prohibited person
"Prohibited person" has no bearing on a straw purchase. A straw purchase occurs when a buyer attempts to acquire a firearm from a licensed dealer on behalf of another person. When the buyer answers "Yes" to 11a (are you the actual transferee/buyer...") and by signing the 4473 on page 2, they are certifying UNDER PENALTY OF LAW that their answer are "true, correct and complete....".

If Abramski's father gave him $$$$ to purchase the firearm, or with the promise to repay him later..........Abramski was NOT the actual transferee/buyer. The crime occurred at the moment Abramski signed that initial 4473. It does not matter if he subsequently went to another dealer to have the firearm transferred to his father.

Gaiudo
January 25, 2014, 01:04 AM
"Prohibited person" has no bearing on a straw purchase. A straw purchase occurs when a buyer attempts to acquire a firearm from a licensed dealer on behalf of another person. When the buyer answers "Yes" to 11a (are you the actual transferee/buyer...") and by signing the 4473 on page 2, they are certifying UNDER PENALTY OF LAW that their answer are "true, correct and complete....".

That's precisely the point under review. According to congressional law this may not be true (though accordingly to the latest ATF rules/regs it is certainly true). The question at hand is whether the law regulates (a) buying for a prohibited person unlawfully; or (b) includes simply lying on the 4473. Read above.

joeschmoe
January 25, 2014, 02:24 AM
Doesn't the atf have to go through the same process for a proposed rule change like other agencies? Public notice and comment period, notification to congress, etc. Just like other agencies?

It seems the atf is in the habit of just deciding their interpretation has changed and poof... we have a new law. Is that a valid rule change or did they exceed their authority by just declaring that its now a crime when it wasn't before?

gc70
January 25, 2014, 05:54 AM
I am surprised that the arguments did not include discussion of the Brady Act's (http://www.gpo.gov/fdsys/pkg/BILLS-103hr1025enr/pdf/BILLS-103hr1025enr.pdf) interim provisions at 18 USC 922(s).

922(s) established a pre-NICS, interim regulatory regime. 922(s)(3) explicitly required a statement from a transferee of the information contained in Form 4473. However, the law provided that the interim provision of 922(s) expired after 5 years, to be replaced by the permanent NICS regulatory regime established by 922(t). There is no mention of the Form 4473 information in 922(t).

It would seem that Congress, by including the Form 4473 information requirement in the interim regulatory regime of 922(s), providing for the sunset of 922(s), and not including a requirement for Form 4473 information in the permanent regulatory regime of 922(t), clearly intended for Form 4473 information to no longer be required after NICS was operational.

TRX
January 25, 2014, 06:57 AM
Okay, say I buy a firearm. If I immediately sell it to someone else, that's obviously a "straw purchase." If I sell it a year later, it's not.

It looks like the basic concept involves time, not intent. I might buy a gun with the specific intent of selling it later - scalping, investment, whatever. That's not a straw purchase, right?

Spats McGee
January 25, 2014, 08:32 AM
Okay, say I buy a firearm. If I immediately sell it to someone else, that's obviously a "straw purchase." If I sell it a year later, it's not.
Not true. It's a straw purchase if I lie on the form 4473. It's not a question of how long I hold onto the weapon.

denton
January 25, 2014, 11:49 AM
When the Supreme Court took the case, it agreed to answer these two questions:

Issue: (1) Whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future a fact is “material to the lawfulness of the sale” of the firearm under 18 U.S.C. § 922(a)(6); and (2) whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future is a piece of information “required . . . to be kept” by a federally licensed firearm dealer under Section 924(a)(1)(A).

Question 2 is basically whether the ATF exceeded its authority when it created the "actual buyer" question, which is not in the law. The law does seem to grant the AG fairly broad rule making authority.

Question 1 seems to be the one we are discussing most. The government's lawyer argued that there were, in fact, two buyers and that both should have appeared on the Form 4473. I could be wrong, but that sounds a lot like desperation. If so, possibly the government's case was weak on that point.

Frank Ettin
January 25, 2014, 12:00 PM
Doesn't the atf have to go through the same process for a proposed rule change like other agencies? Public notice and comment period, notification to congress, etc. Just like other agencies?...No. This was not a change in regulation. It was a policy change in how the agency applied the exact language of the statute. That is a sort of change generally within the scope of recognized prosecutorial discretion.

And again, we need to note that four federal courts of appeals looked at the ATF's interpretation and application of the law. Three upheld ATF.

orpington
January 25, 2014, 12:04 PM
Okay, so how does it work when you purchase a firearm, with the intent in keeping it, and complete the paperwork as such. Then, when you decide to sell it, even decades down the road, and you dispose of it to a buyer at a table, utilizing the so-called gun-show loophole, that is not considered illegal? Right? But what is the time frame involved? What if I purchase a firearm on Friday, fill out the paperwork that I am buying it for myself, and do intend to keep it, and get it home and find that I just don't like it. I fired it a few times and it just doesn't shoot like I want it to. I go to return it and note the receipt says 'All Sales Final'. So I decide, less than 24 hrs later, to sell the firearm, and go down to the local gun show. Someone walks up to me and decides they want to buy that gun. Could be construed as a 'straw man' purchase. How do you prove otherwise?

Frank Ettin
January 25, 2014, 12:12 PM
Okay, so how does it work ...It's all laid out in post 10.

Midwest
January 25, 2014, 12:57 PM
I think it comes to 'advance knowledge' , 'money in advance' or 'promised in advance' that would be a strawman scenario. If someone declared they are not buying it for someone else and had no knowledge, but it can be proven that they did...sworn under penalty of law on a legal document (4473). Then that is a strawman.

In the scenarios below, both people are from the same state and not prohibited from owning firearms.

If Joe Sixpack buys a firearm with his own money. And then decides to sell it later. It should be fine.

What If Joe Sixpack buys a firearm with his own money. And John Smith comes over to look at the firearm that Joe Sixpack just bought from the local gun store and John Smith decides he wants that firearm and offers to buy it for extra money than what Joe bought it for? (Joe Sixpack had no advance knowledge that John Smith would want it).


I believe these two situations could be strawman.

Joe Sixpack buys a firearm with John Smith's money in order to give the firearm to John Smith.

Joe Sixpack buys a firearm with the advance promise of selling it to John Smith .


What If

If Joe Sixpack buys a firearm with money borrowed from John Smith, it should still be fine as long as Joe Sixpack is the actual buyer and doesn't go to John Smith.

However ; what if Joe Sixpack doesn't pay John Smith back for the loan, can John Smith take possession of that firearm because Joe Sixpack defaulted on the loan?

JRH6856
January 25, 2014, 01:50 PM
If Joe Sixpack buys a firearm with money borrowed from John Smith, it should still be fine as long as Joe Sixpack is the actual buyer and doesn't go to John Smith.

As long as Sixpack keeps the gun, and only the money goes back to Smith, it should be OK. If the gun goes to Smith, no.

However ; what if Joe Sixpack doesn't pay John Smith back for the loan, can John Smith take possession of that firearm because Joe Sixpack defaulted on the loan?

OK, now the gun goes to Smith. Following the trail of events, it looks like a strawman purchase as it is Smith's money and Smith gets the gun. However, I would think that if the loan were executed by written agreement with the gun as collateral, there might be a chance for a defense against strawman as the load agreement would show that Sixpack was a debtor of Smith and not an agent.

But I Am Not A Lawyer so I could be totally off base.

BSA1
January 25, 2014, 02:20 PM
This has been a long discussion but I don't think I have seen this mentioned yet.

If the intent of the BATF regulation is too prevent a prohibited person from getting the firearm then the BATF regulation is not even necessary.

A person giving/selling/trading a firearm would be guilty of other existing criminal laws on the books such as aiding and abetting a felon.

I think this line of thought fits in with lawyers argument of what Congress meant when it passed the law. It was not the intention of Congress to prohibit legal citizens from exchanging firearms rather it was intended to target persons purchasing firearms that would be used by prohibited persons in crimes.

JohnKSa
January 25, 2014, 02:58 PM
OH! OH! Hey, can we reopen a discussion about Bills of Sale now?!?Very good point, and one I've tried to make in the past. It's simple to synthesize a hypothetical where having a BoS could help you. It's just as easy to make up a situation where having a BoS could put you in the middle of a legal mess.

If there's no requirement to keep records for the government, you're better off not keeping them, IMO. If the authorities ask you for them and there's no requirement to retain them, all you have to say is that you don't have them and you're done. They can't penalize you for not doing something you're not required to do. If you have kept them then you may be forced to provide them and at that point, they might help, or they might hurt.

Most folks understand the general principle behind not volunteering information to law enforcement. This is just another facet of that principle.

Frank Ettin
January 25, 2014, 03:33 PM
...If there's no requirement to keep records for the government, you're better off not keeping them, IMO...I guess we disagree on this, John.

In general over the course of my career I've seen more legal problems arise from, or made more difficult by, a lack of documentation than by having documentation. So it's my practice to document business/financial transactions.

Of course things can get dicey when you document an illegal transaction. So it's a good idea to do the research necessary to understand the legalities involved in a particular sort of transaction and to then avoid doing things that are illegal.

joeschmoe
January 25, 2014, 04:01 PM
No. This was not a change in regulation. It was a policy change in how the agency applied the exact language of the statute. That is a sort of change generally within the scope of recognized prosecutorial discretion.

And again, we need to note that four federal courts of appeals looked at the ATF's interpretation and application of the law. Three upheld ATF.
? It seems to be far more to me, a layman. Isn't prosecutorial discretion the option not to prosecute not the option to declare something illegal that wasn't before. That seems to me to be a rule change.

Frank Ettin
January 25, 2014, 04:35 PM
? It seems to be far more to me, a layman. ...That seems to me to be a rule change.


The bottom line still is that hasn't been an issue in the court of appeals cases looking at this.

JohnKSa
January 25, 2014, 05:02 PM
So it's my practice to document business/financial transactions.I document my firearm sales by moving the gun to the sold tab in my inventory spreadsheet and adding a notation indicating the sale price.Of course things can get dicey when you document an illegal transaction.A true statement. Your comment about doing the research is also apt, but both of the statements are wanting in terms of practicality for the average (or even the above average) person who is not a lawyer. It's a rare person who intentionally documents illegal transactions. The problem (as in this case) is that people document transactions they believe to be legal but end up being mistaken. This topic is relatively simple, but it should be pretty obvious from the comments on this thread that even gun enthusiasts often do not adequately understand the law or its ramifications.

The only way to really insure that you're not documenting an illegal transaction is to engage the services of a lawyer, or to do a really significant amount of research to try to get a good grasp on the particular legal topic (and all significantly related legal issues) in question. Maybe that's practical for some folks, but it's clearly beyond the pale for the average gun owner.

Let's say I add a date column to my spreadsheet. Now I've created the potential for someone to mine that data to try to provide evidence against me that I'm selling enough in a short enough period to accuse me of being an unlicensed dealer. The authorities would have had to do devote effort and funds to surveillance to gain that kind of information otherwise. It's highly unlikely that something like that would have ever come to their attention if I didn't provide it.

Let's say I add a buyer column to my "sold" tab on the spreadsheet and one or more of the buyers end up being a prohibited person. I can tell the authorities that I don't have to verify that buyers aren't prohibited, so I haven't broken the law, but how does that make me better off than if I just told them that I don't have to keep a BoS in the first place so I don't know who I sold it to?

Finally, most of what people consider to be "documentation" is easily faked. Short of doing all BoS' through a notary or using an FFL for all private transfers, none of the documentation provided would carry significantly more weight than the information in my spreadsheet tab, or, for that matter, my spoken claim that I sold the gun.

IMO, if the answer is that you don't have to do X, and doing X could potentially provide evidence against you, then, IMO, the average, non-lawyer is better off NOT doing X than assuming that doing it isn't going to be problematic.

giggitygiggity
January 25, 2014, 05:10 PM
I would argue that he bought the gun for himself. There is nothing to say how long he has to own it. Maybe he did buy it for himself and then a second after he bought it, he decided to give it to his uncle. What if 10 years after he purchased it, he decided to give it to his uncle? My point is that the spirit and intent of the law is that someone doesn't buy a gun that they can legally own and then give it to someone who is not allowed to own it (ie: a straw purchase).

wildbilll
January 25, 2014, 05:36 PM
The whole straw man thing seems to have some grey areas. But in this instance I can see why they decided to proceed against him.

Lessons learned from this guy's situation:

1. Do not accept a payment from someone else in advance of your purchase of said firearm.
2. Do not keep any financial record of the transaction that indicates that payment was made for said firearm in advance of it's purchase by you on their behalf.

I can see where, with a lack of any supporting documents, it would be difficult for the government to prove that you purchased a firearm for someone else.
Only you and the ultimate buyer would truly know if a fraudulent entry was made on the 4473.
In this instance, the case was wrapped up in a nice package with a bow on top for the prosecutors by the defendant.

With no other records indicating differently, it seems that it could just as likely be that you bought a gun and afterwards you got buyers remorse and sold the gun.

I understand why he did what he did, to get the discount. Another argument would be that he did not transfer the gun to his uncle. He transferred it to the other FFL. It's the other FFL that transferred it to the Uncle.
But I think he is hosed due to the fraud on the form.

Frank Ettin
January 25, 2014, 05:40 PM
....Finally, most of what people consider to be "documentation" is easily faked. ....

IMO, if the answer is that you don't have to do X, and doing X could potentially provide evidence against you, then, IMO, the average, non-lawyer is better off NOT doing X than assuming that doing it isn't going to be problematic. As you wish.

But it's still been my experience in the course of my career that folks make more trouble for themselves with no or poor documentation than with good documentation. Even routinely keeping a diary with what, where, when, how much, and with whom, will be given greater weight than one's vague recollection. And it's not necessarily a matter of evidence against you.

Understanding the law can sometimes be difficult. But at least in connection with many of the things we discuss here there's lots of information available. Sometimes being safe is primarily being conservative. Folks seem to get into trouble when they take a little information and then try to push the envelop.

I would argue that he bought the gun for himself. There is nothing to say how long he has to own it. Maybe he did buy it for himself and then a second after he bought it, he decided to give it to his uncle....Yes, you might argue that; but why do you think it would do any good? Since the Fourth Circuit Court of Appeals affirmed Abramski's conviction, I don't see any good reason to believe that line of argument would be helpful.

And since two other courts of appeals affirmed similar convictions, it sure looks like you'd be fooling yourself if you thought that kind of argument means anything.

Gaiudo
January 25, 2014, 05:55 PM
Frank, how does the circuit system affect behaviour with these things? If I live in the circuit that agreed the ATF overstepped in the form, does that provide case law in that circuit covering the resale to a nonprohobited person?

Obviously once SCOTUS rules this summer it will provide overarching caselaw to all the circuits, but I'm trying to understand the system more generally.

Frank Ettin
January 25, 2014, 06:30 PM
Frank, how does the circuit system affect behaviour with these things?...The rulings of a Circuit Court of Appeals are controlling precedent in that Circuit.

So, for example, if Abramski had been a resident of Texas (Fifth Circuit) his misrepresentation on the 4473 would not have been "material" based on U.S. v. Polk, 118 F.3d 286 (C.A.5 (Tex.), 1997).

If Abramski had been a resident of Florida (Eleventh Circuit), his misrepresentation on the 4473 would have been "material" based on United States v. Frazier, 605 F.3d 1271 (11th Cir., 2010).

When there is no prior ruling in a Circuit on point, a trial court faced with the question must decide. It may consider rulings in other Circuits as influential. And then if the question goes to the court of appeals in that Circuit, that court will make its own ruling which will then become controlling in that Circuit.

JRH6856
January 25, 2014, 06:51 PM
it should be pretty obvious from the comments on this thread that even gun enthusiasts often do not adequately understand the law or its ramifications.

Understanding the law, (both statute and case) can often be pretty easy. It is the ramifications that are problematic because attorneys, both prosecuting and defense, are always looking for new ramifications in order to make the law work for their respective sides. it's why we have courts, especially appeals courts. and why well grounded arguments are important.

Arkansas Paul
January 25, 2014, 08:40 PM
I would argue that he bought the gun for himself. There is nothing to say how long he has to own it. Maybe he did buy it for himself and then a second after he bought it, he decided to give it to his uncle.

That would have had to be argued at the original trial. They don't look at new evidence on appeal, they're basically saying that the decision should have been different as a matter of law.
Frank, correct me if I'm wrong there.

HexHead
January 25, 2014, 09:19 PM
If you accept money from someone before you purchase a gun to give to them, you are not the actual purchaser. If his uncle gave him the money to buy that gun at a discount for him and he checked "Yes" on question in question, he lied on the form. While I doubt there was any criminal intent here, just trying to help out a relative with a discount, it was still a crime.

Frank Ettin
January 26, 2014, 02:15 AM
I would argue that he bought the gun for himself. There is nothing to say how long he has to own it. Maybe he did buy it for himself and then a second after he bought it, he decided to give it to his uncle.

That would have had to be argued at the original trial. They don't look at new evidence on appeal, they're basically saying that the decision should have been different as a matter of law.
Frank, correct me if I'm wrong there.That's correct. But let me take it a few steps further.

People are often very glib about what they would argue. But they consistently fail to recognize that it's not so much a matter of what they could argue. It's a matter of whether anyone would pay attention.


You might have a very pretty exculpatory argument; but without evidence to support it and to allow the argument to stand up against the prosecution's evidence and theory of the case, it's meaningless.


So if the prosecution has some solid evidence that X bought the gun on behalf o Y, as Y's agent (and if he didn't, X wouldn't be on trial), X merely saying, "No, I bought the gun for myself" probably isn't going to get him too far.


If you read the Fourth Circuit decision (http://www.ca4.uscourts.gov/opinions/Published/114992.p.pdf) in Abramski, you'd see that the court of appeals points out that the facts underlying Abramski's conviction were undisputed. There was clearly substantial evidence that Abramski bought the gun on behalf of his uncle, as his uncle's agent. Indeed this was a procedural case, not a jury trial.


At the start of things, Abramski moved in the District Court (the trial court level) to dismiss the charges and suppress certain evidence.


When the District denied those motions, Abramski entered a guilty plea.


He then appealed on the basis the the District Court erred as a matter of law by denying Abramski's motions.


So throughout those proceedings there was never any doubt that Abramski did not buy the gun for himself.

Sebastian the Ibis
January 26, 2014, 09:23 PM
throughout those proceedings there was never any doubt that Abramski did not buy the gun for himself.

This is what makes this case so unique. The government spent a ton of $$ and man hours investigating this guy - for a bank robbery, which he was cleared of. There are, hopefully, not too many cases where the government searches a purchaser's home and bank records for a check which says "$400 for the Glock you are going to buy for me." Taking a check ahead of time makes it pretty easy for the government to cut through the - I-didn't-decide-to-sell-it-to-him-afterwards argument.

On a separate note, I love this at the very end of the transcript:

JUSTICE BREYER: Yes. But the other

20 problem -- we're back to the language. The -- there -*
21 they say your client, you know, falls within the

22 language and you say he doesn't. Is it -- all right.

23 Forget it.

It's not often that you get a Supreme Court Justice tongue tied.

barnbwt
January 26, 2014, 11:29 PM
"It's not often that you get a Supreme Court Justice tongue tied."
I imagine it's usually when the law doesn't make any sense (fancy that?)

TCB

goalie
January 27, 2014, 08:32 AM
My issue with the entire case and the BATFE's "addition" of questions, not to mention the complete 180 of their interpretation, is idea that buying a gun for someone else, THEN TRANSFERRING IT TO THAT PERSON THROUGH AN FFL, thus ensuring that they are not a prohibited person, is illegal.

dogtown tom
January 27, 2014, 10:10 AM
goalie My issue with the entire case and the BATFE's "addition" of questions, not to mention the complete 180 of their interpretation, is idea that buying a gun for someone else, THEN TRANSFERRING IT TO THAT PERSON THROUGH AN FFL, thus ensuring that they are not a prohibited person, is illegal.
The crime occurred when Abramski lied on the 4473 at the original purchase.........what he does after that doesn't change that fact.

goalie
January 27, 2014, 07:08 PM
The crime occurred when Abramski lied on the 4473 at the original purchase.........what he does after that doesn't change that fact.


That is my point. Other than for backdoor registration purposes, why does .gov GAF in the first place?

Make the question something like: "do you intend to re-sell this firearm to a prohibited person or in an illegal manner?"

dogtown tom
January 27, 2014, 08:48 PM
goalie Quote:
Originally Posted by dogtown tom View Post
The crime occurred when Abramski lied on the 4473 at the original purchase.........what he does after that doesn't change that fact.


That is my point. Other than for backdoor registration purposes, why does .gov GAF in the first place?

Make the question something like: "do you intend to re-sell this firearm to a prohibited person or in an illegal manner?"
It makes no difference, the Form 4473 is a record of a firearm transaction between the actual transferee/buyer and a licensed gun dealer.

As Abramski WAS NOT the actual transferee/buyer he lied when he completed and signed the form. Whether he intended to resell it to a prohibited person or in an illegal manner isn't an issue.

The moral of this story is don't buy guns on behalf of others with their $$$$.

denton
January 27, 2014, 09:21 PM
Whether Abramski broke the law by lying on his 4473 is very much open to dispute.

Apparently, it is only against the law to lie in supplying information that the FFL is required to keep. One of the questions that the Supreme Court has chosen to answer is whether the "actual buyer" question falls within that definition. We may well get a decision that says that ATF exceeded their lawful authority in even asking this question.

The Supreme Court is essentially saying that question is not settled at this time.

The other issue that the Justices pursued during orals is that given the exact same law, ATF has issued two opposite interpretations (1979 and 1994). Under one interpretation, Abramski is guilty and under the other he is not. Abramski's attorney pursued this vigorously during his rebuttal, following cues supplied earlier by the Justices. If there are two valid interpretations of the law, a defendant is entitled to the one that most favors him. If ATF attorneys can look at the same set of facts twice, and get two opposite conclusions, then there probably are two valid interpretations, and one of those favors Abramski's case.

I don't pretend to know how this is going to turn out.

dogtown tom
January 27, 2014, 10:51 PM
denton Whether Abramski broke the law by lying on his 4473 is very much open to dispute.

Apparently, it is only against the law to lie in supplying information that the FFL is required to keep.
Well, since the dealer keeps the 4473 it must be against the law huh?;)



The other issue that the Justices pursued during orals is that given the exact same law, ATF has issued two opposite interpretations (1979 and 1994). Under one interpretation, Abramski is guilty and under the other he is not. Abramski's attorney pursued this vigorously during his rebuttal, following cues supplied earlier by the Justices. If there are two valid interpretations of the law, a defendant is entitled to the one that most favors him.
Not necessarily. Regulations for all federal agencies change often. A number of Federal gun laws were passed between 1979 and 1994. Heck, the 4473 itself changes every few years.






If ATF attorneys can look at the same set of facts twice, and get two opposite conclusions, then there probably are two valid interpretations, and one of those favors Abramski's case.
Unlikely. Just because "A" was allowed in 1979, doesn't mean that "A" is allowed in 2014.

If it was then you could argue that Californians can have the same toys we do in Texas.

JRH6856
January 27, 2014, 11:14 PM
Well, since the dealer keeps the 4473 it must be against the law huh?

Only if the law requires it. And federal agencies do not make laws. ;)

denton
January 27, 2014, 11:41 PM
JRH6586 nailed it.

Agencies can be delegated rule making authority, and the rules can have the effect of law. But they have to stay within the authority granted by statute. ATF may not have done that.

Frank Ettin
January 27, 2014, 11:57 PM
Whether Abramski broke the law by lying on his 4473 is very much open to dispute....That is what this is all about.

Had he been in the Fifth Circuit, he would not have, based on United States v. Polk, 118 F.3d 286 (5th Cir. 1997). Had he been the Sixth Circuit or Eleventh Circuit, he clearly would have violated the law, based on United States v. Morales, 687 F.3d 697 (6th Cir. 2012) and United States v. Frazier, 605 F.3d 1271 (11th Cir. 2010), respectively.

But Abramski was in the Fourth Circuit, and that court apparently had not previously addressed the question. When Abramski asked the Fourth Circuit, that court decided (http://www.ca4.uscourts.gov/opinions/Published/114992.p.pdf) that he had violated the law.

So now it's up to the Supreme Court to decide.

Well, since the dealer keeps the 4473 it must be against the law huh?...

Only if the law requires it. And federal agencies do not make laws.Well Congress has said, by statute, that the Attorney General may adopt regulations regarding the maintenance of records by a licensed dealer (18 USC 923(g)(1)(A)):(g)

(1)

(A) Each licensed importer, licensed manufacturer, and licensed dealer shall maintain such records of importation, production, shipment, receipt, sale, or other disposition of firearms at his place of business for such period, and in such form, as the Attorney General may by regulations prescribe...

And the Attorney General has adopted regulations requiring dealers to maintain 4473s (27 CFR 478.129(b)):(b) Firearms transaction record. Licensees shall retain each Form 4473 and Form 4473(LV) for a period of not less than 20 years after the date of sale or disposition....

joeschmoe
January 28, 2014, 12:13 AM
http://www.reginfo.gov/public/jsp/Utilities/faq.jsp

Q. What is a regulation?

A. A regulation is a general statement issued by an agency, board, or commission that has the force and effect of law. Congress often grants agencies the authority to issue regulations. Sometimes Congress requires agencies to issue a regulation; sometimes Congress grants agencies the discretion to do so. Many laws passed by Congress give Federal agencies some flexibility in deciding how best to implement those laws. Federal regulations specify the details and requirements necessary to implement and to enforce legislation enacted by Congress.

Q. What is the rulemaking process?

A. Federal regulations are created through a process known as "rulemaking," which is governed by the Administrative Procedure Act (APA) (5 U.S.C. Chapter 5). Click here for a graphical illustration of this process.

Once an agency decides that a regulatory action is necessary or appropriate, it develops and typically publishes a proposed rule in the Federal Register, soliciting comments from the public on the regulatory proposal. After the agency considers this public feedback and makes changes where appropriate, it then publishes a final rule in the Federal Register with a specific date upon which the rule becomes effective and enforceable. In issuing a final rule, the agency must describe and respond to the public comments it received.


Q. What is the Administrative Procedure Act and why is it important?

A. The APA governs the process by which Federal agencies propose and establish new regulations. The APA generally requires agencies to provide public notice and seek comment prior to enacting new regulations. The APA also lays out the process for judicial review of rules in federal court

denton
January 28, 2014, 12:28 AM
As I've said, I have no idea what SCOTUS will rule. I expect surprises.

But I disagree with Frank that it is all that clear that the AG acted within his authority. If it were clear, there would be no question for the Supreme Court to answer.

The statute says that the AG may specify how long the records must be kept, and it says that the AG can specify the form of the records. It's not all that clear to me that this allows the AG to specify the content of the records. Maybe it does, and maybe it doesn't. The government's attorney certainly vigorously argued that it does.

We've hired 9 top tier judges to work on the issue, and about next June they will resolve the matter. I do hope that we are mostly pleased with their ruling.

Frank Ettin
January 28, 2014, 12:53 AM
http://www.reginfo.gov/public/jsp/Utilities/faq.jsp

Q. What is a regulation?...Okay, but so what?

The issue here isn't whether the regulations regarding the maintenance of records by an FFL were adopted according to proper procedure. The question of whether the "actual buyer" question is proper is a different matter.

Abramski's view is set out in his brief (http://sblog.s3.amazonaws.com/wp-content/uploads/2013/12/Brief-of-Petitioner.pdf). And that brief discussed Abramski's view of the history of the development of the "actual buyer" question. Even Abramski acknowledges that the so called "straw purchaser doctrine" was created by the courts, not ATF (pg 6): ...in an effort to effectuate what these courts perceived as the congressional intent of the Gun Control Act, they created the straw purchaser legal fiction, which treats the ultimate recipient of a gun as the “actual buyer... As the Ninth Circuit has explained, this legal fiction uses a common law agency principle to criminalize straw purchases under the laws governing false statements to gun dealers...

The government's view is set out in it's brief (http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-1493_resp.authcheckdam.pdf).

...But I disagree with Frank that it is all that clear that the AG acted within his authority. If it were clear, there would be no question for the Supreme Court to answer...Nonetheless, the AG's view has also been upheld by three federal Circuit Courts of Appeal. And accordingly, one of Abramski's core contentions is not that the AG exceeded his authority, but rather that (pg 24):1. The straw purchaser doctrine is an impermissible judicial expansion of a criminal statute.

This Court has never considered, much less endorsed, the straw purchaser doctrine created by the lower courts. As explained below, that doctrine should be rejected because it improperly expands an unambiguous criminal statute....

gc70
January 28, 2014, 08:41 AM
The amicus brief (http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/12-1493_pet_amcu_sowv-etal.authcheckdam.pdf) of 26 states presents a different perspective on the case:

The United States, through purely executive action, seeks to unlawfully create federal regulation of private intrastate firearms transfers between two individuals who are legally permitted to possess firearms. No federal law directly prohibits or regulates such private transfers. Instead, the States regulate those transactions to the extent their citizens deem necessary and appropriate.

According to the United States, two statutes concerning representations made to federally licensed dealers may be broadly interpreted to prohibit all “straw purchases” and therefore indirectly regulate such private intrastate transfers.

dogtown tom
January 28, 2014, 11:24 AM
JRH6856 Quote:
Well, since the dealer keeps the 4473 it must be against the law huh?

Only if the law requires it. And federal agencies do not make laws.
In essence they do.
Federal agencies are granted wide regulatory authority. Those regulations carry the weight of law in their application.

gc70
January 28, 2014, 11:32 AM
Federal agencies are granted wide regulatory authority. Those regulations carry the weight of law in their application.

The NRA brief (www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/12-1493_pet_amcu_nracrdf.authcheckdam.pdf#page=32) contains a good discussion of the Form 4473 in relation to rulemaking and regulatory discretion.

JRH6856
January 28, 2014, 11:33 AM
The amicus brief (http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/12-1493_pet_amcu_sowv-etal.authcheckdam.pdf) of 26 states presents a different perspective on the case:
That doesn't necessarily help Mr. Abramsky since the transfer in his case was interstate.

JRH6856
January 28, 2014, 11:36 AM
Federal agencies are granted wide regulatory authority. Those regulations carry the weight of law in their application.

Only if and to the extent the law grants regulatory authority. The authority may be wide, but only as wide as the law allows.

gc70
January 28, 2014, 11:48 AM
The amicus brief (www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/12-1493_pet_amcu_sowv-etal.authcheckdam.pdf#page=10) of 26 states presents a different perspective on the case:That doesn't necessarily help Mr. Abramsky since the transfer in his case was interstate.

While details differ, an argument that undermines the validity of criminalizing activity solely through Form 4473 changes would tend to help Abramski.

Ryanxia
January 29, 2014, 12:43 PM
So they're in the process of listening to this case and hopefully someone will post the outcome here?

ngnrd
January 29, 2014, 01:48 PM
Here is something I find interesting regarding the type of transactions that the BATFE publicizes as being a straw purchase.

These quotes are directly from the FAQ page of the joint BATF/NSSF 'Don't Lie for the Other Guy' public awareness campaign website.

What is the Don't Lie for the Other Guy campaign?

A campaign led by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the National Shooting Sports Foundation (NSSF) to help ATF to better educate America's firearms retailers on how to detect would-be straw purchasers and to raise public awareness that it is a serious crime to buy a firearm for a prohibited person or for someone who does not otherwise want his or her name associated with the transaction. The campaign was developed by NSSF and ATF in 2000 and has been active in cities around the country.

What is a straw purchase?

A straw purchase is an illegal firearm purchase where the actual buyer of the gun, being unable to pass the required federal background check or desiring to not have his or her name associated with the transaction, uses a proxy buyer who can pass the required background check to purchase the firearm for him/her. It is highly illegal and punishable by a $250,000 fine and 10 years in prison.

So, even the BATF's own straw purchase awareness campaign glaringly omits the situation where there is a prior agreement for a firearm to be purchased by and for non-prohibited individuals (in this case, family members) out of simple convenience. Curious...

And here's a link (http://www.dontlie.org/faq.cfm) to the 'Don't Lie' FAQ page.

dogtown tom
January 29, 2014, 01:54 PM
ngnrd
Quote:
What is a straw purchase?

A straw purchase is an illegal firearm purchase where the actual buyer of the gun, being unable to pass the required federal background check or desiring to not have his or her name associated with the transaction, uses a proxy buyer who can pass the required background check to purchase the firearm for him/her. It is highly illegal and punishable by a $250,000 fine and 10 years in prison.

So, even the BATF's own straw purchase awareness campaign glaringly omits the situation where there is a prior agreement for a firearm to be purchased by and for non-prohibited individuals (in this case, family members) out of simple convenience. Curious...
Not curious at all and ATF omitted nothing...............you CAN"T buy a gun on behalf of another person from a licensed dealer.

gc70
January 29, 2014, 02:56 PM
...you CAN"T buy a gun on behalf of another person from a licensed dealer.

Except as a gift or as a raffle prize ... or, in the states in the Fifth Circuit, for any non-prohibited person.

ngnrd
January 29, 2014, 03:03 PM
Not curious at all and ATF omitted nothing...............you CAN"T buy a gun on behalf of another person from a licensed dealer.

I disagree. Consider the following hypothetical scenario:

I am not a prohibited person, nor do I care if my name is associated with a firearm transaction (as witnessed by several of my previous firearm transactions at my LGS). While I am on vacation, a firearm that a friend knows I have been wanting goes on sale at my LGS. (He is also not a prohibited person, so can pass the required background check, and he also doesn't care if his name is associated with a firearm transaction.) He texts me and informs me of the sale - which he knows will be over by the time I get back. I text back and ask him to buy it and state that I will pay him back when I get home, which he does. Then, when I get home, I pay him and take possession of the firearm.

In that case, the ATF would contend that my friend has acted as a straw purchaser on my behalf, and could certainly be prosecuted under the current rules - just as Mr. Abramsky has been. However, neither of us has violated the rules - as described in the ATF's 'Don't Lie' FAQ.

Unless, you are asserting that I somehow became unable to pass the required background check simply because I was out of town on vacation - an assertion that I wholly reject.

JRH6856
January 29, 2014, 04:02 PM
dogtown tom, RE the portions of the quote you enlarged in your post #133:

In the Abramsky case, there is no evidence that the actual purchaser did not wish to have his name associated with the transaction as he apparently had no problem having his name associated with the subsequent transaction and 4473 actually transferring the gun to him. There is no intent to disassociate evidenced by his actions.

This transaction would be legal in the 5th Circuit. BTW, you are in the 5th Circuit.

Gaiudo
January 29, 2014, 04:48 PM
Not curious at all and ATF omitted nothing...............you CAN"T buy a gun on behalf of another person from a licensed dealer.


You continue to ignore, as you have throughout the thread, that it is precisely this ambiguity that has brought the case to SCOTUS.

I do find it interesting that the ATF literature emphasizes the prohibited person aspect, much in line with the congressional language and the 5th circuit decision. Their addition to the law (namely making third party sales for non-prohibited persons unlawful) is starkly absent from this literature.


I wonder if that was brought up in arguments. Would have been a great show and tell.

dogtown tom
January 29, 2014, 05:35 PM
gc70 Quote:
Originally Posted by dogtown tom
...you CAN"T buy a gun on behalf of another person from a licensed dealer.

Except as a gift or as a raffle prize ... or, in the states in the Fifth Circuit, for any non-prohibited person.
And the instructions on the 4473 clearly state that you are the actual buyer/transferee if legitimately purchasing the firearm as a gift to a third party.

dogtown tom
January 29, 2014, 05:38 PM
ngnrd ....In that case, the ATF would contend that my friend has acted as a straw purchaser on my behalf, and could certainly be prosecuted under the current rules - just as Mr. Abramsky has been.
Correct.....because your friend LIED when he signed the 4473, certifying that HE was the actual buyer/transferee of the firearm.


However, neither of us has violated the rules - as described in the ATF's 'Don't Lie' FAQ.
What do you think you do when you sign a 4473?:scrutiny:

dogtown tom
January 29, 2014, 05:42 PM
Gaiudo Quote:
Originally Posted by dogtown tom View Post
Not curious at all and ATF omitted nothing...............you CAN"T buy a gun on behalf of another person from a licensed dealer.


You continue to ignore, as you have throughout the thread, that it is precisely this ambiguity that has brought the case to SCOTUS.
I haven't ignored jack squat bud.;)
It isn't ambiguous to me at all. Current ATF regulations and the 4473 clearly state if you are not the actual buyer/transferee.......don't buy the gun. If you disagree with ATF's interpretation......press your congressman to change it. Otherwise you run the risk that Mr. Abramski is running right now.

ngnrd
January 29, 2014, 05:56 PM
What do you think you do when you sign a 4473?:scrutiny:
You totally missed my point. And that point is:

There would certainly not have been a violation of any rule AS DESCRIBED ON THE ATF's OWN PUBLIC INFORMATION WEBSITE.

Further, the reason I posted this at all was not to discuss what the 4473 says. Rather, it was to point out that nowhere on that website does it talk about the kind of scenario I described - which is exactly the same scenario in which Mr. Abramski finds himself - and which is currently being discussed at the highest court in the nation. Thus, I happen to think it is a notable curiosity.

ngnrd
January 29, 2014, 06:04 PM
Their addition to the law (namely making third party sales for non-prohibited persons unlawful) is starkly absent from this literature.


I wonder if that was brought up in arguments. Would have been a great show and tell.

Indeed... And, I certainly hope Mr. Abramski's attorneys were resourceful enough to locate it, and at least considered presenting it.

Gaiudo
January 29, 2014, 06:21 PM
I haven't ignored jack squat bud.

Simple question: is it or is it not established case-law in the 5th circuit (hint, your own circuit court) that a person can buy a gun for a different person, and be paid for it, as long as that person is not prohibited?

While not ambiguous to you, it was ambiguous enough to have multiple circuit court interpretations, and for SCOTUS to take up the question.

dogtown tom
January 29, 2014, 07:21 PM
Gaiudo Quote:
I haven't ignored jack squat bud.

Simple question: is it or is it not established case-law in the 5th circuit (hint, your own circuit court) that a person can buy a gun for a different person, and be paid for it, as long as that person is not prohibited?
I could care less what the 5th Circuit decision says. Until the Supreme Court forces ATF to change its regulations (and the Form 4473) I'm bound to uphold their regulations or face possible loss of my FFL. That may get your panties in a wad but you wouldn't be paying my legal bills would you?:rolleyes:

Gaiudo
January 29, 2014, 07:27 PM
I could care less what the 5th Circuit decision says.

OK. Good to know. The legal points here are, after all, the topic under discussion in this thread.

I'm also not sure what bearing this discussion has on you upholding regulations, as this would be in the realm of the buyer. Can you get prosecuted for someone lying on their 4473?

danez71
January 29, 2014, 07:31 PM
Simmer down Tom.

Others have said its ambiguous and have stated why.

You said it wasn't ambiguous at all to you and you stated why.

From each perspective, both sides are right and that is exactly why SCOTUS has taken the case; because it IS ambiguous. Heck, the different Circuit courts cant even agree.


As I see it, its a case of "letter of the law" doesn't jive with the "spirit of the law".

It will be interesting how SCOTUS rules on this. Hopefully on the "spirit of the law" side.

denton
January 29, 2014, 07:40 PM
Swore I wasn't going to post on this again, but....

ATF cannot make rules that exceed the authority granted by statute, nor can they make rules that contradict the statute. They are bound by the laws Congress passes. They can't just make things up as they go along. Abramski's case argues (persuasively, I think) that they did exactly that.

Arguing that the Form 4473 instructions say this or that does not dispose of the issue. If they made a rule that you had to stand on one foot, facing East, holding your breath, while the NICS check was phoned in, they would quickly get their comeuppance from the courts. It is not within their authority.

If Question 11a is not within their authority, then it is null, void, and of no effect. It would not be a legal regulation at all. You could legally answer it in any way you pleased, sign the form, and be completely legal so far as I know.

In about June, SCOTUS will tell us whether Question 11a should ever have been there, whether the instructions matter at all, whether it will appear on future versions of Form 4473, and whether Abramski is entitled to a clean slate on this issue.

denton
January 29, 2014, 08:16 PM
It will be interesting how SCOTUS rules on this. Hopefully on the "spirit of the law" side.

The preamble of the Gun Control Act contains the following language:

The Congress hereby declares that ... it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes, or provide for the imposition by Federal regulations of any procedures or requirements other than those reasonably necessary to implement and effectuate the provisions of this title.

That language makes it harder to successfully argue that Congress intended to restrict Abramski's behavior. Yet that is what the government's lawyer argued. And at least one Justice brought him up short for arguing intent, when the prohibited behavior was not in the text of the law, and possibly, not within ATF's authority.

dogtown tom
January 29, 2014, 08:22 PM
Whether you think the question ambiguous or not, the fact is Abramski lied when he signed the form.

Very few people bother to read the certification statement at the top of page 2 on the 4473.........much less ask what does "Actual transferee/buyer" mean on Question 11a.

Even fewer will ask "What does__________ mean on Question _____"........amazingly, many dealers don't bother to read the instructions either. If you are not sure of the question, or your answer.......DON"T SIGN THE FORM!

I'm not arguing whether Abramski violated Federal law by taking the firearm to a dealer in another state to be transferred to another party.........just that he lied when he signed the Form 4473.

denton
January 29, 2014, 08:29 PM
I'm not arguing whether Abramski violated Federal law by taking the firearm to a dealer in another state to be transferred to another party.........just that he lied when he signed the Form 4473.

Wrong question.

The question is not whether he lied.

The question is whether he broke the law.

If Question 11a is found to be null, void, and of no effect, then he did not break the law, regardless of whether he signed the form and how he answered Question 11a.

Gaiudo
January 29, 2014, 08:37 PM
I'm not arguing whether Abramski violated Federal law by taking the firearm to a dealer in another state to be transferred to another party.........just that he lied when he signed the Form 4473.

I'm in complete agreement that it's probably not a wise idea to lie on a federal form. Tends to bring all kinds of hurt, as Abramski is experiencing. Definitely behavior not to be encouraged, nor are the responses on this forum in anyways to encourage such behavior. Tom's correct in urging prudence in the matter.

I'm also glad that we're going to see some resolution on this topic in June. I'm hopeful, though not necessarily optimistic, that SCOTUS will bring this back to congressional intent and moderate BATFE overreach on the matter.

gc70
January 29, 2014, 10:09 PM
I find it disturbing that, throughout much of its history, Form 4473 has been 'one law ahead of Congress' in criminalizing activities.

GCA68 prohibited dealer sales to prohibited persons, but did not prohibit eligible persons from reselling to prohibited persons. By 1979, ATF had created an "actual buyer" question on Form 4473 to target resales to prohibited persons and try to administratively close the perceived resale loophole in GCA68. Subsequently, FOPA86 (uscode.house.gov/statutes/1986/1986-099-0308.pdf#page=4) prohibited anyone from selling to prohibited persons.

The Brady Act of 1993 (www.gpo.gov/fdsys/pkg/BILLS-103hr1025enr/pdf/BILLS-103hr1025enr.pdf#page=3) adopted components of Form 4473's eligibility checklist, albeit without any "actual buyer" language, as the starting point for the CLEO background check mandated by the law's interim provisions. Those interim provisions, and presumably any statutory approval for the Form 4473 eligibility checklist, sunset in 1998 with the implementation of the NICS system for automated background checks.

In the early 1990s, ATF changed its definition of "actual buyer" to target resales to eligible persons. The impetus for that change can be seen in the Frazier (http://scholar.google.com/scholar_case?case=7315382019493498307&hl=en&as_sdt=6&as_vis=1&oi=scholarr) and Morales (http://scholar.google.com/scholar_case?case=2067371356056374057&hl=en&as_sdt=6&as_vis=1&oi=scholarr) cases, both of which involved initial sales and resales between eligible persons who were ultimately involved in smuggling guns out of the country. A bill (http://beta.congress.gov/113/bills/s54/BILLS-113s54is.pdf) has been proposed in the current session of Congress to criminalize just such resales between eligible persons.

JohnKSa
January 29, 2014, 11:52 PM
The question is not whether he lied.

The question is whether he broke the law.As far as I can tell, the current interpretation of the law is that lying on the "actual buyer" question of the 4473 is defined to be a straw purchase and is therefore breaking the law.

JRH6856
January 30, 2014, 12:01 AM
As far as I can tell, the current interpretation of the law is that lying on the "actual buyer" question of the 4473 is defined to be a straw purchase and is therefore breaking the law.

And whether or not that interpretation is correct will be decided by SCOTUS and we will know in June. Meanwhile, we're just arguing in circles here.

denton
January 30, 2014, 12:04 AM
As far as I can tell, the current interpretation of the law is that lying on the "actual buyer" question of the 4473 is defined to be a straw purchase and is therefore breaking the law.

That indeed is ATF's current interpretation. They desperately want it to be so. What matters is SCOTUS' interpretation. ATF may or may not be disappointed.

Gaiudo
January 30, 2014, 12:04 AM
As far as I can tell, the current interpretation of the law is that lying on the "actual buyer" question of the 4473 is defined to be a straw purchase and is therefore breaking the law.

You'd be right if you said the current interpretation of the law in the 4th, 9th, and 11th circuits, but incorrect if you're including the current interpretation in your own jurisdiction (the 5th circuit).

ngnrd
January 30, 2014, 01:19 AM
I just spent an hour listening to the oral arguments (http://www.oyez.org/cases/2010-2019/2013/2013_12_1493) in this case. Very interesting. I think Abramski's counsel has crafted a good case - but it's certainly not a slam dunk. Most of it hinges on how the actual statute has no language referencing straw purchases or 'actual' or 'real' buyers, and how Congress specifically left out such language as part of a political compromise so that non-prohibited persons would remain free to make unregulated firearm transactions [or that such transactions were best left to the States to regulate]. Thus, the 'buyer' referenced in statute is the person that takes possession of the firearm from the regulated dealer - not a separate non-prohibited person to which a firearm is transferred after that initial transfer.

Basically, the claim is that the ATF's regulation change in 1994 overstepped the Agency's regulatory authority by adding requirements that were not referenced by statute.

The Government's position is basically that they would have no way to track firearms if unregulated secondary transactions [my words] were allowed.

Is this about right? [I am not a lawyer, and there were some points that I didn't quite follow...]

JRH6856
January 30, 2014, 01:25 AM
The Government's position is basically that they would have no way to track firearms if unregulated secondary transactions [my words] were allowed

The Government's (unstated) position is basically that they would have no way to collect accurate data to keep in a secret (illegal) registry. :cuss:

Ryanxia
January 30, 2014, 08:19 AM
The Government's (unstated) position is basically that they would have no way to collect accurate data to keep in a secret (illegal) registry. :cuss:
I believe someone quoted the ATF from back in the 90's (may have been this thread) where the spokesperson said they wanted to see who was 'stocking up' on firearms so they needed to track the 'actual buyers'.

JRH6856
January 30, 2014, 12:21 PM
I believe someone quoted the ATF from back in the 90's (may have been this thread) where the spokesperson said they wanted to see who was 'stocking up' on firearms so they needed to track the 'actual buyers'.

Uh-huh, yeah, that explains it. Also explains why BATFE agents are reportedly visiting FFL holders and scanning all the 4473s they can get their hands on.

Frank Ettin
January 30, 2014, 12:23 PM
...Also explains why BATFE agents are reportedly visiting FFL holders and scanning all the 4473s they can get their hands on.Let's see some solid evidence to back this claim up.

Midwest
January 30, 2014, 01:01 PM
Let's see some solid evidence to back this claim up.
Here are some allegations from Gun Owners Of America

A Sampling of Individual Testimonies Regarding ATF Copying of 4473s

https://gunowners.org/appendix04042013.htm

JRH6856
January 30, 2014, 01:03 PM
I make no claims to back up, Frank. I said "reportedly" so I did claim it has been reported, and it has been reported in several threads on this forum.

Ryanxia
January 30, 2014, 01:04 PM
Let's see some solid evidence to back this claim up.
Frank, this is absolutely happening. See my thread here which I have first hand experience with.

http://www.thehighroad.org/showthread.php?t=737291

ngnrd
January 30, 2014, 02:19 PM
Here's another credible citation. (This was - I believe - the first incident that brought the practice to light.)

Press Release from Alaska Congressman Don Young (http://donyoung.house.gov/news/documentsingle.aspx?DocumentID=292579)

ngnrd
January 30, 2014, 02:22 PM
I believe someone quoted the ATF from back in the 90's (may have been this thread) where the spokesperson said they wanted to see who was 'stocking up' on firearms so they needed to track the 'actual buyers'.

I think that reason was also referenced in the Government Counsel's oral argument in this case. But, I'd have to go back and listen to it again...

Frank Ettin
January 30, 2014, 02:38 PM
Frank, this is absolutely happening....I'm sorry, but all this is a long way from "solid evidence." We have a pdf. of a letter, without signature and not on letterhead, claiming a single instance. We have the GOA publishing a list of anonymous statements, some claiming to report events "years ago" or reporting hearsay. We have a politician's press release calling on an explanation from ATF (but merely assuming that ATF is doing something that warrants an explanation -- in court we call that "assuming facts not in evidence").

None of that can, by any stretch of the imagination, be called "solid evidence."

I've notice that many in the gun community are willing to accept tissue thin "evidence" as long as it supports their preconceived notions. At the same time we excoriate our opposition for their willingness to accept tissue thin "evidence" supporting their preconceived notions.

As a professional advocate I learned a long time ago that effective advocacy requires an understanding of what is, and is not, good and credible evidence. And we who advocate in support of the RKBA need to learn to more critically evaluate what we put forth as evidence to support our positions.

As Carl Sagan said, "Extraordinary claims require extraordinary evidence."

I make no claims to back up, Frank. I said "reportedly" so I did claim it has been reported, and it has been reported in several threads on this forum. Ah yes, that's the classic way to make a claim and at the same time weasel out of responsibility or accountability for it. It's a popular rhetorical trick.

Frank Ettin
January 30, 2014, 03:07 PM
...None of that can, by any stretch of the imagination, be called "solid evidence."...Now that the forgoing has had a chance to sink in, let's consider the flip side.

Does all that mean that the ATF isn't doing anything of the sort? And the answer is "no."

But it does mean that we don't have grounds upon which to claim as a fact that ATF is doing that sort of thing -- at least as a matter of policy or on a widespread basis.

What we have is grounds upon which to suggest that further investigation is appropriate. But that is a long way from having proved a fact.

There is a difference between suspicion and fact. There is a difference between suspicion and knowledge. There is a difference between belief and knowledge.

ngnrd
January 30, 2014, 03:10 PM
Hmmm... according to Young, the ATF ADMITTED during a meeting with the Congressman that this happened (at least on this one occasion), and promised that it wouldn't happen AGAIN.

I'm pretty sure that this still won't pass as legally admissible 'evidence' of a pattern of overstepping their authority, but I'm going to throw it out there anyway.

Again, from Congressman Young's web site (http://donyoung.house.gov/news/documentsingle.aspx?DocumentID=296217) (emphasis mine):

“I requested today’s meeting because the idea of any government agency having a centralized database of gun sale records is very troubling to me,” said Rep. Young. “During today’s meeting Deputy Director Brandon assured me that this is not an accepted practice at the ATF and that they are looking to remedy the situation to ensure it, or anything like it, never happens again in the future. There will also be a seminar held in the near future for Alaskan Federal Firearms Licensees in which I have requested the ATF listen and work with Alaskan gun shop owners to make sure their questions are answered and all of their concerns are heard.”

“Looking to the future, I am hopeful that ATF has gotten the message that hassling gun shops for copies of their records is absolutely unacceptable to me and quite frankly illegal. While I take the ATF at their word that this was an isolated incident and is not ATF policy, I will be working to ensure gun sale records remain with the gun shop and not the federal government in some database.”


Although... I'm not sure how this is relevant to the Abramski case in particular, or to straw purchase law in general.

Frank Ettin
January 30, 2014, 03:23 PM
...I'm pretty sure that this still won't pass as legally admissible 'evidence' of a pattern of overstepping their authority, but I'm going to throw it out there anyway...What it doesn't pass as evidence of is that the stated ATF response is anything but completely accurate, i. e. --


...Deputy Director Brandon assured me that this is not an accepted practice at the ATF...


...they [ATF] are looking to remedy the situation to ensure it, or anything like it, never happens again...


...this was an isolated incident...

There is a difference between "field agent error" and "institutionalized policy flouting the law." So far, all we have reason to know we have is the former. If someone wants to claim that the latter is true, we need more and better evidence.

ngnrd
January 30, 2014, 03:54 PM
I understand the need for more evidence, Frank. But, I think you have to admit that the recent reports of actions strikingly similar to this admitted 'isolated incident' occurring in other locations, and well after 'remedies' were to be put in place to prevent recurrence, are troubling.

And, I think that's the point, isn't it? Wouldn't a series of 'isolated incidences' indicate a pattern?

JRH6856
January 30, 2014, 05:43 PM
Ah yes, that's the classic way to make a claim and at the same time weasel out of responsibility or accountability for it. It's a popular rhetorical trick.

And I learned it well from observing how attorneys phrase the things they say and write.

Sometimes blowing smoke is just that, but sometimes there is a fire that needs fighting. The more people that are paying attention, the sooner we may know which it is.

Frank Ettin
January 30, 2014, 08:25 PM
I understand the need for more evidence,...Exactly -- but everything after that statement is more assumption and conjecture.

And I learned it well from observing how attorneys phrase the things they say and write....Which highlights the importance of the adversarial system. If a lawyer tries that sort of rhetorical trick in court, the opposing lawyer, or the judge, is there to call him on it.

An "it's been reported" statement should, in anyone's mind, suggest further questions, such as --

Reported where and by whom?


What evidence did the source offer?


Do you believe it? If so, why? On what basis?


If you don't believe it, why are you bothering to bring it to use -- at least without expressing your own skepticism?
If you don't think of those questions when a politician or lawyer or anyone else says, "It's been reported that....", you're just being too gullible. You just want to believe.

ngnrd
January 30, 2014, 08:51 PM
Exactly -- but everything after that statement is more assumption and conjecture.


No, it's not. It is an opinion, followed by two questions (which you failed to answer). That's why I began the statement with the phrase "I think".

And, for the record, I also think this thread has veered way off topic... Again, this is opinion, not assumption or conjecture.:neener:

Frank Ettin
January 30, 2014, 08:59 PM
Exactly -- but everything after that statement is more assumption and conjecture.


No, it's not. It is an opinion, followed by two questions (which you failed to answer). That's why I began the statement with the phrase "I think".

And, for the record, I also think this thread has veered way off topic... Again, this is opinion, not assumption or conjecture.Well, an opinion can be based on fact or based on assumption and conjecture. The former is more solid than the latter.

But the thread has wandered off topic -- an opinion based on fact.

So let's get back to the subject, shall we?

Oh, and I had no intention of answering those questions since I consider them to be rhetorical.

Gaiudo
January 30, 2014, 09:03 PM
For those who haven't been following, scotusblog has some pretty interesting reading on the topic and a fairly positive (for us) take on the oral arguments.


http://www.scotusblog.com/2014/01/argument-recap-when-compromise-is-the-problem/#more-204323

At times, the hearing actually bordered on the amusing — as, for example, when Justice Samuel A. Alito, Jr., conjured up the image of a “Mr. Straw” running a very busy gun-buying operation that showed how easy it was to get around the law. So, Alito said, Congress did something “utterly meaningless.”

Richard D. Dietz, a Winston-Salem, North Carolina, lawyer for an individual convicted of being a straw purchaser, did his best to try to undermine the very notion of straw purchasing, but appeared to have his best moments when confirming for the Justices the variety of situations in which guns might pass from hand to hand entirely outside the regulatory structure set up by Congress. “The law,” he said candidly, “may have holes in it.” He told Justice Elena Kagan, for example, that compromises in passing the law at issue had shown clearly that Congress did not want to intrude into the wide range of private sales of guns “between citizens.” The law was aimed at the first sale, Dietz argued, but not beyond it, and especially not when a gun is transferred from someone legally entitled to have it to someone else also eligible to be a gun owner.


The seeming lack of clarity in the law — and the concessions the government had had to make about what it did not outlaw — were continuing problems during the argument of the government’s lawyer, Assistant to the Solicitor General Joseph R. Palmore. It also turned out to be a problem for Palmore that the government’s gun-regulating agency, the Bureau of Alcohol, Tobacco and Firearms, had previously interpreted the law in much the same way as Dietz suggested it should be read now. Although Palmore said the interpretation had changed twenty years ago, that did not keep the Justices from bringing up the prior position several times.


His main argument was that, in trying to set up a system to monitor the movement of guns, to keep them from the wrong hands and to allow them to be traced after use in a crime, was that Congress had focused tightly on what gun dealers can do to identify the real buyers in the first instance . . . Perhaps the low moment for Palmore was when Chief Justice John G. Roberts, Jr., noted that the language in the law had been “fought over, tooth and nail” by the opposing sides in the gun control debate, and that the compromise which resulted simply had nothing to do with the idea of a “straw purchaser.” That, of course, was one of attorney Dietz’s main talking points.

Field Tester
January 30, 2014, 10:32 PM
A poll would be completely irrelevant. It doesn't matter what the members here might think of our respective arguments. What matters would be which a court would be likely to accept.

In fact, there is a good deal of case law on Fifth Amendment issues, and I know that you will find none to support your contentions.

There are cases in which the Fifth Amendment privilege against being compelled in a criminal case to testify against yourself has been found to bar prosecution of a failure to file a tax return (Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968)) and failure to register an illegally possessed NFA firearm (Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968)). There are similar cases, but they all reflect a common theme:

A person's sole choices are, essentially, to commit a crime by failing to register or file something or admit a crime by registering or filing something.


And thus a person is compelled by law to testify against himself because if he doesn't do so by registering or filing something he can be prosecuted for failing to register or file.

But you commit no crime by not buying a gun. Therefore, you are not compelled to fill out a 4473 and thus, if you do so honestly, admit to another crime (if you were a prohibited person or not the actual buyer or subject to some other disqualification). And since you are not legally compelled, on pain of criminal prosecution, to buy a gun, the Fifth Amendment, based on the reasoning of the cases I've cited, would not bar prosecution for your false statements on a 4473 in violation of 18 USC 922(a)(6) it you chose to attempt to buy a gun.

To support your Fifth Amendment argument you would need to find cases ruling that a mere desire or want is sufficient compulsion to support invoking the Fifth Amendment. Good luck with that.

Furthermore, looking at a sampling of appeals from convictions for making false statements on a 4473, the lawyers for none of those defendants raised the Fifth Amendment. It would be hard to imagine that all of those lawyers were incompetent for failing to raise the Fifth Amendment if it could have been a viable defense. I looked at these cases: U.S. v. Hawkins, 794 F.2d 589 (C.A.11 (Fla.), 1986); Brown v. U.S., 623 F.2d 54 (C.A.9 (Cal.), 1980); United States v. Beebe, 467 F.2d 222 (10th Cir., 1972); U.S. v. Ortiz, 318 F.3d 1030 (11th Cir., 2003); U.S. v. Ortiz-Loya, 777 F.2d 973 (C.A.5 (Tex.), 1985); and U.S. v. Graves, 554 F.2d 65 (C.A.3 (Pa.), 1977).

So I'll be interested to see what you can come up with.
What about Kennesaw, GA? According to city ordinance every household was required to have a firearm and ammunition. Therefore you may be required to fill out a 4473.

I'm not saying I disagree with you Frank, just playing Devil's Advocate a bit.

Gaiudo
January 30, 2014, 10:44 PM
What about Kennesaw, GA?

If that law was actually enforced it would likely be judged unconstitutional due to precisely such requirements. Ala what happened in Nelson GA (though I think that was settled before ever going to court).

JRH6856
January 30, 2014, 11:32 PM
I understand what Frank is saying regarding finding cexisting ase law to support a defense. But if none can be found, so what? If 1 or 100 are found, one of those had to be the first, which means when it was presented, there was no case to support it. Making a case for the first time certainly presents a heavier burden, but there is always a first time for everything. I believe it is called "precedent".

Frank Ettin
January 30, 2014, 11:54 PM
What about Kennesaw, GA?

If that law was actually enforced it would likely be judged unconstitutional due to precisely such requirements. Ala what happened in Nelson GA (though I think that was settled before ever going to court).I agree that there can be a serious question of whether the town ordinance is enforceable. AFAIK, it has never been enforced.

In addition, it's unclear what the penalty might be. The ordinance itself sets out no penalties for non-compliance, and it provides for a number of exemptions. Here's the ordinance in full (Kennesaw Municipal Code 34-21):Sec. 34-21. Heads of households to maintain firearms.permanent link to this piece of content

(a) In order to provide for the emergency management of the city, and further in order to provide for and protect the safety, security and general welfare of the city and its inhabitants, every head of household residing in the city limits is required to maintain a firearm, together with ammunition therefore.

(b) Exempt from the effect of this section are those heads of households who suffer a physical or mental disability which would prohibit them from using such a firearm. Further exempt from the effect of this section are those heads of households who are paupers or who conscientiously oppose maintaining firearms as a result of beliefs or religious doctrine, or persons convicted of a felony.

And since federal law, under the Constitution, is the "supreme law of the land" (Article VI), any federal disqualification from possessing a gun would necessarily excuse compliance with the ordinance.

Field Tester
January 31, 2014, 12:28 AM
I understand that, but I was trying to fulfil the requirement of the 5th Amendment being applicable to the situation. Would this qualify if the same senario happened in Kennesaw?

Ryanxia
January 31, 2014, 02:59 PM
Frank, I don't want to get off the original topic so this will be the last thing I point out regarding the ATF scanning records, but in the Alaskan incident there is actually a quote from the ATF stating clearly that this is an illegal act and they were 'taking steps to ensure agents are better trained' so as not to happen again. I understand your skepticism but there's a fine line before it's called burying your head in the sand. :D

Frank Ettin
January 31, 2014, 03:08 PM
Frank, I don't want to get off the original topic so this will be the last thing I point out regarding the ATF scanning records, but in the Alaskan incident there is actually a quote from the ATF stating clearly that this is an illegal act and they were 'taking steps to ensure agents are better trained' so as not to happen again....Old news -- see post 170:

...There is a difference between "field agent error" and "institutionalized policy flouting the law." So far, all we have reason to know we have is the former. If someone wants to claim that the latter is true, we need more and better evidence.

Ryanxia
January 31, 2014, 03:47 PM
Sorry, missed that.

If you enjoyed reading about "Legal Ownership and Straw Purchases: SCOTUS" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!