Legal Ownership and Straw Purchases: SCOTUS

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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.
 
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).
 
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.
 
denton said:
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....
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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;...
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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.

denton said:
...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.
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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.

Trent said:
...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...
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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.
 
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.
 
denton said:
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....
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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.

denton said:
...So my next interest is, what does the law mean by "acquire"?...
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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?

denton said:
...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....
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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.

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

denton said:
...It's not reasonable to expect an ordinary person to reliably make a decision if the rules are not clear and simple....
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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 (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.
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denton said:
...I think that the rule of lenity gets Abramski off the hook....
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How nice. But it's now what the Supreme Court thinks that's important, and we'll know that when it publishes the decision.
 
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.
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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.
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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.
 
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
 
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.
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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.
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Which also has no bearing on what happened with his original 4473.




Not to mention that neither person was a prohibited person
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"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.
 
"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....".
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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.
 
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?
 
I am surprised that the arguments did not include discussion of the Brady Act's 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.
 
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?
 
TRX said:
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.
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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.
 
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).
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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.
 
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joeschmoe said:
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?...
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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.
 
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?
 
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?
 
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.
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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?
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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.
 
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.
 
OH! OH! Hey, can we reopen a discussion about Bills of Sale now?!?
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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.
 
JohnKSa said:
...If there's no requirement to keep records for the government, you're better off not keeping them, IMO...
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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.
 
Frank Ettin said:
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.
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? 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.
 
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