Legal Ownership and Straw Purchases: SCOTUS

[NickEllis]

Looks like we'll finally get this sorted out at SCOTUS:

http://www.foxnews.com/politics/201...eighs-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.

 

[NavyLCDR]

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.

 

[NickEllis]

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]

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]

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]

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-co.../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.

 

[NickEllis]

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]

nevermind

 

[NavyLCDR]

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]

A while ago I outlined current law on straw purchases in this thread:

...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, 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 --

1. 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
   
   
2. 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 (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" 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.

 

[NickEllis]

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]

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?)

 

[NickEllis]

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]

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]

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.

 

[NickEllis]

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]

That's why I will only sell directly to someone I know personally and trust.

 

[JRH6856]

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]

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]

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]

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]

...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]

Yeah, I know what the 5th and 6th say, just thinking a little too creatively.

 

[BSA1]

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]

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".
Hey with a jury, who knows? With the SCOTUS you prolly wouldn't have much chance of succeeding with that.