Legal Ownership and Straw Purchases: SCOTUS

[Doc7]

never mind Frank Ettin's post cleared it up for me.

 

[Arizona_Mike]

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]

...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.

 

[NickEllis]

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]

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]

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]

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.

 

[NickEllis]

Actually I believe you can make a very strong 5th amendment argument.

Please do share.

 

[Ignition Override]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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:

1. 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.
   
   
2. 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]

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]

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]

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]

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.

 

[NickEllis]

Man, that will ruin your day.

 

[Trent]

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]

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.