Legal Ownership and Straw Purchases: SCOTUS

[NickEllis]

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]

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 prohibited anyone from selling to prohibited persons.

The Brady Act of 1993 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 and Morales 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 has been proposed in the current session of Congress to criminalize just such resales between eligible persons.

 

[JohnKSa]

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]

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]

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.

 

[NickEllis]

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]

I just spent an hour listening to the oral arguments 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]

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.

 

[Ryanxia]

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

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]

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]

...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]

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]

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]

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]

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

 

[ngnrd]

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]

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]

...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]

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 (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]

...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. --

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

   
   

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

   
   

3. ...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]

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]

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]

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 --

1. Reported where and by whom?
   
   
2. What evidence did the source offer?
   
   
3. Do you believe it? If so, why? On what basis?
   
   
4. 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]

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.

 

[Frank Ettin]

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.