Abramski v U.S. Supreme Court Decision (Straw Purchase case)

[Arizona_Mike]

What happens if someone buys a gun with the intention of keeping it. However after a short time they decide they don't like it as much as they thought, and so sell or trade it at the next available gun show. Presume for argument that such a sale of what is now private property does not violate any state or local laws where it occurs.

Perfectly legal although may have the appearance of illegality. Illegal for different reasons if you do it often.

Mike

 

[Xelera]

Back when I was younger and living in California (doing volunteer work with LA County Sheriff while getting my college degree in Criminal Justice) if you were pulled over by a police officer, say, for turning without using a signal, and he saw a baseball bat on your back seat as he approached your driver side door...

He could ask you (because he saw it in plain sight visible from the outside of the vehicle) what the bat was for.

You could respond that it was your son's baseball bat and he forgot it in the car after his game the day before... business as usual, traffic ticket or warning for the moving infraction, yada yada.

OR you could respond that you work in a not-so-nice part of town and get off after dark, so it is kept there for protection. Now you admitted to possessing a billy club, a banned weapon under California and could be arrested and charged with possession of an illegal weapon. All because of how you answered the seemingly innocent question.

INTENT.

Now, the purchaser in the case discussed in this thread, received a check in advance, from the individual he was buying the gun for, and the check said, in the comment section "Glock 19 $400". The purchaser THEN went and bought the gun, using his law enforcement discount (the reason he was making the purchase for the other individual) and committed the felony of lying on a federal form, declaring the gun was being purchased for him.

INTENT.

I can buy a gun and be 100% legal and within my rights, to decide to give it to a friend or family member, or sell to them, at some time down the road, with no FFL required (in most states). If I go to the store with them, buy the gun, say its mine and for me on the federal form, then turn around there at the counter and say "happy birthday" and hand them the gun... you are most likely going to be talking to the authorities, maybe doing some jail time.

INTENT.

One popular discussion among firearm enthusiasts is that we should try enforcing the laws already on the books pertaining to firearms, before we try passing more laws.

Consider this first, that in 2009, 6,083,428 applications for a firearm were submitted to the FBI NICS (National Institute for Criminal Statistics) for consideration under the Brady Law. Of those applications, 67,324 (1.1%) were denied. Now, remember, this application form has a great big warning on it saying:

"I also understand that making any false oral or written statement, or exhibiting any false or misrepresented identification with respect to this transaction, is a crime punishable as a felony under Federal law, and may also violate State and/or local law."

Of all of those denials, or people that said they were able to own firearms, only 140 cases were referred for prosecution, of which 45% (63) were denied or not further pursued for prosecution, meaning only 77 cases were followed through for prosecution. So 77 prosecutions out of 67,324 denials, and not just denials, but FEDERAL FELONIES punishable by UP TO 10 years in prison AND a $250,000 fine IN ADDITION to state prosecution. So 77 divided by 67,324 = 0.11 percent of the denials prosecuted, or just over 1 in 1000????

So now this LAW ENFORCEMENT OFFICER committed a premeditated felony that was identified as such in front of him in writing, and now wants to argue that essentially, he disagrees with the law as written or applied, and that he is not guilty. How would that work out for you or me, when say, this officer pulls us over for doing 50mph in a 40mph zone, and we try to argue that the speed limit is excessively restrictive, visibility was good, dry weather conditions, no traffic... we would still get that ticket.

I agree the law is overly restrictive and I write congressmen all the time regarding my views on firearms and other laws. I vote accordingly as well, and sadly, I believe the day may come when open rebellion is a certainty. That said, I am not going to go into a store in the current political climate and state of affairs and challenge this law by committing a felony AND lying and taking advantage of a dealers generosity offering a discount to our law enforcement and military individuals.

This guy should have taken the limited number of actual enforcements of this federal felony, and challenged his prosecution on grounds of discrimination or selective enforcement. It should never have made it to the Supreme Court. But maybe at least, the Justice Department is listening to the demands to enforce the current laws, and beginning to.

Be careful what you wish for, you might just get it...

Oh, and "INTENT".

 

[Jlr2267]

Perfectly legal although may have the appearance of illegality. Illegal for different reasons if you do it often.

Mike

what is illegal about doing it often?

 

[Xelera]

Also...

My sister bought me a brand new Browning BPS Stalker shotgun one year.

We went to the store, picked it out, told the guy behind the counter that she was buying the gun for me. He had her fill out the 4473, run the check, came back approved, ran her credit card then before finalizing the sale, cancelled the sale. This way they had a receipt showing the cancelled sale to file with their 4473 (their explanation).

THEN I had to fill out a 4473, run my information, come back approved, then user her credit card again, to make the purchase. They said they would file the cancelled receipt, the approved receipt, both 4473's and a note describing the transaction details, together, to cover their posterior.

So there is a way to get this done. I do not agree with it, but the law is the law. We should change it, and we all know how to go about it (and what the likely out come is).

In the mean time, firearm dealers are in the business of making money, not making political statements. They face real fines and prison time if they knowingly violate the law and in some cases, even if they get deemed as "should have known"...

So I will take my political activism to the powers that be, and my money and compliance with the law, to the firearm dealers to buy my gun. I am not going to involve them in MY political statement.

 

[HexHead]

What most of you are missing is that this wasn't a gift or the intention of selling the gun later. The former LEO, was able to buy a Glock using his LEO discount, which his uncle wouldn't have been eligible for. It was prearranged for him to buy the gun for his uncle, and IIRC, the uncle even paid him in advance to buy the gun for him. The LEO lied on the form about being the actual buyer, since the gun was never intended to be for him.

 

[HexHead]

INTENT.

If I go to the store with them, buy the gun, say its mine and for me on the federal form, then turn around there at the counter and say "happy birthday" and hand them the gun... you are most likely going to be talking to the authorities, maybe doing some jail time.

No, that would be a gift, and perfectly legal. It becomes a straw purchase if the birthday boy gave you the money to buy it though.

 

[Arizona_Mike]

what is illegal about doing it often?

4th sticky on the forum: http://www.thehighroad.org/showthread.php?t=699556

Mike

 

[Arizona_Mike]

The LEO lied on the form about being the actual buyer, since the gun was never intended to be for him.

"Lied" with respect to a court created "straw purchase" theory of the transaction that is not part of ordinary understanding, ordinary English, and contrary to other non-firearms-related areas of law.

Mike

PS. The court has ruled and we have to understand (or at the very least memorize in place of understanding) and abide by the law, but to quote Charles Dickens "the law is an ass".

 

[Mainsail]

If the question on the form is, "Are you the actual purchaser?" and you say yes, then you better be paying for the gun with your money. If you're using someone else's money, then you are technically not the purchaser. At least that's my understanding of it.

The real negative here is that one shouldn't need to bring a lawyer with them when they buy anything. Congress shouldn't pass a law that is so convoluted it takes a panel of judges to understand. There should be a law against that!

 

[Tommygunn]

If the question on the form is, "Are you the actual purchaser?" and you say yes, then you better be paying for the gun with your money. If you're using someone else's money, then you are technically not the purchaser. At least that's my understanding of it.

The real negative here is that one shouldn't need to bring a lawyer with them when they buy anything. Congress shouldn't pass a law that is so convoluted it takes a panel of judges to understand. There should be a law against that!

If they did it would take two panels of judges to understand.....

 

[deadin]

If I want to purchase a gun for a friend that I've seen pass a dozen background checks because he's out of town and the shop has a gun he wants that's a no no because then they can't trace it.

How about you pay for it and have the shop hold it until your buddy comes in and fills out the paperwork and NICS check when he picks it up?? (Oh, and be sure to get your money back before he does all this.....)

 

[Frank Ettin]

The LEO lied on the form about being the actual buyer, since the gun was never intended to be for him.

"Lied" with respect to a court created "straw purchase" theory of the transaction that is not part of ordinary understanding, ordinary English, and contrary to other non-firearms-related areas of law....

...The real negative here is that one shouldn't need to bring a lawyer with them when they buy anything. Congress shouldn't pass a law that is so convoluted it takes a panel of judges to understand. There should be a law against that!

Or you could take the trouble to read the 4473 since it's all explained there. See the April 2012 revision of the 4473 and the instructions for question 11.a (emphasis in original):

Question 11.a. Actual Transferee/Buyer:...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....

 

[Frank Ettin]

Moderator Note:

Some posts have disappeared.

Apparently some folks don't understand the difference between getting what you want done in accordance with the law and doing something illegal in a way that minimizes the risk of getting caught and successfully prosecuted.

The former absolutely is a proper subject here. The latter absolutely is not a proper subject for discussion here and will be dealt with.

Remember, there's a difference between following the law and getting away with not following the law.

 

[usmarine0352_2005]

.

So, if he had marked, "not the actual purchaser", he would have been fine?



But wouldn't his NCIC check have been denied then?

 

[barnbwt]

Congress shouldn't pass a law that is so convoluted it takes a panel of judges to understand. There should be a law against that!

What's funny, is the entire purpose of the GCA was to prevent sales of firearms to prohibited persons across state lines, and yet, we have the government openly claiming authority to use the law for the purposes of registering sales to everybody dealing through FFLs (register; as in, making an accurate list for the sole purpose of making the list). Which is further funny seeing as congress specifically forbade them from pursuing this line of action. And SCOTUS bought off on it!

The most telling line of all...
"No piece of information is more important under federal firearms law than the identity of a gun's purchaser" --Kagan

"The Justice Department, seeking to uphold the two lower court rulings against Abramski, argued that Congress always sought to identify the ultimate gun purchasers but did not want to intrude on private transactions."
The second part of the sentence is blatantly contradictory of the anti-registry law, and the fact that the 'obscuring/straw purchasers' who transfer the gun after the FFL sale are by definition doing private transactions (albeit illegal ones). I can see why this was a 5-4 decision, since gun issues were actually at the heart of this case (the DV one earlier was more about the nature of 'domestic violence' than gun stuff)

I get the impression the nature of the case prevented it from being argued from a stronger perspective that might have yielded a more favorable outcome. Instead of saying "the BGC was moot since he was approved anyway," which accepts as truth that it was a straw purchase, it should have been based more around defeating the 'straw' accusation; that it could not have been a straw purchase since both parties of the sale dealt through an FFL via the background check (ergo, the 'end purchaser' of the firearm was not unknown to, nor unvetted by, the FFL dealer)

It seems the real root problem with the 4473 form here, is that it traps buyers into making legally binding oaths unnecessarily, and does not give sufficient options for the full breadth of what would be deemed 'acceptable/lawful behavior' by most people. Why does the money aspect matter at all if the recipient's ID is the gold nugget? After all, the "tax" aspect of the sale is satisfied by the inter-state FFL transfer regardless, so the ATF's justification for poking its nose into the issue should technically stop there. The ATF can't have the issue both ways (registration and taxation).

If the sole purpose of the practice of an FFL transfer is to record the end user, shouldn't the form merely require the recipient be present, vetted, and recorded? This would allow guns to be intentionally bought as gifts for others, or on behalf of others, with none of this obnoxious legal vagueness that perpetually confounds and terrifies gun buyers. The act of intentionally not bringing the true recipient in to be reviewed would then be the crime, which makes much more sense, because this would be an intentional act to obscure the recipient, which is what we're told the GCA is intended to punish.

All this line of 'prevention' and 'crime control' talk itself clashes horribly with the actual purpose of the NFA, and the GCA which draws upon the same justification for its authority. The NFA was a revenue measure, which is why illogical/arbitrary mechanisms were justified under it (government has great latitude in how it can raise revenue), but now it is universally regarded as a social welfare issue, in which one would think the bar for public utility and fairness would be set a bit higher.

We really need another McDonald case to probe the base justification for these federal infringements, but obviously not with the court we have today.

TCB

 

[barnbwt]

So, if he had marked, "not the actual purchaser", he would have been fine?



But wouldn't his NCIC check have been denied then?

Precisely. It's a Catch 22, because the sale as Abramski wanted it is not legal under our statute system. It apparently matters not that there is precious little justification for the system itself being constructed to make an acceptable/lawful-under-different-circumstances transaction a federal crime. To me, it's the court basically agreeing that congress can arbitrarily vote to ban certain types of gun transactions with impunity. For example, barring you from transferring a gun to anyone for 2 months after purchase (which, if it was in clear legal writing, would at least be useful for our side in determining what prosecutory bounds the ATF actually operates within, since they'll never say plainly)

TCB

 

[gc70]

I am disturbed that a bureaucratically-created statement requirement can constitute a crime when the statement concerns an act (a "straw purchase") that is not itself illegal.

 

[Arizona_Mike]

Or you could take the trouble to read the 4473 since it's all explained there. See the April 2012 revision of the 4473 and the instructions for question 11.a (emphasis in original):

​

I have read it multiple times* (the link you posted appears to be dead), but instructions are not the statute, are they?

It was not long ago that they changed the residency requirements on the form 4473 instructions when they found out that they had invented them from whole cloth.

Mike

*- Every time I have provided the written statement described in the second paragraph of the instructions for Question 1, the dealer tells me they have never heard of such a thing, which surprises me. Employees don't even know what to do with it.

 

[JRH6856]

Judges are often criticized for "legislating from the bench." But it's really not the proper role of a court to decide if the result is good or bad. It's the job of a court to apply the the law and applicable precedent to decide the case.

How does that square with Kagan's statement quoted in Post#3:

"The statute’s language is thus best read in context to refer to the actual rather than nominal buyer. This conclusion is reinforced by this Court’s standard practice of focusing on practical realities rather than legal formalities when identifying the parties to a transaction."​

 

[HexHead]

.

So, if he had marked, "not the actual purchaser", he would have been fine?



But wouldn't his NCIC check have been denied then?

Most likely the dealer wouldn't even run it with a no on that question. In fact, that's the one question on the form that if you accidentally answer it incorrectly, you can't correct it along with initials and date. You have to do the entire form over again.

 

[Frank Ettin]

Judges are often criticized for "legislating from the bench." But it's really not the proper role of a court to decide if the result is good or bad. It's the job of a court to apply the the law and applicable precedent to decide the case.

How does that square with Kagan's statement quoted in Post#3:

"The statute’s language is thus best read in context to refer to the actual rather than nominal buyer. This conclusion is reinforced by this Court’s standard practice of focusing on practical realities rather than legal formalities when identifying the parties to a transaction."​

Apples and oranges.

Kagan is referring to the principles that apply when construing a statute and deciding how, given its language, a statute applies to a fact situation. A court will also look at the substance of a transaction, not just its superficial form.

In any agency or proxy transaction, the agent or proxy is the nominal participant. But in substance, the actual participant is the principal on whose behalf the agent or proxy is acting.

That's not "legislating from the bench." That's application of long accepted principles of agency law to understand the true nature of a transaction and thus understand how a law should apply to the transaction.

 

[lilguy]

So, you tell your wife to get you a mini 14 for Christmas. She goes and buys it and fills out the 4473 how? If she says the guns for her she's lying on a federal form. If she says no she can't by the gun?

 

[usmarine0352_2005]

.

Well, how bad is if that we lost this one?

 

[JRH6856]

So, you tell your wife to get you a mini 14 for Christmas. She goes and buys it and fills out the 4473 how? If she says the guns for her she's lying on a federal form. If she says no she can't by the gun?

If the gun is intended to be a gift, and she is the intended giver, then she is the actual purchaser since she can't give it is a gift without first purchasing it.

 

[Midwest]

I find this interesting.......



"Biden says Administration Doesn't Have Time to Prosecute People Who Lie on Background Checks"

http://www.nraila.org/news-issues/a...cute-people-who-lie-on-background-checks.aspx

""And to your point, Mr. Baker, regarding the lack of prosecutions on lying on Form 4473s, we simply don't have the time or manpower to prosecute everybody who lies on a form, that checks a wrong box, that answers a question inaccurately." That's right: Biden said the administration just doesn't have time to prosecute crimes (felonies punishable by up to a 10-year prison sentence) under existing laws, but is proposing a host of sweeping new laws. "


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