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View Full Version : Was this a straw purchase? SCOTUS hears arguments 1/22/2014


six seven tango
10-15-2013, 10:33 PM
Is it a straw purchase when both purchasers can legally own a firearm? story (http://bearingarms.com/u-s-supreme-court-to-hear-straw-purchase-case/)

In the Fall of 2009, Petitioner Bruce Abramski’s
elderly uncle decided he wanted a gun to protect himself
inside his home. He went to Abramski for advice because
Abramski was a former police officer and had experience
with firearms. Abramski told his uncle that he received
a law enforcement discount at gun stores and offered to
buy the gun for his uncle to save him some money. App.
3a; J.A. 548-559.1

Abramski’s uncle then spoke to three different
licensed gun dealers near his home to determine whether
Abramski could buy the gun for him. All three gun
dealers told Abramski’s uncle that what he and Abramski
proposed was perfectly legal—Abramski would simply
need to buy the gun in his hometown in Virginia, fill
out the necessary ATF forms, undergo the necessary
background check, and then transfer ownership of the
gun to Abramski’s uncle at a licensed dealer near his
uncle’s home in Pennsylvania, where Abramski’s uncle
could fill out the necessary paperwork and undergo his
own background check. App. 3a; J.A. 558.

After determining that the gun transfer would be
legal, Abramski’s uncle sent him a check to cover the cost
of the gun. Abramski then went to a local gun store and
bought the gun. petition for cert (http://api.viglink.com/api/click?format=go&key=bc941e3763153dcab459cab96c9770e4&loc=http%3A%2F%2Fwww.thehighroad.org%2Fshowthread. php%3Fs%3D1fb0be6ee6cb43f8393e8c97fadc7f8c%26t%3D7 31794&v=1&libId=e5adf9f4-97fb-438a-8852-ff9fb9a51a5c&out=http%3A%2F%2Fsblog.s3.amazonaws.com%2Fwp-content%2Fuploads%2F2013%2F09%2FAbramski-Petition-for-Writ-of-Certiorari.pdf&ref=http%3A%2F%2Fwww.thehighroad.org%2Fforumdispla y.php%3Ff%3D4%26s%3Dca7cd1dda69e8c560a8b39cea49c4d 6e%26&title=SCOTUS%20to%20hear%20Straw%20Purchase%20case %20-%20THR&txt=petition%20for%20a%20writ%20of%20certiorari&jsonp=vglnk_jsonp_138190049987012)

Interestingly, in the circuit splits, the 9th actually got it right. :eek:

Sounds to me like ATF is over reaching it's authority...again.

707electrician
10-15-2013, 11:02 PM
There is no reason this situation should be considered a straw purchase

Josh3239
10-15-2013, 11:22 PM
Absolutely not a straw purchase.

CBR_rider
10-16-2013, 1:03 AM
I had forgotten about this case, glad to hear it is going to SCOTUS...

9M62
10-16-2013, 1:07 AM
How did he get caught in the first place?

six seven tango
10-16-2013, 8:32 AM
How did he get caught in the first place?

When he went to do the transfer to his uncle, he was listed as the seller. ATF probably saw that along with the fact that he had just purchased it in another state and concluded, wrongly, that it was a straw purchase. The all knowing, all powerful ATF never stopped to consider the fact that if something illegal was afoot, they would have never bothered to transfer it to the uncle. This is a prime example of why people don't trust background checks, etc.

ddestruel
10-16-2013, 11:29 AM
When he went to do the transfer to his uncle, he was listed as the seller. ATF probably saw that along with the fact that he had just purchased it in another state and concluded, wrongly, that it was a straw purchase. The all knowing, all powerful ATF never stopped to consider the fact that if something illegal was afoot, they would have never bothered to transfer it to the uncle. This is a prime example of why people don't trust background checks, etc.

believe iirc from reading the suit that one of the two was accused of bank robbery and the gun was confiscated as evidence yada yada yada they then dropped the robbery charges because he only looked like the perp, but pursued the straw purchase charge.

straw purchase has always been a goofy one to me. friend calls and says hey i see a beuatiful A5 at this gun show. he offers to buy it go through the process bring it home then go to another ffl and transfer it to the friend and compelte the transaction. he purchased it through legal channels and took possession, he owns it but with the intention of passing it on via another sale to a friend. no different then me purchasing a car for a friend out of state and hauling it home and completing a second transaction at home. he had the intention to resell but using an FFL for the transfers a background check occured both times, fees were paid etc. so it not a under the table type deal...... hmm could be interesting .

pc_load_letter
10-16-2013, 12:43 PM
But here in CA, if my father in law (a LEO) purchased an off-roster handgun and then sold it to me, many here would consider that a straw purchase.

Will this effect the case of those officers in Sacramento (i think) who were recently prosecuted?

kaligaran
10-16-2013, 12:47 PM
I would imagine the transfer of money to buy the gun is the detail of this case that is problematic.

If the nephew would have purchased it with his own money then given it as a gift or sold it to his uncle after the fact then there would be no question it was legal.

Since both are able to purchase and own a firearm legally, I still don't see how it could be ruled a straw purchase. It'll be interesting to follow.

I hadn't heard about this case, thanks for posting OP.

Librarian
10-16-2013, 1:38 PM
Under the current law - which is being challenged here - the legal status of the two parties, both being eligible to buy and own guns, is not the issue. (Yes, that is the common understanding, but the common understanding is not technical enough.)

The transfer of a gun to an ineligible has its own set of crimes.

What is at issue here is the answer to question 11a on the 4473 (http://www.atf.gov/files/forms/download/atf-f-4473-1.pdf) - Are you the actual buyer of the firearm(s)? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person.

dreyna14
10-16-2013, 2:25 PM
Under the current law - which is being challenged here - the legal status of the two parties, both being eligible to buy and own guns, is not the issue. (Yes, that is the common understanding, but the common understanding is not technical enough.)

The transfer of a gun to an ineligible has its own set of crimes.

What is at issue here is the answer to question 11a on the 4473 (http://www.atf.gov/files/forms/download/atf-f-4473-1.pdf) -

However, does the second 4473 not nullify the first?? The "are you buying it for another person" only applies to the purchase for which THAT 4473 is filled out for. At leaset that's how my ignorant a** sees it.

Ubermcoupe
10-16-2013, 2:32 PM
Link to SCOTUS granting cert?

19K
10-16-2013, 2:42 PM
from my understanding of what a straw purchase is, this is not a straw purchase.

Librarian
10-16-2013, 3:18 PM
Link to SCOTUS granting cert?

Scotusblog - http://www.scotusblog.com/2013/10/court-to-rule-on-greenhouse-gases/ and
http://www.scotusblog.com/case-files/cases/abramski-v-united-states/?wpmp_switcher=desktop

from my understanding of what a straw purchase is, this is not a straw purchase.

Which is why this case has gone to the Supreme Court; as already noted, the 'common understanding' of 'straw purchase' is different from the way it is being prosecuted.

However, does the second 4473 not nullify the first?? The "are you buying it for another person" only applies to the purchase for which THAT 4473 is filled out for. At leaset that's how my ignorant a** sees it.

The first transfer is where the problem occurred; the second transfer does not 'cure' the first problem.

monk
10-16-2013, 3:36 PM
But here in CA, if my father in law (a LEO) purchased an off-roster handgun and then sold it to me, many here would consider that a straw purchase.

Will this effect the case of those officers in Sacramento (i think) who were recently prosecuted?

The issue here would be that you are "loopholling" around the handgun roster.

pc_load_letter
10-16-2013, 3:47 PM
The issue here would be that you are "loopholling" around the handgun roster.

Sure, but is that defined in law? I really do not see the difference in that versus single shot exemption. SSE has discovered a "loophole" has it not?

RMP91
10-16-2013, 4:26 PM
This should have been an "open and shut" case.

Both parties are legally able to purchase and possess firearms, so where's the argument that this was a straw purchase?

Before the internet, these kinds of transactions occurred all the time. One party is from one state who's interested in a gun that's for sale in another state. The other party is much closer to the area where the gun is for sale and can get it for the other party. Both parties are "legal" so unless the gun in question is an unregistered NFA or stolen police/military property I don't see what the problem is.

Ubermcoupe
10-16-2013, 4:29 PM
Scotusblog - http://www.scotusblog.com/2013/10/court-to-rule-on-greenhouse-gases/ and
http://www.scotusblog.com/case-files/cases/abramski-v-united-states/?wpmp_switcher=desktop

Thanks. I was looking for a calendar date earlier and didn’t see anything.

Hopefully this will settle it once and for all :thumbsup:

The Court also granted review of a second case: on the legality under federal law of the owner of a gun selling it to someone else, if the new owner can have a gun legally. That case is Abramski v. United States (12-1493). However, the Court followed its recent pattern of refusing to hear constitutional challenges to gun control laws under the Second Amendment, turning aside a Maryland case seeking to expand the personal right to have a gun beyond the home (Woollard v. Gallagher, 13-42).

Librarian
10-16-2013, 4:42 PM
Sure, but is that defined in law? I really do not see the difference in that versus single shot exemption. SSE has discovered a "loophole" has it not?

No. SSE is an explicit exception in the Penal Code - see the SSE sticky and PC 32100 - while a LEO purchase for resale to avoid the Roster is illegal via 27515 27515. No person, corporation, or dealer shall sell, loan, or
transfer a firearm to anyone whom the person, corporation, or dealer
knows or has cause to believe is not the actual purchaser or
transferee of the firearm, or to anyone who is not the one actually
being loaned the firearm, if the person, corporation, or dealer has
either of the following:
(a) Knowledge that the firearm is to be subsequently sold, loaned,
or transferred to avoid the provisions of Section 27540 or 27545.
(b) Knowledge that the firearm is to be subsequently sold, loaned,
or transferred to avoid the requirements of any exemption to the
provisions of Section 27540 or 27545.

Librarian
10-16-2013, 4:45 PM
This should have been an "open and shut" case.

Both parties are legally able to purchase and possess firearms, so where's the argument that this was a straw purchase?



To repeat, as applied, the eligibility of the ultimate receiver of the gun is not the question, it's whether the original purchaser bought it for himself or on behalf of (in this case, with the money of) another person.

I'm not defending this. Read the filings, and wait for the Supreme Court to rule.

Apocalypsenerd
10-16-2013, 5:07 PM
What are the chances of a scrutiny ruling on this case?

fiddletown
10-17-2013, 9:22 AM
What are the chances of a scrutiny ruling on this case?Probably zero. The Second Amendment does not appear to have been raised in the Fourth Circuit nor is it touched upon in the petition for a writ of certiorari (http://sblog.s3.amazonaws.com/wp-content/uploads/2013/09/Abramski-Petition-for-Writ-of-Certiorari.pdf).

Current law, in most Circuits, on straw purchases is roughly as follows:

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, (http://www.atf.gov/files/publications/download/p/atf-p-5300-4.pdf) 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 --


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


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 key 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" (http://thelawdictionary.org/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).

chrisn
10-17-2013, 4:59 PM
I think this is a dangerous case to take to SCOTUS. It gives an opening for the Court to uphold the law as having a rational basis (no heightened scrutiny) and serving as a bad precedent for more important 2nd Amendment cases.

On the one hand it is silly to to make it a crime to do in two steps what might legally be done in one. On the other hand, I think the gov't has the right to punish people for providing false information on a 4473. I mean, the ID of the person who is paying for the gun and expects to get it shortly is pretty fundamental to the overall objectives of the background check system....

Think about it: the nephew thwarted the gov't legitimate interest (if you concede that background checks are kosher) in not selling a gun destined to an ineligible owner. That the uncle would have passed a background check is kind of beside the point. The gov't has the right to check the background of the ultimate owner up front.

CSACANNONEER
10-17-2013, 5:16 PM
Buying a firearm with the specific intent to resell (even for what was paid for it or at a loss) requires a FFL. The guy wasn't a FFL holder so.... but that's a different crime all together.

fizux
10-17-2013, 5:18 PM
Think about it: the nephew thwarted the gov't legitimate interest (if you concede that background checks are kosher) in not selling a gun destined to an ineligible owner. That the uncle would have passed a background check is kind of beside the point. The gov't has the right to check the background of the ultimate owner up front.Actually, the uncle DID pass a background check. The subsequent xfer was done via 01 FFL as well, so no one ever had possession of the firearm without being checked.

Even under rational basis, what government interest is served by banning a one-time transaction like this?

fizux
10-17-2013, 5:29 PM
Buying a firearm with the specific intent to resell (even for what was paid for it or at a loss) requires a FFL. The guy wasn't a FFL holder so.... but that's a different crime all together.
A dealer is engaged in the business of buying and reselling. A one-time transaction where someone buys something for a family member expecting to be reimbursed at cost is not engaged in a business.

The whole straw-buyer thing was to ensure that the intended recipient is not skirting NICS. The uncle passed the background check before receiving the firearm via FFL PPT, so exactly what governmental interest is being served here?

This goes too far. If we applied the same logic elsewhere, every marriage is a conspiracy to engage in prostitution.

fiddletown
10-17-2013, 6:16 PM
I think this is a dangerous case to take to SCOTUS. It gives an opening for the Court to uphold the law as having a rational basis (no heightened scrutiny) and serving as a bad precedent for more important 2nd Amendment cases....I doubt that's a problem. The Second Amendment apparently wasn't raised in the Fourth Circuit. I'd expect the focus to be on the materiality of the misstatement on the 4473.

CSACANNONEER
10-17-2013, 6:18 PM
A dealer is engaged in the business of buying and reselling. A one-time transaction where someone buys something for a family member expecting to be reimbursed at cost is not engaged in a business.

The whole straw-buyer thing was to ensure that the intended recipient is not skirting NICS. The uncle passed the background check before receiving the firearm via FFL PPT, so exactly what governmental interest is being served here?

This goes too far. If we applied the same logic elsewhere, every marriage is a conspiracy to engage in prostitution.

So, you've never been married. Dating with one party paying for the date could be considered prostitution but, marriage???????/ LOL.

chrisn
10-17-2013, 7:09 PM
Actually, the uncle DID pass a background check. The subsequent xfer was done via 01 FFL as well, so no one ever had possession of the firearm without being checked.

Even under rational basis, what government interest is served by banning a one-time transaction like this?

First, let me be clear that the DA should never have charged the guy here, as the facts suggest a pretty venial violation.

But I think the government has an interest in the integrity of the background check PROCESS and is entitled to ask (and get truthful answers to) pertinent questions. That uncle was SUBSEQUENTLY checked (and passed) should not be an excuse for nephew to conceal the economic buyer even though he BELIEVED (but arguably could not have known) that uncle was a suitable owner. Gov't is entitled to truth and to request additional disclosures/assurances regarding the subsequent xfer before permitting the initial sale.

In real world, however, (and as noted above) it would be unjust to punish this as harshly as a lie that, if true, would, ipso facto, make the initial sale unlawful (i.e., lie about prior felony conviction).

six seven tango
10-17-2013, 10:33 PM
But I think the government has an interest in the integrity of the background check PROCESS and is entitled to ask (and get truthful answers to) pertinent questions. That uncle was SUBSEQUENTLY checked (and passed) should not be an excuse for nephew to conceal the economic buyer even though he BELIEVED (but arguably could not have known) that uncle was a suitable owner. Gov't is entitled to truth and to request additional disclosures/assurances regarding the subsequent xfer before permitting the initial sale.

The problem with the whole 4473 issue is that if the nephew had answered no to question 11a, he would not have been able to buy the gun at his discount price, which was the only "devious" thing going on here. There needs to be a way to do something like this without running afoul of the govt. It should not be a crime to pass on a good deal to a friend or relative when you find one.

Let's change it up a bit. Say I'm at a gun show and come across a hard to find gun that I know my uncle (or friend for that matter) has been looking for. He's in another state and the seller is unwilling to ship. Why should I not be allowed to buy it for my him if I know/have good reason to believe that he is not a prohibited person and will pass the background check when I transfer it to him.

QQQ
10-18-2013, 8:26 AM
Giving good folks yet another reason to skip the DROS altogether.

fizux
10-18-2013, 8:32 AM
So, you've never been married. Dating with one party paying for the date could be considered prostitution but, marriage???????/ LOL.
Shhhhh, keep your voice down... she's in the next room.

I had a W&T prof that used to say he and his wife had been married for 10 happy years... and 40 years in total.

First, let me be clear that the DA should never have charged the guy here, as the facts suggest a pretty venial violation.

If we have to rely on the arbitrary discretion of a gov't official to determine whether something is a felony, or will be excused as acceptable behavior, then we are headed in the wrong direction.

That uncle was SUBSEQUENTLY checked (and passed) should not be an excuse for nephew to conceal the economic buyer even though he BELIEVED (but arguably could not have known) that uncle was a suitable owner. Gov't is entitled to truth and to request additional disclosures/assurances regarding the subsequent xfer before permitting the initial sale.
1. As long as the person isn't prohibited, why is the USG entitled to know at xfer to the nephew? What's wrong with the USG knowing at the xfer to the uncle? Remember, the USG isn't supposed to be collecting registration info or maintaining a registration system, and the sole purpose of NICS is to verify that the xfer is not to a prohibited person.
2. The nephew doesn't need to "believe" or "know" anything about whether the uncle was prohibited, because he went through a FFL. Even if the uncle were prohibited, there still wouldn't have been an issue, because in that case the FFL wouldn't have released the gun to the uncle.

This case is a perfect example of why so many people are in favor of background checks, but oppose the passing of associated legislation with a bunch of other hooks. Twenty years ago, the Brady-NICS deal was that it was supposed to be cheap, instant, and never ever **ever** supposed to be used for registration, tracking, or to collect anything other than verification that the recipient is not a prohibited person.

Now, you say the justification for prosecuting this person is that the USG should know about the uncle at the nephew's purchase even if the nephew transfers through the uncle's FFL later. That kills the entire transaction, because the uncle is in another state. So much for the "background checks won't impact law abiding citizens" argument.

Sorry, the hooks are too deep. You can't use "keep guns out of the hands of felons" as an excuse to make it economically infeasible to exercise a constitutional right. Next thing you know, long guns will be subject to the current handgun roster, which by the way will have no guns on it; HSCs will be may-issue, relabeled FOIDs, and have an annual renewal fees of $500*.

* unless you wish to add the $500 to your political contribution, in which case the fees will be waived.

robcoe
10-18-2013, 9:05 AM
I think we can agree that under any sort of common sense this would not be a straw purchase(one person bought a gun, undergoing a background check in the process, and sold it to someone else, who also went through a background check), but prosecutors are not really logical, they get something in front of them they want a conviction for something, no matter how little sense it makes.

Full Clip
10-18-2013, 9:25 AM
After all the pointless legal bills, time and effort are added up, I think we can agree that the nephew is probably really regretting his attempt to take advantage of his LE "discount"...

SWalt
10-18-2013, 9:39 AM
]I think this is a dangerous case to take to SCOTUS. It gives an opening for the Court to uphold the law as having a rational basis (no heightened scrutiny) and serving as a bad precedent for more important 2nd Amendment cases.[/B]

On the one hand it is silly to to make it a crime to do in two steps what might legally be done in one. On the other hand, I think the gov't has the right to punish people for providing false information on a 4473. I mean, the ID of the person who is paying for the gun and expects to get it shortly is pretty fundamental to the overall objectives of the background check system....

Think about it: the nephew thwarted the gov't legitimate interest (if you concede that background checks are kosher) in not selling a gun destined to an ineligible owner. That the uncle would have passed a background check is kind of beside the point. The gov't has the right to check the background of the ultimate owner up front.

Or...apply strict scrutiny and strike down the entire process. :)

Ain't gonna happen.

This is simply lying on a Federal Form. But for SCOTUS to take it up, makes one wonder.

fr33domfightr
10-18-2013, 9:39 AM
It's really about trying to get a discount. Sheesh! As others have said, a straw purchase is when one buys for another, who isn't allowed to purchase.

Librarian
10-18-2013, 10:53 AM
It's really about trying to get a discount. Sheesh!

As others have said, a straw purchase is when one buys for another, who isn't allowed to purchase.

As to the first, that seems to be the case here.

As to the second, kindly read the filings and the rest of the thread: the Feds argue that the eligibility of the ultimate receiver is not relevant. Since that seems to be different in different circuit courts of appeal, this case is at SCOTUS.

chrisn
10-18-2013, 7:08 PM
I think the split opinion on this thread comes down to "Malum in se" versus "Malum prohibitum"-- fancy law school latin for things that are crimes because they are inherently wrong versus things that are crimes because they "break the rules" without being morally wrong or directly causing harm.

Nephew broke the rules, but caused no harm and did nothing "immoral." Some people find it counterintuitive to have crimes like this. In general, these are the paternalistic type laws that create a framework to reduce risks or promote behavior the state prefers.

nastyhabts26
10-18-2013, 7:39 PM
This world has gone to heck in a hand bag when a parent or spouse can no longer buy a gun as a gift to their child or spouse or an adult child buy his or her parent a firearm as a present because it is a straw purchase.
My wife wants a new handgun and I can't buy it for her for fear of breaking the law and going to jail and losing my right to own firearms.

fiddletown
10-18-2013, 7:47 PM
The gun wasn't a gift. The uncle was paying for it.

cr250chevy
10-18-2013, 8:44 PM
I'm sure the intent of the transfer form's question, "Are you the actual buyer of the firearm(s)? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person." is NOT to prevent legal purchases on the behalf of another, to later be legally transferred into said person's possession.
To charge otherwise, as in this case (unless there are other undisclosed details), is pure over-reach, over-reaction, poor interpretation of law, targeting law abiding citizens... simply stated, Pure Bull*****. This is sad day when ordinary citizens are targeted simply because they are exercising their 2nd Amendment rights. I am truly saddened...

How did they even find out about this transaction?

fiddletown
10-18-2013, 10:56 PM
I'm sure the intent of the transfer form's question, "Are you the actual buyer of the firearm(s)? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person." is NOT to prevent legal purchases on the behalf of another, to later be legally transferred into said person's possession....You might be sure, but let's see some evidence. I see no reason to be sure.

The statement on the 4473, "You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person." is pretty clear, straightforward and unequivocal.

anthonyca
10-18-2013, 11:36 PM
Under the current law - which is being challenged here - the legal status of the two parties, both being eligible to buy and own guns, is not the issue. (Yes, that is the common understanding, but the common understanding is not technical enough.)

The transfer of a gun to an ineligible has its own set of crimes.

What is at issue here is the answer to question 11a on the 4473 (http://www.atf.gov/files/forms/download/atf-f-4473-1.pdf) -

What does that do to all the people who post on here about buying a gun for their spouse/GF/BF? Sometimes people post about their wife buying them that specific gun they wanted which puts in writing that the person bought it for someone else.

I see it as he bought it to give to someone else but he did buy it legally and do a BG check, so in essence he performed everything exactly as one would who purchase a gun for one's self. He then legally transferred it. But it doesn't matter how we see it, these laws are BS.

Was this man actually charged with a felony?

fiddletown
10-18-2013, 11:56 PM
What does that do to all the people who post on here about buying a gun for their spouse/GF/BF? Sometimes people post about their wife buying them that specific gun they wanted which puts in writing that the person bought it for someone else....A gift is fine, but in this case, it wasn't a gift.

...But it doesn't matter how we see it, these laws are BS.

Was this man actually charged with a felony?Welcome to real life.

But we'll see what the Supreme Court has to say about this.

Librarian
10-19-2013, 12:26 AM
Scotusblog - http://www.scotusblog.com/2013/10/court-to-rule-on-greenhouse-gases/ and
http://www.scotusblog.com/case-files/cases/abramski-v-united-states/?wpmp_switcher=desktop


Just a reminder - the filings from the government and the appellant have a lot of information on the law here - whatever understanding you may think you have would be much improved by reading the arguments.

prometa
10-21-2013, 12:22 PM
I think the defendant is making the wrong argument. Perhaps my interpretation is tortured logic, but, buying a firearm and undergoing a NICS transfer, then transferring the firearm via an FFL 01 to another individual does not constitute you acting as agent for the person you transfer the firearm to.

Consider a real estate transaction as an analogy. My real estate agent, acting on my behalf, represents me and information about me to many individuals, not the least of which is the mortgage company. She represents me, and not herself, during the transaction.

In this case before SCOTUS, it was as if my real estate agent purchased the home herself, using her credit and income to qualify for the mortgage, filed the relevant transfer paperwork to be recorded by the county, and took title of the home. Then she went through the entire process again, this time acting as seller. In that hypothetical process, I must now use my own information to requalify for a mortgage in my name, using my credit, and my finances, then file all of the paperwork to transfer it to me.

While the agent might make the process easier on me because she can find the home I want and buy it, then sell it to me instead of me looking for the home myself, in this case, the person is not acting as my agent, and although I'm not sure, would likely not have the same fiduciary duty to me when acting as seller of the home she now owns.

With firearms, in California at least, it is impossible to follow the legal procedure to buy a firearm and then transfer it AND act as agent for someone else, in my opinion. You are the actual buyer of the firearm and qualify for the purchase using your own information. Your intent afterward should be immaterial.

If the defendant had just given his uncle the firearm, he'd be committing a separate crime. The sentence should be increased if one knowingly gives a prohibited, or suspected prohibited, person a firearm.

In the circumstances of this case, the nephew was the actual buyer. Upon transfer at the FFL, he became the seller and the uncle was the actual buyer. The prohibited status (or not) of the uncle is immaterial and I think the court is considering the wrong issue.

fiddletown
10-21-2013, 12:28 PM
I think the defendant is making the wrong argument. Perhaps my interpretation is tortured logic, but, buying a firearm and undergoing a NICS transfer, then transferring the firearm via an FFL 01 to another individual does not constitute you acting as agent for the person you transfer the firearm to.

Consider a real estate transaction as an analogy. ...That's only because you don't fully understand the law of agency.

The defendant in this case is represented by legal counsel who probably much better than you understands the law of agency and also is most likely far more qualified than you to decide how to best represent his client's legal interests.

09rubicon
10-21-2013, 1:05 PM
The only thing the two are guilty of is beating bad pricing and misusing a discount (thats just my opinion).

The problem with this is what effect it may have on other purchases. Currently if I order a crate of Nagants to hand pick the one or three that are the best and sale the rest it perfectly legal. If the BATFE gets their way i am stuck with a crate of Nagants. So I either have to keep them all or just "hope" I get a good one when i order.

Librarian
10-21-2013, 1:13 PM
The only thing the two are guilty of is beating bad pricing and misusing a discount (thats just my opinion).

The problem with this is what effect it may have on other purchases. Currently if I order a crate of Nagants to hand pick the one or three that are the best and sale the rest it perfectly legal. If the BATFE gets their way i am stuck with a crate of Nagants. So I either have to keep them all or just "hope" I get a good one when i order.

That strikes me as entirely irrelevant here.

The crux of the government's argument in the appealed case is approximately 'who is the actual buyer?' If you buy a crate of Nagants with your own money, you shouldn't have a 'straw purchase' problem, though there might be some questions raised about reselling the ones you do not want, were you to do that too often for the local BATF office's taste.

The point of the appeal here is to find out whether the government's argument should prevail; we know that it has prevailed in the past.

09rubicon
10-21-2013, 1:29 PM
That strikes me as entirely irrelevant here.

The crux of the government's argument in the appealed case is approximately 'who is the actual buyer?' If you buy a crate of Nagants with your own money, you shouldn't have a 'straw purchase' problem, though there might be some questions raised about reselling the ones you do not want, were you to do that too often for the local BATF office's taste.

The point of the appeal here is to find out whether the government's argument should prevail; we know that it has prevailed in the past.

As in most cases your most likely right. My thought was that I am buying more than I need/want with every intention to sell the rest. At least according to my local BATFE office that is perfectly legal as part of collecting and trying to find the best specimens. I was just thinking how the government will try to obfuscate this down the line and use it to limit other types of transactions.

nicki
10-21-2013, 3:04 PM
I had lost all hope that the US Supreme court would take any 2nd amendment cases.

Perhaps the Supreme court really wants to first limit the scale of how much the government can regulate the ownership and transfer of arms among non-prohibited persons.

The "legislative intent" of the GCA1968 was to ban interstate trafficking of guns to prohibited persons.

Of course the GCA 1968 was written when the Federal government didn't recognize that the 2nd amendment was a individual right that was binding on the state's via the 14th amendment.

The "Heller ruling" was far more expansive than what Alan Gura asked for and perhaps this case could open the door to establish that if you are not a prohibited person, that you have a right to acquire functional arms with few if any restrictions.

The government will be in the position to argue that the government has a compelling interest to regulate interstate transfers of arms between non prohibited people when they use the same federal background check in all states.

Let's see what happens by next June.

Nicki

CWDraco
10-21-2013, 3:25 PM
this is a clear case of why gun laws need to be federal and not vary from State to State.

The only reason this is an issue is because some States do not force buyers to go through a FFL and separate background check. Without this the original buyer is the only person "tracked" by the government. If the buyer sells it to a prohibited person, that's a crime. If he sells it to another legal owner or is buying it for another legal person that isn't a crime

This is about as stupid as when I saw a FFL kick a husband & wife out of his shop when the woman pulled the credit card out of her purse and handed it to her husband. He claimed it was then a "straw buy".

Librarian
10-21-2013, 6:38 PM
I think it's time to let the Supreme Court have its say; when they come out with an opinion, we can revisit this.

Emphasis added 1/22/2014

Librarian
01-08-2014, 8:40 PM
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).
Oral arguments Jan 22, 2014

http://www.scotusblog.com/case-files/cases/abramski-v-united-states/

Librarian
01-22-2014, 1:37 PM
ScotusBlog has the recap of today's oral arguments http://www.scotusblog.com/2014/01/argument-recap-when-compromise-is-the-problem/#more-204323
At a time when gun rights vs. gun control continues to roil the national conversation about violence, the closest the Court is getting to that debate this Term is a case about an attempt by Congress to keep guns out of the wrong hands by regulating ”straw purchasers” — buyers who go to gun dealers to purchase guns for someone else. But the more the Justices and two lawyers talked Wednesday, the clearer it became that the loophole may have widened, not closed. Even Al Capone, apparently, could get a gun through a loophole, if he were still around.
...
The seeming lack of clarity in the law — and the concessions the government had had to make about what it did not outlaw — were continuing problems during the argument of the government’s lawyer, Assistant to the Solicitor General Joseph R. Palmore.

ETA Transcript of oral arguments now up at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-1493_2135.pdf - hat-tip to Dave Hardy