SCOTUS & Straw Purchases

[ChrisG]

If he'd given it to his relative, he'd have been fine. If he'd sold it to his relative for the regular street price instead of at a discount, they might have gone after him for engaging in the business without a license, but not "straw purchase". It is precisely these vagaries that need to be eliminated.

If I understand the US Attorney's position correctly from the court documents, it is that anyone receiving a firearm with the intent of immediately transferring it to another specific person is guilty of a crime by virtue of the box check for 11a on the 4473, regardless of whether the ultimate recipient is a non-prohibited person or if a second FFL transfer occurs for the onward transfer. There may or may not be an exception for gifts between immediate family members. Again, I think this particular prosecution is motivated by a desire to get a defendant who skated on bank robbery, rather than a desire to stick it to gun-owners generally. Nevertheless, that is a very broad and dangerous argument to make.

I don't think that the defendant's misuse of Glock's "Blue Label" pricing was a factor in the prosecution. A key piece of evidence was a check from the uncle to the defendant, dated prior to the defendant buying the pistol, with "Glock 19" written in the memo line. The defendant cashed the check shortly after purchasing the Glock 19. Had the check been written out for $ 0.01 or $ 1 million, they would likely still have prosecuted because they could establish intent to purchase on behalf of a third party.

[joshs]

The BATFE is a federal law enforcement organization.

This is a criminal case, with the Plaintiff-Appellee being "The United States of America," and the Defendant-Appellant being Bruce James Abramski, Jr.

"The United States of America" does not refer to the ATF.

BATFE added the "[a]re you the actual transferee/buyer of the firearm" question to Form 4473, and they are responsible for advancing the theory that a person can violate 18 U.S.C. § 922(a)(6) where their intent is to transfer the firearm to a non-prohibited person. So, at least in a way, the court will be ruling in BATFE's favor if it affirms Abramski's conviction. As Tam has pointed out, this is an unclear area of federal firearms law (there is even a circuit split on whether the "actual buyer" has to be prohibited for a conviction under § 922(a)(6)), so it's understandable why the Supreme Court granted cert.

[WDW]

What's really screwy is on the FFL application itself, it clearly states that if you just want to sell guns at gun shows, you don't need an FFL & should not continue with the application process. This means anybody could "be in the business" & buy & sell what they want to who they want so long as business was conducted 1 weekend a month at your city's convention center or wherever shows are held, theoretically of course. I'm sure BATFE would not be so loose with their interpretation.

The law, as it's written, is so vague & so self contradicting, that it basically allows the ATF to go after anyone they want at anytime.....effectively making felons out of perfectly productive law abiding citizens.

[Tamara]

If I understand the US Attorney's position correctly from the court documents, it is that anyone receiving a firearm with the intent of immediately transferring it to another specific person is guilty of a crime by virtue of the box check for 11a on the 4473, regardless of whether the ultimate recipient is a non-prohibited person or if a second FFL transfer occurs for the onward transfer. There may or may not be an exception for gifts between immediate family members.

According to p.4 of the 4473: "You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party." There is no regulatory or statutory requirement for that third party to be a family member.

[Tamara]

What's really screwy is on the FFL application itself, it clearly states that if you just want to sell guns at gun shows, you don't need an FFL & should not continue with the application process. The law, as it's written, is so vague & so self contradicting, that it basically allows the ATF to go after anyone they want at anytime.....effectively making felons out of perfectly productive law abiding citizens.

The FFL requirement was extremely vague before FOPA '86. A lot of latitude was given to ATF regional offices to interpret what exactly constituted being engaged in the business. I seem to recollect that the St. Paul field office was extremely zealous in policing gun shows for anybody who might be selling more than a couple guns in a year.

“Engaged in the business.” This had been widely used to entrap collectors; four to six sales were all it took for a collector to be guilty of engaging in the business of dealing in guns without a license. FOPA changed this by specifically defining “engaging in the business” as “dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit,” which could not include “a person who makes occasional sales, exchanges or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

[WDW]

There are so many millions of guns floating around in the US available for FTF purchase, that IMO the whole idea of background checks & the BATFE just seems like a waste of time. It seems like you only ever see them going after perfectly good, law abiding citizens doing absolutely nothing wrong and completely without criminal intent.

[Tamara]

There are so many millions of guns floating around in the US available for FTF purchase, that IMO the whole idea of background checks & the BATFE just seems like a waste of time. It seems like you only ever see them going after perfectly good, law abiding citizens doing absolutely nothing wrong and completely without criminal intent.

It's the individual battles like the one this case represents that need to be won for us to win this war.

[GardoneVT]

I was similarly unaware of this potential.


The BATFE is a federal law enforcement organization.

This is a criminal case, with the Plaintiff-Appellee being "The United States of America," and the Defendant-Appellant being Bruce James Abramski, Jr.

"The United States of America" does not refer to the ATF.

One of the points alleged by the plaintiff is that the ATF is going beyond the direct lawful text in enforcing the straw purchase statue.Reading the case brief actually helps, dont ya know.

That being established, a victory for our side would represent good news for gun owners in private FFL transfer states like NY and CA.

[Josh Runkle]

If he indeed spent his own money and then resold to his father, I think he'll win.

The .gov has no authority to say who can and cannot possess a firearm (with certain exceptions). The 4473 is only legal because it doesn't not apply to your ability to have the gun, but rather your ability to pay for the gun. Being a "transferee" is only legal in connection with the background check on your ability to pay for the gun.

If I spend my money to buy a gun as a gift for my dad and I fill out 4473: legal. I am the actual buyer who the gun is being transferred to. Ownership is irrelevant. If my dad gives me money to buy a gun for him and I fill out 4473: illegal. I stated that it was my money and that I was picking it up with my money ("are you the actual buyer/transferee?")

What I hope prevails is that the court recognizes the government's ability to control the flow of money, but recognizes their inability to control the flow of guns.

[RoyGBiv]

If he indeed spent his own money and then resold to his father, I think he'll win.

Unfortunately, that's not what happened....

http://www.leagle.com/decision/In%20FCO%2020130123101

In order to implement the transaction, Alvarez sent Abramski a check for $400 on November 15, 2009. The term "Glock 19 handgun" was written in the memo line of the check.

On November 17, 2009, Abramski went to the firearms dealer in Collinsville and purchased a Glock 19 handgun, among other items, paying for them with more than $2000 in cash

The government will certainly argue that since Abramski received payment in advance, and that payment was undeniably to purchase the gun, then it was a straw purchase. His defense will be to argue that the prohibition against straw purchases is intended to stop transfers to prohibited persons. Dicey.