Well, ain’t that just shiny. Seems the ATF decided on it’s own, without any supporting law, that straw purchases were illegal, and added that question to the 4473 back in ’95. There is now a case before the supremes about it, Bruce J. Abramski v. United States. The potential for an epic spanking of the BAFTE is in the offing. If we needed any more evidence of their lawlessness, we’d have it here.
The View From North Central Idaho
Ramblings on explosives, guns, politics, and sex by a redneck Idaho farm boy who became a software engineer living near Seattle.
Very, very interesting. I hadn’t heard about that implication of the case until today. If it is indeed valid and the case breaks the right way, we could have a decision here that is huge for the gun-rights position.
Heller and this case kinda shows how critical it is that the Supremes don’t shift to the left. 2014 and 2016 are going to be crucial for us.
Maybe some discussion of gift giving is in order. It has been my understanding that giving a gun as a gift, that buying a gun for that purpose, was always considered legal so long as the recipient was not known to be a “prohibited person”. Private sales have been treated the same, and so we’re really splitting hairs when talk of a “Straw Purchase”. I’m either buying a gun “for me” that I intend to give away soon after I walk out of the store with it, or I’m buying “for someone else”, which is practically the same thing. It’s all in the choice of words, and maybe a matter of whether any remuneration is involved, and of course it’s all thoroughly insane.
Back when my kids were raising livestock and at times when I’ve kept a few ducks or other fowl, I did in fact make several straw purchases, usually one or two bales at a time, and no special paperwork or background checks were involved.
You like that term “prohibited person” as used here in the land of the free and home of the brave?
This case is a little different. A cop bought a gun, using his police discount, for his uncle. So Abrahamski, the cop, bought it and turnd right around and sold it at cost to his uncle, who could legally buy it but wanted to save a few bucks by buying indirectly. Apparently, there is no law against that. It’s a fiction, some shit the AFT dreamed up and stuck on the 4473 nearly 20 years ago. THAT would be cool to see them get their pee-pee stepped on good and hard.
Basically yes. He’s charged with lying on the form when he checked the box that he’s the real buyer, when in fact he was intending to pass it on to his uncle.
The fact that the interstate transfer went through an FFL who ran a background check on the uncle – in full compliance with the law – doesn’t seem to be material to the case.
In short, at worst it’s a paperwork violation; he checked the wrong box on the 4473 in order to get the sale (checking the other option would be an instant “No.”). Now we get to find out if the question itself is required and/or supported by current law as passed by Congress, and if so (big “if” there), if it was Congress’ intent to make the act of buying a gun intending to sell it to another “qualified buyer” (non-prohibited person) a crime, and if so (another big “if”), if that is consistent with the Second Amendment to the Constitution.
Personally, I think the answer is “No” on all three, but we’ll have to see how the case plays out. I’m tentatively hoping they’ll find that issue #2 is a “No” (seeing as he complied fully with GCA ’68 regarding the interstate transfer), in which case it should follow that #1 is a “No” (if it wasn’t Congress’ intent to criminalize this behavior, then ATF has no legal reason/authority to ask), but then I expect they’ll decline to address #3.
The other thing I’d like to know – it might be settled already, but it wasn’t part of the oral arguments – is this: How in the Hell did ATF get involved in the first place!? Was it an anonymous tip, or did they notice the serial number showing up twice in rapid succession … on 4473 forms they shouldn’t legally have until AFTER an investigation is launched?
Former cop was given money by his uncle prior to the purchase with which to buy the gun. After transferring the gun to his uncle through a FFL in PA, his uncle wrote a receipt for the amount he paid the former cop.
Former cop was being investigated as a suspect in a bank robbery. During the execution of a search warrant related to that investigation the receipt from his uncle was discovered.
The lesson I take from this is if you’re going to commit an act that the feds claim is a crime (the instructions for the relevant question on the 4473 are pretty clear, and the feds consider false statements on one of their forms a crime even if the underlying behavior really shouldn’t be) don’t maintain a paper trail for them to follow.
Maintain as few paper trails as you can for nearly everything. I pay my rent, utilities, gasoline, guns, and lots of other things with cash.
I can see many ways in which the paper trails can be used against you but almost no manner it which it helps you.
It’s great paying cash for rent, until you get the landlord who claims you didn’t pay them. Or they claim you paid them late and they want the late fees. No paper trail on some of these things can be a very bad thing.
I have receipts. I just don’t keep them for more than a few months.
Sounds like the left side of SCOTUS will focus on his perjury on the ATF form.
I don’t think the government has, or should have, the authority to require anyone to sign a form or swear/affirm anything for any reason (much less to exercise a right), but I haven’t heard if or how the victim addresses the perjury issue.
Perjury about something they had no authority to ask should be moot. If they asked about your religious faith, sexual orientation, banking institution, or name of the person you lost your virginity to, lying about it should have no consequence because they have to power to do so, much like evidence found during an illegal search is inadmissible in court, because they were not authorized to search there. I hope it, AND the BATFE, gets slapped down hard.
Just wish there were specific consequences for the individual people that decided and did this.
This is also proof that there are too many laws. Nobody CAN know them all, so you can’t follow them, which means they will be selectively enforced against “trouble-makers.”
Shouldn’t matter. Cases get thrown out of court all the time when cops find a big stash of drugs (or other contraband) but didn’t have probable cause to go looking for it. Same thing applies here – if no authority exists to ask the question in the first place, answering it incorrectly or falsely should have no import on the matter.
I’m thinking of the implications for the ‘specifically-prohibited-in-federal-law-but-we’re-going-to-make-you-do-it-anyway-because-we-said-so’ long gun reporting requirement for south-border states that came into being after ‘Fast and Furious’.
Not quit sure I follow. Elucidate?
In some border states, FFLs now have to report the sale of more than some small number for long guns to the same individual – same as must be done for handguns elsewhere in the country. But there’s no actual law that requires this – it’s a local BATFE demand.
I wonder if the real purpose here is to provide cover for official lawbreakers. For example, Fast and Furious was all about straw purchases, right? So if that rule is tossed out, the F&F crooks are off the hook. Then there was some big wheel — Biden? — who did a straw purchase for a family member. Of course he got away with it (“the aristocracy of pull”) but still, that was technically illegal if that rule is valid.
Only the the intended final recipient of the gun was a lawful purchaser. Big difference. In F&F, they were intending to get them into the hands of criminals, and that is clearly against the intent of GCA ’68, and an entirely different matter.
They were knowingly exporting as well, which violates a host of not-particularly directly 2nd Amendment related laws as well. The Feds are explicitly Constitutionally authorized to regulate commerce across our national border, they can’t just handwave violations of those regs (or ignore them as they have been doing in F&F).
Getting rid of straw purchase questions on the form won’t help with those crimes.
I’m still confused about the legality of asking in the first place. What’s the difference between a law passed by congress and a regulation added by a government agency? ATF added the ‘multiple long gun reporting in border states’ thing without a law being passed. How is this different?
While the uncle’s use of an FFL to transfer the gun from the original purchaser to himself may seem a side issue, I think it is the heart of the case.
The uncle clearly was a legal purchaser who went above and beyond requirements to avoid doing anything illegal, and so demonstrated his lack of illegal intent by doing so.
The original purchaser also was a legal purchaser.
The question then becomes how the two consecutive legal sales were illegal in any way.
The answer turns on the ability to prove a negative: that the original purchaser did not intend to keep the gun himself, but to transfer it to another immediately.
So what is “immediate” in a legal sense? I once watched a guy ahead of me in line at McBride’s Guns in Austin TX sell a handgun to the store, then I immediately bought it from the store, having decided that the $50 markup was OK for an interesting Colt 1903. Did the buyer (the gun store) commit a crime by selling it to me? I don’t think so.
The basis o
Abramski’s uncle sent him a check with the words “Glock 19 handgun” in the memo line prior to Abramski purchasing the gun. Also prior to the purchase, Abramski consulted with three different FFLs about the legality of what he hoped to do. This case may be unique in how easy the defendant made it for the prosecution to prove intent.
Mikee — while I do not agree with teh ATF’s reasoning in this case, nor their authority to ask questions about “violations” they made up out of whole cloth, your situation is _explicitly_ different.
BY LAW, a gun dealer is “in the business” of buying and selling guns, and the _default_ assumption is that he is buying guns _with_the_intent_ of reselling them. That’s why he pays the FFL fees for a “business” FFL, has special recording requirements (also, by law), and has different restrictions on what he can and cannot do when buying, selling, transporting, or storing guns acquired under his FFL.