SCOTUS to Hear Straw Purchase Case

[WildBill]

You are all assuming that the intent of the law was to prevent people from giving or selling guns to persons who can not purchase them legally. What if the intent of the law was to have a legal record of people who possess handguns [i.e. gun registration]?

[Shoot_First]

I expect to get flamed but, he signed the form saying he was the buyer and he knew that he was buying it for someone else. When you sign that form you are taking an oath. He violated the law to save a few bucks for a family member. I think he is going to get burned. The other issue which will probably also get me flamed is the discount that LEO get. I don't get any discounts from Glock or any other firearm company for all of the years I served in the military. I respect our LEO but their getting a discount means I pay more. I get a discount for my CHL based on age... I don't think I should. As a senior citizen I can probably afford things better than my younger associates.

Since this was a Glock it was likely purchased under the Blue Label Program. Rotor, if you are retired military, you qualify for the program. Buds in a Glock Blue Label FFL dealer. This is an extract on the program from Glock's web site:

GLOCK is proud to offer the exclusive Blue Label program to support those who protect and serve communities across the U.S. and around the world. Those who qualify will receive a discount on any GLOCK pistol of their choice.
Those who qualify include: Sworn Law Enforcement officers, including Federal, State, County, & City (Includes retired L.E. officers with "retired" credentials); EMT’s, Fire Fighters, Volunteer Fire Fighters, and Paramedics; Military personnel including Reservists and National Guard with I.D. (Includes retired Military with "retired" credentials); Corrections Officers, including Parole and Probation Officers; State Licensed Security Companies (Loomis, RAM, etc.); State Licensed Armed Security Officers; Court Judges, District Attorneys and Deputy District Attorneys; and LE Academy Cadets with enrollment documentation from the Academy.

[EEllis]

Exactly. Tough to draw the line. But in this case, he bought it with the express purpose of reselling it, and that would be a violation of the letter, and the spirit, of the law.

Is it? Over at http://armsandthelaw.com/ David Hardy posted this about the issue.

I uncovered in my ancient files a BATF "Industry Circular," from 1979, which advises dealers to avoid straw man sales, and in defining them says they are unlawful if the ultimate recipient is a prohibited person, and lawful if the ultimate recipient could legally buy.

My understanding is the laws haven't changed it's the court interpretation of the laws and what makes this case a necessity for SCOTUS is that different circuits have ruled different ways.

Had Abramski been prosecuted in a court in the Fifth
or Ninth Circuits, he would not have been convicted. As the
Fifth Circuit has explained Ҥ 922(a)(6) criminalizes false
statements that are intended to deceive federal fi rearms
dealers with respect to facts material to the ‘lawfulness
of the sale’ of fi rearms. . . . Thus, if the true purchaser can
lawfully purchase a fi rearm directly, § 922(a)(6) liability
(under a ‘straw purchase’ theory) does not attach.” United
States v. Polk, 118 F.3d 286, 295 (5th Cir. 1997).

http://sblog.s3.amazonaws.com/wp-conten ... iorari.pdf

But in this case, the Fourth Circuit joined the
Sixth and Eleventh Circuits in expressly rejecting that
reasoning and holding that “[t]he identity of the purchaser
is a constant that is always material to the lawfulness of
the purchase of a fi rearm under § 922(a)(6).” App. 15a-16a
(emphasis in original).

Regardless of which way you think the court should decide it's obvious that a SCOTUS decision is warranted to reguralize Fed law and how it's to be applied.



It is also worth noting that the Uncle went to three dealers in his hometown to ask about the legality of the transaction and all the dealers told him that it was legal. The nephew purchased the handgun and then took the firearm to a gun store in his uncles town and they transferred the handgun to his uncle. There was no attempt to deceive the feds or hide who had the handgun just an attempt to save an old guy a few bucks.

[EEllis]

You are all assuming that the intent of the law was to prevent people from giving or selling guns to persons who can not purchase them legally. What if the intent of the law was to have a legal record of people who possess handguns [i.e. gun registration]?

Well in this case it easy to say because the author of the law has stated the purpose of said law. As a matter of fact the law didn't even make straw purchases illegal. The courts later created a "legal fiction" to fill the loophole in the law to make such straw purchases illegal. This man was convicted of illegally purchasing a gun when if he had disclosed to the dealer that he would be reselling it to his uncle he still could have bought the gun. Sure he checked an incorrect box and maybe he could have committed a crime in doing so but that doesn't make the sale illegal just his statement about the purchase.

[WildBill]

It is also worth noting that the Uncle went to three dealers in his hometown to ask about the legality of the transaction and all the dealers told him that it was legal. The nephew purchased the handgun and then took the firearm to a gun store in his uncles town and they transferred the handgun to his uncle. There was no attempt to deceive the feds or hide who had the handgun just an attempt to save an old guy a few bucks.

It may be worth noting, but I don't think it's relevant to the lawsuit.

[WildBill]

My understanding is the laws haven't changed it's the court interpretation of the laws and what makes this case a necessity for SCOTUS is that different circuits have ruled different ways.

Had Abramski been prosecuted in a court in the Fifth
or Ninth Circuits, he would not have been convicted. As the
Fifth Circuit has explained Ҥ 922(a)(6) criminalizes false
statements that are intended to deceive federal fi rearms
dealers with respect to facts material to the ‘lawfulness
of the sale’ of fi rearms. . . . Thus, if the true purchaser can
lawfully purchase a fi rearm directly, § 922(a)(6) liability
(under a ‘straw purchase’ theory) does not attach.” United
States v. Polk, 118 F.3d 286, 295 (5th Cir. 1997).

http://sblog.s3.amazonaws.com/wp-conten ... iorari.pdf

I had not read this. Thanks for posting. We will have to see if the SCOTUS agrees with the "legal fiction".

[WildBill]

You are all assuming that the intent of the law was to prevent people from giving or selling guns to persons who can not purchase them legally. What if the intent of the law was to have a legal record of people who possess handguns [i.e. gun registration]?

Well in this case it easy to say because the author of the law has stated the purpose of said law. As a matter of fact the law didn't even make straw purchases illegal. The courts later created a "legal fiction" to fill the loophole in the law to make such straw purchases illegal. This man was convicted of illegally purchasing a gun when if he had disclosed to the dealer that he would be reselling it to his uncle he still could have bought the gun. Sure he checked an incorrect box and maybe he could have committed a crime in doing so but that doesn't make the sale illegal just his statement about the purchase.

Where is this stated?

[TrackinPat]

This is a crazy case and I am not sure what to think...

[jimlongley]

Exactly. Tough to draw the line. But in this case, he bought it with the express purpose of reselling it, and that would be a violation of the letter, and the spirit, of the law.

Is it? Over at http://armsandthelaw.com/ David Hardy posted this about the issue.

I uncovered in my ancient files a BATF "Industry Circular," from 1979, which advises dealers to avoid straw man sales, and in defining them says they are unlawful if the ultimate recipient is a prohibited person, and lawful if the ultimate recipient could legally buy.

My understanding is the laws haven't changed it's the court interpretation of the laws and what makes this case a necessity for SCOTUS is that different circuits have ruled different ways.

Had Abramski been prosecuted in a court in the Fifth
or Ninth Circuits, he would not have been convicted. As the
Fifth Circuit has explained Ҥ 922(a)(6) criminalizes false
statements that are intended to deceive federal fi rearms
dealers with respect to facts material to the ‘lawfulness
of the sale’ of fi rearms. . . . Thus, if the true purchaser can
lawfully purchase a fi rearm directly, § 922(a)(6) liability
(under a ‘straw purchase’ theory) does not attach.” United
States v. Polk, 118 F.3d 286, 295 (5th Cir. 1997).

http://sblog.s3.amazonaws.com/wp-conten ... iorari.pdf

But in this case, the Fourth Circuit joined the
Sixth and Eleventh Circuits in expressly rejecting that
reasoning and holding that “[t]he identity of the purchaser
is a constant that is always material to the lawfulness of
the purchase of a fi rearm under § 922(a)(6).” App. 15a-16a
(emphasis in original).

Regardless of which way you think the court should decide it's obvious that a SCOTUS decision is warranted to reguralize Fed law and how it's to be applied.



It is also worth noting that the Uncle went to three dealers in his hometown to ask about the legality of the transaction and all the dealers told him that it was legal. The nephew purchased the handgun and then took the firearm to a gun store in his uncles town and they transferred the handgun to his uncle. There was no attempt to deceive the feds or hide who had the handgun just an attempt to save an old guy a few bucks.

I agree, for the most part, but the BATF advisory is not the letter of the law, and that one is ancient history (I'll even bet some BATF agents were born after it) and easily ignored if they choose. The letter of the law says what it says, BATF's interpretation doesn't much matter, and I'll bet that varies a lot from one agent to the next.

Yes, I agree that some regularization is needed, I just hope that SCOTUS sees that there is a clear difference between saying you are buying it for yourself and then turning around and selling it to a criminal, or saying you are buying it for yourself and then selling it to your uncle who passes an instant check.

[EEllis]

It is also worth noting that the Uncle went to three dealers in his hometown to ask about the legality of the transaction and all the dealers told him that it was legal. The nephew purchased the handgun and then took the firearm to a gun store in his uncles town and they transferred the handgun to his uncle. There was no attempt to deceive the feds or hide who had the handgun just an attempt to save an old guy a few bucks.

It may be worth noting, but I don't think it's relevant to the lawsuit.

Well, yes, it is relevant to the the defendants case since in their view, and 2 of the 5 circuits, the intent to deliver a firearm to someone who couldn't buy the gun legally is the defining factor not what you put on the form. The fact that the Govt got all the info, everything they might want on the sales, clearly shows the intent was not to deceive the Govt. Now you may hold with a different interpretation of how the law should be applied but those facts are clearly germane to the argument

[EEllis]

I agree, for the most part, but the BATF advisory is not the letter of the law, and that one is ancient history (I'll even bet some BATF agents were born after it) and easily ignored if they choose. The letter of the law says what it says, BATF's interpretation doesn't much matter, and I'll bet that varies a lot from one agent to the next.

Yes, I agree that some regularization is needed, I just hope that SCOTUS sees that there is a clear difference between saying you are buying it for yourself and then turning around and selling it to a criminal, or saying you are buying it for yourself and then selling it to your uncle who passes an instant check.

The law was written in 1976 and there have been no changes that I know that have any effect on this case. The truth is that the letter of the law allows this and what he has been charged with is a "legal fiction" created by the courts to fill a loophole in the language of the law.

[EEllis]

You are all assuming that the intent of the law was to prevent people from giving or selling guns to persons who can not purchase them legally. What if the intent of the law was to have a legal record of people who possess handguns [i.e. gun registration]?

Well in this case it easy to say because the author of the law has stated the purpose of said law. As a matter of fact the law didn't even make straw purchases illegal. The courts later created a "legal fiction" to fill the loophole in the law to make such straw purchases illegal. This man was convicted of illegally purchasing a gun when if he had disclosed to the dealer that he would be reselling it to his uncle he still could have bought the gun. Sure he checked an incorrect box and maybe he could have committed a crime in doing so but that doesn't make the sale illegal just his statement about the purchase.

Where is this stated?

Go here http://www.scotusblog.com/case-files/ca ... ed-states/ and it gives you all the briefs submited to SCOTUS for this case.

[rotor]

Copied from April 2012 ATF form 4473
Instructions for question 11A
"Question 11.a. Actual Transferee/Buyer: For purposes of this form, you are
the actual transferee/buyer if you are purchasing the firearm for yourself or
otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from
pawn/retrieving it from consignment, firearm raffle winner). You are also the
actual transferee/buyer if you are legitimately purchasing the firearm as a gift
for a third party. 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. The
licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown
goes to buy a firearm with his own money to give to Mr. Black as a present,
Mr. Brown is the actual transferee/buyer of the firearm and should answer
“YES” to question 11.a. However, you may not transfer a firearm to any
person you know or have reasonable cause to believe is prohibited under 18
U.S.C. § 922(g), (n), or (x). Please note: EXCEPTION: If you are picking
up a repaired firearm(s) for another person, you are not required to answer
11.a. and may proceed to question 11.b."


What you are signing
"I certify that my answers to Section A are true, correct, and complete. I have read and understand the Notices, Instructions, and Definitions
on ATF Form 4473. I understand that answering “yes” to question 11.a. if I am not the actual buyer is a crime punishable as a felony under
Federal law, and may also violate State and/or local law. I understand that a person who answers “yes” to any of the questions 11.b. through
11.k. is prohibited from purchasing or receiving a firearm. I understand that a person who answers “yes” to question 11.l. is prohibited from
purchasing or receiving a firearm, unless the person also answers “Yes” to question 12. 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. I further understand that the repetitive purchase of firearms for the purpose
of resale for livelihood and profit without a Federal firearms license is a violation of law (See Instructions for Question 16)."

All this seems pretty clear to me. He is guilty of a straw purchase.

[EEllis]

All this seems pretty clear to me. He is guilty of a straw purchase.

Well it must not be that clear because 2 of the 5 circuit courts have case law that says otherwise. There is also the fact that just because a govt agency prints something up doesn't give it the force of law. The BATF decided on it's own to change the forms and to "create" the question for which the legislature had no input on. Obviously they, BATF, are a licensing agency as well as a law enforcement one so sure they may be able to change regulations and paperwork but should that paperwork automaticly be give the force of law? Pulling someones licence? Maybe. Sending someone to jail? Another thing entirely.

[WildBill]

Where is this stated?

Go here http://www.scotusblog.com/case-files/ca ... ed-states/ and it gives you all the briefs submited to SCOTUS for this case.

Thanks for the link!