Could This Be Considered a Straw Purchase?

[Aguila Blanca]

Originally Posted by zukiphile

That's correct as a statement of the law on FFL transfers post Abramski, but does not reflect the general concept of a straw purchase.

It's the way "straw purchase" has always been explained to me, since a couple of decades before Abramski. I'm not an FFL, but I have multiple friends who are.

[zukiphile]

Originally Posted by dogtown tom

No, it was the law BEFORE Abramski. Abramski was just the case that made it to SCOTUS.

It wasn't the law at all times prior to Abramski. The dissent cites the shifts in the government's position on the issue.

After Congress passed the Act in 1968, ATF’s initial position was that the Act did not prohibit the sale of a gun to an eligible buyer acting on behalf of a third party (even an ineligible one). See Hearings Before the Subcommittee To Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., pt. 1, 118 (1975). A few years later, ATF modified its position and asserted that the Act did not “prohibit a dealer from making a sale to a person who is actually purchasing the firearm for another person” unless the other person was “prohibited from receiving or possessing a firearm,” in which case the dealer could be guilty of “unlawfully aiding the prohibited person’s own violation.” ATF, Industry Circular 79–10 (1979), in (Your Guide To) Federal Firearms Regulation 1988–89 (1988), p. 78. The agency appears not to have adopted its current position until the early 1990s. See United States v. Polk, 118 F. 3d 286, 295, n. 7 (CA5 1997).

Emphasis added. https://supreme.justia.com/cases/federal/us/573/169/

Abramski is not merely a confirmation of the original bureau position or implementation of the Act. It contradicts earlier bureau positions and enforcement.

Originally Posted by dogtown tom

True, but this thread isn't about having a friend buy you a loaf of bread, but of acquiring a firearm from a licensed gun dealer.

The thread is about understanding both what a straw sale is and what constitutes a material misrepresentation on a 4473. Understanding the agency principles untangles some of the misunderstanding of the topic that arose early in the thread. Those principles underlie correct application of the "true purchaser" requirement.

[JohnKSa]

It may well have been different in the past, and it may well be different at some point in the future, but right now, as it currently stands, a straw firearm purchase and misrepresenting the actual buyer on the 4473 are the same thing.

[44 AMP]

The part that has always confused me is that, if you're standing there, paying for the item, how can you NOT be the actual purchaser??

Now, I understand that the law is written to allow them to ASSUME you're not, based on what they THINK you are going to do with the gun after you buy it, and get most wroth when you say you are the buyer and they decide you're not, but I've always wondered, what part of the law or what legal principle allows them to accuse you of a crime, based on what they think you're going to do, and not on what you have done.

[JohnKSa]

...how can you NOT be the actual purchaser??

1. If you are buying it for someone else with their money then they are the actual purchaser and you are standing in for them during the purchase process.

2. If you are buying it for someone else and they will be repaying you in any way for your services and/or the gun then they are the actual purchaser and you are standing in for them during the purchase process.


You are the actual purchaser if:

1. You are buying the gun for yourself. That is, your goal for the gun is that you will take it home and it will be your possession. That doesn't preclude your changing your mind at some time in the future, deciding that you no longer want to possess it and selling it. But you shouldn't be buying it if your intent, at the time of purchase, is to transfer possession to someone else in exchange for money/goods/services.

OR

2. You are buying the gun as a gift (offered freely with no expectation of payment/repayment/trade/services) for someone else.

[zukiphile]

Originally Posted by 44 AMP

The part that has always confused me is that, if you're standing there, paying for the item, how can you NOT be the actual purchaser??

If you are buying it on behalf of another person, acting as that other person's agent.

If a child is sent by a parent down to the corner store to buy a pack of cigarettes for the parent, then the parent is the actual buyer and the child is just an agent delivering the money and bringing the cigarettes back.

Now, I understand that the law is written to allow them to ASSUME you're not, based on what they THINK you are going to do with the gun after you buy it, and get most wroth when you say you are the buyer and they decide you're not, but I've always wondered, what part of the law or what legal principle allows them to accuse you of a crime, based on what they think you're going to do, and not on what you have done.

I don't think that's a fair description of what an FFL would normally be doing in refusing a transfer. If you and I go to a store, I stand next to you, point to a pistol and say in front of the clerk, "I can't buy that because of my numerous felonies. Buy it for me and I'll pay in the parking lot, OK?", the clerk isn't especially concerned about the crime you would be committing, but the problem he will have by violating the part of 922 that prohibits the FFL transferring to a prohibited person. The rationale is that in this story, you are no more the actual transferee than the child picking up cigarettes for a parent is buying cigarettes.

Presumably, most real situations would be more subtle, but the practical lesson is to not give the FFL a sense that something weird is going on because his default choice is the one that gets him in no trouble.

[zukiphile]

Originally Posted by JohnKSa

You are the actual purchaser if:

1. You are buying the gun for yourself.

That would be more accurate if it read "You are buying the gun on your own behalf". The word behalf does a lot of work in that; this means that you aren't obtaining the gun with agreement and direction from someone else for his possession.

Originally Posted by JohnKSa

OR

2. You are buying the gun as a gift (offered freely with no expectation of payment/repayment/trade/services) for someone else.

Expectation isn't the problem in a straw sale. People in Christmas gift exchanges or take each other out to lunch have some sort of expectation of reciprocity. An agent will have an understanding with his principal of his role in the transaction, not just an expection.

This is not offered for obfuscation. A better understanding of the role of agency should allow a better understanding of what an actual buyer/transferee is.

[JohnKSa]

Expectation isn't the problem in a straw sale. People in Christmas gift exchanges or take each other out to lunch have some sort of expectation of reciprocity. An agent will have an understanding with his principal of his role in the transaction, not just an expection.

Ok--so how would you rephrase the statement to make it more correct?

[Aguila Blanca]

zukiphile, are you proposing that Abramski did NOT purchase the firearm for someone else, using that person's money (or with the prior understanding that the cost would be reimbursed?

[44 AMP]

Ok--so how would you rephrase the statement to make it more correct?

Thinking about it now, it seems that some kind of language specifying the "end user" would make more sense, and be more in line with the common use of language, though the law cares little for that, it seems.

I get the idea of acting as an "agent" for someone else, don't nearly all of us who work for someone else do that every working day??

I just have the idea that if you pay the money, and buy the item, you are the actual purchaser, and how the money got in your pocket doesn't matter, or shouldn't. as it doesn't matter in nearly everything else in life.

I understand the issue with buying something for someone who isn't legally allowed to have it, I just think that the focus on who is doing the purchase as criminal shouldn't be as important as who winds up with the product they can't legally have, and that if the product is something that they can legally have, making its purchase by someone else shouldn't be a crime, and there shouldn't be a "landmine" in the federal form to trap people with. That just seems like a (not so) petty abuse of authority.

I get it, guns are a special case, and the laws applied are often unlike other laws, it is the reality, and I recognize that. I just don't think it ought to be that way. Just one more example of regulating things rather than putting the emphasis where I think it ought to be, on what people DO with things.
Just my opinion. Worth what you paid for it, or probably less...

[JohnKSa]

I just have the idea that if you pay the money, and buy the item...

Two issues with that.

1. You either aren't actually paying the money (someone else is actually paying and you're just going through the motions) or you are paying the money knowing you're going to be reimbursed/compensated in some way for your expense.

2. You aren't the one actually buying the item, it's someone else who is actually buying the item and they are paying for it with you just going through the motions for them.

Think of it this way: Why are you there?

If you are there because YOU want a new gun for yourself (or to give to someone else as a GIFT) then that's fine.

If you are there because someone ELSE wants a new gun and is paying you or otherwise compensating you for going through the motions for them, then that's a problem.

I understand the issue with buying something for someone who isn't legally allowed to have it...

As it currently stands, it does not matter if the person is prohibited or not. If you are there to get someone else a gun (that is not a GIFT to them) that is an offense. If you are there to get yourself a gun then you are fine.

get it, guns are a special case...

Well, sorta, but not really. There are other situations where it is illegal for someone to buy something on behalf of someone else who is not prohibited from making the purchase or possessing the item in question. For example, having someone else go through the motions to purchase a car could be illegal if it is done to circumvent the fact that the actual purchaser has bad credit. By having someone with better credit perform a straw purchase, the actual purchaser gets better financing terms and saves a lot of money. The buyer is not prohibited from possessing the car or buying the car, but what has happened is still against the law because fraud has been committed.

...there shouldn't be a "landmine" in the federal form to trap people with...

The whole FFL dealer setup is, in my opinion, an overstep by the federal government. It's a clever way to get the Feds involved in something that should be the jurisdiction of the states. So I'm not defending the idea of having the federal government involving itself in the purchase of firearms by an individual. That said, I don't think it's reasonable to characterize the "are you the actual buyer" question as a landmine.

The problem isn't the question, the problem comes when people complicate things by trying to answer what they THINK the question is or what they THINK it should be instead of just answering the question. The FFL will explain it if there are questions, but the form itself has an explanatory section that is pretty straightforward if people will just read it and do what it says.

Here's the question: (I have added some emphasis.)

Are you the actual transferee/buyer of all of the firearm(s) listed on this form and any continuation sheet(s) (ATF Form 5300.9A)?
Warning: You are not the actual transferee/buyer if you are acquiring any of the firearm(s) on behalf of another person. If you are not the actual transferee/buyer, the licensee cannot transfer any of the firearm(s) to you. Exception: If you are only picking up a repaired firearm(s) for another person, you are not required to answer 21.a. and may proceed to question 21.b.

Here's the explanatory section that applies: (I have added some emphasis.)

Question 21.a. Actual Transferee/Buyer: For purposes of this form, a person is the actual transferee/buyer if he/she is purchasing the firearm for him/herself or otherwise acquiring the firearm for him/herself. (e.g., redeeming the firearm from pawn, retrieving it from consignment, firearm raffle winner). A person is also the actual transferee/buyer if he/she is legitimately purchasing the firearm as a bona fide gift for a third party. A gift is not bona fide if another person offered or gave the person completing this form money, service(s), or item(s) of value to acquire the firearm for him/her, or if the other person is prohibited by law from receiving or possessing the firearm.

EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith (who may or may not be prohibited). 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 21.a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown buys the firearm with his own money to give to Mr. Black as a gift (with no service or tangible thing of value provided by Mr. Black), Mr. Brown is the actual transferee/buyer of the firearm and should answer “yes” to question 21.a. However, the transferor/seller may not transfer a firearm to any person he/she knows or has reasonable cause to believe is prohibited under 18 U.S.C. § 922(g), (h), (n), or (x).

[Aguila Blanca]

About the only difference between a firearms straw purchase and a straw purchase of tobacco or alcoholic beverages for under-aged people is that buyers don't have to fill out a 4473 to buy cigs or booze.

[zukiphile]

Originally Posted by AB

zukiphile, are you proposing that Abramski did NOT purchase the firearm for someone else, using that person's money (or with the prior understanding that the cost would be reimbursed?

Emphasis added. "For" doesn't really cover Abramski's conduct.

Alvarez accepted Abramski's offer to buy a gun on behalf of Alvarez. Uncle sent Abramski the money by check with a note "Glock 19 handgun" on the check, further evidence of their agreement. Only then did Abramski go to the store, stand at the counter, fill out the 4473 as the actual transferee and get the gun.

Alvarez and Abramski were principal and agent by their specific agreement. The majority in Abramski reasoned that because Alvarez was the principal, he was the true transferee and Abramski was like the child picking up cigarettes for the parent.

Originally Posted by 44 AMP

I get it, guns are a special case,...

Currently, yes. They are special in so many ways.

Originally Posted by JohnKSa

Well, sorta, but not really. There are other situations where it is illegal for someone to buy something on behalf of someone else who is not prohibited from making the purchase or possessing the item in question. For example, having someone else go through the motions to purchase a car could be illegal if it is done to circumvent the fact that the actual purchaser has bad credit. By having someone with better credit perform a straw purchase, the actual purchaser gets better financing terms and saves a lot of money. The buyer is not prohibited from possessing the car or buying the car, but what has happened is still against the law because fraud has been committed.

In that scenario, the disability is the poor credit rating. It's a straw loan because the borrower suffers a disability he sidesteps by use of the straw borrower. That's a classic straw party scenario.

You'll also see these in real estate where a buyer doesn't want the seller's disdain for the buyer to queer an offer. In that scenario, it's the buyer's identity that is the disability.

Originally Posted by JohnKSa

OR

2. You are buying the gun as a gift (offered freely with no expectation of payment/repayment/trade/services) for someone else.

***

Ok--so how would you rephrase the statement to make it more correct?

2. You are buying the gun on your own behalf as a gift for someone else who isn't prohibited from possession.*

Ideally, the gift explanation would be omitted from an explanation of the rule because it isn't an exception to the rule. A gift isn't the subject of an agent/principal relationship. If I buy a bottle of wine to offer you when I come to dinner at your home, I am the true purchaser; I have purchased it to possess and then give to you. I'd expect to get dinner at some point in the evening, but it's still a gift of my bottle of wine.

I understand why the gift explanation is included -- some people will have difficulty with the idea involved and giving several common scenarios is easier for some people to apply. However, it's merely an illustration of the principle, not an exception to it.

Originally Posted by JohnKSa

The whole FFL dealer setup is, in my opinion, an overstep by the federal government.

Indeed.

_________________________
* The latter bolded addition doesn't help explain agency, but does reflect a purported restriction on the transferee's intent at the time of transfer. I include it only to avoid a misunderstanding that the gift scenario is a loophole for giving one's favorite felon a firearm as a gift.

[zukiphile]

Originally Posted by 44 AMP

I just have the idea that if you pay the money, and buy the item, you are the actual purchaser, and how the money got in your pocket doesn't matter, or shouldn't. as it doesn't matter in nearly everything else in life.

I understand the issue with buying something for someone who isn't legally allowed to have it, I just think that the focus on who is doing the purchase as criminal shouldn't be as important as who winds up with the product they can't legally have, and that if the product is something that they can legally have, making its purchase by someone else shouldn't be a crime, and there shouldn't be a "landmine" in the federal form to trap people with. That just seems like a (not so) petty abuse of authority.

I get it, guns are a special case, and the laws applied are often unlike other laws, it is the reality, and I recognize that. I just don't think it ought to be that way.

Emphasis added.

The dissent in Abramski saw the issue similarly, but it was a dissent. The dissent used very conventional legal analysis to argue that the government shouldn't be allowed to argue in 1969 that you are the true purchaser if you are at the counter, cash in hand on behalf of someone else, but then in 2001 argue the opposite. Statutory ambiguities aren't ordinarily supposed to be viewed in a light least favorable to a criminal defendant.

There could be other ways to skin the cat. If I'm a felon and you are my agent, you could buy a firearm from an FFL, declare yourself the true buyer/transferee and pass the firearm on to me, and we are open to charges of having engaged in a conspiracy to violate the Act. That doesn't require importing an agency analysis into the code in order to find that a benign buyer is a criminal. Keeping a straw buyer from working with prohibited people to acquire guns may be a laudable policy goal, but it isn't necessary to convict Abramski since that wasn't what that case was about.

[JohnKSa]

In that scenario, the disability is the poor credit rating. It's a straw loan because the borrower suffers a disability he sidesteps by use of the straw borrower. That's a classic straw party scenario.

You'll also see these in real estate where a buyer doesn't want the seller's disdain for the buyer to queer an offer. In that scenario, it's the buyer's identity that is the disability.

Correct. The point was is that the example I gave (and the one you gave) demonstrates that there are other examples where a straw purchase is illegal even though the buyer is not prohibited from purchasing/possessing. The idea that guns are special--they are the only case where a straw transaction can take place and be illegal even though the actual purchaser is not prohibited from performing the transaction or owning the item in question is demonstrably false as these examples show.

Abramski is not merely a confirmation of the original bureau position or implementation of the Act. It contradicts earlier bureau positions and enforcement.

It may well be true that in the distant past the bureau position and enforcement was different, but it was not different for many years leading up to Abramski.

Regardless of what position the BATF held in times long past, they had taken the position that a straw purchase was equivalent to lying on the 4473 well before the Abramski case came along.

[zukiphile]

Originally Posted by JohnKSa

Correct. The point was is that the example I gave (and the one you gave) demonstrates that there are other examples where a straw purchase is illegal even though the buyer is not prohibited from purchasing/possessing. The idea that guns are special--they are the only case where a straw transaction can take place and be illegal even though the actual purchaser is not prohibited from performing the transaction or owning the item in question is demonstrably false as these examples show.

Then it's good that no one asserted that.

A straw purchase can be illegal where the identity of the buyer is a material misrepresentation and the seller is defrauded even if the buyer can legally possess what he bought, but it isn't the transfer that is illegal, it's the fraud. A straw purchaser may breach constitute a breach of a sale agreement, but that's not categorically illegal in a criminal sense.

The issue isn't whether guns are the only subject matter where an agent as a buyer for a criminally prohibited transferee, but whether the current gun rule is a departure from the general rule.

Two observations:

Straw purchases aren't categorically illegal. In the real estate example, concealment of the true purchaser isn't always illegal. The disability can be nothing more than the buyer's true identity.

There are more disabilities than being prohibited from possession by criminal law. It isn't a crime for a person with the disability of a bad reputation to use an agent to purchase real estate, yet it is still correctly described as a straw purchase.

Originally Posted by JohnKSa

It may well be true that in the distant past the bureau position and enforcement was different, but it was not different for many years leading up to Abramski.

Regardless of what position the BATF held in times long past, they had taken the position that a straw purchase was equivalent to lying on the 4473 well before the Abramski case came along.

It's a stretch to call 17 years prior the "distant past" or "times long past", but that's how long it was between the Bureau changing its position and the Abramski decision.

Dogtown Tom's assertion above is incorrect in two ways.

First, the general concept of a straw purchase involves a disability of the principal. That general principle doesn't prevent legislators from departing from that principle, but that's an adaptation rather than the general rule.

Second, the holding in Abramski wasn't clearly the law the prior to Abramski or else the Sup Ct wouldn't have taken it. It only takes reading Abramski to understand that it wasn't the uniform rule prior to the Abramski decision.

[JohnKSa]

Originally Posted by zukiphile

Then it's good that no one asserted that.

It has been brought up.

I get it, guns are a special case,...

Currently, yes. They are special in so many ways.

Originally Posted by zukiphile

Straw purchases aren't categorically illegal.

That is correct.

Originally Posted by JohnKSa

...in fact in the general case, a straw purchase does not even have to be illegal...

It's a stretch to call 17 years prior the "distant past" or "times long past", but that's how long it was between the Bureau changing its position and the Abramski decision.

How did you arrive at that number? Was 18 U.S.C 922 (a)(6) changed at that point? It looks like that was part of the original 1968 law as far as I can tell.

At any rate, even if we accept that number as accurate, it's still reasonable to say that: "...it was not different for many years leading up to Abramski."

First, the general concept of a straw purchase involves a disability of the principal.

While that is a very common reason for straw purchases, it doesn't have to be the case. A person could have someone do a straw purchase for them to conceal their identity from the seller even though it would be legal for them to do the purchase themselves and the transaction would be expected to proceed without issue. People are often reticent to "go on record" and prefer to keep their identity to themselves even when revealing it wouldn't cause a problem with a transaction. Or, the "disability" could be something as simple as: I don't have the time to drive all the way over there, you go buy it for me.

Second, the holding in Abramski wasn't clearly the law the prior to Abramski or else the Sup Ct wouldn't have taken it.

It would be much easier to argue that it clearly was the law prior to Abramski or he wouldn't have been arrested, prosecuted and convicted and the conviction wouldn't have been upheld at every step through the appeals process--up to and including the Supreme Court.

[zukiphile]

Originally Posted by JohnKSa

How did you arrive at that number? Was 18 U.S.C 922 (a)(6) changed at that point? It looks like that was part of the original 1968 law as far as I can tell.

You are correct; it was part of the original US Code section. What changed was the Bureau's position on what the code means. Polk is a 1997 case in which the government articulated the rule accepted in Abramski in 2014.

I'll observe that the Bureau articulating a position and losing doesn't make it law.

Originally Posted by JohnKSa

It would be much easier to argue that it clearly was the law prior to Abramski or he wouldn't have been arrested, prosecuted and convicted and the conviction wouldn't have been upheld at every step through the appeals process--up to and including the Supreme Court.

It might be easier, but it would also be incorrect. Abramski was taken because of a circuit split, meaning that the rule in Abramski was contradicted in one or more other circuits.

In Polk, the government lost its argument.

Although Section(s) 922(a)(6) on its face does not prohibit "straw purchases," we have nonetheless held that such transactions violate Section(s) 922(a)(6). See, e.g., United States v. Ortiz-Loya, 777 F.2d 973, 979 (5th Cir. 1985). It is clear to us — indeed, the plain language of the statute compels the conclusion — that Section(s) 922(a)(6) criminalizes false statements that are intended to deceive federal firearms dealers with respect to facts material to the "lawfulness of the sale" of firearms. (Emphasis added.) Thus, if the true purchaser can lawfully purchase a firearm directly, Section(s) 922(a)(6) liability (under a "straw purchase" theory) does not attach.

Where you have circuits rejecting the Bureau's newest interpretation of US code, it is incorrect to assert that

Originally Posted by dogtown tom

No, it was the law BEFORE Abramski. Abramski was just the case that made it to SCOTUS.

The Sup Ct took the case because the law was in dispute. I can't say whether the current court or a future court would apply the rule of lenity if they take the issue again.

[JohnKSa]

I'll observe that the Bureau articulating a position and losing doesn't make it law.

Will you also observe that it is not evidence that the position came into being at that point?

For whatever it's worth, Polk's charges were filed in 1995.

More to the point, in the appeal it was noted that the 1994 4473 was markedly different from the 1991 4473.
https://caselaw.findlaw.com/court/us...t/1188031.html

We note a marked difference in the “straw purchase” warning on the reverse side of the August 1994 version of ATF Form 4473 and the April 1991 version of that same form.   The April 1991 warning states that a “straw purchase” may violate federal firearms laws if the licensee knows and has reasonable cause to believe that the true purchaser of the firearm(s) is “ineligible” to make that purchase directly.   By contrast, the August 1994 version of Form 4473 significantly broadens the definition of “straw purchase” transactions:  “A ‘straw purchase’ occurs when the actual buyer uses another person (the straw purchaser) to execute ATF Form 4473 purporting to show that the straw purchaser is the actual buyer.”

That suggests that the BATF decided to push the enforcement of a straw purchase as merely being a misrepresentation of the actual buyer sometime between 1991 and 1994 when the new form came out. Somewhere between 20 and 23 years before Abramski.

It might be easier, but it would also be incorrect. Abramski was taken because of a circuit split, meaning that the rule in Abramski was contradicted in one or more other circuits.

It's not uncommon for circuit courts to disagree--that's hardly evidence that the law Abramski was convicted of was something new. In fact it's good evidence that it had been used in prosecutions before Abramski.

If he had been found not guilty in any of the appeals, it would never have made it to the Supreme Court. You don't appeal not guilty verdicts and you can't be tried again if you are found not guilty. So, it would not only be easier, as you agree, the statement I made is also perfectly correct. The fact that another circuit court, in a different case made a different ruling doesn't call the accuracy of my assertion into question.

Where you have circuits rejecting the Bureau's newest interpretation of US code, it is incorrect to assert that...

That's quite a stretch. Circuits get overturned all the time. In fact, over the past couple of decades or so when SCOTUS takes a case, that's the outcome more often than not.

At the enforcement level the determination was that Abramski was deserving of arrest and prosecution. At every trial and appeal he was found guilty. SCOTUS agreed with his conviction. That's not very good evidence for the idea that the law he was prosecuted under was questionable.

Finally, regardless of all of that, the bottom line at this point is that lying on the 4473 form about the actual buyer constitutes a straw purchase. The BATF, whatever their previous position, has taken that position since sometime before 1994, for at least the last 30 years. And, in case there's any question about the strength of their position, Abramski confirms that the courts will convict, and appeals courts will uphold convictions, based on it.

[zukiphile]

Originally Posted by JohnKSa

Will you also observe that it is not evidence that the position came into being at that point?

Certainly. So the Bureau changed form language between 1991 and 1994, tried to enforce it a year later, and lost? If you really think that the difference between 17 and 20 years makes you more comfortable with "distant past" or "times long past", have at it.

Originally Posted by JohnKSa

More to the point, in the appeal it was noted that the 1994 4473 was markedly different from the 1991 4473.
https://caselaw.findlaw.com/court/us...t/1188031.html
We note a marked difference in the “straw purchase” warning on the reverse side of the August 1994 version of ATF Form 4473 and the April 1991 version of that same form.   The April 1991 warning states that a “straw purchase” may violate federal firearms laws if the licensee knows and has reasonable cause to believe that the true purchaser of the firearm(s) is “ineligible” to make that purchase directly.   By contrast, the August 1994 version of Form 4473 significantly broadens the definition of “straw purchase” transactions:  “A ‘straw purchase’ occurs when the actual buyer uses another person (the straw purchaser) to execute ATF Form 4473 purporting to show that the straw purchaser is the actual buyer.”
That suggests that the BATF decided to push the enforcement of a straw purchase as merely being a misrepresentation of the actual buyer sometime between 1991 and 1994 when the new form came out. Somewhere between 20 and 23 years before Abramski.

And lost it, so Abramski wasn't "just the case that made it to SCOTUS", correct?

Instead, the Bureau undertook a novel reading of the Act and materiality that contradicted its earlier position, lost in the fifth circuit and worked with that loss on that point of law for another 17 years.

Originally Posted by JohnKSA

It's not uncommon for circuit courts to disagree--that's hardly evidence that the law Abramski was convicted of was something new.

Do you believe anyone here has asserted that?

Where there is a circuit split on an issue, there isn't a singular "the law" on that issue. That Abramski was taken because of and resolved the split is the assertion.

Originally Posted by JohnKSa

If he had been found not guilty in any of the appeals, it would never have made it to the Supreme Court. You don't appeal not guilty verdicts and you can't be tried again if you are found not guilty. So, it would not only be easier, as you agree, the statement I made is also perfectly correct. The fact that another circuit court, in a different case made a different ruling doesn't call the accuracy of my assertion into question.

No, John. Your statement isn't "perfectly correct"; that's why I corrected it.
Your rendition above omits the information you already know that contradicts it. Since you now know of a 1997 holding in another circuit that stood for 17 years prior to Abramski, you are aware that the rule in Abramski was disputed and not "clearly the law".

That's quite a stretch. Circuits get overturned all the time.

Which is why it is special pleading to assert that the circuit court decision in Abramski is dispositive of the rule prior to Abramski.

Originally Posted by JohnKSa

At the enforcement level the determination was that Abramski was deserving of arrest and prosecution. At every trial and appeal he was found guilty. SCOTUS agreed with his conviction. That's not very good evidence for the idea that the law he was prosecuted under was questionable.

Had anyone argued that arrest, prosecution, trial, appeal and upholding the appeal were the evidence that the law was questionable, that would have been incisive. On review, you'll notice that isn't the information that confirms Tom's assertion as error.

Originally Posted by dogtown tom

No, it was the law BEFORE Abramski. Abramski was just the case that made it to SCOTUS.

The Bureau's shift in policy is undisputed. For decades the Bureau's position on materiality was at least as permissive and consistent with ordinary agency principles as the court in Polk and the four vote minority in Abramski. It isn't correct to cast the Abramski decision is a mere continuation of the status quo ante on the issue.

Now you raise the issue of whether the Abramski decision is questionable. That it is questionable should be apparent. First, that the bureau itself interpreted the very same code differently until the 1990s indicates ample ambiguity as viewed by the Bureau itself. Second, ordinary application of lenity would not permit the government to convict based on that ambiguity. Third, 5-4 decisions are uniquely susceptible to later overturning or limiting, which is one reason that as great as Heller was, it was comforting to see the 6-3 vote in NYSPRA. Fourth, the majority rationale in Abramski is policy driven, much like the majority reasoning in Raich; upholding a result on policy ground despite conventional legal concepts and the text of the law being applied can get votes, but is analytically weak.

[Aguila Blanca]

IMHO (as a layperson, not as an attorney), any time there is a circuit split that's (to me) prima facie evidence that the law in question is OBVIOUSLY not clear.

[JohnKSa]

...any time there is a circuit split that's (to me) prima facie evidence that the law in question is OBVIOUSLY not clear.

There's far more to circuit splits than lack of clarity--it might even be accurate to say that clarity is rarely the issue in circuit splits.

That aside, it's one thing to say a law is not clear. It's quite another to claim it didn't exist until SCOTUS confirmed it.

Since you now know of a 1997 holding in another circuit that stood for 17 years prior to Abramski, you are aware that the rule in Abramski was disputed and not "clearly the law".

1. You know that circuit rulings only affect the courts under them. It would be possible to argue that under that circuit's jurisdiction it wasn't "clearly the law" after that ruling, but that argument wouldn't apply anywhere else.

2. Since you read my post, you know what I said was:

"It would be much easier to argue that it clearly was the law prior to Abramski or he wouldn't have been arrested, prosecuted and convicted and the conviction wouldn't have been upheld at every step through the appeals process--up to and including the Supreme Court. "

There is absolutely nothing in that statement that is incorrect. He was arrested, prosecuted and convicted and then lost every appeal. Based on an existing law.

On review, you'll notice that isn't the information that confirms Tom's assertion as error.

Of course it isn't. Because it's not an error.

It's simply nonsense to claim that the SCOTUS decision established a law. SCOTUS can overturn laws or confirm laws, but they can't create them. The law clearly existed before Abramski, that's why he was prosecuted and convicted in the first place. The validity of that law was confirmed by the appeals and finally by SCOTUS.

Second, ordinary application of lenity would not permit the government to convict based on that ambiguity.

Every court that dealt with Abramski's case, including SCOTUS disagrees with you.

Now you raise the issue of whether the Abramski decision is questionable.

What I did was point out that even if the BATF's interpretation ever was questionable, that is clearly no longer the case. You can have a personal opinion that disagrees with SCOTUS and the BATF on this law, but it doesn't change reality.

[zukiphile]

Originally Posted by JohnKSA

There's far more to circuit splits than lack of clarity--it might even be accurate to say that clarity is rarely the issue in circuit splits.

That doesn't bear on whether a circuit split indicated a lack of clarity in the law on an issue. A circuit split on an issue indicates a diversity on that point, not an unequivocal state.

Originally Posted by JohnKSA

That aside, it's one thing to say a law is not clear. It's quite another to claim it didn't exist until SCOTUS confirmed it.

Here, you argue again against a claim no one made. Why?

Originally Posted by JohnKSa

1. You know that circuit rulings only affect the courts under them. It would be possible to argue that under that circuit's jurisdiction it wasn't "clearly the law" after that ruling, but that argument wouldn't apply anywhere else.

You probably meant that circuit court precedent only binds the courts in that circuit, which would be right.

I would encourage you to review the thread. The matter under discussion with Spats was not about authority within a circuit.

Originally Posted by JohnKSa

2. Since you read my post, you know what I said was:

"It would be much easier to argue that it clearly was the law prior to Abramski or he wouldn't have been arrested, prosecuted and convicted and the conviction wouldn't have been upheld at every step through the appeals process--up to and including the Supreme Court. "

There is absolutely nothing in that statement that is incorrect. He was arrested, prosecuted and convicted and then lost every appeal. Based on an existing law.

Yet that isn't your whole assertion, is it? Your assertion includes "it clearly was the law prior to Abramski". Now that you are aware of the circuit split prior to the Abramski decision, it doesn't make sense to assert that the Abramski rule was the law, i.e. the clear single settled rule, prior to resolution of the circuit split. That's the incorrect part.

Originally Posted by JohnKSa

Of course it isn't. Because it's not an error.

John, it's easy to glean from reading Abramski that the Bureau itself had earlier held a position in line with general agency principles rather than departing from them, and that it was the Abramski decision that established the Bureau's departure from that as the law on that issue.

One cannot simultaneously recognize that and fail to see the error in tom's assertion. The idea that the rule in Abramski was uneqivocally the law on this issue, and Abramski's case just made it to the Sup Ct so they could let everyone know this point wasn't previously disputed in the law should set off your nonsense meter.

Originally Posted by JohnKSa

It's simply nonsense to claim that the SCOTUS decision established a law. SCOTUS can overturn laws or confirm laws, but they can't create them.

No one has argued that the Sup Ct created the Act, a law. Courts do establish the law, just as they did in Abramski. Every case that is resolved establishes the law of that case. Heller, McDonald and NYSRPA all established important points of law. Courts can establish the law on a point as in Roe, and amend or even reverse the law in that point as in Dobbs. The Sup Ct isn't limited to affirming or striking US Code. It can and does resolve party positions about how laws are interpreted and applied as it did in Sackett v. EPA.

I am providing an explanation on this to resolve the equivocation introduced on whether the Court establishes a law or the law.

Originally Posted by JohnKSA

What I did was point out that even if it ever was questionable, that is clearly no longer the case.

Every case that isn't appealed has the issues in that case decided. That doesn't make the resolution of those issues unquestionable as noted above.

[JohnKSa]

That doesn't bear on whether a circuit split indicated a lack of clarity in the law on an issue. A circuit split on an issue indicates a diversity on that point, not an unequivocal state.

A diversity on the point doesn't indicate that a position is not valid law either.

Here, you argue again against a claim no one made. Why?

The assertion that the position was law before Abramski is not incorrect. That is a claim you have made several times now.

I would encourage you to review the thread. The matter under discussion with Spats was not about authority within a circuit.

Good advice on the review. I didn't respond to something you said about a comment by Spats, I responded to something you said about one of my comments.

Now that you are aware of the circuit split prior to the Abramski decision, it doesn't make sense to assert that the Abramski rule was the law, i.e. the clear single settled rule, prior to resolution of the circuit split. That's the incorrect part.

Ah, I see. You are adding the word "settled" to my assertion and then claiming it's incorrect based on that strawman. Laws do not come into being at the time they are settled. SCOTUS rulings either overturn or confirm EXISTING laws, they do not create them.

The BATF position was clearly law prior to Abramski or he could not have been convicted of it.

The idea that the rule in Abramski was uneqivocally the law on this issue...

Hmmm... Interesting how when you add words to what I said it changes the meaning.

If you want to address my comments, it would be more productive to do so. Putting words in my mouth and then addressing the resulting strawman is pointless.

Courts do establish the law, just as they did in Abramski.

Courts can confirm or overturn existing laws. If there is no existing law to work with there's no case and there's nothing for them to rule on.

That doesn't make the resolution of those issues unquestionable as noted above.

Pretty sure that SCOTUS (and therefore every court in the land) would disagree with you that this issue remains questionable.

[dogtown tom]

Originally Posted by zukiphile

Dogtown Tom's assertion above is incorrect in two ways.

First, the general concept of a straw purchase involves a disability of the principal. That general principle doesn't prevent legislators from departing from that principle, but that's an adaptation rather than the general rule.

Second, the holding in Abramski wasn't clearly the law the prior to Abramski or else the Sup Ct wouldn't have taken it. It only takes reading Abramski to understand that it wasn't the uniform rule prior to the Abramski decision.

No, its not incorrect.
"General principle" is irrelevant. Again, this isn't a loaf of bread you buy for your neighbor.
And again, a "straw sale" is not illegal. You can buy guns any day of the week on behalf of others. No federal law concerns itself with "straw sales" between nonlicensees.

The crime that occurs is when you complete and sign the Form 4473, attesting that you are the actual buyer/transferee. The instructions on the Form 4473 make it very clear that the only exemption is when the buyer/transferee intends to make a bona fide gift of that firearm. Unlike the example above, this would occur only at a licensed dealers premises.

If the potential buyer/transferee disagrees with the instructions and requirements on that Form 4473, lying isn't the way to address that.

Whether ATF took a different view in the '70's or '80's is irrelevant. The Brady Law (passed in 1993) that required a background check prior to a dealer transferring a firearm, made it clear that the actual buyer needed to undergo that check, not someone else.

Whether the law was clear or unclear didn't really matter to Bruce Abramski. He lied first when he presented expired LE credentials to get a Blue Label discount on that Glock, then again when he lied on the 4473.