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Old June 17, 2014, 12:44 PM   #26
Unlicensed Dremel
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So bottom line, you still CAN give a gift gun (using your money, not the recipient's money), or you canNOT do so? Or did this decision leave the answer to that question gray/unclear?
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Old June 17, 2014, 12:50 PM   #27
Frank Ettin
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Quote:
Originally Posted by Unlicensed Dremel
So bottom line, you still CAN give a gift gun (using your money, not the recipient's money),...
That did not change.

As Tom Servo wrote:
Quote:
...this ruling doesn't change anything. It simply confirms an interpretation the ATF has been using since 1992.
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Old June 17, 2014, 12:54 PM   #28
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interesting discussion.

thankfully, it was a case centered around a statute, so if Congress wants to clean things up, it's a matter of passing a bill, not a matter of amending the Constitution. won't happen in the next 2 years, but it can be done.

i suspect the ATF likes the uncertainty of what constitutes a straw (when was the check written, when did the parties decide what to do with the gun...), so if they want to make a case, they can do so.

so.....who wants to give me a new gun?

thanks for the PM Frank.
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Old June 17, 2014, 01:07 PM   #29
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Quote:
Originally Posted by 1-DAB
...i suspect the ATF likes the uncertainty of what constitutes a straw (when was the check written, when did the parties decide what to do with the gun...), so if they want to make a case, they can do so...
Actually there is no uncertainty about the legal definition, at least under the interpretation ATF has used since 1992 and which has now been confirmed by SCOTUS.
  1. You're buying the gun for yourself (you're the actual buyer) if --

    1. You're buying the gun with the intention of giving it to someone as a gift.

    2. You're buying the gun with the intention of keeping it, but later you decide to sell it.

    3. You're buying the gun to sell, but you have no buyer. In that case you have to find a buyer and are taking a risk that you will be able to sell it to someone at a price acceptable to you.

  2. But you are not the actually buyer (making it a straw purchase) if --

    1. You've made prior arrangements with a particular person that you will buy the gun and then transfer it to him, and he

      • gves you the money for it, or

      • agrees to reimburse you.

    2. In that case, based on well established legal principles, you are not buying the gun for yourself. Rather you are buying the gun as the agent of (or proxy for) the actual purchaser.

  3. So since you (we hope) know what you are doing, you know if it's an illegal straw purchase.

  4. Yes, it's a question of intent. But many crimes involve questions of intent. Prosecutors frequently successfully use all sorts of circumstantial evidence to prove intent to the satisfaction of juries.
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Old June 17, 2014, 01:08 PM   #30
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Thank you Frank, and Tom.
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Old June 17, 2014, 01:08 PM   #31
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Quote:
So bottom line, you still CAN give a gift gun (using your money, not the recipient's money), or you canNOT do so? Or did this decision leave the answer to that question gray/unclear?
As Frank said, sure you can, as long as the gift doesn't run into any other problems- interstate transfers, prohibited persons, state level bans/restrictions etc.
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Old June 17, 2014, 01:31 PM   #32
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It has been mentioned that he had the uncle do a background check to receive the firearm. If so, the entire case hinges on when the check to Abrionski was written, not the final possessor of the firearm.

It sounds as though everything was done correctly as to the chain of possession; but he shouldn't have accepted the money for what would have qualified as a secondary sale in the absence of his accepting the check before he purchased the firearm. Purchasing a firearm for resale is not a violation as long as there is no pattern of doing so which would require a license.
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Old June 17, 2014, 01:39 PM   #33
Frank Ettin
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Quote:
Originally Posted by jimpeel
...If so, the entire case hinges on when the check to Abrionski was written, not the final possessor of the firearm...
No, it does not. As I wrote in post 29:
Quote:
Originally Posted by Frank Ettin

...
  1. You're buying the gun for yourself (you're the actual buyer) if --

    1. You're buying the gun with the intention of giving it to someone as a gift.

    2. You're buying the gun with the intention of keeping it, but later you decide to sell it.

    3. You're buying the gun to sell, but you have no buyer. In that case you have to find a buyer and are taking a risk that you will be able to sell it to someone at a price acceptable to you.

  2. But you are not the actually buyer (making it a straw purchase) if --

    1. You've made prior arrangements with a particular person that you will buy the gun and then transfer it to him, and he

      • gves you the money for it, or

      • agrees to reimburse you.

    2. In that case, based on well established legal principles, you are not buying the gun for yourself. Rather you are buying the gun as the agent of (or proxy for) the actual purchaser.

  3. So since you (we hope) know what you are doing, you know if it's an illegal straw purchase.

  4. Yes, it's a question of intent. But many crimes involve questions of intent. Prosecutors frequently successfully use all sorts of circumstantial evidence to prove intent to the satisfaction of juries.
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Old June 17, 2014, 01:41 PM   #34
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Quote:
Originally Posted by jimpeel
It has been mentioned that he had the uncle do a background check to receive the firearm. If so, the entire case hinges on when the check to Abrionski was written, not the final possessor of the firearm.
Correct, and this brings up a point that I'd like to mention. One of the most common misconceptions that I see in terms of the law surrounding transfers is that a straw purchase only occurs when one of the two parties to the transfer is a prohibited person. Neither Abramski nor Alvarez were prohibited persons, so this case clearly indicates that a straw purchase can occur, even where neither party to the transfer is prohibited.
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Old June 17, 2014, 01:46 PM   #35
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Quote:
One of the most common misconceptions that I see in terms of the law surrounding transfers is that a straw purchase only occurs when one of the two parties to the transfer is a prohibited person.
This is by far the most common misconception. It really doesn't help that the ATF campaign states it that way.
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Old June 17, 2014, 01:47 PM   #36
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Quote:
Originally Posted by Spats McGee
Quote:
Originally Posted by jimpeel
It has been mentioned that he had the uncle do a background check to receive the firearm. If so, the entire case hinges on when the check to Abrionski was written, not the final possessor of the firearm.
Correct, and this brings up a point that I'd like to mention...
Spats, I think you might have missed something in what jimpeel wrote.

He wrote:
Quote:
...the entire case hinges on when the check to Abrionski was written,...
But of course, it's not a question of when the principal gives the agent the money. It's a question of an agency relationship being formed ("you buy this gun for me, and I'll pay for it.").

If that's the deal, it's a straw purchase whether the principal gives the agent the money ahead of time or the agent extends credit to the principal and collects when he transfers the gun to the principal.
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Old June 17, 2014, 01:52 PM   #37
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Quote:
Originally Posted by Frank Ettin
But of course, it's not a question of when the principal gives the agent the money. It's a question of an agency relationship being formed ("you buy this gun for me, and I'll pay for it.").

If that's the deal, it's a straw purchase whether the principal gives the agent the money ahead of time or the agent extends credit to the principal and collects when he transfers the gun to the principal.
Agreed. When the money changes hands isn't really relevant. I was only trying to address the notion of, "How can it be a straw purchase if neither one of us is a prohibited person?"
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Old June 17, 2014, 02:05 PM   #38
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If Abranski had purchased the firearm with his own money, and never received the check from the uncle, with the intention of selling the firearm in a secondary sale, regardless of to whom he sold it, the transaction would have been legal; would it have not?
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Old June 17, 2014, 02:16 PM   #39
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Quote:
Originally Posted by jimpeel
If Abranski had purchased the firearm with his own money, and never received the check from the uncle, with the intention of selling the firearm in a secondary sale, regardless of to whom he sold it, the transaction would have been legal; would it have not?
How can you have read what I wrote in post 29 and still ask that question?

If he had intended to sell the gun but had not made prior arrangements with a "buyer" for the disposition of the gun, and thus assumed an entrepreneurial risk that he would be able to sell the gun on acceptable terms, and did not do that sort of thing with sufficient frequency to constitute being engaged in the business of a dealer in firearms without a license, and didn't know or have reason to believe that the transferee was a prohibited person, and if the transfer was done in accordance with applicable law, then the transaction would have been legal.
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Old June 18, 2014, 12:37 AM   #40
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A few aspects of the Abramski case are perplexing.
  • The act of "straw purchasing" is not illegal, but the characterization of the act on a Form 4473 can be a crime;
  • I cannot find a requirement or authorization, in law or regulation, for the "actual buyer" question on Form 4473;
  • I cannot find a definition for "straw purchasing" in law or regulation, and;
  • The ATF's definition of "straw purchasing" seems to change through administrative discretion, rather than the legislative or regulatory processes.
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Old June 18, 2014, 08:23 AM   #41
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Can we talk a bit about the dissenting opinion?

I'm no legal scholar, but to me, the clarifications in the instructions on the form 4473 are clear about who the actual purchaser is and who is not. During the trial(s) at the lower levels it can be argued (successfully or not) that the parties complied with the intent of the law, being that neither was a prohibited person. Maybe this was argued and maybe it wasn't, I don't know. And maybe a reasonable jury would've been allowed to find him not guilty.

But once the case gets to the SCOTUS level, aren't we past that? Or can SCOTUS rule that the intent was followed even though it's clear on the 4473 what's allowed? If the law is clear (although a bit flawed), it is the law and SCOTUS is required to follow it unless it's been deemed unconstitutional...right?

(Note: If I was on the jury at the lower level I'd have found him not guilty but I'm sure some judge would insist otherwise in his jury instructions.)
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Old June 18, 2014, 09:17 AM   #42
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I think they can find that sort of thing, but they won't/didn't. A final decision from the Supreme Court is pretty rare I think. Normally they rule on a point of law, and it goes back to the lower courts (or legislative body) to either continue, retry the case(rewrite the legislation), or drop it.

To the best of my layman's knowledge, the Supreme Court has only delivered a criminal court verdict once, and they tried the whole case as well. I know of it, but not as well as the people who study this stuff for a living. Some sort of homicide case a local CLEO (I think Sheriff but I'm not sure) and racial or labor union tensions.

Edit to Add: Did some checking and found this page about the case I was talking about. The Shipp trial.

Last edited by JimDandy; June 18, 2014 at 09:45 AM.
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Old June 18, 2014, 10:47 AM   #43
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Quote:
I cannot find a definition for "straw purchasing" in law or regulation, and the ATF's definition of "straw purchasing" seems to change through administrative discretion, rather than the legislative or regulatory processes.
That is correct. According to §922(a)(6), it is unlawful to,

Quote:
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
Congress has delegated the authority to interpret that (and any other part of the GCA) to the ATF. This is the ATF's current interpretation. The phrase "straw purchase" is their own application.

For a long time, the idea was that a straw purchase was one made on behalf of a disqualified individual. In 1992, they changed that [pdf] to include any purchase in which the person filling out the form was not the "actual buyer."
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Old June 20, 2014, 04:36 AM   #44
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The problem here was created by the fact that the "actual buyer" would not get a police discount if he actually bought his gun like a normal person.

I think uncle and nephew are wrong for fraudulently trying to confer a police benefit on a person who is not a cop.

Last edited by Tom Servo; June 20, 2014 at 07:18 AM.
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Old June 21, 2014, 12:48 AM   #45
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Hadn't actually thought of it that way. It is a fraud.

If I did that where I work I would be fired as it is considered a fraud against my employer to use my discount for other than myself, wife, or children.
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