In a prior MSW post I noted that the Supreme Court had agreed to hear what most refer to as a “straw” purchase criminal appeal (Abramski v. United States), see — “LEGAL NEWS FLASH: Supreme Court to Wade Into “Straw” Purchase Morass.” [For detailed history and discussion of the case, from Cornell University Law School’s Legal Information Institute, go here. You can listen to the argument before the Justices (here) or read a transcript here. An 18-minute audio containing an informative explanation of the case (from The Federalist Society) is here.
As is often the case, oral argument provided little insight into the disposition which would earn the agreement of a majority of the Justices. Speculation on the decision is no longer necessary — the Court ruled on Monday, June 16. It held that a “misrepresentation” on Form 4473 is a crime (as if a “straw” purchase), even when the “true buyer” could have lawfully purchased a firearm. The rationale of the Court’s holding moved away from applying a criminal statute by its words (the preferred mode of analysis) to divining the statute by its and related provisions “structure, history, and purpose.”
The case is not a Second Amendment case. The majority’s thinking is not without arguable merit: If you are buying a gun “on behalf of” or as “an agent for” another, that person is the “actual transferee/buyer” for the purposes of the federal law under which the Form 4473 was promulgated. The “guy at the counter” is not. [Note: A March 2014 lower appellate court opinion (in an unrelated case) ruled similarly, holding that: “Under Form 4473, a person is not the “actual buyer” if the person acquires a firearm for another, even if the person actually pays for the firearm. Rather, the “actual buyer” is the person the firearm ultimately is for”].
Here are the “lessons learned” to take from the drama that is Abramski:
- Fill out government forms carefully. Be especially exacting with those containing an affirmative representation or obvious expectation that you have read accompanying instructions, or when executed under penalty of perjury. Follow the instructions; don’t interject common sense or change proper answers on account of the contradictory oral explanations of others. Don’t be cute; a literally true answer may constitute a false statement.
- Buy your own guns. Don’t buy for another or ask another to do it for you so someone can enjoy a discount the other can’t get.
- Watch for ATF announcements and form revisions in light of this decision. The Court’s holding may cause the agency to change its position on gifts, prize/raffle guns, quick resales, and other arrangements where, under the existing Form 4473 instructions or rulings, the “guy at the counter” is now deemed to be the “actual transferee/buyer” for question 11 on Form 4473. (See ATF Guide, referred to by the Supreme Court opinion, here).
- ATF’s interpretations of what might constitute a violation of the criminal law are not controlling. Per the Court: “. . . criminal laws are for courts, not for the Government, to construe.”
What happened to the convicted Mr. Abramski? He got as close as a criminal defendant can get to vindication by a vote of the Supreme Court. But, as I expected, his conviction (both counts) was affirmed. I did not however, expect it to be that close; the Court’s vote was 5-4. So, his felony convictions and probationary sentence (five years) stand. I thought one or both of the counts of conviction might be reversed, on the basis of the “rule of lenity.” The four dissenting Justices saw it that way: “The Court makes it a federal crime for one lawful gun owner to buy a gun for another lawful gun owner. Whether or not that is a sensible result, the statutes Congress enacted do not support it—especially when, as is appropriate, we resolve ambiguity in those statutes in favor of the accused. I respectfully dissent.” Thus, what I wrote in MSW has distinguished company. (Hat tip to the dissenting Justices).
Disclaimer: No MSW post creates an attorney-client relationship with, or constitutes legal advice to, a reader. 🙁 You already knew that, yes?