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?
Well Mr. Abramski, you are no longer eligible to legally own a firearm. Was it worth it? Im with SCOTUS on this one.
I disagree. My understanding of the law’s intent was to prevent those that are not qualified to purchase or own a firearm from using a qualified person to get a weapon.
I am now afraid to sell any weapon I own. Even those I purchased 30 years ago. I see no time limit in the decision. So, if I helped out a neighbor with some household repairs or maintenance and he gave me some money for that and a few weeks or months later I gave him a weapon for his birthday, it seems to me that I could be accused of doing the same thing as Mr. Abramski.
A long time friend of mine purchased a weapon for an elderly friend of his who lives alone in the country. His friend recently developed a health issue that prevents him using a handgun and because of this, declined, with appreciation for the intent, the gift. My friend later offered to sell the weapon to me as he had his eye on another item at the gun store. Is he a criminal?
Does receiving cash for a gun put me ‘in the clear’ because cash doesn’t say “this money is for a gun”?
I did purchase a handgun for my elderly mother years ago, am I ‘in the clear’ because it was a “gift”?
I’m (even more) terrified of the State now.
[Disclaimer from post incorporated here].
The Abramski case has nothing to do with private, non-dealer sales/transfers where a Form 4473 is not required (no FFL is involved). As for what one should do to be sure to follow Federal and state law when making a private sale, I would consult with a local attorney or use an FFL for the transfer.
I think most attorneys would tell you that your “understanding of the law’s intent” is of no moment, but incorrect anyway, in light of the Supreme Court’s decision in Abramski.
“The Abramski case has nothing to do with private, non-dealer sales/transfers where a Form 4473 is not required (no FFL is involved). ”
In some states, private non-dealer transfers are required to go through an FFL. Where does this ruling leave people in those states?
[Disclaimer from post incorporated here].
If the FFL process is invoked and the Form 4473 completed, then false statement and “straw” purchase rules apply as enunciated by the Supreme Court. See the bullet points in my post. I do not think it matters that the process is invoked because it is required by state law.
So unless you have a scale at the time you are at the counter doing your 4473, you cannot possibly know what your weight is at that moment. So does guessing one’s weight constitue lying on the form and worth being charged with a felony??
[Disclaimer from post incorporated here]. Actually a very good/interesting question. Guessing in good faith is not likely a false statement. I am not sure why height and weight matter in determining the lawfulness of a sale, except to compare to the driver’s license data. I think an FFL would tell you to use your driver’s license information if you said you did not know your weight/height. Check the link on the ATF Guide above, and their website to see what they say. Or get on the scale in the store’s bathroom. 🙂
Agreed. I guess lenity was considered but rejected by one or two of the Justices in the majority because Abramski was a former cop implicated in a bank robbery, improperly used expired LE identification, and engaged in a transaction which cheated Glock and/or the FFL.
Abramski may not be a ‘good guy’ (he was in law enforcement after all) but he apparently was not convicted of bank robbery so, as far as we know, was not a criminal before this charge.
Isn’t trying to use his law enforcement status to get a discount on a weapon for another person a civil matter, not a criminal one?
I would bet almost all states have one or more criminal laws that could be used to punish someone who falsely claims entitlement to and obtains the Glock special purchaser discount. In addition, the use of an expired identification document for fraudulent purpose may also treated by a specific criminal law.
Who says that he used expired ID for fraudulent purposes? I haven’t read THAT anywhere.
[Disclaimer from post incorporated here].
From the Supreme Court’s opinion: “(Abramski thought he could get the gun for a discount by showing his old police identification, though the Government contends that because he had been fired from his job two years earlier, he was no longer authorized to use that card.)”
I say getting the Glock LE discount by using expired or fraudulent LE or other identification, when one is not entitled to the discount, is likely some crime in most states.
So I guess this means I can’t buy a gun for my wife as a gift unless she is present also?
As I understand it this ruling would prohibit you purchasing a firearm for your spouse, (lotta guys buying pink pistols these days), or other family member. A subsequent transfer through an FFL to the next owner still would not make the initial purchase legal.
[Disclaimer from post incorporated here]. David and Keith, as to gifts. The Abramski case was not about a firearm purchased as a gift. The Supreme Court did not say the ATF was right or wrong with the way it treats gifts with the Form 4473 instructions. Hence my reference to the March 2014 lower appellate case, and my third bullet point. It will be interesting to see what attorneys who advise FFL’s say in light of the decision, if ATF does not promptly revisit question 11 and its examples. However, we then get to the last bullet point.
A few times I’ve bought a gun and didn’t like it or… It had 2 to many malfunctions, broke my confidence and found itself being re-sold (complete with paperwork, the involvement with an FFL dealer, and waiting periods, etc.)
My question is… How does one now buy/ sale a gun and protect themselves? Any thoughts on this?
[Disclaimer from post incorporated here].
Not sure what you mean by “protect” in your question. If you are buying or selling firearms through FFL and completing all paperwork properly and following other applicable laws, what else would be your concern?
I think some people need to pay attention and actually FOLLOW THE LAW. You need to READ the 4473 before putting a checkmark in the appropriate box. It specifically states on the 4473 that you are not legal to purchase the firearm unless you are buying it for yourself. Period. End of story. Don’t buy guns for other people.
Yes, you can purchase a firearm and gift it to someone, there is nothing that the government can do about that. You can also sell them in private transactions, but you can’t buy a firearm with the specific purpose of selling it to someone that you’ve already agreed to sell it to in private UNLESS YOU ARE AN FFL.
Whether I like it or not, this is the letter of the law. If we don’t like it (obviously, many of us don’t), then we should try to get it changed. I’m with the SCOTUS on this ruling. The dude broke the law and misrepresented himself to the FFL, hosing other people in the process.