So may be illegal to transfer a firearm?

[mrp]

I prefer to believe that the current BATF interpretation is incorrect, and that the law does not impose penalties of this severity solely on what the BATF can convince a court was my intent, at the time I engaged in what would have otherwise been a legal act.

Who, among us, who has ever sold a firearm, would be free from risk of prosecution, should the BATF interpretation prevail?

In this case the ATF had a check from the uncle, with "glock" in the memo line, dated prior to the date the Glock was initially purchased. There was no question about intent.

Also, as the NRA noted, almost nobody gets prosecuted.
http://dailycaller.com/2013/01/18/biden-to-nra-we-dont-have-the-time-to-prosecute-people-who-lie-on-background-checks/

In 2010, prosecutors considered just 22 cases of information falsification, according to a 2012 report to the Department of Justice by the Regional Justice Information Service. Forty additional background-check cases ended up before prosecutors for reasons related to unlawful gun possession.

In all, prosecutors pursued just 44 of those 62 cases. More than 72,600 applications were denied on the basis of a background check.

“We think it is problematic when the administration takes lightly the prosecutions under existing gun laws and yet does not seem to have a problem promoting a whole host of other gun laws,” [NRA representative] Baker told TheDC.

“If we are not going to enforce the laws that are on the books, it not only engenders disrespect for the law but it makes law-abiding gun owners wonder why we are going through this exercise we are going through now,” he added.

So, how do you fix the law? (Yeah, I know... The 2A is all the law we need and the ATF should be the name of the corner store, not a government agency.)

[Sietch]

Remember Fast and Furious, all those gang members? What happened to them? Justice had no trouble finding them when it wanted to give guns away as quickly as possible, but a cop, following every effing rule, is the best Justice can do for a defendant? Shows how hard up they are. The boss who signed off on this case must have received his law degree from a cooking school.

"Alan Gura picked ideal plaintiffs when he kicked our @sses over a major firearms issue. Let's learn from that. How can we emulate that dynamic? How can we look like officious pricks again? Let's prosecute an extremely sympathetic, clean cut retired police officer, who did nothing wrong but in fact went out of his way to make sure everything was on the level."

"Just to be safe, to make sure that there's no possible way we look legit, let's highlight the fact that we brought this charge during a period of intense butthurt after we tried to nail the defendant for a bank robbery, which made us feel really dumb when his lawyer demonstrated how stupid our case was and we had to drop it. Yes, nothing will guarantee our apparent schmuckitude quite so well as the smell of sour grapes."

[bensdad]

Ya'll are disecting sentences, words, letters and punctuation in a futile attempt at understanding a government that INTENTIONALLY creates ambiguity and doublespeak in an effort to ensure that, eventually, we're all guilty of something.

One part of the law defines "straw purchase" as buying a gun for a prohibitted person. Another part says, and this is a tangle of jibberish worthy of all our contempt:

It shall be unlawful— for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, 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;

He made no attempt to "deceive such importer... with respect to any fact material to the lawfulness..." He may have lied on the form, but it wasn't "material to the lawfulness" cuz his uncle could have purchased it himself and had it shipped to his home state.

These jokers are trying to create case-law-chaos.

[igofast]

The reason why SCOTUS is reviewing is exactly because of the discussion here.

The 4473 clearly states that what the purchaser did was a straw purchase as the money used for the purchase was not provided from the buyer(based on my understanding to this point - the uncle provided the funds).

However, the line was put in there with the intent to prohibit the transfer to an non-eligible person.

So it's a letter of the law vs intent of the law.

And he's in this mess because his uncle wanted a good deal on a Glock and he used his LEO discount to get him one. Additionally it's unfortunate that what appears to be a law abiding citizen is being prosecuted for a technicality - and no gun ended up in the hands of a criminal - yet we aren't seeing more prosecution for felons lying on their 4473.

[Jackpine Savage]

A good article by Emily Miller:

"The assistant to the solicitor general, Joseph Palmore, admitted to the court that the ATF was “interpreting” the will of Congress when it added the “actual buyer” question in 1995 on the background form.

Mr. Palmore said the other “critical” purposes of the ATF’s agenda with determining the final buyer was “tracing of firearms and to prevent the anonymous stockpiling of firearms.” Uncle Sam is not supposed to be getting involved in a citizen’s decision to buy as many guns as he decides he wants to defend himself."

http://www.washingtontimes.com/news/2014/jan/22/supreme-court-abramski-decision-will-determine-oba/?page=1

[greenfarmer]

He's guilty for lying on a 4473. So i'm sure there could be some reprocussions for that.

But from that point on, he did everything correct. He transferred it properly.

Should that question be thrown off of a 4473 because of a case like this? I think that's the underlying question. But with throwing that off would that open a whole new can of worms.

Many different ways to look at this. He knowingly and willingly lied on the 4473. So yes, that's a big no no... But did he have bad intentions? Probably not. He did do everything correctly after. Should he be hog tied and burnt at the stake for something like this? No. But something like this, is just more fuel for the anti's..

[Frank Ettin]

Current law on straw purchases:

The actual offense is violation of 18 USC 922(a)(6), making a false statement on the 4473 (specifically about who is the actual buyer), and has nothing to do with the ultimate recipient being a prohibited person.

See the ATF publication Federal Firearms Regulation Reference Guide, 2005, at page 165 (emphasis added):

15. STRAW PURCHASES

Questions have arisen concerning the lawfulness of firearms purchases from licensees by persons who use a "straw purchaser" (another person) to acquire the firearms. Specifically, the actual buyer uses the straw purchaser to execute the Form 4473 purporting to show that the straw purchaser is the actual purchaser of the firearm. In some instances, a straw purchaser is used because the actual purchaser is prohibited from acquiring the firearm. That is to say, the actual purchaser is a felon or is within one of the other prohibited categories of persons who may not lawfully acquire firearms or is a resident of a State other than that in which the licensee's business premises is located. Because of his or her disability, the person uses a straw purchaser who is not prohibited from purchasing a firearm from the licensee. In other instances, neither the straw purchaser nor the actual purchaser is prohibited from acquiring the firearm.

In both instances, the straw purchaser violates Federal law by making false statements on Form 4473 to the licensee with respect to the identity of the actual purchaser of the firearm, as well as the actual purchaser's residence address and date of birth. The actual purchaser who utilized the straw purchaser to acquire a firearm has unlawfully aided and abetted or caused the making of the false statements. The licensee selling the firearm under these circumstances also violates Federal law if the licensee is aware of the false statements on the form. It is immaterial that the actual purchaser and the straw purchaser are residents of the State in which the licensee's business premises is located, are not prohibited from receiving or possessing firearms, and could have lawfully purchased firearms...

So, if --

1. X says to Y, "Here's the money; buy that gun and then we'll do the transfer to me [when I get back to town, or whenever else].", or
   
   
2. X says to Y, "Buy that gun and hold it for me; I'll buy from you when I get my next paycheck."

or anything similar, if Y then buys the gun, he is not the actual buyer. He is buying the gun as the agent of X, on his behalf; and X is legally the actual buyer. If Y claims on the 4473 that he is the actual buyer, he has lied and violated 18 USC 922(a)(6). His subsequently transferring the gun to X in full compliance with the law, does not erase his prior criminal act of lying on the 4473.

Some more examples --

• If X takes his own money, buys the gun and gives the gun to someone else as a gift, free and clear without reimbursement of any kind, X is the actual purchaser; and it is not a straw purchase.
  
  
• If X takes his money and buys the gun honestly intending to keep it for himself and later sells it to another person, X is the actual purchaser; and it is not a straw purchase.
  
  
• If X takes his money and buys the gun intending to take it to the gun show next week to see if he might be able to sell it to someone at a profit, X is the actual purchaser; and it's not a straw purchase. He may, however have other problems if he manages to sell the gun at the gun show, and the transfer there isn't handled properly. He might also have problems if he does this sort of thing too frequently, and the ATF decides he's acting as a dealer without the necessary license.
  
  
• If X takes his money and buys the gun with the understanding that he is going to transfer the gun to Y and that Y is going to reimburse him for it, X is not the actual purchaser. He is advancing X the money and buying the gun for and on behalf of Y, as Y's agent. So this would be an illegal straw purchase.

Whether or not a transaction is an unlawful straw purpose will often be a question of intent. But prosecutors in various situations can convince juries of intent, often from circumstantial evidence. A slip of the tongue, posting something on the Internet, tracks left by money transfers have all, in one way or another, and in various contexts, helped convince a jury of intent.

The foregoing is reflected in the instructions to Question 11.a. on the current Form 4473 (emphasis in original):

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 answer 11.a. and may proceed to question 11.b.

The real issue here is likely to be the language of the statute (18 USC 922(a)(6), emphasis added):

(a) It shall be unlawful—

...

(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, 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; ...

[

The general legal definition of "material" is:

Important; more or less necessary; having influence or effect; going to the merits; having to do with matter, as distinguished from form....

So is the misrepresentation as to who the actual purchaser is material when the subsequent transfer was done at an FFL on a 4473?

The argument may have some merit, and indeed the Fifth Circuit in United States v. Polk, 118 F.3d 286 (5th Cir. 1997) decided that the misrepresentation as to the actual purchaser was not material when the subsequent transferee (the actual purchaser) could legally buy a gun directly.

But the Fourth Circuit in Abramski did not agree, nor did the Sixth Circuit (United States v. Morales, 687 F.3d 697 (6th Cir. 2012)), and Eleventh Circuit (United States v. Frazier, 605 F.3d 1271 (11th Cir. 2010)).

The Supreme Court decision here will resolve that split among Circuits.

[642rUS]

He was a Cop. He thought he could get away with the lie.

[steve4102]

He was a Cop. He thought he could get away with the lie.

He was an Ex-cop and this whole thing came to light as he was suspected of bank robbery. During the execution of a search warrant , the Check Deposit and the Receipt from the firearm purchase were discovered.