The US Supreme Court Rules on Straw Purchases

Posted: June 16, 2014 in Uncategorized

Today (June 16th) the United States Supreme Court issued a rather curious decision relating to firearm ownership, and more specifically relating to purchasing a firearm from a federal firearm dealer (FFL). Every year hundreds of thousands of Americans will buy firearms to give as gifts for holidays, birthdays, or graduations. Today the Supreme Court did not go so far as to say buying a firearm as a gift is illegal, but they did move that direction.

dontlie-campaign-logo-300x225The case in question is Abramski v. United States. Bruce Abramski had offered to purchase a handgun for his uncle from a local gun store. Bruce Abramski was a former cop who thought he could get a discount on the gun by playing the former cop card. The form that federal regulations required Abramski to fill out (Form 4473) asked whether he was the “actual transferee/buyer” of the gun, and clearly warned that a straw purchaser (namely, someone buying a gun on behalf of another) was not the actual buyer. Abramski falsely answered (according to the court) that he was the actual buyer. Abramski was convicted for knowingly making false statements “with respect to any fact material to the lawfulness of the sale” of a gun, 18 U. S. C. §922(a)(6), and for making a false statement “with respect to the in- formation required … to be kept” in the gun dealer’s records, §924(a)(1)(A). The case was challenged all the way to the Supreme Court, which upheld Abramski’s conviction on a 5-4 split.

A straw purchase is when a person buys a gun on someone else’s behalf, while falsely claiming that it is for him or herself. The straw purchase question on the Form 4473 is worded as follows:

Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you. (See Instructions for Question 11.a.) Exception: If you are picking up a repaired firearm(s) for another person, you are not required to answer 11.a. and may proceed to question 11.b.

Many people ask us if they would be able to buy firearm as a gift for a friend or family member considering the above question asks them if they are the “actual buyer”. The answer is yes. It has long been (and still is) the position of the BATFE that you may purchase a firearm from a federal firearm dealer that is intended to be given as a gift. The instructions relating to the above question make this clear (see bolded and underlined portion below):

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 TRANS- FEREE/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 11.a. and may proceed to question 11.b.

The problem in the Abramski case (according to the government) is that it was not a gift. Abramski was essentially using his Uncle’s money and direction to buy a gun on his behalf, to save his uncle the hassle of filling out the paperwork. Understand, Abramski’s uncle was not prohibited in any way from purchasing the firearm, he was not a felon or otherwise prohibited from purchasing/owning guns. Had his uncle been a felon it would have been a clear cut straw purchase case. Instead, the law abiding uncle simply wanted his nephew to buy a gun for him. Imagine a relative who has physical limitations that prevent them from going to the local gun store, or is unable to read or write, and has asked you to purchase a firearm for them. That is essentially the issue in dispute in this case and what the Supreme Court criminalized today.

Although Justice Kagan does a very bad job of writing the majority decision (no surprise, she also does a very bad job of being a Supreme Court Justice in my opinion), there are a few things we can glean from it that may help keep you out of trouble:

  • Buying a firearm from a federal firearm dealer for someone else who has either given you money to purchase it, or is going to give you money to purchase it, is never ok. People generally do not pay for gifts, so if they are paying for it they need to buy it themselves.
  • Someone who gives you specific directions or requests relating to what gun to buy (even if they are not paying you for it) is now questionable. Prior to this decision I would have told a client that there is no problem with buying a gift for someone who has specifically requested a certain gun, so long as no money changes hands and no agency relationship is formed. After all, who doesn’t tell their parents, spouse, or friend what gun they would like before they receive it as a gift? However, this decision muddies the water a little on whether specific directions on firearm purchases are indeed straw purchases. Justice Kagan worded it as follows:
    • The individual who sends a straw to a gun store to buy a firearm is transacting with the dealer, in every way but the most formal; and that distinguishes such a person from one who buys a gun, or receives a gun as a gift, from a private party.”  (emphasis added) Abramski v. United States, 706 F.3d 307 (4th Cir. 2013) cert. granted, 134 S. Ct. 421,(U.S. June 16, 2014).
  • Buying a firearm purely as a gift (with no remuneration, direction or specific request) is still ok. You would answer line 11a as “yes”.
  • Guns Intended as Raffle Prizes are still ok. As Justice Scalia words it, “The Government considers the man at the counter the true purchaser even if he is buying the gun “for the purpose of raffling [it] at an event”—in which case he can provide his own information on Form 4473 and “transfer the firearm to the raffle winner without a Form 4473 being completed or a [background] check being conducted” on the winner, [unless state law requires one].” (see: 2005 ATF Guide 195)

If you’ve taken a Legal Heat class in the last 6 years you have heard us teach that someone paying you to purchase a firearm from a FFL on their behalf has always been a bad idea, even if the other person is completely law-abiding. Now we know the Supreme Court believes it is a federal crime to do so. We will provide updates on this rather ambiguous decision as they come.

Remember, none of the straw purchase regulations apply to private part sales if your state allows for such.

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Comments
  1. I see the gun grabbers behind this decision. Clearly Judge Kagan states in her erronious opinion which counts: “The twin goals of this comprehensive scheme are to keep guns out of the hands of criminals and others who should not have them, and to assist law enforcement authorities in investigating serious crimes.” Abramski transferred the gun to his uncle at a federally licensed gun dealership in compliance with state law. How were these goals violated?

  2. Actually the nephew was, as a former Law Enforcement Officer attempting to get the gun at a discount afforded to LEO’s. See page 7 of the opinion here: http://www.law.cornell.edu/supct/pdf/12-1493.pdf

    • Wes says:

      So, doesn’t this ruling restrict competition and free enterprise? Suppose a gun store in the state or area my son lives in has a hard to find firearm for which I have been searching. Or has a more common one but at a much better price than I can find where I live. I cannot now ask my son to go purchase that firearms before someone else does, or before they run out of the special price units, if I can’t get there in time, even if both he and I can legally buy and own such a weapon on either state?

  3. Lisa says:

    Ok. So here is my question.
    Let’s say husband and wife walk into your store to purchase a long gun. The husband fills out the 4473 and the wife produces her credit card to pay after husband realizes he left his at home. Can you accept her payment?
    It doesn’t qualify as a gift, because he did the paperwork. And it’s not technically a straw purchase, as money was exchanged before hand. To cut down on all the what ifs and blurred lines, let’s say that it is a legit credit card, not a bank card. And he is not listed as an approved user on said credit card. Would you transfer this firearm to him?

  4. Tony says:

    But it’s okay for the government to break these laws and people have died and still we see no one from the government prosecuted. Yep sound like justice the Obummer way.