Abramski v U.S. Supreme Court Decision

[Frank Ettin]

...If he purchased it as a gift, here is the part that I do not understand...

But it had not been purchased as a gift. The evidence established that the uncle gave Abramski the money to buy the gun for him.

 

[JimDandy]

The real crime here is how much money was spent on this when the prosecutor should have probably used their discretion to let him off with a warning then told him to "Have a nice day" with a smirk and a wink.

 

[Frank Ettin]

Moderator Note:

Some posts have disappeared.

Apparently some folks don't understand the difference between getting what you want done in accordance with the law and doing something illegal in a way that minimizes the risk of getting caught and successfully prosecuted.

The former absolutely is a proper subject here. The latter absolutely is not a proper subject for discussion here and will be dealt with.

Remember, there's a difference between following the law and getting away with not following the law.

 

[Dreaming100Straight]

Doesn't the fact that there would have been no sale, had Abramski not falsely claimed to be the true buyer, destroy the argument that the statement was not material to the lawfulness of the sale?

 

[Tom Servo]

That's true, but the original purchase by Abramski also took place on a 4473, and he answered yes, he was the actual buyer, while the Government and the Courts decided he wasn't- because he had pre-re-sold the gun to his Uncle.

Yep. In fact, the check from the uncle had "Glock 19" written in the note field.

That said, this ruling doesn't change anything. It simply confirms an interpretation the ATF has been using since 1992.

Oddly enough, the antis are claiming it as some sort of victory. I guess they'll grasp at whatever straws they can.

 

[Unlicensed Dremel]

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?

 

[Frank Ettin]

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:

...this ruling doesn't change anything. It simply confirms an interpretation the ATF has been using since 1992.

 

[1-DAB]

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.

 

[Frank Ettin]

...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 --
   
   
   • You're buying the gun with the intention of giving it to someone as a gift.
     
     
   • You're buying the gun with the intention of keeping it, but later you decide to sell it.
     
     
   • 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 --
   
   
   • 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.
     
     
   • 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.

 

[Unlicensed Dremel]

Thank you Frank, and Tom.

 

[JimDandy]

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.

 

[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.

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.

 

[Frank Ettin]

...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:

...

1. You're buying the gun for yourself (you're the actual buyer) if --
   
   
   • You're buying the gun with the intention of giving it to someone as a gift.
     
     
   • You're buying the gun with the intention of keeping it, but later you decide to sell it.
     
     
   • 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 --
   
   
   • 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.
     
     
   • 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.

 

[Spats McGee]

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.

 

[Tom Servo]

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.

 

[Frank Ettin]

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:

...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.

 

[Spats McGee]

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?"

 

[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?

 

[Frank Ettin]

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.

 

[gc70]

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.