The great state of Illinois

[Armed_Chicagoan]

My son lives in Aurora Ill new to town and has been saving and looking to buy a full size M&P 9mm. He and some friends were shooting at a range in town and he asked the owner if he had any M&P's for sale. The gentleman had a nice used full size that was in the price range my son wanted. He promptly told the proprietor to write up the sale. My son handed him his FOID card and was surprised when the owner informed him he couldn't sell him the pistol, when my son inquired why he was told that there was a city ordinance banning the sale of any handgun with a mag capacity over 10. He could have purchased it if he lived in a neighboring city!

This story makes no sense at all, even in the time before state pre-emption of local handgun laws. Under the Aurora ordinance it would have been illegal for the gun store to even offer such a magazine for sale to anyone who was not LEO, no matter where they lived. The ordinance reads: "No person shall sell, offer or display for sale, give, lend, transfer ownership of, acquire or possess any assault weapon or large capacity ammunition feeding device."

Given that, I'm going to make an educated guess that this incident did not happen at an Aurora gun store. There is, however, a gun store in nearby Plainfield that is notorious for such nonsense and also has an attached range - Mega Sports. Given that I know of no other gun stores in the area that have such idiotic policies I'm going to go out on a limb and guess that this incident actually occurred at Mega Sports in Plainfield, amiright?

 

[vranasaurus]

The actual federal crime is not "straw purchase" but lying on the 4473 to the question are you the actual purchaser.

I would agree with Armorer at law that this would be a crime. If the purchaser answers that he is the actual purchaser when he intends to later transfer it to someone else then he would be committing a federal crime by lying on the form.

The whole point of that question seems to be that the government wants to prevent people from circumventing the background check. But that is not the letter of the law.

18 U.S.C. 922(a)(6):

(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;

 

[44 AMP]

The whole point of that question seems to be that the government wants to prevent people from circumventing the background check.

Can't be. That question was on the 4473 at least a generation before there was such a thing as a national background check.

 

[Frank Ettin]

The whole point of that question seems to be that the government wants to prevent people from circumventing the background check.

Can't be. That question was on the 4473 at least a generation before there was such a thing as a national background check.

And while in Abramski the both the initial and re-transfer went through an FFL, Bruce Abramski was convicted anyway.

Let's go over straw purchases once more.

Note: The Supreme Court has issued its ruling in the "straw purchase" case, Abramski v. U. S.. Based on that ruling the following explanation of what constitute a straw purchase under the ATF interpretation reflects current law. See here for a discussion of the Abramski ruling.


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.

 

[Skans]

Looks like a straw purchase to me.

 

[rcollier]

So if my sons friend buys the handgun, my son then pays his friend for it and they transfer legally thru a FFL. This is a straw purchase?

 

[Frank Ettin]

So if my sons friend buys the handgun, my son then pays his friend for it and they transfer legally thru a FFL. This is a straw purchase?

Read post 24. All the information you need to figure it out is there.

 

[rcollier]

Read post 24. All the information you need to figure it out is there.

I got it but it still doesn't make sense to me if you transfer thru a FFL wouldn't the FFL run a background check for the new buyer?

I bought a handgun from a co-worker and we did the transfer thru a local dealer who did a background check. So if I wasn't going to pass the check he wouldn't do the transfer, is this not the intent of going through the transfer by a FFL.

Not trying to be argumentative just trying to understand this better.

 

[Frank Ettin]

...I got it but it still doesn't make sense to me if you transfer thru a FFL wouldn't the FFL run a background check for the new buyer? ...

Sigh!

That has nothing to do with what a straw purchase, for ATF purposes, is. The crime is the misrepresentation on the 4473 by the initial transferee that he is the actual purchaser, when legally he is not. He is acting as the agent of the ultimate possessor, the second transferee. That violates 18 USC 922(a)(6).

Again, that is all laid out in post 24. Read it carefully.

 

[rcollier]

Got it Frank.

Is there a legal precedent of how long you must own a handgun prior to reselling it? Thus not making a false statement on 4473.

 

[Frank Ettin]

Is there a legal precedent of how long you must own a handgun prior to reselling it? Thus not making a false statement on 4473.

The amount of time the gun is held by the first transferee before he passes it on is irrelevant. Whether the initial transferee's statement on the 4473 is false, and thus a violation of 18 USC 922(a)(6), is determined by the intent of the parties at the time. If the initial transferee is obtaining the gun on behalf of another person, by prior arrangement with that person, it is a crime whether the second transfer takes place an hour later or in five years.

So X says to Y, "Buy this gun for me. I'll pay you for it, but you'll need to hold on to it for a couple of years while I tour the South Pacific." If Y agrees, he'll be lying on the 4473 if he claims to be the actual buyer -- even if the second transfer completing the contemplated transaction won't happen for several years.

Holding the gun for a long time might make it harder, as an evidentiary matter, for the prosecutor to make his case; but otherwise there is no "magic number."

 

[rcollier]

Thanks for the legal education!

 

[Skans]

From ATF's website:

The Indictment alleges that Miller traveled with Henry and Harris to ****ord Trade and Exchange to purchase a firearm for others. After Harris picked out a particular handgun for purchase, Miller filled out an ATF Form 4473 for that firearm and falsely represented that he was the actual transferee or buyer of the handgun. In reality, Miller was purchasing the firearm, at Harris’ request, for others. Miller is alleged to have acted as a straw purchaser.

Again, OP's original scenario sounds like a straw purchase to me. I think ATF would agree.

 

[vranasaurus]

It's all about intent when you fill out the form. It's perfectly legal for me to buy a gun for myself and then sell it 15 minutes later. As long as at the time I filled out the form I was not intending to sell it.

However that short time period of time is certainly circumstantial evidence of my intent. A conviction of even the gravest offenses may be sustained by circumstantial evidence alone. Often times the only evidence of intent is circumstantial outside of statements of an accused.

 

[44 AMP]

It's all about intent when you fill out the form. It's perfectly legal for me to buy a gun for myself and then sell it 15 minutes later. As long as at the time I filled out the form I was not intending to sell it.

\

True.

But aside from the circumstantial evidence of intent that selling almost immediately after you buy it provides, there is another charge you might be liable for. Engaging in the business of dealing in firearms without an FFL.

Getting a conviction might be a difficult matter, but that doesn't stop over zealous agents and prosecutors from bringing charges, if they feel like it.

They may only do it rarely, but they can legally do it, and if they do, you will be on the hook for whatever costs your defense entails.