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February 23, 2024, 03:41 PM | #26 | |
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February 23, 2024, 05:31 PM | #27 | ||||
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Abramski is not merely a confirmation of the original bureau position or implementation of the Act. It contradicts earlier bureau positions and enforcement. Quote:
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February 23, 2024, 06:36 PM | #28 |
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It may well have been different in the past, and it may well be different at some point in the future, but right now, as it currently stands, a straw firearm purchase and misrepresenting the actual buyer on the 4473 are the same thing.
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February 23, 2024, 07:07 PM | #29 |
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The part that has always confused me is that, if you're standing there, paying for the item, how can you NOT be the actual purchaser??
Now, I understand that the law is written to allow them to ASSUME you're not, based on what they THINK you are going to do with the gun after you buy it, and get most wroth when you say you are the buyer and they decide you're not, but I've always wondered, what part of the law or what legal principle allows them to accuse you of a crime, based on what they think you're going to do, and not on what you have done.
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February 23, 2024, 08:15 PM | #30 | |
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2. If you are buying it for someone else and they will be repaying you in any way for your services and/or the gun then they are the actual purchaser and you are standing in for them during the purchase process. You are the actual purchaser if: 1. You are buying the gun for yourself. That is, your goal for the gun is that you will take it home and it will be your possession. That doesn't preclude your changing your mind at some time in the future, deciding that you no longer want to possess it and selling it. But you shouldn't be buying it if your intent, at the time of purchase, is to transfer possession to someone else in exchange for money/goods/services. OR 2. You are buying the gun as a gift (offered freely with no expectation of payment/repayment/trade/services) for someone else.
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February 23, 2024, 09:04 PM | #31 | ||
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If a child is sent by a parent down to the corner store to buy a pack of cigarettes for the parent, then the parent is the actual buyer and the child is just an agent delivering the money and bringing the cigarettes back. Quote:
Presumably, most real situations would be more subtle, but the practical lesson is to not give the FFL a sense that something weird is going on because his default choice is the one that gets him in no trouble.
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February 23, 2024, 09:50 PM | #32 | ||
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This is not offered for obfuscation. A better understanding of the role of agency should allow a better understanding of what an actual buyer/transferee is.
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February 23, 2024, 11:22 PM | #33 | |
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February 24, 2024, 12:34 AM | #34 |
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zukiphile, are you proposing that Abramski did NOT purchase the firearm for someone else, using that person's money (or with the prior understanding that the cost would be reimbursed?
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February 24, 2024, 01:24 AM | #35 | |
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I get the idea of acting as an "agent" for someone else, don't nearly all of us who work for someone else do that every working day?? I just have the idea that if you pay the money, and buy the item, you are the actual purchaser, and how the money got in your pocket doesn't matter, or shouldn't. as it doesn't matter in nearly everything else in life. I understand the issue with buying something for someone who isn't legally allowed to have it, I just think that the focus on who is doing the purchase as criminal shouldn't be as important as who winds up with the product they can't legally have, and that if the product is something that they can legally have, making its purchase by someone else shouldn't be a crime, and there shouldn't be a "landmine" in the federal form to trap people with. That just seems like a (not so) petty abuse of authority. I get it, guns are a special case, and the laws applied are often unlike other laws, it is the reality, and I recognize that. I just don't think it ought to be that way. Just one more example of regulating things rather than putting the emphasis where I think it ought to be, on what people DO with things. Just my opinion. Worth what you paid for it, or probably less...
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February 24, 2024, 02:33 AM | #36 | ||||
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1. You either aren't actually paying the money (someone else is actually paying and you're just going through the motions) or you are paying the money knowing you're going to be reimbursed/compensated in some way for your expense. 2. You aren't the one actually buying the item, it's someone else who is actually buying the item and they are paying for it with you just going through the motions for them. Think of it this way: Why are you there? If you are there because YOU want a new gun for yourself (or to give to someone else as a GIFT) then that's fine. If you are there because someone ELSE wants a new gun and is paying you or otherwise compensating you for going through the motions for them, then that's a problem. Quote:
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The problem isn't the question, the problem comes when people complicate things by trying to answer what they THINK the question is or what they THINK it should be instead of just answering the question. The FFL will explain it if there are questions, but the form itself has an explanatory section that is pretty straightforward if people will just read it and do what it says. Here's the question: (I have added some emphasis.) Are you the actual transferee/buyer of all of the firearm(s) listed on this form and any continuation sheet(s) (ATF Form 5300.9A)?Here's the explanatory section that applies: (I have added some emphasis.) Question 21.a. Actual Transferee/Buyer: For purposes of this form, a person is the actual transferee/buyer if he/she is purchasing the firearm for him/herself or otherwise acquiring the firearm for him/herself. (e.g., redeeming the firearm from pawn, retrieving it from consignment, firearm raffle winner). A person is also the actual transferee/buyer if he/she is legitimately purchasing the firearm as a bona fide gift for a third party. A gift is not bona fide if another person offered or gave the person completing this form money, service(s), or item(s) of value to acquire the firearm for him/her, or if the other person is prohibited by law from receiving or possessing the firearm.
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February 24, 2024, 03:27 AM | #37 |
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About the only difference between a firearms straw purchase and a straw purchase of tobacco or alcoholic beverages for under-aged people is that buyers don't have to fill out a 4473 to buy cigs or booze.
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February 24, 2024, 07:17 AM | #38 | |||||
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Alvarez accepted Abramski's offer to buy a gun on behalf of Alvarez. Uncle sent Abramski the money by check with a note "Glock 19 handgun" on the check, further evidence of their agreement. Only then did Abramski go to the store, stand at the counter, fill out the 4473 as the actual transferee and get the gun. Alvarez and Abramski were principal and agent by their specific agreement. The majority in Abramski reasoned that because Alvarez was the principal, he was the true transferee and Abramski was like the child picking up cigarettes for the parent. Quote:
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You'll also see these in real estate where a buyer doesn't want the seller's disdain for the buyer to queer an offer. In that scenario, it's the buyer's identity that is the disability. Quote:
Ideally, the gift explanation would be omitted from an explanation of the rule because it isn't an exception to the rule. A gift isn't the subject of an agent/principal relationship. If I buy a bottle of wine to offer you when I come to dinner at your home, I am the true purchaser; I have purchased it to possess and then give to you. I'd expect to get dinner at some point in the evening, but it's still a gift of my bottle of wine. I understand why the gift explanation is included -- some people will have difficulty with the idea involved and giving several common scenarios is easier for some people to apply. However, it's merely an illustration of the principle, not an exception to it. Quote:
_________________________ * The latter bolded addition doesn't help explain agency, but does reflect a purported restriction on the transferee's intent at the time of transfer. I include it only to avoid a misunderstanding that the gift scenario is a loophole for giving one's favorite felon a firearm as a gift.
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February 24, 2024, 12:02 PM | #39 | |
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The dissent in Abramski saw the issue similarly, but it was a dissent. The dissent used very conventional legal analysis to argue that the government shouldn't be allowed to argue in 1969 that you are the true purchaser if you are at the counter, cash in hand on behalf of someone else, but then in 2001 argue the opposite. Statutory ambiguities aren't ordinarily supposed to be viewed in a light least favorable to a criminal defendant. There could be other ways to skin the cat. If I'm a felon and you are my agent, you could buy a firearm from an FFL, declare yourself the true buyer/transferee and pass the firearm on to me, and we are open to charges of having engaged in a conspiracy to violate the Act. That doesn't require importing an agency analysis into the code in order to find that a benign buyer is a criminal. Keeping a straw buyer from working with prohibited people to acquire guns may be a laudable policy goal, but it isn't necessary to convict Abramski since that wasn't what that case was about.
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February 24, 2024, 02:23 PM | #40 | ||
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Regardless of what position the BATF held in times long past, they had taken the position that a straw purchase was equivalent to lying on the 4473 well before the Abramski case came along.
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February 24, 2024, 03:51 PM | #41 | |||||
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A straw purchase can be illegal where the identity of the buyer is a material misrepresentation and the seller is defrauded even if the buyer can legally possess what he bought, but it isn't the transfer that is illegal, it's the fraud. A straw purchaser may breach constitute a breach of a sale agreement, but that's not categorically illegal in a criminal sense. The issue isn't whether guns are the only subject matter where an agent as a buyer for a criminally prohibited transferee, but whether the current gun rule is a departure from the general rule. Two observations: Straw purchases aren't categorically illegal. In the real estate example, concealment of the true purchaser isn't always illegal. The disability can be nothing more than the buyer's true identity. There are more disabilities than being prohibited from possession by criminal law. It isn't a crime for a person with the disability of a bad reputation to use an agent to purchase real estate, yet it is still correctly described as a straw purchase. Quote:
Dogtown Tom's assertion above is incorrect in two ways. First, the general concept of a straw purchase involves a disability of the principal. That general principle doesn't prevent legislators from departing from that principle, but that's an adaptation rather than the general rule. Second, the holding in Abramski wasn't clearly the law the prior to Abramski or else the Sup Ct wouldn't have taken it. It only takes reading Abramski to understand that it wasn't the uniform rule prior to the Abramski decision.
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February 24, 2024, 04:13 PM | #42 | ||||||||
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At any rate, even if we accept that number as accurate, it's still reasonable to say that: "...it was not different for many years leading up to Abramski." Quote:
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February 24, 2024, 07:31 PM | #43 | ||||||
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I'll observe that the Bureau articulating a position and losing doesn't make it law. Quote:
In Polk, the government lost its argument. Quote:
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February 24, 2024, 11:21 PM | #44 | |||
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For whatever it's worth, Polk's charges were filed in 1995. More to the point, in the appeal it was noted that the 1994 4473 was markedly different from the 1991 4473. https://caselaw.findlaw.com/court/us...t/1188031.html We note a marked difference in the “straw purchase” warning on the reverse side of the August 1994 version of ATF Form 4473 and the April 1991 version of that same form. The April 1991 warning states that a “straw purchase” may violate federal firearms laws if the licensee knows and has reasonable cause to believe that the true purchaser of the firearm(s) is “ineligible” to make that purchase directly. By contrast, the August 1994 version of Form 4473 significantly broadens the definition of “straw purchase” transactions: “A ‘straw purchase’ occurs when the actual buyer uses another person (the straw purchaser) to execute ATF Form 4473 purporting to show that the straw purchaser is the actual buyer.”That suggests that the BATF decided to push the enforcement of a straw purchase as merely being a misrepresentation of the actual buyer sometime between 1991 and 1994 when the new form came out. Somewhere between 20 and 23 years before Abramski. Quote:
If he had been found not guilty in any of the appeals, it would never have made it to the Supreme Court. You don't appeal not guilty verdicts and you can't be tried again if you are found not guilty. So, it would not only be easier, as you agree, the statement I made is also perfectly correct. The fact that another circuit court, in a different case made a different ruling doesn't call the accuracy of my assertion into question. Quote:
At the enforcement level the determination was that Abramski was deserving of arrest and prosecution. At every trial and appeal he was found guilty. SCOTUS agreed with his conviction. That's not very good evidence for the idea that the law he was prosecuted under was questionable. Finally, regardless of all of that, the bottom line at this point is that lying on the 4473 form about the actual buyer constitutes a straw purchase. The BATF, whatever their previous position, has taken that position since sometime before 1994, for at least the last 30 years. And, in case there's any question about the strength of their position, Abramski confirms that the courts will convict, and appeals courts will uphold convictions, based on it.
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February 25, 2024, 09:13 AM | #45 | ||||||||
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Instead, the Bureau undertook a novel reading of the Act and materiality that contradicted its earlier position, lost in the fifth circuit and worked with that loss on that point of law for another 17 years. Quote:
Where there is a circuit split on an issue, there isn't a singular "the law" on that issue. That Abramski was taken because of and resolved the split is the assertion. Quote:
Your rendition above omits the information you already know that contradicts it. Since you now know of a 1997 holding in another circuit that stood for 17 years prior to Abramski, you are aware that the rule in Abramski was disputed and not "clearly the law". Quote:
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Now you raise the issue of whether the Abramski decision is questionable. That it is questionable should be apparent. First, that the bureau itself interpreted the very same code differently until the 1990s indicates ample ambiguity as viewed by the Bureau itself. Second, ordinary application of lenity would not permit the government to convict based on that ambiguity. Third, 5-4 decisions are uniquely susceptible to later overturning or limiting, which is one reason that as great as Heller was, it was comforting to see the 6-3 vote in NYSPRA. Fourth, the majority rationale in Abramski is policy driven, much like the majority reasoning in Raich; upholding a result on policy ground despite conventional legal concepts and the text of the law being applied can get votes, but is analytically weak.
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February 25, 2024, 11:26 AM | #46 |
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IMHO (as a layperson, not as an attorney), any time there is a circuit split that's (to me) prima facie evidence that the law in question is OBVIOUSLY not clear.
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February 25, 2024, 04:20 PM | #47 | |||||
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That aside, it's one thing to say a law is not clear. It's quite another to claim it didn't exist until SCOTUS confirmed it. Quote:
2. Since you read my post, you know what I said was: "It would be much easier to argue that it clearly was the law prior to Abramski or he wouldn't have been arrested, prosecuted and convicted and the conviction wouldn't have been upheld at every step through the appeals process--up to and including the Supreme Court. " There is absolutely nothing in that statement that is incorrect. He was arrested, prosecuted and convicted and then lost every appeal. Based on an existing law. Quote:
It's simply nonsense to claim that the SCOTUS decision established a law. SCOTUS can overturn laws or confirm laws, but they can't create them. The law clearly existed before Abramski, that's why he was prosecuted and convicted in the first place. The validity of that law was confirmed by the appeals and finally by SCOTUS. Quote:
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February 26, 2024, 09:08 AM | #48 | |||||||||||
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I would encourage you to review the thread. The matter under discussion with Spats was not about authority within a circuit. Quote:
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One cannot simultaneously recognize that and fail to see the error in tom's assertion. The idea that the rule in Abramski was uneqivocally the law on this issue, and Abramski's case just made it to the Sup Ct so they could let everyone know this point wasn't previously disputed in the law should set off your nonsense meter. Quote:
I am providing an explanation on this to resolve the equivocation introduced on whether the Court establishes a law or the law. Quote:
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February 26, 2024, 11:10 AM | #49 | |||||||
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The BATF position was clearly law prior to Abramski or he could not have been convicted of it. Quote:
If you want to address my comments, it would be more productive to do so. Putting words in my mouth and then addressing the resulting strawman is pointless. Quote:
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February 26, 2024, 12:30 PM | #50 | ||
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"General principle" is irrelevant. Again, this isn't a loaf of bread you buy for your neighbor. And again, a "straw sale" is not illegal. You can buy guns any day of the week on behalf of others. No federal law concerns itself with "straw sales" between nonlicensees. The crime that occurs is when you complete and sign the Form 4473, attesting that you are the actual buyer/transferee. The instructions on the Form 4473 make it very clear that the only exemption is when the buyer/transferee intends to make a bona fide gift of that firearm. Unlike the example above, this would occur only at a licensed dealers premises. If the potential buyer/transferee disagrees with the instructions and requirements on that Form 4473, lying isn't the way to address that. Whether ATF took a different view in the '70's or '80's is irrelevant. The Brady Law (passed in 1993) that required a background check prior to a dealer transferring a firearm, made it clear that the actual buyer needed to undergo that check, not someone else. Whether the law was clear or unclear didn't really matter to Bruce Abramski. He lied first when he presented expired LE credentials to get a Blue Label discount on that Glock, then again when he lied on the 4473.
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