4473 and the 5th Amendment

[steve4102]

I know the courts have ruled that forcing a prohibited person to register a firearm can be a violation of the 5th and self incrimination, but what about 4473.

What is the difference between lying on 4473, marijuana use for example and refusing to register?

Over the past several weeks/months I have read that Hunter Biden admitting drug use on 4473 is a violation of his rights??

 

[ballardw]

I believe the problem relates to supposedly falsifying the form and indicating "No" to the "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant ..." on the form.

A 'Yes' answer would disqualify the purchase.
But then there are sources of use in other places.

 

[steve4102]

But wouldn’t answering “yes” incriminate oneself?

 

[Aguila Blanca]

I think the courts' views on that are that buying a gun is not mandatory. Nobody forces you to fill out a 4473, you choose to fill it out if you purchase a firearm through an FFL. So, yes -- perjuring yourself on the 4473 is self-incriminating, but nobody made you do it.

"But, but .. muh Constitooshunal rights! I got a right to have a gun!"

Yes, you do. You also have a right to NOT use recreational (or [maybe] medicinal) substances that are illegal under federal law. Take your pick. Life is all about the choices we make. If you choose to use illegal chemical substances, then you voluntarily waive your right to have a gun. I don't want to open the argument over whether or not that's the way it should be, but that's the way it is. As an instructor I once had used to say, "What is, is. It is your resistance to what is that causes your unhappiness."

 

[steve4102]

If I recall Frank had a comment or two on this a few years ago, but damned if I can find it.

 

[Metal god]

I believe the question is do you use or are you addicted. Nothing on have you ever . Seems pretty ambiguous and a pretty simple question to answer .

 

[44 AMP]

Can of worms, 1, each Fed form # 4473......

I know the courts have ruled that forcing a prohibited person to register a firearm can be a violation of the 5th and self incrimination, but what about 4473.

First point, I think you're misunderstanding the court's ruling on the matter. While they do point out that a prohibited person would be violating his right against self incrimination if he were required to register a gun, what they ruled on is that the govt cannot prosecute him for not registering a gun that he (illegally) possesses.

They can prosecute him for illegal possession of the gun, but not for failing to register it.

Next point, LYING on the 4473 is a crime. All on its own.

Telling the truth on the form is not a crime, even if it results in denial of purchase. Now, here's where it gets tricksy.....

Are you legally a prohibited person, if you freely admit to something that disqualifies your purchase, when you haven't been convicted of anything, or ruled by a court that you are a prohibited person???

I don't know. Which is why I call it a can of worms.

 

[Aguila Blanca]

I believe the question is do you use or are you addicted. Nothing on have you ever . Seems pretty ambiguous and a pretty simple question to answer .

The current version of the 4473 asks the question this way:

"Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?"
You are correct -- the question is posed in the present tense. If you used to play with recreational chemicals but have stopped, I am not aware of any bright line guidance as to how long you have to be clean before you can honestly answer this question "No."

It's perhaps interesting to note that you can use much stronger stuff than marijuana and still answer no -- if you are using the stronger stuff legally, by prescription. Prescriptions for medical use of marijuana don't help, because federal law has not yet recognized the medical use of marijuana. Therefore, ALL use of marijuana is a disqualifier, even if you have a medical marijuana card.

 

[44 AMP]

-- the question is posed in the present tense. If you used to play with recreational chemicals but have stopped, I am not aware of any bright line guidance as to how long you have to be clean before you can honestly answer this question "No."

Well, that's one of the worms, isn't it???

Have heard people say "no positive in 6 months, you're good to go" Have also heard people say no conviction in 5 years, you're good to go....

On the other hand, I know people who would say that as long as you're not smoking weed at the time you sign the form, you're not lying.......

I guess it would have to do with how you define "currently", and of course, how a DA defines it.....

 

[HiBC]

Not a concrete source I can document, but I recall reading any failure of a drug test within one year of a 4473 would be sufficient to nail you.

Am I interested in arguing the point? NO! Do whatever makes you happy.

I don't worry about it because I don't use.

How you make choices and take are of yourself is not my problem.

 

[TomNJVA]

This from ATF Federal Firearms Regulations Reference Guide concerning drug use:

"Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year."

Not exactly “bright line” guidance but perhaps of some help.

 

[dogtown tom]

steve4102 I know the courts have ruled that forcing a prohibited person to register a firearm can be a violation of the 5th and self incrimination, but what about 4473.

The Form 4473 does not "register" the firearm to anyone. It is the record of a firearm transaction between a licensed dealer and the buyer/transferee. (says so at the top right corner on pg 1.

There is no federal firearm registration for anything but NFA firearms.

What is the difference between lying on 4473, marijuana use for example and refusing to register?

If you lie on the 4473 you commit a federal feloney.
Refusing to fill out a Form 4473 means the dealer isn't going to transfer a firearm to you.

Over the past several weeks/months I have read that Hunter Biden admitting drug use on 4473 is a violation of his rights??

What nincompoop wrote such nonsense?
As the instructions on the Form 4473 explain, marijuana use and possession is still illegal under federal law.

No one forces anyone to fill out a 4473.

 

[dogtown tom]

steve4102 But wouldn’t answering “yes” incriminate oneself?

Possibly.

 

[dogtown tom]

Metal god I believe the question is do you use or are you addicted. Nothing on have you ever . Seems pretty ambiguous and a pretty simple question to answer .

The devil is in the details.
While you may not currently be in possession of marijuana, may not be currently addicted to marijuana......how recent your last use of marijuana may make you a prohibited person.

See: https://www.justice.gov/file/1385186/download

 

[dogtown tom]

44 AMP

Are you legally a prohibited person, if you freely admit to something that disqualifies your purchase, when you haven't been convicted of anything, or ruled by a court that you are a prohibited person???

I don't know. Which is why I call it a can of worms.

I do know.
Clearly one does not need to be convicted of something to be a prohibited person.

Read the questions. A "prohibited person" may not be a felon, drug addict, or anything else that seems illegal. It just means that the person is prohibited by federal law from possessing a firearm.

For example, a person in the US on a nonimmigrant visa is not here illegally. But they cannot lawfully possess a firearm unless they meet certain exemptions to federal law.

Rob a bank, go on the run. You aren't charged, must less convicted. But still a prohibited person.

 

[dogtown tom]

HiBC Not a concrete source I can document, but I recall reading any failure of a drug test within one year of a 4473 would be sufficient to nail you.

Has nothing to do with anything about filling out the Form 4473 TODAY.

Having a hot drug test tomorrow? Yeah.
But its possible to be clean today, lawfully purchase a gun tomorrow, then become addicted to illegal drugs in ten months.....that doesn't mean you lied on your 4473.

 

[Metal god]

As far as I can tell the use needs to be documented. Nothing in the ATF wording linked above asked your opinion of the use . It’s pretty clear it needs to be an official documented use . Which it should be , I/we are not Dr’s and don’t have the expertise to evaluate such things to a point of a legal standard .

As far as the one year aspect I believe it’s reasonable to conclude the one year would be prior to filling out the paperwork then after .

 

[Aguila Blanca]

This from ATF Federal Firearms Regulations Reference Guide concerning drug use:

"Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year."

Not exactly “bright line” guidance but perhaps of some help.

If that's not bright line guidance, it's pretty close thereto. I would use that as a guide without hesitation.

It makes it very clear that someone who smoked a joint last night, hasn't smoked on [yet] when they walk into the gun store this morning but certainly will light up when they leave the store (or maybe not until they get home with their new MegaBlaster 850XL) cannot legitimately answer "No" to the question just because they don't happen to be actively smoking at the precise moment they check that box.

 

[Frank Ettin]

If I recall Frank had a comment or two on this a few years ago, but damned if I can find it.

Well, see this post:

...If you would be a prohibited possessor, you CAN be charged with perjury despite exceptionally similar self-incrimination issues?

They are not similar self-incrimination issues.

1. If one is legally required to register a gun, and if registering a gun would require that you incriminate yourself by admitting you're prohibited person in possession of a gun, you cannot be prosecuted for not registering the gun.
   
   
   • Since registering the gun you already have would, under the circumstances assumed, be a compulsory act, prosecuting you for not registering the gun would violate your Fifth Amendment right against being:

     ...compelled in any criminal case to be a witness against...

     yourself.
     
     
   • You could still be prosecuted for being a prohibited person in possession of a gun, but the prosecution would have to be based on evidence other than your registration of the gun or evidence derived from your registration of the gun.
   
   
2. On the other hand, no one is required to buy a gun. You can not be prosecuted for not having a gun.
   
   
   • If you choose to buy a gun and buy one at a dealer (or if under state law you have to buy a gun at a dealer), you have to fill out a form; and you commit a federal crime by lying on that form (violating 18 USC 922(a)(6)).
     
     
   • But you can avoid having to fill out that form by simply not buying a gun. And if you don't buy a gun, you will not be prosecuted for not buying a gun.
     
     
   • Thus buying a gun is not compulsory, and so you may be prosecuted for failing to truthfully admit on the form a disqualifying condition.

and this post:

...Are you suggesting that if a plain clothed police officer looks over my shoulder when I check yes on this government form, and uses that as probable cause, I wouldn't have incriminated myself?...

Let's limit this to the 4473 issue so things don't get confused. So we'll posit that the LEO is looking over your shoulder as you fill out a 4473 to buy a gun at a dealer.

You have incriminated yourself because you have admitted committing a crime. But the use of your admission does not violate your Fifth Amendment right not to be compelled to testify against yourself.

You have the right not to answer the question because you had the right not to buy the gun. Your choice to buy the gun was voluntary, and once you have made that choice you may be required to disclose your record on the 4473. Incriminating answers may be used against you, and you may be prosecuted for giving false answers.

In effect, by choosing to buy a gun you have waived your Fifth Amendment right not to be compelled to testify against yourself. If you want to preserve that right, don't buy the gun. You can not go to jail for not buying a gun.

It's similar to how things work if you're on trial on a criminal charge and testifying on your own behalf.

1. You have a Fifth Amendment right not to testify on your own behalf; and if you choose not to testify, your failure to testify may not be used against you.
   
   
2. However, if you choose to testify, you will be subject to cross examination. In that event, during cross examination, you may not claim the Fifth Amendment privilege to avoid answering any question properly within the scope of cross examination; and if you lie when answering any such question you will still be subject to prosecution for perjury.

And understand that while it's an important personal right the Fifth Amendment privilege against being compelled to testify against yourself has limits. It, like other evidentiary privileges allowing one to resist disclosure, hampers discovering the truth; so they tend to be narrowly applied. For example, see this thread discussing a recent Supreme Court decision narrowing the "right to remain silent."

...The fact is the form specifically, directly asks if you have committed a crime...

Yes it does. So what? You would commit no crime by not buying a gun; and if you don't buy a gun, you don't have to answer the questions.

As far as I can tell the use needs to be documented. Nothing in the ATF wording linked above asked your opinion of the use . It’s pretty clear it needs to be an official documented use . Which it should be , I/we are not Dr’s and don’t have the expertise to evaluate such things to a point of a legal standard ....

Except that's not necessarily what a court would say. In U.S. v. Burchard, 580 F.3d 341 (6th Cir., 2009) the Sixth Circuit found that (at 355):

...the regular use of a controlled substance either close in time to or contemporaneous with the period of time he possessed the firearm...

would support conviction under 18 USC 922(g)(3).

 

[Aguila Blanca]

As far as I can tell the use needs to be documented. Nothing in the ATF wording linked above asked your opinion of the use . It’s pretty clear it needs to be an official documented use . Which it should be , I/we are not Dr’s and don’t have the expertise to evaluate such things to a point of a legal standard .

IMHO it's not at all clear that it needs to be an officially documented use. It's a VERY simple question. If I smoke a joint every evening, I am an unlawful user of marijuana. Nothing needs to be "documented." What is, is. As someone mentioned above, if you rob a bank and you haven't been caught (yet), you ARE a bank robber. "Documentation" (i.e. being caught and charged) or lack of documentation doesn't change that.