4473 and the 5th Amendment

[Frank Ettin]

...If a person is found not guilty of drug possession or use in a court of law or any other official manner and that is the only offense they have ever been charged with . Are they a prohibited person ?...

If he in fact is a user of marijuana, yes. He remains an unlawful user of a controlled substance and therefore prohibited under 18 USC 922(g)(3) from possessing a gun or ammunition.

The fact of his acquittal on some drug related charge has nothing to do with whether or not he is in fact an unlawful user of a controlled substance.

...If bank robber suspect is acquitted of the robbery and has no other offense’s on there record . Are they a prohibited person ?...

Given the facts assumed, and further assuming that nothing else might disqualify him from possessing a gun or ammunition under either federal or state law, no, he would not be prohibited under 18 USC 922(g)(1).

One is disqualified under 18 USC 922(g)(1) from possessing a gun or ammunition if he:

...has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year....

No conviction means no disqualification under that particular statute.

 

[dogtown tom]

Metal god As far as I can tell the use needs to be documented.

Huh?
Where do you get this idea?
The buyer/transferee is the one voluntarily answering the questions on the 4473. NOWHERE is he required to document the response to that question.

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 .

Yet it isn't a Dr, the buyer/transferee or the FFL that will determine whether the buyer is an addict or user of illegal drugs. It will be LE.

 

[Metal god]

FWIW I edited my post with what I think is a not dumb answer lol

 

[dogtown tom]

44 AMP Just for the sake of argument, where does the presumption of innocence figure into it, if it does, at all???

It doesn't.

Using the example of a bank robber, on the run, (just for an example not involving drugs) ok, so, he did rob a bank, BUT he's not caught, (yet) not arrested, charged, or convicted, so is he legally a bank robber?? The govt has no proof, until he's convicted, right?

He's a prohibited person because he's either a fugitive or under indictment. Neither circumstance needs to be proven for him to be a prohibited person.

Sure, he's going to lie, and say he didn't do it, but until a court rules he did, then is he actually lying, in the legal sense??

If he's a fugitive, lies on the Form 4473 by answering no....he incriminates himself. If he answers yes, he isn't lying, but the sale cannot proceed.

I have seen, over the years, many examples where common sense and legal status are not always 100% the same.

Isn't that one of the things involved, here???

The prohibited persons questions let the buyer know whether he is prohibited from possessing and if he lies.....a criminal charge for attempting to buy a firearm and yet another criminal charge for giving false information on a federal document.

 

[dogtown tom]

Metal god That's not true - full stop haha . What if they are acquitted ?

Hahaha...irelevant.
You can be prohibited from buying or possessing firearms for being a fugitive. Being a fugitive means YOU AINT BEEN CAUGHT YET.

Are you saying they "were" a bank robber until acquitted ? What happened to innocent until proven guilty ?

You fail to grasp the concept of prohibited person. One does not need to be a criminal, convicted or sentenced to be prohibited from possessing firearms.

I believe that's the point here . If nothing is legally proven how can you be guilty of it . We are talking about the law and courts correct ? Not what we know is right and wrong ?

No, the point is knowing what is a prohibited person vs someone who is not prohibited.

 

[dogtown tom]

Metal god Lets ask it this way , if you were found not guilty of doing drugs and answered no on the 4473 , did you legally commit perjury ? Are you a prohibited person ?

Try reading the instructions on the Form 4473.

 

[dogtown tom]

Metal god It absolutely talks of guilt when it says unlawful .

No, it doesn't.

If there is no proof or admission of guilt how are you “legally” guilty of the unlawful act . Again we are talking legally here . I don’t necessarily disagree with your point only the legal aspects of it .

Guilt has nothing to do with anything.

Ok lets use your bank robber example . If they are acquitted of that felony , are they a prohibited person because they are a bank robber ?

Of course not.....and your example is nonsense.
If the person commits a bank robbery, he is a fugitive until apprehended and becomes a prohibited person the moment he commits the bank robbery. If he then attempts to buy a firearm, LIES on the 4473, he commits a seperate and distinct crime from the bank robbery. If he is later acquitted of the bank robbery, he may still face charges of falsifying the 4473.

If OJ is asked in a court of law under oath if he killed Nicole brown Simpson and answers no did he perjure himself ?

Possibly.

The addicted question is interesting since 99.99999% of addicts don’t think they are addicted.

I'm 99.999999% positive you pulled that figure outta your backside.

So if you are not found guilty of anything and believe you ARE NOT addicted to legally Prescribed drugs . Can you answer no on the 4473 even thought any reasonable person would believe you are ?

Dude.......read the damn 4473 questions. From this question its obvious YOU HAVE NOT DONE SO.

 

[dogtown tom]

Metal god I’m not trolling , I believe in my argument.

Sorry, you really have no argument. You are asking questions based on your misunderstanding of the law, the Form 4473 and what "prohibited person" means.

Its like trying to explain a Tesla to Daniel Boone.

How do you know they robbed a bank if they don’t admit it . You keep saying if you did it , you are that thing . If I say no I’m not , now it’s my word against yours or the person filling out the 4473 and the state .

No sir. The questions on the 4473 do not require you to admit to robbing a bank, just whether you are a fugitive from justice ie on the run.
It's the buyers word, not anyone elses. If the buyer lies, he commits another federal felony.

There must be a finding of fact before one can be found guilty of Lying on the form .

Well no kidding.
Being found guilty means the buyer was charged with lying on the form. Likely the first document admitted at his trial will be the form 4473 he completed and signed where he certified under penalty of law that his answers were true, correct and complete. He incriminates himself.

 

[dogtown tom]

cjwils This may seem almost silly, but the language of 4473 leads me to ask a question I never thought of before. I am addicted to caffeine, a known stimulant. Don't the underlined parts say that I am prohibited? The only way around that would be if the phrase "or any other controlled substance" implies that "stimulant" only refers to stimulants on a controlled substance list. Is the language of 4473 sufficiently clear in implying that only stimulants on a controlled substance list are relevant?

"Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?"

Caffeine is not a controlled substance. Neither is sugar.

 

[44 AMP]

Caffeine is not a controlled substance. Neither is sugar.

just out of curiosity, does any one know if, currently, coffee,tea,sugar, butter, tobacco/cigarettes and hard liquor are still rationed commodities on US bases overseas??

In the 70s, when I was there, they were most definitely "controlled substances", in the sense that one was only allowed to purchase limited quantities, and you could get in legal trouble for selling them to the locals...

 

[JohnKSa]

1. Lying on the 4473 is a crime with a significant penalty. If you can't fill it out truthfully then don't fill it out--that's where your right to not incriminate yourself comes into play. I can't really put into words how bad an idea it is to voluntarily commit a crime where part of the actual crime is the intentional creation of a permanent record of the crime, in front of a witness licensed by the federal government and tasked with maintaining that record under penalty of law.

2. Playing games with the law with your own freedom and money at stake is an impressively bad idea. If you enjoy playing games with the law, get the education, pass the test and if you are any good at it you will get paid to do it with someone else's freedom and money on the line.

Ok, the rest of the questions. Here's the actual line from the law in question:

"...an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))"

This does not reference anything other than Controlled Substances (legally defined term) so comments about uncontrolled substances like caffeine are completely inapplicable.

The terms "unlawful user" and "addicted to" are very simple and very clear.

The question on the 4473 is very clear.

I've found that often when people are trying to confuse the issue (either intentionally or otherwise), they start by trying to redefine things from the very beginning. That's the case here.

The question is not confusing or complicated. The problem is when people try to alter the question and then answer their strawman version of the question.

The best way to clarify things is to strip the manufactured complexities away from the true issue.

So, let's look at some things the question on the 4473 does NOT ask.

It does not ask: "Have you ever been caught unlawfully using controlled substances?" It doesn't ask that because the answer is not relevant.

It does not ask: "Do you think it's likely you will be caught unlawfully using controlled substances?" Also irrelevant.

It does not ask: "How long has it been since you were convicted or acquitted of unlawfully using a controlled substance?" Because that's not relevant to whether or not you are currently in violation of the law and that's the point of the question.

It does not ask: "Have you ever been convicted or acquitted of unlawfully using a controlled substance?" That's not relevant to the real issue of whether you are currently in violation of the law.

It does not ask: "How long has it been since you last unlawfully used a controlled substance?" How long it's been is not relevant--what's relevant is whether or not you are currently a prohibited person.

I'm not going to list all the questions that aren't asked on the 4473, but it's a useful exercise. Instead of looking at the question and thinking: "What are all the possible interpretations of the question that might introduce ambiguity and confusion?" it's more valuable to look at the the question as it stands and then think about why it is the way it is and why it's not worded differently than it is.

 

[dogtown tom]

JohnKSa.....................

What he said.

 

[langenc]

I didnt read many posts but where does this come from?? Found about 5-6 post

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

Have right to 'keep and bear" but owning?? I guess you cant "keep anmd bear" if you cant own..

Poor Hunter and the "BIG GUY."

 

[Aguila Blanca]

I didnt read many posts but where does this come from?? Found about 5-6 post

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

Have right to 'keep and bear" but owning?? I guess you cant "keep anmd bear" if you cant own..

When you voluntarily choose to violate certain laws, you voluntarily waive a number of constitutional rights.

Illegally using controlled substances is a crime that automatically makes you prohibited from possessing firearms or ammunition. It's a very simple calculation: If you want to own firearms -- legally -- don't do drugs.

What's the old saying? "Don't do the crime if you can't do the time." The "time" for firearms prohibition resulting from a felony conviction is the rest of your life.

You didn't quote the rest of my post that you cited above:

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."

 

[44 AMP]

The OP was a question about the 4473 and the 5th Amendment protection from self incrimination.

We've danced around "prohibited person" a bit, and there seems to be two different points of view, one being you become a prohibited person the moment you do something that puts you in that category, and the other being you aren't, until you get caught, or admit to it.

I don't think either one really applies much to the OP. We have established what both the 4473 and the 5th Amendment SAY....

And since no one is compelled to fill out a 4473, doing so is voluntary, and therefore the 5th Amendment protections do not apply.

Do we have anything else of merit to the OP to discuss??

 

[Metal god]

I thought the idea of being acquitted of any felony resulting in double jeopardy applying . Would then absolve you from the self incriminating Part of filling out the form because you cannot be tried a second time for the crime you were Acquitted for . Therefore if you robbed that bank and we’re acquitted of said crime , you would have to admit that you rob the bank on the 4473 .

 

[Aguila Blanca]

I thought the idea of being acquitted of any felony resulting in double jeopardy applying . Would then absolve you from the self incriminating Part of filling out the form because you cannot be tried a second time for the crime you were Acquitted for . Therefore if you robbed that bank and we’re acquitted of said crime , you would have to admit that you rob the bank on the 4473 .

No. Because the questions on the 4473 about other felony crimes asks specifically if you have been convicted or if you are under indictment. If you have been tried and acquitted, you are still a bank robber but you can lawfully answer "No" to those questions.

b. Are you under indictment or information in any court for a felony, or any other crime for which the judge could imprison you for more than one year, or are you a current member of the military who has been charged with violation(s) of the Uniform Code of Military Justice and whose charge(s) have been referred to a general court-martial?
c. Have you ever been convicted in any court, including a military court, of a felony, or any other crime for which the judge could have imprisoned you for more than one year, even if you received a shorter sentence including probation?

The question about drugs and marijuana doesn't ask if you have been convicted. It asks if you are using or are addicted to illegal substances. Indictment or conviction don't enter into that question.

e. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?
Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.

 

[JohnKSa]

I thought the idea of being acquitted of any felony resulting in double jeopardy applying .

For crimes other than unlawful drug use or being addicted to drugs, the questions ask about convictions, current indictments and about being a fugitive from justice.

If you have been acquitted of a particular crime then you have not been convicted of that particular crime, you are not under current indictment for it nor are you a fugitive from justice for that crime.

Just answer the questions as asked. Don't try to complicate them by making up different questions and trying to answer those.

There is no question on the 4473 about acquittals, therefore there is no need to consider acquittals when answering any of the questions.

On the other hand, if you have robbed a bank and have not been tried for it, then you are a fugitive from justice for that crime and would need to answer that question with a "Yes" if you CHOOSE to fill out a 4473.

As far as an acquittal goes (as applicable to the drug situation), it means you won't be prosecuted for the specific crime(s) that you were tried for. It does not give you a blanket of innocence for that type of crime for the rest of your life.

So, for example, an acquittal on drug charges doesn't give one carte blanche to use drugs from then on without fear of prosecution nor does it give one the right to answer the question about being an unlawful user with a lie if one is currently an unlawful user.

Again, just answer the question as asked. Don't alter it or complicate it in your mind and then try to answer the altered question.

1. The drug question doesn't ask about past behavior, it asks about current behavior.
2. The drug question doesn't ask about past acquittals, it asks about the current situation.

...you would have to admit that you rob the bank on the 4473

Filling out a 4473 is voluntary because the government does not force you to buy guns. The government couldn't force a person to fill one out if that person didn't want to--depending on the circumstances, that could be forcing a person to self-incriminate. But if one CHOOSES to buy a gun from a dealer and therefore also CHOOSES to fill out a 4473, that person must answer the questions correctly to avoid committing a crime.

Just as you can not be forced to testify at your trial, but if you do choose to do so, you are not allowed to lie under penalty of perjury.

 

[Frank Ettin]

I thought the idea of being acquitted of any felony resulting in double jeopardy applying . Would then absolve you from the self incriminating Part of filling out the form because you cannot be tried a second time for the crime you were Acquitted for . Therefore if you robbed that bank and we’re acquitted of said crime , you would have to admit that you rob the bank on the 4473 .

You have generally demonstrated a poor understanding of law. What you believe is true is not necessarily true in real life in the real world. And your beliefs do not change what is true in real life in the real world.

As has been said here many times before, to understand the law, one needs to actually study it (whether formally or informally). Much in the law is non-intuitive or will make sense only when one has sufficient background knowledge. You can't expect to be able to figure out what the law is or how it works just by trying to "reason it out." One needs to do the research, study cases, and do the reading.

I'm just goin going to "cut to the chase." None of that is true, and we need to stop trying to go down that rabbit hole.

1. Double jeopardy has nothing to do with this.
   
   
2. Having to fill out a 4473 to obtain a gun doesn't raise serious self-incrimination issues.

 

[Metal god]

Thanks guys I appreciate all your help . I have a much better understanding now .