Could This Be Considered a Straw Purchase?
- Thread starter steve4102
- Start date
True.
Ok. Are we going to talk about straw purchases in general or limit it to firearms?
If we are going to talk about straw purchases in general, then the general concept is simply one where the nominal buyer is not the actual buyer. The actual buyer does not have to be prohibited (although that certainly is the case in many situations), in fact in the general case, a straw purchase does not even have to be illegal (again, although that certainly is the case in many situations).
I don't think it really helps anything to broaden the discussion to cover non-firearm straw purchases--it just makes things more confusing by introducing concepts that may or may not be applicable to the specific topic of firearm straw purchases.
dogtown tom
New member
True, but this thread isn't about having a friend buy you a loaf of bread, but of acquiring a firearm from a licensed gun dealer.
Simply being a "straw sale" isn't a crime. The felony that occurs in the straw sale of a firearm is lying on the Form 4473, by answering that you are the actual buyer/transferee.....when you aren't.
The term "straw sale" is just used to explain the situation.
No, it was the law BEFORE Abramski. Abramski was just the case that made it to SCOTUS.
Aguila Blanca
Staff
It's the way "straw purchase" has always been explained to me, since a couple of decades before Abramski. I'm not an FFL, but I have multiple friends who are.zukiphile said:
dogtown tom said:
It wasn't the law at all times prior to Abramski. The dissent cites the shifts in the government's position on the issue.
Emphasis added. https://supreme.justia.com/cases/federal/us/573/169/
Abramski is not merely a confirmation of the original bureau position or implementation of the Act. It contradicts earlier bureau positions and enforcement.
dogtown tom said:
The thread is about understanding both what a straw sale is and what constitutes a material misrepresentation on a 4473. Understanding the agency principles untangles some of the misunderstanding of the topic that arose early in the thread. Those principles underlie correct application of the "true purchaser" requirement.
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.
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.
1. If you are buying it for someone else with their money then they are the actual purchaser and you are standing in for them during the purchase process.
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.
44 AMP said:
If you are buying it on behalf of another person, acting as that other person's agent.
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.
I don't think that's a fair description of what an FFL would normally be doing in refusing a transfer. If you and I go to a store, I stand next to you, point to a pistol and say in front of the clerk, "I can't buy that because of my numerous felonies. Buy it for me and I'll pay in the parking lot, OK?", the clerk isn't especially concerned about the crime you would be committing, but the problem he will have by violating the part of 922 that prohibits the FFL transferring to a prohibited person. The rationale is that in this story, you are no more the actual transferee than the child picking up cigarettes for a parent is buying cigarettes.
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.
JohnKSa said:
That would be more accurate if it read "You are buying the gun on your own behalf". The word behalf does a lot of work in that; this means that you aren't obtaining the gun with agreement and direction from someone else for his possession.
JohnKSa said:
Expectation isn't the problem in a straw sale. People in Christmas gift exchanges or take each other out to lunch have some sort of expectation of reciprocity. An agent will have an understanding with his principal of his role in the transaction, not just an expection.
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.
Aguila Blanca
Staff
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?
Thinking about it now, it seems that some kind of language specifying the "end user" would make more sense, and be more in line with the common use of language, though the law cares little for that, it seems.
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...
Two issues with that.
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.
As it currently stands, it does not matter if the person is prohibited or not. If you are there to get someone else a gun (that is not a GIFT to them) that is an offense. If you are there to get yourself a gun then you are fine.
Well, sorta, but not really. There are other situations where it is illegal for someone to buy something on behalf of someone else who is not prohibited from making the purchase or possessing the item in question. For example, having someone else go through the motions to purchase a car could be illegal if it is done to circumvent the fact that the actual purchaser has bad credit. By having someone with better credit perform a straw purchase, the actual purchaser gets better financing terms and saves a lot of money. The buyer is not prohibited from possessing the car or buying the car, but what has happened is still against the law because fraud has been committed.
The whole FFL dealer setup is, in my opinion, an overstep by the federal government. It's a clever way to get the Feds involved in something that should be the jurisdiction of the states. So I'm not defending the idea of having the federal government involving itself in the purchase of firearms by an individual. That said, I don't think it's reasonable to characterize the "are you the actual buyer" question as a landmine.
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)?
Warning: You are not the actual transferee/buyer if you are acquiring any of the firearm(s) on behalf of another person. If you are not the actual transferee/buyer, the licensee cannot transfer any of the firearm(s) to you. Exception: If you are only picking up a repaired firearm(s) for another person, you are not required to answer 21.a. and may proceed to question 21.b.
Warning: You are not the actual transferee/buyer if you are acquiring any of the firearm(s) on behalf of another person. If you are not the actual transferee/buyer, the licensee cannot transfer any of the firearm(s) to you. Exception: If you are only picking up a repaired firearm(s) for another person, you are not required to answer 21.a. and may proceed to question 21.b.
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.
EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith (who may or may not be prohibited). Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer “no” to question 21.a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown buys the firearm with his own money to give to Mr. Black as a gift (with no service or tangible thing of value provided by Mr. Black), Mr. Brown is the actual transferee/buyer of the firearm and should answer “yes” to question 21.a. However, the transferor/seller may not transfer a firearm to any person he/she knows or has reasonable cause to believe is prohibited under 18 U.S.C. § 922(g), (h),
, or (x).
EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith (who may or may not be prohibited). Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer “no” to question 21.a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown buys the firearm with his own money to give to Mr. Black as a gift (with no service or tangible thing of value provided by Mr. Black), Mr. Brown is the actual transferee/buyer of the firearm and should answer “yes” to question 21.a. However, the transferor/seller may not transfer a firearm to any person he/she knows or has reasonable cause to believe is prohibited under 18 U.S.C. § 922(g), (h),
, or (x).Aguila Blanca
Staff
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.
AB said:
Emphasis added. "For" doesn't really cover Abramski's conduct.
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.
44 AMP said:
Currently, yes. They are special in so many ways.
JohnKSa said:
In that scenario, the disability is the poor credit rating. It's a straw loan because the borrower suffers a disability he sidesteps by use of the straw borrower. That's a classic straw party scenario.
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.
JohnKSa said:
2. You are buying the gun on your own behalf as a gift for someone else who isn't prohibited from possession.*
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.
JohnKSa said:
Indeed.
_________________________
* 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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44 AMP said:
Emphasis added.
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.
Correct. The point was is that the example I gave (and the one you gave) demonstrates that there are other examples where a straw purchase is illegal even though the buyer is not prohibited from purchasing/possessing. The idea that guns are special--they are the only case where a straw transaction can take place and be illegal even though the actual purchaser is not prohibited from performing the transaction or owning the item in question is demonstrably false as these examples show.
It may well be true that in the distant past the bureau position and enforcement was different, but it was not different for many years leading up to Abramski.
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.