THINK TWICE ABOUT BUYING A GUN ON SOMEONE’S BEHALF

On October 15, 2013, the U.S. Supreme Court agreed to decide exactly what constitutes an illegal “straw purchase” of a firearm under federal law. The case bringing this issue to the high court originated out of the Sixth Circuit Court of Appeals. In that case a former Virginia police officer offered to purchase a weapon for his uncle, believing that his status as a former law enforcement officer would get him a good deal from a local firearms dealer who did a substantial business with law enforcement officials. The officer spoke with several gun dealers about how to legally make such a purchase. These dealers apparently told him that any licensed firearms dealer in Pennsylvania could transfer the handgun to the uncle after it was lawfully purchased in Virginia.

Armed with this information, he purchased a pistol with $2000 in cash. As required by law, he completed Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) Form 4473. The purchaser of a firearm must answer a series of questions listed on the 4473 with a check in either a “yes” or “no” box. Question 11.a asks: Are you the actual transferee/buyer of the firearm(s) listed on this form: Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you. The officer checked “yes.” Three days later a check for $400 was deposited in his bank account and he transferred the pistol to his uncle through a licensed federal firearms dealer in Pennsylvania on the following day. The government considered this a straw purchase and secured an indictment for two firearms offenses: 1) making the “false and fictitious” statement on the 4473 that he was the actual buyer of the pistol in violation of 18 U.S.C. § 922(a)(6); and 2) making a “false statement with respect to information required to be kept in the records of a licensed firearms dealer” in violation of 18 U.S.C. § 924(a)(1)(A).

Federal appeals courts uniformly agree that a “straw purchase” is a sale where a person makes a purchase of a firearm claiming to be the buyer but who is actually purchasing the weapon for another person who will receive possession of it. The officer’s attorneys sought to have the indictment dismissed on the legal premise that because the officer and the uncle were both legally entitled to purchase a firearm, it could not be a straw purchase. This argument is based on the conclusions reached by the Fifth Circuit Court of Appeals in United States v. Polk, addressing the issue of whether criminal liability attaches under § 922(a)(6) if the “true purchaser” can lawfully purchase a weapon directly. Applying the “plain language” of the statute, the Fifth Circuit determined it did not, finding that the intent of § 922(a)(6) is to criminalize false statements designed to “deceive federal firearms dealers” concerning the “lawfulness of the sale;” therefore, if a true purchaser can lawfully purchase a firearm directly, then no criminal liability attaches to the person who fills out the 4473, pays for the weapon, and gives it to the true purchaser.

While the Fifth Circuit is the federal appellate court for the State of Texas, there is a split among the other circuits. Second Amendment proponents strongly believe there is nothing wrong with a relative purchasing a weapon he is legally entitled to purchase with the specific intent to sell it to a relative likewise legally entitled to purchase a weapon. The Fifth Circuit says such a purchase is legal because both parties are legally entitled to purchase and possess a firearm. The Sixth and Eleventh Circuits say these legal entitlements do not matter, that the failure to disclose the identity of the true purchaser is a criminal act. The ultimate answer will lie in how the United States Supreme Court interprets the legislative intent of Congress in passing § 922(a)(6). Until we receive their guidance, proceed with caution if you decide to purchase a firearm on behalf of a family member.