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.

JUST SAY NO! TO TEXTS FROM YOUR CREDITORS…….

Text messages are quickly becoming the new frontier of debt collection communication. The Federal Trade Commission recently announced that it had settled a case against two debt-collection firms alleging that they improperly sent text messages to communicate with possible debtors. Levying a $1 million fine against two related California-based firms: National Attorney Collection Services Inc., and National Attorney Services LLC, the FTC alleged both companies sent about 1.8 million text messages over an 18-month period. These messages were sent not just to debtors, but also to purported debtors’ relatives, friends and co-workers, and even to people with no connection to the debtors. If your smart phone is not properly set up, your text messages can be shared with other members of your family plan. Imagine your child receiving a past due or collection notice from one of your creditors. What if a collection agency mistakenly identified you as a debtor because you share the same name as someone else? It is possible that your friends and associates could receive texts identifying you as a person who was not making good on your debts.

The Fair Debt Collection Practices Act regulates debt-collection action to protect consumer privacy. The Fair Debt Collection Practices Act requires collectors to say what the call or message is about, but also penalizes collectors for revealing the debt to third parties such as roommates or family members of the debtor. So if someone other than the debtor sees the text, the collector is liable. In addition to imposing a $1 million civil penalty, the settlement requires collection firms to clearly and prominently disclose that the consumer may receive collection text messages on a mobile phone number provided to the original creditor or the defendants in connection with the debt. Furthermore, the settlement requires proof the consumer has taken an additional affirmative step, such as providing a signature that indicates the consumer has agreed to receive such messages.

The Federal Communications Commission has recently amended the Telephone Consumer Protection Act to require prior express written consent for all autodialed or pre-recorded calls and texts, including those to cell phones. Under the new amendments, consumer consent must be unambiguous, meaning that the consumer must receive a “clear and conspicuous disclosure” that she will receive future calls that deliver autodialed or pre-recorded marketing messages on behalf of a specific company; that her consent is not a condition of purchase; and that she must designate a phone number at which to be reached.

While legislation is been revised to address many concerns over this new debt collection tactic, many issues such as text messaging charges being passed along to the consumer, have not been addressed. The message here is clear; do not give your consent to text messaging. The only way to avoid these potentially embarrassing or annoying messages is to refuse to grant consent. Be careful when you discuss your account with a customer service representative. At the beginning of these conversations they often give legal disclosures or request consent to certain collection procedures while they “verify” your personal information. Listen closely to what the representative asks of you. You have the choice to consent or to withhold consent. If you are in doubt, send a letter to your creditor revoking any and all consents to send account information or otherwise contact you via text messaging.