Won’t it Look Bad in Court if I Train Too Much with My Firearm?

Thanks to our media and the prosecution of the innocent, conscientious gun owners often fear that their lawful, responsible behavior puts them at risk for being deemed a “gun nut”.  When it comes to training, don’t ever let such fear stop you.
Even though I “grew up with guns” and shoot whenever I can, I also live what I teach.  One of my first gun instructors served our country in combat, but told me he continues to train “whenever he can”.   He was the first person to tell me that you can never train too much, and no matter how good you think you are, it is important to continue to train.  What a lesson for all of us.

Many of my clients have sought my advice on how often to train with their firearm.  These clients want to know how their lifestyle choices might affect the outcome of a criminal trial.   Because of my criminal law background, I know how to effectively build the prosecution’s case and cross-examine a defendant on trial for using deadly force.   

And I can tell you, if you own a firearm, you can NEVER have too much training. While some lifestyle choices can cause an increase in legal fees because your lawyer will have some explaining to do, too much training is not a lifestyle choice that will be a concern.  In fact, you had better be deadly accurate with your firearm, because it is the lack of training and knowledge (using the wrong ammo, hitting an innocent person, etc.) that can be detrimental in a criminal trial.  

Don’t fool yourself into thinking that because you completed a concealed carry class that you are anywhere near prepared to use your defensive firearm to kill another person.  Effectively defending your life requires both firearms skill and mental preparation.  If you don’t understand what I’m talking about, read my future blogs on self-defense, take a class on defensive use of a firearm, and read as much as you can on self-defense.   A book called “On Killing” by Lt. Col. David Grossman will help you understand how hard it can be to pull the trigger, even when your life is in danger.  You will also need to share your acquired information with your family – your spouse, your children, your loved ones – so they too will be prepared for any action you may take.  Any family members interested in owning or using a firearm should take training themselves.

No matter how many hours of firearms training you have accumulated, taking the opportunity to learn more “whenever you can” is essential to saving and protecting your life.

 

Understanding the Straw Purchase Doctrine

 

Gun owners, dealers, and manufacturers are hard-pressed to learn and keep up with the ever-evolving world of gun laws.   Interpretations of the law by our Supreme Court can make it even tougher for law-abiding citizens who want to do the right thing to figure out what “the right thing” is.   

 

Common sense does not always prevail.  You might think that it would be ok for one legal gun owner to buy a gun for another legal gun owner from a licensed dealer. Neither person is a criminal, so what's the harm?  Well, according to ATF and now the Supreme Court, if you buy the gun as a gift, your purchase is legal.   But if you have been given money to make the purchase for the other person, you will commit a federal offense punishable by up to 10 years in federal prison. 

 

The reason is that you have made a "straw purchase".  You may have heard about straw purchases and the NSSF's "Don't Lie for the Other Guy" campaign.  If not, you can check it out at http://www.dontlie.org.   

 

Taking the straw purchase doctrine to the extreme, the United States Supreme Court in Abramski v. United States,  http://www.supremecourt.gov/opinions/13pdf/12-1493_k5g1.pdf recently turned a former law enforcement officer into a criminal after he purchased a Glock 19 for his uncle.  Both the former cop and his uncle are law abiding citizens who could legally possess a firearm.  Well, at least they were before the Court decided this case.   

 

As most gun owners know, when someone purchases a firearm from a licensed dealer, the buyer must complete “Form 4473”, where 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.” 

 

Form 4473 also includes an instruction about the question which states:  

“Question 11.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/ buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself . . . . You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party. ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. 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 11.a.” 

 

It is important to note that the above "instruction" was created by ATF – it is not written in any law, and the Gun Control Act does not state that a straw purchase is illegal.   What the Gun Control Act makes illegal is the transfer of a firearm to a prohibited person, such as a felon or illegal alien.  

    

Mr. Abramski, however, answered yes to Question 11.a even though his uncle had already paid him to buy the firearm for him.   He did this because of his status as a former law enforcement officer, which allowed him a discount if he made the actual purchase.   

 

Unfortunately, the discount was not worth what happened next:  He was charged with two federal crimes for violating the provisions of the Gun Control Act for making a false statement “material to the lawfulness of the sale,” in violation of §922(a)(6), and making a false statement “with respect to information required by [the Act] to be kept” by the dealer, in violation of §924(a)(1)(A). 

 

Keep in mind that according to the court and the ATF created instruction on Form 4473, if Abramski had not been paid for the purchase by his uncle, he could have legally purchased the gun for him as a gift.   Under current federal law, Abramski could also buy a gun for himself and then resell to his uncle at a later date.  He could also buy the gun and then raffle it off as a prize.   

 

But because he received money ahead of time and intended to transfer the gun to another person at the time he bought it, the court is calling the transaction a “straw purchase” and upholding his conviction for violating the Gun Control Act. 

 

In his dissenting opinion, Justice Scalia pointed out the Court’s mistake in its majority opinion: 

 

“[T]hat false statement was not ‘material to the lawfulness of the sale’ since the truth – that Abramski was buying the gun for his uncle with his uncle’s money – would not have made the sale unlawful”.  In other words, there was no illegal conduct here, just two law abiding citizens in possession of a gun. 

 

This ruling not only affects gun owners, but how licensed dealers will conduct their business in the future. 

 

In an upcoming Gun Law Podcast I will speak with one of our local dealers to discuss how this case will affect his business practices.