Published on Thursday, 29 December 2016 14:34
Democrat State Senator Royce West has filed a bill that can only be described as both unnecessary and a trap for law-abiding Texans. SB206 would create new offenses for conduct that is already unlawful under Texas law, but in so doing, it sets a trap by deferring to ambiguous and ever-changing federal case law. In order to fully understand just how bad SB206 is, one must consider it in light of current Texas and federal law, as well as a shocking 2014 U.S. Supreme Court case dealing with firearms.
SB206 should not be enacted because:
- Current Texas law makes it unlawful to provide firearms to prohibited persons;
- Current Texas law makes it unlawful to conspire to violate state law;
- Current federal law covers the acts set out in SB206;
- Current federal law makes it unlawful to provide firearms to prohibited persons;
- SB206 could result in making it unlawful to give firearms as a gift;
- SB206 sets a trap for law-abiding Texans by vaguely adopting federal law.
Federal Law: Buying firearms from federally licensed dealers v. individuals
Federal law sets out specific requirements for the sale and purchase of firearms from federally-licensed dealers (“FFLs”). Some of these requirements are clear, but some are ambiguous as will be seen in the analysis of a recent U.S. Supreme Court case. Federal law also identifies certain persons to whom it is unlawful for non-FFLs to provide firearms regardless of the manner of transfer (sale, loan, give, etc.) Prohibited persons are set out in 18 U.S.C. 922(g), (n) & (x).
An individual who is not an FFL making a lawful transfer of a firearm to another person is not required by federal law to create or maintain any documentation of the transfer. A minority of states do require documentation, while Texas joins the majority of states that do not.
When obtaining a firearm from an FFL, the purchaser must fill out a BATFEForm 4473. This form asks several questions to determine whether or not the FFL can legally transfer the firearm to that person. One of the questions asks whether the person obtaining the firearm(s) is the actual buyer or transferee. However, the question also contains an explanation or warning that is not based upon federal prohibitions. The question is 11(a) and reads as follows:
“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. (See Instructions for Question 11a.)
Form 4473 (emphasis in the original).
The Form 4473 instructions for Question 11a. contains a statement that “You are also the actual buyer/transferee if you are legitimately purchasing the firearm(s) as a gift for a third party.” While federal law prohibits transferring a firearm to a prohibited person (See18 U.S.C. 922(g), (n) or (x)), no federal law prohibits the transfer of a firearm to a someone who is not a prohibited person. The erroneous BATFE instruction resulted in differing opinions among the federal appellate court circuits, until the U.S. Supreme Court issued the shocking decision in Abramski v. United States, 134 S. Ct. 2259 (2014).
Abranski and “Straw purchases” under federal law
Until the Supreme Court’s Abramski decision, the term “straw purchase” was widely held to apply when a person purchased a firearm from an FFL in order to provide it to another person who was prohibited from possessing firearms. This offense was essentially a conspiracy to violate 18 U.S.C. 922(g), (n) or (x)), but the federal charge is falsifying the Form 4473. Abramski changed everything and the decision is worrisome for a number of reasons, not the least of which is the unfounded scope of the term “straw purchase.”
The Abramski Facts
Bruce Abramski is a former police officer in Virginia who was convicted of making a false statement on the BATFE Form 4473. The conviction was based upon his answer of “yes” to Question 11a on Form 4473. His conviction was upheld by the U.S. 4th Circuit Court of Appeals. The U.S. Supreme Court accepted the case to resolve a conflict among the federal circuit courts of appeal. The Supreme Court affirmed the conviction on a five to four vote, with Justice Scalia issuing a scathing dissent that was joined by Chief Justice Roberts and Justices Thomas and Alito.
Mr. Abramski’s uncle wanted to purchase a Glock 19 handgun. Mr. Abramski offered to make the purchase for him because he could get a discount from a firearms dealer in Virginia. The Uncle sent a check to Mr. Abramski for $400 and the handgun was purchased. Part of the process required Mr. Abramski to fill out BATFE Form 4473. He answered “yes” to Question 11a. The gun was then sent to an FFL in Pennsylvania, the Uncle’s state of residence, where the Uncle filled out a Form 4473 and took possession of the handgun.
Mr. Abramski was erroneously identified as a suspect in a bank robbery and officers searched his home pursuant to a search warrant. A receipt for the purchase of the Glock 19 was found. There was no evidence he had robbed a bank, so those charges were dropped. However, based upon the receipt for the handgun, he was charged with and convicted of falsifying the Form 4473. His conviction was upheld by the 4th Circuit Court of Appeals and by the U.S. Supreme Court.
Supreme Court’s Rationale
The Supreme Court upheld Mr. Abranski’s conviction in a clear result-oriented opinion. It ignored the federal Gun Control Act of 1968, as well as requirements for a federal agency (the BATFE) to promulgate a rule. (The rule upon which Question 11a is based was not legally adopted because it was not made available for public and congressional comment prior to adoption.) The Court ignored the long history of applying the “straw purchase” doctrine only in cases were the ultimate recipient of a firearm was a prohibited person. It held that a “straw purchase” occurred anytime the ultimate recipient of the firearm was someone other than the person standing in the presence of the FFL.
A major part of the Court’s decision was based upon a claim that the Form 4473 is valuable in investigating crimes, presumably by “tracing” the firearm to the purchaser identified on the 4473. However, this theory fails for at least two reasons. First, there is no federal requirement for recordkeeping if the original purchaser from an FFL later sells or otherwise transfers the firearm to someone else. Secondly, the Form 4473 Instructions for Question 11a expressly state that it is lawful for a someone to answer “yes” to Question 11a, if they are buying the firearm as a gift for a third person who is not a prohibited person. Therefore, it appears that it could be argued that the Abramski decision renders the BATFE’s position on gifting a firearm incorrect. The very instructions issued by the BATFE could result in an innocent person being convicted of a federal felony simply because they trusted and relied upon the BATFE.
With this background, we will now discuss Texas law concerning firearm purchases and prohibited persons. It is clear that Sen. West’s SB206 combined with the Abramski decision sets a trap for honest law-abiding Texans.
Texas law: Buying or transferring a firearm
Texas law identifies people who are prohibited from possessing handguns or firearms in general, but there are no laws dealing with the act of purchasing firearms. The Legislature has long held that there is no reason to duplicate federal law and it is preferable to focus on the people who are prohibited from possessing firearms. In light of the Abramski decision, there is even more reason for Texas not to change current law.
Since the focus of Sen. West’s SB206 is on obtaining a firearm in order to provide it to another person, we will focus only on current Texas law on this issue. Tex. Penal Code§46.06 is captioned “Unlawful Transfer of Certain Weapons” and it identifies certain persons to whom a handgun, or sometimes firearms in general, cannot be provided. These persons include people who:
- Intend to possess a handgun unlawfully;
- Intend to use a handgun to commit a crime;
- Are under age 18 unless with written authorization of a parent or guardian;
- Are intoxicated;
- Are a convicted felon within five years of their release from custody or community supervision (conflicts with federal law);
- Are under an active protective order.
SB206 is an unnecessary and dangerous Bill
It is clear that current Texas and federal law already prohibit the possession of firearms by persons who are legally prohibited from doing so. It is equally clear that Texas and federal law make it unlawful for a person to provide firearms to prohibited persons. As set out below, passing SB206 is not only unnecessary, it would set a trap for unsuspecting Texans.
Purchasing firearms with intent to deliver:
SB206 would create an offense if one purchased or attempted to purchase a firearm with intent to deliver it to a prohibited person. This duplicates federal law and is unnecessary, but the problem gets worse. SB206 would also adopt federal law that the Abramski decision renders dangerously vague and ambiguous. The language at issue would create an offense for violating federal law and reads as follows:
(3) knowingly makes a materially false or misleading statement in providing information to a person for purposes of complying with the national instant criminal background check system in the manner required by 18 U.S.C. Section 922.
In the event the BATFE or any federal court takes the Abramski decision at face value, then it would be unlawful to purchase a firearm as a gift to a family member, friend, business partner or any other non-prohibited person. (This is based upon the Abramski Court’s holding that the person dealing with the FFL must be the person who will ultimately possess the firearm.) So an honest Texan following the express instructions on the BATFE Form 4473 for Question 11a could buy a firearm as a gift, only find himself or herself unwittingly committing not only a federal felony, but a state felony as well.
Conspiring to violate Texas law is a crime under current law
It is likely that Sen. West and other anti-gun people and organizations will claim that SB206 is needed in order to prosecute a person who purchases or tries to purchase a firearm, even before firearm is provided to a prohibited person. While it could be argued that, in this regard, SB206 would require a significant level of clairvoyance, it must be noted that conspiracy to violate Texas law is already a crime. SB206 is not necessary to investigate and prosecute criminal conspiracies.
Current Texas law already makes it unlawful to provide a firearm to a prohibited person or to conspire to do so. Therefore, SB206 is unnecessary. SB206 would also create a legal quagmire that has the potential to trap law-abiding Texans who find themselves relying upon BATFE instructions, only to be prosecuted under Texas law when the U.S. Attorney refuses to be a willing party to the atrocity of an Abramski-type prosecution.
SB206 does not even warrant a committee hearing.