No. 12-1493444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States____________________

BRUCE JAMES ABRAMSKI, Jr., Petitioner,v.

UNITED STATES, Respondent.____________________

On Petition for Writ of Certiorarito the United States Court of Appeals

for the Fourth Circuit____________________

Brief Amicus Curiae of Congressman SteveStockman, Former ATF Assistant Director

Robert E. Sanders, Gun Owners Foundation,U.S. Justice Foundation, Gun Owners of

America, Inc., Institute on the Constitution,Lincoln Institute for Research and Education,Abraham Lincoln Foundation, Conservative

Legal Defense and Education Fund,DownsizeDC.org, Downsize DC Foundation,

Policy Analysis Center, Oregon FirearmsFederation, Virginia Citizens Defense League,

and Wisconsin Gun Owners in Support ofPetitioner

____________________MICHAEL CONNELLY HERBERT W. TITUS*

U.S. JUSTICE FOUNDATION ROBERT J. OLSON

932 D Street WILLIAM J. OLSON

Suite 2 JOHN S. MILES

Ramona, CA 92065 JEREMIAH L. MORGAN

Attorney for Amicus Curiae WILLIAM J. OLSON, P.C.U.S. Justice Foundation 370 Maple Ave. W., Ste. 4

Vienna, VA 22180-5615(703) 356-5070

*Counsel of Record wjo@mindspring.comJuly 25, 2013 Attorneys for Amici Curiae444444444444444444444444444444444444444444

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT

THE PETITION SHOULD BE GRANTED BECAUSEIT RAISES COMPELLING CONCERNS ABOUT THEADMINISTRATION OF THE NATIONAL INSTANTBACKGROUND CHECK SYSTEM THAT HAVE NOTBEEN, BUT SHOULD BE, SETTLED BY THISCOURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. The ATF “Straw Purchase” DoctrineUpon Which Abramski’s ConvictionRests Conflicts with Both Statute andRegulation . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. The ATF Form 4473’s Question 11.a.and Instructions Are Misleading andConfusing, Creating a Trap for theUnwary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

C. The Form 4473 Distinction Between aThird Party Gift and a Third PartyPurchase is Arbitrary and Capricious . . . . 17

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D. Congress Has Not Enacted Any LawAuthorizing the Prevention of StrawPurchases of Firearms From LicensedFirearm Dealers . . . . . . . . . . . . . . . . . . . . . 19

E. Congress Has Thus Far Declined to Enactthe ATF “Straw Purchase” Doctrine intoLaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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TABLE OF AUTHORITIESPage

U.S. CONSTITUTIONAmendment II . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

STATUTES18 U.S.C. § 921(a) . . . . . . . . . . . . . . . . . . . . . . . . . 1118 U.S.C. § 922(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . 318 U.S.C. § 922(d) . . . . . . . . . . . . . . . . . . . . . . 23, 2418 U.S.C. § 922(t)(1) . . . . . . . . . . . . . . . 8, 11, 12, 2018 U.S.C. § 924(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . 318 U.S.C. § 924(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 318 U.S.C. Section 1028(d) . . . . . . . . . . . . . . . . . . . . 8Public Law 103-159, 107 Stat. 1541 (Nov. 30,

1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

REGULATIONS27 C.F.R. § 478.11 . . . . . . . . . . . . . . . . . . . . . . . . . 1127 C.F.R. § 478.21 . . . . . . . . . . . . . . . . . . . . . . . . . . 827 C.F.R. § 478.102(a)(2) . . . . . . . . . . . . . . . . . . . . 1327 C.F.R. § 478.124 . . . . . . . . . . . . . . . . . . 7, 8, 9, 1028 C.F.R. § 25.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 C.F.R. § 25.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CASESD.C. v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . 17Lamie v. United States Trust, 540 U.S. 526

(2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Perrin v. United States, 444 U.S. 37 (1979) . . . . . 11United States v. Costello, 666 F.3d 1040 (7th

Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3United States v. Dollar, 25 F. Supp. 2d 1320

(N.D. Ala. 1998) . . . . . . . . . . . . . . . . . . . . . . . . 23

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United States v. Nelson, 221 F.3d 1206 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . 18, 19, 20

MISCELLANEOUSR. Aborn, “The Battle Over the Brady Bill and

the Future of Gun Control Advocacy,” 22FORDHAM URBAN LAW J. 417 (1995) . . . . . 10, 21

ATF Form 4473 . . . . . . . . . . . . . . . . . . . . . . 3, passimE. Donga, “Leahy’s ‘Straw Purchase’ Firearms

Bill Clears Committee,” Times Argus (March 8, 2013) . . . . . . . . . . . . . . . . . . . . . . . . 23

FBI, “National Instant Criminal Background Check System, Fact Sheet (NICS Fact Sheet) . 9

J. Jacobs and K. Potter, “Keeping Guns out of the Wrong Hands: The Brady Law and Limits ofRegulation,” 86 J. OF CRIM. LAW ANDCRIMINOLOGY 93 (1995) . . . . . . . . . . . . . . . . . . 21

S. 54, Stop Illegal Trafficking in Firearms Actof 2013, 113th Cong. . . . . . . . . . . . . . . . . . . 22, 23

R. Serrano, “Police chief killed with rifle lost in ATF gun-tracking program,” L.A. Times, July 5, 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

J. Steinhauer, “Senate Panel Approves two GunControl Bills,” The New York Times (March 12, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

D. Wagner, “Family of slain border agent BrianTerry calls for prosecution of feds,” The Arizona Republic, Dec. 15, 2011 . . . . . . . . . . . 19

INTEREST OF THE AMICI CURIAE1

Congressman Steve Stockman represents the 36th

Congressional District of Texas in the U.S. House ofRepresentatives. Robert E. Sanders is the formerAssistant Director of Criminal Investigation for theBureau of Alcohol, Tobacco, and Firearms.

Gun Owners Foundation, U.S. Justice Foundation,Lincoln Institute for Research and Education,Conservative Legal Defense and Education Fund,Downsize DC Foundation, and Policy Analysis Centerare nonprofit educational organizations, exempt fromfederal income tax under section 501(c)(3) of theInternal Revenue Code (“IRC”), and are publiccharities. Gun Owners of America, Inc., AbrahamLincoln Foundation, and DownsizeDC.org arenonprofit social welfare organizations, exempt fromfederal income tax under IRC section 501(c)(4). Institute on the Constitution is an educationalorganization.

The organizational amici were established, interalia, for educational purposes related to participationin the public policy process, which purposes includeprograms to conduct research and to inform andeducate the public on important issues of nationalconcern, the construction of state and federal

1 It is hereby certified that counsel for the parties have consentedto the filing of this brief; that counsel of record for all partiesreceived notice of the intention to file this brief at least 10 daysprior to the filing of it; that no counsel for a party authored thisbrief in whole or in part; and that no person other than theseamici curiae, their members, or their counsel made a monetarycontribution to its preparation or submission.

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constitutions and statutes related to the rights ofcitizens, and questions related to human and civilrights secured by law, including the defense of therights of crime victims, the Second Amendment andindividual right to acquire, own, and use firearms, andrelated issues. Each organization has filed manyamicus curiae briefs in this Court and other federalcourts.

Oregon Firearms Federation, Virginia CitizensDefense League, and Wisconsin Gun Owners are statefirearms advocacy groups.

STATEMENT OF FACTS

The case against Petitioner Bruce Abramski is yetfurther proof of the maxim that no good deed goesunpunished. In an effort to help his elderly uncle inPennsylvania, who asked for assistance in thepurchase of a gun for self-defense in the home,Abramski, a former police officer, offered to select asuitable firearm and acquire it from a federal firearmslicensee (“FFL”) in Collinsville, Virginia that offereddiscounts to police officers. United States v. Abramski,706 F.3d 307, 311 (4th Cir. 2013) (“Abramski II”).

Abramski consulted with three different FFLs onhow such a purchase could be accomplished legally. The FFLs “apparently advised Abramski, in essence,that a licensed dealer in Pennsylvania could completethe transfer to his uncle after the handgun had beenpurchased by Abramski in Virginia.” Id. Followingthis advice, Abramski went to the Virginia dealer,completed a Bureau of Alcohol, Tobacco, Firearms and

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Explosives (“ATF”) Form 4473, and purchased a Glock19 for his uncle. Id. Abramski traveled toPennsylvania and transferred the firearm to his uncleat a Pennsylvania FFL, completing the necessarypaperwork. Abramski’s uncle gave him a check in theamount of $400 in payment for the gun. Confirmingthe transfer, the uncle gave Abramski a receiptreflecting that the uncle had purchased the Glock 19handgun for $400. Id.

As the court of appeals below recounted,“[m]eanwhile” Abramski became a suspect of a bankrobbery which led to Abramski’s arrest and to an FBIinvestigative search that led to the discovery of the“written receipt confirming the transfer of the Glock 19handgun from Abramski to” his uncle. Id. Federalauthorities never charged Abramski with bankrobbery, and state bank robbery charges weredismissed. However, federal prosecutors obtained atwo-count indictment charging Abramski with havingmade a false statement in violation of 18 U.S.C.§§ 922(a)(6), 924(a)(2), and 924(a)(1)(A) on the groundthat Abramski had represented falsely to theCollinsville, Virginia FFL that he was the “actualbuyer” of the Glock 19, when the real buyer was hisuncle.2 Id. at 311-12.

2 The prosecution’s strategy to go after Abramski for making a“straw purchase” appears to be akin to that employed in UnitedStates v. Costello, 666 F.3d 1040 (7th Cir. 2012), wherein CircuitJudge Richard Posner observed that “[n]o doubt” the prosecutionof a defendant for harboring an illegal alien “was brought becausethe Justice Department suspects that the defendant was involvedin her boyfriend’s drug dealings, but cannot prove it, so theDepartment reaches into its deep arsenal (the 4000-plus federal

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Before trial, Abramski moved to dismiss bothcounts, arguing that he had not made a “materialmisrepresentation” when he claimed he was the“actual transferee/buyer” of the Glock 19. See id. at311-12. The district court denied the motion, rejectingthat contention and also rejecting Abramski’sargument that the “actual buyer” question wasunauthorized by law. See United States v. Abramski,778 F. Supp. 2d 678, 680-81 (W.D. Va.).

The court of appeals affirmed, concluding that theATF Form 4473 warned Abramski “in bold type” thathe was not the “actual buyer” of the Glock 19 “if hewas buying it for someone else,” and that the“undisputed facts show that Abramski’s transfer of theGlock 19 [to his uncle] was not an afterthought[,] buta carefully calculated event — indeed, it was the solereason for Abramski’s purchase of the Glock 19handgun.” Abramski II, 706 F.3d at 316.

It is undisputed that both Abramski and his unclewere eligible to purchase and possess firearms. It isundisputed that both Abramski and his uncle hadtheir backgrounds checked, and both were cleared bythe FBI to acquire the firearm. It is undisputed thatthere is no law or regulation prohibiting the purchaseof a firearm from an FFL by one person for a thirdparty, if both are eligible to receive a firearm. And yet,inexplicably, Abramski now stands before this Court afelon, convicted of having made a false statement inviolation of federal law.

crimes) and finds a crime that she doubtless never heard of thatit can pin on her.” Id. at 1048.

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SUMMARY OF ARGUMENT

Bruce James Abramski’s conviction cannot standfor three reasons. First, the question he was asked bythe ATF Form 4473 — whether he was the “actualbuyer” of the firearm — is invalid, not onlyunauthorized by law and regulation, but in actualconflict with both. Second, Mr. Abramski’s statementwas not, in fact, false, since the question posed by theATF Form 4473 is ambiguous, and the accompanyinginstructions are confusing. Third, the question asposed by the ATF Form 4473 arbitrarily anddiscriminately imposed a duty upon Mr. Abramskiinconsistent with the policy it purports to enforce.

The Court should grant review on the merits ofthese arguments because the straw purchase theoryupon which Mr. Abramski’s conviction rests is theproduct of an illegitimate exercise of administrativepower, which has been approved by a divided federaljudiciary, and which has not been, but should be,rejected by this Court. At stake in this petition is notjust a single conviction of one man, but the principle ofjudicial fidelity to the canon of construction that thetext of a statute determines the intent of Congress, notthe language of a bureaucratic form, nor even theopinions of judges.

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ARGUMENT

THE PETITION SHOULD BE GRANTEDBECAUSE IT RAISES COMPELLINGCONCERNS ABOUT THE ADMINISTRATION OFTHE NATIONAL INSTANT BACKGROUNDCHECK SYSTEM THAT HAVE NOT BEEN, BUTSHOULD BE, SETTLED BY THIS COURT.

As Petitioner Bruce Abramski has ablydemonstrated, this Court should grant review on themerits of the questions presented because the decisionof the court of appeals below is in direct conflict withthe decision of two other courts of appeals on thequestion whether a person may be prosecuted andconvicted of making a false statement that he is the“actual buyer” of a firearm, when that statement is notmaterial to the lawfulness of the sale. Additionally, asdemonstrated below, this Court should grant reviewbecause the decision of the court of appeals below wasbased upon an illegitimate ATF “straw purchasedoctrine,” wholly unauthorized by, and in conflict with,federal law. This is a compelling question that has notbeen, but should be, settled by this Court now, ratherthan allowing it to fester unresolved in the lowerfederal courts.

A. The ATF “Straw Purchase” Doctrine UponWhich Abramski’s Conviction RestsConflicts with Both Statute andRegulation.

At the heart of the Government’s case againstAbramski is a “straw purchase” theory that it is

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impermissible for a person to purchase a firearm froman FFL if the transferee is acting as an agent for athird party who furnishes the funds for the purchase,even if both parties are eligible to possess a firearm. This theory is reflected in Question 11.a. of the ATFForm 4473, the prescribed form required of all personsseeking to purchase a firearm from an FFL. 27 C.F.R.§ 478.124.

Section A of the Form states that it “Must BeCompleted Personally By Transferee (Buyer).” Question 11.a. of the Form asks: “Are you the actualtransferee/buyer of the firearm listed on this form?” After posing this question, the form states in bold:

Warning: You are not the actual buyer ifyou are acquiring the firearm(s) onbehalf of another person. If you are notthe actual buyer, the dealer cannottransfer the firearm(s) to you.

Immediately following this warning is the directive, initalics, “See Instructions for Question 11.a.” Thisinstruction is found on page 4 of the 6-page Form 4473under the bold heading: “Actual Transferee/Buyer.” Underneath this heading is the following narrative:

For purposes of this form, you are the actualtransferee/buyer if you are purchasing thefirearm for yourself or otherwise acquiring thefirearm for yourself.... You are also the actualtransferee/buyer if you are legitimatelypurchasing the firearm as a gift for a thirdparty.

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Although “the [ATF] Director is authorized [byATF regulation] to prescribe all forms,” thatauthorization is strictly limited to developing forms togather “[a]ll of the information called for” by law orregulation. 27 C.F.R. § 478.21. Accordingly, the ATFForm 4473 was supposedly designed to facilitate FFLcompliance with National Instant CriminalBackground Check System (“NICS”), as provided in 27C.F.R. § 478.124, but the Director has no authority tomake policy in this area. There is no statute orregulation authorizing the Director — by form,industry guideline, or other action — to prohibit thepurchase of a firearm from an FFL for a third party,or, indeed, to exempt gift purchases from thatprohibition, as stated in the instructions to Question11.a.

To the contrary, 18 U.S.C. § 922(t)(1) provides thatan FFL “shall not transfer a firearm to any otherperson who is not [an FFL], unless — before thecompletion of the transfer ... the system has notnotified the licensee that the receipt of a firearm bysuch other person [the named transferee] wouldviolate subsection (g) or (n) of this section; and thetransferor has verified the identity of the transfereeby examining a valid identification document (asdefined in 1028(d) of this title)3 of the transferee

3 According to 18 U.S.C. Section 1028(d), the term “‘identificationdocument’ means a document made or issued by or under theauthority of the United States Government, a State, politicalsubdivision of a State ... which, when completed with informationconcerning a particular individual, is of a type intended orcommonly accepted for the purpose of identification of

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containing a photograph of the transferee.” (Emphasis added.) There is nothing in the UnitedStates Code that requires an FFL to go beyondidentifying the transferee to be the person who thetransferee claims to be.4

In compliance with this statute, and consistentwith the identity policy stated therein, 28 C.F.R.§ 25.7(a) provides that, in order to obtain clearance totransfer a firearm, the FFL need only to transmit toNICS the: (i) name; (ii) sex; (iii) race; (iv) completedate of birth; and (v) state of residence of the proposedtransferee.5 To require an FFL to do more than verifythe physical and personal identity of the transfereewould undermine a key purpose of the NICS system —

individuals.” (Emphasis added.)

4 “NICS is a computerized background check system designed torespond within 30 seconds on most background check inquiries sothat the FFLs receive an almost immediate response.” See FBI,“National Instant Criminal Background Check System, FactSheet (NICS Fact Sheet), p. 1, http://www.fbi.gov/about-us/cjis/nics/general-information/fact-sheet.

5 To be sure, “additional identifiers may also be” included by theFFL, either voluntarily or upon request, including “height, weight,eye and hair color, and place of birth” (28 C.F.R. § 25.7(b)), butnone of these identifiers would impede a quick response. Even theATF Form 4473 regulations contemplate a Form that shouldfacilitate a rapid reply. According to 27 C.F.R. § 478.124(c)(2),Form 4473’s request for “optional information,” such as a SocialSecurity Number, is sought “in order to facilitate the transfer ofa firearm and enable NICS to verify the identity of the personacquiring the firearm number ... to help avoid the possibility of thetransferee being misidentified as a felon or other prohibitedperson.” (Emphasis added.)

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to serve as “a national instant background checksystem that any [FFL] may contact ... for information,to be supplied immediately, on whether receipt of afirearm by a prospective transferee would violatesection 922 of Title 18, United States Code, or Statelaw.” Public Law 103-159, 107 Stat. 1541 (Nov. 30,1993).

This accelerated process to provide an instantresponse legislation was not accidental, but critical tothe forging of NICS. In the years leading up to thepassage of the Brady Bill, the major stumbling blockfor those Senators and Representatives favoring acriminal background check was the delay that wouldensue between purchase and possession. See R. Aborn,“The Battle Over the Brady Bill and the Future of GunControl Advocacy,” 22 FORDHAM URBAN LAW J. 417(1995). “As originally structured, the Bill required aseven-day waiting period.” Finally, the necessarytechnology to conduct the instant background checkinstantaneously was developed. See id. Any furtherinvestigation into whether a purchase constitutes a“straw purchase,” as the 4473 Form would require, isinconsistent with this key NICS feature toimmediately determine the eligibility of the transferee.

In contrast with the Form 4473 requirement thatthe “transferee” be the “actual buyer,” the statutes, theNICS regulations, and even the ATF regulationsgoverning the Form 4473 refer to the person to whoma firearm is to be transferred as the “transferee,” notthe “buyer,” not the “actual buyer,” and not even the“actual transferee.” Indeed, 27 C.F.R. § 478.124, theATF regulation governing the Form 4473, refers to

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“transferee” no less than 15 times, but never once withthe modifier “actual,” nor the word “buyer.” Thus, theATF regulations reinforce the NICS regulationsrequiring an FFL only to physically identify the“transferee,” the person standing before him, not somethird party outside the FFL’s presence. Nowhere inany statute or regulation is there any duty imposed onthe FFL — or authority given to ATF — to inquire asto whether the transferee is the “actual buyer” —whatever that term may mean.

While the word “transferee” is ubiquitous, it isfound neither among the definitions set forth in 18U.S.C. § 921(a) nor in the NICS regulations. See 28C.F.R. § 25.2. Nor is transferee defined in the ATFregulations addressing the meaning of terms. See 27C.F.R. § 478.11. Since it is not defined, the term“transferee” must be understood according to its“ordinary, contemporary, common meaning.” SeePerrin v. United States, 444 U.S. 37, 42 (1979). In thecontext of the applicable statutes and regulations,“transferee” is consistently used as an identifier of theperson to whom property is physically transferred, notsome other person. Indeed, as provided in 18 U.S.C.§ 922(t)(1)(C), the FFL transferor is instructed toverify the physical and personal identity of the personinside the gun store seeking the transfer of a firearm— not some other person who the ATF might deem the“actual buyer.” Rather, the statutory guidelinescontemplate that, upon verification of a person’sphysical identity and clearance from NICS, the FFLtransferor is authorized to transfer that firearm, andthe transferee is authorized to receive it.

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Likewise, the FFL signature paragraph on pagethree of the ATF Form 4473 contemplates that theFFL’s only duty is to identify the physical transferee. Otherwise how could the FFL sign his name affirmingthat “it is [his] belief that it is not unlawful for [him] tosell, deliver, transport, or otherwise dispose of thefirearm(s) listed on this form to the person identifiedin Section A”? Form 4473 (emphasis added). Only ifthe FFL’s duty is limited to verifying the physicalidentity of the transferee could the FFL have sufficientassurance that the transfer of a firearm is “notunlawful.” If, however, the “person identified inSection A” must be the “actual transferee/buyer,” asrequired by Question 11.a., then the FFL would be putinto the unenviable position of basing his statementsolely upon the representation of the transferee, or ofhaving to make inquiry whether that transferee is, infact, the “actual buyer.” Unlike the statutory duty todetermine the physical identity of the individualperson to whom a firearm is to be delivered, as setforth in 18 U.S.C. § 922(t)(1)(C), there are no statutoryor regulatory guidelines explaining how an FFL is todetermine whether the person identified under the lawis the “actual buyer.” Yet, the ATF Form 4473requires the FFL to sign a statement that he believesthat it is not unlawful to deliver a firearm to theperson who answers “yes” to the question whether heis the “actual transferee/buyer.”

In order for the ATF Form 4473 to identify, andthus truly curtail, straw purchases, the FFL transferorcould not just rely on the transferee’s word that he isbuying the firearm for himself, much less upon thetransferee’s word that he is buying it as a gift. Yet, in

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a section entitled “NOTICES, INSTRUCTIONS ANDDEFINITIONS,” ATF Form 4473 states that “theseller of a firearm must determine the lawfulnessof the transaction and maintain proper records of thetransaction.” (Emphasis added.)

Unlike all other questions asked of the transfereeon the form (for example, whether he is a felon), theFFL cannot rely on the NICS check for his “belief” thatthe transferee is the “actual buyer.” After all, prior tomaking the firearm transfer, NICS only would have“inform[ed] the licensee that it has no informationthat receipt of the firearm by the transferee would bein violation of Federal ... law.” 27 C.F.R.§ 478.102(a)(2) (emphasis added). Without the NICSsystem running the name of the person whom the ATFdeems to be the “actual transferee/buyer,” the NICSclearance is of absolutely no value to the FFL.

B. The ATF Form 4473’s Question 11.a. andInstructions Are Misleading andConfusing, Creating a Trap for theUnwary.

The ATF Form 4473 states that “the informationand certification on this form are designed” not just forthe licensee, but “to alert the buyer of certainrestrictions on the receipt and possession of firearms.” (Emphasis added.) Section A of the Form, which is tobe “completed personally” by the buyer, refers to thatbuyer in four different ways. First, it identifies theperson who is completing the form as the “Transferee(Buyer).” Second, the form requires in box 1 the“Transferee’s Full Name.” Third, Question 11.a asks

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the one filling out the form whether he is “the actualtransferee/buyer,” followed immediately thereafter bya warning that, unless the person is the “actual buyer,the dealer cannot transfer the firearm.” Fourth, in theinstructions referring to Question 11.a., which arefound on page 4, the Form appears to settle on “actualtransferee/buyer,” restating that phraseology sixtimes, without repeating any of the other terms.

As discussed above, nowhere does the statutory orregulatory text use either the term “buyer,” or theword “actual” as a modifier of either “buyer” or“transferee.” Both of those words have been added byATF. Moreover, as noted above, the Form 4473contains no definition of any of these terms. They areused interchangeably, as if synonymous — but theyare not.

There are four possible ways of interpreting theterm, “transferee/buyer.” Two can be immediatelydiscounted; one is ATF’s interpretation, which isflawed; and the last appears to be the correct one.

The first possibility is that the forward slash ismost commonly used as a word substitute for “or” toindicate a choice such as Male/Female (often mutuallyexclusive) between the two words. However, amutually exclusive definition, whereby none of oneclassification can belong to the other, would mean thatin no case can a transferee be a buyer, which is absurdon its face.

The second possibility is a Venn diagram, inwhich buyers and transferees are distinct

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classifications, with some overlap. Some buyers maybe transferees, and some transferees may be buyers. This too, is absurd, because the Form 4473 could notask a question of a buyer who was not also thetransferee — since the transferee is always the personpresent and completing the form.

The third possibility, which is ATF’s position, isthat buyers and transferees are in all cases synonyms— and where this is not the case, the law has beenviolated. This understanding is policy-driven,describing what the ATF desires the law to be, but isinconsistent with the ATF’s own regulations and withother usages separating “transferee” and “buyer” onthe Form 4473.

The fourth possibility is a type of Euler diagram,with a small circle completely inside a larger one,wherein all buyers must be transferees, but not alltransferees must be buyers. This is the possibility thatmakes the most sense when considering the text andpurpose of the statute.

While such imprecise usage of terminology mightbe permissible in ordinary discourse, the Form 4473 isa legal document, and serves as a basis for felonyprosecutions for making a false statement. Indeed, atthe end of Section A of the Form 4473 is a statementrequiring the “transferee’s/buyer’s” signature that his“answers to Section A are true, correct, and complete”and that it is his “understanding that making anyfalse oral or written statement ... with respect to thistransaction, is a crime punishable as a felony underFederal law....”

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In Question 11.a, the person filling out the form iswarned that if he is not the “actual buyer,” then theFFL is not permitted to transfer the firearm to him. But since that question is posed to “the actualtransferee/buyer,” not just the “actual buyer,” a personwho is purchasing the firearm with another person’smoney might reasonably infer that he is the “actualtransferee,” not the “actual buyer.” Thus, he couldreasonably determine that the warning to the “actualbuyer” is inapplicable to him. Of course, theinstructions on page 4 could dispel any such inference,but only if the forward slash is perceived as connotingthat there is no real difference between an actualtransferee and an actual buyer. Instead of introducingclarity, the instructions continue the ambiguity.

Although the instructions to Question 11.a. aredesigned to clarify who is an “actual transferee/buyer,”they may very well be a cause for confusion. ConsiderPetitioner Abramski, for example. The instructionsstate that an actual buyer/purchaser includes a personwho buys a firearm as a gift for another. AlthoughAbramski did not pay for the firearm for his uncle, hedid make a gift to his uncle in the form of using adiscount to which only Abramski was entitled, and aservice in selecting, buying, and transporting theGlock 19 as a favor to an elderly relative. Almostcertainly, Abramski was moved by a compassionatedesire to help a family member, rather than by acommercial interest to make a profit or assist anineligible person.

Finally, the instructions on the Form 4473 prohibitbuying a firearm with another person’s money given to

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the transferee before the sale, but permit buying onewith one’s own money. Here, Abramski clearlypurchased the firearm with his own money, since hewas reimbursed three days after he purchased thegun. The instructions make it appear that thisdistinction might matter.

In short, the instructions provided to the personcompleting the Form 4473 would invite variousbehaviors which ATF can selectively investigate andrecommend for prosecution.6

C. The Form 4473 Distinction Between aThird Party Gift and a Third PartyPurchase is Arbitrary and Capricious.

The purported rationale for the straw purchasedoctrine is to keep guns out of the hands of personswho could not pass the NICS check, by preventingsuch persons from using another person to obtain the

6 Allowing the exercise of such discretionary power also puts atrisk the Second Amendment right to keep and bear arms,including the right to keep and bear arms for self-defense securedin D.C. v. Heller, 554 U.S. 570 (2008). The right “to keep” is the right “‘[t]o retain; not to lose,’ and to have in custody.” Id. at 582. Implicit in a right to hold, to retain in one’s power or possession,is the right to acquire a firearm by purchase or gift. Otherwise,the right to keep and bear arms would belong only to thosepersons who could manufacture a firearm by and for themselves. Under the straw purchase theory, many persons constitutionallyentitled to keep and bear a firearm for self-defense would bedenied that right, ostensibly to prevent other persons not entitledto that right from obtaining a firearm by third-party purchase. The conflict among the circuits is ripe, and the exercise of SecondAmendment rights hangs in the balance.

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firearm. See United States v. Nelson, 221 F.3d 1206,1209-10 (11th Cir. 2000). An exception is made by ATF,however, for gifts. Thus, despite the purportedrationale, question 11.a. of Form 4473 is bothunderinclusive and overinclusive. On one hand, in thecase of a gift, the form does not inquire disclosure ofthe “actual transferee,” the donee. On the other hand,in case of a third party purchase, the form demandsthe disclosure of the “actual transferee,” the buyer. Yet, in some cases the donee would be ineligible toobtain a firearm in his own name, and the buyer wouldbe eligible to obtain a firearm in his own name, such aswas the case involving Abramski and his uncle. HadAbramski made the Glock 19 a gift, he would not be aconvicted felon, even though the actual transferee inboth cases was his elderly uncle. The distinctionbetween a purchase and a gift, then, is whollyarbitrary in light of the rationale underlying the strawpurchase theory.

Further evidence of the ATF’s arbitrary andcapricious use of the straw purchase doctrine is theagency’s infamous Operation Fast and Furious. Inthat operation, the ATF intentionally facilitated strawpurchases for over 2,000 firearms. Unlike Abramski’spurchase which went to a law abiding citizen, thefirearms acquired through ATF’s straw purchaseswent to Mexican cartel members, who obviously wereineligible to possess firearms and, in fact, used ATF’sguns to commit countless murders.7 To this day, none

7 See R. Serrano, “Police chief killed with rifle lost in ATF gun-tracking program,” L.A. Times , July 5, 2013,www.latimes.com/news/nation/nationnow/la-na-nn-atf-fast-

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of the federal agents, including ATF personnel, whofacilitated those unlawful (and ultimately tragic) strawpurchases have been charged with any crime.8 Yet,Abramski has been prosecuted for helping his elderly,law abiding uncle obtain a firearm for self-defense.

Because question 11.a. does not reflect a coherentpolicy of keeping firearms out of the hands of ineligiblepersons, and is arbitrary and capricious, it cannot forma legitimate legal basis for the charge againstAbramski.

D. Congress Has Not Enacted Any LawAuthorizing the Prevention of StrawPurchases of Firearms From LicensedFirearm Dealers.

As demonstrated by the Petition, ATF policy asexpressed in its Form 4473 has become the operativelaw governing straw purchases in those Circuits thathave followed the lead of the Sixth and EleventhCircuits. The Court of Appeals for the EleventhCircuit expressed this policy decision as follows: “If anineligible buyer could simply use a ‘straw man’ oragent to obtain a firearm from a licensed dealer, thestatutory scheme (prohibiting sales to ineligible

furious-20130705,0,2692834.story.

8 See generally D. Wagner, “Family of slain border agent BrianTerry calls for prosecution of feds,” The Arizona Republic, Dec. 15,2011, http://www.azcentral.com/arizonarepublic/local/articles/2011/12/15/20111215family-slain-border-agent-calls-prosecution-feds.html.

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buyers) would be too easily defeated.” Nelson, 221F.3d at 1209. As a justification for creating new law,the court claimed that: “Surely, Congress could nothave intended to allow such easy evasion of acomprehensive scheme.” Id. at 1210.

But the intent of Congress is not found in thebosom of a court. Rather, it is found by a carefulanalysis of the language in the applicable statutes andregulations. See Lamie v. United States Trust, 540U.S. 526, 534 (2004) (“The starting point in discerningcongressional intent is the existing statutory text ...and not the predecessor statutes.”) Instead ofexamining the relevant statutory and regulatory texts,the court of appeals below based its decision on thetext of the ATF Form that, unless the transferee is the“actual buyer” of the firearm, the sale is illegal. SeeAbramski II, 706 F.3d at 316.

Under the canon of statutory construction set forthin Lamie, the court’s starting point should have beenthe congressional language in the Brady Bill, codifiedin 18 U.S.C. § 922(t), subsection (1)(C) of which spellsout the duty of the transferor to verify the identity ofa single transferee by “examining a valid identificationdocument,” such as a state-issued driver’s license withthe transferee’s picture on it. ATF’s curious “strawpurchase” doctrine impermissibly substitutes for thisstatutorily mandated identification process a duty toverify the identify of some other transferee who is notthere, who the ATF Form 4473 dubs to be the “actualtransferee/buyer.” In sum, the straw purchasedoctrine requires an FFL to verify the identity of two(or more) transferees, in violation of the canon of

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construction against “read[ing] an absent word into thestatute.” Lamie, 540 U.S. at 538.

In its zeal, the ATF (aided by the court of appealsbelow) has filled in what is perceived to be a “gap inthe Brady regulatory apparatus process.” See J.Jacobs and K. Potter, “Keeping Guns out of the WrongHands: The Brady Law and Limits of Regulation,” 86J. OF CRIM. LAW AND CRIMINOLOGY 93, 107 (1995). This “gap,” however, was not the product ofcongressional oversight, but a reflection of thelegislative process of cobbling together a bill that couldpass both houses of Congress in an intensely foughtbattle over gun control on Capitol Hill. See R. Aborn,“The Battle Over the Brady Bill,” supra.

Firearms legislation in the United States isusually fraught with such controversy and, for thatreason, filled with compromises. These compromisesmay look like inordinate gaps to judges, but they areoftentimes necessary to forge a winning coalition toobtain passage of a bill. Thus, courts must look at thetext of the law that was actually enacted by Congress,rather than affirming the actions of unelected ATFbureaucrats who bypassed the regulatory process toadd a new provision to the law by fiat. The intent ofCongress cannot be replaced by judicial reasoning, andcertainly not by the unfettered discretion of anexecutive agency.

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E. Congress Has Thus Far Declined to Enactthe ATF “Straw Purchase” Doctrine intoLaw.

After the Newtown, Connecticut mass shootingthat killed 20 children in December 2012, there was aflurry of activity in the United States Senate torespond to the tragedy. See J. Steinhauer, “SenatePanel Approves two Gun Control Bills,” The New YorkTimes (March 12, 2013). Democratic Senators Leahyand Durbin introduced S. 54 – the “Stop IllegalTrafficking in Firearms Act of 2013.” The featuredprovision of that bill was its section punishing anddeterring the straw purchase of firearms. Theoperative provision stated as follows:

Any person ... who knowingly purchases anyfirearm for, on behalf of, or with the intent totransfer it to any other person ... shall be finedunder this title, and imprisoned not more than20 years or both. [Id., section 3 (adding newsection 932(a) to Title 18, United States Code,Chapter 44).]

The only exception to this prohibition was any “firearmthat is lawfully purchased by a person ... to be given asa bona fide gift to the recipient who provided noservice or tangible thing of value to acquire thefirearm.” Id., section 932(b)(1).

Hailed by gun control advocates as a step in theright direction, the bill almost died in committee, untilit was amended to prohibit only purchases where thepurchaser knows or has reason to believe that the

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person for whom the firearm was being purchased wasnot eligible to receive the firearm under federal orstate law. See E. Donga, “Leahy’s ‘Straw Purchase’Firearms Bill Clears Committee,” Times Argus (March8, 2013). The New York Times incorrectly reportedthat Leahy’s initial straw purchase bill was already acrime, and that the original bill only ratcheted up thepenalty. See J. Steinhauer’s “Senate Panel ApprovesTwo Gun Control Bills,” supra. See also 18 U.S.C.§ 922(d). But the first proposal was already a crimeonly because the ATF said so and the court permittedit. In reality, had the original Leahy/Durbin bill madeit out of committee, it would have changed the law, byconforming the U.S. Code with ATF’s currentlyillegitimate “straw purchase” doctrine.9

As the United States District Court for theNorthern District of Alabama observed in UnitedStates v. Dollar, 25 F. Supp. 2d 1320 (N.D. Ala. 1998),the ATF changed the law without legislation orregulation, simply by changing the Form 4473. Previously, the Form 4473 had contained a prohibitionon transfer when an eligible person was buying afirearm for an ineligible person. However, in 1995 theATF changed this language to include a prohibition ontransfer even when one eligible person was buying itfor another eligible person. See id., 25 F. Supp. 2d at

9 The only difference between the proposed bill and the currentATF straw purchase policy would have been an additionalexception for a purchase of a firearm “to be given to a bona fidewinner of an organized raffle, contest, or auction....” S. 54, section932(b)(2).

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1324 n.6. Such a change in policy is plainly anillegitimate usurpation of legislative power.

CONCLUSION

It is true that it is possible to avoid the NICS checkwhen a person purchases a firearm for a third personwho is ineligible to own it. But Congress never gavethe ATF the authority, in a NICS check, to questionwhere a firearm might eventually wind up. Rather,the text of the statutes prohibit only the transfer of afirearm from an FFL to an ineligible person, and thereceipt of a firearm by a person who knows he isineligible. See 18 U.S.C. § 922(d)(1)-(9). It is neitherfor the courts nor for ATF to create crimes whereCongress has not done so.

For the reasons stated herein and in the Petition,the Petition should be granted.

Respectfully submitted,

MICHAEL CONNELLY HERBERT W. TITUS* U.S. JUSTICE ROBERT J. OLSONFOUNDATION WILLIAM J. OLSON 932 D Street, Ste. 2 JOHN S. MILES Ramona, CA 92065 JEREMIAH L. MORGAN (760) 788-6624 WILLIAM J. OLSON, P.C.

Attorney for amicus 370 Maple Ave. W., Ste.4U.S. Justice Foundation Vienna, VA 22180-5615

(703) 356-5070wjo@mindspring.com

*Counsel of Record Attorneys for Amici Curiae July 25, 2013