POLITICS
12/23/2015 12:24 pm ET Updated Dec 23, 2015

The NRA Fought To Make It Harder To Punish People Like The San Bernardino Accomplice

The gun lobby opposes an interpretation of the law that the feds are using to prosecute Enrique Marquez.
Enrique Marquez is being charged by federal authorities for buying the assault-style rifles pictured here, which were used in
Handout via Getty Images
Enrique Marquez is being charged by federal authorities for buying the assault-style rifles pictured here, which were used in the San Bernardino massacre.

The federal government’s case against the man suspected of helping the San Bernardino shooters would be weaker if the NRA and other gun rights groups had their way in court.

In addition to conspiracy to support terrorism and committing immigration fraud through a sham marriage, the federal government is charging Enrique Marquez with “making a false statement in connection with the acquisition of firearms.”

The crime, commonly known as a “straw purchase” of a gun, allegedly occurred when Marquez claimed he was buying two assault-style rifles for himself, even though he really only bought them for gunmen Syed Rizwan Farook and Tashfeen Malik.

But the federal government would have a much tougher time convicting Marquez of the straw purchase if the Supreme Court had ruled in favor of the NRA Civil Rights Defense Fund and other pro-gun organizations that pushed for a lax interpretation of a key gun law in June 2014.

What Is A Lie And When Does It Matter?

In Abramski v. United States, the Supreme Court upheld the conviction of Bruce Abramski, a former police officer who was prosecuted for buying a handgun for his uncle after he signed a federal form that essentially forbids you to buy a gun for someone else unless it’s a gift.

Abramski called himself the “actual buyer” on the form, but later admitted he bought the gun with the intention of selling it to his uncle, who had sent him a check for the gun in the hope that Abramski could use his discount as a former cop.

According to the Bureau of Alcohol, Tobacco, Firearms and Explosives, this purchase violated the 1968 Gun Control Act, which prohibits a person from lying about “any fact material to the lawfulness” of the acquisition of a firearm or ammunition.

Over the years, federal courts went on to interpret this law to prohibit “straw purchases” -- in which a proverbial “straw man” buys a gun for someone else. And in keeping with the law and those rulings, ATF developed the form Abramski signed, asking gun buyers to affirm that they are the “actual buyer” and not “acquiring the firearm(s) on behalf of another person.”

Supreme Court Justice Elena Kagan wrote the majority opinion in a decision that might make it easier for the federal governme
Paul Morigi via Getty Images
Supreme Court Justice Elena Kagan wrote the majority opinion in a decision that might make it easier for the federal government to convict Enrique Marquez of a "straw purchase" of the guns he gave the San Bernardino shooters.

Abramski challenged his conviction, contending that he was being truthful at the time he bought the gun and that the ATF was going beyond what federal law prohibits.

“Indeed, without the straw purchaser rule, the person who completes the ATF form, undergoes the background check, and physically takes possession of the gun is the ‘actual buyer’ under the law,” Abramski’s lawyers wrote in their brief before the Supreme Court.

In effect, Abramski argued that the entire “straw purchaser doctrine” requiring people to attest that they are not buying it for someone else in order to be considered the “actual buyer” should be struck down, since straw purchases are not explicitly prohibited by the 1968 law.

He also argued that even if one accepts the validity of the ATF’s definition of “actual buyer” and his statement was technically false, it was not “material to the lawfulness of the sale,” as stipulated in the 1968 law. If Abramski’s straw purchase were illegal, it would have been illegal to lie about it. Abramski insisted that his particular straw purchase was not illegal, however, because his uncle lacked a criminal record or other disqualifying characteristic and could have purchased the gun on his own anyway.

Finally, Abramski said, his statement on the ATF form did not interfere with the gun dealer’s ability to maintain the legally required information about the sale. All the law explicitly mandates, he noted, is a buyer’s name, age and place of residence.

The NRA Civil Rights Defense Fund, and a coalition that included the more conservative Gun Owners of America, each wrote an amicus brief in support of Abramski that made a similar legal argument.

The NRA Civil Rights Defense Fund did not immediately respond to a request for a comment as to whether it maintains the same position.

Because the dealer could not have lawfully sold the gun had it known that Abramski was not the true buyer, the misstatement was material to the lawfulness of the sale. Justice Elena Kagan

The Supreme Court wouldn’t have any of it. A 5-4 majority ruled in favor of the Obama administration, with Justice Anthony Kennedy joining the four liberal justices to affirm that the intent of the law is to forbid straw purchases and that lying about such transactions is always “material to the lawfulness of the sale.”

Looked at in context, federal gun regulations, including mandatory background checks and record-keeping requirements for gun dealers, clearly preclude straw purchases, Justice Elena Kagan wrote for the majority.

Kagan noted that such rules would “mean little if a would-be gun buyer could evade them all simply by enlisting the aid of an intermediary to execute the paperwork on his behalf.”  

That the uncle to whom Abramski was transferring the gun would have been eligible to buy it on his own does not diminish the requirement that he undergo a background check and identify himself to the gun dealer in person.

“Because the dealer could not have lawfully sold the gun had it known that Abramski was not the true buyer, the misstatement was material to the lawfulness of the sale,” Kagan added.

The Supreme Court’s agreement with this broader, less literal interpretation of “true” or “actual” buyer also meant that Abramski’s transaction deprived the gun dealer of the information the federal government requires them to keep on hand: name, age and place of residence. The law is meant to allow law enforcement to trace the weapon in the event that it is used to commit a crime, even if the person who acquired the gun did so legally.

In this courtroom sketch, Enrique Marquez appears in federal court in Riverside, California, on Dec. 17.
ASSOCIATED PRESS
In this courtroom sketch, Enrique Marquez appears in federal court in Riverside, California, on Dec. 17.

Prosecuting 'Straw Purchases' Before The Supreme Court's Decision

Prior to the Abramski ruling, prosecutors had an inconsistent record of convicting suspects on straw purchase charges, specifically because of the arguments similar to Abramski's.

One of the most famous examples of such literalism thwarting law enforcement efforts to prosecute straw gun purchases was the failed case against X Caliber gun store in the Phoenix suburbs. The ATF arrested X Caliber owner George Iknadosian in May 2008 for knowingly selling guns to straw buyers as part of a scheme that funneled guns to Mexican drug cartels. Working with the Arizona attorney general’s office, law enforcement had effectively caught Iknadosian on tape admitting to his deliberate participation and coaching buyers on how to evade police.

But Maricopa County Judge Robert Gottsfied threw out the case, claiming that there was no proof that the guns ever ended up in the hands of people prohibited from possessing them and thus that the straw purchases were illegal.

A garage door of Enrique Marquez's home is seen broken in an FBI raid on Dec. 9 in Riverside, California.
ASSOCIATED PRESS
A garage door of Enrique Marquez's home is seen broken in an FBI raid on Dec. 9 in Riverside, California.

Michael Bouchard, whose 25-year career in the ATF included a stint as assistant to the agency’s director, recalled how difficult it was to bring straw purchase cases prior to the Abramski decision.

“It was frustrating and inconsistent,” Bouchard, who now runs a security consulting firm, said. “In certain parts of the country you could get straw purchases prosecuted and other parts you could not get it prosecuted no matter what you did.”

The federal government’s case against Marquez resembles that against X Caliber and other cases before the Abramski decision in which the charges did not hold up in court.

Without the Abramski decision, Marquez, who transferred the rifles to Farook and Malik, could have provided the same defense as Abramski. After all, Farook passed the background check needed to buy the handguns that he and Malik used during the San Bernardino massacre.

It was frustrating and inconsistent. In certain parts of the country you could get straw purchases prosecuted and other parts you could not get it prosecuted no matter what you did. Michael Bouchard, former ATF official

Farook nonetheless wanted Marquez to buy the guns because he thought Marquez would elicit less scrutiny, Marquez told law enforcement.

Opponents of additional gun regulation are fond of saying the United States would not need new gun laws if authorities just enforced the ones already on the books.

But to Ari Freilich, a staff attorney for the Law Center to Prevent Gun Violence, the challenge of prosecuting straw gun purchases before the Abramski decision is evidence that effective interpretation of existing laws is as important as the laws themselves -- and that the NRA and its allies are an obstacle to achieving both.

“In the face of epidemic levels of gun violence in this country, the gun lobby predictably calls for enforcing the laws on the books. We shouldn’t be fooled,” Freilich said. “The gun lobby fought against passage of every one of those laws, it lobbied for loophole after loophole to swallow these laws whole, and it has sought to hobble, hinder, and defund the law enforcement agencies charged with enforcing these laws, such as the anti-gun trafficking statute challenged in Abramski.”

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