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Gun Policy

Amid Dearth of Federal Action on Straw Buyers, States Forge Ahead on Their Own

Minnesota is the latest to enact laws to prevent "nominee purchases" and stem the flow of illegal guns. But do they work?

Earlier this month, Minnesota became the latest state to enact a law banning “straw purchasing,” or the act of buying a gun on behalf of someone else. It’s the same mechanics behind purchasing alcohol for a minor, only instead of cases of beer, deadly weapons changes hands. A buyer makes a legal purchase of a gun before handing the goods off to someone else. In many cases, the recipient is prohibited from purchasing or possessing a gun, and the purchaser knows it.

These illegal purchases happen at an alarming rate: According to ATF data from 2000, straw purchasers provided the second largest share (tied with gun shows) of illegally trafficked guns. But as many states have found, straw purchasers are rarely charged at the federal level.

In an attempt to stunt the illegal gun trade, some states are taking matters into their own hands. Here’s what their measures entail:

Why federal prosecutors rarely go after straw purchasers

There exists no federal statute that specifically outlaws straw purchasing. However, a straw purchase cannot be completed without committing a felony: A federal background check form asks, “Are you the actual transferee/buyer of the firearm(s) listed on this form?” It’s when a false answer is given to that — or any other question — on a background check form that a crime is committed. The penalty for lying can be as high as a 10-year prison sentence and a fine of $250,000. (Buying a gun as a gift is, of course, OK.)

The upshot is that the ATF rarely investigates straw purchasers on their own, a spokesperson tells The Trace. U.S. Attorneys offices aren’t interested in them because the act of straw purchasing can be difficult to prove and judges rarely issue severe punishment. Instead, the agency tends to add the charge when it’s uncovered in larger cases, like those that involve gun trafficking. In 2014, the ATF prosecuted 125 cases with a charge of straw purchasing.

“If you just shut up, you can beat almost any straw purchase charge,” says John Risenhoover, a former ATF special agent. “Most federal judges look at them as a waste of their time.”

There have been attempts to bolster federal law. A 2013 proposal by Sen. Patrick Leahy would have made straw purchasing its own federal felony punishable by up to 20 years in prison. The bill made it through the Senate Judiciary Committee, but never got a vote.

Why states started their own straw purchasing crackdowns

Many state lawmakers started paying close attention to straw purchasing after the 1999 Columbine High School shooting in Colorado. Dylan Klebold and Eric Harris, who were too young to buy guns for themselves, carried out the attack with three weapons bought for them by an older friend, along with another bought illegally directly from an acquaintance.

The next year, Colorado passed a law that made it illegal to buy a gun on behalf of someone ineligible to make the purchase themselves.

California, Illinois, Delaware, Maryland, Nebraska, Ohio, Oregon, Pennsylvania, and Minnesota have all since passed similar laws that either ban straw purchases or set strict sentences for the crime.

Without such laws, state prosecutors don’t have the authority to go after known straw purchasers. The Minneapolis Star Tribune found that fewer than 10 people had been charged with straw purchasing in the state, and in some of those cases only after being arrested for involvement in gun trafficking. With them, city and county prosecutors can bring their own cases instead of hoping that the ATF takes an interest.

“We felt like having something in place that would make it clear that it’s a crime, would be an important message and an important law enforcement tool,” says Ben Schweigert, a prosecutor who helped draft Minnesota’s new law.

Some states have taken it one step further: Pennsylvania’s 2013 “Brad Fox” law,” named for a police officer killed by a man who had bought nine guns through a straw purchaser, instituted mandatory minimums for straw purchasing. In some cases, the straw purchasers have received sentences of as much as 12 years — longer punishments than the criminals they provided guns to.

The case against the laws

Gun-rights advocates say straw purchasing laws can penalize innocent people who have no intention of distributing guns to prohibited purchasers. They point to the case of Bruce Abramski, a former Virginia police officer who used his law enforcement discount to buy a gun for his uncle in Pennsylvania. Though both he and his uncle could legally buy a gun in their respective states, and they performed the necessary transfer paperwork through a Pennsylvania dealer, Abramski was federally prosecuted for lying on his background check. Abramski took the case to the Supreme Court, where he ultimately lost in a 5-4 vote.

Justice Antonin Scalia wrote a dissenting opinion in which he contended that though Abramski had lied on the background check form, it was not “material to the lawfulness of the sale.” During oral arguments, Scalia also wondered what the difference was between Abramski’s straw purchasing and legal, private transfers conducted without background checks.

But individual sagas like Abramaski’s and the concerns they raise aren’t germane to most state straw purchasing laws, which usually apply only to those who provide guns to people who can’t legally buy them. Laws that explicitly ban buying on behalf of a felon or other prohibited purchaser even get (measured) support from the NRA.

The bottom line

Measuring the effectiveness of the new straw purchasing laws is difficult. Many of the states that have enacted them enforce them at the city or county level. As a result, none of the jurisdictions contacted by The Trace — California, Colorado, Minnesota, Illinois, Pennsylvania, and Delaware — had comprehensive data on the effectiveness of their statutes.

“Ultimately, the effectiveness of any tool like this would be what it does to gun violence,” says Schweigert. “It’s always a challenge to link any particular policy development to change we see in the world.” With that tool now in hand, Minnesotans will have to wait and see if prosecutions go up and illegal firearms, shootings, and murders go down.

[Photo: Flickr user jason]