2022 New Gun Law Update
- Increases background checks for gun buyers;
- Encourages red flag laws at the state level. This allows states to get a court order to take away guns from people who may be a danger to themselves or others;
- Increases the penalties for straw buyers; and
- Closes the boyfriend loophole.
However, according to Axios, the new gun law will have a limited impact in Texas. For example, Texas will not adopt red flag laws. Also, the expanded background checks for minors and young gun buyers do not apply to private gun sales.
In sum, this is a new law that is intended to reduce gun violence. However, it is not clear how effective–if at all-this gun law will be. On top of that, it does create a risk of higher jail time for illegal straw buyers.
For these reasons, if you are buying or selling a gun, make sure to check the updated law to avoid any legal problems down the road.
How do gun-trafficking laws work?
The identity of the gun buyer is the key fact in gun-trafficking laws. In particular, a federal-gun dealer must make sure the buyer is eligible to buy the gun. This requires the buyer to give the seller identifying information. For example, the buyer must present a photo ID. He must also give his name, date of birth, and address.
The gun dealer then uses this information to run a background check. If the buyer passes the check, then the gun sale can go forward. But if the background check raises a red flag, then the sale must stop. This creates problems for some people. They want to buy a gun, but the law bans them from buying a gun.
To get around this problem, buyers who are not eligible to buy or possess a gun will lie about the identity of the true buyer. This lie is a federal crime. And police can charge a person who does this with several crimes, including:
Further, these three laws are bread-and-butter gun-trafficking crimes. But to see how they work, we first need to see which people are not allowed to buy a gun.
Groups of people that cannot buy a gun.
Federal gun laws help prevent guns from falling into the wrong hands. Stated another way, the gun laws ban people who are convicted of drug charges, assault charges, or other felonies from either buying or owning guns. Also, if a person banned from buying a gun does buy a gun, then he can also face a gun-possession charge.
However, these laws also ensure that law-abiding citizens can buy a gun for hunting, recreation, or self defense. As a result, Congress created a list or group of people who cannot buy a gun. The table below lists these groups.
Congress banned these groups of people from buying a firearm.18 USC §922(d) makes it a crime for anyone to knowingly sell guns to people on this list. Further, a background check will determine if the buyer is eligible to buy a gun.
|No.||People banned from buying a gun.|
|1.||Anyone under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;|
|2.||Anyone who is a fugitive from justice;|
|3.||A person who is an unlawful user of or addicted to any controlled substance;|
|4.||Anyone adjudicated as a mental defective or has been committed to any mental institution;|
|5.||An alien who:|
(A) is illegally or unlawfully in the United States; or
(B) is admitted to the United States under a nonimmigrant visa;
|6.||A person who has been discharged from the Armed Forces under dishonorable conditions;|
|7.||A person who, having been a citizen of the United States, has renounced his citizenship;|
|8.||Anyone who is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that-|
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
(B) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
|9.||Anyone who has been convicted in any court of a misdemeanor crime of domestic violence.|
How do gun background checks work?
The FBI created a background check system to help with gun sales. It is NICS. Further, according to the FBI, the background check takes about two minutes to complete. In addition, they created an explainer video that outlines the background check process.
As we discussed above, if a gun buyer does not pass this background check, then the gun sale must stop. And this is where straw-gun buyers come into play.
What is a straw buyer?
A straw buyer or straw purchaser is a person who buys a gun for someone else, but lies and claims the gun is for himself or herself. A person who does this breaks at least three different gun laws. So let’s look at these three crimes to see how they work.
How do straw buyers get into trouble?
Federal law requires gun dealers to do several things. First, they must check the buyer’s photo ID. Second, they must collect the following information from the buyer:
- Full name;
- Date of birth;
- Place of birth; and
- Most importantly, determine if the buyer is the true buyer of the gun.
After the seller collects this information, then he runs the background check. In addition, the law requires the seller to keep this information in his or her records.
The purpose of these requirements is twofold. First, the background check keeps the guns from going to the wrong people. Second, the records allow police to trace the guns. As a result, ATF created a form to help gun dealers comply with this law.
To this end, ATF Form 4473 contains all the information needed for the gun sale. Above all, this form is how straw-gun buyers get into trouble. If they lie or make false statements on the form, then they may be guilty of being a straw-gun buyer.
How do prosecutors prove someone is a straw-gun buyer under 922(a)(6)?
Prosecutors must prove five facts in straw-buyer crimes. These facts are listed below. But in plain English, the government must show the straw buyer lied about the true buyer’s identity in order to make the gun sale go forward.
|No.||Facts the Government must prove to convict a person of being a straw buyer.|
|1.||The buyer made a false or fictitious oral or written statement;|
|2.||The buyer knew the statement was false;|
|3.||The statement was made in connection with the acquisition of a firearm from a licensed firearm dealer (FFL);|
|4.||The statement was intended or was likely to deceive a licensed firearms dealer; and|
|5.||The alleged false statement was material to the lawfulness of the sale or disposition of the firearm.|
Moreover, this law contains key definitions that both explain the law and provide important context.
For instance, federal law defines a "firearm" as any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosive. The term "firearm" also includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer, or destructive device.
Next, a statement is "false or fictitious" if it was untrue when made and was then known to be untrue by the person making it.
Additionally, a false statement is "likely to deceive" if the nature of the statement, considering all of the surrounding circumstances at the time it is made, is such that a reasonable person of ordinary prudence would have been actually deceived or misled.
In short, prosecutors must show the gun buyer lied during the gun purchase. And these definitions provide important context to help jurors determine if a buyer is innocent or guilty of being a straw-gun buyer.
For this reason, the defense should review the buyer's conduct carefully to see if it meets the definition for being a straw buyer.
In like manner, prosecutors can use the buyer’s lie on Form 4473 to file additional charges. One of those charges is making a false statement in a record.
What is a 924(a)(1)(A) gun crime?
Section 924(a)(1)(A) makes it a crime for a buyer to lie about information related to the records kept by the seller in the gun sale. This crime overlaps with the crime discussed above. For instance, they both punish lying to a gun dealer. Nevertheless, they differ in at least two ways.
Unlike the straw buyer example described above, 924(a)(1)(A) has a greater reach. This is because 924(a)(1)(A) does not require the lie to be “material.” Stated differently, the lie does not have to be great. It is enough to show the gun buyer lied. But at the same time, that lie must relate to the records kept by the gun dealer.
In sum, 922(a)(6) and 924(a)(1)(A) help make sure the gun buyer gives the seller honest answers. And these two crimes relate to buying a gun. But there is one more gun-transfer crime we need to talk about. It’s the crime of selling guns to banned people.
What are 922(d) gun crimes?
The Gun Control Act of 1968 makes it a crime to sell guns to certain groups of people. The group of banned people is listed in the table above. If a person is on this list, then no one can sell a gun to that person. Like the two crimes above, 922(g) focusses on the identity of the gun buyer.
To add to that, prosecutors must prove three facts to convict someone of selling a gun to a banned person:
- The accused sold a gun to a buyer;
- At the time of the sale, the buyer was banned from buying a gun; and
- At the time of the sale, the accused knew or had reasonable cause to believe the buyer was banned from buying a gun.
In brief, a seller breaks the law if he sells a gun to a banned person and at the time of the sale, the seller knew the buyer could not buy a gun.
What are the penalties for first-time gun-trafficking crimes?
The table below lists the penalties for the three gun crimes we discussed.
|18 USC § 922(a)(6)||Straw-Gun Purchases.||Up to 10 years in jail.||Up to $250,000.00.|
|18 USC § 924(a)(1)(A)||False Statements in a Record.||Up to 5 years in jail.||Up to $250,000.00.|
|18 USC § 922(d)||Selling a gun to a prohibited person.||Up to 10 years in jail.||Up to $250,000.00|
San Antonio Gun Crimes Criminal Defense.
Guns are a huge part of the American culture. They are both exciting and dangerous. On the one hand, people use them for many legitimate reasons. These reasons include hunting, recreation, and self defense. On the other hand, guns present a unique danger. Especially if the guns fall into the wrong hands.
Consequently, Congress passed gun laws that accomplish two goals. First, the gun laws make sure law-abiding citizens can buy a gun for legitimate reasons. Second, the gun laws prevent some people from buying guns in order to ensure the public safety. This group includes felons, drug users, and people who commit domestic violence.
For this reason, it is critical to figure out who the true buyer is in a gun case. Is it the person with money at the gun counter? Or is it someone else?
In many cases, the answers to these questions will be clear. Either the straw buyer (or seller) broke the law or they honestly believed the gun deal was legit. But in other cases, the facts may not be clear.
In these situations, a person charged with a gun-transfer crime should conduct their own investigation. And they should review the facts of the case carefully. But most important of all, they should consult with an experienced-defense attorney to help them decide if they should fight the gun charge or work out a plea deal. This is especially true for people facing first-time gun charges.
Defense Attorney Genaro R. Cortez.
Questions about your gun charge? Call 210-733-7575 for a free case consult.