October 26th, 2015

Seattle Gun and Ammo Tax Challenged by Firearms Groups

Seattle Gun ammo tax

Seattle recently passed a law imposing special taxes on the sale of guns and ammunition. Labeled a “gun violence” tax, the Seattle ordinance is designed to discourage firearms use and, presumably, drive gun and ammo vendors out of the city. City Council President Tim Burgess, author of the controversial Seattle ordinance, likened the gun/ammo levy to “sin taxes” on alcohol and tobacco: “We’ve been working on this for several years. We tax cigarettes and alcohol and even wood-burning stoves for public health purposes. Why not guns and ammunition?”

Opponents of the new law have taken the city to court. The NRA, Second Amendment Foundation (SAF), NSSF and other organizations have challenged the so-called “gun violence tax” recently passed by the Seattle City Council. A motion for summary judgment has been filed citing Washington State’s long-standing preemption statute which “fully occupies and preempts the entire field of firearms regulation within the boundaries of the state.”

Gun group lawyers argued that the city “is well aware of this restriction on its legislative power” because Seattle’s most recent attempt to regulate firearms was emphatically struck down by the Court of Appeals in the case of Chan vs. Seattle. (That lawsuit derailed an attempt by the city under former Mayors Greg Nickels and Mike McGinn to ban guns in city park facilities.)

Seattle Gun ammo tax

“Seattle is trying to be too clever by half,” said SAF Executive Vice President Alan Gottlieb. “This so-called ‘gun violence tax’ clearly seeks to limit access to firearms and ammunition by imposing what amounts to a regulatory fee on the sale of all firearms and ammunition within City limits. The city can’t do that, and we’re confident the court will tell them so. In the final analysis, this is an attempt to skate around, and thus erode, our state’s model preemption law. That cannot be allowed to stand. The City of Seattle is not an entity unto itself, but still part of Washington State, and therefore the city has to abide by the same laws we all follow.”

Public domain Seattle photo by Rattlhed.

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October 22nd, 2013

U.S. Supreme Court Will Decide Firearms ‘Straw Purchaser’ Case

U.S. Supreme Court seal logo scotusThe U.S. Supreme Court has agreed to adjudicate a case involving a firearms purchase and subsequent resale to a family member. The case of Abramski v. United States, arises from the prosecution of Bruce James Abramski, Jr., a former Virginia police officer, for allegedly making a “straw purchase” of a Glock handgun. Abramski had lawfully purchased a Glock pistol in Virginia, then later resold the Glock to his uncle, a resident of Pennsylvania. Both purchases were conducted through FFLs, with full background checks, and both parties were legally entitled to own a handgun. Abramski arranged the sale in this fashion to take advantage of a discount available to him as a law enforcement officer.

Abramski was indicted and prosecuted for violating Federal laws against “straw purchases”, specifically making a false declaration on BATFE Form 4473, which is a violation of 18 U.S.C. § 922(a)(6). Abramski challenged the indictment, but the District Court ruled against him and the U.S. Fourth Circuit Court of Appeals upheld the District Court’s decision. However, the Fourth Circuit acknowledged that there was a split of authority among the Circuits as to whether § 922(a)(6) applied in a case like this one, where the ultimate recipient of the firearm was lawfully entitled to buy a gun himself. The Fourth Circuit’s ruling conflicts with previous decisions by the Fifth Circuit holding that “straw purchaser” laws are NOT violated if both the original purchaser and secondary buyer are legally entitled to own a firearm. See United States v. Polk, 118 F.3d 286 (5th Cir. 1997).

U.S. Supreme Court seal logo scotusThe key issue is whether Abramski committed a crime by buying a gun, and then promptly re-selling it to another person who was legally entitled to own the firearm. The government argues that Abramski broke the law when he checked a box on Form 4473 indicating he was the “actual transferee/buyer of the firearm”.

Arguably, Abramski’s purchase and subsequent resale did not violate the intent of the law, since the Glock never ended up in the hands of a criminal (or someone who was otherwise barred from gun ownership). The John Floyd Law Firm explains this argument:

“Attorneys for Abramski sought to have the indictment dismissed on the legal premise that because Abramski and the uncle were both legally entitled to purchase a firearm, Abramski could not be a ‘straw purchaser.’ Attorneys further argued that Abramski’s ‘yes’ answer to question 11(a) on the 4473 that he was actual buyer of the Glock was never intended to be punished under the Gun Control Act of 1968 if the buyer had a legal right to purchase the weapon. The attorneys theorized that the intent of Congress in passing this Act was ‘to make it possible to keep firearms out of the hands of those not legally entitled to possess them.’

Second Amendment proponents strongly believe there is nothing wrong with a nephew purchasing a weapon he is legally entitled to purchase with the specific intent to sell it to an uncle who is also legally entitled to purchase a weapon. The Fifth Circuit says such a purchase is legal because both parties are legally entitled to purchase and possess a firearm. The Sixth and Eleventh Circuits [and now the Fourth Circuit] say these legal entitlements do not matter.”

Soon the U.S. Supreme Court will decide which interpretation of the law is correct.

CLICK LINKS Below to Read Briefs Filed in Abramski v. U.S.

Date Proceedings and Orders
Jun 21 2013 Petition for a writ of certiorari filed.
Jul 25 2013 Brief amici curiae of Steve Stockman, et al. filed.
Jul 25 2013 Brief amicus curiae of NRA Civil Rights Defense Fund filed.
Aug 26 2013 Brief of respondent United States in opposition filed.
Sep 9 2013 Reply of petitioner Bruce James Abramski, Jr. filed.
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