Gun control laws are increasingly the subject of legislative debate and social controversy. Should laws make guns more difficult to acquire or are such restrictions a violation of the Second Amendment of the U.S. Constitution? No matter what your position is in this debate, it is imperative that everyone understand exactly what the current law allows and what behavior will lead to a criminal prosecution.
At Stechschulte Nell, Attorneys at Law in Tampa, we are committed to providing the most professional, skilled, and comprehensive criminal defense to our clients, including those charged with firearms offenses. An important part of serving our clients is educating them about the law.
What Is a Straw Purchase of a Gun?
A straw purchase occurs when someone buys a firearm on behalf of someone else, especially when the person for whom the gun is purchased is ineligible to buy the gun themselves. When this happens, the buyer is essentially a stand-in, or a “straw man,” acting as a front man to conceal the identity of the real purchaser.
State and federal law prohibits “strawman” purchases, or “straw” purchases, and imposes severe penalties on anyone convicted of the crime.
In Florida, the law criminalizing the straw purchase of a gun is found at Fla. Stat. § 790.065 (12)(d)
Any person who knowingly acquires a firearm through purchase or transfer intended for the use of a person who is prohibited by state or federal law from possessing or receiving a firearm commits a felony of the third degree.
As a third-degree felony, the penalty in Florida includes up to 5 years in state prison and up to a $5,000 fine, or both.
Under federal law, specifically 18 U.S. Code § 932, it’s illegal for certain individuals to possess firearms. This includes, among others:
- Convicted felons
- Fugitive from justice
- Under indictment for a felony
- Individuals with restraining orders (currently on appeal in the U.S. Supreme Court)
- Those convicted of domestic violence
- Individuals suffering from certain mental health conditions and substance use disorders
Straw purchases are one of the primary methods for people fitting these descriptions to evade the legal bar stopping them from acquiring firearms.
The law prohibits any person from making a straw purchase on an ineligible person’s behalf, and it prohibits the ultimate buyer, the person receiving the gun, from participating in or agreeing to the straw purchase process.
Under federal law, anyone convicted of violating the criminal law prohibiting straw purchases of firearms can be sentenced to federal prison for up to 15 years and be fined.
(Federal jurisdiction to prosecute this crime requires some fact that involves the gun in interstate commerce or other interstate activity.)
Why Are Straw Purchases Illegal?
When a crime is committed using a gun, the police routinely attempt to trace the gun’s history. Is there a registered owner? Where did it come from? Where was it manufactured? How did it come into the possession of the person who used it in the crime?
When a gun is purchased through a straw purchase, law enforcement agencies face difficult challenges to trace the firearms history and origin. If the person who bought the gun was not the gun’s owner, how did they convey the gun to someone else? Often, the straw purchaser will claim the gun was stolen, but no police reports may verify the theft.
Potential Legal Defenses
A criminal charge alleging participation in a straw purchase of a gun is a serious matter, but there are defenses that can be effectively argued by a skilled and experienced criminal defense lawyer. The best defense will depend on the individual circumstances of each case:
Lack of Intent
One of the main elements in prosecuting a straw purchase is proving intent. If the defense can demonstrate that the buyer did not know they were engaging in a straw purchase or genuinely believed they were making a legitimate transaction, it may succeed in negating the element of intent.
Gifts and Exceptions
Not every purchase made on behalf of another individual is a straw purchase. For instance, buying a gun as a bona fide gift for someone who is legally allowed to own one isn’t considered a straw purchase. If the firearm was genuinely intended as a gift, and no money or service was exchanged, this could serve as a defense.
Procedural Errors or Violations by Law Enforcement
If law enforcement violated the accused’s rights during the investigation or arrest process, such as not reading Miranda rights or conducting an unlawful search, the defense can move to suppress any evidence that was produced either by the arrest or the search, potentially gutting the prosecution’s case.
Attacking Credibility of Evidence or Witnesses
The best defense attorneys can create reasonable doubt in the minds of the jury by challenging the authenticity or reliability of evidence, and by questioning the credibility of witnesses.
In cases where the accused was not the actual buyer but was mistakenly identified due to similar appearance or other factors, proving mistaken identity can exonerate the individual.
An Experienced Gun Crime Defense Lawyer Is Essential
Gun crimes are among the most actively prosecuted cases in both federal and state courts. Society’s concern about illegal gun possession and violent crime is at an all-time high. Because of the intensity with which these crimes are prosecuted, anyone facing a gun charge, especially if they are accused of being involved in a straw purchase, should immediately contact the most qualified criminal defense lawyer they can find.
In Tampa and throughout Hillsborough County and Pinellas County, Stechschulte Nell, Attorneys at Law are ready to help you defend any criminal allegations.
Contact us for a case review at 813-280-1244 today.