Legal Analysis of Anti-Gun Comedian's Straw Purchase Video

This post comes from one of our readers, I AM NOT YOUR ATTORNEY, and is a follow-up to our article “Anti-Gun Comedian Makes Straw Purchase” by comedian Steve Hofstetter.

Dear Reader, please forgive the legal speak—I wanted to be exact. Please forgive the length- I wanted to be thorough. Please forgive the excess detail—I wanted to show the ugly truth that has been perpetrated under the mask of comedy.

Hofstetter clearly states in his video at around 0:31 that he gave Mukai, a Nevada resident, the money to buy the gun for him. In his remarks on the YouTube video page, he states that Mukai did purchase the weapon and presently possesses it. They further show that a background check on Mukai was performed. This is done subsequent to the completion of Form 4473.

As the United States Supreme Court has recently upheld in Abramski v. United States, 134 S. Ct. 2259 (2014), falsely checking “Yes,” to the question 11.a “Are you the actual transferee/buyer of the firearm(s) listed on this form?” constitutes a breach of 18 U.S.C. § 922(a)(b). Abramski, Mukai, and anyone else who knowingly makes a false statement to, intentionally deceives, and lies about a material fact to a firearms dealer is guilty. Mr. Abramski is presently enjoying five years of probation after paying a $200 fine for checking “Yes,” to that question.

There are two ways to address this issue, and only two, per 18 U.S.C. § 922(a)(b) and its resultant Form 4473. Either Hofstetter has given the firearm as a gift to Mukai, or Mukai has performed a straw purchase for Hofstetter. The facts, in conjunction with the instructions for Question 11.a included on the form, shall disclose the truth.

Hofstetter leaves no doubt as to who is paying for the firearm, he acknowledges that it is his money and Mukai is his proxy. If he had wished to give the firearm as a gift to Mukai, the instructions for the form state, “However, if Mr. Brown [Hofstetter] goes to buy a firearm with his own money to give to Mr. Black [Mukai] as a present, Mr. Brown [Hofstetter] is the actual transferee/buyer of the firearm and should answer “YES” to question 11.a.” In other words, Hofstetter had to fill out the form and then legally transfer the weapon to Mukai. As Hofstetter did not complete the form, but suborned Mukai to purchase a weapon using Hofstetter’s money, perhaps enlightenment may be had by the other portion of the instructions for Question 11.

“Mr. Smith [Hofstetter] asks Mr. Jones [Mukai] to purchase a firearm for Mr. Smith [Hofstetter]. Mr. Smith [Hofstetter] gives Mr. Jones [Mukai] the money for the firearm. If Mr. Jones [Mukai] fills out Form 4473, he violates the law by falsely stating that he is the actual buyer of the firearm. Mr. Smith also violates the law because he has unlawfully aided and abetted or caused the making of false statements on the form.” Put differently, when Hofstetter gives money for the purchase of a firearm to Mukai, he provides him with the financial consideration necessary to constitute a contract for the purchase of the weapon. At no time does he have to specifically state what he wants, his actions create the understanding that was explicitly stated at the beginning of the video. Mukai then criminally makes a false statement as in Abramski, above, and Hofstetter has played a criminal role in the deception regarding a material fact. 18 U.S.C. § 922(a)(b) and Form 4473 leave no other interpretations.

As a hypothetical, Hofstetter might say, “I never received the weapon, I have publicly stated it is with Mukai.” To finalize the conclusion of a straw purchase, note well that Question 11.a reads “You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person.” As Hofstetter has directly stated, he provided the money for the purchase of the weapon and Mukai purchased it on his behalf. At no point on the form or in law does failure to complete the terms of an illegal contract to purchase a lethal weapon protect either party from conviction. It was either a gift, or a straw purchase- there is no gray area with dangerous and deadly weapons.

The right to freedom of expression is not a sufficient affirmative defense to a criminal act. Hofstetter and Mukai have falsely provided the impression that one may simply drive across the border from California into Nevada and purchase guns. The rest of their comedy video shows the difficulties they encounter when attempting to legally acquire other commodities, and how much faster one can get things by breaking the law.

Hofstetter’s comedy contains many insults. First, it insults Nevada “so that people [from California] can't just drive a few hours to get around the [California] law.” It is an insult to law abiding gun owners everywhere who do not engage in straw purchases and other criminal conduct. But, most importantly, by constantly cracking jokes and engaging in distracting behavior, Hofstetter and Mukai have made it appear that Paul Cesiro, owner of Paul’s Gun Room, was aware of and tolerated their straw purchase.

The good folks of Paul’s Gun Room who steadfastly refused Hofstetter a Form 4473 and the sale of a gun have been made to appear criminally complicit in Hofstetter and Mukai’s illegal acts. They’re a small business working hard to obey the law, and they and every other Nevadan has been slapped in the face by these comedians. If you have the opportunity to patronize Mr. Cesiro’s business, which the video shows performed its due diligence, please give them a call at (702) 454-6437 and help support them while they have to produce Mukai’s Form 4473 and possibly retain defense counsel. As Hofstetter’s YouTube post protesting his innocence attests, it was their goal to make Paul’s Gun Room look like they supported a straw purchase.

Hofstetter’s point was not lost. He believes that prior restraint of a constitutionally protected right should be the standard. That’s a fine perspective to take, and it was protected speech up until it involved deceiving a government agency—which prefers post hoc punishments of offenders. While Hofstetter protests much that his critics are neither lawyers nor wrong, his own defense counsel is silent on the matter. Where is the well crafted legalese citing code, statute, and prior judicial decision bearing the name of any attorney? Surely these two didn’t simply decide to violate federal law and become a test-case without first retaining counsel. Hofstetter and Mukai have performed their acts and shown Californians how they can just drive a few hours and illegally acquire deadly weapons by performing a straw man purchase.

Since their video “How Easy is it to Buy a Gun? (Hidden Camera)” has gone viral, it’s been reported on by local newspapers, the Huffington Post, Inside Edition, etc. Thankfully, there is a means by which we can stem the tides of those poor misled potential federal criminals. Some of whom might be successful using Hofstetter and Mukai’s methods. Those means are simple and direct: aggressive and vigorous enforcement of local, state, and federal laws following the Abramski ruling. In the same way they have casually violated the gun laws and encouraged criminal conduct, let them become a shining example of how we deal with those who engage in such mischief. Let the word go out far and wide that this conduct will not be tolerated, and make such a thorough example of these comedians that the joke is on them.

Sources have informed Nevada Carry that the ATF may be investigating the incident. 

Random Sledgehammer Attacks in BC and Henderson

What can only be called a deranged man went on a random crime speed with a sledgehammer that ranged from Boulder City to Henderson. The man attacked 10 people with a hammer in an hour’s time last Friday night. He faces six counts of attempted murder and one count of assault with a deadly weapon.

“...the incident started in Boulder City around 8 p.m. Friday when Robins is accused of attacking a woman in a car with a one-handed sledgehammer in a convenience store parking lot. He then attacked two elderly people in the parking lot of a Boulder City auto parts store, according to Paul.Next, police said Robins ran a driver off the road on U.S. 93 and hit the male driver several times with the hammer. Authorities said after that attack, Robins drove off and ran another driver off the roadway and attacked that driver with the hammer."

Police said Robins then drove into Henderson and cut off a driver at Greenway Road and Horizon Drive. Paul says Robins attacked the driver with the hammer before he got back in his car and drove up Greenway Road to Heather Drive.

At Heather Drive, police said he is accused of cutting in front of an oncoming vehicle. When the driver stopped, police said he attacked the female driver before he got back in his car and drove to Foothill High School and hit a man with the hammer there. He fled as officers arrived.

Next, police said Robins drove to a Taco Bell restaurant on Horizon Drive and blocked a vehicle in the drive-thru lane and attacked that vehicle and driver.

He sped off and pulled into a nearby neighborhood, cut off another vehicle and got out, smashed the car with the hammer. The driver of that vehicle was not injured.”

Read more at Fox 5.

This crook should feel himself lucky that he didn’t run into an armed citizen. The gun is mightier than the sledgehammer. This is more reason to rejoice in the fact that Nevada allows its citizens to carry a loaded gun in their vehicle and also a miracle that no one was killed or seriously injured. Have a gun, carry it, and know how to use it, because you never know when your late night trip for tacos might turn into a confrontation with a psychopath.

He was involved in several road rage incidents in connection to the hammer attacks. From the details in the article, it appears that most of the victims were in their cars when he attacked them.

In a road-rage or any sort of self-defense situation, staying in your vehicle is a good idea. Obviously, the car provides an obstacle for the attacker to break through, sledgehammer or not. Lock the doors, roll up the windows, and get out of there. A prudent driver will always room to escape, if possible. When stopping in traffic, leave enough room from the car in front of you so that you can see the rear tires. Not only does this allow you room to turn your vehicle out and drive off, it provides a cushion of space in front of you if your vehicle was to be rear-ended.

In most fast-food drive-throughs, there is no way to escape except to drive out, and the lane will probably be blocked by other cars whose drivers’ may not be aware of the danger. In a drive through, if you have to get away from danger, abandon your car. Most people will think that since their car is immobilized, that they are cut off from escape. 

UPDATE 10/29/2014

The Review-Journal had more details in the bizarre hammer attacks in Henderson and Boulder City.

He gave this chilling statement: “Sir, I’m sorry but I’m going to kill you; everything will be OK when you’re dead.” 

He even had his wife make a straw purchase of a firearm. "Her only way out was leaving with him, according to the report. Robins took the woman to a gun store where she filled out the paperwork to a buy a firearm for him. Robins could not buy a gun himself because he is a felon, police said."

It is unknown if the firearm was purchased or not. Background checks or not, criminals will attempt to buy guns, they will get them, legally or not, and commit acts of violence, guns or not.

Nevada Carry reminds all Nevadans that a loaded firearm can be carried openly on their person and in their vehicle without a permit.

What is disturbing is the suspect approaching people at a high school, a place where they are disarmed by law, made helpless to defend themselves against a criminal with no respect for the law.

Again, it is fortunate that no one was hurt or killed. 

Who Could Be Against Background Checks?

The last few years have been tragic ones in America. We have seen several massacres that have been the result of mentally ill or otherwise disturbed individuals who should not have had access to guns. Many people ask: “How can you be against background checks?” It’s a complex issue, so let’s look at it in depth.

The 2012 Aurora, CO theater murderer, who was mentally ill, legally obtained his firearms and passed a background check.[1] Same with the suspect in the Virginia Tech massacre. The Sandy Hook school shooter murdered his mother and stole her guns. A background check prevented none of these shootings. Outlawing me, a responsible citizen, concealed weapons permit holder, and former law enforcement official, from buying a pistol in the parking lot of a pizza restaurant (and I’ve done so) would do little to stem gun violence.

Many of us in the law abiding gun-owning community are against universal background checks. Gov. Sandoval rejected SB 221 in 2013 that would have required universal background checks among other measures. In his rejection statement, he quoted the Nevada Sheriffs’ and Chiefs’ Association: “The sections of SB 221 requiring mandatory background checks on private sales place an unreasonable burden on law-abiding citizens, with the potential to make them criminals. It would be unenforceable by law enforcement. It is our opinion that this bill would do little to keep firearms out of the hands of criminals.”[2] Criminals are such because they break the law; they will not obey a law that prevents them from what they intend to achieve, be it legal or illegal.

For those that don’t know it, here is how the background check process in Nevada works: once you have selected a gun for purchase, you fill out a BATFE form 4473 [3] and a phone call is made to the Nevada Point-of-Sale Firearms Program by the firearms dealer (rather than the federal National Instant Criminal Background Check System, or NICS). Excluding hold times, most law-abiding citizens are approved within a few (like 2-5 minutes) of calling. Approval is either granted, delayed (when further research is needed), or denied.[4] It costs $25 per check, unless one has a valid Nevada concealed firearms permit. NRS 202.254 [5] allows individuals to make the checks themselves, on a voluntary basis, though the actual procedure is not clear.

 President Obama stated that “as many as 40% of guns are purchased without a background check.”[6] John Lott debunks this notion here [7], stating that the number is closer to 10%, specifically by subtracting “guns that were bought, traded, borrowed, rented, issued as a requirement of the job, or won through raffles, 85 percent went through FFLs; just 15 percent were transferred without a background check. If you include these transfers either through FFLs or from family members, the remaining transfers falls to 11.5 percent.” He also details how the study where the statistic comes from was flawed. While those figures are outdated, surely 40% is not accurate even today.

So let’s look at the 10% (for the sake of argument) of guns that are sold in private party sales. Private gun sales to criminals is not the leading way they get their guns. Me buying grandpa’s old Colt at a garage sale is not the same as a drug dealer buying an Uzi from the back of a truck.

A ‘straw purchase’ is when a person who can legally possess a firearm, purchases a firearm on behalf of a person who cannot. A study “found that straw purchasing was the most common channel of illegal gun trafficking, accounting for almost one-half (46%) of all investigations, and associated with nearly 26,000 illegally trafficked firearms.”[8] “In one study, the ATF found that 50.9% of all illegal guns trafficked were originated from straw purchases, while only 14.2% came from unregulated private sales-roughly the same percentage of guns that were stolen.”[9]

            Guns bought legally from dealers are generally not the guns used in crimes. “ATF officials say that only about 8% of the nation's 124,000 retail gun dealers sell the majority of handguns that are used in crimes.”[10] This would probably be due, in part, to background checks and strong ethics of the dealers. This begs the question: shouldn't that support universal background checks?

 “Another large source of guns used in crimes are unlicensed street dealers who either get their guns through illegal transactions with licensed dealers, straw purchases, or from gun thefts. These illegal dealers turn around and sell these illegally on the street. An additional way criminals gain access to guns is family and friends, either through sales, theft or as gifts.”[11] *

Yet “illegal activity by those licensed to sell guns [...] is a huge source of crime guns and greatly surpasses the sale of guns stolen.” So if corrupt dealers don't abide by the system that America has placed its faith in, how would that same system expanded prevent a large segment of people with a lot less oversight and less to lose from engaging in illegal gun sales? Clearly, background checks didn’t prevent licensed dealers from abusing the system them are an integral part of.

So what are we preventing here? I am not arguing against in-store background checks; I think that since the majority of gun sales occur there, it’s good system for keeping honest people honest and making life more difficult for bad guys. I can pass a background check easily, and thanks to Nevada not having a waiting person and allowing me (as a concealed firearms permit holder) to skip the $25 fee, I don’t mind. I do mind when a useless background check system for face-to-face transfers that can’t be enforced is instituted.

The idea of private background checks is analogous to buying a car. Both guns and cars, if used improperly, can injure and kill innocent people. A background check for a private sale is a bit like requiring you to go to the DMV first to prove you have a valid license and make sure the car isn’t stolen. Who would agree to that? While guns are a bit different, a gun is still simply an inanimate object. It is the owner who chooses what to do with it, just as a drunk driver has the choice to get behind the wheel. No law has ever prevented a drunk, determined to drive, from getting behind the wheel. A law can only deter the honest and punish those who break it. I obey the law because I enjoy not being fined, imprisoned, and shamed.

So what does the background check accomplish when it stops a bad guy from buying a gun? In 2010, the FBI conducted 6 millions checks and referred about 1%, or 76,142 cases to the ATF for further investigation. 4,732 of these were referred to field offices for further investigation.[13]

           Source: http://permanent.access.gpo.gov/lps4006/020400report.pdf

4,184 cases were declined by the ATF field offices. Only 62 cases were referred to prosecution, with 13 leading to guilty pleas. 18 cases were declined by the prosecutor while the rest were either pending or pled out. So 44 cases led to (probable) punishment of some sort. 44 cases out of 4,732 with enough merit for an investigation and 44 cases out of 76,142 referrals.[14]

Why isn't the government prosecuting more people for trying to buy guns? Aren't there laws against attempting a crime? I think attempting to illegally possess a gun would count. Quite frankly, if we truly want to deter this kind of behavior, we should at least prosecute prohibited persons from trying to get a gun. We prohibit people from trying to get lots of illegal stuff. Ever see a prostitution sting?

And shouldn't law enforcement be concerned about prohibited persons trying to get guns? I say the fact they are trying to buy a gun needs to be investigated and followed-up on to see if they obtain one through other means. If it is truly a case of ignorance of the law, then we can move on, but most felons (47.4%)[15] of all denials know better, and the next category, restrained persons or domestic violence offenders probably shouldn't have guns either.

If my neighbor, a felon with a record for shooting his neighbors, tried to buy a gun, I’d be a little concerned, especially if we’ve been having a tiff over which side of the driveway the trashcans go on. I would hope his parole officer would show up a few times a month and do some searches.

So what are the benefits to no background checks for private sales? First off, why do I have to be treated like a bad guy? When I buy a car, no one suspects me of having a suspended license or that I’m buying a car for an alcoholic. Second, it adds an unnecessary hassle, as I pointed our earlier about having to go to the DMV before you bought a car privately. Third, what is it going to stop? Our worst massacres were caused by deranged killers who either obtained their weapons by passing background checks and

Criminals either get a straw purchaser to buy a gun or they steal them. Black market gun dealers and unscrupulous friends and relatives giving guns to felons, thieves, robbers, drug dealers, and gang members won’t bother with a background check. “Oh, sorry bro, you got that felony from when you beat up that girl behind the casino. I can’t sell this to you.” Laughable, right?

Now, what was the process that SB 221[16] sought to institute? Anyone except a concealed firearms permit holder would have to go through a background check. Surely a licensed dealer could do this, for the state fee, of course, any maybe a transfer fee of their own (as many dealers require for current out-of-state transfers). If I wanted to make sure that the kindly old man who wanted to buy my firearm was indeed allowed to possess one, how would I do it? Under current law, I’m not sure how. The NRS doesn’t tell you and neither does the state background check webpage. Google didn’t give me a quick answer the phone number is for dealers only. Am I supposed to send a letter to “The Central Repository” in Carson City and wait for a response? We live in the 21st Century; an instant check on a secure web portal or a phone call 24/7 would be the way to go, but I doubt anyone thought that far.

If we want to do something to reduce gun violence by getting guns out of the hands of bad guys, here’s what I suggest:

• Prosecute prohibited persons who attempt to get guns; create new laws if necessary. Let the ignorant go and throw the book at those who knew better than to try.
• Identify straw purchasers and prosecute them. Shut down dealers who knowingly permit straw purchases.
• Fix the mental health reporting system so that the truly dangerous are institutionalized, forcibly if necessary. If violent or potentially dangerous mentally ill persons are on the streets, they are a danger to public safety and need to be taken away, just like we would quarantine a plague patient.
• More good guys with guns. Only good can stop evil.

Universal background checks do little to stop criminals and potential psychopaths from getting guns. They make law-abiding citizens into potential criminals and unnecessarily complicate our lives. An unenforceable law is just a waste of paper. Universal background checks are just another feature in the ‘feel-good, do nothing’ of the moment. It’s another wave on the shore eroding our right to keep and bear arms.

*Relatives should know if their loved one is prohibited from possessing a firearm; if they don’t know their loved one well enough to know that, then they don’t know them well enough to entrust a firearm to them. The rates of relatives engaging in straw purchasers should be enough to debunk the idea that regulating family transfers would reduce gun violence, anymore than making it illegal for alcoholics to have access to their relative’s car keys would prevent DUIs.