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Arizona Strikes Back Against Bloomberg

So says the Arizona Attorney General:

“According to the most recent F.B.I. statistics, violent crime in New York City increased significantly in 2010 compared to data from 2009,” he said. “Robbery went up 3.9 percent, forcible rape rose 13.9 percent, aggravated assault increased 8.8 percent and murder rose 12.3 percent. Clearly, the good men and women of the New York City Police Department have more pressing crimes to investigate than alleged violations at a gun show 2,400 miles away.”

He criticizes the investigators for not contacting the Arizona State Police, and suggests their failure to do so makes this sting a transparent publicity stunt.

There seems to be some argument over whether the sales were lawful. They were not. Even if the investigators were Arizona residents, and not prohibited from possessing firearms, the sellers were violating 18 USC 922(d), which prohibits transfer to “any person knowing or having reasonable cause to believe that such person” is prohibited from possessing a firearm. Whether they actually are, or not, is immaterial to the legality of the sale. It’s what the seller reasonably believed. Judging from some of the videos, there’s also a strong case to be made for a violation of 18 USC 922(a) as well, for engaging in the business of selling firearms without a license.

The way Bloomberg seems to have set up the sting is legal from the point of view of his investigators, but the sellers were committing felonies. If his investigators had been actual prohibited persons, they also would be committing a felony, just under 18 USC 922(g). The prohibition on buying a firearm out of state only applies to the buyer if they transport the firearm back to their home state.

19 Responses to “Arizona Strikes Back Against Bloomberg”

  1. Flight-ER-Doc says:

    I’d still call them strawman sales…the ‘investigators’ were buying them for another person (Bloomberg) who is a prohibited person (in Arizona).

    Since Bloomberg conspired to commit a felony (the strawman sale) why isn’t he in the metro detention facility?

  2. Eck! says:

    Why is it that no one prosecutes these perps? We have film evidence! They provided it.

    If the claim the film was staged to escape criminal charges we have there there.

    Bust the perps, every one, prove the federal law is real and can hurt them too. If they ahve to doge charges then hey cant use that “loophole” as the only loophole is they got away with it and nothing happend to them because they were the “good guys” not!

    Eck!

  3. Shawn says:

    I thought that it was legal to buy a long arm even from out of state so long as you go through a dealer.

  4. I don’t know if it would apply under Arizona state or federal law. But, wouldn’t the investigators be guilty as accessories to a felony since they did not report these crimes to the proper authorities and participated in a felony?

  5. ExurbanKevin says:

    Rather than shovel snow off the New York CIty streets, Mayor Bloomberg has decided to shovel something else.

  6. Sigivald says:

    Flight: No, not a straw purchase.

    It’s a straw sale when the person purchasing “isn’t really the purchaser”; that is, they’re acting as a proxy for actual delivery to someone else.

    Purchasing because Bloomberg paid them to, but for their own possession is not a straw purchase.

    (Now, if they were purchasing arms as proxies for Bloomberg personally, for delivery to him, that would count.

    But doing it because he paid them to doesn’t make them straw purchasers. Only purchasing it for him by filling out a 4473 claiming they’re “the real purchaser” when they aren’t would count.

    Of course by ATF standards a “straw purchase” as such is impossible for a non-FFL transaction, since that offense is all in terms of the crime of lying on your 4473.

    [It’s not illegal to private transfer as a buyer “for someone else”, though if the someone else is prohibited the person doing the buying will be committing a felony under 18 USC 922 (d) by transferring it to them.

    As far as I can tell it’s not illegal to do a private transfer “for someone else” to take possession, as long as you don’t “reasonably believe” that anyone in the chain is prohibited.])

    Likewise with the “but Bloomberg’s out of state” – the guns were never going to be transferred to Mr. Bloomberg, so that’s irrelevant. That he paid people to go buy guns to make a point is not criminal on his part, since he was not paying them to get them for his possession.

  7. wfgodbold says:

    Are they using some kind of hidden camera?

    If the camera is out in the open, wouldn’t it make sense to assume that they’re not really incapable of passing a background check?

    I mean, Joe Q. Public isn’t going to go around videotaping himself commit felonies, is he?

  8. Sebastian says:

    I’m not sure you could get the buyer on conspiracy, since the criminal act in question is on the part of the seller. It’s not illegal to say you’re a criminal then buy a gun, when you’re not, in fact, a criminal.

  9. Sigivald says:

    Tim: Nope. There’s no felony in buying a private transfer gun and pretending you’re prohibited.

    It’s illegal for the seller to sell if he reasonably thinks you’re prohibited… but it’s not illegal for you to purchase if you’re really not prohibited.

    The law is asymmetrical there, quite reasonably, since it’s about the beliefs of the seller. There’s no significant problem with people who are not prohibited pretending to be, so there’s been no reason to criminalize it…

  10. divemedic says:

    What about 18 USC 922:
    (a) It shall be unlawful—
    (9) for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, who does not reside in any State to receive any firearms unless such receipt is for lawful sporting purposes.

  11. Wes says:

    #3, you most certainly can go to another state and buy a longgun and bring it back to your state if you buy it from an FFL. That may depend on the state, though. I’d have to look it up again to see if that’s only for adjacent states or some weird law like that.

    I know I’m not the only one confused by some of the ATF rules. I know someone in a different state who asked not only a couple FFLs but also two police departments if he could be gifted a handgun across state lines. One FFL said “sure, and you don’t need me for that,” the other said he couldn’t even talk to him anymore after he said it was a gift, (?), one police department said, “Sure, just give it,” and the other police department said, “What’s an FFL?”

  12. Ian Argent says:

    What I understand (and I am neither Evan Nappen nor Alan Gura, nor yet Tam) is that longarms may be purchased by a person not resident in the state from an FFL (not a private person) as long as the laws of both states are followed. This is a liberalization of the older law that said “adjacent states only”. Some states still maintain the “adjacent states only” restriction.

    So I can buy a longarm from Ready, Aim, Fire in Bristol PA by showing a photo ID that matches my NJ FID, and filling out a NJ CoE in addition to the 4473 (if I planned to I’d bring a stack, but they’re close enough to NJ they might keep a few on hand, the PDF is available and acceptable). I can’t buy one from a local without involving either a PA or an NJ FFL. I don’t know if I can buy one from a PA C&R holder – not having one. They’re pointless in NJ unless you want to own single examples of armor-piercing ammo, and even then I don’t know if you can get one; the state may require you fulfill the requirements off a “real” FFL.

    Unless Texas has changed their laws recently, I can’t buy one from an FFL there – not being a resident of an adjoining state. Pretty sure I can’t buy one at all from an FFL in NY, but I’m not positive.

  13. Sebastian,

    It seems you’re conflating an individuals’ assertion that they ‘probably couldn’t pass background check’ with that individual actually being a prohibited person.

    To the uninformed citizen, such an admission would be enough to indicate a crime, but given the number of prosecutions and resulting convictions that arise from ‘positive’ results on a NICS check, firearm owners should know better (and we generally do!).

    A man I used to work with (a handgun permit holder in TN) was flagged a couple of years ago buying a shotgun. Turns out his name got mixed up with his brother, who had some kind of bull shit arrest many years ago. It got straightened out, but this sets up an interesting situation. This gentleman initially didn’t pass a background check, yet he is not in any way a prohibited person.

    Now, imagine this keeps happening, getting flagged because of bad data in the database. This gentleman can now reasonably tell any seller ‘I probably won’t pass a background check’ and still not be a prohibited person.

    In a perfect world, this should count for something, but I know it doesn’t.

  14. Ian Argent says:

    Didn’t bloomberg’s VA stunt blow a prosecution against an actual gun smuggler?

  15. Kevin P. says:

    Is there any video AND audio posted of these alleged sales?

    If not, how do we know they happened as Bloomberg describes?

  16. Sebastian says:

    Packetman:

    Interesting theory, but I doubt a jury will buy it. The standard is not absolute. It comes down to what a reasonable person believes the seller should have known.

    Ian:

    Yes.

    Kevin:

    There is video, same as all the other stings.

  17. Ian Argent says:

    Now that would have been amusing to see the VA AG indict Bloomie for Conspiracy to Obstruct Justice…

  18. Harry Schell says:

    Bloomie needs a head fake to divert attention from his miserable performance as mayor and I expect picked AZ to capitalize on the Tucson murders.

    His little op is beside the point, as the murderer went through normal channels to purchase his weapon. All Bloomie proves is that criminals can get weapons if they want them. Someone will sell them. This is not news nor something Bloomie can do anything about.

    High profile murder in Los Angeles a couple of years ago, illegal alien less than 24 hours out of prison for a felony kills a teen on city streets. About 8 laws violated. Instead of going to gun shows, Bloomie should try to find that kind of seller and put him out of business.

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