On December 15, 2021, married couple Richard and Melissa Hutchinson redeemed a Glock 19 handgun at Cash American Pawn in Toledo, Ohio, that Melissa had pawned a month prior. Melissa completed the required Form 4473, which included a statement under penalty of perjury that she was, in fact, acquiring the firearm for herself. After completing the paperwork and passing a background check, Melissa and Richard left the store, and Melissa was seen on video handing Richard the box containing the Glock before they left in separate cars.1Affidavit in Support of Criminal Complaint and Arrest Warrant, United States v. Hutchinson, https://www.courtlistener.com/docket/63134540/1/1/united-states-v-hutchinson/.
About a month later, Melissa and Richard returned to Cash America, and Melissa purchased a .410-gauge H&R Pardner shotgun. Melissa again completed the Form 4473, again indicated that she was the actual buyer of the firearm, and again was seen on video handing the firearm over to Richard before they left in separate cars.2Id.
A week after the second sale, in January 2022, an employee of Cash America contacted the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to flag these two purchases as suspicious. Following an investigation, the ATF discovered that Richard was prohibited from buying or possession firearms under federal law because of a prior felony conviction for robbery.3Id. Both Richard and Melissa were charged and ultimately pleaded guilty to a number of charges related to these purchases: Richard for illegally possessing firearms and Melissa for lying on the Form 4473 for both transactions and for providing the firearms to Richard in violation of federal law.4Indictment, United States v. Hutchinson, https://www.courtlistener.com/docket/63134540/10/united-states-v-hutchinson/; Melissa Hutchinson’s plea, United States v. Hutchinson, https://www.courtlistener.com/docket/63134541/united-states-v-hutchinson/#minute-entry-214680489. Richard Hutchinson’s plea, United States v. Hutchinson, https://www.courtlistener.com/docket/63134540/united-states-v-hutchinson/#minute-entry-214680673.
The Threat of Straw Purchases
This case provides a textbook example of straw purchasing: when one person buys a firearm on behalf of someone else, usually someone who is prohibited from possessing guns and would not pass a background check. According to ATF data, straw purchasing is one of the primary ways that firearms are diverted from the legal market to prohibited purchasers, many of whom use those firearms for violent criminal purposes. Of the nearly 10,000 ATF firearm trafficking investigations that were initiated between 2017 and 2021, 40 percent involved straw purchasing, resulting in nearly 38,000 trafficked guns. Straw-purchased guns are used in shootings more often than guns trafficked through other methods: 24 percent of trafficking cases during this period in which shootings occurred involved straw purchasing.
While some straw purchases can be hard to spot — particularly when the straw purchaser completes the sale at a gun store on their own — this case illustrates how obvious a straw purchase scenario can be when a couple is involved. This scenario isn’t an outlier; it’s so common that the National Shooting Sports Foundation (NSSF), the gun industry’s trade association, included it in a compliance training video to help gun dealers and their employees learn to spot common straw-purchase scenarios.5Exhibit 142 to Sierakowski Deposition, “Shooting 101: Firearms Part 1 and 2,” Minnesota v. Fleet Farm, at 13:30, https://www.industrydocuments.ucsf.edu/docs/hpjh0435/.
Despite the longstanding view by both the ATF and NSSF that this type of tag-team gun-buying behavior by couples is a telltale sign of straw purchasing and one of the easiest for gun store employees to identify and flag for law enforcement, a recent ATF proposal would enable straw purchases by couples and create unnecessary confusion for gun dealers.
Unpacking the ATF Rule
This April, the ATF rolled out more than 30 new regulatory actions designed to benefit the gun industry that collectively raise a number of public safety concerns. One of these proposals would create a significant new loophole that would enable precisely the type of straw purchasing behavior for which the Hutchinsons were convicted in federal court.
The proposal purports to provide clarity on what conduct constitutes prohibited straw purchases through new regulatory definitions. The proposed rule defines two categories of straw purchases: making a “material false statement” to a gun dealer in connection with a sale, and purchasing for a prohibited person. Both categories of straw purchases are currently recognized as illegal under federal law.6In 2014, the Supreme Court in Abramski v. United States held that making a material false statement during a firearms sale constituted an illegal straw purchase even if the ultimate buyer of the firearm was not a prohibited purchaser. In 2022, Congress enacted the Bipartisan Safer Communities Act, which included codifying a new straw purchase offense that makes it a crime to purchase a firearm on behalf of another person who is prohibited from gun possession or who intends to use the firearm in furtherance of a crime.
Had the ATF stopped here, this proposed rule might have been unobjectionable. But this proposal goes further to spell out a number of “exclusions” to the new regulatory definition of straw purchase by material false statement. Included among the exclusions is “acquiring or receiving a firearm by a spouse when the other spouse has paid for the firearm, provided that both spouses live at the same address.” In the proposal, the ATF explains that it has received questions about the purchase of firearms as marital property, and this exclusion “reflect[s] that ATF will not micromanage family affairs” and that “ATF retains an interest in such transactions only when a member of the family is prohibited by law from possessing a firearm.”
As apparently envisioned by this proposed rule, a married couple could go together to a gun store to shop for firearms, and “it does not matter which spouse fills out the form or hands over the money” if both spouses involved in a transaction are not prohibited and live at the same address. The ATF further explains that allowing this type of joint sale will not impact the ability to trace any of these firearms if they later are recovered in connection with a crime because “[f]or tracing purposes, the form will identify the name of a responsible adult who acquired the firearm and the correct address where that person lives.”
But the ATF’s proposal suffers from a significant flaw that will enable bad actors to use this spousal exclusion to engage in unlawful straw purchases. It does not include any requirements for gun dealers to verify that the couple is actually married, that the couple lives at the same address, and that both individuals are not prohibited from buying guns. The proposal states only that the exclusion applies when those factors are present but offers no guidance to gun dealers on how to verify any of them. In other words, under this proposal, the ATF will not require dealers to confirm that the couple is actually married or that they live together, apparently implementing an honor system for these purchases. Nor will dealers be required to run a background check on both individuals prior to allowing this type of joint sale, despite this being the only way to ensure that both spouses can legally purchase firearms.
Aiding Gun Traffickers
If this rule is implemented, any two individuals could walk into a gun store, tell the sales clerk that they are married, and take advantage of this “exclusion” to openly engage in what would otherwise be an obvious and unlawful straw purchase. A prohibited person can do all the shopping, select which guns to purchase, provide the payment, and then direct the second individual to complete the paperwork and undergo the background check. While the ATF claims in the proposal that straw purchasing a firearm on behalf of a spouse who is prohibited from owning a gun continues to be unlawful conduct, that admonition is meaningless without any verification requirements. Not only will traffickers be emboldened to attempt to make straw purchases in this way, but gun dealers will have little incentive to stop them, nor will they necessarily feel empowered to flag these purchases to the ATF as suspicious.
The ATF could have easily included verification requirements in the proposal that would lessen this risk. Dealers could be required to verify the identity and residence of both individuals, to keep a copy of those identity documents with the Form 4473, and to run a background check on both spouses. In failing to do so, the ATF instead issued a proposal that has the potential to enable rampant straw purchasing. Unfortunately, this seems to be a pattern with this recent package of regulatory proposals. Another proposal that would allow non-over-the-counter sales for the majority of gun purchases also creates serious risks of being exploited by straw purchasers and traffickers.