December 19, 2018

By Julie G. Reiser, Raymond M. Sarola, Molly J. Bowen, and Sally Handmaker Guido

Given the epidemic levels of gun violence in America and the increasing shift to online commerce, a recent suit in Oregon established new legal precedent at the state and federal level to hold dealers accountable for unlawful straw sales and provides a roadmap for attorneys representing gun violence victims.

The wrongful death lawsuit was brought by attorneys at Cohen Milstein and the Brady Center to Prevent Gun Violence on behalf of the family of Kirsten Englund, who was murdered by a mentally troubled man who had illegally obtained a gun from an online dealer via a straw purchaser. In this case the straw purchaser was his mother, herself a mental health professional, who used her credit card and had her background checked before the purchase despite allegations that the son was the true purchaser. (Estate of Kirsten Englund v. World Pawn Exchange et al., No: 16-cv-598 (Coos Cty. Circuit Court)).

In this first-of-its-kind litigation, Englund established that online gun dealers can be liable for shooting deaths despite the bifurcated nature of online firearms sales and a major obstacle in the Protection of Lawful Commerce in Arms Act (PLCAA).

Before Englund: Dealers Must Verify ID

A fundamental premise of our federal gun control regulatory scheme is that firearms dealers must know who is buying a firearm, perform a background check on that person, transfer the firearm only to the person who cleared the background check, and maintain certain records regarding the purchaser.

This framework ensures that the dealer looks the true purchaser in the eye and determines whether he is legally permitted to purchase a gun. Firearms dealers also are required to consider whether a purchaser presents red flags that call into question the legality of the purchase and whether it is acting reasonably in selling a gun to that purchaser.

As evidenced in Enrique Marquez’ plea agreement in the 2015 San Bernadino shooting that killed 14 people and wounded 22 more, in a straw purchase the true purchaser and ultimate user of the gun does not go into the store and purchase it; instead, he sends in another person to pretend to be the purchaser, undergo the background check, complete the forms, and accept the gun. In Following the Gun: Enforcing Federal Laws Against Firearms Traffickers (June 18, 2000), the Bureau of Alcohol, Tobacco, Firearms & Explosives identifies straw-purchased guns as “a significant overall crime and public safety problem” due to their use by criminals and firearms traffickers.

Despite their illegality, straw sales are alarmingly frequent – in part because firearms dealers have not consistently identified and stopped these sales.

As decided in Abramski v. United States (134 S. Ct. 2259, 2269 (2013)), because straw purchases involve the provision of false information on federally mandated forms, they violate gun control statutes even if the purchaser is otherwise legally entitled to buy a gun. Therefore, prior to Englund, the illegality of straw purchases from brick-and-mortar sellers was well-established.

Online Gun Transactions: Different Process, Same Rules?

In online firearms sales, the transaction responsibilities are split between two different federally-licensed dealers. First, the online seller interacts with the customer at the point of purchase. However, because federal law prohibits a dealer from shipping a firearm directly to a customer, the online seller must ship the firearm to another dealer in the customer’s home state.

Next, the customer selects the dealer to which the gun will be transferred, and that dealer is required to perform the background check on the customer, obtain completed ATF transaction documents, and transfer the firearm to the actual purchaser and to no one else.

In Englund, the online dealer was the principal “seller” of the firearm, as it was sold from the dealer’s inventory to the purchaser. An unemployed, mentally ill young man alleged to be the true purchaser selected the weapon and interacted with the online seller through a web portal and email. Over the course of multiple transactions, his name and email were identified, as were those of the straw purchaser, his mother. The online seller neither asked any questions about the disparity between these individuals nor spoke directly with either one.

The full article can be accessed here.