Should 922 (g)(4) denials trigger prosecution under 922 (a)(1) (False Statement to Acquire a Firearm) ie lie and try prosecutions for mental health patients

reference article

False Statement in Connection With Acquisition of a Firearm,
18 U.S.C. § 922(a)(6)

For purposes of this discussion most of it will cover federal law. State law will be covered later.

If a person attempts to purchase a firearm from an FFL and they are denied, when the denial is reported to the state, the state technically has the discretion to pursue an investigation as to whether the prospective buyer was attempting to deceive the FFL by providing information they knew was materially false. Most of the time § 922 (a)(6) is used when charging defendants who have prior felonies or domestic violence convictions and civil court orders. However, with the increased focus on mental health, expanding gun control laws, and the passage of the BSCA, many proponents against gun control believe that mental health patients will be prosecuted for "lie and try"; even for a first time attempt to purchase a firearm. 

Per CA law, when the person completes their 5250 hold assuming they did not prevail on their cert hearing/writ of habeas corpus, they will be given legal document describing the prohibitions. The document states that the prohibition term under state law is five years for one 5150 and a lifetime for 2 5150's in a year.  The document then states that if you were held for more than three days federal law may prohibit you from owning and possession firearms for a longer period of time. The BOF 4009B at the bottom has a signature where it reads "I certify that I have read and understand that I am subject to the prohibition(s) indicated in this document". It is important to note that the 4009B does not have this disclosure certifying that the patient read and understood the document. This to a charging prosecutor is likely to qualify as knowingly making a false statement about prohibition status. 

The ATF endorses legal enforcement of those who fill out a 4473 without ensuring that they are very reasonably certain they are not in a prohibited class. “Prior to stepping foot in a gun store, potential purchasers with eligibility concerns have access to a variety of information, reference materials and Q&A at www.atf.gov or by contacting their local ATF Office,”
​-Dallas Division ATF Special Agent in Charge Jeffrey C. Boshek II.  


Many years down the road, a person who may have been certified when they were 18 years old have forgotten that they signed such a document. Most mental health patients discard their paperwork and do not sign that they wish to have a hearing to restore their rights. When they sign the 4473, a federal document, they most likely do not understand that the 5250 certification review hearing triggers the lifetime prohibition. Even though Stokes found this prohibitor unconstitutional, Stokes was an as applied case and therefore did not change federal law.




With the push for gun control and past events of mass shooters having been mentally committed years before, there could be a push to charge prospective buyers with making a false statement in connection with trying to buy a firearm/ammunition, specifically about "have you ever been adjudicated mentally defective or committed to a mental institution". The law mandates that the FFL cannot assist a buyer in filling out the form 4473. Rather, they can only guide the buyer to the end pages with the definitions of each criterion. Most persons who were committed in CA remember the 5150 and being told about the 5 year prohibition. They do not know about the lifetime prohibitor and neither do most hospital persons administering the paperwork. Because of this it is difficult to prove the mens rea behind filling out the 4473 falsely.

For the court to find [defendant] guilty of this crime, it must be convinced that the US District Attorney has proven each of these things beyond a reasonable doubt:
First, that defendant knowingly made a false statement as charged in the Indictment;
Second, that at the time they made the statement, defendant was trying to buy a firearm/ammunition from a licensed dealer; and
Third, that the statement was intended to, or likely to, deceive the licensed dealer about a fact material to the lawfulness of the sale.

It is important in all of the facts discussed above, that the government does not have to prove that defendant knew that they were violating the law regarding false statements on a 4473. They only have to show that the statement is "false" if it is untrue when made. The false statement is made "knowingly" if the person making it knows that it is false or demonstrates a reckless disregard for the truth, with a conscious purpose to avoid learning the truth. Finally, the fact of 5150's being different from 5250's and their attendant certification hearings is "material" as it either has a natural tendency to influence or to be capable of influencing the decision of the licensed dealer as to whether it is lawful to sell the firearm. Legally it is irrelevant if the licensed dealer actually relies upon the statement in processing the 4473. For reference, the FFL is charged with denying the sale up front if they have reasonable suspicion that the person is a prohibited purchaser or a straw buyer even without providing a 4473. [CITATION]

The court may consider any statements made or acts done or omitted by defendant and all other facts and circumstances received in evidence that may aid in its determination of defendant's knowledge or intent. That is where a pro gun control judge may use the certified signature of read and understood the prohibitions in BOF 4009B against defendant in proving that they knew about their status. Ignorance of the law is almost never an equitable excuse. 

Case law that has addressed this issue

United States v. Currier, 621 F.2d 7, 10 (1st Cir. 1980), stated that section 922(a)(6) "does not require a showing that appellant 'knowingly' violated the law; it simply requires proof that appellant 'knowingly' made a false statement."
(2) The definition of "knowingly" is different from the customary definition of "knowingly" for other types of offenses. It comes from United States v. Wright, 537 F.2d 1144, 1145 (1st Cir. 1976), a case arising under 18 U.S.C. § 922(a)

United States v. Santiago-Fraticelli, 730 F.2d 828, 831 (1st Cir. 1984), emphasized that section 922(a)(6)'s scope is "not limited to situations in which an accused knew he was lying." When a person recklessly fails to ascertain the meaning of the questions contained in Form 4473, and simply answers the questions without regard to whether the answers are truthful,  he is acting "knowingly" for purposes of this section. 

For purposes of the 5250 federal prohibitor, this would entail finding that defendant was responsible for reading the back of the 4473 and even possibly researching what kind of prohibition a 5250 hold triggers both statewide and federally. The defendant may also be required to due their due diligence in researching the difference between a certification review hearing and just the mere beginnings of a 14 day hold as the cert hearing is the triggering event.

(3) Section 922 does not require proof that the transaction was in interstate commerce. see Scarborough v. United States, 431 U.S. 563 (1977). The requirement of a transaction with a licensed dealer is sufficient. Those dealers' general involvement with interstate commerce is ample to justify federal regulation of even intrastate sales. see United States v. Crandall, 453 F.2d 1216, 1217 (1st Cir. 1972).


(4) The definition of "material" is defined in United States v. Arcadipane, 41 F.3d 1, 7 (1st Cir. 1994).