EMERSON'S SIGNED FORM 4473
Government Claimed This is Fair Notice
There is yet another controversy in the Emerson case that could affect thousands of people in both the past and future.
The questions regarding prohibiting gun possession/ownership for those subject to a civil divorce court restraining order are:
Is signing a BATF form 4473 in the past considered fair warning of potential felony criminal penalties in the future? And is notice even needed under the Fifth Amendment for an obscure and highly technical law that is rarely used?
In their Emerson Briefs, the Clinton/Gore Justice Department claimed that:
1. No notice of the obscure law was needed. And;
2. Even if notice was required, Dr. Emerson had previously signed a BATF form 4473 over a year prior, thus providing "notice."
The government's claims are just a small, biased piece of this puzzle, and fail to consider many other compelling factors.
Here is a more complete picture of the Emerson case.
1. Dr. Emerson legally purchased the Beretta pistol in 1997 and correctly filled out the form 4473 by truthfully answering “no” to the question on restraining orders.
2. BATF form 4473 includes many technical provisions presenting problems for understanding each subsection. While the government contends Dr. Emerson is responsible for every little detail on this four-page, small-type document, it is unreasonable to ask someone to recall all the details over a year later for even a simpler form, such a rental car agreement. Moreover, unlike a car rental agreement, Dr. Emerson was not given a copy of the form 4473 for future review.
3. Even if Dr. Emerson read the form 4473 thoroughly and memorized every detail, it NEVER properly informed him that he must get rid of his existing firearms. In fact, the form 4473 contradicts itself, even in updated forms following the Emerson Case!
On Dr. Emerson's form, the text SPECIFICALLY only dealing with restraining orders, including those without any credible finding of threat, was listed as Question 8j and read as follows:
j. Are you subject to a court order restraining you from harassing, stalking, or threatening an intimate partner or child of such partner? (See Important Notice 4 and Definition 4.)
Following to the back page, Dr. Emerson's form had Notice 4, which SPECIFICALLY only covered "restraining orders," read at the time:
IMPORTANT NOTICES…
4. Under 18 U.S.C. 922, firearms may not be sold to or received by persons subject to a court order…[emphasis added]This "important notice" said nothing about removing any currently owned or possessed firearms. Only a prohibition on future acquisitions. And a more recent form dated 10-98 has the same contradiction, although the "restraining order" question 8j is renumbered 9j and the Important Notice 4 is renumbered Notice 6.
Despite these facts, the Government clings to the notion that the form 4473 was an accurate and fair notice by citing only one section, which read at the time in Bold lettering that:
I CERTIFY THAT THE ABOVE ANSWERS ARE TRUE AND CORRECT. I UNDERSTAND THAT A PERSON WHO ANSWERS "YES" TO ANY OF THE QUESTIONS 8b THROUGH 8k IS PROHIBITED FROM PURCHASING OR POSSESSING A FIREARM. [emphasis in original]
The more updated form dated 10-98 reads nearly identically except that 8b is renumbered 9c and 8k is renumbered 9k.
While the Government holds this one section up as gospel, the fact remains that:
1. Since there is a contradiction in the text of the form 4473, one logical conclusion would be that the section SPECIFICALLY addressing the section in question should hold more weight than the generalized section; or
2. At a minimum, where the express language of the form contradicts itself, the benefit should go to the reader as to which language applied; or
3. The whole form should be thrown out as lack of notice since under the "reasonable man" doctrine, one could not conclude which language was correct. Remember that those under indictment, under 9b of the form 4473 dated 10-98 can possess, but is prohibited from PURCHASING a firearm. The Bold lettering reads:
I CERTIFY THAT THE ABOVE ANSWERS ARE TRUE AND CORRECT. I UNDERSTAND THAT A PERSON WHO ANSWERS "YES" TO QUESTION 9b IS PROHIBITED FROM PURCHASING A FIREARM. I UNDERSTAND THAT A PERSON WHO ANSWERS "YES" TO ANY OF THE QUESTIONS 9c THROUGH 9k IS PROHIBITED FROM PURCHASING OR POSSESSING A FIREARM. [emphasis in original]
Yet another issue is that the court issuing the restraining order against Dr. Emerson also failed to warn him that he would leave the courtroom a federal felon if he owned or possessed any firearms. But since not even the judge knew about the seldom-used law, the judge couldn't warn Dr. Emerson even if he wanted to do so.
The decision in the Fifth Circuit Court of Appeals will hopefully address these Fifth Amendment issues, along with Second Amendment.
VIEW DR. EMERSON'S
SIGNED BATF FORM 4473:Personal information has been removed for privacy concerns of all parties.
