Hunter Biden’s Involvement In Firearm Incident Raises Important Legal Questions

Gun Rights

While advocating for new gun controls in 2013, then-Vice President Joe Biden told NRA-ILA Director of Federal Affairs Jim Baker, “regarding the lack of prosecutions on lying on Form 4473s, we simply don’t have the time or manpower to prosecute everybody who lies on a form, that checks a wrong box, that answers a question inaccurately.” Joe may have found a new reason to oppose vigorous enforcement of the gun control laws already on the books. According to an explosive report from Politico, Joe’s son Hunter was involved in a bizarre incident involving a firearm in 2018.

According to the article, on October 23, 2018, Hallie Biden, widow to Joe’s son Beau and then-companion to Hunter, searched Hunter’s truck, which was parked at her home in Wilmington, Del., and found a .38-caliber revolver. Seeking to dispose of the firearm, Hallie wrapped the revolver in a shopping bag and threw it into a trash receptacle outside nearby gourmet grocery store Janssen’s Market – which is located less than quarter mile from the campus of Alexis I. du Pont High School.

When Hallie told Hunter what she had done, Hunter told her to go back to the market and recover the gun. However, by the time Hallie returned to the store the firearm was gone. After Hallie alerted Janssen’s to what she had done, the store’s manager contacted law enforcement.

What ensued next was a situation that involved no less than the Delaware State Police, the United States Secret Service (allegedly), and the Federal Bureau of Investigation. In the end, the firearm was recovered by a man searching Janssen’s Market’s trash for recyclables and returned a few days later. Police did not charge Hunter or Hallie in connection with the incident.

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Elements of the story were originally reported by the Blaze in October, 2020. Given that the story had the potential to harm Joe’s presidential bid, the legacy press unsurprisingly chose to ignore it.

Aside from details of this bizarre family drama and the atrocious gun handling, the Politico article pointed out that Hunter’s notorious and admitted history of drug use raised questions about whether he acquired and possessed the gun in accordance with federal law. Federal law prohibits those who are “an unlawful user of or addicted to any controlled substance” from possessing firearms.

To be clear, NRA does not allege that Hunter engaged in any criminal conduct. The “unlawful user of or addicted to any controlled substance” prohibited person category is somewhat nebulous, and a person can remove themselves from that category at any time by ceasing to use drugs. Theoretically, Hunter could have been in a period of sobriety during the timeframe he purchased and possessed the revolver. Moreover, the following summary of existing law should not be taken as an endorsement of the current scope of the federal prohibited persons categories.

18 USC § 922(g) makes clear,

(g) It shall be unlawful for any person—

….

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The term “unlawful user of or addicted to any controlled substance” is further defined at length by federal regulation (27 C.F.R. § 478.11) as,

A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm.

The regulation also gives examples of occurrences that may give rise to an inference that an individual is an “unlawful user of or addicted to any controlled substance.”

An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.

Possession of a firearm by a prohibited person is punishable by up to 10 years imprisonment.

According to the Politico article, Hunter purchased the .38 -caliber revolver from a Federal Firearms Licensee (gun dealer) on October 12, 2018 – 11 days before the incident with Hallie. Addressing Hunter’s completion of the required federal form 4473, the report noted, “Hunter responded ‘no’ to a question on the transaction record that asks, ‘Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?’”

Lying on a form 4473 is two separate crimes.

18 U.S.C. § 924(a)(1)(A) concerns when a person, “knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter,” which would include a form 4473. A violation of this provision is punishable by up to 5 years imprisonment.

18 U.S.C. § 922(a)(6) provides,

for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;

A violation of 18 U.S.C. § 922(a)(6) is punishable by up to 10 years imprisonment.

After pointing out Hunter’s response on the form 4473, the Politico article noted that, “Five years earlier, he had been discharged from the Navy Reserve after testing positive for cocaine, and he and family members have spoken about his history of drug use.”

Hunter’s discharge from the military in 2013 would not be compelling evidence that he was an “unlawful user of or addicted to any controlled substance” in 2018 – when he purchased and possessed the revolver. Whether or not he and his family’s admissions, or other evidence, concerning drug use could give rise to an inference that Hunter was an “unlawful user of or addicted to any controlled substance” during the time period he acquired and possessed the firearm would be a matter for federal prosecutors to investigate. We’re sure Merrick Garland will be right on it.

Beyond the Bidens’ conduct, the Politico story also raised important questions about the federal government’s response to the incident. According to the Politico item, shortly after the .38-caliber revolver went missing, but before it was recovered, individuals purporting to be from the Secret Service visited the gun dealer where Hunter purchased the firearm in an attempt to acquire the corresponding form 4473. Gun dealers are required by federal law to maintain form 4473s for at least 20 years in order to assist law enforcement with tracing firearms recovered from crime scenes.

Politico explained,

Secret Service agents approached the owner of the store where Hunter bought the gun and asked to take the paperwork involving the sale, according to two people, one of whom has firsthand knowledge of the episode and the other was briefed by a Secret Service agent after the fact. 

The gun store owner refused to supply the paperwork, suspecting that the Secret Service officers wanted to hide Hunters ownership of the missing gun in case it were to be involved in a crime, the two people said. The owner, Ron Palmieri, later turned over the papers to the Bureau of Alcohol, Tobacco, Firearms, and Explosives, which oversees federal gun laws.

Did the federal government attempt to tamper with records that FFLs are required to keep by federal law in order to protect the son of a well-connected politician? For their part, the Secret Service told Capitol Hill media outlet The Hill that they had “no involvement in this incident.” Politico described the episode as a “mystery.”

However, on Friday, text messages from Hunter surfaced that appear to corroborate Politico’s initial account of Secret Service interference. The same day Senators Chuck Grassley (R-Iowa) and Ron Johnson (R-Wisc.) sent letters requested further information on the incident to the Bureau of Alcohol, Tobacco, Firearms and Explosives, the FBI, and the Secret Service.

NRA will continue to monitor this developing story and work to ensure that the federal government’s actions in this case receive the transparency that the American people deserve. Regardless of the outcome, Joe Biden should concern himself with his own family’s irresponsible use of firearms before restricting the rights of responsible law-abiding Americans.

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