But Sometimes the Owners Are. Understanding Minnesota's private-transfer exception suggests the best path to reducing gun violence By Aaron Edward Brown
22 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org
L ast October, Kanye West was are many categories of ineligible persons there were transfer affidavits in only 119 asked during a meeting with for purposes of our federal firearm laws, instances. Although some of these now- President Trump and former NFL and even more categories if individual prohibited individuals ended up relin- legend Jim Brown how to fix the states’ ineligibility categories are parsed quishing or disposing of their now “illegal” gun violence problem in Chicago. Kanye out.6 Broadly, though, it is illegal for all firearms without filing the requisite affida- responded by saying, “The problem is il- individuals to sell or transfer7 a firearm to vit, many of them simply end up holding legal guns. Illegal guns is the problem, anyone who on to their firearms until a different inter- not legal guns. We have the right to bear vening event occurs (one that typically arms.” Bradley Buckles, the former direc- 1) has been convicted of (or is involves an arrest after a violent crime).13 tor of the Bureau of Alcohol, Tobacco, currently indicted for) a felony; Private transfers: The private-trans- and Firearms (ATF), made a subtly dif- 2) is a fugitive from justice; fer exception (also commonly referred to ferent point almost two decades earlier, 3) is an unlawful user or addict of as the gun-show loophole or the private- when he noted that “[v]irtually every gun a controlled substance;8 sale loophole) allows for a non-licensed [used in a crime] in the United States 4) has been committed to a mental individual to transfer (give, sell, lend) fire- starts off as a legal firearm.” (Emphasis institution or adjudicated mentally arms to a different individual in the same added.) Essentially all the research over defective; state without going through the normal the past three decades supports Buckles’s 5) is an alien; requirements that would apply to a fed- statement that firearms become illegal 6) has been dishonorably erally licensed firearm dealer (formally because an individual who eventually ob- discharged from the Armed Forces; known as a Federal Firearms Licensee, tains the firearm is an ineligible possessor 7) has renounced their United or FFL)—requiring the transferee to fill of the firearm and not because the firearm States citizenship; out an ATF form 4473 and submit to a itself was per se illegal. 8) is subject to a qualified order for background check.14 A “non-licensed” But what about Kanye and his “illegal protection; or seller under federal law is someone who gun”? Is it one that is illegal because the 9) has been convicted of a does not “engage in the business of selling possessor is ineligible under federal, state, misdemeanor crime of domestic firearms.”15 or local law? Or is it one that would be violence. These sellers will not face criminal re- illegal for anyone to possess regardless of percussions under federal law as long as their status under the law? This distinc- Minnesota, for example, includes the seller does not know, or does not have tion is the first step in understanding many of the federal firearm prohi- a reasonable basis to know, that the buyer which policy options have an opportunity bitions in its state law dealing with is prohibited under federal, state, or lo- to successfully reduce gun violence in ineligible firearm possessors,9 but cal law from possessing firearms.16 Pri- Minnesota and the United States. Minnesota has also expanded the pro- vate transfers represent a big problem in In the United States we have what hibitory statuses in many areas, includ- affording ineligible individuals access to some might call a patchwork of firearm ing an expanded category of misde- firearms. Many states have experimented laws. Although the federal government meanor crimes and certain drug crimes.10 with ways to curb unauthorized transac- has passed firearm laws that apply to the tions via the private-transfer exception, country as a whole, most states also have Access to firearms by ineligible such as enacting statewide universal their own laws regulating firearms. Under possessors background checks or, in the case of Min- federal law, there are several statutes that As the foregoing suggests, there are nesota, by establishing criminal penalties attach specifically to firearms, as opposed many categories of ineligible people for for firearm sales when the purchaser later to the possessor of the firearm. For exam- purposes of Minnesota and federal fire- uses the firearm in a violent crime.17 ple, firearms manufactured without serial arm laws. In fact, the number of ineligible Straw purchases: A straw buyer is a numbers1 or firearms with altered or oblit- persons for purposes of our federal firearm person who purchases a firearm on behalf erated serial numbers are “illegal” firearms laws is well into the tens of millions.11 So of another person. Straw purchases at a regardless of their possessor’s status.2 It is the question now becomes, how do these federally licensed firearm dealer (FFL) also illegal to possess or manufacture cer- ineligible people get access to firearms? violate federal law because firearm pur- tain types of weapons, such as fully auto- The answer is by exploiting loopholes in chases, in general, require the “buyer” to matic firearms (commonly referred to as our laws. answer—among other things—whether “machine guns”),3 sawed-off shotguns, Intervening events: Some people buy they are “the actual transferee/buyer of and sawed-off rifles, as well as certain ac- a firearm while they are eligible and then, the firearm(s) listed on [the] form.”18 If cessories such as firearm suppressors, un- during the time they own that firearm, the “buyer” answers no on this question, less you fall under certain limited excep- do something that makes them ineligible. then the FFL is precluded from selling to tions.4 Another example of federal firearm Many states have no process in place for that buyer. Of course, this question—like law that applies to the firearm—regardless requiring firearm relinquishment, which all of the other questions on the ATF of the status of the possessor—is the ban means that the now-ineligible person will form 4473—is not asked during private on manufacturing, importing, selling, or keep their firearm indefinitely until they transactions because federal law does not possessing any firearm not detectable by have an interaction with police or volun- require form 4473 or a background check airport security devices.5 tarily relinquish the firearm(s). This hap- for a private transfer, and many states But most of the federal firearm crimes pens frequently in the state of Minnesota. don’t have a background check or ATF- committed and charged do not involve One common intervening event involves form 4473-like requirement for private machine guns, sawed-off shotguns, or the issuance of an order for protection.12 transactions. Straw purchases represent firearms with defaced serial numbers. In- One investigative report found that in a big problem, with one ATF study from stead, at least a bare majority—if not sub- 2016 alone, there were 2,937 orders for the turn of the century concluding that stantially more—of these crimes are com- protection cases in Minnesota that re- the most common channel for illegal traf- mitted by guns that are “legal” firearms quired firearm relinquishment as a mat- ficking of firearms was through straw pur- possessed by an “ineligible person.” There ter of law. Yet of those nearly 3,000 cases, chases.19
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Stolen firearms: Firearms are fre- quently stolen from both private individ- uals and gun stores, and these weapons make up an estimated 10-15 percent of all guns used in crimes.20 In fact, from the beginning of 2012 to the end of 2015, it was estimated that approximately 1.2 mil- lion firearms (worth nearly half a billion dollars) were stolen.21 Stolen guns pose a significant risk to society, as they usually end up on the underground market— where they spend years being transferred between people until the web of trans- fers ends with someone who commits a violent crime with the stolen firearm.22 One potential problem that muddies the stolen-firearm statistics is that many individuals who have firearms stolen do not report the theft; when they are later contacted by police, after the firearm has been traced, they are unable to identify when or where the firearm was stolen. The frequency with which this happens has caused many experts to infer that after-the-fact claims of theft are a com- mon way for straw buyers to try to avoid criminal liability.23 Also worth mentioning are black-mar- ket sales and illegally imported or manu- factured firearms. The prevailing thought is that both of these occurrences are customary ways for criminals to obtain firearms—but they aren’t. Illegally im- ported or manufactured firearms are not that common; a vast majority of firearms begin their life being sold legally from an FFL, incuding almost all of the firearms that will eventually end up in a criminal’s hand.24 So too with black-market sales, which is defined as a sale that the seller knows is illegal under federal law.25 Although the vast majority of firearms originally enter the stream of commerce with an FFL selling it to an individual af- ter a background check and paperwork, these firearms are simply too easy to di- vert out of the legal stream through straw purchases, private transfers, or theft. Al- recent survey of 1,613 gun owners found sent to a local FFL—in compliance with though any firearm being transferred to a that 42 percent had acquired their most federal law—where he would fill out the prohibited person is deeply concerning, recent firearm without a background required paperwork and take possession perhaps the most worrisome method em- check.27 Suffice it to say a large number of the firearms. Within days he would ployed is the private-transfer exception of people—people with good intentions then turn around and sell those firearms because of the volume of firearms and and people with bad intentions—use the on Armslist.com without a background lack of regulation at the federal level. A private-transfer exception to acquire fire- check or evidence of a permit from the 2012 study published in the peer-reviewed arms. transferee. Feldman engaged in over 40 journal Injury Prevention found that 96 Almost three years ago, Eitan Benja- separate transactions during the three percent of inmates who were convicted min Feldman was indicted by the United years preceding his indictment, and at of firearm-related offenses obtained their States Attorney for the District of Min- least three of the firearms he sold were firearms through an unlicensed private nesota.28 His crime, one that had been used in violent crimes—some just days seller.26 This should come as little sur- charged only twice in the preceding after being transferred. If Feldman had prise: Private firearms purchases are fairly decade by all of the United States At- just sold a few guns over the same time common amongst all gun owners, with torney’s Offices combined, was illegally period, he would likely not have been one 2017 study concluding that 22 per- selling firearms without a license. Feld- charged under federal law. cent of current U.S. gun owners who ac- man committed this crime by purchasing In Minnesota, unlike many other states quired a firearm within the past two years firearms through online-licensed auction that allow the private-transfer exception, did so without a background check, and a sites. He would then have those firearms certain private transfers can be a little
24 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org
more difficult when the purchaser wishes Universal background check: Min- background option. So while legal guns to find a handgun or semiautomatic mili- nesota also has the option to pass a may not be the problem, the ease with tary-style assault weapon. This is because universal background check, like those which anyone, including those with the the transferor will risk some backend already enacted in New Jersey, Connecti- worst of intentions, can obtain a “legal criminal liability29 if a handgun or assault cut, and a few other states.34 This type of firearm” certainly is. It is long past time weapon is transferred privately without legislation would require a background that we require, at the very least, that a verification that the transferee was legally check for all transfers involving firearms, seller who does not know their potential able to purchase the handgun or assault regardless of the type of firearm or the buyer perform, or ask a governmental weapon.30 As a consequence, finding peo- terms of the transfer. entity to perform, a cursory due diligence ple in Minnesota willing to sell a handgun Universal permit to purchase: Min- check to ensure the transferee is not or assault weapon without verifying the nesota might also consider requiring per- prohibited before transferring them transferee’s permit to purchase or permit mits to purchase instead of background a lethal weapon. Transferors may not to carry can be somewhat burdensome.31 checks. A permit-to-purchase regime feel responsible to protect society, but would operate in essentially the same forgoing any sort of verification of status Policy options fashion, because in order to receive a is a stunning example of gross negligence, With federal inaction leaving the pri- permit to purchase, the licensing author- which will likely continue to contribute vate-transfer exception firmly in place,32 ity would perform a background check to increasing fatalities (and injuries) due it is up to states to decide for themselves on the individual.35 In Minnesota, we al- to gun violence—a statistical category how to modify the private-transfer excep- ready have this requirement to a certain that now accounts for more deaths in tion to ensure the exception is not being degree.36 To buy either a handgun or as- Minnesota than either traffic crashes or abused by ineligible persons. The follow- sault weapon from an FFL, the individual opioid overdoses.39 s ing are several ideas on how the state of must have either a permit to purchase or Minnesota could proceed in shoring up a permit to carry (which acts as a de facto the private-transfer exception. permit to purchase as long as it is active). Armslist and gun show background But no permit is required for a private checks: Minnesota has the option of tak- sale, even if the firearm is a handgun or ing key provisions from the almost suc- assault weapon.37 cessful federal legislation known as the Mandatory FFL facilitation: Finally, Manchin-Toomey Public Safety & 2nd perhaps the most stringent option Amendment Rights Protection Act— Minnesota could consider is a mandatory which, in relevant part, mandated that FFL facilitation bill. Such a law would sales at gun shows and through online require all transfers (including private platforms like Armslist would require a transfers) to proceed through an FFL, AARON EDWARD BROWN background check.33 But the bill contin- which would then require the transaction is an associate in Ballard ues to exempt friends, family members, to comply with all of the federal laws for Spahr’s business and neighbors, etc. from a background check. FFL transfers, including a background finance department. He This approach represents a compromise check, completion of ATF form 4473, advises public and private that tried to recognize the importance of and having the FFL keep certain records entities in connection with stopping the abuse of the private-transfer regarding the transaction.38 mergers, acquisitions, and exception while allowing people to re- In assessing these options, Minnesota sales. His past legal schol- tain the right to transfer firearms to their could decide to include and exclude arship has explored issues including domestic friends and acquaintances—which is infi- certain weapon classes (e.g., rifles or violence, firearm regulation, and public policy nitely more reasonable than transferring shotguns) and certain relationships issues. Questions or comments can be directed to a firearm to some random person you just (parent-child, grandparent-grandchild, 612-371-3221 or via email. met on the internet. sibling, etc.) from any permit or BROWNAE@BALLARDSPAHR.COM
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