Evasion and Unenforceability of Universal Background Checks/Question 1

This information is provided for informational purposes only. It is not legal advice. Non-compliance with the background check law (effective Jan. 1, 2016) is at your own risk. You will have to make a personal choice regarding your liberty and your property, notwithstanding the tyranny of the uneducated minority who barely passed an unconstitutional law.

Basics

Know who you’re dealing with. Ideally, sell between friends to avoid a sting operation. Do a little research if this person isn’t a stranger to make sure they aren’t a cop, investigative reporter, or an anti-gun activist. Does their email show their full name? Can you find a Facebook profile? Lookup their phone number. Be aware that at a gun show an undercover cop could be hovering right over your shoulder or you might be buying from one. Don’t get stung.

If it’s an online ad, only discuss the gun, the price, and where to meet via email, text, or messenger. Agree to meet in a public location “to make arrangements on which licensed dealer to use.” Do not discuss online or via text message not going to a dealer. Those words could come back to haunt you. Conduct your sale in a discreet location where no one is likely to call the police because they see a gun and cash. Be smart and never actually say anything out loud that, if recorded, could be used against you in court, such as “So is it okay if we don’t go to a dealer to get a background check?”

Discuss the price of the gun, show your CCW or license, but do not fill out a bill of sale or allow the other person to copy down your information. Exchange the money and gun. Make as few references to selling the gun or breaking the law as possible. One cannot beat video footage of handing off a gun in exchange for cash, but one can make an audio only recording ambiguous. The idea is to create reasonable doubt in the mind of a judge or jury.

Don’t sell to someone sketchy. If they seem like a criminal or up to no good, pass on the sale. Don’t risk aiding a criminal because of a stupid law. Use your head like you’ve always done.

Defenses in court

If you are arrested, do not talk to the police. Remain silent. Demand an attorney, even if it is a public defender. Police can and will use anything you say to use against you. They cannot make you contradict yourself later in court if you don’t provide a statement to them to begin with. Never, ever talk to the police (more examples below).

Keep in mind that you are innocent until proven guilty in a court of law. This means that it is the duty of the prosecution and by extension, the police, to prove that you have committed a crime. What would be the crime they would be enforcing? The crime would be failing to obtain a background check. The police have to have probable cause that you did not comply with the law in order to arrest you for failing to get a background check.

Then the prosecutor has to prove beyond a reasonable doubt that you haven't completed a background check. It's difficult enough proving that you actually did do something, let alone trying to prove beyond a reasonable doubt that you did not do something. Keeping in mind that you are innocent until proven guilty; you don't have to tell them what FFL you used to get a background check. You don't have to tell them what date you transferred the firearm.

You are free to exercise your Fifth Amendment right against self-incrimination—do exercise it. The entire onus of the investigation lies with law enforcement and the prosecution. Don’t start talking to the police when they begin asking questions or waive your Miranda rights. Again, it is entirely up to the prosecution to prove that you did not indeed go to a dealer. You don’t have to “help” them by telling them anything. The more you talk, the tighter the net your words will weave to trip you up. You can’t explain anything away or throw them off the trail.

Further on, we’ll explain how easy it is to accidentally make a case against yourself, but first, let’s look at how hard it is for the prosecution to prove a case against someone who remains quiet. All you have to say is that you did obtain a background check and it’s up to the prosecution to prove you didn’t; that’s hard to do.

Nevada currently has approximately 740 licensed FFLs. There are 365 days in a year. Remember that FFLs keep their records in their "bound book" per ATF regulations. Some may have converted to electronic bound books if issued a variance by the ATF, but this is not yet the norm. That means someone has to physically go and paw through their bound book and possibly the 4473 forms at each dealer to prove that a record does not exist. So they would have to reasonably ensure that they inspect every record at every dealer in the state.

If law enforcement/prosecution do not check every dealer or check every record, they leave the door open for the defense to create a reasonable doubt that the one record at the one dealer that they did not inspect could be the form proving that the background check was completed. Remember that by federal law, the NICS system may not be used to create a registration of firearms or gun owners. This means that under federal law the identifying records on their end must be destroyed after the background check is completed. The man-hours required to attempt to prosecute a single violation of this law would be ridiculously prohibitive.

Second, it is unconstitutional to require a prohibited person to present himself for a background check. There was a Supreme Court decision in 1968, Haynes v. United States. The reader's digest version is that a man who was a convicted felon was caught in possession of an unregistered NFA firearm. He successfully argued that requiring him to register the NFA firearm is akin to forcing him to make an open admission to the government that he is a felon in possession of a firearm.  Remember that Fifth Amendment right against self-incrimination? The courts agreed with him that the law cannot compel him to perform an action (registration) that would amount to confessing to committing a crime.

While the Supreme Court did not invalidate the law requiring the registration of NFA firearms nor did they invalidate the prohibition on felons possessing firearms, they agreed that the law requiring registration could not be enforced against convicted felons. A mandatory background check and NFA registration accomplish the same thing—requiring a person to provide evidence against themselves for a later prosecution. How hard do you think it would be for a defense lawyer to make this same argument for his client previously convicted of a disqualifying offense (domestic violence, felony, etc.), subject to a protection order or adjudicated mentally ill?

If you are charged for lending a gun in Clark County, bring up in court District Attorney Wolfson’s statement at the Mob Museum’s Question 1 forum where he stated “We’re not going to charge people for lending a weapon to a friend.” That might sway a jury and humiliate the district attorney’s office.

How could this happen to me?

“Background check” enforcement stings are not likely to happen. In the vast majority of cases, failing to get a background check is an additional charge to other crimes or to prosecute the person who supplied a gun used in a crime. Unless the anti-gun climate dramatically worsens, law enforcement doesn’t have the time or inclination to proactively enforce the law. Heck, they don’t even enforce the gun laws that have already existed. However, for a cop who wants to make the arrest, it’s pretty easy to get a confession.

Why? People like to talk. Most people are fundamentally honest and feel that honesty is the best policy. Some think they can talk their way out of anything (usually stupid criminals). For the rest of us, we were raised to be honest and fair and we expect other people, including the police, to give us the same courtesy in return. The honest folk don’t understand that their best intentions can be manipulated against them. So remain silent!

Let’s say a woman is pulled over for speeding. She has a gun in the glovebox that he boyfriend gave to her because someone is stalking her after work. Before reaching for her insurance registration, she informs the officer the gun is in the glove box, so the officer retrieves it.

Officer: Is that your gun?

Woman: No, it’s my boyfriend’s. He gave it to me because of this creepy guy at work.

Officer: When did he give it to you?

Woman: Day before Valentine’s Day.

Officer: Did you get a background check at a dealer before he gave it to you?

Woman: No, he just gave it to me in the morning before I left for work.

Officer: Do you have a restraining order? Has this creepy guy threatened you?

Woman: No, I just felt unsafe because of the way he followed me in the parking lot.

That woman just admitted she committed a violation of the universal background check law. She has provided the officer the day of the offense (Feb. 13, 2017—after the law took effect), she admitted that there was no background check, and she admitted that there was no immediate danger, just a vague unsettling feeling. She is not married, even though she lives with her boyfriend, so the family exemption does not apply.

The law does not require malice; it is a mala prohibitum crime where simply failing to obey is criminal, not what one’s intentions were when they disobeyed the law. If the officer recorded this, he could have an easy arrest (probably a citation and release) that meets all the elements of the crime. Would the prosecutor file charges? Depends on where our country goes from here or what kind of district attorney we have.

How gun traces work

Let’s say police go looking for a particular gun for whatever reason. A very inefficient gun registration system with more holes than fishnet underwear exists now and law enforcement will use it to get a pretty good lead to track you down, should they want your gun. The same procedures will be used to work background check cases as well as confiscation. If you use your gun in a non-permissive environment or in an illegal way—the morality of the use aside (say in a gun-free zone)—you will be the target of a criminal investigation.

The police will trace the serial number, which will lead them to the distributor who sold the gun to the dealer, and the dealer’s copy of the Form 4473 will lead them to the original buyer. If you are one person away from the original buyer, especially if they personally know you, have a bill of sale, or there are records online, consider yourself one confession or tip away from arrest. Buying anonymously at a gun show, with maybe a cursory glance at a CCW or license, is fairly safe. If you bought on Facebook, off a gun forum, or in any place the data could be preserved, don’t be surprised if you are tracked down based on that information.

For universal background checks, this is important if the original buyer is contacted. You don’t want anything connecting you to him or for either party to admit there was no background check.

You are more insulated if there is one, or several buyers, between you and the original purchaser. Remember, a bill of sale given to police will identify you just as well as gun registration would. Don’t keep evidence lying around; don’t do bills of sale if you’re not complying.

Bills of sale and crimes with your old gun

If you have a bill of sale on guns you sold in the past, destroy them. Do not unwittingly assist future gun registration and confiscation. No one will think you are a suspect if there is a crime with your old gun; just tell the police that you sold the gun legally (at the time), when you sold it, and give vague information about the buyer (if they are confiscating guns and not trying to track down a psychopath or gangbanger). Police will have to prove you knowingly sold the gun to a prohibited person or gang member, knew it was going to be used in a crime, or that you really shot the person. Having owned the gun used in the crime is not enough to make you a suspect or even convict you in a sane legal system (which we still have at the moment).

If you have that fear, you need to learn more about real criminal investigations and prosecutions. Quickly, let’s examine the issue of guilt over having sold someone a crime gun. Would you feel guilty if the person who bought your car was an alcoholic and killed some while driving drunk? Of course not, but you would regret the innocent person’s death. Were you responsible in anyway? No. The new owner made a choice to misuse the property you sold them. The only possible way for you to be in any way the least bit culpable is if you knew beforehand their intentions.

With a gun, one’s former legal and moral due diligence was to not sell to a person they knew to be a gang member or otherwise ineligible to own a gun. Before Facebook banned gun sales, buyers there could be quickly vetted on the basis of what their profile contained. Making a subjective judgement about a potential buyer is beyond the ability of any computer system and even human judgement is fallible. The new law provides no penalty for knowingly selling a gun to a gang member; the only thing the proponents of universal background checks care about is that the buyer/transferee pass the background check.

“Boating accidents” and other mishaps

Let’s imagine it’s the future and the Gun Confiscation Task Force knows you own guns and has a very good idea of exactly what guns you own. You decide to surrender your dealer-bought guns, but they want the ones you bought privately. “We know you bought an AR-15 rifle from ‘eugenes_ghost’ from COLT15.com in October of 2014. Where is that gun?” What do you do? Remember, you can’t deny owning it.

This is where your “boating accident” story comes into play: “You see, Special Agent, I went fishing with my guns one day and when the boat capsized, all my guns fell in the lake.” ATF agents know the joke and won’t find it funny. Your best defense is to simply state that you sold the guns legally, long ago, you don’t remember whom to, and you did not keep a bill of sale. Invoke your right to silence immediately after that and say nothing no matter what else they say. Never change your story.

Conclusion

Keep your mouth shut. Don’t put anything in writing. Vet who you sell to/buy from. Without compliance, they can’t make the unconstitutional gun laws work. As always, use this information and disobey the law, wrong as it is, at your own risk.