In Harm’s Way—I594 & Law Enforcement
By Phil Shave, Executive Director, Washington Arms Collectors; retired Chief of Law Enforcement,Washington State Parks; former Washington State Criminal Justice Training, Advanced Training Unit Manager for 19 years
There are a lot of politicians, including some mayors and chiefs, who will tell you that I594 is a good law designed to close the gun show loophole. This is not the truth. I594 is a law so broadly written that it clearly is designed to make criminals of all recreational shooters and most law enforcement officers. When you understand what it will actually do, then you too will oppose it.
Law enforcement officers, experienced at reading, interpreting and applying laws, can read the text of I594 and understand how it will affect them directly, and how irrelevant it is to crime control. Don’t take my word for it, go to the Secretary of State’s website and read the actual text for yourself (http://sos.wa.gov/_assets/elections/initiatives/FinalText_483.pdf). What you will find is a law that will be impossible to police, intended to criminalize only good citizens, a costly misdirection of scarce LE resources and funds, and a statute so broadly written that many of your own activities will become crimes.
Before attempting to analyze I594, you must first understand that it regulates
all transfers, not just sales. I594 very clearly and broadly defines a transfer as any movement of a firearm from one person to another, no matter how temporary, and even without any money changing hands; this law is not about firearm sales. If you take possession of a firearm for any length of time and for any reason (safekeeping, hunting, loan, recreational sharing, safety training, coaching, transport, etc.) then you have met the I594 definition of transfer. Every transfer requires that a background be conducted by an FFL dealer at your expense, and this FFL background check must occur each and every time a firearm is transferred. Hard to believe someone would write a law like this isn’t it? Here’s the quoted definition of transfers which are covered by I594: "(25) "Transfer" means the intended delivery of a firearm to another person without consideration of payment or promise of payment including, but not limited to, gifts and loans."
The usual way to obtain law enforcement support for an oppressive law is to grant LE officers an exemption. Let’s take a look at the "exemption" I594 grants to LE. Your firearm transfers are exempt from the requirement that you go through an FFL dealer (paying a fee, registering your firearms) only when,
"acting within the course and scope of his or her employment or official duties." Clearly, while on-duty you can continue to confiscate firearms during arrest or for safekeeping, and all agency-issued firearms would appear to be exempt from this law. What about your off-duty pistol or backup gun? Does your department require you to carry a firearm off duty? You are okay if this pistol is department issued, but if you carry a personally owned firearm of any kind then the private purchase of this firearm will fall under the requirements of I594. This would apply to patrol rifles (often permitted by a department as an individually purchased item). Backup guns are almost always personally owned. I594 language is very clear: "within the course and scope of…employment." The course of employment would mean a transfer conducted while performing your job, and the scope of employment is limited to official actions required by your employer in order to perform your duties. I see no way that even a clever lawyer can extend this exemption to any firearm you personally purchase and use, even if most of the use is on-duty. Why? Because that backup pistol is probably not a department-required firearm and thus is not within the scope of your employment; it is a personal choice and purchased with your own funds. LE officers are not exempt from I594 when they trade, loan, purchase or transfer firearms that are not owned by the department.
So, you'd better find an FFL dealer when you trade that fishing rig for a brother-officer’s J frame 38. If you don’t, that transaction will be a misdemeanor. Go out to the range while off-duty and try out another officer’s backup gun; now you are both criminals (probably felons since a second transfer becomes a felony). There is no way you can stretch that "scope of employment" exemption to cover transfers of private firearms done during recreational shooting. Remember, there is nothing in the law that allows even a short, trial or recreational transfer. Maybe you will buy a patrol rifle from your brother, a family transfer, so that you can be well-equipped on duty. Sure you are going to use this rifle in the course of your official duties, but the transfer is not within the "course of employment", and your non-LE brother must transfer through an FFL dealer and you must pay the fees and taxes. Let’s assume that you buy a gun from another officer for only law enforcement purposes; this is actually a private purchase conducted without your employer’s supervision, private funds are used, and you will continue to own this firearm when you quit or retire from this employment; therefore this transfer is regulated by I594.
Sometimes we drop our LE backup firearms off at the gunsmith for repair or tune-up. During that period you might borrow a firearm from a relative or friend, someone who cares about you and won’t hesitate to loan you a gun. Do you want to make that person a felon? If the transfer is not done through an FFL in both directions, when you take it and when you return it, then you will have criminalized your friend.
And what about repairs? Those nice-to-know experts on your S&W or AR rifle cannot take your firearm even for inspection or diagnosis without transfer through an FFL. Maybe your department has an armorer qualified to work on your backup pistol; since most departments do not have an FFL, the transfer of your privately owned pistol to the department armorer is an illegal transfer unless booked and backgrounded by an FFL. Few people own, buy, sell and trade as many
firearms as do LE officers. It takes little imagination to see that LE officers will violate this law without intending to. It is nearly unavoidable because of the breadth of the regulations.
Brady v. Maryland is the 1963 case law stating that, "evidence affecting the credibility of the police officer as a witness may be exculpatory evidence and should be given to the defense during discovery." (Police Officer Truthfulness and the Brady Decision Jeff Noble, Commander, Irvine, California, Police Department, The Police Chief, vol. 70, no. 10, October 2003) Defense attorneys often attempt to use officer disciplinary action, policy and law violations as evidence of officer misconduct and untruthfulness. It may be quite easy for a defense attorney to portray an officer as a felon, even if not convicted of firearm violations. A series of questions regarding the officer’s use and acquisition of firearms may establish that the officer has disregarded the laws on firearms transfers. If the arresting officer’s testimony is for a firearm violation then the questions on the officer’s own acquisition and disposal of firearms may be allowed. I594 makes officers vulnerable to Brady attacks.
Officers are subject to a multitude of policy requirements, and most departments will not retain an officer who has committed felonies. With the I594 law, an officer can commit these felonies within the span of a few minutes, in a single shooting session with friends, or by selling a personal firearm to a brother or sister or to another officer. Most of us realize that conviction is not required for termination; the department may reach their conclusions through an internal investigation. You are required to answer all questions and cooperate in internal investigations and if you have failed to do the paperwork on a firearm "transfer" then you are at risk of termination based upon your own admissions. Do you think that your department will choose to ignore the commission of felony crimes by their officers? Will you lose your job and civil right to possess a firearm, among other rights, because you violated the provisions of I594?
How will you answer or testify when asked, "Have you ever, no matter how temporarily, given, loaned, shared or sold a firearm to another person without processing this through a Federally licensed firearms dealer? On how many occasions?" I believe you are more at risk than the ordinary citizen.
Surely I exaggerate the possible penalties for failure to do the paperwork on a temporary loan or sharing of a firearm?
"…any person knowingly violating section 3 of this act is guilty of a gross misdemeanor punishable under chapter 9A.20 RCW. If a person previously has been found guilty under this section, then the person is guilty of a class C felony punishable under chapter 9A.20 RCW for each subsequent knowing violation of section 3 of this act. A person is guilty of a separate offense for each and every gun sold or transferred without complying with the background check requirements of section 3 of this act."
Let’s look for a moment at what I594 will cost and the impact it will have on law enforcement. This initiative comes with no funding source, yet requires the State to record millions of firearms transactions each year. We don’t actually know how many private transfers there are in the State of Washington, but based on the broad definition of transfer there must be thousands of transfers each weekend just at firing ranges, gravel pits and DNR land. Instead of spending scarce public funds on serious law enforcement needs, the State will be required to spend money on personnel to move all that paper, enlarge databases to hold it, and create records for all these transactions. You know how often you use the existing State handgun registry (seldom) and how useful it is as an investigative tool (not at all). This system will explode and begin to consume an ever-increasing percentage of our criminal justice funding.
For a moment, please shift perspective and look at I594 as it will impact ordinary citizens. Your family members, friends and relatives do not have even the illusory protection of a law enforcement exemption. The volunteers who coach safety and marksmanship classes and women’s self-defense training will no longer be able to legally offer these classes. Despite the statements of I594 promoters the language is crystal clear: There is no exemption for temporary transfer to adults, and temporary sharing is only allowed during "organized competitions" (safety training, coaching and recreational shooting are by definition not organized competitions), and transfers without background checks can be effected only if the "…firearm is kept at all times, at an established shooting range," (a false exception since firing ranges do not allow firearms to be kept at the range). Family members cannot buy and sell within the family unless they do this through an FFL.
Nothing is free. FFL dealers can set the fee that they charge for a transfer; remember, this is not for just sales, this includes each and every time the firearm changes hands, even temporarily. Currently this is usually $40 to $50 per transaction. I594 appears to exempt these transactions from sales tax, but this may be illusory since it is really the use tax that applies to these non-retail transfers. Every transfer of a firearm will be at a cost of $40 plus about 10% of the value of the firearm.
As a law enforcement officer I594 offers you no useful tools in dealing with firearm violations. It is fantasy to expect that criminals will seek out an FFL dealer in order to acquire or trade guns. I594 places you and your job at risk. I594 transforms casual, innocent, ordinary, non-criminal behavior into a misdemeanor or felony. It diverts public funds to a useless database, unproductive prosecutions and wasted jail space for convicted offenders. Read the text of I594 and then join the fight to oppose this harsh and useless law. In the current political climate the only way to prevent the passage of I594 is to support and vote for I591, which requires that any background check law meet a Federal standard applied to all states.
Links to the Washington Secretary of State’s Office for the entire text of I594 and I591:
We ask you to join us in stopping I594, and here's how you do it:
? share this information with your fellow officers, family and friends
? share this information with your law enforcement administrators—we believe that many are being misinformed and may publicly support I594 if you don't discuss the problems with them
? contact your local media to dispel myths being propogated by I594 proponents, many of whom are saying that I594 is about gun sales and gun shows; it is not, rather it is a massive effort to attack firearms ownership and recreation
? take this information to your guild or union and ask for public opposition to I594 and support for I591
? become involved with the pro-I591 group, Protect Our Gun Rights, visit the page
http://wagunrights.org for details on involvement
contact Phil Shave, 360-866-8478 or Bill Burris, 253-906-3371 if you need more information or wish to request a speaker to address a group.
Page Last Updated: Jul 24, 2016 (09:00:22)