About Bloomberg's New York City and Boston-Style Gun Control Initiative in Maine
The proposed initiative (Question 3 on the November ballot) would amend Me. Stat., 25 § 2014 to add a requirement that no sales or “transfers” of firearms, except as specifically exempted, could be made without a background check through a federally licensed firearm dealer. As was the case with Initiative 594 in Washington State, the definition of “transfer” used in the Maine initiative (“to sell, furnish, give, lend, deliver or otherwise provide, with or without consideration”) is broad enough to encompass any temporary “transfers” of firearms that occur during training, hunting, recreational shooting, and defensive use.
The law regarding sales and transfers of firearms generally follows the sales of most regulated products in the United States. Commercial sales are heavily regulated, but incidental sales and transfers by persons not in the business of selling firearms are not subject to some of these regulations.
Current federal law requires that “dealers” of firearms hold a federal firearms license, and that any person who acquires a firearm from a dealer passes a background check that includes an inquiry of the National Instant Criminal Background Check System (“NICS”). Maine is not a “point of contact” state and the Federal Bureau of Investigation (FBI) conducts the NICS background checks for all firearm transactions.
In addition to these requirements for licensed dealers, current federal law prohibits anyone from knowingly transferring a firearm to a prohibited person or to a person who is a resident of another state.
Maine law makes it an offense to transfer or sell firearms to minors, with some exceptions, and makes it an offense for felons, certain domestic abusers, those with the listed mental health disqualifications, and others described in Me. Stat., 15 § 393 to possess a firearm. Maine does not otherwise regulate private sales of firearms, but in 2009, the Maine Legislature adopted 2009 Me. HP 782, a resolution directing the Department of Public Safety to “assist private sellers of firearms by providing information about how to collect appropriate information about the purchasers of firearms and how to obtain criminal history record checks on those purchasers.” This included compiling a list of dealers who were willing to perform criminal history record checks of buyers purchasing firearms from private sellers.
Analysis Of The Initiative
The only permanent sales or transfers that would be generally exempt from the background check requirement are:
those of “curios or relics,” but only if these occur between persons who possess valid federal licenses as “collectors,” or of “antique firearms,”
sales or transfers between the defined “family members,”
sales or transfers where one party is a law enforcement agency or the Department of Corrections, or a person acting in the course of employment or official duties as a law enforcement or corrections officer, a member of the armed forces, the National Guard or reserves, and a person licensed as a private security guard or employed by a contract security company, and
transfers to the representative of an estate or trust upon the death of the gun owner (although distributions based on inheritance from that representative to beneficiaries or heirs are not exempt).
Specific kinds of temporary transfers would be exempt. These are narrow and drafted in very specific language: a person seeking to come within one of these exceptions would have meet all of the exact requirements. For example, the initiative contains a self-defense exception for temporary transfers to persons not prohibited from possessing firearms, if the transfer “is necessary to prevent imminent death or great bodily harm; and . . . lasts only as long as necessary to prevent imminent death or great bodily harm,” and the transferor has no reason to believe the transferee intends to use the gun to commit a crime.
Likewise, other temporary transfers are legal only if “the transferor has no reason to believe that the transferee intends to use the firearm in the commission of a crime” and the transfer and transferee’s possession “take place exclusively”:
“[a]t an established shooting range authorized by the governing body of the jurisdiction in which such range is located” or, in the absence of such authorization, a range that is “operated consistently” with local law;
at a “lawfully organized competition involving the use of a firearm;”
while participating in or practicing “for a performance by an organized group that uses firearms as part of the performance;”
while the transferee is hunting or trapping if hunting or trapping “is legal in all places where the transferee possesses the firearm and the transferee holds any license or permit required for such activity;” or
“in the actual presence of the transferor.”
The penalties for noncompliance start as a Class D crime for a first conviction involving one or more firearms, punishable by imprisonment for up to 364 days or a fine of up to $2,000, or both. Any subsequent conviction is punishable as a Class C crime, where the potential term of imprisonment is a period of up to five years, and the maximum fine increases to $5,000.
The initiative applies to any transfer involving a “firearm,” which is defined using the definition in Me. Stat., 17-A § 2.12-A.
“Temporary” for the purposes of “temporary” transfers, is not defined with reference to a minimum period of time, and the definition of “transfer,” which adopts the definition in Me. Stat., 17-A § 554-A (to “sell, furnish, give, lend, deliver or otherwise provide, with or without consideration”), is broad enough to include all transfers of possession where a firearm is provided to another person. All temporary transfers, regardless of duration, are likely subject to the background check requirement unless specifically exempted.
The initiative’s general prohibition on temporary transfers – simply handing a firearm to another person – creates a number of problems with common and otherwise lawful activity with firearms. In many cases, the exceptions within the initiative are too narrow to protect individuals engaging in these activities. Many problems arise from the lack of clarity provided in the initiative. As mentioned, several important terms used in the initiative are either very broadly defined or lack definitions at all.
Another undefined term is contained in the exception that allows for temporary transfers that occur exclusively “in the actual presence of the transferor.” “Actual presence” or “presence” are not defined, so it is unclear if this requires the transferor to remain close enough for physical contact with the transferee at all times, or in the same general area (for example, at the same shooting range but not actually close enough for physical contact), or within some other zone of proximity to the transferee. (Are two hunters in the same field but not necessarily within view of each other at all times in the “actual presence” of each other?) This exception is extremely important, as it would act as somewhat of a “catch all” due to the very specific nature of the other exceptions. But, its effect would be very dependent on its interpretation. For example, many instructors conduct the classroom portion of firearms safety courses away from “established shooting ranges” due to cost or available classroom facilities. In these situations, the instructor would be dependent on the “actual presence” exception while students use provided demonstration firearms.
An example serves to illustrate some potential difficulties with temporary transfer exceptions. Although the Washington State initiative had no “presence” exception, it had a “law enforcement” and “established shooting range” exception, plus one for supervised youth engaging in certain activities. None of these cleanly exempted transfers occurring at Washington Department of Fish and Wildlife (WDFW) hunter education classes. As a result, the WDFW was obliged to issue a December 2, 2014 advisory clarifying that student-to-student transfers of firearms between adults in Hunter Education Programs were not exempt; transfers involving youths might be exempt; and transfers involving the instructors, “whether or not they were actually in the classroom,” were exempt because these instructors were “law enforcement.” However, the instructors’ exemption was only applicable to transfers for the purpose of the Hunter Education Program and within the scope of their authority as WDFW volunteers, and not otherwise. In Maine, depending on how the “actual presence” requirement is applied, it could make teaching firearm safety courses more difficult where the instructor may be in some proximity to but not always in the exclusive “actual presence” of a student. The result will be almost certain to decrease rather than increase public safety.
As mentioned earlier, the exception for defensive uses applies only where “necessary to prevent imminent death or great bodily harm, and… The transfer lasts only as long as necessary to prevent such threat.” This will not apply to any situations where there is a general concern regarding a threat or crime but no actual attack -- where a boyfriend lends a gun to his girlfriend because she is being followed to her home by an angry former coworker or because there has been a rash of violent burglaries where she lives. If no specific, unfolding threat has occurred at the time of the transfer, it doesn’t qualify, however well-founded the apprehension of a future attack may be, because this exception requires an imminent threat of not just harm, but death or “great bodily harm.”
Established Shooting Range.
Another undefined term is in the exception for temporary transfers is at an “established shooting range . . . .” The initiative has no definition of “established shooting range,” but it could be read to exclude non-commercial ranges or the use of open public land on an informal basis.
Hunting or Trapping
This exception provides that the background check requirement does not apply to transfers that occur while the transferee is “hunting or trapping if the hunting or trapping is legal in all places where the transferee possesses the firearm and the transferee holds any license or permit required for such activity.” This raises several problems. First, it requires that the transfer (and the transferee’s ongoing possession) must occur in a place where hunting/trapping is legal. This is unlikely given most scenarios, where a person borrows a firearm at a friend’s or relative’s home to use while hunting elsewhere, and transports it along a public road (many jurisdictions prohibit hunting on public roadways or while in a motor vehicle; see Me. Stat., 12 § 11208). Second, it only applies “while … hunting or trapping” and apparently not in the preparation for, or immediately after, hunting, which is likely to entrap many unwary hunters who would likely continue to possess a firearm shortly before and shortly after an actual hunt, at a minimum, and likely for some time longer – the time it takes to return the gun to the owner’s residence. Third, it requires that the transferee possesses any required licenses and permits for the transfer to be legal, so the transferor could be punished by a simple mistake by the transferee. For example, if “A” transfers “B” a shotgun to go upland bird hunting, but B accidentally shoots a bird he is not licensed to take, then A would be guilty of a gross misdemeanor even though he had no way of knowing that B might make a hunting error.
Potential Conflict with Federal Law and ATF Procedures
Potential conflicts may also exist between the requirements in the initiative and current ATF procedures on private firearm transactions, ATF Proc. 2013-1.
ATF procedures refer to transferees as buyers and transferors as sellers. The ATF procedures require a dealer (FFL) to record the firearm on its ledger once in possession of the firearm. The initiative language indicates that the dealer has to treat the transfer or sale as one involving its own inventory, suggesting that the dealer may take possession of a firearm upon the parties’ arrival at the dealer’s premises for the background check, and, if the transaction is not completed at that time, may retain possession or regain possession upon the parties’ return to proceed with the transaction. The proposed Me. Stat., 25 § 2014 would read as follows:
3. … A firearm dealer who agrees to facilitate a sale or transfer under this section shall process the sale or transfer as though selling or transferring the firearm from its own inventory to the transferee, complying with all requirements of federal and state law that would apply if it were making such a sale or transfer, including all background check and record-keeping requirements.
5. Leaving dealer with firearm. Notwithstanding any other provision of law:
A. This section does not prevent the transferor from removing the firearm from the premises of the firearm dealer while a background check is being conducted pursuant to subsection 3. Before the transferor sells or transfers the firearm to the transferee, the parties must return to the firearm dealer, who shall take possession of the firearm in order to complete the sale or transfer; and
B. This section does not prevent the transferor from removing the firearm from the premises of the firearm dealer if the results of the background check pursuant to subsection 3 indicate that the transferee is disqualified to possess firearms under state or federal law.
The initiative language states that these transactions are to be treated “as though” the licensed dealer were conducting a disposition out of its own inventory, and requires the licensed dealer “to take possession of the firearm" as part of the sale or transfer. The ATF’s Proc. 2013-1 states that for the dealer to lawfully complete a private sale or transfer, the “FFL must first take the firearm into inventory, and record it as an acquisition in the acquisition and disposition (A&D) record.” Once a dealer takes possession of the firearm, which should prompt its being recorded as an acquisition in the A&D record, federal law would normally require the dealer to run a background check before relinquishing possession of the firearm (under 27 C.F.R. § 478.102(a), dealer cannot sell, transfer or “deliver” a firearm to an unlicensed person without a NICS check or unless one of the exceptions in the section applies). According to ATF Proc. 2013-1, “If the private party (seller) has not relinquished possession, he or she may leave the business premises with the firearm." If the seller “leaves the firearm in the exclusive possession of the FFL at the FFL's business premises,” the FFL must enter the firearm in the A&D record, and the transferor-seller would be required to fill out the required form and pass a background check before re-acquiring it.
The initiative doesn’t incorporate this ATF guidance on federal law. The initiative provides that “notwithstanding any other provision of law” and without regard to whether the dealer has taken possession of the firearm, the seller-transferor may take the firearm away from the dealer’s premises while the results of the background check on the transferee are pending. In this event, according to the language of the initiative, “the parties must return to the firearm dealer, who shall take possession of the firearm in order to complete the sale or transfer.” Similarly, if the buyer-transferee fails the background check, the initiative allows the transferor to remove the firearm from the premises, again “notwithstanding any other provision of law.” It isn’t clear but it suggests that where the dealer has possession and finds, after running a background check on the transferor, that that person, also, fails the background check, the transferor is permitted to remove the firearm from the premises.
The initiative language is not specific regarding a dealer’s participation being voluntary; what it does state is that the dealer must “agree” to facilitate these transactions. Because of the legal conflict and uncertainty, however, many dealers might refuse to participate in these transactions. The dealers that do agree to assume the risk and uncertainty may demand costly fees for the service.
ATF Proc. 2013-1 adds that, for private transactions that involve handguns, the dealer “must provide” the “transferee (buyer) or private party (seller) with a secure gun storage or safety device for each handgun he or she transfers, pursuant to 18 U.S.C. 922(z).” The cost related to compliance will presumably be passed on to the parties. To the extent that the initiative deals with fees, it states that the dealer may charge a “reasonable fee for services rendered,” but does not cap or otherwise limit a dealer's discretion in this regard.
Even transfers that do not result in a change of ownership would presumptively have to go through the initiative’s formalities. Thus, dealers would potentially have multiple records of the same firearm changing hands again and again, essentially creating a paper trail of everybody who handled the firearm. The record-keeping burdens on the dealer would be considerable, and the records generated could form the basis for a later registry: one that includes not just firearm owners, but all those who merely took possession of a firearm for any non-exempt purpose or length of time. Charles Rumsey, the organizer of the Bangor Gun Show, summarizes this best: “You wind up just putting honest people through an unneeded process. I don’t want to have to go around and pay for someone to do that. I don’t see any use for that.”
Ways You Can Take Action Now
Election Day 2016 will be here before you know it and, to ensure this background checks initiative is rejected, we need your active participation now!