Legal question

[quneur]

A question for lawyers. As everyone knows, WA state latest background check laws went into effect on Jan. 1, 2015. There is a new section in the law which reads,

"(1) All firearm sales or transfers, in whole or part in this state including without limitation a sale or transfer where either the purchaser or seller or transferee or transferor is in Washington, shall be subject to background checks unless specifically exempted by state or federal law."

I know the intent of the law is for domestic sales and transfers but would this also mean shippers (transferors)? The Port of Seattle is a major shipping port to and from Alaska. Wouldn't that make Alaskan gun owners (or the distribution shippers) subject to WA state laws?

 

[legelegel]

A question for lawyers. As everyone knows, WA state latest background check laws went into effect on Jan. 1, 2015. There is a new section in the law which reads,

"(1) All firearm sales or transfers, in whole or part in this state including without limitation a sale or transfer where either the purchaser or seller or transferee or transferor is in Washington, shall be subject to background checks unless specifically exempted by state or federal law."

I know the intent of the law is for domestic sales and transfers but would this also mean shippers (transferors)? The Port of Seattle is a major shipping port to and from Alaska. Wouldn't that make Alaskan gun owners (or the distribution shippers) subject to WA state laws?

A shipper is not an owner of a firearm. A seller gets value for the firearm they sell and transfer. A transferor conveys title or property to another. Transferor is usually synomymous with vendor or seller, but a transferor may not be a seller if he does not get value in return for the transfer of his ownership.

 

[quneur]

Thanks for the quick reply. I probably didn't convey my question correctly. I guess I will rephrase it differently.

Is the shipper considered:

(a) A transferor. Would the courts consider the whole process from sale to delivery to owner one process; like C&R firearms where shipper delivers directly to owner? or

(b) Not considered a transferor. In which case, a transferor would be the agent delivering to owner.

BTW, I think WA did away with C&R now. Anything after 1898 is considered 'modern' by the state and subject to background checks, registration, etc.

 

[legelegel]

Thanks for the quick reply. I probably didn't convey my question correctly. I guess I will rephrase it differently.

Is the shipper considered:

(a) A transferor. Would the courts consider the whole process from sale to delivery to owner one process; like C&R firearms where shipper delivers directly to owner? or

(b) Not considered a transferor. In which case, a transferor would be the agent delivering to owner.

BTW, I think WA did away with C&R now. Anything after 1898 is considered 'modern' by the state and subject to background checks, registration, etc.

A shipper is not a seller, vendor or transferor of any firearm unless he takes ownership upon taking possession and usually that is not what happens.

 

[Aticus]

I'm not in Washington state but I have a question. Would the handing of a gun to a friend and another shooter at the range or in the owners home be considered a transfer and subject to the back ground check? That sounds silly but this was in a blog that I saw and got me curious.

Hopefully there is a Washington lawyer or a legislator on the forum who could answer.

 

[legelegel]

I'm not in Washington state but I have a question. Would the handing of a gun to a friend and another shooter at the range or in the owners home be considered a transfer and subject to the back ground check? That sounds silly but this was in a blog that I saw and got me curious.

Hopefully there is a Washington lawyer or a legislator on the forum who could answer.

No. Transferring temporary possession is not transferring ownership. Long term possession is another matter and may be considered transferring ownership.

 

[k22fan]

It is conspicuous that legallegal has not read the text of Washington's Initiative 594. This thread is not about general business law.

Except in circumstances spelled out in I-594 allowing your friend to handle your gun without first transferring it through a retail dealer is illegal in Washington. That much is crystal clear. One of the exceptions is handing your friend a gun to stop an immediate physical threat. After the threat no longer exists the gun must be promptly handed back. Another exemption is if your friend is a licensed hunter and is at the moment within the area where his tag is currently valid. I-594 writes he must return the gun before leaving the area where he could legally shoot a game animal. If handing the gun to your friend any old time was not a transfer why would that be in the law?

I-594 is subject to considerable argument about when other exemptions apply. Competitors at a competition or match may loan each other guns for the duration of the match. What constitutes a competition is not defined. Gun clubs may supply students with guns for instructional purposes provided those guns are permanently stored at the club range. That means hunter safety instructors can no longer bring their personal guns for anything other than display. Their students can not touch them, unless of course they fire them in a competition. Clubs can supply juveniles (under 18) with guns to compete in matches but again, only if those guns never leave the club range. So, can the high school rifle team members continue to use club rifles after turning 18 and can the team continue to travel to other ranges to compete against other schools? A local attorney has opined no.

It comes down to who is willing to enforce I-594 and that varies tremendously according to what party controls local politics. Many LEOs are not enthusiastic about parts of I-594. That's wonderful but I-594 writes each gun transferred must be charged as a separate crime and the second offense is a felony. Worse, old Washington law includes a 5 year minimum sentence enhancement for possession of a firearm during the commission of a felony.

I hope an attorney like legallegal succeeds in arguing his position but I can't afford to pay his bill.

 

[legelegel]

It is conspicuous that legallegal has not read the text of Washington's Initiative 594. This thread is not about general business law.

Except in circumstances spelled out in I-594 allowing your friend to handle your gun without first transferring it through a retail dealer is illegal in Washington. That much is crystal clear. One of the exceptions is handing your friend a gun to stop an immediate physical threat. After the threat no longer exists the gun must be promptly handed back. Another exemption is if your friend is a licensed hunter and is at the moment within the area where his tag is currently valid. I-594 writes he must return the gun before leaving the area where he could legally shoot a game animal. If handing the gun to your friend any old time was not a transfer why would that be in the law?

I-594 is subject to considerable argument about when other exemptions apply. Competitors at a competition or match may loan each other guns for the duration of the match. What constitutes a competition is not defined. Gun clubs may supply students with guns for instructional purposes provided those guns are permanently stored at the club range. That means hunter safety instructors can no longer bring their personal guns for anything other than display. Their students can not touch them, unless of course they fire them in a competition. Clubs can supply juveniles (under 18) with guns to compete in matches but again, only if those guns never leave the club range. So, can the high school rifle team members continue to use club rifles after turning 18 and can the team continue to travel to other ranges to compete against other schools? A local attorney has opined no.

It comes down to who is willing to enforce I-594 and that varies tremendously according to what party controls local politics. Many LEOs are not enthusiastic about parts of I-594. That's wonderful but I-594 writes each gun transferred must be charged as a separate crime and the second offense is a felony. Worse, old Washington law includes a 5 year minimum sentence enhancement for possession of a firearm during the commission of a felony.

I hope an attorney like legallegal succeeds in arguing his position but I can't afford to pay his bill.

Nutts ... ...

"Transfer" means the intended delivery of a firearm to another person without consideration of payment or promise of payment, including gifts and loans.

Letting someone handle your gun is surely not a transfer of ownership or a loan of that gun.

A transfer is akin to a sale but not involving money, like a trade or barter.

Handing over a gun to somebody to inspect or shoot does not qualify as a 'transfer.' Whether a loan for a day or a week constitutes a transfer is another question.

There is a reason some are creating more in the word "transfer" than what the word really means.

 

[da gimp]

I have fears that this insanity on the part of the good people of Washington will spread to other states..........

 

[k22fan]

I took a fresh look at the Washington Dept. of Fish and Wildlife's (WDFW) page on hunter safety education and found something new, their Information Sheet on I-594. WDFW writes that what I previously wrote about handling guns during hunter safety classes is wrong, but not because handing a gun to someone else for a few minutes is not a transfer under I-594. They write no change is required to how hunter safety is taught for an entirely different reason.

The initiative, however, exempts all law enforcement agencies, including WDFW and its employees, from the background check/transfer requirement.
Therefore, hunter education instructors, when acting as WDFW volunteers, are exempt from the I-594 background check/transfer requirements.

Continuing, WDFL's fact sheet supports the idea that handing someone a gun for a few minutes is a transfer.

Student-to-student transfers during hunter education classes could be exempt under certain circumstances. If such transfers are not exempt, WDFW will provide additional information about those transfers and will make the necessary changes to classroom procedures to avoid conflicts with I-594.

WDFW writes they consulted with the state attorney general's office (AGO) which they probably did but the AGO's web page has not yet alerted their only statement on I-594. The AGO continues to post that none of the legislators, county prosecuting attorneys, agency heads, or state wide elected officials for whom they will write an opinion has asked for an opinion. Otherwise the AGO not to helpfully posts go read the initiative and enforcement is the police's responsibility.

Am I "nutts?" I certainly hope so but I'm not going to bet my freedom that I am.

Another thread is running on the Second Amendment Foundation's court challenge. Their arguments appear sound to my biased eye. I hope they win. In the mean time I leave protesting by publicly displaying transfers to someone else and only seek information on how obey the law.

http://www.wdfw.wa.gov/hunting/huntered/files/i-594_fact_sheet.pdf

Link to the AGO's site.
Initiative 594

 

[legelegel]

How much possession is a loan under the law?

There is a difference in transferring right, title and ownership and long-term possession (a loan) of a firearm.

Temporary possession is not a transfer. Handing a firearm to another is not a transfer, if the purpose of that transfer is possession only to enable another to inspect the firearm or use it for a short period of time.

The question here is: How long can someone possess a firearm at the will of the owner without it being considered a "loan" of the firearm?

Is that period of time a minute(s), an hour(s), a day(s), a month(s) or a year? I would say as long as the firearm does not go out of the sight of the owner one would be fine under the current law.

So, how much possession is a loan under the law? Let's just be a little realistic. A literal understanding of what someone has written is often a world away from real understanding.

 

[Aticus]

Well somebody sure stirred up a hornets nest! I read something that I-594 was written to not allow anyone to hand anyone else a gun without doing a transfer.

Now to really stir things up does this prohibition apply to retail guns stores? Meaning, does this law prohibit an LGS sales person from handing a gun to a customer for inspection prior to sale? It seems as though it would.

Legaleagle, I appreciate your legal opinions and knowledge but we are talking specific parts of a particular law in Washington state. Having sat on my town Council I am familiar with legal definitions that only apply to specific laws and not general legal definitions ie. defining "transfer" in I-594 for its use in I-594 but not elsewhere.

Mods if this appears too political just blow this away. This is only curiosity on my part.

 

[legelegel]

Anyone that says that the word "transfer" in the Washington law means that a background check is required before a person can handle and inspect someone else's gun just has a problem with the extension of background checks involving most private sales. It's clearly an overreach in an effort to protect our rights under the 2nd Amendment.

 

[k22fan]

Bravely posted from 2,000 miles away.

 

[legelegel]

Bravely posted from 2,000 miles away.

Yes, I'm 2,000 miles by car and 1,500 miles by air SE of Seattle.

Common sense has to enter into this at some point.

At one point in time, any sale of hand gun within the city limits Oklahoma City had to go through a background check with the police department.

 

[sgtsandman]

Anyone that says that the word "transfer" in the Washington law means that a background check is required before a person can handle and inspect someone else's gun just has a problem with the extension of background checks involving most private sales. It's clearly an overreach in an effort to protect our rights under the 2nd Amendment.

From everything I've read and heard concerning this law, it was written so vaguely that just handing a firearm to another individual can most certainly be considered a transfer. Why the people of Washington ever voted this law in is beyond me. They must have just read the title and not the content. From what I understand, it's only 18 pages. It's not like they are reading the Affordable Care Act or the United States Tax Code...

 

[legelegel]

The intend of the law is to require background checks on all sales, transfers and loans of firearms. A transfer has to do with ownership. A loan has to do with possession only. The term of a loan needs to be clarified. If the law is not amended to clarify this, the courts will.

If I let a friend hold and inspect a firearm of mine while I stand next to him or have him in my sight, I do not define that as a loan. A loan in my mind would be for extended use. When extended use begins is the question.

 

[ChattanoogaPhil]

IIRC, I594 defines it as a "temporary transfer" between two individuals. Hunting, range, self defense requirements are ok within guidelines. The idea that it's a crime to handle your neighbor's new S&W absent a background check is overthink in my non legally educated opinion.

Happy to be 2,000 miles away.

 

[legelegel]

IIRC, I594 defines it as a "temporary transfer" between two individuals. Hunting, range, self defense requirements are ok within guidelines. The idea that it's a crime to handle your neighbor's new S&W absent a background check is over think in my non legally educated opinion.

Happy to be 2,000 miles away.

That's what gets highly intelligent people into trouble, their so-called intelligence gets in the way of what little common sense they have.

First there is socialism, then there is communism and then there is no God. A little at a time our rights and freedom are eroded until we have none in the name of collectivism, the so called greater good for all.

92% of Americans support universal gun background checks. The numbers show that background checks do keep guns out of the hands of at least some people who are not supposed to have them. The FBI and state law enforcement denied firearm purchases to 153,000 people in 2010 alone.

 

[quneur]

I asked the question to find out if it would affect Alaskans as I believe the majority of firearm shipments would have to go through the Port of Seattle. Since the law is so generally written, I was wondering if someone outside the state could make the argument that the law was unconstitutional since it could possibly affect all firearm transport across the state. WA State definition below:

"Sec.2. RCW 9.41.010 and 2013 c 183 s 2
(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."

Anyway, a divergent question. I know state law can't trumph federal law but can a state limit federal law? BATF defines curios and relics on specific firearms which can be mailed directly to the buyers home if they have a C&R license.

They put this in, "subject to background checks unless specifically exempted by state or federal law." But in the following sentence, "The background check requirement applies to all sales or transfers including, but not limited to, sales and transfers through a licensed dealer, at gun shows, online, and between unlicensed persons."

One exemption is 'antique firearms' which they define as firearms made before 1895. No mention of Curios and Relics.

I previous posted that I 'thought' C&R is out because I'm assuming 'exempted' by federal law means federal agents in the course of their employment would require them to handle a firearm. Which finally leads to:

(a) What happens to Washington State C&R license holders?
(b) Again, federal law allows C&R but if state (possibly) disallows it, who trumphs who?