What do you have when a person brings one or more firearms to an event where those firearms are transferred to another person for valuable consideration “no questions asked?” Well, if there are more than 25 firearms “available for transfer” at that event, Oregon law says you’re at a gun show. Thanks to local citizen journalist Michael Strickland, that sticky question will likely be the topic of discussion at Portland City Hall, and perhaps at the state capitol.
The issue arose from the 19th “Annual Gun Turn-In” promoted by Ceasefire Oregon Education Foundation, a 501(c)(3) organization, held Saturday, May 11 at the Lynwood Friends Church is southeast Portland. The event, co-sponsored by a variety of local government agencies and officials, brought in a reported 485 firearms, presumably destined for the smelting furnace.
But as Strickland demonstrates with his at times jumpy video at his site Strimedia, this
public-private partnership may have created a “reverse gun show” in which each person who transferred a firearm to COEF committed a class A misdemeanor for not requesting the required background check to ensure the recipient of the firearm was lawfully entitled to receive it. And all of this was done under the nose of the Portland Police Bureau and Portland Mayor Charlie Hales, which guarantees no one is going to jail over this issue.
In his video, Strickland politely confronts a Portland Police sergeant, Mayor Hales, and a representative from COEF, asking each about theevent’s status as a gun show. The PPB officer insisted no laws were being broken and eventually directed Strickland to leave the private church property. Hales asked Strickland to direct his questions to a COEF representative because he “is not a lawyer.” Finally, Strickland does reach a female COEF official, who found the question amusing enough that she offered her wrists for Strickland to handcuff before “assuming the position” for a thorough pat-down search.
Oregon Gun Show Statute
This issue ultimately turns on what Oregon law says about gun shows, background checks and who is responsible to do what. At the November 2000 general election, Oregon voters overwhelmingly approved initiative petition 5 (not to be confused with Don McIntyre’s earlier tax measure) which introduced new requirements for conducting background checks on firearms transfers at gun shows. The measure passed 921,926 to 569,996 and the statutes have remained unchanged ever since.
Contrary to the answers Strickland received by the PPB sergeant, the mayor and the COEF spokesmodel, it makes no
difference whether these firearms are going to be resold, stored indefinitely or melted into a statue of Ginny Burdick. The sergeant tells Strickland, “A transfer means they are going to continue ownership and they’re not. They’re being destroyed.” When Strickland correctly points out there is nothing in the statute to justify that claim, the sergeant firmly tells Strickland, “That’s where it ends” before directing him to leave the property. On this point, Strickland was correct. There is nothing in Oregon law that requires a transferee to “continue ownership” to effect a valid transfer. If a transferee intends to destroy every gun he or she purchases, so be it. But a transfer is still a transfer.
The problem with this event, as Strickland notes, is that the number of firearms present on site appears to trigger the definition of a “gun show” under ORS 166.432(2)(b): “Gun show means an event at which more than 25 firearms are on site and available for transfer.” This would not be an issue if a private citizen chose to turn in their firearm to the police for destruction at any other time, something COEF encourages on its website. But when more than 25 firearms “are on site and available for transfer” then Oregon law says that event is a gun show – no matter what the parties intend to do with the firearms once the transfers are complete.
Further adding to the confusion is that the COEF event reverses the roles seen at most typical gun shows, where an event space (usually indoors) is lined with sellers looking to sell their firearms to purchasers. But at the COEF event, there is effectively only one purchaser, but many sellers, though one could argue that it is difficult, if not impossible to determine who is actually making the purchase at the COEF event. COEF and its partners are clearly a transferee, but are they a “purchaser?” There is no question that COEF offered valuable consideration in the form of Fred Meyer gift cards in denominations ranging from $10 for a pellet or BB gun to $100 for each handgun transferred.
But once again, words in statutes often mean specific things, depending on how the lawmakers intended. In this case, a “purchaser” under ORS 166.412(1)(h) means “a person who buys, leases or otherwise receives a firearm from a gun dealer.” It is possible, though unlikely that any of the folks standing in line at Lynwood Friends Church met the definition of a “gun dealer” under Oregon law. If they were, then they likely violated Oregon law, regardless of whether the event was a gun show or not, because gun dealers are required to run background checks whenever they sell or transfer a firearm.
So who are the parties to these firearms transfers, and what are their legal responsibilities? Assuming the COEF annual gun turn-in meets the technical definition of a “gun show,” now what? The 2000 initiative set forth the following policy statement relating to gun show background checks:
166.433 Findings regarding transfers of firearms. The people of this state find that:
(1) The laws of Oregon regulating the sale of firearms contain a loophole that allows people other than gun dealers to sell firearms at gun shows without first conducting criminal background checks;
(2) It is necessary for the safety of the people of Oregon that any person who transfers a firearm at a gun show be required to request a criminal background check before completing the transfer of the firearm; and
(3) It is in the best interests of the people of Oregon that any person who transfers a firearm at any location other than a gun show be allowed to voluntarily request a criminal background check before completing the transfer of the firearm. [2001 c.1 §1]
Oregon law is clear that the burden to run a background check at a gun show falls upon the person who transfers the firearm, not the recipient. If the COEF event met the definition of a gun show, then every single person who transferred a firearm to COEF violated ORS 166.438(1) which provides:
“A transferor other than a gun dealer may not transfer a firearm at a gun show unless the transferor:
(a)(A) Requests a criminal background check under ORS 166.436 prior to completing the transfer;
(B) Receives notification that the recipient is qualified to complete the transfer; and
(C) Has the recipient complete the form described in ORS 166.441; or
(b) Completes the transfer through a gun dealer.”
The requirement to run the background check does not apply if the transferee, in this case COEF, is licensed as a dealer or collector under 18 U.S.C. 923. In his video, Strickland repeatedly refers to the fact that he could not find COEF listed as having a federal firearms license, which would have made the transfers lawful under Oregon law without background checks.
PPB officers handling transferred firearms.
By all accounts, none of the transferors at the COEF ran the required background check to verify whether COEF was qualified to complete the transfer. Moreover, such a transfer is required to be documented and the transferor is required to keep the documentation for five years, making the documentation available for law enforcement inspection. If a transferor fails to request the required background check or fails to maintain the required paperwork, that person commits a Class A misdemeanor.
So, is COEF off the hook for its role in the gun show transfers? Not quite. ORS 166.438(3) requires a person who organizes a gun show to “post in a prominent place at the gun show a notice explaining the requirements” for transferors to run the background checks, and complete and maintain all required paperwork. Moreover, COEF was required to provide the required form “to any person transferring a firearm at the gun show.” Violation of this section is also a Class A misdemeanor.
Back to Reality
As Strickland demonstrated with his video and still photos, there were clearly more than 25 firearms at Lynwood Friends Church at any one time “available for transfer.” In fact, nearly 500 were transferred from hundreds of transferors to essentially one transferee. And by all accounts, not a single background check was requested or run by the transferors, who likely had no idea such a requirement was their responsibility because COEF never posted the statutorily required notice. So who is going to jail over this episode? No one, of course.
Gun turn in at Rose Garden under Justin Bieber sign.
Despite the PPB sergeant’s interpretation of ORS chapter 166, and Charlie Hales’ scurried attempt to punt the problem to the COEF coed, if the Portland City Attorney’s office seriously examined the statutes cited herein and looked at the facts of this event, they would be hard pressed not to reach the objective conclusion that the COEF annual gun turn-in meets the statutory definition of a gun show. All that is required is an event where more than 25 guns “are available for transfer.” The transferee’s intent post-transfer is simply not relevant. But then again, we are dealing with a Portland city government that still cannot quite figure out how to implement an unconstitutional and highly regressive $35 head tax.
Yet, we can expect changes next year, now that COEF and local officials are aware of the issue. One remedy is to ensure that no more than 25 firearms are on the property at any one time. That’s not likely nor very practical, since public sidewalks will simply fill up with gun-toting citizens – otherwise known as Burdick’s Bane. The legislature could also step in and refine the definition of a “gun show” to expressly exclude events such as COEF’s annual gun turn-in. But the easiest fix, assuming these events qualify as guns shows, is to have COEF or one of its employees, agents or partners obtain a FFL under 18. U.S.C. 923, which would exempt transferors from the responsibility or requirement to run a background check when transferring the firearm to COEF when more than 25 firearms are present and available for transfer.
Who knows? Perhaps the woman offering to be hooked and booked by Strickland will ironically return next year wearing her Ceasefire Oregon T-shirt as a federally licensed gun dealer.
Bruce McCain’s original post is here. It’s been enhanced by pictures and video from Strimedia (Laughing at Liberals) who broke this story. Victoria’s note: It takes a LOT of guts to go by yourself and confront these self satisfied people with some facts and logic. Good on you, LaL.