Sunday, April 20, 2014

What is the Legal Risk of Buying a Gun at a Turn In (buy back)?

In most of the United States, it has always been legal to buy and sell firearms privately without any paperwork.    Private sales are not required to go through a Federal Firearms License (FFL).   It is against the law to build or maintain a Federal firearms registry.   One of the purposes of this restriction is to insure against firearms confiscation by the Federal government.

There are a few states that have effectively banned private sales.  California, Colorado, Connecticut, Delaware, New York, and Rhode Island, are six states that require that private parties have a background check conducted by the government before each sale, effectively making the "private" sales public.   Having a background check done on the buyer does not mean that the guns are checked to determine if they were stolen at some point.

Pennsylvania and Maryland require background checks for pistols, and a number of other states have various requirements for permits to purchase that may or may not require that information about the firearm be entered into a government database. 80% of the  states do not regulate private sales of firearms.

For the purposes of legal action that might be taken against a purchaser, it is the number of guns that are reported stolen and available to be found on a database searched by police that is important.   Many millions of guns were manufactured before the government started to mandate that guns have serial numbers.   There is no way to determine if those firearms were stolen, unless there is some sort of distinctive marking that could connect the firearm to a previous owner.   That sort of marking could be input into the FBI data base nearly as easily as a serial number.
The FBI has maintained the database of stolen guns for the United States since 1967, so we have about 46 years of data in the system.   There are a few state data bases, such as Florida's, but it is a reasonable assumption that most of the firearms in state databases would also be reported to the FBI for inclusion in the National Crime Information Center  (NCIC) system.   

As of April 15, 2014, there were 2,920,846 stolen guns in the system.   The current estimates for the number of privately owned guns in the United States is about 310,000,000.   Thus, the chance of purchasing a stolen gun in a private sale is likely a bit less than 1 percent.   I monitor gun turn in events where police check the guns turned in to see if they are stolen.   The number of stolen guns found at these events is consistent with the above figure, usually less than one percent.   At the turn in event in Phoenix in May of 2012, of the nearly 2,000 guns turned in, four (.2 percent) were found to be stolen.

Of course, there are other indicators that can be used to reduce the possibility of purchasing a stolen firearm.    Most states make it illegal to possess a firearm if the serial number has been defaced or removed.  I would not buy one.   I would be leery of buying a gun on a street corner in a bad neighborhood.

I recall, in the late 1960's, that some criminals tried to sell stolen guns in northern Wisconsin, where I grew up.  The criminals likely believed that in the heart of the gun culture, they would have no trouble disposing of some desirable rifles and shotguns for a good price.    The people of the area thought the prices were a bit "too good" and reported the crooks, who were captured and prosecuted in short order.

Another consideration is how long ago the firearm might have been stolen.  The BATFE concentrates on investigating firearms that were stolen within the last 12-18 months.  This amounts to a couple of hundred cases a year.  Older than that, it is likely that the firearms have passed through too many hands for the investigation to be fruitful.    It is unlikely that any firearm that was stolen more than three years ago will result in any charges.  The numbers of firearms reported to NCIC as stolen for the last three years are:

2013:  191,420

2012:  183,801

2011:  174,236

Total:  549,457

This is less than .2 percent of the total firearms in the United States, about one in 500.

A study done by the Bureau of Justice statistics ( BJS) shows a fairly reasonable approximation to the NCIC numbers, using the National Crime Victimization Study. Their study shows 145 thousand victimizations involving the theft of firearms in 2010. They do not give the number of guns stolen, but give an average of 232,00 per year from 2005 to 2010.   This is a bit higher than the numbers reported to the FBI, but I find the number plausible, given that many guns are not reported stolen, many never had serial numbers to begin with, and many are homemade or made outside of regular commerce.

My understanding is that virtually all "possession of stolen property" crimes involve an element of "knowing" that the property was stolen.   Arizona has a "Trafficking in stolen property" statute:
A. A person who recklessly traffics in the property of another that has been stolen is guilty of trafficking in stolen property in the second degree.

B. A person who knowingly initiates, organizes, plans, finances, directs, manages or supervises the theft and trafficking in the property of another that has been stolen is guilty of trafficking in stolen property in the first degree

The Legislature has codified permissible inferences in ARS 13-2305:
1. Proof of possession of property recently stolen, unless satisfactorily explained, may give rise to an inference that the person in possession of the property was aware of the risk that it had been stolen or in some way participated in its theft.

2. Proof of the purchase or sale of stolen property at a price substantially below its fair market value, unless satisfactorily explained, may give rise to an inference that the person buying or selling the property was aware of the risk that it had been stolen.
Being in possession of a firearms stolen more than three years ago relieves the buyer of most of the concern about being charged with trafficking in stolen property.   I believe that pictures of the firearms purchased at a gun turn in, with a date/time stamp, coupled with a citation of this article, would provide the satisfactory explanation mentioned above.

My retired peace officer friends have told me that prosecution in cases where a private individual buys a firearm without a reasonable knowledge that it is stolen, are unheard of.

If it is somehow discovered that a firearm that you have acquired was stolen sometime in the past, the likely outcome is that you would be asked to return the stolen property.   This is not entirely bad, as I would like to have property that was stolen from me returned.    If you can contact the legal owner, they might be willing to pay for shipping and transfer charges to have the firearm returned to them.

The NCIC was conceived and executed when computers were enormously expensive, took dedicated and highly trained individuals to operate, and there was no Internet.   A possible reform would be to make the database available over the net, so that people could easily determine if a firearm was reported as stolen, or if a firearm that was stolen or lost has been recovered.   As with the updating of any legacy code, such a project would entail some expense.    The entire existing data for guns, consisting of a small amount of text and numbers, with no pictures or video, would easily fit on a single smart phone.  It is a reform that reasonable people could agree to.

Every person must make their own assessment of risk and benefit every day that they live.   The risk of purchasing stolen firearms at a gun turn in event is very small.  The potential of being prosecuted becomes microscopically small.   I have purchased firearms at these events and expect to continue to do so.  I have yet to hear of a single person who purchased one or more firearms at one of these events, who was prosecuted for that action.

The FBI supplied the information about the number of stolen guns that are maintained by the NCIC.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch


Wireless.Phil said...

Washington Times, special section all on the 2nd Amedment, several articles.

Wireless.Phil said...

20 in custody in Cleveland/Lakewood stabbings

Anonymous said...

Is there a site where we could check ourselves, to see before purchase?