Regulations surrounding guns can get convoluted
Published 10:43 am Monday, June 24, 2013
Editor’s note: This is the second in a six-part series on guns.
Contrary to popular opinion, sheriffs and police chiefs cannot deny a permit to purchase a handgun based on their best judgment.
“I’ve issued permits to people that have scared the heck out of me,” said Albert Lea Police Chief Dwaine Winkels.
However, at one time, they could. Sheriffs and chiefs might deny a purchase if someone seemed suicidal or perhaps they knew the applicant had committed a violent crime but wasn’t convicted of it because of a plea agreement for a lesser charge. The Minnesota statute was changed in 2003.
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Now, when people qualify, even if they may seem sketchy, sheriffs and chiefs have no choice to approve permits to buy guns.
People have all kinds of ideas of what they think the gun laws are. Or more specifically, they have questions. Each state has different rules, and the federal government has additional regulations. It is helpful for gun advocates and opponents and people in between to know the laws.
Before a person can go buy a handgun or semi-automatic assault weapon, they first must stop at the Freeborn County Law Enforcement Center and fill out an application for a permit to purchase. The applicant must be 21 or older to buy a handgun and 18 or older for a semi-automatic assault rifle. For a rifle or shotgun, no permit is required.
Before Winkels or Freeborn County Sheriff Bob Kindler grant or deny gun permits, they do a background check by logging into an FBI database known as NCIC, or National Crime Information Center. This database keeps track of useful investigative information at state and federal levels across the country, such as criminal records, known gangs, fugitives, missing persons and stolen firearms.
Restrictions that prevent people from getting a permit are:
• They cannot be a felon convicted of a crime of violence, such as murder, manslaughter, assault, robbery, kidnapping, gang activity, criminal sexual conduct, child abuse, terroristic threats, arson, stalking, harassment and several kinds of theft. These crimes prompt a lifetime ban on owning a firearm.
• A felon convicted of a nonviolent crime, like wire fraud, is prohibited from owning guns until civil rights are restored.
• They cannot have been convicted of a gross misdemeanor for a crime of violence. Domestic abuse results in preventing gun ownership for many people.
• They cannot have been an unlawful user of a controlled substance.
• They cannot have been committed for chemical treatment.
• They cannot have been court-ordered to a mental health treatment facility.
• They cannot have a dishonorable discharge from the U.S. armed forces.
• They cannot be an illegal alien.
• They cannot be a fugitive from justice.
• They cannot have an order for protection.
“There is very little to keep you from getting a permit,” Winkels said.
Another background check is done at the retailer. Kindler said the primary reason for background checks at stores is that once a permit to purchase is issued, it could be months before the buyer actually buys.
“The check at the store covers this time period,” he said.
In addition to complying with local zoning ordinances, all gun merchants must possess a federal firearms license, commonly called FFL. It is issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF.
There are two FFL holders in Albert Lea: Dunham’s Sports and Walmart.
Then, despite background checks and proper paperworks, gun dealers still reserve the right to refuse service, particularly if they suspect anything fishy, said former firearms license holder Milan Hart of Hart Brothers Weaponry in Albert Lea. The store held an FFL from 1977 to earlier this year and still has its remaining stock to sell.
So what about the infamous gun show loophole?
There is no gun show loophole, Hart said. The media portray licensed firearms dealers as selling firearms at gun shows without background checks, he said, as though people are trading cash for guns.
“They know that’s a lie,” he said.
The loophole is person-to-person sales, often termed in reports as private sales. In these sales, where one gun owner sells to another, no background check is required. Many gun shows allow only licensed dealers, so all background checks and ATF forms are squared away.
However, at some gun shows, there are private sales, he said. Some private sellers do it on a larger scale than the Average Joe does, he said. Hart gave the example of “aisle sluts,” guys who wear sandwich boards and walk up and down the aisles selling guns. Somehow, the private sales that happen at guns shows, just as they do from neighbor to neighbor, became called the gun show loophole.
Hart said more guns are sold at flea markets than gun shows.
“Why not say flea market loophole?” he asked.
Private sellers could face criminal charges if the firearm is used in a crime within a year or if the seller knew the buyer was prohibited from purchasing handguns and assault rifles.
A permit to purchase is one thing. A permit to carry is another.
So how does the buyer of a new handgun get it home? They can transport their firearm as long as it is unloaded and in the case, Winkels said, and they can take it to their home or to their place of business.
Hart noted that it is wise to keep that case in the least accessible place, like in the trunk.
Forms for permit to carry are available at the Freeborn County Sheriff’s Office. There is a $100 fee for a five-year permit. The cost to renew is $75. Applicants must be 21 and must have already cleared the requirements for a permit to purchase. They cannot be in a gang and must show a completion certificate for firearms training.
The laws for where a gun owner with a permit to carry can take their gun are not so black and white, said Kindler.
Some areas are clear. No guns are allowed on school campuses, child care centers and courtrooms by state regulation. No exceptions.
Many businesses post that guns are not allowed on the premises. Kindler said they have the right to post those signs, but they should know that law enforcement faces difficulties enforcing their wishes. The permit to carry pretty much allows gun owners to bring their guns to public places and to private places that welcome the public, such as stores.
Someone who wants to carry their lawful gun into the Freeborn County Courthouse can so do — except to the courts — as long as they give notification to the sheriff. Kindler said he prefers at least a one-day notice or more.
So how about private property? If a homeowner orders someone with a handgun and a permit to carry that gun off their property, that’s the homeowner’s legal right under trespassing laws. Law enforcement can cite for trespassing, he said, but likely won’t physically remove the gun holder.
Kindler noted, however, that a criminal conviction of trespassing could affect the gun owner’s permit to carry.
Albert Lea doesn’t have much for gun ordinances, but it has one that most gun owners know: It is illegal to discharge a firearm in Albert Lea. It is a common law in many cities.
With autumn comes the familiar sound of hunting firearms on private land and on public hunting land, such as the new 550-acre Wo Watchintanka Wildlife Management Area in Newry Township.
Under state regulations, it is legal to hunt on private land if either the hunter owns it or has permission from the landowner. It is illegal if permission is not given, where hunters could face a trespassing citation. It is trespassing even if there are not “no trespassing” signs posted.
Hunters cannot shoot an animal within 500 feet of a building or of a livestock corral. Hunters are allowed to retrieve an animal that was shot lawfully on one property but wandered onto another property before collapsing.
Long guns used for hunting don’t require a permit to purchase. The retailer, however, will do a background check.
There are some guns that need no permits or background checks. Antique firearms — defined as made prior to 1898 — can be sold just the same as baseball cards, Hart said. No rules. The same goes for muzzleloaders, whether old or new. They are the kind where the shooter must stuff the gunpowder and projectile down the end of the barrel with a rod.
The ATF is the only federal agency in the world that traces firearms, said regional public information officer Robert Schmidt. It tracks 340,000 firearms a year.
Part of holding a federal firearms license, Schmidt said, is maintaining records commonly called the A&D book, for acquisition and disposition.
There is a federal form that purchasers of any firearm — whether long, short or in between — must fill out. It is called the ATF Form 4473. It keeps track of which guns were purchased by whom and asks applicants whether they qualify through a series of questions. For example: “Have you ever been convicted in any court of a misdemeanor crime of domestic violence?”
But it also makes sure a background check occurred, asking the seller for the NCIC information.
If the Albert Lea Police Department pulls over a car and a suspicious weapon is found on the driver, they likely will request a trace from the ATF. Because of lack of funding, the ATF’s tracing system remains laborious, Schmidt said. It’s not as automated as one might expect a federal weapons trace to be.
An ATF employee contacts the gun manufacturer and inquires about which wholesaler the gun was sent to. The employee then calls the wholesaler to find the dealer. The next call is to the dealer, to discover who purchased the gun. The dealer checks the A&D book.
If the gun was sold from one person to another, then things get tricky. Person-to-person sales — the loophole — are where guns can go missing. Schmidt said people who use common sense will create a receipt and keep it on file, just as they do for selling a used motorcycle.
The ATF has two main roles when it comes to firearms, he said. One side of the bureau oversees firearms dealers, and the other investigates firearms crime.
ATF investigators will do their own investigations, such as sting operations to stem the flow of illegal firearms, and at times they will adopt a local case, such as when local police arrest a felon in possession of a firearm, Schmidt said. When adopting, ATF officials will review the case with the U.S. Attorney’s Office.
Schmidt gave some examples of federal convictions:
• Three or more violent felony convictions where a firearm was present has a mandatory sentence of 15 years — with no early release; every minute in the system.
• Armed drug trafficking — even if they didn’t use the weapon — likely results in a five-year stint, in addition to the drug charges.
• Possession of an unregistered sawed-off shotgun can send the owner to prison for 10 years.
The ATF has campaigned in recent years against straw purchases, Schmidt said. This is when someone buys a gun for a friend or relative who is ineligible to buy. There is a question on ATF Form 4473 that asks: “Are you the actual buyer of the firearm listed on this form?”
If the person checks yes but is not, that is lying on Form 4473, a felony punishable by 10 years in prison. The campaign is called “Don’t Lie for the Other Guy.”
In 2009, the ATF and DEA noticed a Medford man was purchasing large amounts of guns and he didn’t seem to have the financial background to afford it. The man’s name was Paul Giovanni de la Rossa, and it turned out he was smuggling guns to Mexico, which is rife with drug wars.
Schmidt said most firearms trafficking to Mexico occurs in border states, but the de la Rosa case illustrates how it is a national problem.
The ATF also runs the National Integrated Ballistic Information Network, or NIBIN. It is a computer network for crime labs, and it contains digital images of bullets and brass casings and how they match to respective firearms. These images are used to solve gun-related crimes across the United States.
Winkels said on occasion he asks permit applicants who want a gun for protection if they are prepared to use it. He warns them of the likelihood it could be used on a loved one instead. Be cautious.
“It’s a mistake you can’t take back,” he said.
At the same time, the police chief is a proponent of the right for people to defend themselves in their homes. He said he urges people to flee from threats when possible, but in the home, facing an intruder, when there is no place to flee, a gun is the last resort.
“Nobody in Minnesota has been convicted or charged for defending themselves,” Winkels said.