Loopholes in I-594

I-594 makes it a crime to transfer a gun to another person without doing a background check except for some particular exceptions. Using just one example will demonstrate a particular egregious chilling effect upon our right to keep and bear arms. Suppose your spouse child/sibling/parent/etc. wishes to use your gun for a week or two while their gun is being repaired. You would think there shouldn’t be a problem with an innocent act like this. You would expect there would be an exception in the law for this. The closest thing to an exception for this case is:

This section does not apply to:
(a) A transfer between immediate family members, which for this subsection shall be limited to spouses, domestic partners, parents, children, siblings, grandparents, grandchildren, nieces, nephews, first cousins, aunts, and uncles, that is a bona fide gift;

Update: It has been pointed out to me there is another spouse/domestic partner exception which I overlooked:

(f) The temporary transfer of a firearm (i) between spouses or domestic partners;

So change my example to be ‘child/sibling/parent/etc.’ for the temporary transfer concern.

End Update

So, unless the transfer is a “bona fide gift” or you go through the paperwork and expense of doing a background check you are committing a crime. You have to again do the paperwork and incur the expense when you transfer the gun back. If you don’t do the paperwork the first time it’s a misdemeanor and the second time it’s a felony.

One could claim you gifted the gun back and forth but that’s not going to fly with someone being a stickler for the letter of the law. You don’t give gifts back and forth in the course of week or two. And if the transfers were for purpose of cleaning the guns or minor maintenance or even carrying the gun into the house from the car it becomes absurd to claim the transfers were gifts.

However, there does appear to be a loophole for at least some of the above situations. The restrictions apply as described thusly:

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.

Do you see it?

If neither of you are in Washington state at the time of the transfer it’s not a crime.

Update: This appears to be true for Washington State law. But under Federal law even though the two of you could transfer it legally while inside the borders of your state you may not transfer it between the two of you while outside your state then bring it back across the state line into Washington. The crime in not acquiring the gun from an out of state resident or dealer. The Feds don’t want you to acquire a gun from anyone, even a resident of your own state while out of your home state then bring it home. Read 18 U.S. 922 for the details.

H/T Sebastian.

But as far as the ATF/Feds are concerned, if you have a home in two states you are considered a resident of the state you are currently in for gun purposes and can transfer guns as if you were a full time resident in that other state. Hence if both parties were dual residents you could legally do the transfer while in that state and avoid the issues with I-594. Hence since I have a home in Idaho as well as in Washington I could transfer guns to/from my brothers who live in Idaho while in Idaho, but not while in Washington state because they do not have a home in Washington.

But if John Doe were a resident of both Washington and Idaho we could met in Idaho, do the transfer, then return to Washington without breaking any law (that I know of, I am not a lawyer). Or if John Doe were only a resident of Washington I could receive a gun from him in Idaho and then return with it to Washington. But he could not receive a gun from me in Idaho and return to Washington.

Get legitimate legal advice if you plan to push the envelope!

End update.

For people living on the border with Idaho this makes it almost trivial to avoid committing a crime. If you and your spouse child/sibling/parent/etc. or buddy attend a match in Idaho and then come back to Washington at the end of the day who, other than the two of you, is to know who has “possession” of guns in the trunk?

I’m not sure about the law in Oregon. I think they have a mandatory background check as well. You might also be able to take your boat into international waters or just inside the Canadian waters and get away with it as well.

Probably the biggest concern I have is what about “constructive possession”. If you and your spouse were to store your guns in the same safe or without a safe can you be charged with crime of transfer because the other person has uncontrolled access to the guns?

And how about joint ownership? Is that even possible? The existing paperwork doesn’t allow for joint ownership. I can legally give a gun to my adult child but not my child’s spouse. So is this another loophole or is it a legal landmine if I were to give the gun to my child and their spouse as joint ownership then did the paperwork for their spouse?

So this line of thought leads to what looks like a less awkward loophole. If you put your guns in a trust that would let you handle the joint ownership issues. The trust owns the guns and each member of the trust could use any of the guns at any time. And furthermore it is my understanding you can add and remove members to the trust at will without notarized signatures or filing paperwork. I could add some random acquaintance to the trust for the evening to allow them to handle a gun or take them shooting for the first time then remove them from the trust after they hand the gun back.

Trusts may also be the way to save junior programs and instruction programs where the instructors loan guns to the students for the duration of the class.

And of course you could also add some stranger to the trust, “rent” the gun to them for 99 years and not be in violation of the law as long as they didn’t sell the gun to someone else or put it in another trust.

65 thoughts on “Loopholes in I-594

  1. On the safe issue: I’ve read that, if you have an NFA firearm (or accessory, like a suppressor?) you need to keep it in a safe of your own, not one you share with your spouse, precisely because it’s your name on the registration and not that of your spouse. I have no idea if that’s accurate; the invasiveness associated with the NFA has kept me from considering getting anything it covers, no matter how much I might like a suppressor.

  2. When I established the trust for my NFA restricted suppressors, I went ahead and added all my firearms to it. Looks like I was ahead of the curve.

    Come to think of it… does Tribal land count as being in the State of Washington? If not, it’d be interesting to see a tribe jump into a case to squash the precedent of their land being ruled a political subdivision of the State of Washington. I seem to remember a lot of fireworks being sold on tribal land that is illegal to sell in the surrounding county.

  3. There is currently no background check required on private transfers of firearms in Oregon. I fully expect we’ll see our own version of I-594 in the next election cycle though. I wish I knew what to do to head it off.

    • Unless the transfer happens at a “gun show”. Then it’s still subject to a background check (ORS 166.438). “Gun show” is defined in ORS 166.432 as “an event at which more than 25 firearms are on site and available for transfer.”

      Other than that, private sales and transfers are legal. And as OFF (Oregon Firearms Federation) points out on their site, nothing in the law stops you from meeting a private seller at a gun show, agreeing on the sale, and doing the actual transfer after-hours at the McDonald’s across the street. It’s a technical loophole that goes against the intent of the law, but still….

      Just sayin’.

    • The best way to head it off is, I think, to have a lot of bad news come out from WA on 594 in the next few months. When you have clips of all our horror stories, where the political ads said one thing and then the immediate application was totally different, it will be solid evidence that the pols are liars. Start keeping a file of news stories and lawsuits.

    • That’s kinda the whole idea of ‘unenforceable laws’.

      They can be arbitrarily enforced against whoever is deemed to be on the current enemies list and overlooked for any of the ‘good guys’.

      It’s the Ayn Rand quote: “The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.” come to life for you guys in WA.

      If you get on the wrong side of a LEO, or a politician, guess what?

      • Ayn Rand described this very well (in Atlas Shrugged). The bad guys want you to violate the law, so they have something to attack you with whenever they feel like it. This is why we have 200+ pages of new law every single day — so that not a single human being in the country knows what the law is.
        “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?” — James Madison (in Federalist #62).

  4. I was having similar thoughts regarding trusts or simple corporations being formed amongst friends & shooting clubs to bypass all this crap until we can muster some lawsuits to slash some of this, or the two years is up & we can try to get changes passed via the legislature.

    • “until…the two years is up…”?

      Are you talking about the election cycle, or does this monstrosity have a sunset clause? (I assume the first…)

      • Washington Constitution Article II, Section 1.c
        (c) No act, law, or bill subject to referendum shall take effect until ninety days after the adjournment of the session at which it was enacted. No act, law, or bill approved by a majority of the electors voting thereon shall be amended or repealed by the legislature within a period of two years following such enactment: Provided, That any such act, law, or bill may be amended within two years after such enactment at any regular or special session of the legislature by a vote of two-thirds of all the members elected to each house with full compliance with section 12, Article III, of the Washington Constitution, and no amendatory law adopted in accordance with this provision shall be subject to referendum. But such enactment may be amended or repealed at any general regular or special election by direct vote of the people thereon.

      • Frank,

        IIRC, any initiative passed by a vote of the people can not be altered by the legislature for a minimum of two years. I think the courts can strike portions of it should they run counter to the constitution or some other law, or if a counter initiative is passed at the next election.

  5. Bad example. Temporary transfers between spouses *are* exempt. There’s no minimum or maximum time specified for “temporary” so “use it for a week or two” qualifies for the exemption.

    Not that I think this in any way excuses I-594.

    • Citation needed.

      The only provision I found for spouses were for a “bona fide gift” or the case of immediate danger.

      • Looks like “new section 3”, 4, F, ii (top of page 9) for the spouse thing.

        I’m wondering how transfers of inherited manufactured pistols are supposed to work. If I make a pistol I can’t sell it or give it away, but I can will it. Under this it must be transferred within 60 days, but nobody can transfer it because it doesn’t have a serial number.

    • They can’t. Which means it will only be adhered to by those that obey the law on principle. Which means it creates a chilling effect upon the normally law abiding but not those that don’t really care about being law abiding.

  6. I noticed in section 8 (pg 14) that the WA State dept of licensing is claiming authority to invalidate a federal license. I wonder if anyone has told the Feds? I don’t think that will fly with them.

  7. Seems to me those who wanted this law should have it enforced, good and hard.

    Scenario: Mr. (or Ms.) X goes to the range, taking son/daughter and a friend of son/daughter. According to my reading of what Joe posted above, parent and child may hand a gun back and forth as frequently as they desire, but child’s friend may not possess it, using the legal definition of “possess,” without a background check being performed.

    1) If the child’s friend is a minor, can the background check even be performed without the involvement of friend’s parent or legal guardian?

    2) What documentation will be required to ascertain, in a legal sense, that the second minor (above) does or does not have exempt relative status? What is the legal liability incurred by Mr or Ms X falsely claiming their child’s friend is their cousin and thereby has exempt status ?

    3) What is the potential liability incurred by range operators in instances where the “friend” (of whatever age and relation) is claimed to have exempt relationship status but does not? Will range operators have to demand birth certificates or other proof of legal exempt relationship before allowing access to avoid criminal or civil action ?

    4) If range patron/visitor observes Mr or Ms. X with an alleged exempt relative, and suspects a false claim is being made regarding exempt relative status, what is the enforcement mechanism ? Should law enforcement services be notified of a possible crime in progress ?

    5) To continue the discussion (above) regarding dual-person ( or multi-person) access to secure firearm storage equipment, what about gun(s) in a vehicle ? For example, in Florida, spouse A has a CCW and places a gun in the vehicle’s center console (Florida statutes specifically mention ” closed glovebox” as legal storage for a loaded firearm for a non-CCW possessor which technically precludes console as legal non-CCW possessor storage; for a CCW possessor anyplace in the vehicle is legal storage), spouse B does not have a CCW. Spouse A gets out of the car (for whatever reason); technically, spouse B is now in violation of Florida Statutes Chapter 790.06. Spouses in Washington, according to what Joe posted, have exempt status, but neighbors, co-workers, random passengers, etc. do not. How is this level of access or possession covered under the new statute(s) ?

    • Or, if I have a firearm locked in my trunk and I go to jiffy lube or have a valet park my car. Are we guilty of two illegal transfers?

      What if my friend forgets his gun at the range (it’s happened)? I can’t pick it up and take it to him. Who can?

      I have a CPL and am in an accident and unconscious. Are the paramedics who load me into the ambulance now guilty of an illegal transfer?

      I’m at the local shooting range and as is customary, we “go cold” and bolts are opened, etc. People walk 100 yards downrange to manage targets while the RO supervises the guns and makes sure nobody touches them. Is that a transfer?

      • according to this new law:
        1 Yes you are, go to jail, go directly to jail, do not pass go, do not collect $200
        2 Lawfully, no one
        3 Yes, they get to go to jail
        4 You’re all guilty as charged. Shut down the range you criminals you!

        • Please, this new law is bad enough; we gain nothing by overstating it. AT A RECOGNIZED SHOOTING RANGE is indeed one of the exceptions.

          • Define “recognized”. Is it defined in this law?
            If not, it will be decided by case law which means some poor sap will find himself charged and tried for it. The outcome *might* turn out well for him but, he’ll still be bankrupted as a result of the legal fees.

          • Are there any “recognized” shooting ranges? Will the newly minted people’s commissars approve any new “recognized” ranges? Or will this be like the “will not issue” policy as practiced in Hawaii, or used to be in Illinois?

          • Don’t forget the “at all times” part. As written, firearms brought in from outside the range are NOT exempt.

            They could have written “at the range for the duration of the temporary transfer”. They did not. Malice, or incompetence?

    • As long as you’re at an official shooting range (not just on public or private land where shooting is allowed), the first scenario is not a problem. See New Section 3. 4 (f)(ii).

      • Only if the firearm is stored at all times (not the duration of the temporary transfer) at the shooting range. I think this is an exception meant for shooting range businesses that rent guns.

        • I read that as being ambiguous. Does it mean a “range gun” that is owned by the range and stored at all time at the range, or does that mean you can bring your own, loan it to a friend while staying at the range, and then get it back while still at the range? It may be legitimately read either way.
          But there is no definition of “authorized range,” there is no list of “authorized ranges,” nor is there any *requirement* the DoL comes up with one, only the authorization to implement the details of the law.
          Possible solution: Invite some politicians to a “range day” somewhere, film them, then press for prosecutions for violating the law.

  8. It’s ridiculously easy to come up with scenarios that people will run afoul of with this thing:
    Who has possession when your checked firearm is on the baggage carousel at SEATAC? Is it a transfer when the owner picks up his bag? The TSA agent we hand our guns to for them to check on the way out is covered, as he is a Federal official performing his duty, but what about the baggage handlers who handle the bag on the way to the plane? What if a parent wants to loan a handgun to a child that is being threatened by a violent significant other?
    This thing will be a giant Gordian knot, and shame on the supporters of this crap for pushing this on us all. Nobody knows how to comply with it even if they want to.

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  10. Watching this from afar, I found it potentially confusing to have two initiatives so similarly named (591 vs 594) each the opposite of the other (that WAS the case, nest paw?). Which one was the one you supported? Was the ballot labeling and language clear enough to ensure complete differentiation? Was the confusion engendered deliberately?

    When do we get backed into a corner enough to the point where the answer is simply, “Shoot the bastards?”

    M

    • I don’t know about Washington, but in Oregon, the ballot language is written by the authors of the initiative. If they want the ballot to say “requires background checks on gun sales“, but the initiative language clearly says “transfers“, as in I-594, the authors have every right to do that. It’s misleading and dishonest, but as long as it’s not an outright lie (for a given definition of “lie”), it’s legal.

      As for when it’s time to “shoot the bastards”, that’s a very personal choice. I won’t say where my personal “red line” is – they’ll find out the hard way if they cross it – and I pray we never get there (and while praying, I work to make sure my prayers are answered). YMMV.

  11. Lovely, I have to drive to another state. I just realized we donated a “day at the range with 30calgal” to a couple of auctions this year. People paid about $1000 to the charities for this. Not sure how to handle this.

    • Temporary range transfers are probably okay. It will be at an “authorized range”, right?

      You might consider putting one or more of your guns in a trust for temporary transfers if you are shooting on public or private land. But get real legal advice before investing much effort along this line of thought.

  12. Easy……Bill of sale dated prior to stupid law being passed. Bill of sale not dated at all.

  13. Is 594 requiring that if I give a gun to a family member it be officially documented?

    How will they ever prove that guns purchased prior to 594 or in another state belong to anyone other than who I say they belong to?

    If a gun was last sold through a dealer prior to 594, and it is now in the possesion of someone other than the person who filled out the 4473, how can they prove it wasn’t transferred by legal private party sale prior to 594, unless one of the parties testifies to it?

    I don’t see this being enforced other than perhaps in a few stings. Gun stores and ranges will have to enforce their interpretation of it good and hard to avoid being shut down, which I think is good because it will alert the public to what it means.

    Does it truly say I can’t handle a gun at the gun store before I buy it? Has anyone posted a writeup yet of how we would try to comply with the damn thing in different situations?

    • To all your hypotheticals: They can’t. It’s unenforceable from a TON of angles, for a ton of reasons, and even if it was enforceable, most cops/sheriffs won’t.

      As to your last two questions: the first, AFAIK is a gray area. If someone had a stick up their @$$, they could read it that way. The second, not that I know of; there are simply too many hypotheticals, loopholes, and gray areas to be sure.

      For example, imagine you have a daughter who gets married. In theory, it’s illegal to gift a gun to your new son-in-law so he can keep their new family safe, without a background check. HOWEVER, it’s PERFECTLY legal to gift the same gun to your daughter without a check (parent-child transfers exempted), and SHE can gift it to her new husband without a check (spouse-spouse transfers exempted). Assuming none of you are prohibited persons, how can the prosecutors prove beyond the shadow of a doubt that the first (illegal) transfer happened, and not the second (legal) set of transfers?

  14. If I go hunting with a non-relative friend, and we have to cross a fence, using the recommended practice of having one person to hold both firearms while crossing said fence. This would be a violation.
    Following crossing the fence, the firearms are handed to the person having just crossed. Again another violation.
    Finally, after the second hunter crosses the fence, his firearm is returned to him, again another violation.

    • Again, don’t make these unfounded claims, it only hurts our case. 3 (4)(f)(iv) covers exactly that situation.

      • Crossing a fence would be legal.
        But you cannot hunt or shoot on. from, or across a road.
        I can’t loan you a gun here, let you drive out to bambi country next week, then return it in a month when it’s convenient. I’d have to drive out with you, hand it to you out there on the hunting grounds, and have it returned to me on those same hunting grounds.
        Hmmm… If you are armed (maybe hunting, maybe not) and the cops pull you over, run your plates, see you are armed, take your gun “for their personal safety during the stop,” do they have to run a check and file transfer paperwork to return it?

  15. OK, new to this blog. Gonna post my question, then read the thread to see if anyone has addressed it already:

    Mrs. and I have been married 30+ years. The 6 long guns and 3 handguns we own have come into our possession by both FFLs and private sales. The S&W J-frame was purchased abt 15 yrs ago to be her carry gun, and without digging out the receipt, I don’t honestly recall which of us did the 4473.

    Regardless, is there not some way for us to put the state/State on notice that we consider said firearms to be community property, owned by both of us?

    “Married couples usually own most, if not all, of their valuable property together. …

    “Generally, in community property states [e.g., Washington], money earned by either spouse during marriage and all property bought with those earnings are considered community property that is owned equally by husband and wife.”

    http://www.nolo.com/legal-encyclopedia/marriage-property-ownership-who-owns-what-29841.html

    • OP: “And how about joint ownership? Is that even possible? The existing paperwork doesn’t allow for joint ownership.”

      “Existing paperwork”? Correct me if I’m wrong on any/all of this (I’ve been out-of-the-activist loop for quite a while):
      – Registration is not required in WA.
      – A 4473 only testifies to the legality of the purchaser at the time of purchase; it is not a registration document.
      – And a receipt (if you even have one) means … what?

      Community property belongs to both spouses (absent a document that specifies certain property is not community property).

      So it looks to me (initially) like “Existing paperwork, schmexisting schmaperwork.” (That took a little bit of doing!) 😉

    • Grendel: “How will they ever prove that guns purchased prior to 594 or in another state belong to anyone other than who I say they belong to?

      “If a gun was last sold through a dealer prior to 594, and it is now in the possesion of someone other than the person who filled out the 4473, how can they prove it wasn’t transferred by legal private party sale prior to 594, unless one of the parties testifies to it?”

      Yupp.

      • Which is fine, but the age of the person for which that works goes up one year, every year. A decade from now a 22-year-old can’t claim to to have bought his pistol a dozen years prior.

  16. … IOW, since our firearms are not “registered” strictly speaking (since we have never lived in a state that required registration), who is to say whether either/both of us own them?

      • Don’t mean to sound abrupt, but so what? The 4473 has no bearing on current ownership. It isn’t a registration form or even a receipt. It simply asserts that John Doe was legally eligible to buy thus-and-such firearms from thus-and-such dealer on thus-and-such date, which he presumably did.

        After that …

        • My point is that if it is you then they could claim that is evidence that you are the “registered” owner unless you can prove you gave it as a gift (or sold it) to your spouse. Strictly speaking I would think the burden of proof would be on them to prove you had not done something like that. But I don’t trust them to abide by something so irrelevant as the constitution and legal precedent.

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  18. I’m a volunteer rifle instructor with Project Appleseed in the state of Georgia. This law is causing a lot of concern among my fellow instructors in Washington. Many people that come to our events are new to firearms. Sometimes that means they are bringing band new, never fired, guns or the Marlin 60 that belonged to grandpa. We see many equipment issues so most instructors bring an extra rifle to loan to students. The consensus seems to be too stop loaning any rifles to students until they know more.

    • Some Home Firearms Safety trainers are looking at the same thing here. You cannot demonstrate safe handling of an unloaded gun w/o handling it. What about picking up and handling a gun at a store or gun show to “get a feel of it” before you buy? Is that legal? Will all the guns at Cabela’s have to go behind the counter?

      • There is a temporary transfer exemption in I-594 for “performances”, but not for training.

        Apparently, to the authors of I-594, entertainment is more important and deserving of protection than is safety.

  19. What this all boils down to is that absent a LEO observing a transfer in a unexempted place between unexempted parties sans background check, or the parties in question admitting to such a transfer, this part of the law is unenforceable.

  20. How about plain old fuck it and transfer at will to anyone you know and trust. This law is unenforceable as there is no way to prove ownership, and because of this, no means to prove that a transfer has taken place. Just don’t get caught in a sting.

    • For now, that’s an option. But how about 5 years from now? How to you explain how the 25 year-old now owns a pistol? How did you get that gun that was manufactured only 3 years ago?

  21. Hmmm…. A couple of things.
    Look at Sec 1, (9)
    “Firearm” means a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder.
    That’s rather…. broad. That includes muzzle loaders and BP guns of all types. That includes fireworks mortars sold before the 4th of July. It includes a length of pipe with a cap on it….
    Sec 1 (17)
    (17) “Person” means any individual, corporation, company, association, firm, partnership, club, organization, society, joint stock company, or other legal entity.
    Would this include trusts? Looks like it would. Could be interesting.

    So, what’s the best avenue to attack this monstrosity in the courts? Straight up violation of the 2nd Amendment and Article 24 of the State constitution? Equal protection clause (because it is much more of a hindrance for someone living on Vashon, where there are no FFLs, for example)? Something else?

    • Yes. It looks like it includes trusts. But if a trust is treated like a person then it means that the background check and paperwork only has to occur when the gun is transferred out of or into the trust. But not when a new person is added to and removed from the trust.

      And in the case of a new gun added to the trust who/what is the background check performed on? If I can add and remove people from my trust all on my own in a matter of a minute or two then we have a workaround we can live with until we get it thrown out.

    • Yep.

      Maybe we can get a law passed that prohibits the DoL keeping those records for more than thirty days, or even to prohibit reporting them to the DoL at all.

  22. Three things: first, like ObamaCare, this law was obviously designed to be quickly superseded. In ObamaCare, next comes single-payer run by the .gov only. In the case of I594, by something more insidious, such as a FOID file kept by the gendarmes, as in IL and MA.

    Second, forget the idea of a “transfer in Canadian waters”. Do that and you have committed a CANADIAN felony, which the BC government will be DELIGHTED to prosecute. When you offer that info to a WA LEO, a dime drops to the RCMP.

    Third, forget trying to establish ANYTHING via a 4473. Do that often enough and the Feds will be happy to have Obama use his pen to convert 4473s to a permanent registration system. He will just ignore the law that says he can’t.

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