OLYMPIA — Political opponents always look for an edge.
Those who oppose Initiative 594, the proposal to extend background checks to private gun sales, insist they’ve found that edge in the way the measure defines a gun “transfer.” They say the initiative’s wording would effectively criminalize almost anyone who hands anyone else a gun — including students in a gun-safety class or a father and son out on a hunting trip.
I-594’s supporters say that’s not so. They argue that opponents are seeking to distract from the measure’s core intent of keeping guns out of the hands of criminals and people with serious mental illness.
Most of the attention around I-594 has focused on its call to expand background checks to gun shows and other private sales, including online and between people who trade for a gun. The initiative spells out certain transfers that would be exempt from a background check, such as those involving antique guns, gifts between immediate family members, loans at authorized shooting ranges or on hunting grounds, or when someone’s life is in immediate danger, among others.
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But in a video for the state voters’ guide and in recent debate, opponents contend the proposal’s language is so restrictive that it would bar the most commonplace transactions.
“We believe that it could put law-abiding gun owners in legal jeopardy,” said Catherine Mortensen, spokeswoman for the Institute for Legislative Action for the National Rifle Association (NRA). Gun-rights supporters have put their own initiative on the ballot; I-591 would prevent Washington state from expanding background-check laws.
Supporters of I-594 reject that interpretation and say similar arguments are used around the country to scuttle proposed gun regulations.
“Going down the transfer road,” said Snohomish County Prosecutor Mark Roe, “you can always invent some scenario that makes people scared.”
Federal law requires only licensed firearms dealers, like those at retail stores, to make sure that gun buyers pass a background check. Right now, six states — California, Colorado, Connecticut, Delaware, New York, Rhode Island — and Washington, D.C., also require background checks for anyone buying or receiving a gun, according to the National Conference of State Legislatures. I-594 would put Washington state in that second category.
Ballots in the all-mail election must be postmarked by Nov. 4.
In the past two years, support around the nation for background checks has reached as high as 90 percent in national polls, including gun-owning households. An Elway Poll conducted in July found that 70 percent of registered voters in Washington state favored I-594.
But the language used to define a gun “transfer” and its exemptions have formed the backbone of opposition to the initiative. The contentious words start in I-594’s definition of transfer: “ ‘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.”
The language was drafted by the Washington Alliance for Gun Responsibility, which worked with King County Prosecutor Daniel Satterberg and others, including law enforcement, according to Geoff Potter, spokesman for the alliance. Its drafters modeled the language after a bill that failed in the Legislature, H.B. 1588, as well as laws recently passed in Colorado and Connecticut.
But what exactly does “transfer” mean? In an email, Potter describes it as common jargon in gun legislation to refer to something akin to a sale but not involving money, like a trade or barter.
Potter cites an email he received from the Federal Bureau of Investigation saying that one person handing a gun to another does not constitute a gun transfer.
“The Gun Control Act of 1968 doesn’t specifically define what constitutes a transfer,” FBI spokesman Billy Estok wrote Aug. 25. “However, it can be clarified that simply handing a gun over to somebody else to try out does not qualify as a ‘transfer.’ ”
The email doesn’t clarify whether a loan for a day or a week also constitutes a transfer.
Questions from The Seattle Times as to what constitutes a transfer were not answered by the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the U.S. Department of Justice.
To David Kopel, an adjunct professor at University of Denver’s law school who advocates for gun rights, I-594’s transfer exemption would make illegal even the simple act of handing a gun to someone without getting a background check.
“Clearly the kind of transfers that are covered under this are short-term,” he said.
Alan Gottlieb, chairman of the Bellevue-based Citizens Committee for the Right to Keep and Bear Arms, lists in an email a series of scenarios in which he says I-594 would make gun transfers illegal. One is a hunting safety class that doesn’t occur at a shooting range.
“In the classroom portion of these classes, firearms are shown, handled and shared to show participants how to handle firearms safely,” Gottlieb wrote.
Mortensen, of the NRA, says the language is so restrictive that a child out hunting with her father might break the law if he moves too far away and the child is no longer under “direct supervision.”
Potter rejects these hypotheticals, citing again the email from the FBI.
“Most of these examples would not involve background checks as you described because they don’t involve a transfer,” Potter wrote in an email. “Simply handing someone your gun to shoot is not a transfer.”
At least two other states with expanded background checks have provisions that specifically address short-term loans. In California, people can loan guns for up to 30 days without a background check. Colorado, which enacted background checks in 2013 as part of a series of tighter firearms regulations, allows people to loan guns for up to 72 hours.
“That solves the gun-safety class problem just about completely,” Kopel said.
When asked why any kind of similar language wasn’t included in I-594, Potter said the initiative’s focus was to make sure background checks were sufficiently strengthened for gun shows and private sales and transfers.
“We wanted to make sure that we were looking at this in such a way that we’re truly closing the loophole,” he said.
Intent and enforcement
But would police officers and prosecutors really spend their time apprehending people handing unloaded revolvers to each other at a gun-safety class, or children hunting with their parents?
Don Pierce, an I-594 supporter and a former Bellingham police chief, said police officers deal with imprecise language in a variety of laws.
“We trained our officers to use common sense and learn what the intent was,” Pierce said.
Roe, the Snohomish County prosecutor, is one of a handful of county prosecutors who have endorsed I-594.
“I read the whole text of the initiative at one point,” said Roe. “I was comfortable with it.”
Mitch Barker, executive director of the Washington Association of Sheriffs and Police Chiefs, said county prosecutors would talk with local law enforcement to decide whether to prosecute.
The association isn’t making an endorsement in the campaign, but Barker said, for him personally, “I wouldn’t view someone handing a Glock over to someone else to shoot off a few rounds and then hand it back as a transfer.”
Kopel, who also works for the Independence Institute, a free-market think tank that has received funding by the NRA, and who has written for NRA publications, acknowledges that law enforcement and prosecutors might not act on opponents’ scenarios.
“It is wrong to say we’re going to criminalize everybody and then count on prosecutorial discretion to not prosecute everybody,” he said.
Kopel and Gottlieb both cite California’s background-check laws, with the 30-day loan period, as a better option. Gottlieb, however, is also a proponent of I-591, which would keep Washington state from enacting its own background check laws.
Neither Kopel nor Gottlieb could cite an instance where an otherwise-law-abiding citizen in another state had been prosecuted on a technicality of gun-transfer laws. When asked if it was aware of any such circumstances, the NRA did not respond.
But Kopel says Colorado’s law has nonetheless had an impact on gun owners.
“It has led to Colorado State University campus police terminating their program of storing hunting firearms owned by students who reside on campus,” Kopel wrote in an email. At least two outdoors groups have alsostopped loaning guns, he added.
Pierce, the former Bellingham police chief, mentions a point often left out of the debate — that the Legislature can go in and tweak the language. He cites Initiative 502, which voters approved in 2012 to legalize recreational use of marijuana.
“We learned late … that the definition of marijuana was wrong,” Pierce said. “I was working for the sheriffs and chiefs association, we got that fixed in three days.”
Joseph O’Sullivan: 360-236-8268 or email@example.com.