WHITE PAPER
Access to Firearms in
Washington State

Bob Ferguson
Attorney General
October 31, 2016

 2016 White Paper
Access to Firearms in Washington
Workgroup Members:
Joshua Choate, Assistant Attorney General
Attorney General’s Office, Criminal Justice Division
Kate Kelly, Policy Director
Attorney General’s Office, Administration Division
Eric Nelson, Assistant Attorney General
Attorney General’s Office, Social and Health Services Division
R. July Simpson, Assistant Attorney General
Attorney General’s Office, Licensing and Administrative Law Division

 TABLE OF CONTENTS
I. INTRODUCTION .......................................................................................................................1
II. BACKGROUND .........................................................................................................................1
III.

EXECUTIVE SUMMARY ....................................................................................................2

IV. FEDERAL AND STATE PROHIBITIONS ON POSSESSION OF FIREARMS ................4
A. Persons Subject to Guardianships ...........................................................................................5
B. Mental Health Detention and Evaluation................................................................................5
C. Other “Risk-Based” Prohibitions ............................................................................................6
D. Marijuana ................................................................................................................................6
V. BACKGROUND CHECKS ........................................................................................................8
A. Washington’s Distinction Between Pistols and Long Guns ...................................................9
B. Mental Health Records .........................................................................................................11
C. The Department of Licensing’s Role in Washington’s Firearms System ............................12
VI. WASHINGTON’S RESTORATION LAW .........................................................................12
VII.

FIREARMS SURRENDER BY PROHIBITED PERSONS ............................................13

VIII.

ATTEMPTED FIREARMS PURCHASE BY PROHIBITED PERSONS ......................14

IX. FIREARMS ACCESS BY CHILDREN ..............................................................................16

 I.

INTRODUCTION

Citing the public health implications of gun-related violence, crime, fatalities, and
injuries, earlier this year Governor Jay Inslee issued Executive Order 16-02. Among other
things, the Executive Order requested that the Attorney General survey statutes that
prohibit some people from possessing firearms, examine how those statutes are
implemented, and analyze, in particular, how those laws are enforced when someone who
is not allowed to possess a firearm tries to buy one – or when someone else tries to
purchase a weapon for that person. In addition, the Governor asked the Attorney General
to update a 2007 Attorney General’s Office White Paper on background checks and
access to firearms for those who had experienced a mental health commitment.
This report is the Attorney General’s response to the Governor’s Executive Order.
The Executive Order also issued directives to three other state agencies. It required the
Department of Health (DOH) and Department of Social and Health Services (DSHS) to
collect, review, and disseminate data on deaths and hospitalizations attributed to firearms,
and recommend strategies to reduce fatalities and serious injuries. It directed DOH to
work with others to implement the Statewide Suicide Prevention Plan. Finally, the
Executive Order instructed the Office of Financial Management (OFM) to analyze
information sharing between state agencies, courts, local jurisdictions, law enforcement,
and other entities to determine if it could be improved.
II.

BACKGROUND

In 2007, following a mass shooting at Virginia Tech, Washington Attorney General
Rob McKenna convened an internal workgroup to compile and issue a White Paper. The
White Paper analyzed state and federal firearms prohibitions related to mental health
commitments, as well as state and federal background checks. The 2007 White Paper
recommended a number of steps to:
•
•
•

Eliminate differences between state and federal law;
Address areas of overlap or inefficiency; and
Identify loopholes that precluded fulfillment of existing laws.

Washington’s firearms statutes and background check processes have improved since
2007. But work remains to be done.
Governor Inslee’s 2016 Executive Order was prompted by the prevalence of shooting
deaths in Washington and across the country. Just since 2012, several mass shootings
have occurred in our state:
•

On May 30, 2012, at Café Racer in Seattle, four patrons were shot and killed. Half
an hour later a fifth person was killed by the same shooter during a carjacking.
The shooter then committed suicide. He had obtained his firearms legally.

1

 •

On June 5, 2014, a man with a history of psychosis and violent threats, but not
prohibited from firearms access, killed a student at Seattle Pacific University and
wounded two others before a student-safety monitor intervened and disarmed the
shooter when he paused to reload.

•

On October 24, 2014, a student at Marysville Pilchuck High School killed four
classmates and himself with a handgun purchased by his father. The father was
later sentenced to two years in federal prison for illegal possession of firearms.
The father was ineligible to purchase the handgun due to a prior domestic
violence restraining order, but lied about it on a background check form. The
restraining order, issued by a tribal court, did not appear during the background
check because it was never entered into the state database.

•

On July 30, 2016, in Mukilteo, three young adults were killed and one seriously
wounded by the 19-year-old former boyfriend of one of the victims. He was
armed with an AR-15 high-capacity rifle legally purchased a week before the
shooting. 1

•

On September 23, 2016, five people were shot to death at the Cascade Mall in
Burlington. A court order prohibited the shooter from possessing firearms due to a
history of assaults, domestic violence, suicide attempts, and drug overdoses. He
used his father’s rifle and a 25-round magazine.

While these incidents are deeply disturbing, mass shootings are just a fraction of the
state’s overall firearms deaths. Between 2012 and 2014, an average of 665 people per
year died in Washington from firearms injuries, according to DOH. Approximately 80
percent of the firearms deaths were suicides.
Advances have been made since the Attorney General’s 2007 White Paper, but there are
additional steps we can take to keep firearms away from individuals who may be a
danger to themselves or others, while protecting the constitutional rights of lawful gun
owners. This White Paper examines the legal, policy, and practical issues surrounding
access to firearms in our state, and presents a number of recommendations.
III.

EXECUTIVE SUMMARY

To improve public safety and reduce violent crime and suicide, both federal and state
laws prohibit certain individuals from possessing firearms. Background checks facilitate
timely, lawful transfer to eligible purchasers, while at the same time ensuring that
firearms are not transferred to people who are not allowed to possess them.
This White Paper reviews the design and effectiveness of Washington’s current
background check system. It also examines other issues related to acquiring and
possessing firearms, including:
•

Prohibited persons attempting to buy firearms;

2

 •
•
•

Prohibited persons surrendering firearms already in their possession;
Restoring firearms rights to persons previously prohibited; and
Limiting children’s access to firearms.

Washington’s firearms background check system is fragmented. The system relies on 260
local law enforcement agencies to conduct checks on handgun purchases and concealed
pistol license applications, while purchases of rifles and shotguns are checked exclusively
through a federal database. The system involves complex and inconsistent processes for
putting information into several databases.
Washington needs specific improvements in our background check process. We need to
ensure that resources are in place for timely and complete input of data. We also need to
ensure that processes and resources exist to restore and protect the rights of lawful gun
owners when appropriate.
With regard to enforcement of current laws, there are safety, legal, and resource
challenges associated with identifying and taking action against persons who
inappropriately or unlawfully possess firearms. These challenges need to be resolved with
specific and practical enforcement solutions. Similar challenges and solutions are needed
to follow up on illegal attempts to purchase firearms by or for prohibited persons.
While there have been improvements in Washington’s firearms statutes and background
check process, gun violence continues at an alarming rate.
This White Paper makes findings and recommendations for administrative efforts and
legislative changes to advance public safety in our state. At the same time, the White
Paper discusses the importance of providing due process protections to individuals, as
well as procedures for restoration of their rights to possess firearms when appropriate.
The White Paper:
•

Provides an overview of the scope and effectiveness of the existing federal and
state designations of individuals or categories of individuals prohibited from
purchasing or possessing firearms, and recommends additional prohibitions as
well as improved processes to ensure information is timely and completely
entered into existing systems and communicated to those who need it;

•

Looks at the current state of Washington’s firearms background check process
and recommends changes to eliminate redundancies and streamline the system;

•

Analyzes the law and current practices surrounding prohibited persons
surrendering firearms or attempting to purchase them, and recommends further
analysis to determine if additional steps must be taken to increase the
effectiveness of the current system; and

•

Discusses and encourages measures to limit children’s access to firearms.

3

 IV.

FEDERAL AND STATE PROHIBITIONS ON POSSESSION OF
FIREARMS

In an attempt to improve public safety and reduce violent crime and suicide, both federal
and state law prohibits certain categories of persons from legally possessing firearms. 2
Generally, sanctions exist for transferring a firearm to a person in a prohibited category.
Similarly, there may be sanctions for prohibited persons who purchase, or attempt to
purchase, firearms or who fail to surrender firearms in their possession.
At the federal level, the Gun Control Act details ten “prohibitors” restricting receipt of a
firearm and possession. 3 The prohibitor most recently adopted at the federal level, in
1996, adds persons subject to domestic violence restraining orders or convicted of a
misdemeanor crime of domestic violence. 4 The penalty for violation of the federal
firearm possession statute is a fine and up to ten years imprisonment. 5
The Washington Uniform Firearms Act 6 prohibits firearms possession in the case of:
•
•
•
•
•

Felony convictions;
Findings of not guilty by reason of insanity;
Involuntary mental health commitments;
Domestic violence crimes; and
Restraining orders. 7

In Washington, unlawful possession of a firearm is a class B or C felony, depending on
the reason for the firearm restriction. 8 Federal and state laws prohibit “straw buyers”
from acquiring firearms on behalf of other persons who may or may not be prohibited
from possessing. 9
Although federal law is more proscriptive than Washington law in certain areas,
Congress did not preempt state law when it enacted the Gun Control Act. 10 State and
federal law stand independently so long as there is no conflict between the two, or state
law does not impede enforcement of federal law. 11 Washington state and federal firearms
laws are not in conflict, as nothing in state law allows firearms access for individuals
prohibited from possession under federal law. The Washington Legislature acknowledged
differences between state and federal law in the Uniform Firearms Act, and directed law
enforcement agencies to provide a warning that state and federal law differ. 12
As was the case when the 2007 White Paper was written, differences between federal and
state law can complicate the determination of an individual’s status regarding firearms
access by law enforcement, potential gun buyers, gun owners, and firearms dealers.
Existing federal and state prohibitions are compared in the Appendix. Some of the
differences make sense, such as federal prohibitions covering persons who are largely in
the federal province, including those dishonorably discharged from the military and those
who have renounced U.S. citizenship. Similarly, there are practical reasons for state
prohibitions crafted to reflect particular choices and address specific problems recognized
by state policy makers. At the same time, challenges exist when federal prohibitions are

4

 more expansive than, or differ significantly from, state law. This section discusses issues
surrounding particular prohibitions or potential prohibitions.
A.

Persons Subject to Guardianships

In the mental health category, federal regulations are more restrictive on firearms access
than Washington law. Under federal law, this category includes a person determined by a
court to lack “the mental capacity to contract or manage his own affairs.” 13 Under
Washington law, a person who lacks capacity and for whom a payee is designated is
typically subject to a guardianship order. 14 There is no blanket Washington statutory
prohibition on firearms possession by such a person. A court may, however, craft a
specific guardianship order to prohibit a particular ward from possessing firearms or
direct the guardian to remove firearms from the ward’s possession. The current process
under Washington law includes due process protections and is a solid, individualized
process intended to prevent persons who pose a high risk to themselves or others from
having access to firearms.
It should be noted, however, that there is currently no practice for entering such orders
into the state or federal background check systems.
Recommendation: Take steps to ensure that when a court enters a guardianship
order prohibiting an individual ward from possessing firearms, the order is
entered into the federal background check system.
B.

Mental Health Detention and Evaluation

In 2009, the Legislature added short-term involuntary commitment orders as a prohibitor
to firearms possession in Washington. This change brought state law into alignment with
federal law with regard to all types of involuntary commitments.
The federal prohibitor for “committed to a mental institution” does not encompass shortterm mental health detentions for observation. 15 A number of states, however, have
prohibited possession of a firearm temporarily or permanently when a person is detained
for a short-term mental health evaluation or observation for civil commitment. For
example, California imposes a five-year ban on possession for persons held for 72-hour
mental health observation. 16 California’s ban has been found constitutional. 17 However, a
similar statute in Maine was struck down for depriving persons of constitutional firearms
rights without due process. 18
In the 2015 session of the Washington Legislature, a bill was introduced to prohibit
possession of firearms by persons detained for up to 72 hours for mental health
evaluation, but not subsequently committed for involuntary treatment, if a firearm was a
factor in the person’s detention. 19 The bill did not advance. The proposal provided that a
prosecutor could file a motion with a superior court to make the person ineligible to
possess. The motion could be granted following a hearing to determine if the person
suffers from a mental disorder and if there is a substantial nexus between the detention
and use, or threatened use, of a firearm.

5

 Recommendation: Adopt a narrowly crafted prohibition on the possession of a
firearm on a temporary or permanent basis if a person is detained for civil
commitment evaluation or observation and the use or threatened use of a firearm
was a factor in the person’s detention. The measure must include due process
protections and procedures for restoration of rights as appropriate.
C.

Other “Risk-Based” Prohibitions

Research indicates that federal and state prohibiting criteria can correlate poorly with the
actual risk of firearms violence and suicide. 20 In response, some states have added riskbased prohibitors to firearms possession. The narrowly crafted prohibitions described
above on possession of firearms by individuals detained for mental health observation or
under a guardianship order are one such example. When combined with due process
protections, risk-based prohibitors that focus on individuals, rather than categories, may
help prevent firearms access by individuals who pose a high risk to themselves or others.
In 1999, Connecticut passed a law to allow firearms to be temporarily removed from an
individual if there is probable cause to believe the person poses a significant risk of harm
to themselves or others. 21 Indiana and California have since adopted similar laws and
approximately a dozen states will consider risk-based firearms removal laws in their
upcoming legislative sessions. 22
Policies that deliberately incorporate risk-based factors for firearms violence and suicide
can provide a comprehensive, evidence-based approach to gun violence prevention.
These policies can expand firearms prohibitions to encompass the individuals that
research shows are at heightened risk for committing gun violence. The policies can
include mechanisms to allow for removal from or surrender of firearms by individuals
who are at serious risk of harm to themselves or others. To protect constitutional rights
the prohibitions must be combined with appropriate due process protections and should
have appropriate procedures for restoration of rights.
Recommendation: Adopt additional risk-based prohibitions focused on
individuals who pose a high risk to themselves or others rather than categories of
people without regard to risk. Any such measure must include due process
protections and procedures to restore rights as appropriate.
D.

Marijuana

Washington state has no statutory prohibition that connects firearms possession to use of
controlled substances unless the use results in a serious offense charge or felony
conviction. On the other hand, federal law prohibits firearms possession by a person who
is an “unlawful user of or addicted to any controlled substance.” 23 Federal regulation
defines this as: “A person who uses a controlled substance and has lost the power of selfcontrol with reference to the use of controlled substance; and any person who is a current
user of a controlled substance in a manner other than as prescribed by a licensed
physician.” 24 “Current use” means that “the unlawful use has occurred recently enough to
indicate that the individual is actively engaged in such conduct,” with inferences of
6

 current use drawn by convictions for possession in the past year, multiple arrests with the
most recent in the past year, or a positive drug test within the past year. 25
Under federal law, marijuana remains a “Schedule I” controlled substance. 26 The
legalization of recreational and medical marijuana in Washington and other states poses a
challenge for both potential gun buyers and the states. Form 4473, 27 issued by the federal
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), is completed by potential
purchasers of firearms to initiate a background check. The form asks the purchaser to
check “yes” or “no”: “Are you an unlawful user of, or addicted to, marijuana or any
depressant, stimulant, narcotic drug, or any other controlled substance?” In 2011, ATF
issued an Open Letter to firearms dealers advising them that “any person who uses or is
addicted to marijuana, regardless of whether his or her State has passed legislation
authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a
controlled substance, and is prohibited by Federal law from possessing firearms or
ammunition.” 28 The letter advised that all persons using marijuana should answer “yes”
to the question on Form 4473.
The Ninth Circuit Court of Appeals has ruled that the federal firearms prohibition for
“unlawful users” of controlled substances does not run afoul of the Second Amendment
to the U.S. Constitution. 29 More recently, the Ninth Circuit dismissed challenges by a
Nevada woman barred from obtaining a firearm because she held a medical marijuana
card issued under Nevada law. The Court held that under federal law and the 2011 ATF
Open Letter, the federal ban on firearms possession is valid. 30
Issuance of concealed pistol licenses by Washington state to persons who use marijuana,
either recreationally or medicinally, is also an unsettled question. State law prohibits
issuance of a concealed pistol license if the applicant is “prohibited from possessing a
firearm under federal law.” 31 DOH administers a database to voluntarily register
medicinal marijuana users, but due to confidentiality restrictions, the information cannot
be used by law enforcement when deciding whether to issue a concealed pistol license. 32
Some law enforcement agencies may deny a concealed pistol license if they have actual
knowledge of the applicant’s marijuana use, although in practice the agency is unlikely to
know. It is also unclear whether the agency has a duty to inquire.
Further complicating the situation, it is also unclear whether the federal prohibition on
possession of a firearm by “unlawful users” extends to the 1,600 Washington licensees
who engage in the lawful business of marijuana production, processing, transportation,
and retail. These licensees handle a high-value product on a largely cash basis (due to
federal banking restrictions) and, therefore, may be armed for self-protection. Nothing in
state law prohibits firearms possession by marijuana licensees. 33 Depending on the facts,
lawful possession of marijuana for commercial purposes may or may not create an
inference of “unlawful use” under federal law. The U.S. Department of Justice (DOJ) has
emphasized a federal interest in “preventing violence and the use of firearms in the
cultivation and distribution of marijuana.” 34 Nothing has altered DOJ’s authority to
enforce federal law, regardless of state law.

7

 At least one federal legislator, Senator Lisa Murkowski from Alaska, has requested that
federal authorities revisit the rules on this subject. 35 It is likely that Congress would have
to change federal law to remedy the issue.
Finally, there appears to be a similar disconnect between state and federal laws regarding
persons who undergo chemical dependency treatment for use of controlled substances,
but are not otherwise prohibited from firearms possession due to a felony charge or
conviction. For example, under state law 36 involuntary chemical dependency treatment is
not disqualifying, nor will it be under recent legislation that integrates mental health and
substance use commitment schemes. 37 Even if state law did establish such a prohibition,
reporting a record of drug and alcohol treatment, whether voluntary or involuntary, to
state and federal firearms databases could pose legal issues under the strict confidentiality
requirements of 42 C.F.R. Part 2. 38
Recommendation: Officials in Washington should appeal to Congress and the
federal ATF to allow legal access to firearms for individuals whose use or
possession of marijuana is legal under state law.
V.

BACKGROUND CHECKS

Both federal and state law regulates the transfer of firearms. Under federal law, a dealer
is designated a “federal firearms licensee” (FFL), and holds a license granted by the ATF.
Under Washington law, a dealer is defined by statute as anyone engaged in the business
of selling firearms who has, or is required to have, a federal firearms license. 39 A dealer's
license is not required under state or federal law if the person makes only occasional
sales, exchanges, or purchases of firearms to enhance a personal collection or as a hobby,
or sells all or part of his or her personal collection of firearms.
Dealers must comply with both state and federal background check requirements before
transferring firearms to persons who are not also dealers. Under federal law, an FFL
cannot sell a firearm or ammunition to a person whom the dealer knows, or has
reasonable cause to know, is federally prohibited from possessing a firearm. 40 The
consequence for willful violations of the federal background check requirement is
revocation of the federal firearms license (subject to a hearing) and imposition of a civil
fine. 41 In addition, a knowing violation of the background check requirements can subject
the FFL to criminal prosecution and up to ten years imprisonment. 42
Under state law, it is a class C felony for a person to transfer a firearm to another person
whom the transferor has reasonable cause to believe is ineligible to possess a firearm. 43
Initiative 594, passed by Washington voters in 2014, subjects most private transfers
between individuals to a background check. 44 First-time, knowing violations of this
requirement are a gross misdemeanor punishable by up to one year in jail and up to a
$5,000 fine. 45 In the first prosecution under this law, an Island County man was recently
charged with illegally transferring a pistol allegedly used to commit a murder. 46
Both federal and Washington law prohibits purchases by straw buyers. 47 ATF Form 4473
advises purchasers: “Are the actual transferee/buyer of the firearm(s) listed on this form?
8

 Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf
of another person. If you are not the actual buyer, the dealer cannot transfer the
firearm(s) to you.” 48 According to one report, federal authorities rarely prosecute straw
buyers and congressional attempts to strengthen federal laws against straw buyers have
failed. States, however, are increasingly adopting laws to prohibit transfers to straw
buyers. 49 In 2014, the U.S. Supreme Court held that a person who buys a gun on someone
else’s behalf while falsely claiming that it is for himself, even if the actual buyer could
have lawfully purchased the gun, commits a material misrepresentation punishable under
the Gun Control Act. 50
A National Instant Criminal Background Check System (NICS) check usually returns an
immediate response. There is no federal waiting period. The dealer is notified that the
transfer may proceed, may not proceed, 51 or is delayed pending further review of the
applicant’s history. If a transfer is delayed for further review, but the dealer does not
receive a response from NICS within three business days, the transfer may proceed at the
dealer’s discretion. 52 These are known as “default approvals.” 53 If it is ultimately
determined that a firearm has been transferred, but possession should have been denied,
the case is referred to ATF, or in some states (excluding Washington) to local law
enforcement or a statewide firearms unit, and that agency is responsible for retrieval of
the firearm. 54 In 2015, nationally NICS referred 2,982 retrieval actions to the ATF. 55
Under Washington law, a transfer cannot take place until the person receiving the firearm
passes the background check, or “Ten business days have elapsed from the date the
licensed dealer requested the background check.” 56
A.

Washington’s Distinction Between Pistols and Long Guns

In Washington, the process for conducting a background check for a potential purchaser
differs with the type of firearm (pistol or long gun), and depends on whether the
purchaser already has a concealed pistol license. NICS checks are initiated either by the
dealer who contacts NICS directly or by a state “point of contact” agency designated by
the state, or both. Washington is considered a “partial point of contact” state because 260
sheriffs and police departments request NICS background checks for pistols, but dealers
perform the NICS background checks for long guns and pistol purchases for those with a
concealed pistol license.
Local law enforcement agencies conduct required state background checks for pistol
purchases in all instances.
According to the FBI, Washington is one of only seven states in the country with a
decentralized configuration where state or local authorities are contacted for pistol and/or
concealed pistol license applications, but long guns are checked exclusively through
NICS. 57 This distinction means that applicants for pistol purchases and concealed pistol
licenses are subject to checks of state databases. Long gun purchases are not.

9

 Type of
Firearm or
License

Who Checks
State and Local
Databases?

Who Checks the
Federal NICS
Database?

Concealed
pistol license

Local law
enforcement

Local law
enforcement

Handgun with
concealed
pistol license
Handgun
without
concealed
pistol license
Long gun
(rifles,
shotguns)

Local law
enforcement

Dealer

Local law
enforcement

Local law
enforcement

N/A

Dealer

Long gun purchases are handled exclusively between the dealer and NICS. 58 Firearms
dealers contact NICS by phone or electronically (known as “e-check”) to determine
whether a prospective purchaser is prohibited from possessing a firearm. Dealers also
have the option of requesting a check on a person who attempts to pawn a firearm. This is
done without the involvement of local or state authorities or any check of state or local
records except to the extent those records have been submitted to NICS. Many
disqualifying state records, including criminal and mental health records, are
electronically submitted to NICS and should stop the transfer of a long gun to an
ineligible person.
For a pistol sale or transfer, if the purchaser does not have a valid concealed pistol
license, the dealer contacts one of Washington’s 260 local sheriffs or police departments
to conduct the NICS check and a state background check. If the proposed pistol purchaser
has a valid concealed pistol license, the dealer will conduct a NICS check, and the local
law enforcement agency will conduct the required state background check. The state
background check includes a check of the databases of the Washington State Patrol,
DSHS, and local mental health agencies. All the firearms disqualifying categories can be
checked in a single computerized search in NICS. This is not the case with the
decentralized system used in the state background checks for concealed pistol licenses
and pistol purchases.
The different processes for running background checks for obtaining a concealed pistol
license, purchasing a pistol, and buying a long gun creates confusion for dealers,
purchasers, gun owners, and law enforcement in Washington. Reliance on multiple local
law enforcement agencies to conduct background checks creates the potential for
inconsistent practices and may tax the resources of small local agencies. Reliance on

10

 these inconsistent processes may result in different outcomes with regard to a particular
firearms purchase or license application.
Recommendation: Evaluate whether a separate check of state records for long
gun purchases would provide an added level of public safety. If so, in addition to
checks in the federal system, these checks should be performed for all firearms
purchases, not just pistol and concealed pistol license applications. Conversely,
because the state records checks add transactional costs and complications, they
should no longer be required – and Washington should rely solely on the federal
background check system – if they are not adding value.
Recommendation: Adopt a centralized firearms background check system
allowing firearms dealers to go through a single state agency with access to all
necessary state or federal records to perform background checks, rather than
requiring dealers to contact different agencies for different transactions.
B.

Mental Health Records

The 2007 White Paper led to several significant changes in Washington’s firearms
statutes and background check processes related to mental health. In 2009, the
Legislature amended Washington law to require courts to forward mental health
commitment records to NICS and the Washington Department of Licensing (DOL)
within three business days after a commitment order is issued. 59 The reporting happens
daily in practice through a secure, online transmittal system developed by the
Administrative Office of the Courts. 60 This was a significant improvement to our state’s
background check system, streamlining and automating Washington’s submission of data
to NICS. Administrative practices were also changed, including standardization of court
forms and improved coordination between state agencies. As a result, Washington ranks
among the top NICS reporting states per capita even though we receive no federal
funding to pay for the reporting mechanisms.
By having the courts submit commitment orders directly to NICS, the Legislature
removed the requirement for DSHS to enter information into the federal database. As
described above, NICS is checked when an individual applies to purchase any firearm.
However, as currently written, state law still requires law enforcement to consult DSHS
records when they conduct a background check for a pistol transfer or a concealed pistol
license. This redundant check may be an inefficient use of resources. DSHS records
continue to be based on administrative data and the system is not automated (DSHS staff
manually check whether an applicant is in the records). With timely entry into NICS by
the courts, the DSHS check for pistol purchases and concealed pistol license applications
may be redundant and therefore an inefficient use of state resources.
As mentioned above, involuntary mental health treatment orders are also sent to DOL by
the courts. If DOL finds a match with its concealed pistol license records, notice to
revoke that person’s license is sent to the local law enforcement agency that originally
issued it. 61 Once DOL checks its database for the presence of a concealed pistol license,

11

 the mental health record from the court is destroyed. By statute, DOL does not retain the
mental health records as the information is already retained by NICS and DSHS.
Recommendation: Evaluate whether there is timely and complete submission of
mental health records to the federal background check system. If so, eliminate the
DSHS mental health check for pistol transfers and concealed pistol license
applications. If not, steps should be taken to ensure timely and complete
submission to the federal system.
C.

The Department of Licensing’s Role in Washington’s Firearms
System

DOL has no regulatory role in Washington’s firearms system. Rather, DOL has a limited,
record keeping role in firearms data collection and maintenance. DOL maintains three
types of records issued by local law enforcement agencies: records of concealed pistol
licenses, alien firearms licenses, and pistol transfer applications used when a pistol is
transferred through a licensed firearms dealer. There is no mechanism to record any
subsequent transfer in ownership that does not go through a dealer (whether that is
through sale, gift, or theft.) For this reason, the pistol transfer information in DOL’s
system does not alone constitute proof of ownership of a pistol. However, it has been
viewed by law enforcement entities as showing “indicia” of potential ownership, and the
starting point for further investigation.
DOL also does not determine whether to issue or revoke a concealed pistol license or
alien firearms license. Nor does DOL have authority to determine whether a pistol
transfer should proceed. This authority is held by local law enforcement. DOL does not
maintain records of pistol ownership or a “registry” of firearms ownership.
The effectiveness of DOL’s system depends on the agency’s ability to keep up with the
workload of inputting data, and the ability of the agency to communicate that information
to those who need it.
Recommendation: Determine the best way to ensure that the Washington
Department of Licensing’s firearms system contains accurate and timely records
of pistol transfer applications, alien firearms licenses, and concealed pistol
licenses, and that the information is available to those who need it.
VI.

WASHINGTON’S RESTORATION LAW

Under certain circumstances, it is appropriate to restore the right to possess firearms to an
individual. The definition of who is eligible for restoration and the process for restoring
firearms rights in Washington should be improved.
Congress enacted the Brady Handgun Violence Prevention Act in 1994. NICS was
implemented in 1998. The Virginia Tech tragedy in 2007 mobilized support for
improvements to NICS and policy makers sought ways to encourage states to submit
records to NICS. 62 To this end, Congress enacted the NICS Improvement Amendments
12

 Act of 2007 (NIAA). 63 The law incentivizes records submission by waiving state
matching fund requirements for grants under the National Criminal History Improvement
Program and grants to upgrade identification and automated reporting systems. The law
also creates a sliding scale of penalties against Byrne criminal justice grants. In doing so,
the NIAA also conditions access to grant funds for a state having a federally approvable
process for individuals to obtain relief from mental health disabilities prohibitions, and a
“reasonable estimate” of record completeness.
In October 2009, ATF denied Washington’s application for approval of a certified relief
from disabilities program because several sections of the state’s firearms restoration
statutes failed to meet criteria under the NIAA. 64 This continues to be the case. These
deficiencies can be remedied through relatively simple changes to Washington law.
Conformance with NIAA standards will require the Legislature to modify some
determinations about who may seek restoration of their possession rights from a court.
For example, Washington law does not allow a person to obtain relief from a disabilities
prohibition if the person was found not guilty by reason of insanity of a sex offense or
class A felony. 65 According to ATF, this amounts to a permanent disqualification and is
contrary to Section 105(a)(1) of the NIAA. On the other hand, another provision allowing
individuals to seek restoration of their firearms rights in Washington courts if a mental
health disability originated in another state was considered too permissive by ATF,
running afoul of Section 102(a)(2) of the NIAA. 66 Other issues raised by ATF are more
technical in nature but relatively easy to fix.
The consequence of ATF’s determination is two-fold. First, Washington law does not
allow a complete restoration of firearms rights so that individuals can pass a federal NICS
background check after receiving an order of mental health restoration by a state court.
Second, Washington’s lack of a qualifying relief from disabilities program makes the
state ineligible to apply for and receive federal records improvement grants under the
NIAA. Twenty-four states received such funding since the inception of the program in
2009. In 2015, those grants totaled $22.7 million.67
Recommendation: Clarify and improve the process for restoring firearms rights
to persons with a mental health prohibition. Specifically, amend Washington’s
restoration statute, RCW 9.41.047, to meet federal standards for qualifying relief
from a mental health disability.
VII.

FIREARMS SURRENDER BY PROHIBITED PERSONS

Under Washington law, a prohibition from firearms possession can be imposed in a
variety of contexts. 68 All persons convicted of any felony or domestic violence offense in
a Washington court, or involuntarily committed for mental health treatment, lose the right
to possess firearms or to hold a concealed pistol license. 69 By law, within three judicial
days of the conviction or commitment, the court must forward to DOL a copy of the
person’s driver’s license or identicard, or comparable information, along with the date of
conviction or commitment. 70

13

 At sentencing, the prohibited person is advised orally and in writing of the restriction and
trusted to abide by it or face additional criminal sanctions. 71 Due to potential risk to
officers and a lack of resources, law enforcement agencies in Washington have not
routinely taken on enforcement or supervision of firearm surrender requirements. Except
in particular circumstances there appears to be little, if any, regular third-party
verification that a prohibited person has surrendered his or her firearms.
In 2013, the Legislature took two significant steps toward actively involving law
enforcement in the supervision of firearms prohibitions. First, a category of convicted
persons designated as “felony firearm offenders” was created. 72 These are offenders who
were either armed with a firearm “in the commission of the offense,” stole or possessed a
stolen firearm, or participated in a drive-by shooting. 73 In a manner similar to sex or
kidnapping offenders, felony firearm offenders must register with the applicable county
sheriff’s office within 48 hours of imposition of sentence or release from custody. For a
period of four years the person must update their registration annually or any time they
change their address. 74 Failure to register as a felony firearm offender is a gross
misdemeanor. 75
In another significant development, the Legislature created a requirement that persons
subject to protection orders for domestic violence, stalking, or harassment must surrender
their firearms in certain cases. 76 These prohibited persons are issued an order to surrender
and required to file a proof of surrender and receipt form with the court within five
judicial days. 77 The Administrative Office of the Courts was directed to create applicable
pattern forms to document compliance with these firearms surrender requirements. 78
Failure to provide the required proof of surrender is a misdemeanor. 79
Limited early data raises questions about the implementation of this surrender
requirement. For example, the Seattle City Council recently took up the issue of
enforcing firearms surrender provisions because a review found that, in a three-month
timeframe in 2015, of the 94 cases where a declaration of surrender (or non-surrender)
was due to the court, only 12 respondents filed one. 80
Recommendation: Conduct a statewide evaluation to determine if additional
steps need to be taken to ensure compliance with current proof of surrender and
non-possession requirements. Once the effectiveness of the requirements has been
determined, expand the RCW 9.41.804 provision for proof of surrender or nonpossession to other categories of prohibited persons.
VIII. ATTEMPTED FIREARMS PURCHASE BY PROHIBITED PERSONS
Available figures raise questions about whether firearms prohibitions dissuade
individuals prohibited from possession from attempting to purchase firearms. According
to data collected by the FBI, nationally, more than 106,000 gun sales to prohibited people
were denied in 2015 due to failed NICS background checks. 81 In 2013, over 1,500
Washington purchasers were denied due to a felony criminal history, and 1,400 more
were turned away due to a domestic violence history or active protection orders. 82

14

 Very often, these attempts (sometimes dubbed “lie-and-try”) result in no follow-up law
enforcement action. However, so long as knowledge of the prohibition can be proven, an
attempted purchase by a prohibited person could constitute the Washington crime of
Attempted Unlawful Possession of a Firearm in either the First or Second Degree. The
difference in the degree of the crime would depend on the reason the person was
prohibited from firearm possession. Attempted Unlawful Possession of a Firearm in the
First Degree is a class C felony, and includes persons previously convicted or found not
guilty by reason of insanity of any statutorily-defined “serious offense.” 83 Attempted
Unlawful Possession of a Firearm in the Second Degree is a gross misdemeanor, and
pertains to a list of other prohibited persons such as felons who were not convicted of
“serious offenses,” misdemeanor domestic violence offenders, and persons who have
been involuntarily committed for mental health treatment. 84
In addition, knowingly making a false statement on the background check application
constitutes False Swearing, a gross misdemeanor under state law. It is also a federal
crime to lie on the federal background check form when attempting to purchase a
firearm. 85 Thus, if notified of the failed purchase, law enforcement would have the ability
to further investigate or arrest the attempted purchaser, but federal or state enforcement is
rare.
Detection of unlawful attempts to purchase is complicated in Washington by the legal
distinction between pistols and long guns, which entirely removes local law enforcement
from the background check process for attempted purchases of long guns. Background
checks for long gun purchases are conducted by the dealer. The dealer is informed that
the person is prohibited from purchasing the long gun, but the dealer is not told the
reason for the denial and is not required to report the denial to authorities.
A few states have adopted measures focused on unlawful purchase attempts. These states
are reporting significant results. Oregon recently enacted a provision that permits the
name of the purchaser and other information concerning a failed background check to be
reported to the appropriate law enforcement agency. 86 This requirement was strengthened
in 2016 by Executive Order of Governor Kate Brown. 87 The Order mandates that the
attempted purchase information be communicated to local law enforcement officials in
certain cases, including attempts to purchase by persons on criminal parole or probation,
and attempts by persons on pretrial release in a criminal case.
Similarly, since 2014 Pennsylvania State Police are required to send denial information to
the local enforcement entity closest to the purchaser’s location. That year, 367 attempted
purchasers were convicted as a result of this coordinated effort. 88 These states also have
created specific criminal offenses related to false statements made during attempts to
purchase firearms. 89 The FBI is also partnering with the U.S. Digital Service to
modernize its systems, including potential notification of local law enforcement when a
prohibited person attempts to purchase a firearm. 90

15

 Recommendation: Adopt a process to ensure that all purchase attempts denied
as a result of a background check are shared with local law enforcement agencies
for purposes of follow-up and potential enforcement. Federal authorities should
be requested to contact state or local law enforcement when a denial occurs in the
federal background check system.
IX.

FIREARMS ACCESS BY CHILDREN

Unsafe firearms storage practices have been found to contribute to gun violence death
and injury, particularly among vulnerable populations such as children. One published
study found that over 1.69 million minors in the United States live in homes with loaded
and unlocked firearms. 91 Another study determined that in “homes with children and
firearms, 55% were reported to have 1 or more firearms in an unlocked place.” 92 In
Washington, over 24,000 youth were determined to be living with loaded and unlocked
firearms. 93 A study including a significant number of Washington residents concluded
that the four “practices of keeping a gun locked, unloaded, storing ammunition locked,
and in a separate location are each associated with a protective effect and suggest a
feasible strategy to reduce these types of injuries in homes with children and teenagers
where guns are stored.” 94
In 2014, the Washington Supreme Court considered the question of imposing criminal
liability in a Kitsap County case where an unsecured firearm was taken by a child from
the home of his mother’s boyfriend. 95 The child took the pistol to his elementary school
where it was discharged, wounding a classmate. While the juvenile was later convicted of
Reckless Endangerment, prosecutors also charged the gun owner with felony assault with
criminal negligence for causing bodily harm to another person with a weapon. 96 The
court ultimately concluded that the crime could not be pursued because the gun owner
lacked the necessary intent to cause the victim harm.
Twenty-eight states currently have laws designed to prevent children from accessing
firearms. 97 Washington is not among them. These laws often criminalize the failure to
secure a firearm if the owner has reason to know it could be accessed by a minor. 98
Recent research finds these laws are associated with substantial declines in rates of gun
carrying among high school students, fewer reports of being threatened or injured with a
weapon on school property, and decreased rates of school absences due to feeling
unsafe. 99
In both 2015 and 2016, Washington legislators introduced a bill that would create the
new crime of Child Endangerment Due to Unsafe Storage of a Firearm. In neither
instance did the bill come to a vote. Under the Washington proposal, which mirrors
Florida’s law, a person is guilty of the crime if he or she stores or leaves a firearm in a
location where they know, or reasonably should know, that a child under the age of 18 is
likely to gain access, and the child either: causes personal injury or death with the
firearm, in which case the offense is a gross misdemeanor; or causes the firearm to
discharge, exhibits the firearm in a public place or in an angry, threatening, or careless
manner, or uses the firearm in a crime, in which case the offense is a misdemeanor. 100

16

 Recommendation: Adopt a criminal penalty for firearm owners who fail to
secure a firearm, if the owners have reason to know the firearm could be accessed
by a minor, and the firearm causes injury or death or otherwise endangers public
safety.
Recommendation: Consider ways to incentivize the purchase or sale of gun
safety equipment (such as lock boxes or trigger guards) for all firearm owners.

17

 APPENDIX
Comparison of Federal and State Firearms Prohibitions
Federal Prohibitions

State Prohibitions

1.

Conviction punished by greater than one year. 18 U.S.C. §
922(g)(1); 27 C.F.R. § 478.32(a)(1).

Felony conviction. RCW 9.41.040(1)(a) and (2)(a)(i).

2.

Fugitive from justice. 18 U.S.C. § 922(g)(2); 27 C.F.R. §
478.32(a)(2).

Outstanding warrants may enable a 30-day hold on pistol transfers, with
subsequent extensions by court order. RCW 9.41.090(4)(d). State
background check includes “wants and warrants.”

3.

Unlawful user or addicted to any controlled substance. 18
U.S.C. § 922(g)(3); 27 C.F.R. § 478.32(a)(3).
*Temporary restriction for one year following unlawful use
“event.”

Felony conviction for violation of the uniform controlled substances act.
RCW 9.41.040(2)(a)(i).

4.

Adjudicated as a mental defective or committed to a mental
institution. 18 U.S.C. § 922(g)(4); 27 C.F.R. § 478.32(a)(4).

Not guilty by reason of insanity findings; involuntary mental health
commitments. RCW 9.41.040(1)(a), (2)(a)(i) and 2(a)(iii).

5.

Illegal or alien unlawfully present in the U.S. 18 U.S.C. §
922(g)(5); 27 C.F.R. § 478.32(a)(5)(i).

Class C felony for non-citizen to possess firearms if not a lawful
permanent resident, has obtained an alien firearms license, or is otherwise
not subject to the alien license requirements. RCW 9.41.171.

6.

Dishonorable discharge from the U.S. Armed Forces. 18
U.S.C. § 922(g)(6); 27 C.F.R. § 478.32(a)(6).

Not addressed by state law.

7.

Renounced U.S. Citizenship. 18 U.S.C. § 922(g)(7); 27 C.F.R.
§ 478.32(a)(7).

Not addressed by state law.

8.

Subject to a restraining order for harassing, stalking, or
threatening an intimate partner. 18 U.S.C. § 922(g)(8)(A); 27
C.F.R. § 478.32(a)(8)(ii).
*Temporary restriction so long as order remains in place.

Subject to various court orders. See RCW 9.41.040(2)(a)(ii).

9.

Convicted of a misdemeanor domestic violence crime. 18
U.S.C. § 922(g)(9); 27 C.F.R. § 478.32(a)(9).

Various domestic violence crimes. See RCW 9.41.040(2)(a)(i).

10. Persons under indictment or information for a crime punishable
by a year or more imprisonment. 18 U.S.C. § 922(n).

Persons free on bond or personal recognizance pending trial, appeal, or
sentencing for a “serious offense.” RCW 9.41.040(2)(a)(v).

18

 END NOTES
1

In Washington, a person must be at least 18 years old to purchase a firearm. RCW 9.41.040(2)(iv).
Constitutional questions regarding reasonable restrictions on firearm possession have long been settled.
Morris v. Blaker, 118 Wn.2d 133, 144, 821 P.2d 482 (1992) (holding that the Wash. Const. art. I, § 24 right
of possession by an individual is not absolute and is subject to reasonable regulation by the State under its
police power); District of Columbia v. Heller¸ 554 U.S. 570, 626-27 (2008) (“[N]othing in the [Court’s]
opinion [regarding the Second Amendment] should be taken to cast doubt on longstanding prohibitions on
the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws imposing conditions and qualifications
on the commercial sale of arms.”).
3
The Gun Control Act is codified at 18 U.S.C. §§ 921-931 (see also 27 C.F.R. Part 478).
4
18 U.S.C. § 922(g)(8), (9).
5
18 U.S.C. § 924(a)(2).
6
RCW 9.41.
7
RCW 9.41.040(1), (2).
8
RCW 9.41.040(1)(b), (2)(b); RCW 9A.20.021.
9
18 U.S.C. §§ 922(a)(6), 924(a)(1)(A); RCW 9.41.070(12), .090(6), .173(8).
10
18 U.S.C. § 927.
11
See Hines v. Davidowitz, 312 U.S. 52, 67 (1941); Florida Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132, 142-43 (1963).
12
For example, RCW 9.41.070(4) directs law enforcement agencies to provide the following warning on
concealed pistol licenses: “CAUTION: Although state and local laws do not differ, federal law and state
law on the possession of firearms differ. If you are prohibited by federal law from possessing a firearm, you
may be prosecuted in federal court. A state license is not a defense to a federal prosecution.” Similar
language is required for dealer deliveries (RCW 9.41.090(5)), and alien firearms permits (RCW
9.41.173(4)).
13
27 C.F.R. § 478.11 (definition of “adjudicated as a mental defective”). In response to a 2013 Presidential
directive (https://www.whitehouse.gov/the-press-office/2013/01/16/presidential-memorandum-improvingavailability-relevant-executive-branch) that federal agencies increase reporting of records for use in
background checks, this year the Social Security Administration published a proposed rule
(https://www.federalregister.gov/documents/2016/05/05/2016-10424/implementation-of-the-nicsimprovement-amendments-act-of-2007) classifying certain recipients of disability benefits as prohibited
and referring their names and identifying information to the background check system. Such persons must
be over the age of 18, receive a federal disability benefit based on mental impairment (which includes
autistic disorders), and a representative payee must receive their federal payments. The disability
community, including the National Disability Council, has come out in strong opposition to the proposed
rule. In its comments, the Council stated: “There is, simply put, no nexus between the inability to manage
money and the ability to safely and responsibly own, possess or use a firearm.”
https://www.regulations.gov/document?D=SSA-2016-0011-3852. The comment period on the proposed
rule closed on July 5, 2016. It is unknown when the Social Security Administration will issue the final rule
or what conditions it will ultimately contain.
14
RCW 11.88.
15
27 C.F.R. § 478.11 (definition of “committed to a mental institution”) (“The term does not include a
person in a mental institution for observation or a voluntary admission to a mental institution.”).
16
Cal. Welf. & Inst. Code § 5150. Section 8103(f) of the same California code, in turn, provides that when
a person is admitted to a mental health facility under Section 5150, the person may not own, possess or
control a firearm for five years after release from the facility. Periods of detention for observation are not
subject to a hearing; therefore no due process is available. A hearing is available after the detention to
contest the firearm prohibition under a preponderance of the evidence standard. The state bears the burden
of proof.
17
People v. Jason K., 188 Cal. App. 4th 1545 (2010), cert. denied, 564 U.S. 1009 (2011).
18
United States v. Rehlander, 666 F.3d 45 (1st Cir. 2012).
2

 19

S.B. 5643, 64th Leg., Reg. Sess. (Wash.2015), http://lawfilesext.leg.wa.gov/biennium/201516/Pdf/Bills/Senate%20Bills/5643.pdf.
20
“The [existing] rules are both over- and under-inclusive, insofar as they prohibit guns from many people
at very low risk of violence while failing to identify others who are at high risk.” Jeffrey W. Swanson et al.,
Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does it Prevent
Suicides? 3 (forthcoming in Law & Contemp. Probs., submitted Aug. 24, 2016),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2828847.
21
Conn. Gen. Stat. § 29-38C.
22
Dan Friedman, Laws That Allow for Temporarily Removing Guns from High-Risk People Linked to a
Reduction in Suicides, The Trace, Sept. 8, 2016, https://www.thetrace.org/2016/09/gun-violencerestraining-order-suicide-reduction-connecticut/.
23
18 U.S.C. § 922(g)(3).
24
27 C.F.R. § 478.11 (definition of “unlawful user of or addicted to any controlled substance”).
25
Id. (definition of “current use”).
26
18 U.S.C. § 812(c): Schedule I, (c)(10); 21 C.F.R. § 1308.11(d)(23).
27
This form can be found at https://www.atf.gov/firearms/docs/4473-part-1-firearms-transaction-recordover-counter-atf-form-53009/download.
28
Letter from Arthur Herbert, ATF, Assistant Director, Enforcement Programs and Services, to All Federal
Firearms Licensees (Sept. 21, 2011), https://www.atf.gov/file/60211/download.
29
United States v. Dugan, 657 F.3d 998 (9th Cir. 2011).
30
Wilson v. Lynch, No. 14-15700, 2016 WL 4537376 (9th Cir. Aug. 31, 2016).
31
RCW 9.41.070(1)(a).
32
See RCW 69.51A.230(1)(d) (limiting disclosures to law enforcement authorities to those engaged in bona
fide specific investigation of marijuana-related activity that is illegal under state law), .240; WAC 24671.080.
33
But see RCW 9.41.300(1)(d) (prohibiting firearm possession in portions of an establishment designated
by the state liquor control board as off-limits to persons under the age of 21).
34
Memorandum from James M. Cole, Deputy Attorney General, U.S. Dep’t of Justice, to All United States
Attorneys, RE: Guidance Regarding Marijuana Enforcement (Aug. 29, 2013), at 2, 4,
https://www.mpp.org/doj-memo-on-guidance-regarding-marijuana-enforcement/.
35
DJ Summers, Murkowski wants feds to address rules that prevent legal-marijuana users from buying
guns, Alaska Dispatch News, May 17, 2016, https://www.adn.com/cannabis-north/article/murkowskiwants-feds-address-law-prevents-users-legal-marijuana-buying-guns/2016/04/04/.
36
RCW 70.96A.
37
Engrossed Third Substitute H.B. 1713, 64th Leg., 1st Sp. Sess. (Wash. 2016), enacted as Laws of 2016,
64th Leg., ch. 29.
38
See Gerald E. DeLoss & Patricia A. Markus, Clear and Present Danger: Gun Violence and
Confidentiality of Behavioral Health Information in the Crosshairs (Am. Health Lawyers Ass’n’s
Physicians & Hosps. Law Inst., Feb. 3, 2015),
https://www.healthlawyers.org/Events/Programs/Materials/Documents/PHS15/gg_deloss_markus.pdf.
39
RCW 9.41.010(4).
40
18 U.S.C. § 922(d); 27 C.F.R. § 478.99.
41
27 C.F.R. §§ 478.73, .74.
42
18 U.S.C. § 924(a)(2).
43
RCW 9.41.080.
44
RCW 9.41.113.
45
RCW 9.41.115; RCW 9A.20.021(2).
46
Austin Jenkins, Washington Murder Case Results In Gun Charge Under 2014 Background Check Law
(Nw. Pub. Radio, Oct. 17, 2016), http://nwpr.org/post/washington-murder-case-results-gun-charge-under2014-background-check-law.
47
18 U.S.C. §§ 922(a)(6), 924(a)(1)(A); RCW 9.41.070(12), .090(6), .173(8).
48
ATF Form 4473 question 11(a), https://www.atf.gov/firearms/docs/4473-part-1-firearms-transactionrecord-over-counter-atf-form-53009/download. The instructions for question 11(a) also provide specific
examples.

 49

Alex Yablon, Amid Dearth of Federal Action on Straw Buyers, States Forge Ahead on Their Own, The
Trace, Aug. 21, 2016, https://www.thetrace.org/2015/08/straw-purchases-law-atf-gun/.
50
Ambramski v. United States, 134 S. Ct. 2259 (2014).
51
NICS regulations provide several avenues for an individual to challenge the denial of a firearm transfer
or seek the correction of erroneous information entered into NICS. 28 C.F.R. § 25.10. In 2015, nationally
106,556 denials came from NICS checks and 32,040 denials were appealed. Of those, 3,625 denials were
overturned. 2015 NICS Operations Report 12, 14, https://www.fbi.gov/file-repository/2015-nics-opsreport.pdf.
52
18 U.S.C. § 922(t)(1).
53
A tragic, and recent, example of a “default approval” appears to be the Emanuel AME church shooting in
Charleston, S.C., in June 2015. Families of the nine victims claim that authorities mishandled drug
possession records of alleged shooter Dylan Roof. In 2015, Roof was arrested, admitted to unlawfully
possessing prescription drugs, and was charged but not convicted of possession of a controlled substance
without a prescription. The NICS examiner never saw the police report, because the wrong arresting agency
was listed on the records sheet. Had the examiner seen the correct police report, Roof’s purchase in April
2015 would have been denied. Instead, the three-day period to complete the background check under
federal law elapsed, and the dealer elected to transfer the firearm without the completed background check.
Families of the victims have filed wrongful death lawsuits against the federal government for the
consequences of the alleged clerical error. According to news reports, FBI Director James Comey admitted
to failures in performing the background check. Associated Press, Charleston church shooting victims sue
FBI over gun buy, New York Post, July 1, 2016, http://nypost.com/2016/07/01/charleston-church-shootingvictims-sue-fbi-over-gun-buy/; Jennifer Berry Hawes, Emmanuel victims’ families, survivors suing feds
over background check error, Post and Courier e-Edition, June 30, 2016,
http://www.postandcourier.com/archives/emanuel-victims-families-survivors-suing-feds-over-backgroundcheck-error/article_f4644c59-0535-556f-8a21-3face2eff5bc.html.
54
Bureau of Justice Statistics Bulletin, Background Checks for Firearm Transfers, 2005, at 7 (Nov. 2006),
http://bjs.gov/content/pub/pdf/bcft05.pdf.
55
2015 NICS Operations Report 14, https://www.fbi.gov/file-repository/2015-nics-ops-report.pdf.
56
RCW 9.41.092. “[F]or sales and transfers of pistols if the purchaser or transferee does not have a valid
permanent Washington driver’s license or state identification card or has not been a resident of the state for
the previous consecutive ninety days, then the time period in this subsection shall be extended from ten
business days to sixty days.” RCW 9.41.092(2).
57
2015 NICS Operations Report 3 (Participation Map), https://www.fbi.gov/file-repository/2015-nics-opsreport.pdf.
58
In 1993, Congress passed the Brady Handgun Violence Prevention Act (the Brady Act). The Brady Act
amended the Gun Control Act and provided a method for blocking transfers to prohibited persons. From
1994 to 1998, the “interim” provisions of the Act were put in place requiring dealers to request background
checks of prospective purchasers conducted by the chief law enforcement officer of the jurisdiction where
the licensee sold firearms. See 18 U.S.C. § 922(s). The “permanent” provisions of the Brady Act took effect
in 1998 with the implementation of NICS. See 18 U.S.C. § 922(t). From the inception of the NICS to
December 31, 2015, over 225 million transactions were processed through the system. 2015 NICS
Operations Report, at iii, https://www.fbi.gov/file-repository/2015-nics-ops-report.pdf.
59
RCW 9.41.047.
60
Removing DSHS from the NICS reporting process also resolved any concern that such a transmission
might run afoul of the federal Health Insurance Portability and Accountability Act (HIPAA). Courts, unlike
DSHS, are not considered “covered entities” under the federal privacy law. Only recently, as part of federal
efforts to address states’ concerns about submitting records, has the HIPAA rule been amended to create an
exception for NICS submissions. See 81 Fed. Reg. 382 (Jan. 6, 2016) (amending 45 C.F.R. § 164.512(k)).
61
Some concern has been expressed that concealed pistol license records do not include a current address
and that, therefore, licensees should be required to notify local law enforcement when they move. In fact,
local law enforcement have ready access to other databases which should have a current address (such as
the driver’s license database), so it is not clear that this is actually a problem in practice.
62
The Brady Act does not require states to submit information on prohibited persons to NICS. The Report
to the President on Issues Raised by the Virginia Tech Tragedy, note 7 (June 13, 2007),
https://www.justice.gov/archive/opa/pr/2007/June/vt_report_061307.pdf. NICS rules provide that a

 “limited number” of authorized state and local agencies will voluntarily contribute records. 28 C.F.R. §
25.4. In addition, federalism principles enunciated in Printz v. United States, 521 U.S. 898 (1997),
constrain mandatory participation, at least under Commerce Clause principles.
63
Pub. L. No. 110-180 (Jan. 8, 2008).
64
ATF Form 3210.12 (Denied) and Criteria List from Chad Yoder, ATF, Acting Chief, Firearms Program
Division, to Christine Gregoire, Governor, State of Washington (Oct. 1, 2009) (on file with the Washington
Office Of Attorney General).
65
See RCW 9.41.040(4)(a).
66
See RCW 9.41.047(3)(a).
67
Becki Goggins (SEARCH) & Anne Gallegos (Nat’l Ctr. for State Courts), State Progress in Record
Reporting for Firearm-Related Background Checks: Mental Health Submissions 5 (Feb. 2016),
https://www.ncjrs.gov/pdffiles1/bjs/grants/249793.pdf.
68
RCW 9.41.800.
69
RCW 9.41.040.
70
RCW 9.41.047(1)(b).
71
RCW 9.41.047(1)(a).
72
Substitute H.B. 1612, 63d Leg., Reg. Sess. (Wash. 2013), enacted as Laws of 2013, 63d Leg., Reg. Sess.,
ch. 183.
73
RCW 9.41.010(8).
74
RCW 9.41.330, .333.
75
RCW 9.41.335(2).
76
RCW 9.41.800 (1) and (2). Engrossed Substitute H.B. 1840, 63d Leg., Reg. Sess. (Wash. 2014), enacted
as Laws of 2014, 63d Leg., Reg. Sess., ch. 111.
77
RCW 9.41.804.
78
RCW 9.41.802.
79
RCW 9.41.810.
80
Seattle.gov, Council Connection, Health Board Approves Coordination of Firearm Surrender in
Domestic Violence Situations (post dated Mar. 17, 2016), http://council.seattle.gov/2016/03/17/healthboard-approves-coordination-of-firearm-surrender-in-domestic-violence-situations/ (last visited Oct. 25,
2016). Also in March 2016, the King County Board of Health similarly adopted a resolution calling on
“Public Health–Seattle and King County to seek appropriate funding and convene a process of interjurisdictional collaboration” to improve compliance with the proof of surrender requirements. Resolution
16-04, at 3, http://www.kingcounty.gov/depts/health/board-of-health/~/media/depts/health/board-ofhealth/documents/resolutions/BOHResolution1604.ashx.
81
2015 NICS Operations Report 12, https://www.fbi.gov/file-repository/2015-nics-ops-report.pdf.
82
Joseph O’Sullivan, Background check denials rise for would-be pistol buyers, Seattle Times, Oct. 11,
2014, http://www.seattletimes.com/seattle-news/background-check-denials-rise-for-would-be-pistolbuyers/.
83
RCW 9.41.040(1)(a) and (b); RCW 9A.28.020(3)(c).
84
RCW 9.41.040(2)(a) and (b); RCW 9A.28.020(3)(d).
85
18 U.S.C. § 922(a)(6); Ronald J. Frandsen, Enforcement of the Brady Act, 2010: Federal and State
Investigations and Prosecutions of Firearm Applicants Denied by a NICS Check in 2010, at 3 (Aug. 2012),
https://www.ncjrs.gov/pdffiles1/bjs/grants/239272.pdf.
86
Or. Rev. Stat. § 166.412(7).
87
Exec. Order No. 16-12: Enhancing Gun Safety in Oregon (July 15, 2016),
https://drive.google.com/file/d/0BzMvBq_LbaUUeHJHUnh1dGZmVk0/view.
88
Pennsylvania State Police, 2014 Firearms Annual Report 7, http://www.psp.pa.gov/firearmsinformation/Firearms%20Annual%20report/Pennsylvania_State_Police_2014_Firearms_Annual_Report.pd
f.
89
18 Pa. Cons. Stat. § 6111(g)(4); Or. Rev. Stat. § 166.416.
90
Press Release, White House, FACT SHEET: New Executive Actions to Reduce Gun Violence and Make
our Communities Safer (Jan. 4, 2016), https://www.whitehouse.gov/the-press-office/2016/01/04/fact-sheetnew-executive-actions-reduce-gun-violence-and-make-our.

 91

Catherine A. Okoro et al., Prevalence of Household Firearms and Firearm-Storage Practices in the 50
States and the District of Columbia: Findings from the Behavioral Risk Factor Surveillance System, 2002,
116 Pediatrics e370 (Sept. 2005), http://pediatrics.aappublications.org/content/116/3/e370.
92
Mark A. Schuster et al., Firearm Storage Patterns in US Homes With Children, 90 Am. J. Pub. Health
588, 590 (Apr. 2000), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1446208/pdf/10754974.pdf.
93
Okoro et al. tbl. 2 supra note 88.
94
David C. Grossman et al., Gun Storage Practices and Risk of Youth Suicide and Unintentional Firearm
Injuries, 293(6) J. Am. Med. Ass’n 707, in Abstract (Mar. 2005),
https://www.researchgate.net/publication/8030815_Gun_Storage_Practices_and_Risk_of_Youth_Suicide_a
nd_Unintentional_Firearm_Injuries.
95
State v. Bauer, 180 Wn.2d 929, 329 P.3d 67 (2014).
96
RCW 9A.36.031.
97
Kaiser Family Found., States with Firearm Laws Designed to Protect Children (Timeframe: 2014),
http://kff.org/other/state-indicator/firearms-and-children-legislation/ (last visited Oct. 25, 2016).
98
See, e.g., Fla. Stat. § 790.174; Cal. Penal Code § 25100.
99
D. Mark Anderson & Joseph J. Sabia, Child Access Prevention Laws, Youth Gun Carrying, and School
Shootings, IZA Discussion Paper Series No. 9830 (Mar. 2016), http://ftp.iza.org/dp9830.pdf.
100
House Judiciary Comm., Bill Analysis, H.B. 1747, at 2, 64th Leg. (Wash. 2016).