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More on the Austin Gun Show Controversy

Howard Nemerov provides us with some more information on the topic. Based on the information Howard has provided it would seem like they did indeed begin a nuisance abatement process against the landlord that was subleasing the property to a gun show. This could probably raise some preemption issues under Texas law, but the problem is this is far from a clear cut case, as it appears the promoter originally agreed to bar private sales at his shows as a condition of the lease, and the show was cancelled at the request of the landlord.

But also interesting is ATF is possibly looking at prosecuting a private seller in this case. Back to Howard:

The unlicensed seller allegedly set up a table at the gun show with a sign notifying buyers that all sales were cash, and that there would be a surcharge for buyers to go through a background check, apparently through a nearby licensed dealer. The background check never occurred, and the sale was detected. The seller was interviewed and released by BATFE, though Agent Reyes said they may file charges against him, because he had already been notified that all sales must go through a licensed dealer and should have become suspicious over the buyer’s desire to avoid a background check.

This is very clever, because I think this charge is going to stick if they pursue it. The law says it is unlawful to sell a firearm to someone a seller has reasonable cause to believe is prohibited. In this case the “reasonable cause to believe” is the buyer’s wish to evade the background check requirement, a requirement that was technically put in place by a private agreement between the landlord and the promoter. While a private sale isn’t unlawful, the buyer’s desire to skirt the show’s policy could be used to raise the argument that the seller should have known.

The real question in all this, and it this is a detail of law I can’t readily answer, is whether the promoter would have a cause of action against APD for bringing the nuisance abatement process against the landlord over the gun show. The lease agreements complicate this. I suspect the answer is probably no, and finding a new venue is the show’s only path forward at this point. I suspect if the APD had just gone through nuisance abatement with a reluctant landlord, and without a prior agreement about private sales, the landlord or the show could raise a preemption argument in court to fight the abatement process, as that would be a case under Texas preemption law that would amount to enforcement of a law that interfered with the sale and transfer of firearms. The private agreement was in place before law enforcement stepped in, and the show promoter wasn’t living up to it. It’s hard to raise a preemption argument when it’s an agreement between private parties, even if the APD and ATF coaxed the landlord into enforcing the provisions of the lease, and ultimately canceling the show.

21 Responses to “More on the Austin Gun Show Controversy”

  1. Monty says:

    If the check was free, I’d agree with you 100%, the wrinkle is paying extra for the check. Knowing you will pass the check, how much would you be willing to pay to have it done anyway if you didn’t need to? Still doesn’t look good, but its not as clear cut.

  2. Sebastian says:

    That would be the obvious defense “The guy told me that he was just short on cash and didn’t have the money for the background check, so I waived it.”

    So obvious, I would think they probably have more information about how the transaction went down.

  3. Mulligan says:

    if the PD/ATF officers were there to address a violation of paperwork agreements between landowner/tenant/vendors then the issue isn’t really gun related. The “for sale items” could be lemonade or bubble gum and the issue of the lease agreement would remain.

  4. Sean Sorrentino says:

    I’m kind of hoping that the guy will publicly tell the ATF to go F&*! themselves and stick to enforcing the law.

  5. FatWhiteMan says:

    “This is very clever, because I think this charge is going to stick if they pursue it. The law says it is unlawful to sell a firearm to someone a seller has reasonable cause to believe is prohibited. In this case the “reasonable cause to believe” is the buyer’s wish to evade the background check requirement, a requirement that was technically put in place by a private agreement between the landlord and the promoter. While a private sale isn’t unlawful, the buyer’s desire to skirt the show’s policy could be used to raise the argument that the seller should have known.”

    I disagree. It would be a civil matter since the only thing in question was the civil agreement. Unless the buyer actually told the seller he wished to avoid the background check because he is a prohibited person, then the sale was good per law. I also doubt the buyer really was a prohibited person which also means that no law was broken. Of course it is easy to armchair from several states away, not knowing all the facts. That’s what the internet is for and I’m pretty good at it :)

    I wish to avoid background checks at gun shows every time I legally can and I am not at all prohibited.

  6. Sebastian says:

    The standard is reasonableness, not absolute knowledge. So he doesn’t have to tell you he’s prohibited, it’s just circumstances would have be such that a reasonable person would have had cause to believe the person was prohibited. It’s not a civil matter since it’s a criminal act to tell someone a firearm who you reasonably believe is a prohibited person. So ATF is basically arguing because the guy wanted to skirt the background check, that he should have known he was prohibited.

    That’s not to say that standard will work, but I would say the chances are good, unless the guy can show the surcharge was the sticking point. But we don’t know what information ATF has on the transaction.

  7. Richard Allen says:

    I would bet that the overwhelming reason that gun show patrons don’t want to go through the background check is to avoid being in the government data base of gun purchasers. I would assume that this, not evading the prohibited person law would be the reason.

  8. Fiftycal says:

    So what “charge” are the jackbooted thugs from the PD & ATF going to file? Failure to follow the terms of a sub-sub-sub lease? As to a “probable cause”, the request to not go thru a background check has the same effect as denying a cop on the side of the road “permission” to search your car. “He didn’t want me to search his car” is NOT a “probable cause” to get a warrant.

  9. Sebastian says:

    Fiftycal:

    It’s illegal to sell a gun to someone a reasonable person would have reason to believe is prohibited from purchasing or possessing a firearm. ATF, in this case, is considering whether the purchaser’s indication that he wished to avoid the background check can amount to “reasonably should have known.”

  10. Laughingdog says:

    I don’t think it would be hard to give explanations for avoiding the background check that are reasonable. As was mentioned earlier, the extra fee is one good reason. For me, I’d always prefer to skip the background check, because I know I’d pass it, which makes it an unnecessary waste of time. Considering how much longer those checks take at gun shows, because of the line, it’s easily an hour of my life gone needlessly.

  11. mikeb302000 says:

    Background checks on all gun sales is the strongest argument the gun control people have. How you guys can keep resisting it is incredible. You insist on denigrating the poll we’ve been talking about lately, but the fact remains many gun owners are in agreement. And I’d say most non gun owners. It’s only a matter of time before common sense prevails.

  12. Bob S. says:

    MikeB302000,

    The law stated you shouldn’t have been able to own the firearms you did illegally….yet nothing stopped you, did it?

    We resist it because we know that “universal background checks” won’t come close to solving the problem of criminals doing bad things.

    What is to stop a criminal from employing someone to buy firearms for him? Nothing, then you need “lost or stolen” laws to keep the straw purchaser from claiming the firearm was lost.

    And it doesn’t even address the issue of how the government will know when a transfer has taken place — so you need universal registration — another law required.

    Of course, people won’t register their guns, now they are criminals for merely possessing something that was previously legal.

    How is it “common sense” to keep trying to push laws that will not be followed by the criminals??

    Heck, let’s be clear — You didn’t follow the laws in place at the time, did you? Yet here you are advocating more laws that criminals won’t follow.

    This is especially ironic considering you say you want this for “public safety” yet you can show no evidence of where restrictive gun control laws have made people safer!!

    Has it made the people of the United Kingdom safer???

  13. What is it with progressives that break the very laws they want to be even more illegal?

  14. Weer'd Beard says:

    Yep, Bob has it, I’m not paying extra money (all the shops around here charge $20 just to transfer a gun to somebody, the one guy in DC charges $150 for his services, I’m sure some charge more, but $20-$50 is about standard….and with universal checks, flyover country where most people only go to a gun shop a few times a year, if ever, the few shops in the area could get away with charging astronomical fees when somebody wants to give a family member their first gun, or a present, or help a friend out who may need a defensive arm….and god forbid what would happen if somebody dies and wills out their large collection!)

    And Bob’s also right that the only way this could be policed is through registration.

    Nope, we’re not going to do it, not when it won’t do anything to criminals like you.

  15. Weer'd Beard says:

    http://weerdbeard.livejournal.com/628688.html

    Summary. Yes Universal Background checks ARE your best argument. They’re also a loosing argument as they don’t do anything. So you loose again, MikeB.

  16. Background checks on all gun sales is the strongest argument the gun control people have.

    Which means your position is a losing one, as you seem to think it’s just peachy that violent felons can roam the streets to predate at will just as long as they can’t get an eeevil gun…

  17. mikeb302000 says:

    Pistolero said, “you seem to think it’s just peachy that violent felons can roam the streets to predate at will .”

    Where in the world to you get that? What I’m saying is those violent felons shouldn’t be able to buy guns like they can now in private sales. The background check rule would compel the seller to not “inadvertently” sell the gun to a prohibited person.

    Why would you be against that?

  18. Weer'd Beard says:

    “What I’m saying is those violent felons shouldn’t be able to buy guns like they can now in private sales.”

    Nope, they can’t. Federal Felony (not to mention what ever local laws might be violated) to sell a firearm to a felon.

    Got any other Ripe ones, Mikey? Also are you implying you bought your guns through an illegal private sale?

  19. Bob S. says:

    What I’m saying is those violent felons shouldn’t be able to buy guns like they can now in private sales.

    Do you think that violent felons are just going to give up and not get firearms because they can’t illegally buy them? (something you might know alot about, eh?)

    I don’t think they are.

    So, let’s look at the possibilities
    1.) Violent felons will realize that we are really, really, really serious but them not using firearms and give up their life of crime.
    2.) Violent felons will be slightly thwarted by the laws – pay people with a clean background to buy guns for them — those making MORE CRIME, not less
    3.) Violent felons will realize that people own firearms and start breaking into MORE HOUSES searching for firearms to use in other crimes — thus CREATING MORE CRIME, not less.
    4.) Violent felons will buy firearms smuggled in (if they bring in TONS of drugs how hard are a couple thousand handguns) from other countries — and the criminals selling the smuggled firearms won’t ask for a background check on their customer — resulting in even MORE Crime (smuggling, illegal sales)

    Now out of the 4, which do you think is possible and probable, eh MikeB302000?

    Again, why don’t you tell us how you purchased your illegally owned firearms….that might help us tighten the laws so that criminals can’t get firearms.

  20. Where in the world to you get that?

    I get that from the fact that you and your anti-freedom ilk do not say WORD ONE about keeping those violent felons behind bars as opposed to letting them out. If these people are so dangerous they allegedly can’t be trusted with guns, then WHY ARE THEY NOT STILL IN JAIL? WHAT IS SO HARD TO UNDERSTAND ABOUT THIS?

  21. JimNY says:

    Not to get off topic but I figure this would be a great website to ask. Can a sworn police officer from any agency in New York purchase handguns from PA gun shows and take them home? I was told you can find real good deals. Im tired of being ripped off at our local gun shops. Remember HR-218 signed by Bush! Any info will be greatly appreciated and passed on.

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