2011-12-02 / Top Stories

Gun Show Undercover Sting

Attorney General Eric T. Schneiderman has announced that his office has filed criminal charges against 10 gun sellers from across New York State who violated the state’s background check requirement for the sale of firearms at gun shows. “This investigation exposed both a flagrant and dangerous disregard of the law that jeopardizes the public’s safety and the need to immediately strengthen the state’s existing gun show laws to better protect all New Yorkers,” said a Schneiderman spokesperson.

As a result of the investigation Schneiderman’s office is also sending out cease and desist letters to gun show operators based upon the violations found to date. The letters direct them to comply with the law and to cease practices that permit gun sales without background checks. Additionally, the Attorney General issued subpoenas to several gun show operators seeking documentation and testimony related to the respective gun show events. The Attorney General’s investigation is ongoing.

“The illegal sale of guns at gun shows endangers the public by giving felons, terrorists and the dangerously mentally ill an open and anonymous marketplace to buy guns without a background check. Our investigators found a blatant disregard for the law where sellers made the conscious decision to sell deadly weapons to individuals who admitted they would not pass a background check,” said Schneiderman. “Operation Background Bust not only exposed major flaws in the gun show laws but also proved how ‘off the books’ operations jeopardize public safety by making it easy for guns to fall into the wrong hands. In addition to filing criminal charges against the sellers, and demanding that the gun show operators cease and desist from engaging in illegal practices, my office plans to work with the Legislature to hold gun show operators liable when guns are sold at their gun shows without the required background check.”

The Attorney General’s eight-month investigation into the practices of vendors at gun shows throughout the State revealed that on many occasions, weapons sellers at gun shows failed to ensure that a National Instant Criminal Background (NICS) check was conducted on the prospective gun buyer, as required by state law. These illegal sales, classified as misdemeanors, took place even after undercover investigators told the gun sellers that they had orders of protection against them and could not pass a background check.

The investigation further exposed a gap in current law which holds only the individual gun seller, not the gun show operator, legally accountable for failing to ensure that a background check on the prospective gun purchaser has been conducted. As the investigation clearly revealed, this “honor system” for conducting background checks at gun shows is not working and must be supplemented with a system that also holds the gun show operator liable when a gun sale takes place without the required NICS background check.

Beginning in March of this year, undercover officers from the Attorney General’s office purchased weapons from sellers at gun shows in Erie, Genesee, Saratoga, Schoharie, Suffolk and Washington counties. The 10 defendants charged today chose to sell a firearm to the undercover officer with brazen disregard for the required NICS background check. Typically, the undercover investigator told the seller that he had an order of protection against him and would not be able to pass a background check.

NICS background checks are required for all gun purchases at gun shows throughout the State, as provided by General Business Law §897. A person who fails a NICS background check is ineligible to purchase or possess a gun under federal law.

Persons prohibited under federal law from purchasing or possessing a gun include those who:  Have been convicted of a felony  Have been adjudicated a “mental defective” or committed to a mental institution  Are unlawful users of or addicted to a controlled substance  Being an alien, are illegally or unlawfully in the U.S.  Are subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner  Have been convicted of a misdemeanor crime of domestic violence; or  Have been dishonorably discharged from the U.S. Armed Forces

The NICS background check requirement was put in place in New York to prevent these types of individuals from obtaining a gun at a gun show, where typically hundreds of guns are bought and sold. Failure to perform such a background check is a Class A misdemeanor.

To facilitate the conducting of NICS background checks, gun show operators in New York are required to post signs giving notice of the background check requirement, as well as have a terminal inside the show where, by either phone or computer, a prospective purchaser’s name and information can be crosschecked against the national NICS database which contains individuals who would be disqualified from purchasing a firearm for the reasons above.

The Attorney General’s investigation found lax compliance with the notice requirements by gun show operators. On some occasions, sellers agreed to sell the weapon to the undercover officer and then left the premises of the gun show in an attempt to evade the background check requirement by selling the firearm in a location other than the gun show itself. However, this conduct is also illegal under General Business Law §897.

New York’s background check requirement for all gun show sales was enacted in 2000 in an effort to prevent potentially dangerous individuals, including felons and the seriously mentally ill, from having easy access to firearms in the State. By ignoring the background check requirement, the sellers charged are accused of putting a firearm in the hands of a buyer who, in violation of law, has not been determined to be legally eligible to possess that weapon.

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