The Los Angeles Police Department (LAPD) is extremely aggressive in enforcing federal, state, and local firearm regulations. In fact, years ago it created its very own “Gun Unit” that is dedicated to investigating and prosecuting violations of firearm laws.
Since its creation, the LAPD Gun Unit has earned a notorious reputation for being unduly aggressive in prosecuting these cases, and for interpreting the confusing, numerous, and complicated California and federal firearm laws extremely broadly.
Simply put, the LAPD attempts to criminalize as much firearm related activity as possible. In doing so, it has made criminals out of lots of well-intentioned and harmless civilians.
For years our office has defended our clients in and out of court from the Gun Unit’s proclivities. We have resisted the LAPD’s efforts to push criminal charges against people for inadvertent violations of firearm laws or for acts that are not clearly (or even likely) criminal. Rarely, if ever, did LAPD express concerns about making sure our clients’ acts were criminal or not an innocent mistake.
So it came as a surprise to us to read an article in the Los Angeles Times that the LAPD now says it needs help from the federal government’s lawyers to determine whether LAPD SWAT officers violated federal firearm laws by purchasing and reselling special edition Kimber brand pistols. These special edition Kimber handguns were made specifically for LAPD SWAT officers.
But those officers apparently then resold the firearms for profit to other LAPD officers and to civilians.
The problem? If the officers who originally ordered the guns intended to resell them from the start, they likely violated federal law by lying on the federal 4473 firearm purchase form. And if they did it more than once for profit, they likely violated the law by failing to have the required federal firearm dealers license needed to resell firearms.
Ironically, the laws that cover these resales really aren’t that complicated, especially when compared to many other gun laws LAPD has unhesitatingly interpreted and enforced against civilians. The main one is 18 USC § 922(a)(1)(A), a federal statute that prohibits “Engaging in the Business of Dealing in Firearms Without a License.”
What does “engaging in the business” mean? Federal law allows a person to sell firearms without a license up to a certain point. But once a person establishes a pattern of sales, selling guns repeatedly, the person can be considered “engaged in the business” of selling firearms. At that point the person needs to have a federal firearms license.
The courts have made fairly clear what constitutes a violation of 18 USC § 922(a)(1)(A), explaining that the government must show the defendant:
“was not a licensed dealer, that he ‘devote[d] time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms,’ 18 U.S.C. § 921(a)(21)(C), and that he acted with knowledge that his conduct was unlawful.”
United States v. Allah, 130 F.3d 33, 45 (2d Cir. 1997).