Democratic Underground - The news conference was crap

It was a dog and pony show.

"...at a press conference last Wednesday surrounded by guns purchased illegally by undercover investigators."...all eleven of them??

Like they said, it took them 8 months to catch 10 people. They used the term "dealers" when it is clear that they meant "individuals making privates sales" as opposed to FFL's. But that is an intentional bit of artifice.

Had an FFL done what they accuse those individuals of, that is, not performing a required NICS check, it would be a Federal felony not a State misdemeanor. Why would the state settle for a a small fine and thirty days when under Federal law the very same violation is $250,000 fine and 10 years NO PAROLE?

They certainly did not make clear if the individuals they charged were vendors who had rented table space from the show's promoter or not. It is not uncommon at a show to see an individual attendee carrying a gun. A person may, for example, bring a gun to the show they wish to trade for something they like better. It is not unheard of for another attendee else to see them and ask if the gun is for sale. They may even strike a deal. What happens next, is different in New York, if this chance encounter occurs at a gun show as opposed to a flea market or yard sale.

As long as the promoter has posted the required signage it is for New York state FFL's to comply with state and Federal law.

NY State law § 896 Operation of a gun show.

(c) provide access at the gun show to a firearm dealer licensed under
federal law who is authorized to perform a national instant criminal
background check where the seller or transferor of a firearm, rifle or
shotgun is not authorized to conduct such a check by

(i) requiring firearm exhibitors who are firearm dealers licensed under federal law and who are authorized to conduct a national instant criminal background check to provide such a check at cost or

(ii) designating a specific location at the gun show where a firearm dealer licensed under federal law who is authorized to conduct a national instant criminal background check will be present to perform such a check at cost. Any firearm dealer licensed under federal law who performs a national instant criminal background check pursuant to this paragraph shall provide the seller or transferor of the firearm, rifle or shotgun with a copy of the United States Department of Treasury, Bureau of Alcohol, Tobacco and Firearms Form ATF Form 4473 and such dealer shall maintain such form and make such form available for inspection by law enforcement agencies for a period of ten years thereafter.

The last sentence is unclear in its intent as to the disposition of the copy of the 4473. They use the word "dealer" but do not make it clear if they mean the licensee who performs the check must maintain a copy of the 4473 for ten years or if they mean the seller on whose behalf the FFL made the check.

Federal law already defines the FFL's requirement, and it conflicts with the state.

http://www.atf.gov/firearms/faq/brady-law.html#4473-nics-denied

Q: Do FFLs have to keep a copy of ATF Form 4473 if the transaction is denied or for some other reason is not completed?

FFLs must keep a copy of each ATF Form 4473 for which a NICS check has been initiated, regardless of whether the transfer of the firearm was made. If the transfer is not made, the FFL must keep the Form 4473 for 5 years after the date of the NICS inquiry. If the transfer is made, the FFL must keep the Form 4473 for 20 years after the date of the sale or disposition. Forms 4473 with respect to a transfer that did not take place must be separately maintained.

{27 CFR 478.129(b)}

Federal law requires the FFL to maintain the 4473 for 5 years of the sale was denied and 20 if it the transfer was completed. One could infer from the state statute since the seller is provided a copy of the 4473 by the FFL making the NICS check on his behalf, that the last sentence means for the seller to maintain that copy for 10 years. However that conflicts with the construct in the rest of that statute where dealer is used to refer to an FFL while seller or transferor is the person on whose behalf the FFL is performing the check.

One advantage of a poorly drafted law is the state AG gets to make examples of dumb schmucks who get enmeshed in a publicity scheme. Better to get lower class working stiffs who will have to make do with over burdened public defenders rather than those who can afford high priced attorneys with competent staffs...oh wait, stop, it's just a misdemeanor....no public defender, you have to pay for a lawyer....just sayin'

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