Kriston Capps is a staff writer for CityLab covering housing, architecture, and politics. He previously worked as a senior editor for Architect magazine.
Mayor Sam Liccardo wants gun stores to record all sales transactions, in an effort to prevent “straw purchases” that contribute to illegal firearm trafficking.
Last week, Democrats marshaled a pair of gun control measures through the House—the first significant firearm regulations to pass the chamber in decades. Together, the bills would expand background checks to cover sales at gun shows and online as well as extending the review period from three to 10 days. Neither is likely to stand a chance of passing the Senate.
Despite the revival of gun control advocacy in the post-Parkland era, efforts to tighten regulations still face nearly insurmountable political obstacles. At the federal level, Republicans in Congress work in lockstep with the National Rifle Association to block gun bills from passing. When state or local governments think about gun legislation, they face the prospect of preemption from higher up the legislative ladder. Not only do local measures need to be constitutional policies that can pass the local council—“common-sense” in the popular parlance—these bills must be robust enough to withstand challenges from state and federal lawmakers.
“The fundamental concern about the ubiquity of guns is something that overwhelms every mayor in this country,” says Sam Liccardo, mayor of San José, California. “The preemptive power of federal and state law severely limits our range of action.”
In a sense, that understanding was the starting point for Liccardo’s new memo on “straw purchases,” the illegal practice of buying a gun for someone who can’t purchase a gun legally themselves. Liccardo’s proposal, which he says could serve as model legislation for other cities, would require all San José gun retailers to record sales transactions, using audio in addition to video. These combined recordings could provide evidence of criminal intent if the gun later falls into the hands of someone other than the buyer.
“One of the challenges in cracking down on straw purchases is the ability for police and prosecutors to prove that the purchaser knew they were going to obtain that gun for the purposes of giving it to someone else,” Liccardo says. “One way to prove criminal intent is to be able to ask questions of the purchaser up front, and make sure those questions are audio and videotaped up front. That provides evidence for prosecutions and acts as a deterrent.”
In theory, fighting straw purchases could be a cause that gun owners and gun control advocates share, at least in part. Straw purchases are the most common channel for gun trafficking, according the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; a 2000 report found that they were responsible for nearly half of all firearms in trafficking investigations. On its website, even the NRA acknowledges that straw purchases are “one of the main ways that criminals acquire firearms.”
But NRA spokesperson Dana Loesch nevertheless put Liccardo’s proposal on blast as a “gun registry,” invoking the idea that the purpose of new firearms regulations is to build a database of guns and gun owners for darker purposes. The Sacramento-based Firearms Policy Coalition called the proposed policy “unconstitutional, burdensome and irrational,” noting that California already boasts the strictest gun laws in the nation.
Proponents of the idea say that recording gun buyers in a store should be no different from walking into a bank, where customers know they’re being captured on camera. The nation’s largest single gun retailer, Walmart, already abides by this principle: The mega-retailer has been recording its gun transactions for more than a decade. The San José policy would affect about two dozen retailers, and in-store security cameras are already a feature in most of them, the mayor says. The new rule would go above and beyond by making recordings mandatory and adding audio, too.
And local government may be the most appropriate avenue for new regulations focused on retailers themselves. “Local oversight of gun dealers is necessary because [ATF] does not have the resources to properly oversee the more than 134,000 federally licensed gun dealers in the U.S.,” says Allison Anderman, managing attorney for the Giffords Law Center To Prevent Gun Violence, in an emailed statement supporting the policy. “The California Department of Justice is similarly restrained in its ability to police the more than 2,200 gun dealers operating in California.”
As many a mayor knows, any new local gun control measure faces the near-certainty of a legal challenge. (Former Tallahassee Mayor Andrew Gillum built a gubernatorial campaign on the success of his fight as mayor against the gun lobby.) From a civil-liberties perspective, the San José proposal may pass constitutional muster, according to Trevor Burrus, a research fellow at the Cato Institute. He says that courts recognize some exceptions to law enforcement actions otherwise prohibited by the Fourth Amendment in certain closely regulated industries.
“If it were brought to the court—if someone said the government is basically mandating that these private actors violate my civil liberties, or something like that—then it might be deemed a heavily regulated industry, whereby going into a gun store, you’re on notice that you have fewer civil liberties in there,” Burrus says.
That doesn’t mean he supports the idea. “I think it’s extremely concerning when the government can assert that a public-safety rationale trumps all these rights. You take that too far, and you can destroy civil liberties.”
One San José gun retailer said that the mayor’s proposal is redundant. Mike, the owner of The Gun Exchange (he declined to give his last name), says that he posts signs in his store that warn “Don’t Lie for the Other Guy”—referring to an awareness campaign from ATF. He trains staff to recognize the warning signs: When a couple walks in and a man instructs a woman on what gun to buy, he says, he asks both for identification.
Such scenarios are consistent with the ATF’s accounting of straw purchases as a small-scale practice that adds up to a crime wave: “[A]lthough the average number of firearms trafficked per straw purchase investigation was relatively small, 37 firearms, there were nearly 26,000 firearms associated with these investigations,” reads the report from 2000.
It’s already a federal crime for a buyer to make a false statement on official forms when purchasing a firearm from a licensed dealer. The first question on ATF’s over-the-counter sales record form reads, “Are you the actual transferee/buyer of the firearm(s) listed on this form?” Ticking the “no” box would make a transaction a felony, and any responsible gun retailer—and that’s the vast majority of them—would shut down a purchase if there were any doubt. (Most criminals never check the “doing crimes” option.) Plus, in California, which requires a background check for every firearm sale, the seller can face criminal liability over a straw purchase.
In his experience, Mike says that straw-purchase attempts are rare, and hardly the biggest source of illegal guns in California. Moreover, recording audio in addition to video (which his store already does) presents a technical challenge. “We take a person to different places in the store,” Mike says. “I don’t know, we’d have to walk around with a microphone?”
It would be a major departure from precedent if San José were to require gun retailers to file their recordings of gun sales with the local police department—that’s the kind of scenario that keeps gun-rights advocates up at night. Burrus thinks that the new policy will simply result in larger files stored at gun shops that investigators never bother to check.
“The interesting question that hangs over increased regulations on straw purchases is whether or not any law enforcement will do anything about straw purchases,” Burrus says. “Given the ability to prosecute straw purchasers, [prosecutors] tend to not do anything about it, and that’s something gun store owners will tell you all the time.”
That’s exactly why there’s such a need for broad and regional commitment to tighter regulations to prevent straw purchases, Liccardo says. A bill that stopped at the municipal borders of San José wouldn’t be able to do much. But a law that gives prosecutors a new tool to go after straw purchasers—if adopted widely and built to withstand preemptive measures—could make it more difficult for the few bad actors among retailers to enable straw purchases, and give buyers contemplating an illegal gun purchase considerable pause.
The proposed straw-purchases measure would amend an ordinance that hasn’t been updated in 40 years. The rules committee for the San José City Council just approved the measure, sending it forward to the city attorney’s office, which will draft the ordinance language. A city council vote on the measure is likely several months out, but Liccardo says that his administration aims to provide support to gun retailers for implementation and training so that the regulation is not onerous.
“I’m not naive about the fact that I live in a country with more than 300 million guns already in distribution,” the mayor says. “I would love to be able to roll back time. This measure isn’t going to do that. But what I hope it does is drive up the level of effort and financial cost for criminals to get their hands on guns.”