One begins to wonder if Senators Charles Schumer (D-NY), Pat Toomey (R-PA), and Joe Manchin (D-WV) didn’t just take whatever verbiage Attorney General Eric Holder’s staff handed to them and put it in their gun control legislation without even reading it. The Schumer-Toomey-Manchin (STM) bill facilitates undercover sting operations at gun shows to arrest people for conduct they have no reason to believe is against the law. The STM bill lets the Justice Department send people at gun shows to jail for up to five years for a crime they did not even know was a crime.
Here is the zinger buried in the bill:
Whoever makes or attempts to make a transfer of a firearm in violation of section 922(t) . . . to a law enforcement officer, or to a person acting at the direction of, or with the approval of, a law enforcement officer authorized to investigate or prosecute violations of section 922(t), shall be fined under this title, imprisoned not more than five years, or both.
It is neither surprising nor inappropriate that, in accordance with applicable law enforcement guidelines, undercover FBI or ATF agents infiltrate, or send informants to infiltrate, a gun show to see if they can catch people breaking federal firearms laws. But this new law goes overboard, by eliminating any need for a federal prosecutor to prove beyond a reasonable doubt to a jury that the individual who allegedly broke the law had any kind of criminal intent.
Congress has made gun laws so complex that even the well-meaning, law-abiding citizen who owns firearms will have a hard time learning about and complying with every firearms law and regulation on the books. It is unreasonable to assume that every person at a gun show will automatically know that it is a crime to transfer a firearm without a necessary background check. The STM bill’s new undercover sting provision is a trap for the innocent.
Prosecutors love this kind of statute, because it makes their lives easy. They don’t have to prove you knew you were breaking the law. They don’t even have to prove you acted with any criminal state of mind at all. They simply must prove that you physically transferred, or attempted to transfer, a firearm without a necessary background check to an individual who was a law enforcement officer described in the STM bill’s provision or one of the officer’s informants. (Remember, with the STM bill, if you see an unattended gun lying on the ground at a gun show, do not pick up the gun and turn it over to somebody. The person you just transferred it to without a background check might be an undercover STM sting officer—and you just committed a federal crime!)
The STM law should not subject to criminal penalties an individual who transfers or attempts to transfer a weapon to a law enforcement agent or informant unless a prosecutor proves that the individual “willfully” transferred or attempted to transfer the firearm in violation of section 922(t) of title 18. The Supreme Court said in Bryan v. U.S. in 1994 that when a federal statute punishes someone for a crime committed “willfully,” the federal government must prove at trial that the individual knew that his conduct was unlawful.
Undercover law enforcement operations have their place in our society, but not as a trap for innocent citizens. The STM bill sets up such a trap, punishing people when neither they nor any other reasonable person would know that what they did was a crime.