Lose a gun, go to jail!

In a sneaky amendment to a crime bill, Pennsylvania gun control forces are pushing hard for legislation that would criminalize the failure to report guns that are either lost or stolen.

HARRISBURG - Handgun-control proponents in the State House are attempting to force a floor vote today on a controversial bill that would require handgun owners to tell authorities when their weapons are lost or stolen.

To avoid a counter-lobbying campaign by the National Rifle Association, lawmakers late Wednesday filed the language as an amendment to a crime-code bill that had already cleared a House committee. The move sends the bill directly to the floor.

"This is a historic moment for the Pennsylvania General Assembly and the House in particular," said Rep. Cherelle Parker (D., Phila.). "For many years, legislators across Pennsylvania have been trying to answer calls law enforcement has been making to us to give them the tools to get handguns off the streets."

The amendment will face opposition from Republicans and many rural Democrats. But, proponents say, polls showing that a majority of voters support mandatory reporting of lost and stolen handguns will compel lawmakers at least to go on record with their position.

It's unclear whether opposition has softened in Harrisburg since 2006, when the House overwhelmingly defeated the measure. Votes were not recorded then.

Steve Miskin, a spokesman for House Minority Leader Sam Smith (R., Jefferson), was unaware of the amendment until a reporter contacted him. Miskin would not say where Smith stood on the lost-and-stolen amendment, but he expressed concern about the measure's language. He said the Pennsylvania District Attorneys Association, though not opposing the policy, was reluctant to support the strict penalties in the measure.

I can certainly understand the District Attorneys Association's reluctance. While its proponents attempt to market it as common sense, this measure would do little more than criminalize law abiding gun owners who fail to report crimes committed against them. And it would criminalize the failure to report what is often unknowable -- a simple loss.

This makes a potential criminal out of any gun owner, and it treats guns as inherently suspect property, which must be treated as different from other property.

Ever heard the expression "Count the silverware"? If you're wealthy enough to have valuable silverware, it probably is a good idea to count it occasionally. Because guests can be dishonest. So can contractors, house painters, gardeners, cleaning people, etc. It would be unimaginable for anyone to propose making it a crime to fail to report stolen silverware, though. People who might count it would do so for their own selfish reasons, not because they fear criminal prosecution. But if it becomes illegal to not report something which is missing, at what point is it missing? At the moment it disappeared? Or when you discovered the loss? Suppose you don't believe in locking up your guns (any more than a lot of homeowners would lock up their silverware), and you have a number of guns conveniently located in different places in the house. If a crooked contractor stole one during a remodeling project, you might not notice it missing for some time. And even if you noticed it missing, how would you know whether it was stolen and not misplaced? At what point would you be legally obligated to notify the police? At what point would criminal liability attach, and why? These are not idle questions, for they touch on the constitutional due process requirement that a statute must put a reasonable person on notice as to what conduct is forbidden.

Why single out guns unless the intent is to stigmatize them? I think that a law criminalizing non-reporting requires more than merely reporting a loss or a theft; by its nature it imposes an affirmative duty to monitor and count your guns on a regular basis or be a criminal (in much the same way that a law criminalizing the non-reporting of silverware would require counting the silver). But because it does not spell that out, I think it's unconstitutionally void for vagueness.

In numerous discussions and in editorial pieces like this one by Monica Yant Kinney, it is claimed that the goal of the reporting law is to stop the criminal resale of guns, by making it an additional crime for criminal enablers of illegal resellers not to report their illegal transfers:

"Lost-and-stolen is a no-brainer," said Joe Grace of CeasefirePA. "Ninety-six percent of Pennsylvanians support this."

And the other 4 percent? Perhaps they're the entrepreneurs who pay folks with clean records to purchase guns later resold to thugs on the streets.

If straw buyers had to tell police about every weapon they bought and "lost," they might think twice about the business ventures.


Advocates like Ms. Kinney ignore the fact that law would violate the Fifth Amendment's protection against self-incrimination, and would have no effect on the criminals it is supposedly intended to target.

Former prosecutor C.D. Michel analyzed this problem at length, and his analysis sheds more light on the reluctance of the Pennsylvania District Attorneys Association to back this legislation:

Ironically, the ordinance cannot be used against the real bad guys. No law can compel lawbreakers to report themselves. So a straw purchaser who legally buys a gun cannot be compelled to report that he resold it illegally. And since it wasn't actually lost or stolen, he hasn't violated the ordinance. Similarly, if a felon prohibited from possessing a gun illegally possesses one anyway, and it is lost or stolen, he can be prosecuted for having the gun in the first place, but cannot be prosecuted for failing to incriminate himself by reporting the loss.

Enforcement of these ordinances places prosecutors in a precarious legal and ethical position. Say a straw-purchaser's gun is recovered at a crime scene and traced back to him. If he lies to police claiming his gun was "stolen" when he really sold it on the black market, will we nonetheless prosecute him for something he did not do (fail to report the "stolen" gun -- which wasn't actually stolen) but to which he "confessed"? Ethics and legality aside, securing a misdemeanor conviction for failing to report a theft (that never occurred) likely prohibits prosecuting the straw purchaser for the more serious felony black market sale or for making a false statement to police.

As he points out, the law creates a major problem for true victims of gun theft, whom he very rightly advises to hire an attorney before making any report to the police:
Perhaps worse, gun owners who truly are burglary victims must now hesitate to speak with police if their stolen gun is recovered at a crime scene. If the gun owner failed to report the loss at all, or on time, she faces possible criminal prosecution if she cooperates with police investigating the recovered gun. She should remain silent, get a lawyer and seek immunity first.
Then there's the question of what to do if a gun is missing (or you think it's missing):
Legal representation may also be appropriate when a gun is first discovered missing. The owner can be prosecuted if the theft is not reported within 48 hours of when the owner "should have known" the gun was missing. Proponents have made clear they believe "responsible" gun owners should know where their gun is at every single moment and "should know" a gun is gone immediately. And the fear of prosecution will encourage those who miss the 48-hour window not to report the loss at all.

Effectively, these ordinances place the legitimate gun owner in jeopardy of prosecution for becoming a victim of a crime. In light of these liabilities, gun-rights groups and the criminal-defense bar have begun advising gun owners -- who would ordinarily be happy to assist police with their investigation -- that they need a lawyer if they are contacted by police.

You'd need a lawyer even if you misplaced a gun in a disorganized house with lots of repair people running in and out.

Basically, they're criminalizing victims of crime, criminalizing what would ordinarily be considered sloppiness, making ordinary gun owners inherently paranoid, ever more likely to become suspects, and in need of legal help for matters that used to be common sense. And of course, the illegal gun dealers, far from being the target class, are completely unaffected.

Because of the vagueness I described, laws like this will lead to cries for more laws -- such as the type advocated by Barack Obama in 1999 which would have made felons out of gun owners whose guns were not "securely stored":

In 1999, Obama proposed to make it a felony for the gun owner if a firearm stolen from his residence and used in a crime was not "securely stored" -- effectively negating the homeowner's right to self-defense.
Via Dr. Helen, who called it "scary stuff."

And she's right. A gun that is locked up in a gun safe is as likely to protect you as a dog that is locked up in a closet.

I think these reporting laws are unconstitutional, and but another step on the road to criminalizing self defense.

But if they pass, what are gun owners to do? In an interesting discussion of a similar New Jersey law (which also touched on civil liability for stolen guns) Armed and Safe offered some advice:

If S. 2934 passes (which it seems bound to do), I think every handgun owner in New Jersey, on the day the law goes into effect, should report that all their handguns fell into the ocean (or were irretrievably lost in some other fashion). Let the petty tyrants chew on that.
Ah, but what if the guns were later found? The gun owners could be arrested for making false reports!

(Another damned-if-you-do, damned-if-you-don't. But as I keep saying, more laws equal more crime.)

posted by Eric on 03.17.08 at 12:38 PM


Very good post. A lot of gun owners aren't really processing how bad this law is. They think "Well, I would report a stolen gun to the police, so what's the big deal?" No one ever thinks it'll be them getting slapped by the long arm of the law.

From another point of view, one of the reasons they ostensibly want this bill is because it'll be a tool to use against gun traffickers who they can't prove are guilty of straw purchasing.

Is there any other area of criminal justice where we think it's acceptable, if the state has a hard time proving the elements of a crime, that we criminalize another related activity that has a much lower burden of proof?

It's often hard to catch shoplifters, so do we make it a crime to fail to remove hats and sunglasses when entering a store?

Sebastian   ·  March 17, 2008 3:48 PM

Sebastian thanks.

They won't be able to use it against gun traffickers, though, because of the 5th Amendment. (The Supreme Court has already ruled that criminals cannot be charged with failure to register firearms they aren't allowed to possess.)

By way of argument ad absurdum, you mentioned hats and sunglasses. Well, to the bureaucrats, no ridiculous idea is considered too ridiculous, and there is a movement afoot to prohibit hats and sunglasses in banks.


Eric Scheie   ·  March 17, 2008 4:51 PM

What is the penalty in Penna,for someone who steals then resells a firearm?

Anonymous   ·  March 21, 2008 1:37 AM

What is the penalty in Penna,for someone who steals then resells a firearm?

ceoconnor   ·  March 21, 2008 1:38 AM

What is the penalty in Penna,for someone who steals then resells a firearm?

ceoconnor   ·  March 21, 2008 1:38 AM

What is the penalty in Penna,for someone who steals then resells a firearm?

ceoconnor   ·  March 21, 2008 1:39 AM

What is the penalty in Penna,for someone who steals then resells a firearm?

ceoconnor   ·  March 21, 2008 1:39 AM

What is the penalty in Penna,for someone who steals then resells a firearm?

ceoconnor   ·  March 21, 2008 1:40 AM

What is the penalty in Penna,for someone who steals then resells a firearm?

ceoconnor   ·  March 21, 2008 1:40 AM

What is the penalty in Penna,for someone who steals then resells a firearm?

ceoconnor   ·  March 21, 2008 1:41 AM

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