While many states have strict gun laws, there are plenty that do not. Firearms and weapons traffickers know how to exploit that for their own benefit. It is not uncommon for firearms to move from a state that has weak gun control laws into a state that has very strict gun control laws. This is a common tactic of firearms traffickers, and it creates huge problems for law enforcement. However, gun trafficking can also occur within a single state, without ever crossing state lines.
Gun traffickers make it very difficult for law-abiding citizens to buy and sell guns. Their methods taint many legal transactions because law enforcement is hypervigilant when it comes to identifying illegal gun activity, which sometimes leads to innocent people being arrested and charged.
Firearms and weapons trafficking charges are serious in any state, but in New York, the penalties are particularly harsh. A conviction on these charges can result in serious prison time. Do not let this happen to you. If you have been charged with firearm and weapons trafficking, get legal representation now.
Overview of Firearms and Weapons Trafficking
Firearms and weapons trafficking, sometimes called gun trafficking, is a process of supplying for sale on the black-market guns and other weapons. These weapons typically end up being used in crimes or possessed by people for whom it’s illegal to do so, such as felons and individuals with domestic violence convictions.
Trafficking is not the same as firearms and weapons possession, but they can overlap, and trafficking can involve possession.
Straw Purchasing vs. Gifting
A straw purchase is made when a person is unable to purchase a gun for whatever reason and someone who is legally able to do so buys it for them.
Some reasons a person may not be able to legally purchase a gun include:
- They can’t pass the background check that is required by federal law
- They are a convicted felon
- They have a domestic violence conviction on their record
- They do not want to have their name attached to the gun purchase transaction
While it is legal in most cases to purchase a gun as a gift, it is not legal to post as the real buyer of a firearm, nor is it legal to purchase a firearm for someone because they can’t buy it themselves. That is called a straw purchase.
Buying a firearm as a gift is legal as long as the gift recipient can legally own a gun. Each state has its own laws about firearm gifting, so make sure you know not only the laws in the state where the gun is being purchased but also where the recipient is. Some state laws require any firearm transfer, including a gift, to be managed through a Federal Firearms License (FFL) dealer. They will conduct a background check and ensure the recipient is legally able to own a gun. Other states have few or no regulations.
The key difference between straw purchasing a firearm and gifting a firearm is whether the recipient is legally able to own or possess a gun.
Federal Firearms and Weapons Trafficking Laws
There are no specific federal laws in the U.S. regarding firearm and weapons trafficking. However, certain conduct that is consistent with firearms traffickers is illegal under certain federal laws.
18 U.S. Code § 922 – Unlawful acts
18 U.S. Code § 922 (a)(3)
It is illegal to purchase a handgun in a state where the purchaser is not a resident.
(a) It shall be unlawful—
(3) for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State, except that this paragraph (A) shall not preclude any person who lawfully acquires a firearm by bequest or intestate succession in a State other than his State of residence from transporting the firearm into or receiving it in that State, if it is lawful for such person to purchase or possess such firearm in that State, (B) shall not apply to the transportation or receipt of a firearm obtained in conformity with subsection (b)(3) of this section, and (C) shall not apply to the transportation of any firearm acquired in any State prior to the effective date of this chapter;
18 U.S. Code § 922 (a)(6)
It is illegal to make a false statement in connection with the sale of a gun when that sale is facilitated by an FFL dealer – this is common with straw purchasing.
(a) It shall be unlawful—
(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;
18 U.S. Code § 922 (d)
It is illegal to give a gun to a person when the giver knows or has reason to believe that the recipient cannot legally own or possess a gun under federal law.
(d)It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) has been adjudicated as a mental defective or has been committed to any mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
(6) who [2] has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
(B)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) has been convicted in any court of a misdemeanor crime of domestic violence.
This subsection shall not apply with respect to the sale or disposition of a firearm or ammunition to a licensed importer, licensed manufacturer, licensed dealer, or licensed collector who pursuant to subsection (b) of section 925 of this chapter is not precluded from dealing in firearms or ammunition, or to a person who has been granted relief from disabilities pursuant to subsection (c) of section 925 of this chapter.
18 U.S. Code § 922 (g) & (n)
It is illegal for certain people to own or possess guns.
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B ) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)
(i)includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii)by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
(n) It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
New York Firearms and Weapons Trafficking Laws
New York has some very tough firearms and weapons trafficking laws.
New York Penal Law – Article 265 – Firearms and Other Dangerous Weapons
2. Any person who transports or ships any machine-gun, firearm silencer, assault weapon or large capacity ammunition feeding device or disguised gun, or who transports or ships as merchandise five or more firearms, is guilty of a class D felony. Any person who transports or ships as merchandise any firearm, other than an assault weapon, switchblade knife, gravity knife, pilum ballistic knife, billy, blackjack, bludgeon, metal knuckles, Kung Fu star, chuka stick, sandbag or slungshot is guilty of a class A misdemeanor.
265.11 – Criminal sale of a firearm in the third degree
A person is guilty of criminal sale of a firearm in the third degree when such person is not authorized pursuant to law to possess a firearm and such person unlawfully either:
(1) sells, exchanges, gives or disposes of a firearm or large capacity ammunition feeding device to another person; or
(2) possesses a firearm with the intent to sell it. 265.12 – Criminal sale of a firearm in the second degree
265.12 – Criminal sale of a firearm in the second degree
A person is guilty of criminal sale of a firearm in the second degree when such person:
(1) unlawfully sells, exchanges, gives or disposes of to another five or more firearms; or
(2) unlawfully sells, exchanges, gives or disposes of to another person or persons a total of five or more firearms in a period of not more than one year.
265.13 – Criminal sale of a firearm in the first degree
A person is guilty of criminal sale of a firearm in the first degree when such person:
(1) unlawfully sells, exchanges, gives or disposes of to another ten or more firearms; or
(2) unlawfully sells, exchanges, gives or disposes of to another person or persons a total of ten or more firearms in a period of not more than one year.
265.14 – Criminal sale of a firearm with the aid of a minor
A person over the age of eighteen years of age is guilty of criminal sale of a weapon with the aid of a minor when a person under sixteen years of age knowingly and unlawfully sells, exchanges, gives or disposes of a firearm in violation of this article, and such person over the age of eighteen years of age, acting with the mental culpability required for the commission thereof, solicits, requests, commands, importunes or intentionally aids such person under sixteen years of age to engage in such conduct.
Penalties for Federal Firearms and Weapons Trafficking Conviction
Even though there are no federal laws that directly address firearm and weapons trafficking, the penalties for those violations that are related to it are harsh. They typically include time in prison as well as fines and probation.
18 U.S. Code § 922 (a)(3)
- Maximum 10 years in prison
18 U.S. Code § 922 (a)(6)
- Maximum 10 years in prison
- Fine
18 U.S. Code § 922 (d)
- Maximum 10 years in prison
18 U.S. Code § 922 (g) & (n)
- Maximum 10 years in prison
- Maximum 15 years without parole if the defendant has three or more prior violent felony criminal convictions and/or any drug trafficking felony convictions
Penalties for Firearms and Weapons Trafficking Conviction in New York
Most violations of New York firearms and weapons trafficking laws are felonies. This means they typically carry substantial prison time
New York Penal Law – Article 265 – Firearms and Other Dangerous Weapons
265.10 – Manufacture, transport, disposition and defacement of weapons and dangerous instruments and appliances.
2. Any person who transports or ships as merchandise
- Machine-gun, firearm silencer, assault weapon or large capacity ammunition feeding device or disguised gun, or who transports or ships as merchandise five or more firearms
- Class D Felony
- Minimum 1 year in prison
- Maximum 7 years in prison
- Class D Felony
- Any firearm, other than an assault weapon, switchblade knife, gravity knife, pilum ballistic knife, billy, blackjack, bludgeon, metal knuckles, Kung Fu star, chuka stick, sandbag or slungshot
- Class A Misdemeanor.
- Maximum 1 year in jail
- Class A Misdemeanor.
265.11 – Criminal sale of a firearm in the third degree
- Class D Felony
- Minimum 1 year in prison
- Maximum 7 years in prison
265.12 – Criminal sale of a firearm in the second degree
- Class C Felony
- Minimum 1 year in prison
- Maximum 15 years in prison
265.13 – Criminal sale of a firearm in the first degree
- Class B Felony
- Minimum 1 year in prison
- Maximum 25 years in prison
265.14 – Criminal sale of a firearm with the aid of a minor
- Class C Felony
- Minimum 1 year in prison
- Maximum 15 years in prison
Defenses for Firearms and Weapons Trafficking
There are several defenses for firearms and weapons trafficking. The one that is used by the defense team will depend on the particulars of the case.
- The defendant did not engage in the illegal sale or purchase of a firearm or weapon
- The defendant did not transport a firearm or weapon involved in an illegal transaction
- The firearm or weapon was a gift, and the defendant had no way of knowing that the recipient was not legally able to own a firearm
- The defendant had the appropriate licensing at the time of the sale and followed all laws regarding the sale of firearms
- The defendant did not transfer or possess the weapon
- The defendant was misidentified
If you have been charged with firearms and weapons trafficking, you need a criminal defense attorney who has courtroom experience directly dealing with such charges. You need a lawyer who will fight for you to ensure that your rights are protected.
You need The Litvak Law Firm.
Mr. Litvak has the experience and knowledge to handle your case and make sure that you have the best possible outcome. His years of experience in both federal and New York state courts make him the best choice for legal representation in your case. Call today at (718) 989-2908 for your free consultation and get the protection and representation that you deserve.