Judge rejects challenge to background checks for gun transfers

SEATTLE – A federal judge on Thursday threw out a lawsuit challenging parts of Washington state’s new law expanding background checks on gun transfers, saying gun rights activists couldn’t challenge it because they aren’t being prosecuted for violating it.

U.S. District Judge Benjamin Settle in Tacoma ruled that opponents of the law didn’t have standing to challenge the parts of Initiative 594 that required background checks for noncommercial gun transfers. To challenge the law, the plaintiffs must show that they’ve been actually prosecuted or at immediate risk of being prosecuted, he said.

The fairness of that rule can be questioned, the judge said, but he had to follow it.

“Plaintiffs explicitly concede that they have no intention of violating I-594, Plaintiffs have failed to allege any specific warning or threat to initiate a prosecution, and Plaintiffs have failed to allege any history of past prosecution or enforcement of I-594,” Settle wrote. “Therefore … the Court concludes that Plaintiffs have failed to show a genuine or imminent threat of prosecution and lack standing to bring this challenge.”

I-594 passed with 59 percent of the vote in November. It created universal background checks for all sales, including those made online or at gun shows, as well as for transfers including many loans and gifts. The measure has exceptions for emergency gun transfers concerning personal safety, gifts between family members, antiques and loans for hunting.

The plaintiffs, including the Bellevue-based Second Amendment Foundation, argued that the provisions “are so vague that a person of ordinary intelligence cannot understand their scope.” They questioned whether background checks would be required for a FedEx worker who transported a gun sold in Washington, whether an unmarried couple living together would be allowed to share a gun, or whether an airline worker would need a background check before handling luggage containing a firearm.

Several law enforcement officials have said they wouldn’t consider simply handing a gun to someone else a “transfer” requiring a background check under the law, but the law’s opponents insist that’s not clear.

Bob Calkins, a spokesman for the Washington State Patrol, noted that the agency didn’t arrest gun rights activists who protested the law by handing each other guns during a recent rally at the Capitol in Olympia. He said law enforcement is most likely to uncover background check violations as they trace the history of guns used in other crimes – not by fielding complaints of I-594 violations directly.

Alan Gottlieb, a co-founder of the Second Amendment Foundation, said he expected to appeal.

“It’s mind-boggling that a citizen must put their civil rights – not to mention their clean criminal record – at risk for the court to rule on the constitutionality of the law,” he said. “You should be able to challenge an attack on your constitutional rights without having to go to jail first.”

He added: “The state has gotten away with this because they haven’t prosecuted anybody. Why do we have a law on the books that nobody is prosecuting?”

Supporters of the law welcomed the decision, saying the gun lobby had concocted far-fetched scenarios in an effort to undermine common-sense regulations.

“From the beginning it’s been clear that the gun lobby’s lawsuit was a case of sour grapes – and that their frivolous claims would be dismissed quickly and completely,” said Cheryl Stumbo, who was injured in a mass shooting at the Jewish Federation of Greater Seattle in 2006. “Now, it’s time for the gun lobby to accept the court’s decision and the will of the people of Washington and abandon its bid to overturn Initiative 594.”