SB258 by Sen. Ellis: Yet Another Gun Show Bill

First Ellis said it's okay to lie to voters, now he wants to make criminals out of law-abiding citizens.

Texans can count on Houston Democrat Sen. Rodney Ellis to file one or more bills every legislative session trying to turn law-abiding Texas gun owners into criminals. Last session (2013) he filed two such bills and he has already filed four bills for the 2015 legislative session. His 2013 bills were so absurd that they were not even set for public hearing and debate in the committee to which they were assigned. Hopefully, his four bills will be ignored this session as to do otherwise would be a waste of legislative time and effort.

This article will address SB258, Sen. Ellis’ latest attempt to make gun shows so expensive and risky that no one will host or attend one. Broadly speaking, SB258 would create Class A Misdemeanor offenses for any and all sales at gun shows, even in parking lots and on the street, if a background check is not conducted on the buyer. The Bill would also establish burdensome and unnecessary reporting and recordkeeping requirements that would not serve to enhance public safety. In short, Sen. Ellis simply wants the legislature and law enforcement to harass, arrest and prosecute law-abiding citizens for inadvertent violation of his proposed paper violations.

What is a “gun show” under SB258?

SB258 defines a “gun show” to be a location other than a permanent retail store where three or more people gather to display or view firearms and charge a fee. It includes not only the building, but also any parking lots and even streets! A problem is already rearing its ugly head.

What is a “gun show promoter?”

According to SB258, a “gun show promoter” is anyone who “organizes, plans, promotes, or operates a gun show.” If a “gun show” includes parking lots and streets, the definition of a “promoter” would encompass a lot of people, many of whom have nothing to do with what goes on inside a building.

Since the definition of “gun show promoter” includes people other than those who actually operate the gun show, one must wonder what constitutes “organizing, planning or promoting” a gun show. Does “promoting” a gun show include a person who tells his friend that “there’s a gun show at the coliseum today[?]”  Does “promoting” include posting a notice on a website. Perhaps a TV or radio announcer becomes a promoter when he or she advertises a gun show. Does one participate in “planning” a gun show if they respond to a question from a friend who asks “what would be a good location for a gun show?” How much activity is required to qualify one as “organizing” a gun show? It is tempting to believe that no one would stretch this grossly ambiguous definition to such extremes, but consider that the Cities of Houston, Austin, Fort Worth (ala Wendy Davis) and others have all tried to prohibit gun shows in their cites. Consider also that there must be a reason for crafting such a broad and ambiguous definition beyond mere incompetence.

Culpable Mental State

In order for a person to be convicted of a crime, they must have reached a threshold mental state or mens rea (guilty mind). The “normal” standard is that one does something, “intentionally, knowingly, or recklessly,” but when one wants to make it easier to convict a person, one adds “with criminal negligence” to the mix as was done in SB258. Although Tex. Penal Code §6.03(d) appears to state otherwise, “criminal negligence” has been described by criminal attorneys as the criminal court version of “strict liability” in the civil courts. In short, if you do it, you have met the required culpable mental state. Keep this “strict liability” concept in mind when considering the vague elements of this proposed new crime.

Who Must Conduct Pre-Sale Background Checks?

Those who would promote so-called gun show bills make a concerted effort to make it appear that most if not all sales at gun shows do not involve a background check of the buyer. This is false. Every person or entity licensed by the Bureau of Alcohol, Tobacco, Firearms & Explosives (BATFE) must conduct a NICS background check on every gun sale, unless that person has a firearms license that exempts them from the background check. A Texas Concealed Handgun License is one such license.

Private persons not only do not have to conduct this background check, they are prohibited by federal law from doing so. SB258 would require a gun show promoter to have an FFL onsite to conduct a NICS background check for private sale and they can charge up to a $10 fee for this 5 second computerized background check.

SB258: Sales Between Private Persons Require a NICS Background Check

Sen. Ellis’ Bill would make it a Class A Misdemeanor (one year in jail and/or $4,000 fine) for a gun show “promoter” to permit the sale of a firearm between private persons at his gun show. Remember that the broad definition of “gun show” includes parking lots and streets and ask yourself how a gun show promoter is supposed to police a public street or parking lot.

The private seller would be required to keep records of any sale, but the Bill is silent as to what information must be obtained, how long records must be kept, in what from must they be maintained, what happens to the records when the seller dies, etc.

30 Day Notice to Law Enforcement

SB258 would also require a gun show promoter to notify local law enforcement at least 30 days in advance of any gun show. Apparently, Sen. Ellis is hopeful that local police or deputy sheriffs will aid in his plan to harass law-abiding Texans who may innocently and inadvertently violate this new and unnecessary law. Perhaps he wants them to “police” those streets and parking lots that the gun show promoter is without authority to monitor so that everyone involved in the sale can be prosecuted.

Conclusion

Senator Rodney Ellis’ SB258 is unnecessary because there is no problem to be solved. It will not reduce crime nor will it promote public safety. It will be to make it much more difficult to host gun shows and it will subject law-abiding citizens to arrest, prosecution and potential conviction for inadvertent violation of a grossly ambiguous criminal statute. If SB258 is given a public hearing, contact your Senator and let him or her know that you strongly oppose SB258.