As an FFL, Should You Conduct a Background Check and 4473 on a Law Enforcement Officer with a Department Letter for a Duty Gun?

Quite frequently the issue arises as to whether a Federal Firearms Licensee (FFL) may sell a firearm to a Law Enforcement Officer (LEO), without conducting a background check, where the officer has a letter, on Police Department letterhead, stating that the firearm is being purchased as a duty weapon. Under Federal and State law, theFFL can conduct the sale, under these circumstances, without having an ATF Form 4473 completed or calling the Pennsylvania Instant Check System (PICS); however, I do not advise that my clients do so.

The reason that I tell all of my FFL clients to have the officer fill out the Form 4473 and complete a PICS check is that many officers are prohibited under 18 U.S.C. 922(g)(9), which is commonly referred to as the Lautenberg Amendment. The Lautenberg Amendment makes an individual prohibited in relation to owning firearms when he/she was convicted of a misdemeanor crime of domestic violence. Here in PA, even a misdemeanor Disorderly Conduct conviction, which involved intimate or married partners, is a prohibiting offense.

So, some of you may be asking how this relates to a law enforcement officer and the need to conduct a background check. The truth is thatVERY few police departments know that this is a prohibiting offense. Unlike the rest of the Federal laws, which permit a LEO to possess a firearm during his/her employment (yes, even if the officer was convicted of a felony!), the Lautenberg Amendment did not make an exception (see side note below). As such, a police department may, in good faith, issue a letter for duty weapon of one of its officers without knowing that officer is prohibited.

The question that then arises, and which has not currently been decided by the state or federal courts, is whether the FFL could be liable if the officer is prohibited person and later commits a crime with that firearm. Given the absence of case law on the issue, it is in the FFL’s best interest to have a Form 4473 filled out and a PICScheck conducted.

As a side note, some police officers that are in the know regarding the Lautenberg Amendment will actually request that they be charged with a felony, instead of a misdemeanor, so that the Lautenberg Amendment will not apply.

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