BACKGROUND CHECKS FOR OBTAINING FIREARM
The laws regarding the necessary background checks for purchasing a firearm are different in every state.
What laws regulate the necessary background check for obtaining a firearm?
NRS 202.253, 202.254, and 202.362, all relate to the necessary background checks for obtaining a firearm.
NRS 202.253 – Definitions.
As used in NRS 202.253 to 202.369, inclusive:
- “Explosive of incendiary device” means any explosive or incendiary device material or substance that has been constructed, altered, packaged or arranged in such a manner that its ordinary use would cause destruction or injury to life or property.
- “Firearm” means any device designed to be used as a weapon from which a projectile may be expelled through the barrel by the force of any explosion or other form of combustion.
- “Firearm capable of being concealed upon the person” applies to and includes all firearms having a barrel less than 12 inches in length.
- “Motor vehicle” means every vehicle that is self-propelled.
NRS 202.254 – Private person authorized to obtain background check on person who wishes to obtain firearm; no fee to be charged for background check; immunity from civil liability.
- A private person who wishes to transfer a firearm to another person may, before transferring the firearm, request that the Central Repository for Nevada Records of Criminal History perform a background check on the person who wishes to acquire the firearm.
- The person who requests the information pursuant to subsection 1 shall provide the Central Repository with identifying information about the person who wishes to acquire the firearm.
- Upon receiving a request from a private person pursuant to subsection 1 and the identifying information required pursuant to subsection 2, the Central Repository shall within 5 business days after receiving the request:
- Perform a background check on the person who wishes to acquire the firearm; and
- Notify the person who requests the information whether the information available to the Central Repository indicates that the receipt of a firearm by the person who wishes to acquire the firearm would violate a state or federal law.
- If the person who requests the information does not receive notification from the Central Repository regarding the request within 5 business days after making the request, the person may presume that the receipt of a firearm by the person who wishes to acquire the firearm would not violate a state of federal law.
- The Central Repository may not charge a fee for performing a background check and notifying a person of the results of the background check pursuant to this section.
- A private person who transfers a firearm to another person is immune from civil liability for failing to request a background check pursuant to this section or for any act or omission relating to a background check requested pursuant to this section if the act or omission was taken in good faith and without malicious intent.
- The Director of the Department of Public Safety may request an allocation from the Contingency Account pursuant to NRS 353.266, 353.268 and 353.269 to cover the costs incurred by the Department to carry out the provisions of subsection 5.
NRS 202.362 – Sale, transfer or disposal of firearm or ammunition to certain persons prohibited; purchase of firearm on behalf of certain persons prohibited; penalty; exceptions.
As used in NRS 202.253 to 202.369, inclusive:
- Except as otherwise provided in subsection 3, a person within this State shall not sell, transfer or otherwise dispose of any firearm or ammunition to another person or purchase a firearm on behalf of or for another person with the intent to transfer the firearm to that person if he or she has reasonable cause to believe that the other person:
- Is under indictment for, or has been convicted of, a felony in this or any other state, or in any political subdivision thereof, or of a felony in violation of the laws of the United States of America, unless the other person has received a pardon and the pardon does not restrict his or her right to bear arms;
- Is prohibited from possessing a firearm pursuant to NRS 202.360; or
- Is a known member of a criminal gang as defined in NRS 193.168.
- A person who violates the provisions of subsection 1 is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $10,000.
- This section does not apply to a person who sells or disposes of any firearm or ammunition to:
- A licensed importer, licensed manufacturer, licensed dealer, or licensed collector who, pursuant to 18 U.S.C. § 925(b), is not precluded from dealing in firearms or ammunition; or
- A person who has been granted relief from the disabilities imposed by federal laws pursuant to 18 U.S.C. § 925(c) or NRS 179A.163.
- For purposes of this section, a person has “reasonable cause to believe” if, in light of all the surrounding facts and circumstances which are known or which reasonably should be known to the person at the time, a reasonable person would believe, under those facts and circumstances, that an act, transaction, event, situation, or condition exists, is occurring or has occurred.
Is it possible to sell my gun to another person in Nevada?
The sale of firearms between private parties is legal in Nevada. However, you can only sell a firearm to another person if you reasonably believe that the other person is allowed to own the firearm. In other words, if you have reason to know that the other person is an ex-felon, has been declared mentally ill by a Court of law, has been admitted to a mental health facility, or is a member of a known gang organization, then selling a gun to that person is illegal.
How can I know any of that?
In many cases, private sales occur between people who already know each other. In these circumstances, the seller should probably be aware of at least some of the necessary information.
However, if you are interested in selling your firearm to a private person, and you would like to protect your own interests in the sale of your firearm, you can obtain a background check on an individual to find out their criminal history.
How do I do that?
Technically, the only person who can request a criminal history is the person whose history is being requested. Since that person is attempting to buy a firearm from you, then they should have no problem filling out the paperwork so that you can get the background check. The form allows for them to submit a request and have the records sent to you. The request form has the necessary instructions for requesting a criminal background check, and can be found at: http://gsd.nv.gov/uploadedFiles/gsdnvgov/content/Home/Features/DPS_006_Form112015.pdf).
Once the request has been sent in, the Central Repository has 5 business days from their receipt of the request to perform a background check and to send the results to the person listed on the request as the recipient.
Please Note: The statute states that if you have not received word from the Central Repository within 5 business days after making your request, then you may assume that there is no criminal history to prevent the sale. HOWEVER , if you have chosen to mail the request in, then you need to allow up to 3 business days for the Central Repository to receive the request, AND , if you want to be extra careful, you should also allow 3 business days for the information to be mailed back to you. In other words, if you are being careful and want to protect yourself, you should allow 11 business days from the day you mailed in your request before making any presumptions about the contents of the report.
How much does it cost to get a background check?
$23,50 in the form of a money order or certified check made out to the Department of Public Safety.
Am I required to do a background check?
You are not required to do a background check on a private citizen who you wish to sell a firearm to.
In fact, if you have a ‘good faith’ belief that the other person can legally own a firearm, then there is no reason to obtain a background check because the background check laws provide immunity from civil liability in such circumstances.
Please Note: While you may be immune to civil liability, criminal charges may still attach if you had any reason to believe that a background check was necessary. Once again, if you sold the firearm on a ‘good faith’ belief that the person could legally possess a firearm, then you shouldn’t be charged criminally either, but obtaining a background check is an easy way to protect yourself.
What do you mean by ‘good faith’ belief?
“Good faith” is a term used often in legal arguments. It essentially means that you were acting reasonably under the circumstances. As an example:
If someone wants to purchase your firearm, and you know for a fact that they own a few other firearms, then you could reasonably assume that they are not prohibited from owning a firearm, and you would be able to sell the firearm to them without a background check.
If, on the other hand, someone you’ve just met asks if they can buy your firearm, they want to pay in cash, and they seem to be in a hurry to make the deal and be done with the whole thing, then you may want to ask them if they would be willing to submit to a background check. If they are not willing to do so, or try to argue that they don’t want to wait that long, that would be a red flag, and it would be unreasonable to simply assume that they are not prohibited from gun ownership.
If, on the other hand, that same person who owned numerous other guns was the one who wanted to purchase your firearm, but wanted to do so in a hurry and pay in cash, and did not want to wait for a background check, then you may want to ask for more information before making the sale. The more information you can get about the person and their ability to own a firearm, the better because it will help to inform your decision about whether to obtain a background check. In general, however, anytime someone is hesitant to submit to a background check, it would be in your best interests to require one before you sell a firearm to them.
What happens if I do accidentally sell a gun to someone who is prohibited from ownership?
That depends on the circumstances. As already noted, if you had no reason to believe that the person could not own a firearm, then you should have no problems.
On the other hand, you can be charged criminally if you sell a firearm to someone despite having a reasonable cause to believe that the person:
- Is under indictment for a felony in any state;
- Has been convicted of a felony in any state;
- Is a known member of a gang;
- Has been declared mentally ill by a court of law;
- Has been admitted to a mental health facility; or
- Has been convicted of a violent domestic abuse.
What are the possible penalties?
If you sell your firearm to private citizen despite a reasonable cause to believe that they cannot own a firearm for one of the reasons listed above, then you can be charged with a category B felony, and may be facing:
- Between 1 and 10 years in a Nevada State Prison; and
- Possible fines up to $10,000.
What do you mean by “reasonable cause to believe”?
Essentially, this is the same thing as “good faith.” If the average person can look at all of the circumstances surrounding the sale or transfer, and all of the facts that you know, or that you probably should know about the other person, and still believe that there the other person can legally own a firearm, then you can sell your firearm to that person.
If, on the other hand, the average person, looking at all of the facts and circumstances, could reasonably believe that the other person may belong to one of the groups listed above, then selling your firearm to that person is a crime.
Are there any Defenses?
Yes, of course there are. Some of the possible defenses include:
Background Check – As noted above, getting a background check done on the person is the best defense against both criminal and civil liability. If you obtain a background check on the other person, and that check comes back clean, then you can be reasonably certain that the other person can possess a firearm. This, of course, does not provide information about the mental health of the person, and probably will not provide information about possible gang affiliation, but that so long as you have no obvious reason to believe that either of those is a possibility, then you are safe to sell your firearm to them.
Sale to a Licensed Person – If you can show that you sold your firearm to someone who is licensed as an importer, manufacturer, dealer, or collector, then any charges against you should be dropped or dismissed.
Pardoned – As with any crime, if the government has pardoned the other person for their crimes, then any rights lost because of that crime are returned. If you can show that the person you sold your firearm to was pardoned for their crimes, then any charges against you should be dropped or dismissed.
Lack of Evidence – As with any crime, the prosecution bears the burden of proving every element of the crime “beyond a reasonable doubt.” If there is not enough evidence to uphold this high level of proof, then the charges should be dropped or dismissed.
What should I do if I’ve been charged with Selling a Gun to a Prohibited Person?
As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.