This story was co-published with The Trace, a nonprofit newsroom covering guns in America.
Gun stores in several states have defied orders to close their doors as the coronavirus pandemic drives historic demand for firearms, according to background check data maintained by the Federal Bureau of Investigation and interviews with shop owners.
Governors of five states – Massachusetts, Michigan, New Mexico, New York, and Washington – ordered gun dealers to close in April under statewide stay-at-home directives. FBI data from April shows that dealers in those states still initiated tens of thousands of gun background checks. In Washington state alone, where gun shops were shuttered by a March 25 stay-at-home order, 42,000 checks were initiated in April.
Some businesses, such as Walmart and hardware stores, sell guns in addition to food and other household items deemed essential during the pandemic, such as Walmart and hardware stores. At least two of the five states – Michigan and New York – have allowed these stores to continue selling firearms.
However, big-box stores typically account for only a fraction of all gun sales. And phone calls to more than 50 dedicated gun dealers confirmed that many remained open in defiance of state orders to close.
During April, the National Instant Criminal Background Check System processed 2.9 million checks, making it the fourth highest month on record, dating back to 1998. The Trace compared the number of background checks for handguns, long guns, and transactions involving both types of gun with the same figures for 2019.
In some of the states where stores were ordered closed, dealers conducted more checks in April than during the same month in 2019. In Washington state, for instance, checks increased 45% over April 2019; in New Mexico, they increased 15%.
Checks increased by 112% in Michigan, where at least part of the surge may be attributed to a March 3 ruling by the Bureau of Alcohol, Tobacco, Firearms and Explosives, according to a spokesperson for the Michigan State Police. That ruling said that firearms dealers cannot accept a Michigan-issued concealed carry permit in lieu of conducting a background check, adding gun transfers to permit holders – previously not counted – to the FBI data.
Anthony Coulson, a former Drug Enforcement Administration agent who is an expert on the background check system, said the increased gun sales rendered the stay-at-home orders “meaningless.”
“What’s the motivation for implementing a nonessential order if it’s not going to be enforced and has no impact?” Coulson asked.
The two states that didn’t register any year-over-year increase in firearm background checks were New York and Massachusetts. In New York, the number of checks hovered just below normal levels. In Massachusetts, background checks saw a significant year-over-year decrease, falling 66%.
Store owners offered a litany of reasons they are violating the orders. Some considered them a breach of their Second Amendment rights. Some felt emboldened by a March 28 revision to Department of Homeland Security guidance that deemed the gun industry an essential business during the pandemic.
The DHS guidance, which is nonbinding, was heavily pushed by the National Shooting Sports Foundation, the industry trade group.
Other store owners said they felt that they could operate safely if they took reasonable precautions. Still others said they considered their businesses exempt from statewide restrictions.
“I would say that I’m supposed to be closed,” said Dennis Brown, who owns Shoreline Tactical, a gun shop in Shoreline, Washington. But with so many stores closed, “people can’t get their guns. So I’ve elected to stay open on an appointment-only basis.”
Defiant stores more often than not went unpunished, The Trace found, despite proclamations from several governors that states would mete out harsh penalties to noncompliant businesses of all types.
The April background check numbers continue a trend first spotted by The Trace in early March, when gun store owners along the West Coast saw a surge in Asian American customers fearful of xenophobic backlash to the virus. By the end of the month, fears of social unrest spread to the general public, driving a historic sales bump. The FBI processed a record number of checks in March, outstripping the prior high by 12%.
As USA TODAY has reported, the increase has overwhelmed the federal background check system, prompting the FBI to warn gun retailers that screenings could take up to a month to complete. An FBI spokesperson said the system “remains fully operational and will continue to process requests.”
Surge in gun sales: FBI background check system overwhelmed while dealers are urged to wait on sales
In each of the five states where gun stores were deemed nonessential, The Trace contacted retailers to inquire whether they were open. In Michigan, 15 of 20 stores said that they were open to walk-in customers. The remaining five did not answer their phones. In Washington, all 10 dealers contacted were also selling guns, but some emphasized that they required customers to schedule appointments to ensure social distancing.
In New Mexico, 9 out of 10 dealers contacted were open throughout April; in New York, four out of 10 stores contacted said the same. The remaining stores in both states did not answer calls.
Only in Massachusetts did most stores appear to be closed. Of 20 gun retailers contacted in the state, only one – in Montague – reported being open. Three others declined to answer questions; the rest did not answer calls.
Gun stores cite rights, loopholes in decision to keep selling
Shawn Brancheau, who runs Guns Galore in Fenton, Michigan, said that he considers his store an essential business even though Gov. Gretchen Whitmer has said the opposite.
“Home defense needs to be a consideration of the governor at a time like this,” he said, adding that he felt justified staying open because of the Department of Homeland Security’s March guidance. He questioned the constitutionality of any order that would require gun stores to close and said local police had already been in his store to shop and took no action.
“Either there is no Second Amendment or you have the right to bear arms,” Brancheau said.
Steve Hayes, an owner of Bob’s Gun and Tackle Shop Inc. in Hastings, Michigan, said he understood that state orders superseded the federal guidance, but said Michigan’s order was too ambiguous. A call to the attorney’s general office, he says, provided little clarity.
“Local authorities are giving different answers,” he said. “It’s been very confusing for a lot of store owners, and probably for customers, too, when they see one store shut and one store open.”
Hayes said he received a written exemption from his local police department allowing him to stay open but declined to provide a copy of the document. Calls to the Barry County Sheriff’s Department, which has jurisdiction over Hayes’ store, were not returned.
Other store owners said their livelihoods depend upon keeping their doors open. Chris Burnett, who operates Kokopelli Pawn and Gun in Aztec, New Mexico, opened his shop just before the coronavirus reached the U.S. He says the New Mexico State Police have visited three times in the past month, instructing him to close his store. On the third visit, troopers fined him $100 and warned him that continued noncompliance could result in a six-month jail sentence.
Still, he stayed open. “I just threw everything into my business,” he said. “I have two little girls at home to feed.”
Some retailers said that even in states where the closure orders were unambiguous, they had found wiggle room to continue operating.
Ryan Blake, who runs High Plains Gun Shop six hours east of Burnett’s store, in Clovis, New Mexico, said his store had been approved to stay open by local authorities.
“We’re essentially a department of an essential business since we’re located in a hardware store,” he said. “So we’ve fallen under a gray area.”
Likewise, Paul Smith, who runs S&S Gun Sales in Auburn, New York, said he found a loophole in Gov. Andrew Cuomo’s order.
“We were not originally on the list of essential businesses, but being a single proprietor gun store owner, I realized I could be open when I choose to,” he said.
New Mexico Gov. Michelle Lujan Grisham’s office, which has the authority to issue exemptions to New Mexico’s stay-at-home order, did not respond to requests for comment. In New York, a spokesperson for the Empire State Development Corporation, which determines which businesses are considered essential under Cuomo’s order, said that gun stores, like all nonessential retail, were permitted to have one person in the shop to fulfill online orders.
Dealers avoid penalties for violating state orders
Many states have struck a hard tack on businesses violating stay-at-home orders, threatening fines and criminal charges for those who ignore initial warnings. But noncompliant firearm retailers appear to have largely avoided such penalties outside of New Mexico. A spokesperson for the New Mexico State Police said that six gun dealers there were issued cease and desist letters in April.
Enforcing the shutdown: Law enforcement grapples with policing stay-at-home orders, social distancing, quarantines
In Michigan, for example, a spokesperson for the state’s attorney general’s office told the Detroit Free Press that nonessential businesses could face forced closures and up to 90 days in jail for refusing to comply with the governor’s order. The Michigan State Police recently cited an Owosso barber shop for noncompliance, asking it to close or face harsher penalties.
But several of the Michigan gun retailers interviewed for this story said that local authorities were aware of their operations and had taken no action.
When provided background check data suggesting noncompliance among gun stores in the state, a spokesperson for the Michigan attorney general’s office said that enforcement was being handled at the local level. He added, “There has been nothing in Gov. Whitmer’s executive orders that has specifically referenced firearm retailers.”
In Washington, Gov. Jay Inslee outlined a three-tier penalty system for offending businesses: one violation earned a warning; another led to citations and possible business license revocation; one more could result in criminal charges.
But media reports suggest that few if any Washington state businesses have been hit with severe penalties. The Seattle Times and Komo News have reported on lax enforcement efforts for noncompliant businesses like gyms and construction sites.
According to records obtained from the Washington Military Department, which receives complaints about compliance in the state, several gun stores also have continued to operate after allegations of noncompliance.
One, Lynnwood Guns and Ammunition, was the subject of more than 20 complaints in the state’s database, all of which alleged large crowds and a lack of enforcement of social distancing requirements. One complainant alleged that they had confronted the store’s proprietor and shown her that gun stores are not essential per the governor’s order. “She asked me to leave,” the complaint reads.
A representative from Lynnwood Guns and Ammunition declined to comment.
Overall, the Washington Military Department received more than 200 complaints about noncompliant gun stores since the state’s stay-at-home order took effect on March 25 – and more than 100 requests from retailers for exemptions from the order. It’s unclear from the records whether any of those exemptions were granted.
In Massachusetts, both the state police and the attorney’s general office directed questions about compliance to the governor’s office, which did not respond to multiple requests for comment about the state’s enforcement efforts. The Massachusetts Department of Health said enforcement was handled by municipalities; spokespeople for police departments in Worcester and Framingham reported that gun stores in those cities were all compliant with the order.
The ATF, the nation’s gun enforcement agency, said that violations of state and local laws could put dealers’ federal licenses at risk.
Applicants must affirm that they are in compliance with local and state laws before licenses are conferred and every three years when licenses are renewed. License status for dealers charged with local offenses, the ATF said, likely would be reviewed on a case-by-case basis.
Gun lobby says continued sales are 'not surprising'
The National Rifle Association referred questions to the National Shooting Sports Foundation. There, general counsel Larry Keane said it was “not surprising” that gun sales did not suffer in states where firearms dealers were restricted or prohibited from operating during the health emergency.
Keane said that local enforcement of the state executive orders has not been consistent across the states.
“In some areas, local sheriffs are not going to force gun shops to close because that’s where law enforcement buys equipment to do the job,” he said. “We are aware that local law enforcement have been advising dealers in some cases not to close because that’s where they are buying ammunition and firearms.”
Keane said the foundation has made no effort to advise dealers on actual operations. Rather, he said the group has provided the industry with a running list of orders approved by the state, including the essential business operations recognized in those jurisdictions.
“We are not telling people to open; we are not telling people to close,” Keane said. “We’re just providing access to good information.”
Christian Heyne, the vice president of policy for the Brady Center to Prevent Gun Violence, called gun stores' disobedience deeply concerning.
The United States relies on gun stores, as federally licensed businesses, to follow state and federal guidelines to ensure the safety of communities across the country, he said, “so it is incredibly alarming to think that there are a number of gun dealers that are essentially going rogue."
Meanwhile, the NRA has vigorously condemned states that ordered gun retailers to shutter and filed lawsuits against governors in New Mexico and New York. Massachusetts and Michigan also face lawsuits over their orders.
As states phase in their reopening plans, the situation for gun sales is rapidly changing. On May 1, New Mexico’s governor said gun stores could reopen on an appointment-only basis. On May 7, a federal judge in Massachusetts ruled that the state’s shutdown of gun stores was unconstitutional. Stores there officially reopened for business on May 9.
This article originally appeared on USA TODAY: Gun shops flouted state closures, fueling coronavirus sales boom