PA Bill Number: HB335

Title: In inchoate crimes, further providing for prohibited offensive weapons.

Description: In inchoate crimes, further providing for prohibited offensive weapons. ...

Last Action: Removed from table

Last Action Date: May 1, 2024

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Criminal charge in Marysville case shows NICS flaw UBC can't fix :: 04/01/2015

Breaking news today that the father of Marysville Pilchuck High School shooter Jaylen Fryberg has been arrested for having “illegally purchased” the handgun used in that October tragedy demonstrates a flaw in the National Instant Check System (NICS) that cannot be fixed by so-called “universal background check” legislation.

The formal charge is Unlawful Possession of a Firearm by a Prohibited Person, according to Emily Langlie, public affairs officer for the U.S. Attorney in Seattle. Every news agency in the Seattle area has pounced on the story.

Charging documents against Raymond Lee Fryberg, 42, revealed that he bought the .40-caliber Beretta PX4 Storm pistol in January 2013, three months after he allegedly admitted in Tulalip Tribal Court that he had violated a permanent protection order. That order, issued in September 2002, disqualified him from possessing firearms, yet the government alleges that when he filled out the federal Form 4473, he answered “no” to a specific question about being subject to such orders.

The U.S. Attorney also alleges that Fryberg bought four other guns between January 2013 and July 2014, and that he also marked “no” on those federal forms at each purchase. However, he cleared each NICS check because – for some reason – the tribal court order information from 2002 apparently never made it to the NICS system.

But on Sept. 10, 2012, ten years after the permanent order was issued, Fryberg, according to the federal court document, “was convicted for violating” the same court order. That suggests Fryberg had to know at the time he bought the pistol that there was a permanent order still in effect, and so did the court.

If such information is not submitted to the NICS system, it won’t flag when someone is purchasing a firearm. No background check, “universal” or otherwise, is going to catch such information if it isn’t there to be caught. This is particularly troubling because there was plenty of time between when Fryberg bought the handgun at a Cabela's store in Tulalip on Jan. 11, 2013 and when he picked it up on Jan. 23; ample time for authorities to conduct a check.

In a statement, Cabela's said it “strictly complies with federal, state and local laws regulating the sale of firearms. Cabela’s records indicate the transaction was processed in compliance with applicable regulations, including background checks.” The statement is being reported by local news agencies.

Acting U.S. Attorney Annette L. Hayes released a statement about Fryberg’s arrest, asserting, “Guns in the hands of people who have demonstrated they will use violence is a dangerous mix that is prohibited by law. Our office has a long history of working with our federal, state, local and tribal law enforcement partners across Western Washington to prosecute those who illegally possess firearms. This case is part of that effort and a reminder that we are united in our commitment to get firearms out of the hands of those who pose the greatest risk to our communities.”

Yet, that doesn’t explain how the tribal court actions in 2002 and again in 2012 apparently didn’t make it to NICS, advising of Fryberg’s disqualification. KOMO reported Tuesday evening that Tribal courts are apparently not required to share information with the government, and that there are apparently no records of Fryberg’s convictions in state or federal databases.

It’s no secret that the NICS database has problems. But instead of campaigning on Capitol Hill for the money to fix this, the gun prohibition lobby is currently engaged in a state-by-state effort to pass “universal background check” measures that, upon analysis, look more like backdoor gun registration schemes. Still, if the tribal court information never was entered in the NICS database, it's not the fault of the FBI, which operates the system.

The Bellevue-based Citizens Committee for the Right to Keep and Bear Arms, which last year opposed Initiative 594 in Washington state, issued a statement this afternoon in which Chairman Alan Gottlieb noted, “Penalizing all law-abiding gun owners because a system is flawed does not prevent crime from happening, nor does it keep the wrong people from getting their hands on guns.”

CCRKBA was part of the Protect Our Gun Rights (POGR) coalition that offered an alternative measure, Initiative 591. In addition to their opposition to I-594, a majority of the state’s county sheriffs and two law enforcement organizations opposed the measure. When the Washington State Patrol had a chance to enforce it in December, they didn’t, claiming that initiative language regarding “transfers” was not clear.

At the time of the shooting, the election was only a few days away. The chief local proponent of I-594, Nick Hanauer, went on social media sarcastically stating, “We need more school shootings!!!” He ignored the fact that 15-year-old Jaylen Fryberg could not possibly have legally purchased a handgun, so a background check law would have been irrelevant.

In his press statement today, Gottlieb recalled Hanauer’s remark as “a despicable attempt to exploit the shooting.” He also said it is “now painfully clear that the measure he and his elitist friends sold the public would not have prevented what happened.”

And now, five people are dead, including Fryberg’s son. Many Second Amendment activists believe the multiple slaying tilted the I-594 election outcome when, even if it had been law, it would not have prevented what happened without the information about his father’s disqualification being added to the NICS database.

This is what Gottlieb called a “fatal flaw” with the whole “universal background check” effort. He suggested that the billionaire anti-gunners who financed the I-594 campaign could better spend their money “lobbying Congress to either fix the NICS system or scrap it altogether.”

“Indeed,” he observed, “if billionaire gun prohibitionists really wanted to do something useful with their money, they could donate it to the government to pay for the NICS fixes, including better data entry” instead of financing initiative campaigns “aimed at back-door gun registration.”

The Seattle Times quoted an Associated Press story that said State Sen. John McCoy, a member of the Tulalip Tribes “didn’t know Fryberg had been subject to a restraining order.”

“That’s exceptionally troublesome to me,” McCoy told a reporter. “It points me to the issue we’ve been arguing about in the state, that people are not going to tell the truth when they fill out the forms to buy a gun, so maybe we should have a registry of people who are subject to these orders. That’ll be more fodder for discussion.”

That may not provide a solution, either, if the tribal courts do not provide information about such disqualifications, as KOMO reported. There may be lots of blame to spread for what happened at Marysville Pilchuck last October, but law-abiding gun owners are now saddled with a "universal background check" law — currently being challenged in federal court — that, according to the apparent circumstances, the new law could not have prevented.