In what’s believed to be the first prosecution under a 2014 voter-approved background check law, a former Oak Harbor, Washington, resident has been charged with illegally transferring a .22-caliber pistol that was later used in a homicide.
Island County Prosecutor Greg Banks said the alleged illegal transfer was discovered in the course of investigating the murder of 17-year-old John Skyler Johnson last year.
“The focus of the law enforcement officers was they wanted to get the pedigree of the gun and find the gun so that it could be used in the murder prosecution," Banks said. "But it occurred to us that, 'Hey this is also a gun that was transferred illegally and our job is to prosecute crimes when they are referred to us.' And so we are.”
Twenty-five-year-old Mark Mercado is charged with one count of unlawful transfer of a firearm. That’s a gross misdemeanor punishable by up to a year in jail. A warrant for his arrest has been issued, but the prosecutor’s office says his whereabouts are not known.
Initiative 594, sponsored by gun control backers, aimed to close the so-called “gun show loophole” and require a federal background check for person-to-person gun sales and transfers. Prior to the law passing, only sales by gun dealers required a background check in Washington.
In charging documents, the Island County prosecutor alleges that on November 9, 2015, Mercado gave a Phoenix Arms HP-22 pistol to David Nunez. The following evening, investigators believe that same gun was used to murder Johnson in a dispute over an impounded car.
Nunez and three other co-defendants later pleaded guilty in connection to the murder. Nunez, who was 19 at the time and not the gunman, was sentenced to 25 years in prison in May, according to the Whidbey News-Times.
The illegal firearm transfer case against Mercado, who was not involved in the murder, languished for several months until the charge was filed on Friday in Island County Superior Court.
According to charging documents, Nunez contacted Mercado via text message looking for a “toolie,” a slang word for a gun. Mercado allegedly wrote back, “Not a problem” and asked “can you get here in less than 10 minutes.”
Detectives say they also recovered a partial text message from Nunez to Mercado sent the night of the murder that read in part, “I took your bullets and then put gloves on to …”
Later, Mercado gave a statement to detectives in which he said that he met with Nunez and provided him a .22 caliber-pistol. Since that interview, detectives have been unable to locate Mercado, who moved out of his apartment in Oak Harbor. The gun has also not been recovered. Detectives believe it was disposed of in the ocean after Johnson’s murder.
Prosecutors have obtained an arrest warrant for Mercado and have requested he be held on $5,000 bail.
Under Initiative 594, overwhelmingly passed by Washington voters in November 2014, people selling or transferring a firearm are required to go through a federally-licensed firearms dealer to conduct a background check on the buyer. The law applies to in-person, gun show and internet sales.
I-594 was billed as a way to reduce gun violence and keep guns out of the hands of felons, as well as close a gap in the existing background check law.
Gun rights supporters, who opposed I-594, called the background check requirement unenforceable and an infringement upon the rights of law-abiding gun owners and buyers. After the law passed, the Bellevue-based Second Amendment Foundation filed a legal challenge. That lawsuit was dismissed in 2015 for lack of standing on the part of the plaintiffs.
At the time, the plaintiffs signaled their intention to appeal to the 9th U.S. Circuit Court of Appeals. A prosecution under the law could provide opponents a new opportunity to challenge it.
A violation of the background check law is a gross misdemeanor punishable by up to a year in jail and a $5,000 fine. A second offense becomes a felony.
As of March of this year background checks had stopped 50 private gun sales, according to FBI data. However, there had been no prosecutions under Initiative 594.
This story was reported in collaboration with KING 5 News