Bill Text: VA SB18 | 2020 | Regular Session | Prefiled
Bill Title: Firearms; criminal history record information checks, age requirement, penalty.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-22 - Stricken at the request of Patron in Judiciary (12-Y 0-N) [SB18 Detail]
Download: Virginia-2020-SB18-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§18.2-56.2, 18.2-308.2:2, 18.2-308.7, and 54.1-4201.2 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 18.2-308.2:5 as follows:
§18.2-56.2. Allowing access to firearms by minors; penalty.
A. It shall be is unlawful for any person to
recklessly leave a loaded, unsecured firearm in such a manner as to endanger
the life or limb of any child person under the age of fourteen
18. Any person violating the provisions of this subsection shall be
is guilty of a Class 3 misdemeanor 6 felony.
B. It shall be is unlawful for any person
knowingly to authorize a child under the age of
twelve 18
to use a firearm except when the child is under the supervision of an adult.
Any person violating this subsection shall be is guilty of a Class 1
misdemeanor. For purposes of this subsection, "adult" shall mean
means a parent, guardian, person standing in loco parentis
to the child, or
a person twenty-one 21 years
of age or over older who has the permission
of the parent, guardian, or person standing in loco parentis to supervise the
child in the use of a firearm.
§18.2-308.2:2. Criminal history record information check required for the transfer of certain firearms.
A. Any person 21
years of age or older,
or who has attained the age of 18 by July
1, 2020, purchasing from a dealer a firearm as herein defined in this section shall consent
in writing, on a form to be provided by the Department of State Police, to have
the dealer obtain criminal history record information. Such form shall include
only the written consent; the name, birth date, gender, race, citizenship, and
social security number and/or any other identification number; the number of
firearms by category intended to be sold, rented, traded, or transferred; and
answers by the applicant to the following questions: (i) has the applicant been
convicted of a felony offense or found guilty or adjudicated delinquent as a
juvenile 14 years of age or older at the time of the offense of a delinquent
act that would be a felony if committed by an adult; (ii) is the applicant
subject to a court order restraining the applicant from harassing, stalking, or
threatening the applicant's child or intimate partner, or a child of such
partner, or is the applicant subject to a protective order; and (iii) has the
applicant ever been acquitted by reason of insanity and prohibited from
purchasing, possessing or transporting a firearm pursuant to §18.2-308.1:1 or
any substantially similar law of any other jurisdiction, been adjudicated
legally incompetent, mentally incapacitated or adjudicated an incapacitated
person and prohibited from purchasing a firearm pursuant to §18.2-308.1:2 or
any substantially similar law of any other jurisdiction, or been involuntarily
admitted to an inpatient facility or involuntarily ordered to outpatient mental
health treatment and prohibited from purchasing a firearm pursuant to §
18.2-308.1:3 or any substantially similar law of any other jurisdiction.
B. 1. No dealer shall sell, rent, trade, or transfer from his inventory any such firearm to any other person who is 21 years of age or older, or who has attained the age of 18 by July 1, 2020, and is a resident of Virginia until he has (i) obtained written consent and the other information on the consent form specified in subsection A, and provided the Department of State Police with the name, birth date, gender, race, citizenship, and social security and/or any other identification number and the number of firearms by category intended to be sold, rented, traded or transferred and (ii) requested criminal history record information by a telephone call to or other communication authorized by the State Police and is authorized by subdivision 2 to complete the sale or other such transfer. To establish personal identification and residence in Virginia for purposes of this section, a dealer must require any prospective purchaser to present one photo-identification form issued by a governmental agency of the Commonwealth or by the United States Department of Defense that demonstrates that the prospective purchaser resides in Virginia. For the purposes of this section and establishment of residency for firearm purchase, residency of a member of the armed forces shall include both the state in which the member's permanent duty post is located and any nearby state in which the member resides and from which he commutes to the permanent duty post. A member of the armed forces whose photo identification issued by the Department of Defense does not have a Virginia address may establish his Virginia residency with such photo identification and either permanent orders assigning the purchaser to a duty post, including the Pentagon, in Virginia or the purchaser's Leave and Earnings Statement. When the photo identification presented to a dealer by the prospective purchaser is a driver's license or other photo identification issued by the Department of Motor Vehicles, and such identification form contains a date of issue, the dealer shall not, except for a renewed driver's license or other photo identification issued by the Department of Motor Vehicles, sell or otherwise transfer a firearm to the prospective purchaser until 30 days after the date of issue of an original or duplicate driver's license unless the prospective purchaser also presents a copy of his Virginia Department of Motor Vehicles driver's record showing that the original date of issue of the driver's license was more than 30 days prior to the attempted purchase.
In addition, no dealer shall sell, rent, trade, or transfer from his inventory any assault firearm to any person who is not a citizen of the United States or who is not a person lawfully admitted for permanent residence.
Upon receipt of the request for a criminal history record information check, the State Police shall (a) review its criminal history record information to determine if the buyer or transferee is prohibited from possessing or transporting a firearm by state or federal law, (b) inform the dealer if its record indicates that the buyer or transferee is so prohibited, and (c) provide the dealer with a unique reference number for that inquiry.
2. The State Police shall provide its response to the requesting dealer during the dealer's request, or by return call without delay. If the criminal history record information check indicates the prospective purchaser or transferee has a disqualifying criminal record or has been acquitted by reason of insanity and committed to the custody of the Commissioner of Behavioral Health and Developmental Services, the State Police shall have until the end of the dealer's next business day to advise the dealer if its records indicate the buyer or transferee is prohibited from possessing or transporting a firearm by state or federal law. If not so advised by the end of the dealer's next business day, a dealer who has fulfilled the requirements of subdivision 1 may immediately complete the sale or transfer and shall not be deemed in violation of this section with respect to such sale or transfer. In case of electronic failure or other circumstances beyond the control of the State Police, the dealer shall be advised immediately of the reason for such delay and be given an estimate of the length of such delay. After such notification, the State Police shall, as soon as possible but in no event later than the end of the dealer's next business day, inform the requesting dealer if its records indicate the buyer or transferee is prohibited from possessing or transporting a firearm by state or federal law. A dealer who fulfills the requirements of subdivision 1 and is told by the State Police that a response will not be available by the end of the dealer's next business day may immediately complete the sale or transfer and shall not be deemed in violation of this section with respect to such sale or transfer.
3. Except as required by subsection D of §9.1-132, the State Police shall not maintain records longer than 30 days, except for multiple handgun transactions for which records shall be maintained for 12 months, from any dealer's request for a criminal history record information check pertaining to a buyer or transferee who is not found to be prohibited from possessing and transporting a firearm under state or federal law. However, the log on requests made may be maintained for a period of 12 months, and such log shall consist of the name of the purchaser, the dealer identification number, the unique approval number and the transaction date.
4. On the last day of the week following the sale or transfer of any firearm, the dealer shall mail or deliver the written consent form required by subsection A to the Department of State Police. The State Police shall immediately initiate a search of all available criminal history record information to determine if the purchaser is prohibited from possessing or transporting a firearm under state or federal law. If the search discloses information indicating that the buyer or transferee is so prohibited from possessing or transporting a firearm, the State Police shall inform the chief law-enforcement officer in the jurisdiction where the sale or transfer occurred and the dealer without delay.
5. Notwithstanding any other provisions of this section, rifles and shotguns may be purchased by persons who are 21 years of age or older, or who have attained the age of 18 by July 1, 2020, and are citizens of the United States or persons lawfully admitted for permanent residence but residents of other states under the terms of subsections A and B upon furnishing the dealer with one photo-identification form issued by a governmental agency of the person's state of residence and one other form of identification determined to be acceptable by the Department of Criminal Justice Services.
6. For the purposes of this subsection, the phrase "dealer's next business day" shall not include December 25.
C. No dealer shall sell, rent, trade, or transfer from his inventory any firearm, except when the transaction involves a rifle or a shotgun and can be accomplished pursuant to the provisions of subdivision B 5, to any person who is 21 years of age or older, or who has attained the age of 18 by July 1 2020, and is not a resident of Virginia unless he has first obtained from the Department of State Police a report indicating that a search of all available criminal history record information has not disclosed that the person is prohibited from possessing or transporting a firearm under state or federal law. The dealer shall obtain the required report by mailing or delivering the written consent form required under subsection A to the State Police within 24 hours of its execution. If the dealer has complied with the provisions of this subsection and has not received the required report from the State Police within 10 days from the date the written consent form was mailed to the Department of State Police, he shall not be deemed in violation of this section for thereafter completing the sale or transfer.
D. Nothing herein in this section shall prevent
a resident of the Commonwealth, at his option, from buying, renting, or receiving a firearm from a
dealer in Virginia by obtaining a criminal history record information check
through the dealer as provided in subsection C.
E. If any buyer or transferee is denied the right to purchase a firearm under this section, he may exercise his right of access to and review and correction of criminal history record information under §9.1-132 or institute a civil action as provided in §9.1-135, provided any such action is initiated within 30 days of such denial.
F. Any dealer who willfully and intentionally requests,
obtains, or seeks to obtain criminal history record information under false
pretenses, or who willfully and intentionally disseminates or seeks to
disseminate criminal history record information except as authorized in this
section shall be is guilty of a Class 2 misdemeanor.
G. For purposes of this section:
"Actual buyer" means a person who executes the consent form required in subsection B or C, or other such firearm transaction records as may be required by federal law.
"Antique firearm" means:
1. Any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898;
2. Any replica of any firearm described in subdivision 1 of this definition if such replica (i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition or (ii) uses rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and that is not readily available in the ordinary channels of commercial trade;
3. Any muzzle-loading rifle, muzzle-loading shotgun, or muzzle-loading pistol that is designed to use black powder, or a black powder substitute, and that cannot use fixed ammunition. For purposes of this subdivision, the term "antique firearm" shall not include any weapon that incorporates a firearm frame or receiver, any firearm that is converted into a muzzle-loading weapon, or any muzzle-loading weapon that can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breech-block, or any combination thereof; or
4. Any curio or relic as defined in this subsection.
"Assault firearm" means any semi-automatic center-fire rifle or pistol which expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine which will hold more than 20 rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock.
"Curios or relics" means firearms that are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons. To be recognized as curios or relics, firearms must fall within one of the following categories:
1. Firearms that were manufactured at least 50 years prior to the current date, which use rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and that is not readily available in the ordinary channels of commercial trade, but not including replicas thereof;
2. Firearms that are certified by the curator of a municipal, state, or federal museum that exhibits firearms to be curios or relics of museum interest; and
3. Any other firearms that derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event. Proof of qualification of a particular firearm under this category may be established by evidence of present value and evidence that like firearms are not available except as collectors' items, or that the value of like firearms available in ordinary commercial channels is substantially less.
"Dealer" means any person licensed as a dealer pursuant to 18 U.S.C. §921 et seq.
"Firearm" means any handgun, shotgun, or rifle that will or is designed to or may readily be converted to expel single or multiple projectiles by action of an explosion of a combustible material.
"Handgun" means any pistol or revolver or other firearm originally designed, made and intended to fire single or multiple projectiles by means of an explosion of a combustible material from one or more barrels when held in one hand.
"Lawfully admitted for permanent residence" means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.
H. The Department of Criminal Justice Services shall promulgate regulations to ensure the identity, confidentiality and security of all records and data provided by the Department of State Police pursuant to this section.
I. The provisions of this section shall not apply to (i) transactions between persons who are licensed as firearms importers or collectors, manufacturers or dealers pursuant to 18 U.S.C. §921 et seq.; (ii) purchases by or sales to any law-enforcement officer or agent of the United States, the Commonwealth or any local government, or any campus police officer appointed under Article 3 (§23.1-809 et seq.) of Chapter 8 of Title 23.1; or (iii) antique firearms, curios or relics.
J. The provisions of this section shall not apply to restrict purchase, trade or transfer of firearms by a resident of Virginia when the resident of Virginia makes such purchase, trade or transfer in another state, in which case the laws and regulations of that state and the United States governing the purchase, trade or transfer of firearms shall apply. A National Instant Criminal Background Check System (NICS) check shall be performed prior to such purchase, trade, or transfer of firearms.
J1. All licensed firearms dealers shall collect a fee of $2 for every transaction for which a criminal history record information check is required pursuant to this section, except that a fee of $5 shall be collected for every transaction involving an out-of-state resident. Such fee shall be transmitted to the Department of State Police by the last day of the month following the sale for deposit in a special fund for use by the State Police to offset the cost of conducting criminal history record information checks under the provisions of this section.
K. Any person willfully and intentionally making a materially
false statement on the consent form required in subsection B or C, or on such firearm
transaction records as may be required by federal law,
shall be is
guilty of a Class 5 felony.
L. Except as provided in §18.2-308.2:1, any dealer who
willfully and intentionally sells, rents, trades,
or transfers a firearm in violation of this section
shall be is
guilty of a Class 6 felony.
L1. Any person who attempts to solicit, persuade, encourage,
or entice any dealer to transfer or otherwise convey a firearm other than to
the actual buyer, as well as any other person who willfully and intentionally
aids or abets such person, shall be is guilty of a Class 6 felony.
This subsection shall not apply to a federal law-enforcement officer or a
law-enforcement officer as defined in §9.1-101, in the performance of his
official duties, or other person under his direct supervision.
M. Any person who purchases a firearm with the intent to (i)
resell or otherwise provide such firearm to any person who he knows or has
reason to believe is ineligible to purchase or otherwise receive from a dealer
a firearm for whatever reason or (ii) transport such firearm out of the
Commonwealth to be resold or otherwise provided to another person who the
transferor knows is ineligible to purchase or otherwise receive a firearm, shall be is
guilty of a Class 4 felony and sentenced to a mandatory minimum term of
imprisonment of one year. However, if the violation of this subsection involves
such a transfer of more than one firearm, the person shall be sentenced to a
mandatory minimum term of imprisonment of five years. The prohibitions of this
subsection shall not apply to the purchase of a firearm by a person for the
lawful use, possession, or transport thereof, pursuant to §18.2-308.7, by his
child, grandchild, or individual for whom he is the legal guardian if such
child, grandchild, or individual is ineligible, solely because of his age, to
purchase a firearm.
N. Any person who is ineligible to purchase or otherwise
receive or possess a firearm in the Commonwealth who solicits, employs, or assists any person in
violating subsection M shall be is guilty of a Class 4 felony
and shall be sentenced to a mandatory minimum term of imprisonment of five
years.
O. Any mandatory minimum sentence imposed under this section shall be served consecutively with any other sentence.
P. All driver's licenses issued on or after July 1, 1994, shall carry a letter designation indicating whether the driver's license is an original, duplicate or renewed driver's license.
Q. Prior to selling, renting, trading, or transferring any firearm owned by the dealer but not in his inventory to any other person, a dealer may require such other person to consent to have the dealer obtain criminal history record information to determine if such other person is prohibited from possessing or transporting a firearm by state or federal law. The Department of State Police shall establish policies and procedures in accordance with 28 C.F.R. §25.6 to permit such determinations to be made by the Department of State Police, and the processes established for making such determinations shall conform to the provisions of this section.
R. No person under 21 years of age, or who has not attained the age of 18 by July 1, 2020, shall purchase a firearm. The sale or transfer of a firearm to a person under 21 years of age, or who has not attained the age of 18 by July 1, 2020, shall not be made or facilitated by a dealer.
§18.2-308.2:5. Criminal history record information check required to transfer firearm; penalty.
A. No person shall sell, rent, trade, or transfer a firearm unless he has obtained verification from a dealer, as defined in § 18.2-308.2:2, that information on the prospective purchaser or transferee has been submitted for a criminal history record information check as set out in §18.2-308.2:2 and that a determination has been received from the Department of State Police that the prospective purchaser or transferee is not prohibited under state or federal law from possessing a firearm. The Department of State Police shall provide a means by which transferors may obtain from designated dealers the approval or denial of firearm transfer requests based on criminal history record information checks. The processes established shall conform to the provisions of §18.2-308.2:2, and the definitions and provisions of §18.2-308.2:2 regarding criminal history record information checks shall apply to this section mutatis mutandis. The designated dealer shall collect and disseminate the fees prescribed and required in §18.2-308.2:2. The dealer may charge and retain an additional fee not to exceed $15 for obtaining criminal history record information checks on behalf of transferors. Any person who willfully and intentionally sells, rents, trades, or transfers a firearm to another person without obtaining verification in accordance with this section is guilty of a Class 1 misdemeanor.
B. Notwithstanding the provisions of subsection A, unless otherwise prohibited by state or federal law and when the transferor has no reason to believe that the transferee is prohibited from possessing a firearm or intends to use the firearm in the commission of a crime, a person may transfer a firearm to another person if:
1. The transfer is a bona fide gift made by or to a member of a person's immediate family, as defined in §6.2-1300, or a personal friend;
2. The transfer occurs by operation of law;
3. The person receiving the firearm is an executor or administrator of an estate or is a trustee of a trust created by a will, and the firearm to be transferred is property of such estate or trust;
4. The transferor is an executor or administrator of an estate or is a trustee of a trust created by a will, and the firearm to be transferred is property of such estate or trust;
5. The transfer is temporary and is necessary to prevent imminent death or great bodily harm;
6. The transfer is temporary and occurs within the continuous presence of the owner of the firearm;
7. The sale or transfer of a firearm is to an authorized representative of the Commonwealth or any subdivision thereof as part of an authorized voluntary gun buy-back or give-back program;
8. The transfer is of an antique firearm as defined in §18.2-308.2:2;
9. The transfer occurs at a shooting range, shooting gallery, or any other area designed for the purpose of target shooting or for use during target practice, a firearms safety or training course or class, a shooting competition, or any similar lawful activity; or
10. The transfer occurs at a firearms show, as defined in §54.1-4200, and the transferor has received a determination from the Department of State Police that the transferee is not prohibited under state or federal law from possessing a firearm in accordance with §54.1-4201.2.
C. No dealer shall make or facilitate a sale or transfer of a firearm, pursuant to this section, to a person under 21 years of age, or who has not attained the age of 18 by the effective date of this act.
§18.2-308.7. Possession or transportation of certain firearms by persons under the age of 21; penalty.
It shall be unlawful for any person under
18 21
years of age to knowingly and intentionally possess or transport a handgun or assault
firearm anywhere in the Commonwealth. For the purposes of this section,
"handgun" means any pistol or revolver or other firearm originally
designed, made and intended to fire single or multiple projectiles by means of
an explosion of a combustible material from one or more barrels when held in
one hand and "assault firearm" means any (i) semi-automatic
centerfire rifle or pistol which expels single or multiple projectiles by
action of an explosion of a combustible material and is equipped at the time of
the offense with a magazine which will hold more than 20 rounds of ammunition
or designed by the manufacturer to accommodate a silencer or equipped with a
folding stock or (ii) shotgun with a magazine which will hold more than seven
rounds of the longest ammunition for which it is chambered. A violation of this
section shall be a Class 1 misdemeanor.
This section shall not apply to:
1. Any person (i) while in his home or on his property; (ii)
while in the home or on the property of his parent, grandparent, or legal
guardian; or (iii) while on the property of another who has provided prior
permission and such person
has the landowner's written permission on his person while on such property, and with but if
such person is under 18 years of age,
then such person shall be required to have the
prior permission of his parent or legal guardian
if person has in addition to
the landowner's prior
written permission on his person
while on such property;
2. Any person who, while accompanied by
an adult a person 21 years
of age or older, is at, or going to and from, a lawful
shooting range or firearms educational class, provided that the weapons are
unloaded while being transported;
3. Any person actually engaged in lawful hunting or going to
and from a hunting area or preserve, provided that the weapons are unloaded
while being transported; and
4. Any person while carrying out his duties in the Armed Forces of the United States or the National Guard of this Commonwealth or any other state;
5. Any person employed as a law-enforcement officer, as defined in § 9.1-101, or as an armed security officer who is licensed as such pursuant to Article 4 (§9.1-138 et seq.) of Chapter 1 of Title 9.1; and
6. Any person who has obtained the age of 18 by July 1, 2020.
§54.1-4201.2. Firearm transactions by persons other than dealers; background checks.
A. The Department of State Police shall be available at every firearms show held in the Commonwealth to make determinations in accordance with the procedures set out in §18.2-308.2:2 of whether a prospective purchaser or transferee is prohibited under state or federal law from possessing a firearm. The Department of State Police shall establish policies and procedures in accordance with 28 C.F.R. §25.6 to permit such determinations to be made by the Department of State Police.
Unless otherwise
required by state or federal law, any party involved in the transaction may
decide whether or not to have such a determination made.
The Department of State Police may charge a reasonable fee for the determination.
B. The promoter, as defined in §54.1-4201.1, shall give the Department of State Police notice of the time and location of a firearms show at least 30 days prior to the show. The promoter shall provide the Department of State Police with adequate space, at no charge, to conduct such prohibition determinations. The promoter shall ensure that a notice that such determinations are available is prominently displayed at the show.
C. No person who sells or transfers a firearm at a firearms show after receiving a determination from the Department of State Police that the purchaser or transferee is not prohibited by state or federal law from possessing a firearm shall be liable for selling or transferring a firearm to such person.
D. The provisions of §18.2-308.2:2, including definitions, procedures, and prohibitions, shall apply, mutatis mutandis, to the provisions of this section.
2. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to §30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to §30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.
