Senate Bill No. 14
(By Senator Blatnik)
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[Introduced; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact section seven, article seven, chapter
sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to further amend said
article by adding thereto a new section, designated section
fifteen, relating to possession of deadly weapons;
prohibiting minors from possessing deadly weapons; sales of
firearms; requiring firearms purchasers to give written
consent for criminal history record information check;
requiring personal identification and residency proof;
prohibiting sales to persons not residents of the United
States; requiring the division of public safety to provide
criminal history record information to dealers immediately;
requiring maintenance of certain sales records by dealers;
prohibiting sales of firearms to residents of other states
until criminal history record information check is
completed; providing criminal penalties for dealers who
obtain criminal history record information under false
pretenses or who unlawfully violate the privacy of any
person by disseminating criminal history information to
others; defining certain terms; requiring the division of
public safety to promulgate rules regarding the
confidentiality and safety of criminal history records;
excluding certain firearms transactions from the record
check requirements; requiring a fee for each criminal
history record information check; providing that the fees be
used to defray certain costs; providing penalties for false
statements on consent forms; providing penalties for sales
of firearms in violation of the requirements of this
section; providing a penalty for resale or delivery to an
ineligible purchaser; requiring firearms sales informational
program be developed; requiring dealers to post certain
information; providing a penalty for purchases or attempts
to purchase more than one handgun within a thirty-day
period; exceptions; requiring enhanced background check for
bulk purchases; exempting certain sales; and allowing an
exchange within thirty days of original purchase.
Be it enacted by the Legislature of West Virginia:
That section seven, article seven, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended; and that said article be further amended by
adding thereto a new section, designated section fifteen, to read
as follows:
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-7. Persons prohibited from possession of deadly weapons.
Notwithstanding any provision of this code to the contrary,
no person who: (1) Has been convicted of a felony in this state
or in any other jurisdiction; (2) has been discharged under less
than honorable conditions from the armed forces of the United
States; (3) has been adjudicated as a mental incompetent or has
been committed involuntarily to a mental institution; (4) is an
alien illegally or unlawfully in the United States; or (5) is
addicted to alcohol, a controlled substance or a drug, or is an
unlawful user thereof; or (6) is under the age of eighteen years
and is not engaged in hunting, supervised sporting events or
under the supervision of an adult while participating in lawful
activity shall have in his or her possession any firearm or other
deadly weapon: Provided, That any person prohibited from
possessing a firearm or other deadly weapon by the provisions of
this section may petition the circuit court of the county in
which he or she resides and if the court finds by clear and
convincing evidence that such person is competent and capable of
exercising the responsibility concomitant with the possession of
a firearm or other deadly weapon the court may enter an order
allowing such person to possess such weapon if such would not
violate any federal statute.
Any person who violates the provisions of this section shall
be is guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not less than one hundred dollars nor more than
one thousand dollars or confined in the county jail for not less
than ninety days nor more than one year, or both.
§61-7-15. Multiple sales of firearms to one person within thirty
days prohibited; criminal history record information check
required for the transfer of certain firearms; firearm
safety information to be provided; and penalties for
violations.
(a) Every person who purchases a firearm from a dealer shall
provide written consent on a form provided by the division of
public safety for the dealer to obtain the criminal history
record of the person purchasing the firearm. The original
completed form shall be maintained by the dealer and a copy of
the form shall be forwarded to the division of public safety by
the dealer and shall include, in addition to the information
required by the provisions of subsection (b) of this section,
only the identical information required to be included on the
firearms transaction record required by regulations promulgated
by the Bureau of Alcohol, Tobacco and Firearms of the U.S.
Department of the Treasury.
(b) (1) A dealer may not sell, rent, trade or transfer from
inventory any firearm to any other person who is a resident of
this state until he or she has obtained written consent as
specified in subsection (a) of this section and provided the
division of public safety with the name, birth date, gender,
race, social security number and any other necessary personally
identifying information and the number of firearms by category
intended to be sold, rented, traded or transferred and obtained,
by telephone or other means, the record of the person's criminalhistory from the division of public safety. To establish
personal identification and residence in this state 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 state and other documentation of residence, any of
which must show an address identical to that shown on the photo-
identification form. Other documentation may include evidence of
currently paid personal property tax or real estate tax, a
current lease, utility or telephone bill, voter registration
card, bank check, passport, automobile registration, hunting or
fishing license, any other current identification allowed as
evidence of residency by Part 178.124 of Title 27 of the Code of
Federal Regulations and ATF Ruling 79-7 or other documentation of
residence determined to be acceptable by the division of public
safety corroborating the fact that the prospective purchaser
currently resides in this state.
In addition, a dealer may not sell, rent, trade or transfer
from 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. To establish citizenship or
lawful admission for a permanent residence for purposes of
purchasing an assault firearm, a dealer must require a
prospective purchaser to present a certified birth certificate or
a certificate of birth abroad issued by the United States state
department, a certificate of citizenship or a certificate of
naturalization issued by the immigration and naturalizationservice, an unexpired United States passport, a United States
citizen identification card, a current voter registration card,
a current selective service registration card, or an immigrant
visa or other documentation of status as a person lawfully
admitted for permanent residence issued by the immigration and
naturalization service.
Upon receipt of the request for a criminal history record
information check, the division of public safety shall: (i)
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; (ii) inform the
dealer if its record indicates that the buyer or transferee is so
prohibited; and (iii) provide the dealer with a unique reference
number for that inquiry.
(2) The division of public safety shall provide its response
to the requesting dealer during the dealer's call, or by return
call without delay. If the criminal history record information
check indicates the prospective purchaser or transferee has a
criminal record or has been acquitted by reason of insanity and
committed to a mental health facility under the provisions of
chapter twenty-seven of this code, the division of public safety
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 ofsubdivision (1) of this subsection 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 division of public safety, the dealer shall be advised
immediately of the problem and if the problem causes a delay in
its response, the division shall provide the dealer with an
estimate of the time a response is likely to be available. After
this notification, the division of public safety 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) of this subsection
and is told by the division of public safety 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) The division of public safety shall not maintain records
longer than thirty days, except for multiple handgun transactions
for which records shall be maintained for twelve 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 bemaintained for a period of twelve 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 a copy
of the written consent form required by subsection (a) of this
section to the division of public safety. The division of public
safety 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 prohibited from
possessing or transporting a firearm, the division of public
safety 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 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) of this section upon furnishing the
dealer with proof of citizenship or status as a person lawfully
admitted for permanent residence and 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 division of public safety.
(c) A dealer may not sell, rent, trade or transfer from
inventory any firearm, other than a rifle or a shotgun, to any
person who is not a resident of this state unless the dealer
obtains a report from the division of public safety indicating
that a search of all available criminal history record
information has failed to disclose that the purchaser is a person
who is prohibited from possessing or transporting a firearm under
state or federal law. The dealer shall obtain the required
report by mailing or delivering a copy of the written consent
form required under subsection (a) of this section to the
division of public safety within twenty-four hours of its
execution. A dealer is not in violation of this section for
completing a sale or transfer of a firearm at the expiration of
ten days from the date of a proposed sale or transfer under the
provisions of this section if the dealer has complied with the
provisions of this subsection but has not received the report
from the division of public safety as required by this section
within ten days from the date the copy of the written consent
form was mailed to the division of public safety.
(d) A resident of this state may, at his or her option, buy,
rent or receive a firearm from a dealer by obtaining a criminal
history record information check through the dealer as provided
in subsection (c) of this section.
(e) If any buyer or transferee is denied the right to
purchase a firearm under this section, he or she may, within
thirty days of a denial, review and correct any inaccurate oruntrue criminal history record information used to deny the
purchase.
(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, is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
more than five hundred dollars, or imprisoned in the county jail
not more than six months, or both fined and imprisoned.
(g) For purposes of this section:
"Antique firearm" means any firearm, including those with a
matchlock, flintlock, percussion cap, or similar type of ignition
system, manufactured in or before 1898 and any replica of such a
firearm if such replica (i) is not designed or redesigned for
using rimfire or conventional center-fire fixed ammunition or
(ii) uses rimfire or conventional center-fire fixed ammunition
which is no longer manufactured in the United States and which is
not readily available in the ordinary channels of commercial
trade.
"Assault firearm" means any semi-automatic center-fire rifle
or pistol which expels a projectile by action of an explosion and
is equipped at the time of the offense with a magazine which will
hold more than twenty rounds of ammunition or designed by the
manufacturer to accommodate a silencer or equipped with a folding
stock.
"Dealer" means any person licensed as a dealer pursuant to
18 U.S.C. §921 et seq.
"Firearm" means any handgun, shotgun or rifle which expels
a projectile by action of an explosion.
"Handgun" means any pistol or revolver or other firearm
originally designed, made and intended to fire a projectile by
means of an explosion 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 division of public safety shall promulgate necessary
rules to ensure the identity, confidentiality and security of all
records and data provided by the division of public safety to
dealers under the provisions of this section.
(i) The provisions of this section do 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 state or
any local government; (iii) antique firearms; or (iv)
transactions in any county or municipality with a local ordinance
adopted prior to the first day of January, one thousand nine
hundred ninety-four, governing the purchase, possession,
transfer, ownership, conveyance or transportation of firearmswhich has provisions more stringent than this section.
(j) A fee of two dollars shall be charged and collected by
all licensed firearms dealers for every transaction for which a
criminal history record information check is required pursuant to
this section for residents of this state and a fee of five
dollars shall be charged and collected for every transaction for
which a criminal history record information check is required
involving an out-of-state resident. The fee shall be transmitted
to the division of public safety by the last day of the month
following the sale to be deposited in a special fund in the state
treasury to be used by the division to defray the cost of
conducting criminal history record information checks under the
provisions of this section.
(k) Any person who willfully and intentionally makes a
materially false statement on the consent form required in
subsections (b) and (c) of this section is guilty of a felony,
and, upon conviction thereof, shall be fined not more than one
thousand dollars, or imprisoned in the penitentiary not less than
one year, or both fined and imprisoned.
(l) Any dealer who willfully and intentionally sells, rents,
trades or transfers a firearm in violation of this section is
guilty of a felony, and, upon conviction thereof, shall be fined
not more than one thousand dollars, or imprisoned in the
penitentiary not less than one year, or both fined and
imprisoned.
(m) Any person who purchases a firearm with the intent to:(i) Resell or otherwise provide the firearm to any person who is
ineligible to purchase or otherwise receive from a dealer a
firearm for whatever reason; or (ii) transport the firearm out of
this state for transfer or resale to another individual who is
ineligible to purchase or otherwise receive from a dealer a
firearm is guilty of a felony, and, upon conviction thereof,
shall be fined not more than one thousand dollars, or imprisoned
in the penitentiary not less than one year, or both fined and
imprisoned.
(n) The department of education and the arts, in cooperation
with the division of natural resources, shall develop a standard
informational form and posted notice to be furnished to each
licensed firearms dealer in the state at no cost to the dealer.
The form and notice shall provide basic information on the laws
governing the purchase, possession and use of firearms by
juveniles and adults. Copies of the form shall be made available
by the dealer whenever a firearm is purchased.
Every firearms dealer shall conspicuously post the written
notice which shall be at least eight and one-half inches by
eleven inches in size and printed in boldface type of a minimum
size of ten points. A licensed firearms dealer is not liable for
damages for injuries resulting from the discharge of a firearm
purchased from the dealer if, at the time of the purchase, the
dealer failed to provide the form or failed to post the written
notice.
(o) Except for purchases covered under the provisions ofsubdivisions (1) through (3) of this subsection, any person,
other than a licensed firearms dealer, who purchases or attempts
to purchase more than one handgun within any thirty-day period is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not more than five hundred dollars, or imprisoned in the
county jail not more than six months, or both fined and
imprisoned.
(1) Purchases in excess of one handgun within a thirty-day
period may be made upon completion of an enhanced background
check, as described herein, by special application to the
division of public safety listing the number and type of handguns
to be purchased and transferred for lawful business or personal
use, in a collector series, for collections, as a bulk purchase
from estate sales and for similar purposes. These applications
shall be signed under oath by the applicant on forms provided by
the division of public safety and shall include the purpose for
the purchase above the limit and satisfactory proof of residency
and identity. The application shall be in addition to the
firearms sales report required by the Bureau of Alcohol, Tobacco
and Firearms (ATF). The superintendent of division of public
safety shall promulgate necessary rules for the implementation of
an application process for purchases of handguns above the limit.
Upon being satisfied that these requirements have been met,
the division of public safety shall forthwith issue to the
applicant a nontransferable certificate which shall be valid for
seven days from the date of issue. The certificate shall besurrendered to the dealer by the prospective purchaser prior to
the consummation of the sale and shall be kept on file at the
dealer's place of business for inspection for a period of not
less than two years. Upon request of any local law-enforcement
agency, and pursuant to its rules, the division of public safety
may certify a local law-enforcement agency to serve as its agent
to receive applications and, upon authorization by the division
of public safety, issue certificates forthwith pursuant to this
subsection. Applications and certificates issued under this
subsection shall be maintained as records as provided in
subdivision (3) of subsection (b) of this section. The division
of public safety shall make available to local law-enforcement
agencies all records concerning certificates issued pursuant to
this subsection and all records provided for in subdivision (3)
of subsection (b) of this section.
(2) The provisions of this subsection do not apply to:
(i) A law-enforcement agency;
(ii) An agency duly authorized to perform law-enforcement
duties;
(iii) State and local correctional facilities;
(iv) A private security company licensed to do business
within the state;
(v) The purchase of antique firearms as defined in this
section; or
(vi) A person whose handgun is stolen or irretrievably lost
and who finds it essential that the handgun be replacedimmediately. That person may purchase another handgun, even if
the person has previously purchased a handgun within a thirty-day
period: Provided, That the person provides the firearms dealer
with a copy of the official police report or a summary thereof,
on forms provided by the division of public safety, from the law-
enforcement agency that took the report of the lost or stolen
handgun, the official police report or summary thereof contains
the name and address of the handgun owner, the description of the
handgun, the location of the loss or theft, the date of the loss
or theft, and the date the loss or theft was reported to the law-
enforcement agency and the date of the loss or theft as reflected
on the official police report or summary thereof occurred within
thirty days of the person's attempt to replace the handgun. The
firearms dealer shall attach a copy of the official police report
or summary thereof to the original copy of the official police
report or summary thereof to the original copy of the firearms
transaction report completed for the transaction and retain it
for the period prescribed by the division of public safety.
(3) For the purposes of this subsection, "purchase" does not
include the exchange or replacement of a handgun by a seller for
a handgun purchased from the seller by the same person seeking
the exchange or replacement within the thirty-day period
immediately preceding the date of exchange or replacement.
NOTE: The purpose of this bill is to prohibit minors from
possessing firearms or deadly weapons and to establish a system
to prevent sales of firearms to persons determined to beineligible to purchase firearms. The bill requires purchasers to
give written consent for criminal history record information
check and to provide proper identification and proof of residency
in order to purchase firearms. Under the bill dealers are
prohibited from making a sale of a firearm until a criminal
history record check with the division of public safety has been
completed. The division of public safety is required to
promulgate rules to implement the record check system and to
respond to dealer inquiries immediately. The bill prohibits
multiple sales of handguns within a thirty-day period and
provides penalties for violations. Exceptions are made for
purchases made by collectors, police departments and others.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§61-7-15 is new; therefore, strike-throughs and underscoring
have been omitted.