Senate Bill sb1152

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    Florida Senate - 2004                                  SB 1152

    By Senator Peaden





    2-724A-04                                           See HB 155

  1                      A bill to be entitled

  2         An act relating to firearm records; creating s.

  3         790.335, F.S.; providing legislative findings

  4         and intent; prohibiting the creation or

  5         maintenance of any list, record, or registry of

  6         privately owned firearms or any list, record,

  7         or registry of the owners of those firearms;

  8         providing exceptions; providing criminal

  9         penalties for a violation of the act; providing

10         for the imposition of civil fines on certain

11         governmental entities; authorizing the Attorney

12         General to enforce the civil penalties against

13         governmental agencies; requiring the state

14         attorney to prosecute violators of this act;

15         prohibiting the expenditure of public funds for

16         defense counsel for persons charged with a

17         violation of this act; providing exceptions;

18         requiring liberal construction of the act;

19         providing for application to records already in

20         existence; providing an effective date.

21  

22         WHEREAS, the United States Supreme Court has ruled that

23  since felons are prohibited from owning firearms, compelling

24  them to register their firearms would violate their Fifth

25  Amendment rights against self-incrimination (Haynes v. U.S.,

26  390 U.S. 85 (1968)) and, as a consequence, criminals may not

27  be forced to register firearms and may not be prosecuted for

28  failure to register firearms, and

29         WHEREAS, 18 U.S.C. s. 926, the Firearms Owner's

30  Protection Act, prohibits the establishment of "any system of

31  

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    Florida Senate - 2004                                  SB 1152
    2-724A-04                                           See HB 155




 1  registration of firearms, firearms owners, or firearms

 2  transactions or dispositions," and

 3         WHEREAS, the Firearms Owner's Protection Act prohibits

 4  any rule or regulation that may require that records required

 5  to be maintained by firearms dealers under federal law or any

 6  portion of the contents of such firearms records from being

 7  recorded at or transferred to a facility owned, managed, or

 8  controlled by the United States or any state or political

 9  subdivision thereof, and

10         WHEREAS, history has shown that the registration of

11  firearms in Cuba enabled Fidel Castro to confiscate firearms

12  and render the disarmed population helpless under his tyranny,

13  and

14         WHEREAS, history has also shown that the registration

15  of firearms in Nazi Germany enabled Adolph Hitler to

16  confiscate firearms and render the disarmed population

17  helpless in the face of Nazi atrocities, and

18         WHEREAS, firearm registration lists have led to gun

19  confiscation in Australia, Bermuda, Cuba, Germany, Great

20  Britain, Greece, Ireland, Jamaica, the former Soviet Union,

21  and other countries, and

22         WHEREAS, history has shown that registration of

23  firearms in California, New York City, Chicago, and

24  Washington, D.C., has led to the banning and confiscation of

25  firearms, and

26         WHEREAS, repeated attempts to accumulate firearms data

27  into computerized databases by some of Florida's agencies and

28  political subdivisions have placed the privacy rights of

29  law-abiding firearm owners at risk, thereby making legislative

30  protection necessary, NOW, THEREFORE,

31  

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    Florida Senate - 2004                                  SB 1152
    2-724A-04                                           See HB 155




 1  Be It Enacted by the Legislature of the State of Florida:

 2  

 3         Section 1.  Section 790.335, Florida Statutes, is

 4  created to read:

 5         790.335  Prohibition of registration of firearms.--

 6         (1)  LEGISLATIVE FINDINGS AND INTENT.--

 7         (a)  The Legislature finds and declares that:

 8         1.  The right of individuals to keep and bear arms is

 9  guaranteed under both the Second Amendment to the United

10  States Constitution and s. 8, Art. I of the State

11  Constitution, and keeping a list, record, or registry of those

12  exercising that right is not only a violation of the right to

13  keep and bear arms, but also a violation of the firearm

14  owner's right to privacy.

15         2.  A list, record, or registry of legally owned

16  firearms or law-abiding firearm owners is not a law

17  enforcement tool and can become an instrument for profiling,

18  harassing, or abusing law-abiding citizens based on their

19  choice to own a firearm and exercise their Second Amendment

20  right to keep and bear arms as guaranteed under the United

21  States Constitution. Further, such a list, record, or registry

22  has the potential to fall into the wrong hands and become a

23  shopping list for thieves.

24         3.  A list, record, or registry of legally owned

25  firearms or law-abiding firearm owners is not a tool for

26  fighting terrorism, but rather is an instrument that can be

27  used as a means to profile innocent citizens using terrorism

28  as an excuse to harass and abuse United States citizens based

29  solely on their choice to own firearms and exercise their

30  Second Amendment right to keep and bear arms as guaranteed

31  under the United States Constitution.

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    Florida Senate - 2004                                  SB 1152
    2-724A-04                                           See HB 155




 1         4.  Law-abiding firearm owners whose names have been

 2  recorded in a list, record, or registry are entitled to

 3  redress.

 4         (b)  The Legislature intends through the provisions of

 5  this section to:

 6         1.  Protect the right of individuals to keep and bear

 7  arms as guaranteed under both the Second Amendment to the

 8  United States Constitution and s. 8, Art. I of the State

 9  Constitution.

10         2.  Protect the privacy rights of law-abiding firearm

11  owners.

12         (2)  PROHIBITIONS.--No state governmental agency or

13  local government, special district, or other political

14  subdivision or official, agent, or employee of such state or

15  other governmental entity or any other person, public or

16  private, shall keep or cause to be kept any list, record, or

17  registry of privately owned firearms or any list, record, or

18  registry of the owners of those firearms.

19         (3)  EXCEPTIONS.--The provisions of this section shall

20  not apply to:

21         (a)  Records of firearms that have been used in

22  committing any crime.

23         (b)  Records relating to persons who have been

24  convicted of a crime.

25         (c)  Records of a firearm that has been reported stolen

26  which are retained for a period not in excess of 30 days after

27  such firearm is recovered.

28         (d)  Firearm records that must be retained by firearm

29  dealers under federal law, including copies of such records

30  transmitted to law enforcement agencies. However, no state

31  governmental agency or local government, special district, or

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    Florida Senate - 2004                                  SB 1152
    2-724A-04                                           See HB 155




 1  other political subdivision or official, agent, or employee of

 2  such state or other governmental entity or any other person,

 3  private or public, shall accumulate, compile, computerize, or

 4  otherwise collect or convert such written records into any

 5  form of list, registry, or database for any purpose.

 6         (e)1.  Records kept pursuant to the recordkeeping

 7  provisions of s. 790.065; however, nothing in this section

 8  shall be construed to authorize the public release or

 9  inspection of records that are made confidential and exempt

10  from the provisions of s. 119.07(1) by s. 790.065(4)(a).

11         2.  Nothing in this paragraph shall be construed to

12  authorize the maintaining of records containing the names of

13  purchasers or transferees who receive unique approval numbers

14  or the maintaining of records of firearm transactions.

15         (f)  Firearms records required by chapter 538 or

16  chapter 539.

17         1.  Electronic firearms records held pursuant to

18  chapter 538 may only be kept by a secondhand dealer for 30

19  days after the date of the purchase of the firearm by the

20  secondhand dealer.

21         2.  Electronic firearms records held pursuant to

22  chapter 539 may only be kept by a pawnbroker for 30 days after

23  the expiration of the loan that is secured by a firearm.

24         3.  Except as required by federal law, any firearms

25  records kept pursuant to chapter 538 or chapter 539 shall not,

26  at any time, be electronically transferred to any public or

27  private entity, agency, business, or enterprise, nor shall any

28  such records be copied or transferred for purposes of

29  accumulation of such records into lists, registries, or

30  databases.

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    Florida Senate - 2004                                  SB 1152
    2-724A-04                                           See HB 155




 1         4.  Notwithstanding subparagraph 3., secondhand dealers

 2  and pawnbrokers may electronically submit firearm transaction

 3  records to the appropriate law enforcement agencies as

 4  required by chapter 538 or chapter 539; however, the law

 5  enforcement agency may not electronically submit such record

 6  to any other person or entity and must destroy such record

 7  within 30 days after receipt of such record.

 8         (g)  Records kept by the Department of Law Enforcement

 9  of NCIC transactions to the extent required by federal law and

10  a log of dates of requests for criminal history records

11  checks, unique approval and nonapproval numbers, license

12  identification numbers, and transaction numbers corresponding

13  to such dates.

14         (h)  Records of an insurer received as a condition to

15  obtaining insurance against theft or loss of a firearm which

16  would identify such firearm. Such record may not be sold,

17  commingled with records relating to other firearms, or

18  transferred to any other person or entity. The insurer may not

19  keep a record of such firearm more than 60 days after the

20  policy of insurance expires or after notification by the

21  insured that the insured is no longer the owner of such

22  firearm.

23         (i)  Lists of customers of a firearm dealer by such

24  dealer, provided that such lists do not disclose the

25  particular firearms purchased. Such lists, or any part

26  thereof, may not be sold, commingled with records relating to

27  other firearms, or transferred to any other person or entity.

28         (j)  Sales receipts by the seller of firearms or by a

29  person providing credit for such purchase, provided that such

30  receipts shall not serve as or be used for the creation of a

31  database for registration of firearms.

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    Florida Senate - 2004                                  SB 1152
    2-724A-04                                           See HB 155




 1         (k)  Personal records of firearms maintained by the

 2  owner of such firearms.

 3         (l)  Records maintained by a business that stores or

 4  acts as the selling agent of firearms on behalf of the lawful

 5  owner of the firearms.

 6         (m)  Membership lists of organizations comprised of

 7  firearm owners.

 8         (n)  Records maintained by an employer or contracting

 9  entity of the firearms owned by its officers, employees, or

10  agents, if such firearms are used in the course of business

11  performed on behalf of the employer.

12         (o)  Records maintained pursuant to s. 790.06 by the

13  Department of Agriculture and Consumer Services of a person

14  who was a licensee within the prior 2 years.

15         (4)  PENALTIES.--

16         (a)  Any person who violates a provision of this

17  section commits a felony of the third degree, punishable as

18  provided in s. 775.082 or s. 775.083.

19         (b)  Except as required by the provisions of s. 16,

20  Art. I of the State Constitution or the Sixth Amendment to the

21  United States Constitution, no public funds shall be used to

22  defend the unlawful conduct of any person charged with a

23  violation of this section, unless the charges against such

24  person are dismissed or such person is determined to be not

25  guilty at trial.

26         (c)  The governmental entity, or the designee of such

27  governmental entity, in whose service or employ a list,

28  record, or registry was compiled in violation of this section

29  shall be assessed a fine of up to $5 million, if the court

30  determines that the evidence shows that the list, record, or

31  registry was compiled or maintained with the knowledge or

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    Florida Senate - 2004                                  SB 1152
    2-724A-04                                           See HB 155




 1  complicity of the management of the governmental entity. The

 2  Attorney General may bring a civil cause of action to enforce

 3  the fines under this paragraph.

 4         (d)  The state attorney in the appropriate jurisdiction

 5  shall investigate complaints of criminal violations of this

 6  section and, where evidence indicates a violation may have

 7  occurred, shall vigorously prosecute violators.

 8         (5)  LIBERAL CONSTRUCTION.--This section shall be

 9  liberally construed to effectuate its remedial and deterrent

10  purposes.

11         Section 2.  Any list, record, or registry maintained or

12  under construction on the effective date of this act shall be

13  destroyed, unless prohibited by law, within 60 calendar days

14  after this act becomes law. Thereafter, failure to destroy any

15  such list, record, or registry may result in prosecution under

16  this act.

17         Section 3.  This act shall take effect upon becoming a

18  law.

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