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.
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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
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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,
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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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