Florida Senate - 2009                             CS for SB 1340
       
       
       
       By the Committee on Criminal Justice; and Senator Crist
       
       
       
       
       591-03002-09                                          20091340c1
    1                        A bill to be entitled                      
    2         An act relating to firearms transactions; amending s.
    3         790.335, F.S.; clarifying that violations of
    4         provisions prohibiting keeping any list, record, or
    5         registry of privately owned firearms or any list,
    6         record, or registry of the owners of those firearms
    7         may be committed by entities as well as individuals;
    8         requiring that secondhand dealers and pawnbrokers who
    9         electronically submit certain firearm transaction
   10         records to law enforcement agencies submit specified
   11         information in the coding of the Florida Crime
   12         Information Center; providing an effective date.
   13  
   14  Be It Enacted by the Legislature of the State of Florida:
   15  
   16         Section 1. Section 790.335, Florida Statutes, is amended to
   17  read:
   18         790.335 Prohibition of registration of firearms; electronic
   19  records.—
   20         (1) LEGISLATIVE FINDINGS AND INTENT.—
   21         (a) The Legislature finds and declares that:
   22         1. The right of individuals to keep and bear arms is
   23  guaranteed under both the Second Amendment to the United States
   24  Constitution and s. 8, Art. I of the State Constitution.
   25         2. A list, record, or registry of legally owned firearms or
   26  law-abiding firearm owners is not a law enforcement tool and can
   27  become an instrument for profiling, harassing, or abusing law
   28  abiding citizens based on their choice to own a firearm and
   29  exercise their Second Amendment right to keep and bear arms as
   30  guaranteed under the United States Constitution. Further, such a
   31  list, record, or registry has the potential to fall into the
   32  wrong hands and become a shopping list for thieves.
   33         3. A list, record, or registry of legally owned firearms or
   34  law-abiding firearm owners is not a tool for fighting terrorism,
   35  but rather is an instrument that can be used as a means to
   36  profile innocent citizens and to harass and abuse American
   37  citizens based solely on their choice to own firearms and
   38  exercise their Second Amendment right to keep and bear arms as
   39  guaranteed under the United States Constitution.
   40         4. Law-abiding firearm owners whose names have been
   41  illegally recorded in a list, record, or registry are entitled
   42  to redress.
   43         (b) The Legislature intends through the provisions of this
   44  section to:
   45         1. Protect the right of individuals to keep and bear arms
   46  as guaranteed under both the Second Amendment to the United
   47  States Constitution and s. 8, Art. I of the State Constitution.
   48         2. Protect the privacy rights of law-abiding firearm
   49  owners.
   50         (2) PROHIBITIONS.—No state governmental agency or local
   51  government, special district, or other political subdivision or
   52  official, agent, or employee of such state or other governmental
   53  entity or any other person, public or private, shall knowingly
   54  and willfully keep or cause to be kept any list, record, or
   55  registry of privately owned firearms or any list, record, or
   56  registry of the owners of those firearms.
   57         (3) EXCEPTIONS.—The provisions of this section shall not
   58  apply to:
   59         (a) Records of firearms that have been used in committing
   60  any crime.
   61         (b) Records relating to any person who has been convicted
   62  of a crime.
   63         (c) Records of firearms that have been reported stolen that
   64  are retained for a period not in excess of 10 days after such
   65  firearms are recovered. Official documentation recording the
   66  theft of a recovered weapon may be maintained no longer than the
   67  balance of the year entered, plus 2 years.
   68         (d) Firearm records that must be retained by firearm
   69  dealers under federal law, including copies of such records
   70  transmitted to law enforcement agencies. However, no state
   71  governmental agency or local government, special district, or
   72  other political subdivision or official, agent, or employee of
   73  such state or other governmental entity or any other person,
   74  private or public, shall accumulate, compile, computerize, or
   75  otherwise collect or convert such written records into any form
   76  of list, registry, or database for any purpose.
   77         (e)1. Records kept pursuant to the recordkeeping provisions
   78  of s. 790.065; however, nothing in this section shall be
   79  construed to authorize the public release or inspection of
   80  records that are made confidential and exempt from the
   81  provisions of s. 119.07(1) by s. 790.065(4)(a).
   82         2. Nothing in this paragraph shall be construed to allow
   83  the maintaining of records containing the names of purchasers or
   84  transferees who receive unique approval numbers or the
   85  maintaining of records of firearm transactions.
   86         (f) Firearm records, including paper pawn transaction forms
   87  and contracts on firearm transactions, required by chapters 538
   88  and 539.
   89         1. Electronic firearm records held pursuant to chapter 538
   90  may only be kept by a secondhand dealer for 30 days after the
   91  date of the purchase of the firearm by the secondhand dealer.
   92         2. Electronic firearm records held pursuant to chapter 539
   93  may only be kept by a pawnbroker for 30 days after the
   94  expiration of the loan that is secured by a firearm or 30 days
   95  after the date of purchase of a firearm, whichever is
   96  applicable.
   97         3. Except as required by federal law, any firearm records
   98  kept pursuant to chapter 538 or chapter 539 shall not, at any
   99  time, be electronically transferred to any public or private
  100  entity, agency, business, or enterprise, nor shall any such
  101  records be copied or transferred for purposes of accumulation of
  102  such records into lists, registries, or databases.
  103         4. Notwithstanding subparagraph 3., secondhand dealers and
  104  pawnbrokers may electronically submit firearm transaction
  105  records to the appropriate law enforcement agencies as required
  106  by chapters 538 and 539; however, the law enforcement agencies
  107  may not electronically submit such records to any other person
  108  or entity and must destroy such records within 60 days after
  109  receipt of such records.
  110         5. Notwithstanding subparagraph 3., secondhand dealers and
  111  pawnbrokers may electronically submit limited firearms records
  112  consisting solely of the manufacturer, model, serial number, and
  113  caliber of pawned or purchased firearms to a third-party private
  114  provider that is exclusively incorporated, exclusively owned,
  115  and exclusively operated in the United States and that restricts
  116  access to such information to only appropriate law enforcement
  117  agencies for legitimate law enforcement purposes. Such records
  118  must be destroyed within 30 days by the third-party provider. As
  119  a condition of receipt of such records, the third-party provider
  120  must agree in writing to comply with the requirements of this
  121  section. Any pawnbroker or secondhand dealer who contracts with
  122  a third-party provider other than as provided in this act or
  123  electronically transmits any records of firearms transactions to
  124  any third-party provider other than the records specifically
  125  allowed by this paragraph commits a felony of the second degree,
  126  punishable as provided in s. 775.082 or s. 775.083.
  127         (g) Records kept by the Department of Law Enforcement of
  128  NCIC transactions to the extent required by federal law and a
  129  log of dates of requests for criminal history record checks,
  130  unique approval and nonapproval numbers, license identification
  131  numbers, and transaction numbers corresponding to such dates.
  132         (h) Records of an insurer that, as a condition to providing
  133  insurance against theft or loss of a firearm, identify such
  134  firearm. Such records may not be sold, commingled with records
  135  relating to other firearms, or transferred to any other person
  136  or entity. The insurer may not keep a record of such firearm
  137  more than 60 days after the policy of insurance expires or after
  138  notification by the insured that the insured is no longer the
  139  owner of such firearm.
  140         (i) Lists of customers of a firearm dealer retained by such
  141  dealer, provided that such lists do not disclose the particular
  142  firearms purchased. Such lists, or any parts thereof, may not be
  143  sold, commingled with records relating to other firearms, or
  144  transferred to any other person or entity.
  145         (j) Sales receipts retained by the seller of firearms or by
  146  a person providing credit for such purchase, provided that such
  147  receipts shall not serve as or be used for the creation of a
  148  database for registration of firearms.
  149         (k) Personal records of firearms maintained by the owner of
  150  such firearms.
  151         (l) Records maintained by a business that stores or acts as
  152  the selling agent of firearms on behalf of the lawful owner of
  153  the firearms.
  154         (m) Membership lists of organizations comprised of firearm
  155  owners.
  156         (n) Records maintained by an employer or contracting entity
  157  of the firearms owned by its officers, employees, or agents, if
  158  such firearms are used in the course of business performed on
  159  behalf of the employer.
  160         (o) Records maintained pursuant to s. 790.06 by the
  161  Department of Agriculture and Consumer Services of a person who
  162  was a licensee within the prior 2 years.
  163         (p) Records of firearms involved in criminal
  164  investigations, criminal prosecutions, criminal appeals, and
  165  postconviction motions, civil proceedings relating to the
  166  surrender or seizure of firearms including protective
  167  injunctions, Baker Act commitments, and sheriff’s levies
  168  pursuant to court judgments, and voluntary surrender by the
  169  owner or custodian of the firearm.
  170         (q) Paper documents relating to firearms involved in
  171  criminal cases, criminal investigations, and criminal
  172  prosecutions, civil proceedings relating to the surrender or
  173  seizure of firearms including protective injunctions, Baker Act
  174  commitments, and sheriff’s levies pursuant to court judgments,
  175  and voluntary surrender by the owner or custodian of the
  176  firearm.
  177         (r) Noncriminal records relating to the receipt, storage or
  178  return of firearms, including, but not limited to, records
  179  relating to firearms impounded for storage or safekeeping,
  180  receipts proving that a firearm was returned to the rightful
  181  owner and supporting records of identification and proof of
  182  ownership, or records relating to firearms impounded pursuant to
  183  levies or court orders, provided, however, that such records
  184  shall not be compiled, sorted, or otherwise arranged into any
  185  lists, indexes, or registries of firearms or firearms owners.
  186         (4) PENALTIES.—
  187         (a) Any person who, or entity that, violates a provision of
  188  this section commits a felony of the third degree, punishable as
  189  provided in s. 775.082 or s. 775.083.
  190         (b) Except as required by the provisions of s. 16, Art. I
  191  of the State Constitution or the Sixth Amendment to the United
  192  States Constitution, no public funds shall be used to defend the
  193  unlawful conduct of any person charged with a violation of this
  194  section, unless the charges against such person are dismissed or
  195  such person is determined to be not guilty at trial.
  196  Notwithstanding this paragraph, public funds may be expended to
  197  provide the services of the office of public defender or court
  198  appointed conflict counsel as provided by law.
  199         (c) The governmental entity, or the designee of such
  200  governmental entity, in whose service or employ a list, record,
  201  or registry was compiled in violation of this section may be
  202  assessed a fine of not more than $5 million, if the court
  203  determines that the evidence shows that the list, record, or
  204  registry was compiled or maintained with the knowledge or
  205  complicity of the management of the governmental entity. The
  206  Attorney General may bring a civil cause of action to enforce
  207  the fines assessed under this paragraph.
  208         (d) The state attorney in the appropriate jurisdiction
  209  shall investigate complaints of criminal violations of this
  210  section and, where evidence indicates a violation may have
  211  occurred, shall prosecute violators.
  212         (5)ELECTRONIC RECORDS.—Secondhand dealers and pawnbrokers
  213  who electronically submit firearms transaction records to the
  214  appropriate law enforcement agencies as required by chapters 538
  215  and 539 shall submit the name of the manufacturer and caliber of
  216  the firearm in the coding of the Florida Crime Information
  217  Center, and shall also include the model and serial number of
  218  each firearm.
  219         (6)(5) CONSTRUCTION.—This section shall be construed to
  220  effectuate its remedial and deterrent purposes. This section may
  221  not be construed to grant any substantive, procedural privacy
  222  right or civil claim to any criminal defendant, and a violation
  223  of this section may not be grounds for the suppression of
  224  evidence in any criminal case.
  225         Section 2. This act shall take effect July 1, 2009.