Delaware-2019-SB69-Draft

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Subpart E, Subchapter VII, Chapter 5, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1448D. Handgun or firearms qualified purchaser card required to purchase firearms.

(a) For purposes of this section and § 1448E of this title:

(1) “Department” means the Department of Safety and Homeland Security.

(2) “Handgun” means a pistol, revolver, or other firearm designed to be readily capable of being fired when held in 1 hand.

(3) “Transferor” means a licensed dealer, licensed manufacturer, or licensed importer, or employee thereof, or any other person who sells, transfers, or delivers a firearm.

(b) The Secretary of the Department shall, upon application, issue to a person qualified under subsection (e) of this section a handgun qualified purchaser card or a firearms qualified purchaser card.

(c)(1) A person’s application for a handgun qualified purchaser card or for a firearms qualified purchaser card must be in the form prescribed by the Secretary of the Department and include all of the following information about the person:

a. Name.

b. Residence.

c. Place of business.

d. Age.

e. Date of birth.

f. Occupation.

g. Sex

h. Physical description, including distinguishing physical characteristics, if any.

(2) An application must include a sworn, written affirmation that the person is not prohibited from possessing a firearm under § 1448 of this title or any other provision of state or federal law.

(d) Application blanks must be made available by the Department and licensed dealers.

(e) Except as otherwise provided under this chapter, the Secretary of the Department may not issue a handgun qualified purchaser card or firearms qualified purchaser card to any of the following:

(1) A person under the age of 18, for a firearms qualified purchaser card, or a person under the age of 21, for a handgun qualified purchaser card.

(2) A person having been convicted in this State or elsewhere of a felony or a crime of violence involving physical injury to another, whether or not armed with or having in possession any weapon during the commission of such felony or crime of violence. A person who is a prohibited person under this paragraph (e)(2) of this section solely as the result of a conviction for an offense which is not a felony may be issued a handgun qualified purchaser card or a firearms qualified purchaser card if 5 years have elapsed from the date of conviction.

(3) A person who meets any of the following:

a. Has been involuntarily committed for a mental condition under Chapter 50 of Title 16, unless the person can demonstrate that the person is no longer prohibited from possessing a firearm under § 1448A( l ) of this title.

b. For a crime of violence, has been found not guilty by reason of insanity or guilty but mentally ill, including any juvenile who has been found not guilty by reason of insanity or guilty but mentally ill, unless the person can demonstrate that the person is no longer prohibited from possessing a firearm under § 1448A( l ) of this title.

c. For a crime of violence, has been found mentally incompetent to stand trial, including any juvenile who has been found mentally incompetent to stand trial, unless there has been a subsequent finding that the person has become competent, or unless the person can demonstrate that the person is no longer prohibited from possessing a firearm under § 1448A( l ) of this title.

d. Is the subject of an order of relinquishment issued under § 1448C of this title.

(4) A person who poses a danger of causing physical injury to self or others by owning, purchasing, or possessing firearms.

(5) A person who has been convicted for the unlawful use, possession, or sale of a narcotic, dangerous drug, or central nervous system depressant or stimulant as those terms were defined before the effective date of the Uniform Controlled Substances Act in June 1973 or of a narcotic drug or controlled substance as defined in Chapter 47 of Title 16.

(6) A person who, as a juvenile, has been adjudicated as delinquent for conduct which, if committed by an adult, would constitute a felony, unless and until that person has reached their twenty-fifth birthday.

(7) A person who is subject to a Family Court protection from abuse order, other than an ex parte order, but only for so long as that order remains in effect or is not vacated or otherwise terminated. This paragraph does not apply to a contested order issued solely under § 1041(1)d., e., or h. of Title 10, or any combination thereof.

(8) A person who has been convicted in any court of a misdemeanor crime of domestic violence, if less than 5 years have elapsed from the date of conviction. For purposes of this paragraph, the term "misdemeanor crime of domestic violence" means any misdemeanor offense that meets both of the following:

a. Was committed by any of the following:

1. A member of the victim's family, as "family" is defined in § 901 of Title 10, regardless, however, of the state of residence of the parties.

2. A former spouse of the victim.

3. A person who cohabited with the victim at the time of or within 3 years before the offense.

4. A person with a child in common with the victim.

5. A person with whom the victim had a substantive dating relationship, as defined in § 1041 of Title 10, at the time of or within 3 years before the offense.

b. Is an offense as defined under § 601, § 602, § 603, § 611, § 614, § 621, § 625, § 628A, § 763, § 765, § 766, § 767, § 781, § 785, or § 791 of this title, or any similar offense when committed or prosecuted in another jurisdiction.

(9) A person who, knowing that the person is the defendant or co-defendant in any criminal case in which that person is alleged to have committed any felony under the laws of this State, the United States, or any other state or territory of the United States, becomes a fugitive from justice by failing to appear for any scheduled court proceeding pertaining to the felony for which proper notice was provided or attempted. It is no defense to a prosecution under this paragraph (e)(9) of this section that the person did not receive notice of the scheduled court proceeding.

(10) A person who is subject to a lethal violence protection order, issued under § 7704 of Title 10, but only for so long as that order remains in effect or is not vacated or otherwise terminated under Chapter 77 of Title 10.

(11) A person who, in the 2 years before the date of application, has not completed a firearms training course that is sponsored by a federal, state, county or municipal law enforcement agency; a college; a nationally recognized organization that customarily offers firearms training; or a firearms training school with instructors certified by a nationally recognized organization that customarily offers firearms training and consists of at least all of the following:

a. Instruction regarding knowledge and safe handling of firearms.

b. Instruction regarding safe storage of firearms and child safety.

c. Instruction regarding knowledge and safe handling of ammunition.

d. Instruction regarding safe storage of ammunition and child safety.

e. Instruction regarding safe firearms shooting fundamentals.

f. Live fire shooting exercises conducted on a range, including the expenditure of a minimum of 100 rounds of ammunition.

g. Identification of ways to develop and maintain firearm shooting skills.

h. Instruction regarding federal and state laws pertaining to the lawful purchase, ownership, transportation, use, and possession of firearms.

i. Instruction regarding the laws of this State pertaining to the use of deadly force for self-defense.

j. Instruction regarding techniques for avoiding a criminal attack and how to manage a violent confrontation, including conflict resolution.

k. Instruction regarding suicide prevention.

(12) A person who is otherwise prohibited from purchasing or possessing firearms under the law of this State or federal law.

(f) A person must submit an application for a handgun qualified purchaser card or a firearms qualified purchaser card to the Secretary of the Department, who shall investigate the application and, unless grounds exist for the denial thereof, grant the applicable card within 30 days from the date of receipt of the application.

(1) The Secretary shall take the fingerprints of each person who applies for a card and compare the fingerprints with any records of fingerprints in the State. The Secretary shall conduct a search of the Delaware Criminal Justice Information System to determine if the applicant is prohibited under law of this State or federal law from purchasing or possessing a firearm. The Secretary shall also submit the person’s fingerprints to the Federal Bureau of Investigation with a request that a search of the National Instant Criminal Background Check System be conducted.

(2) In investigating the application, the Secretary shall contact the local law enforcement agencies of the county or municipality in which the person resides and inquire as to any facts and circumstances relevant to the person’s qualification for a card.

(g) If the Secretary of the Department determines that a person does not qualify for a handgun qualified purchaser card or a firearms qualified purchaser card, the Secretary shall deny the application and notify the person in a writing setting forth the specific reasons for the determination.

(h) A handgun qualified purchaser card is valid for a period of 90 days from the date of issuance and may be renewed by the Secretary of the Department, upon good cause shown, for an additional 90 days.

(1) Each card entitles a person issued the card to purchase only 1 handgun.

(2) Each card must bear a unique permit number, the full name and address of the person issued the card, the date on which the card expires, and any other information as required by state law and regulation.

(3) The person issued the card shall, at the time of purchase or receipt of a handgun, turn the card over to transferor who is conducting or facilitating the sale or transfer under § 1448A or § 1448B of this title.

(i) A firearms qualified purchaser card is valid for a period of 3 years from the date of issuance.

(1) A card entitles a person issued the card to purchase only rifles, shotguns, and other firearms, other than handguns.

(2) The person issued a card may purchase an unlimited number of rifles, shot guns, or other firearms, other than handguns, while the card is valid.

(3) Each card must bear a unique card number, the full name and address of the person issued the card, the date on which the card expires, and any other information as required by state law and regulation.

(j)(1) If, at any time following the issuance of a handgun qualified purchaser card or a firearms qualified purchaser card, a person issued a card becomes disqualified for any of the reasons under subsection (e) of this section, the card is void and must be returned by the person within 5 days to the Secretary of the Department.

(2) A person’s failure to return the card to the Secretary within the 5 days is a class A misdemeanor.

(k)(1) A handgun qualified purchaser card or firearms qualified purchaser card may be revoked at any time by the Secretary of the Department upon a finding that a person issued the card no longer qualifies for the card.

(2) The Secretary shall give written notice of revocation without unnecessary delay to the person issued the card, State Police, and local law enforcement agencies of the county or municipality in which the person resides.

(3) Within 5 days of notice of revocation, the person must return the card to the Secretary.

(4) A person’s failure to return the card to the Secretary within the 5 days is a class A misdemeanor.

(5) If the Secretary has given written notice of revocation and there is probable cause to believe that the person issued the card has firearms in the person’s custody, possession, or control, the State Police shall take action to ensure removal of the firearms.

( l ) A person aggrieved by the denial or revocation of a handgun qualified purchaser card or firearms qualified purchaser card may request a hearing in the Superior Court for the county in which the person resides.

(1) The request for a hearing must be made in writing within 30 days of the denial of the application for the card or the revocation of the card.

(2) The person shall serve a copy of the person’s request for a hearing on the chief of police of the county or municipality in which the person resides and on the Secretary of the Department.

(3) The hearing must be held and a record made thereof within 15 days of the receipt of the application for a hearing by a judge of the Superior Court.

(4) A formal pleading or a filing fee are not required to obtain a hearing.

§ 1448E. Record reporting for sales and transfers of firearms.

(a) A transferor who sells, transfers, or delivers a firearm, as defined in § 222 of this title, under § 1448A or § 1448B of this title shall, in addition to the requirements of Chapter 9 of Title 24, submit to the Department a copy of the federal firearms transaction record under Title 27 of the Code of Federal Regulations or, if no such record was completed, the record described in subsection (g) of this section. The transferor shall submit the record within 72 hours of a sale, transfer, or delivery of a firearm. The transferor may scan and submit the record in electronic format.

(b) For all purchases and transfers of firearms, the transferor must include on the record the identification number of the handgun qualified purchaser card or firearms qualified purchaser card presented by the purchaser or transferee at the time of the sale or transfer. For all purchases and transfers of handguns, the transferor shall retain the original handgun qualified purchaser card presented by the purchaser or transferee and attach the card to the record before submitting the record to the Department.

(d) The Department shall maintain a searchable database of all records received, which must at all times be open for inspection by any judge, justice of the peace, police officer, constable, or other peace officer of this State.

(e) Notwithstanding any provision to the contrary, any inspection by a judge, justice of the peace, police officer, constable, or other peace officer of this State must be reasonable under the circumstances existing at the time and must only be made under and in furtherance of an open criminal investigation or during the course of a criminal prosecution.

(f) Records, data, information, or reports containing the name, address, date of birth, or other identifying data of either the transferor or transferee or which contain the make, model, caliber, serial number, or other identifying data of any firearm which are required, authorized, or maintained under this section or by Chapter 9 of Title 24, are not subject to disclosure or release under the Freedom of Information Act, Chapter 100 of Title 29.

(g) The Department shall, no later than 30 days before [the effective date of this Act], develop and make available throughout the State a standard record form for use by transferors who have not completed a federal firearms transaction record, which record must be in substantially similar form to the federal transaction record. The Department may not charge for forms or any other act performed or materials provided by a government employee or agency in connection with reporting of the sale or transfer of a firearm under this section.

Section 2. Amend § 1448A, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1448A. Criminal history record checks and licenses required for sales of firearms.

(a) (1) No A licensed importer, licensed manufacturer manufacturer, or licensed dealer shall may not sell, transfer transfer, or deliver from inventory any firearm, as defined in § 222 of this title, to any other person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, without conducting a criminal history background check in accordance with regulations promulgated by the United States Department of Justice pursuant to under the National Instant Criminal Background Check System ("NICS"), 28 C.F.R. §§ 25.1-25.11, as the same may be amended from time to time, to determine whether the transfer of a firearm to any person who is not licensed under 18 U.S.C. § 923 would be in violation of federal or state law. This paragraph (a)(1) of this section does not apply to transactions in which the potential buyer or transferee holds a valid concealed deadly weapons license under §§ 1441, 1441A, and 1441B of this title.

(2) A licensed importer, licensed manufacturer, or licensed dealer may not sell, transfer, or deliver from inventory any firearm, as defined in § 222 of this title, to any other person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, unless one of the following applies:

a. For the sale, transfer, or delivery from inventory of a handgun, the purchaser, lessee, or transferee presents to the licensed importer, licensed manufacturer, or licensed dealer a valid handgun qualified purchaser card issued to that person by the Secretary of the Department of Safety and Homeland Security under § 1448D of this title.

b. For the sale, transfer, or delivery from inventory of a rifle, shotgun, or other firearm, other than a handgun, the purchaser, lessee, or transferee presents to the licensed importer, licensed manufacturer, or licensed dealer a valid firearms qualified purchaser card issued by the Secretary of the Department of Safety and Homeland Security under § 1448D of this title.

(3) For the purposes of this section:

a. “Handgun” means a pistol, revolver, or other firearm designed to be readily capable of being fired when held in 1 hand.

b. “Transferor” means a licensed dealer, licensed manufacturer, or licensed importer, or employee thereof, or any other person who sells, transfers, or delivers a firearm.

(b) No licensed importer, licensed manufacturer or licensed dealer shall sell, transfer or deliver from inventory any firearm, as defined in § 222 of this title, to any other person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, unless and until being informed that it may "proceed" with the sale, transfer or delivery from inventory of a firearm by the Federal Bureau of Investigation (FBI), NICS Section pursuant to the request for a criminal history record check required by subsection (a) of this section or 25 days have elapsed from the date of the request for a background check and a denial has not occurred. This subsection does not apply to transactions in which the potential buyer or transferee holds a valid concealed deadly weapons license under §§ 1441, 1441A, and 1441B of this title.

(e) The provisions of this section shall not apply to:

(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 paragraph (e)(1) of this section if such replica:

a. Is not designed or redesigned to use rimfire or conventional centerfire fixed ammunition; or

b. Uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade;

(3) Any shotgun, which is defined as a firearm designed or intended to be fired from the shoulder and designed or made to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger;

(4) The return, by a licensed pawnbroker, of a firearm to the person from whom it was received;

(5) Transactions in which the potential buyer or transferee holds a valid concealed deadly weapons license pursuant to §§ 1441, 1441A and 1441B of this title; and [Transferred.]

(6) Transactions involving a "law-enforcement officer" as defined by § 222 of this title.

(f) Any licensed dealer, licensed manufacturer, licensed importer or employee thereof A transferor who wilfully and intentionally requests a criminal history record check from the Federal Bureau of Investigation, NICS for any purpose other than compliance with subsection (a) of this section or § 1448B(a) of this title, or wilfully and intentionally disseminates any criminal history record information to any person other than the subject of such information or discloses to any person the unique identification number shall be guilty of a class A misdemeanor. The Superior Court shall have exclusive jurisdiction for all offenses under this subsection.

(h) (1) Any licensed dealer, licensed manufacturer, licensed importer or employee thereof A transferor who wilfully and intentionally sells or delivers a firearm in violation of this section shall be is guilty of a class A misdemeanor. Second or subsequent offenses A second or subsequent violation of this paragraph (h)(1) of this section by an individual shall be is a class G felony.

(2) A transferor who, in connection with the sale, transfer, or delivery from inventory of a firearm under this section or § 1448B of this title, wilfully and intentionally fails to comply with the recordkeeping requirements under § 1448E of this title is guilty of a class A misdemeanor. A second or subsequent violation of this paragraph (h)(2) of this section is a class G felony.

Section 3. Amend § 1448B, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1448B. Criminal history record checks and licenses required for sales of firearms — Unlicensed persons.

(a) (1) No An unlicensed person shall may not sell or transfer any firearm, as defined in § 222 of this title, to any other unlicensed person without having conducted a criminal history background check through a licensed firearms dealer in accordance with § 1448A of this title and § 904A of Title 24, as the same may be amended from time to time, to determine whether the sale or transfer would be in violation of federal or state law, and until the licensed firearms dealer has been informed that the sale or transfer of the firearm may "proceed" by the Federal Bureau of Investigation, NICS Section or 25 days have elapsed from the date of the request for a background check and a denial has not occurred. This paragraph (a)(1) of this section does not apply to transactions in which the potential purchaser or transferee holds a current and valid concealed carry permit issued by the Superior Court of the State of Delaware under § 1441 of this title.

(2) An unlicensed person may not sell or transfer any firearm, as defined in § 222 of this title, to any other unlicensed person unless one of the following applies:

a. For the sale or transfer of a handgun, the potential purchaser or transferee presents to the seller or transferor a valid handgun qualified purchaser card issued to that person by the Secretary of the Department of Safety and Homeland Security under § 1448D of this title.

b. For the sale or transfer of a rifle, shotgun, or other firearm, other than a handgun, the potential purchaser or transferee presents to the seller or transferor a valid firearms qualified purchaser card issued by the Secretary of the Department of Safety and Homeland Security under § 1448D of this title.

(b) For purposes of this section:

(1) “Handgun” means a pistol, revolver, or other firearm designed to be readily capable of being fired when held in 1 hand.

(2) "Licensed dealer" means any person licensed as a deadly weapons dealer pursuant to under Chapter 9 of Title 24 and 18 U.S.C. § 921 et seq.

(2) (3) "Transfer" means assigning, pledging, leasing, loaning, giving away, or otherwise disposing of, but does not include: any of the following:

a. The loan of a firearm for any lawful purpose, for a period of 14 days or less, by the owner of said the firearm to a person known personally to him or her; the owner.

b. A temporary transfer for any lawful purpose that occurs while in the continuous presence of the owner of the firearm, provided that such temporary transfer shall not exceed 24 hours in duration; duration.

c. The transfer of a firearm for repair, service service, or modification to a licensed gunsmith or other person lawfully engaged in such activities as a regular course of trade or business; or business.

d. A transfer that occurs by operation of law or because of the death of a person for whom the prospective transferor is an executor or administrator of an estate or a trustee of a trust created in a will.

(3) (4) "Unlicensed person" means any person who is not a licensed importer, licensed manufacturer manufacturer, or licensed dealer.

(1) Transactions in which the potential purchaser or transferee is a parent, mother-in-law, father-in-law, stepparent, legal guardian, grandparent, child, daughter-in-law, son-in-law, stepchild, grandchild, sibling, sister-in-law, brother-in-law, spouse, or civil union partner of the seller or transferor;

(2) Any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898;

(3) Any replica of any firearm described in paragraph (c)(2) of this section if such replica:

a. Is not designed or redesigned to use rimfire or conventional centerfire fixed ammunition; or

b. Uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade;

(4) Any muzzle-loading firearm designed for hunting or competitive shooting not requiring a criminal background check pursuant to federal law;

(5) Transactions in which the potential purchaser or transferee is a qualified law-enforcement officer, as defined in § 1441A of this title, or a qualified retired law-enforcement officer, as defined in § 1441B of this title;

(6) Transactions in which the potential purchaser or transferee holds a current and valid concealed carry permit issued by the Superior Court of the State of Delaware pursuant to § 1441 of this title. [Transferred.]

(7) Transactions in which the prospective buyer or transferee is a bona fide member or adherent of an organized church or religious group, the tenets of which prohibit photographic identification; provided, however, that no unlicensed person shall sell or transfer any firearm to any such person without having conducted a criminal history background check in accordance with subsection (f) of this section hereunder to determine whether the sale or transfer would be in violation of federal or state law;

(8) Transactions involving the sale or transfer of a curio or relic to a licensed collector, as such terms are defined in 27 C.F.R. 478.11, as the same may be amended from time to time;

(9) Transactions involving the sale or transfer of a firearm to an authorized representative of the State or any subdivision thereof as part of an authorized voluntary gun buyback program.

Section 5. This Act takes effect 6 months after its enactment into law.

SPONSOR:	Sen. Sturgeon & Sen. Townsend & Sen. McDowell & Rep. Griffith & Rep. Bentz
Sens. Lockman, Sokola; Rep. Bolden