THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY SOLOBAY, PIPPY, FONTANA, EARLL, ORIE AND WASHINGTON, APRIL 4, 2011

REFERRED TO JUDICIARY, APRIL 4, 2011  

AN ACT

Amending Title 18 (Crimes and Offenses) of the Pennsylvania

Consolidated Statutes, in firearms and other dangerous

articles, further providing for definitions, for sale or

transfer of firearms, for the Pennsylvania State Police, for

firearm sales surcharge and for the Firearms Records Check

Fund.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 6102 of Title 18 of the Pennsylvania

Consolidated Statutes is amended by adding definitions to read:

§ 6102.  Definitions.

Subject to additional definitions contained in subsequent

provisions of this subchapter which are applicable to specific

provisions of this subchapter, the following words and phrases,

when used in this subchapter shall have, unless the context

clearly indicates otherwise, the meanings given to them in this

section:

* * *

"Form 4473."  The Bureau of Alcohol, Tobacco, Firearms and

Explosives firearms transaction record.

* * *

"NICS."  The National Instant Criminal Background Check

System maintained by the Federal Bureau of Investigation in

accordance with the Brady Handgun Violence Prevention Act

(Public Law 103-159, 107 Stat. 1536).

* * *

Section 2.  Sections 6111(a), (b) and (g)(3), 6111.1(b), (c),

(e), (i) and (j.2), 6111.2(c) and 6111.3(b) of Title 18 are

amended to read:

§ 6111.  Sale or transfer of firearms.

(a)  [Time and manner] Manner of delivery.--

[(1)  Except as provided in paragraph (2), no seller

shall deliver a firearm to the purchaser or transferee

thereof until 48 hours shall have elapsed from the time of

the application for the purchase thereof, and, when

delivered, the firearm shall be securely wrapped and shall be

unloaded.

(2)  Thirty days after publication in the Pennsylvania

Bulletin that the Instantaneous Criminal History Records

Check System has been established in accordance with the

Brady Handgun Violence Prevention Act (Public Law 103-159, 18

U.S.C. § 921 et seq.), no] No seller shall deliver a firearm

to the purchaser thereof until the provisions of this section

have been satisfied, and, when delivered, the firearm shall

be securely wrapped and shall be unloaded.

(b)  Duty of seller.--No licensed importer, licensed

manufacturer or licensed dealer shall sell or deliver any

firearm to another person, other than a licensed importer,

licensed manufacturer, licensed dealer or licensed collector,

until the conditions of subsection (a) have been satisfied and

until he has:

(1)  For purposes of a firearm as defined in section 6102

(relating to definitions)[, obtained]:

(i)  Obtained a completed [application/record of

sale] and signed Form 4473 from the potential buyer or

transferee [to be filled out in triplicate, the original

copy to be sent to the Pennsylvania State Police,

postmarked via first class mail, within 14 days of the

sale, one copy to be retained by the licensed importer,

licensed manufacturer or licensed dealer for a period of

20 years and one copy to be provided to the purchaser or

transferee. The form of this application/record of sale

shall be no more than one page in length and shall be

promulgated by the Pennsylvania State Police and provided

by the licensed importer, licensed manufacturer or

licensed dealer. The application/record of sale shall

include the name, address, birthdate, gender, race,

physical description and Social Security number of the

purchaser or transferee, the date of the application and

the caliber, length of barrel, make, model and

manufacturer's number of the firearm to be purchased or

transferred. The application/record of sale shall also

contain the following question:

Are you the actual buyer of the firearm(s), as defined

under 18 Pa.C.S. § 6102 (relating to definitions), listed

on this application/record of sale? Warning: You are not

the actual buyer if you are acquiring the firearm(s) on

behalf of another person, unless you are legitimately

acquiring the firearm as a gift for any of the following

individuals who are legally eligible to own a firearm:

(1)  spouse;

(2)  parent;

(3)  child;

(4)  grandparent; or

(5)  grandchild.

(1.1)  On the date of publication in the Pennsylvania

Bulletin of a notice by the Pennsylvania State Police that

the instantaneous records check has been implemented, all of

the following shall apply:

(i)  In the event of an electronic failure under

section 6111.1(b)(2) (relating to Pennsylvania State

Police) for purposes of a firearm which exceeds the

barrel and related lengths set forth in section 6102,

obtained a completed application/record of sale from the

potential buyer or transferee to be filled out in

triplicate, the original copy to be sent to the

Pennsylvania State Police, postmarked via first class

mail, within 14 days of sale, one copy to be retained by

the licensed importer, licensed manufacturer or licensed

dealer for a period of 20 years and one copy to be

provided to the purchaser or transferee.

(ii)  The form of the application/record of sale

shall be no more than one page in length and shall be

promulgated by the Pennsylvania State Police and provided

by the licensed importer, licensed manufacturer or

licensed dealer.

(iii)  For purposes of conducting the criminal

history, juvenile delinquency and mental health records

background check which shall be completed within ten days

of receipt of the information from the dealer, the

application/record of sale shall include the name,

address, birthdate, gender, race, physical description

and Social Security number of the purchaser or transferee

and the date of application.

(iv)  No information regarding the type of firearm

need be included other than an indication that the

firearm exceeds the barrel lengths set forth in section

6102.

(v)  Unless it has been discovered pursuant to a

criminal history, juvenile delinquency and mental health

records background check that the potential purchaser or

transferee is prohibited from possessing a firearm

pursuant to section 6105 (relating to persons not to

possess, use, manufacture, control, sell or transfer

firearms), no information on the application/record of

sale provided pursuant to this subsection shall be

retained as precluded by section 6111.4 (relating to

registration of firearms) by the Pennsylvania State

Police either through retention of the application/record

of sale or by entering the information onto a computer,

and, further, an application/record of sale received by

the Pennsylvania State Police pursuant to this subsection

shall be destroyed within 72 hours of the completion of

the criminal history, juvenile delinquency and mental

health records background check].

(ii)  Contacted NICS by telephone or electronically

to request a background check on a potential buyer or

transferee.

(iii)  Received authorization from NICS to sell or

deliver the firearm to the prospective buyer or

transferee.

(1.1)  The dealer shall record the NICS transaction

number on Form 4473 and retain Form 4473 for auditing

purposes for purchases and transfers of firearms under

paragraph (1).

(1.2)  Fees collected under [paragraph (3) and] section

6111.2 (relating to firearm sales surcharge) shall be

transmitted to the Pennsylvania State Police within 14 days

of collection.

(1.3)  In addition to the criminal penalty under section

6119 (relating to violation penalty), any person who

knowingly and intentionally maintains or fails to destroy any

information submitted to the Pennsylvania State Police for

purposes of a background check pursuant to [paragraphs (1.1)

and] paragraph (1.4) or violates section 6111.4 shall be

subject to a civil penalty of $250 per violation, entry or

failure to destroy.

(1.4)  [Following implementation of the instantaneous

records check by the Pennsylvania State Police on or before

December 1, 1998, no application/record of sale] No Form 4473 

shall be completed for the purchase or transfer of a firearm

which exceeds the barrel lengths set forth in section 6102. A

statement shall be submitted by the dealer to the

Pennsylvania State Police, postmarked via first class mail,

within 14 days of the sale, containing the number of firearms

sold which exceed the barrel and related lengths set forth in

section 6102, the amount of surcharge and other fees remitted

and a list of the unique [approval] transaction numbers given

pursuant to paragraph [(4)] (1.1), together with a statement

that the background checks have been performed on the

firearms contained in the statement. The form of the

statement relating to performance of background checks shall

be promulgated by the Pennsylvania State Police.

(2)  Inspected photoidentification of the potential

purchaser or transferee, including, but not limited to, a

driver's license, official Pennsylvania photoidentification

card or official government photoidentification card. In the

case of a potential buyer or transferee who is a member of a

recognized religious sect or community whose tenets forbid or

discourage the taking of photographs of members of that sect

or community, a seller shall accept a valid-without-photo

driver's license or a combination of documents, as prescribed

by the Pennsylvania State Police, containing the applicant's

name, address, date of birth and the signature of the

applicant.

[(3)  Requested by means of a telephone call that the

Pennsylvania State Police conduct a criminal history,

juvenile delinquency history and a mental health record

check. The purchaser and the licensed dealer shall provide

such information as is necessary to accurately identify the

purchaser. The requester shall be charged a fee equivalent to

the cost of providing the service but not to exceed $2 per

buyer or transferee.

(4)  Received a unique approval number for that inquiry

from the Pennsylvania State Police and recorded the date and

the number on the application/record of sale form.]

(5)  Issued a receipt containing [the information from

paragraph (4), including] the unique [approval] transaction 

number of the purchaser. This receipt shall be prima facie

evidence of the purchaser's or transferee's compliance with

the provisions of this section.

[(6)  Unless it has been discovered pursuant to a

criminal history, juvenile delinquency and mental health

records background check that the potential purchaser or

transferee is prohibited from possessing a firearm pursuant

to section 6105, no information received via telephone

following the implementation of the instantaneous background

check system from a purchaser or transferee who has received

a unique approval number shall be retained by the

Pennsylvania State Police.

(7)  For purposes of the enforcement of 18 U.S.C. §

922(d)(9), (g)(1) and (s)(1) (relating to unlawful acts), in

the event the criminal history or juvenile delinquency

background check indicates a conviction for a misdemeanor

that the Pennsylvania State Police cannot determine is or is

not related to an act of domestic violence, the Pennsylvania

State Police shall issue a temporary delay of the approval of

the purchase or transfer. During the temporary delay, the

Pennsylvania State Police shall conduct a review or

investigation of the conviction with courts, local police

departments, district attorneys and other law enforcement or

related institutions as necessary to determine whether or not

the misdemeanor conviction involved an act of domestic

violence. The Pennsylvania State Police shall conduct the

review or investigation as expeditiously as possible. No

firearm may be transferred by the dealer to the purchaser who

is the subject of the investigation during the temporary

delay. The Pennsylvania State Police shall notify the dealer

of the termination of the temporary delay and either deny the

sale or provide the unique approval number under paragraph

(4).]

* * *

(g)  Penalties.--

* * *

(3)  Any person, licensed dealer, licensed manufacturer

or licensed importer who knowingly and intentionally requests

[a criminal history, juvenile delinquency or mental health

record check or other confidential information from the

Pennsylvania State Police] an NICS background check under

this chapter for any purpose other than compliance with this

chapter or knowingly and intentionally disseminates any

criminal history, juvenile delinquency or mental health

record or other confidential information to any person other

than the subject of the information commits a felony of the

third degree.

* * *

§ 6111.1.  Pennsylvania State Police.

* * *

(b)  Duty of Pennsylvania State Police.--

[(1)  Upon receipt of a request for a criminal history,

juvenile delinquency history and mental health record check

of the potential purchaser or transferee, the Pennsylvania

State Police shall immediately during the licensee's call or

by return call forthwith:

(i)  review the Pennsylvania State Police criminal

history and fingerprint records to determine if the

potential purchaser or transferee is prohibited from

receipt or possession of a firearm under Federal or State

law;

(ii)  review the juvenile delinquency and mental

health records of the Pennsylvania State Police to

determine whether the potential purchaser or transferee

is prohibited from receipt or possession of a firearm

under Federal or State law; and

(iii)  inform the licensee making the inquiry either:

(A)  that the potential purchase or transfer is

prohibited; or

(B)  provide the licensee with a unique approval

number.

(2)  In the event of electronic failure, scheduled

computer downtime or similar event beyond the control of the

Pennsylvania State Police, the Pennsylvania State Police

shall immediately notify the requesting licensee of the

reason for and estimated length of the delay. If the failure

or event lasts for a period exceeding 48 hours, the dealer

shall not be subject to any penalty for completing a

transaction absent the completion of an instantaneous records

check for the remainder of the failure or similar event, but

the dealer shall obtain a completed application/record of

sale following the provisions of section 6111(b)(1) and (1.1)

(relating to sale or transfer of firearms) as if an

instantaneous records check has not been established for any

sale or transfer of a firearm for the purpose of a subsequent

background check.

(3)  The Pennsylvania State Police shall fully comply,

execute and enforce the directives of this section as

follows:

(i)  The instantaneous background check for firearms

as defined in section 6102 (relating to definitions)

shall begin on July 1, 1998.

(ii)  The instantaneous background check for firearms

that exceed the barrel lengths set forth in section 6102

shall begin on the later of:

(A)  the date of publication of the notice under

section 6111(a)(2); or

(B)  December 31, 1998.]

(4)  The Pennsylvania State Police and any local law

enforcement agency shall make all reasonable efforts to

determine the lawful owner of any firearm confiscated or

recovered by the Pennsylvania State Police or any local law

enforcement agency and return said firearm to its lawful

owner if the owner is not otherwise prohibited from

possessing the firearm. When a court of law has determined

that the Pennsylvania State Police or any local law

enforcement agency have failed to exercise the duty under

this subsection, reasonable attorney fees shall be awarded to

any lawful owner of said firearm who has sought judicial

enforcement of this subsection.

[(c)  Establish a telephone number.--The Pennsylvania State

Police shall establish a telephone number which shall be

operational seven days a week between the hours of 8 a.m. and 10

p.m. local time for purposes of responding to inquiries as

described in this section from licensed manufacturers, licensed

importers and licensed dealers. The Pennsylvania State Police

shall employ and train such personnel as are necessary to

administer expeditiously the provisions of this section.]

* * *

[(e)  Challenge to records.--

(1)  Any person who is denied the right to receive, sell,

transfer, possess, carry, manufacture or purchase a firearm

as a result of the procedures established by this section may

challenge the accuracy of that person's criminal history,

juvenile delinquency history or mental health record pursuant

to a denial by the instantaneous records check by submitting

a challenge to the Pennsylvania State Police within 30 days

from the date of the denial.

(2)  The Pennsylvania State Police shall conduct a review

of the accuracy of the information forming the basis for the

denial and shall have the burden of proving the accuracy of

the record. Within 20 days after receiving a challenge, the

Pennsylvania State Police shall notify the challenger of the

basis for the denial, including, but not limited to, the

jurisdiction and docket number of any relevant court decision

and provide the challenger an opportunity to provide

additional information for the purposes of the review. The

Pennsylvania State Police shall communicate its final

decision to the challenger within 60 days of the receipt of

the challenge. The decision of the Pennsylvania State Police

shall include all information which formed a basis for the

decision.

(3)  If the challenge is ruled invalid, the person shall

have the right to appeal the decision to the Attorney General

within 30 days of the decision. The Attorney General shall

conduct a hearing de novo in accordance with the

Administrative Agency Law. The burden of proof shall be upon

the Commonwealth.

(4)  The decision of the Attorney General may be appealed

to the Commonwealth Court by an aggrieved party.]

* * *

(i)  Reports.--The Pennsylvania State Police shall annually

compile and report to the General Assembly, on or before

December 31, the following information for the previous year:

(1)  number of firearm sales, including the types of

firearms;

[(2)  number of applications for sale of firearms denied,

number of challenges of the denials and number of final

reversals of initial denials;

(3)  summary of the Pennsylvania State Police's

activities, including the average time taken to complete a

criminal history, juvenile delinquency history or mental

health record check;] and

(4)  uniform crime reporting statistics compiled by the

Pennsylvania State Police based on the National Incident-

based Reporting System.

* * *

[(j.2)  Records check.--The provisions of this section which

relate to the instantaneous records check conducted by telephone

shall be applicable 30 days following notice by the Pennsylvania

State Police pursuant to section 6111(a)(2).]

* * *

§ 6111.2.  Firearm sales surcharge.

* * *

(c)  Revenue sources.--Funds received under the provisions of

this section [and section 6111(b)(3) (relating to sale or

transfer of firearms)], as estimated and certified by the

Secretary of Revenue, shall be deposited within five days of the

end of each quarter into the fund.

* * *

§ 6111.3.  Firearm Records Check Fund.

* * *

(b)  Source.--The source of the fund shall be moneys

collected and transferred under section 6111.2 (relating to

firearm sales surcharge) [and moneys collected and transferred

under section 6111(b)(3)].

Section 3.  This act shall take effect in 60 days.