Firearm Owners' Protection Act of 1986

18

stantially narrow these broad parameters by requiring that the person undertake such activities as part of a regular course of trade or business and for the principal objective of livelihood or profit. It expressly provides that these requirements do not extend to hobbyists who are involved with their personal collection nor to those who occasionally do gunsmithing work.

This provision would not remove the necessity for licensing from part-time businesses, or individuals whose principal income comes from sources other than firearms but whose main objective with regard to firearm transfers is profit rather than hobby. A sporting goods store or pawn shop which derived only a part of its income from firearm sales, but handled such sales for the principal objective of business and profit, would still require a license.

A third change relates to the definition of "crime punishable by imprisonment for a term exceeding one year," a conviction for which bars a citizen from possessing firearms. S. 1030 works two changes to this subsection. The first is a recognition that what constitutes a conviction shall be determined in accord with the law of the jurisdiction where the underlying proceeding were held. This is intended to accommodate state reforms adopted since 1968, which permit dismissal of charges after a plea and successful completion of a probationary period, or which create "open-ended" offenses, a conviction for which may be treated as misdemeanor or felony at the option of the court. Since the federal prohibition is keyed to the state's conviction, state law should govern in these matters. In the case of "open ended" offenses which are classed as felonies but may be reduced by the trial court, it is intended that these constitute a "crime punishable by imprisonment for a term exceeding one year" unless and until the court enters a decision to treat the offense as a misdemeanor.

S. 1030 would also exclude from such convictions any for which the person has received a pardon, civil rights restoration, or expungement of the record. Existing law incorporates a similar provision as to par��dons in 18 U.S.C. section 1202, relating to possession of firearms, but through oversight does not include such provision in 18 U.S.C. section 922, dealing with their purchase or receipt. This oversight has resulted in a ruling that a state pardon does not permit a pardoned citizen to receive or purchase a firearm, despite the express provision that he may possess it. Thrall v. Wolfe, 503 F.2d 318 (7th Cir* 1974). This change would remove that anomaly. In the event that the official granting the pardon, restoration of rights or expungement of record does not desire it to restore the right to firearm ownership, this provision is rendered inapplicable where the order or pardon expressly provides that the per��son may not possess firearms.

A new subsection (a) (22) is added that provides a definition of the term "handgun": The original 1968 Gun Control Act did not contain such a definition. The Committee, in adopting several amendments affecting only handguns, felt it was necessary to include a general definition of a handgun.

Section 102. Section 102 of S. 1030 amends 18 U.S.C. section 922, which generally describes prohibited acts under the Gun Control Act. Section 102 effects two major changes in the list of proscribed acts.

The first change relates to transfers of firearms between residents of different states. Existing 18 U.S.C. section 922(a) (3), (5) 2^nd [sic] 922

[end p. 18]

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(6) (3) generally prohibit transfers of firearms between residents of different states, except where the recipient is a federal firearms licensee, or the transfer meets other narrow criteria. This was intended to prevent the use of interstate sales to defeat local gun restrictions, but in fact bars almost all interstate transfers, even where no law would be violated. Section 102 amends this bar to permit interstate transfers so long as they violate neither firearm laws of the place of sale nor those of the purchaser's residence, and so long as purchaser and seller met in person during the negotiation or transfer. The latter provision is intended to exclude "mail order" sales, where order and delivery are made by mail or wire. Necessarily, restrictions which are meant to have no extraterritorial application are not violated by transactions outside the locality. A law restricting modes of conducting business within a locality, and applicable only to sales within the locality and not to purchases made by its residents elsewhere, is not violated by a resident's purchase of a firearm outside its boundaries. Conversely, a waiting period on delivery of a firearm to a resident, wherever bought in the state, and permit systems relating to ownership or possession of a firearm, wherever bought, are intended to have application outside a locality's boundaries and must be complied with.

The Committee amendments add a provision that a licensed dealer is presumed, in absence of evidence to the contrary, to have knowledge of the published ordinances of other jurisdictions to whose residents he transfers firearms. This was added to meet arguments that a dealer could otherwise make improper transfers so long as he did not acknowledge such laws. The amendment is intended to reverse the initial burden of proof on the issue of knowledge, and not to create an evidentiary presumption.

A second major change incorporated in section 102 creates a coordinated and consistent definition of persons prohibited from possessing, transporting, and receiving firearms. Existing law is deficient in that 18 U.S.C. section 922 defines four classes of persons forbidden firearms receipt, while section 1202 defines six classes���only two of which resemble section 922���s categories���of persons forbidden firearm possession and transportation. Thus, for instance, fugitives from justice and users of certain drugs are forbidden firearms receipt but not firearm possession; illegal aliens are forbidden firearm possession, yet not forbidden to receive firearms. Moreover, the prohibition on transfers of firearms to these classes applies only to licensed dealers, and not to other citizens.

S. 1030 replaces these inconsistent rules with a straightforward and consistent one. Section 102(f) (1) makes the ban on transfers to prohibited persons applicable to "any person", rather than federal licensees alone. The remainder of sections 102 (f) and (g) amend 18 U.S.C. section 922 to prohibit firearm possession, receipt or transportation by convicted felons, fugitives from justice, users of certain drugs, persons subject to an adjudication as a mental defective or a commitment order, illegal aliens, those who have received a dishonorable discharge, and those who have renounced their citizenship. Section 102(h) imposes a prohibition on carrying of firearms while in the employment of any prohibited person, and 102(i) carries over

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the current ban on firearm receipt by one under indictment for a felony.

A new subsection is added to Section 922 that provides for a 14-day waiting period prior to the delivery of a handgun after its purchase. There are two exceptions to this requirement: (1) where the physical danger of an individual may be involved, or (2) where the 14-day waiting period requirement had been complied with during the previous 12 month period.

Section 103.���Section 103 of S. 1030 amends 18 U.S.C. section 923, which relates to issuance of federal firearms licenses and duties of licensees. Section 103 effects five significant changes in the law.

First, subsection (c) authorizes licensees to maintain private firearms collections independent of their business operations. Existing requirements that licensees maintain inventory and disposition records on the business premises, and record on firearms sold, have led to a construction that all sales by a licensee, even of firearms from his own collection, kept at his home, and never part of the business inventory, must be recorded. See United States v. Scherer, 523 F. 2d 371 (7th Cir. 1975), The Committee heard testimony from one licensee who was told on the one hand by federal agents that sale from his personal collection need not be recorded, and on the other hand arrested, charged and con��victed for failure to record such sales. The Committee further received evidence that the enforcing agency had itself vacillated on the question of whether and how such sales must be recorded. The need for a concise, clear standard is evident.

Section 103(c) of S. 1030 as reported out sets such a standard. This subsection permits a licensee to maintain and dispose of a private firearms collection on equal terms with a private, nonlicensed person. S. 1030 as reported also incorporates two restrictions on this right. First, should the licensee transfer firearms from his inventory into his collection, they are deemed to remain part of the inventory for one year after the transfer, and are subject to all recording requirements if sold during that period. The licensee would be required to re-transfer any such firearms into his inventory, then transfer them at his premises with appropriate recording. A second restriction would deem the firearms part of the licensee's business inventory if he made the transfers with the intent of willfully evading his duties as a licensee���with primary intent to make improper transfers later, rather than to promote his collection. These limitations were added to meet objections that S. 1030, as originally introduced, might allow a licensee to transfer firearms into his personal collection in order to evade his duties as a licensee.

S. 1030, section 103(e) amends 18 U.S.C. 923(f), which sets out license revocation procedures. First, 103(e) expressly provides that the hearing on appeal in federal district court shall be "de novo.'' Some courts have construed existing provisions to authorize avoiding a formal fact-finding hearing unless "substantial doubt" as to the factual findings is apparent. See Perri v. Department of Treasury, 637 F. 2d 180 (9th Cir. 1981). This amendment is intended to render such interpretations inapplicable to 18 U.S.C. 923(f).

A second change is found in section 103(e), which bars license revocation based on charges of which the licensee has been vindicated in a criminal action. The purpose is to eliminate the practice, docu-

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21

mented in hearings before the Committee, of prosecuting a licensee, then following with revocation proceedings should he be found innocent or charges be dismissed. The effect in these cases was to burden a licensee with additional costs of legal defense despite his initial vindication. To ensure that the prosecuting agency has leeway to drop criminal charges and proceed with revocation should its evidence prove too weak for the former but sufficient for the latter, the government is permitted to voluntarily terminate criminal proceedings prior to trial and still proceed administratively. This section is not meant to preclude license revocation or denial where the acquittal relates to different transactions or activities than are involved in the license revocation proceedings.

18 U.S.C. 923(g), relating to recordkeeping and administrative searches of licensee premises, is amended by section 103(g) to grant licensees protection against warrantless or unreasonable searches and seizures. 103(g)(1) permits enforcing agents to enter a licensee's premises during business hours to examine his records and inventory. This power is subject to two limitations. First, there must be reasonable cause, not necessarily probable cause, to believe a violation of law has occurred and that evidence of the violation may be found. Second, this cause must be demonstrated before a federal magistrate and a warrant obtained. The warrant requirement serves to protect against unreasonable exercises of power, to limit the scope of the intrusion, and the record created by the application and affidavit will provide a record to judge the propriety of such actions.

103(g) (2) creates an exception to the requirement of establishing reasonable cause where any of three circumstances exist. An exception is granted, first, where the intrusion is a reasonable inquiry as part of a criminal investigation of persons other than the dealer himself. Such inquiries may occur before there is reasonable cause to believe that any particular person committed a violation, and to require proof of such violation might unduly hinder law enforcement. Second, an exception is granted for what have become known as "courtesy inspections," the purpose of which is not investigation but assistance to the licensee by pointing out minor recordkeeping errors. These may be made up to once a year, upon reasonable notice, and shall not be the basis of a prosecution except for sales to illicit purchasers. Finally, an exception is granted for inquiries directed at determining the disposition of a particular firearm or firearms. Whatever the basis of the inspection or investigation, the enforcing agency is authorized to physically seize only records which are material to a violation of law, and copies of these are to be provided within a reasonable time.

These sections of S. 1030 represent significant changes from the bill as originally introduced. They were made to meet objections that section 103 might be read to unduly limit license revocation following pretrial dismissal or plea bargaining, or interfere with needs for firearm tracing and criminal investigation. The Committee feels that the changes made with regard to this section will clarify its terms, avoid the possibility that this section will be construed to bar reasonable inquiries, and still grant to licensees remedial action in protection of the rights they, like all Americans, have under the fourth amendment.

In addition to these changes, section 103 also codifies certain standards which mark no change from current practice. 103(d) provides

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that, to support a license revocation, a violation of law must be willful. Since the existing Gun Control Act requires license issuance and renewal unless, inter alia, the licensee has "willful violated any of the provisions of this chapter," 18 U.S.C. 923(d) (1) (C), courts have universally held that willfulness must be shown to revoke a firearms license under existing law. See Shyda v. Director, B.A.T.F., 448 F. Supp. 409 (M.D. Pa. 1977); Mayesh v. Schultz, 58 F.R.D. 537 (S.D. Ill. 1973); Rich v.. United States, 383 F. Supp. 797 (S.D. Ohio, 1974). Section 103(d) is accordingly a codification of current practices and not a change in law.

Section 104. Section 104 of S. 1030 effects several important changes to 18 U.S.C. 924, the general penalty and forfeiture section of the Gun Control Act.

First, 103(a) inserts the word "willfully" into the general penalty clause contained in 18 U.S.C. 924(a). The purpose is to require that penalties be imposed only for willful violations���those intentionally undertaken in violation of a known legal duty. United States v. Bishop, 412 U.S. 346 (1973) ; Pompanio v. United States, 429 U.S. 10 (1970). Existing law for the most part requires at best a general intent, so that even inadvertent, violations, and those made in the best of faith, may be the subject of prosecution. Improper prosecutions under such conditions���even, in one case, for acts which the director of the enforcing agency had stated were completely legal���were documented in hearings before the Committee, and in earlier hearings before its Subcommittee on the Constitution and the Senate Committee on Appropriations. This subsection is designed to guarantee against such practices. It is moreover designed to provide enforcing agents, prosecutors and courts with a clear delineation of the type of offenders against whom the law is directed. It removes the tendency of statutes permitting conviction for inadvertent violations to "ease the prosecutors path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries." Morisette v. United States, 342 U.S. 246, 263 (1952).

Second, section 104(b) amends 18 U.S.C. 924(c), which establishes additional penalties for use or carrying of a firearm during certain federal offenses. These changes are intended to significantly increase the penalties for criminal use of firearms. Existing law imposes additional penalties for criminal use of firearms. Existing law imposes additional penalties for such use, but does not rule out probation except upon a second conviction, and fails to rule out parole or furlough releases even for these repeat offenders. As reported out by the Committee, S. 1030 retains the additional penalty for unlawful carrying of a firearm during a federal felony. For actual use in a federal felony committed against the person of another, the sentence is additional and release on probation, parole, work furlough or any other form of prison release is forbidden. "Use", in this sense, should be construed to include any employment as a tool to advance the underlying crime, whether by threat, physical striking or discharge. The existing additional sentence for "use" has been held to apply where the offender was captured, with firearm still concealed, outside an institution he intended to rob, and it is intended that this application be continued under section 104 (b). United States v. Moore, 580 F. 2d 360 (9th Cir.). It is also intended that the penalties for "use" be applicable to all violent and threatening use in crimes, including those crimes of which

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being armed is an element, such as armed robbery of a federal or federally insured institution, to the maximum extent possible under the Double Jeopardy clause of the fifth amendment, notwithstanding decisions such as Simpson v. United States, 435 U.S. 6 (1978).

Section 104(b) of S. 1030 incorporates several changes from S. 1030 as originally drafted, intended to meet criticisms of the original bill. It had been argued that S. 1030 would have weakened existing law since it eliminated the existing additional sentence for unlawful carrying, as distinct from use, during a federal felony, and that S. 1030"s sentence was mandatory but not additional to the underlying sentence. S. 1030 meets these criticisms by reinserting the penalty for unlawful carrying during a federal felony and by providing that the penalty for use be both mandatory and additional to any other sentence. Committee amendments moreover double the minimum sentence to two years on first offense. Accordingly, these criticisms are inapplicable to S. 1030 as reported out by the Committee.

A third major change is accomplished by section 104(c), which amends 18 U.S.C. 924(d), governing forfeiture of firearms involved in a violation of federal law. The Committee during its hearings received considerable evidence of misuse of existing overly general powers to confiscate and forfeit firearms. In cases where a collector or dealer was alleged to have sold a small number of firearms improperly���often without illicit intent���enforcing agents confiscated entire collections or inventories on occasion such collections were withheld despite the owner's acquittal of all charges, or, in the total absence of criminal charges, for over two years after the seizure. Owners who secured the return of such firearms often did so only at considerable legal expense to themselves. Section 101(c) addresses these problems at several levels.

First, it limits forfeitures to firearms used or involved in a willful violation. The "intended to be used" basis for forfeiture is removed to prevent improper seizure of an entire collection or inventory based on the most vague evidence of intent.

Second, section 104(c) institutes several procedural safeguards against, Improper seizure or undue retention of seized property. Upon acquittal of the owner or dismissal of charges against him, seized firearms shall be returned unless the return would place the owner in violation of law. In any event, an action for forfeiture must be commenced, if at all, within 120 days of seizure. Beyond this point, the statutory power to forfeit is lost. Finally, only those firearms particularly and individually identified as used, involved in or intended to be used may be seized or forfeited. This is intended both to prevent the issuance of general warrants, leaving it to the executing agents to decide which firearms meet general criteria of use or involvement, and also to prevent wholesale forfeiture of collections or inventories upon a claim of general intent to so use. These are protections recognized for all citizens by the fourth amendment; they are measures which the judiciary has begun to accept as necessary; they are appropriate for recognition by our constitutional system. See generally United States v. 1,192 Assorted Firearms, supra; United States v. One Assortment of 89 Firearms, ��� F.2d ��� (4th Cir., Jan. 26,1982).

Finally, section 104(c) provides, as an enforcement measure, the requirement that attorney's fees be awarded a successful claimant to the

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firearms. If an individual has in fact, been deprived of his property unjustly, and establishes such in court, these is little reason to put the burden of costs upon the just claimant rather than those Who have unjustly taken his possessions. Such an award is likewise to be made in any other action, civil or criminal, under this chapter, where the court finds it was undertaken without foundation or from specified bad motives.

Section 105. Section 105 of S. 1030 amends 18 U.S.C. section 925, which prescribes certain administrative procedures peculiar to the Gun Control Act. 18 U.S.C. section 925(c) presently empowers the Secretary of the Treasury to grant, upon proper application and investigation, a relief from the disability to purchase or possess firearms incurred by persons convicted of a felony. This relief is to be granted if the applicant demonstrates that the conviction and his record and reputation indicate he is unlikely to act in a manner that would endanger the public safety. This is intended to provide a "safety valve" whereby persons whose offenses were technical and nonviolent, or who have subsequently demonstrated their trustworthiness, may obtain relief.

Present law restricts relief to a relatively narrow category of persons convicted of felonies (thus excluding other prohibited classes, which may in fact be more trustworthy) other than violations of the Gun Control Act (thus excluding those convicted of technical and unintentional violations). Section 105(a) amends this to make any person prohibited from firearm possession, receipt or transportation eligible to apply. In light of evidence before the Committee that Gun Control Act charges have been abused in the past with resultant convictions of persons not inclined to any criminal activity, making liberal relief available to such persons is essential. Section 105(a) moreover establishes the right of appeal to the district court from any denial of such relief, and further empowers the court to consider additional evidence in making its finding where a failure to do so might yield a miscarriage of justice. In such a case, the court might, in its discretion request the presence of an agent representing the Secretary, and stay the action for a suitable time to permit the Secretary to review his findings in light of the additional evidence, then proceed forward in the event the evidence does not alter his determination.

Section 105(b) amends 18 U.S.C. section 925(d), governing importation of firearms. Under 925 (d), the Secretary may authorize such importation of firearms which are, inter alia, generally recognized as particularly suitable for sporting purposes. 105(d) amends this to require authorization in the event the firearm is shown to be suitable for sporting purposes. It is anticipated that in the vast majority of cases this will not result in any change in current practices.

Section 106. Section 106 of S. 1030 amends 18 U.S.C. section 926, which deals with promulgation of rules and regulations. 106(a) re-designates existing section 926 as subsection (a) of that section. 106 (b) and (c) provide that the Secretary shall promulgate only such regulations as are necessary to carry out the provisions of the Gun Control Act. It also specifically forbids the promulgation of any rules, after the effective date of the act, which would centralize or record records maintained under the act at any government-owned or government-controlled facility, or that would establish any system of firearm, firearm owner, or firearm transaction registration. Procedures

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established prior to the act's effective date are excepted in order that 106(d) not be taken to preclude existing procedures for storage of records of out-of-business dealers, nor existing procedures for consulting such records to trace firearms used in crime, nor existing requirements for reporting of multiple handgun transfers. It is not intended that this exemption from section 106(d)'s ban be taken as indicating approval of the asserted need for such procedures nor their appropriateness under other requirements of law.

Section 106(e) creates a new 18 U.S.C section 926(b), requiring ninety days' notice of any new regulations, and 106(f) creates a new 18 U.S.C. section 926(c), ruling out. requirement of affidavits for black powder transactions permitted under other provisions of law.

Section 107. Section 107 amends 18 U.S.C. section 927 to add a provision nullifying state and local laws which have the effect of prohibiting transportation of a firearm through such state when the firearm is unloaded und not readily accessible. This is intended to prevent such local laws, which may ban or restrict firearm ownership, possession or transportation, from being used to harrass interstate commerce and travelers. It is anticipated that the firearms being transported will be made inaccessible in a way consistent with the mode of transportation ���in trunk or locked glove compartment in vehicles which have such containers, or in a case or similar container in vehicles which do not.

Section. 108. Section 108 sets the effective date of this act as 180 days after its enactment.

Section 201. Section 201 repeals 18 U.S.C. sections 1201-03, the provisions of which have been incorporated into the Gun Control Act proper by the provisions of this act.

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