Brady Handgun Violence Protection Act

Brady Handgun Violence Protection Act

On November 30, 1993, the Brady Handgun Violence Prevention Act was enacted, amending the Gun Control Act of 1968. The Brady Law imposed as an interim measure a waiting period of 5 days before a licensed importer, manufacturer, or dealer may sell, deliver, or transfer a handgun to an unlicensed individual. The waiting period applies only in states without an acceptable alternate system of conducting background checks on handgun purchasers. The interim provisions of the Brady Law became effective on February 28, 1994, and ceased to apply on November 30, 1998.

While the interim provisions of the Brady Law apply only to handguns, the permanent provisions of the Brady Law apply to all firearms. Brady Law, in full Brady Handgun Violence Prevention Act, U.S. legislation, adopted in 1993, that imposed an interim five-day waiting period for the purchase of a handgun until 1998, when federally licensed dealers would be required to use a federal National Instant Criminal Background Check System (NICS) to conduct background checks on individuals purchasing any firearm. Before the measure became law, it was popularly known as the Brady bill, named for James Brady, the White House press secretary who was seriously injured in an attempted assassination of Pres. Ronald Reagan in 1981. Brady confined to a wheelchair and unable to resume his duties, campaigned vigorously for the bill, despite fierce opposition from the National Rifle Association (NRA), one of Washington’s most-formidable interest groups. The waiting period went into effect on February 28, 1994. As originally written, the Brady Law required state and local law-enforcement officials to perform background checks during the five-day waiting period. That provision, however, was struck down by the Supreme Court in Printz v. United States (1997). The NCIS was created by by the Federal Bureau of Investigation (FBI) and became operational on November 30, 1998.

Brady Handgun Violence Prevention Act

The Brady Handgun Violence Prevention Act enacted November 30, 1993), often referred to as the Brady Act or the Brady Bill, is an Act of the United States Congress that mandated federal background checks on firearm purchasers in the United States, and imposed a five-day waiting period on purchases, until the NICS system was implemented in 1998. The original legislation was introduced into the House of Representatives by Representative Charles E. Schumer in March 1991, but was never brought to a vote. The bill was reintroduced by Rep. Schumer on February 22, 1993 and the final version was passed on November 11, 1993. It was signed into law by President Bill Clinton on November 30, 1993 and the law went into effect on February 28, 1994. The Act was named after James Brady, who was shot by John Hinckley Jr. during an attempted assassination of President Ronald Reagan on March 30, 1981.

Brady Bill signed into law

During a White House ceremony attended by James S. Brady, President Bill Clinton signs the Brady handgun-control bill into law. The law requires a prospective handgun buyer to wait five business days while the authorities check on his or her background, during which time the sale is approved or prohibited based on an established set of criteria. In 1981, James Brady, who served as press secretary for President Ronald Reagan, was shot in the head by John Hinckley, Jr., during an attempt on President Reagan’s life outside a hotel in Washington, D.C. Reagan himself was shot in his left lung but recovered and returned to the White House within two weeks. Brady, the most seriously injured in the attack, was momentarily pronounced dead at the hospital but survived and began an impressive recovery from his debilitating brain injury. During the 1980s, Brady became a leading proponent of gun-control legislation and in 1987 succeeded in getting a bill introduced into Congress.

The Brady Bill, as it became known, was staunchly opposed by many congressmen, who, in reference to the Second Amendment to the U.S. Constitution, questioned the constitutionality of regulating the ownership of arms. In 1993, with the support of President Bill Clinton, an advocate of gun control, the Brady Bill became law.

The Brady Bill requires that background checks be conducted on individuals before a firearm may be purchased from a federally licensed dealer, manufacturer or importer unless an exception applies. If there are no additional state restrictions, a firearm may be transferred to an individual upon approval by the National Instant Criminal Background Check System (NICS) maintained by the FBI. In some states, proof of a previous background check can be used to bypass the NICS check. For example, a state-issued concealed carry permit usually includes a background check equivalent to the one required by the Act. Other alternatives to the NICS check include state-issued handgun purchase permits or mandatory state or local background checks.

In Section 922(g) of title 18, United States Code the Brady Bill prohibits certain persons from shipping or transporting any firearm in interstate or foreign commerce, or receiving any firearm which has been shipped or transported in interstate or foreign commerce, or possessing any firearm in or affecting commerce. These prohibitions apply to any person who:

• Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
• Is a fugitive from justice;
• Is an unlawful user of or addicted to any controlled substance;
• Has been adjudicated as a mental defective or committed to a mental institution;
• Is an alien illegally or unlawfully in the United States;
• Has been discharged from the Armed Forces under dishonourable conditions;
• Having been a citizen of the United States, has renounced U.S. citizenship;
• Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner, or;
• Has been convicted in any court of a misdemeanour crime of domestic violence.

Section 922(n) of title 18, Utah Code makes it unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport any firearm in interstate or foreign commerce, or receive any firearm which has been shipped or transported in interstate or foreign commerce. After a prospective buyer completes the appropriate form, the holder of a Federal Firearms License (FFL) initiates the background check by phone or computer. Most checks are determined within minutes. If a determination is not obtained within three business days then the transfer may legally be completed. Firearm transfers by unlicensed private sellers that are “not engaged in the business” of dealing firearms are not subject to the Brady Act, but may be covered under other federal, state, and local restrictions. The Brady Bill also does not apply to licensed Curios & Relics (C&R) collectors, but only in respect to C&R firearms. The FFL Category 03 Curio & Relic license costs $30 and is valid for three years. Licensed C&R collectors may also purchase C&R firearms from private individuals or from federal firearms dealers, whether in their home state or in another state, and ship C&R firearms in interstate commerce by common carrier. The regulation further states:

To be recognized as curios or relics, firearms must fall within one of the following categories:
• Firearms which were manufactured at least 50 years prior to the current date, but not including replicas thereof;
• Firearms which are certified by the curator of a municipal, State, or Federal museum which exhibits firearms to be curios or relics of museum interest; or
• Any other firearms which derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event. Proof of qualification of a particular firearm under this category may be established by evidence of present value and evidence that like firearms are not available except as collector’s items, or that the value of like firearms available in ordinary commercial channels is substantially less.

The Brady Act

The Brady Handgun Violence Prevention Act of 1993 (“Brady Act”) effected amendments to the GCA, originally imposing a five-day waiting period for law enforcement to review the background of a prospective handgun purchaser before a licensed dealer was entitled to complete the sale of a handgun to that person. The purpose of the check is to allow law enforcement to confirm that the prospective buyer is not a prohibited purchaser (see discussion of “prohibited purchaser” in connection with the FFA, above, and the posts on Background Checks and Prohibited Purchasers Generally) before the sale is consummated. The five-day waiting period has now been replaced with an instant check system, which can be extended to three days when the results of the check are not clear. Persons who have a federal firearms license or a state-issued permit to possess or acquire a firearm (such as a state-issued concealed carry permit that is valid for not more than five years) are not subject to the waiting period requirement. As more states enact “shall issue” concealed carry permit laws, this category of persons exempt from the Brady Act increases. In 1998, the Act became applicable to shotguns and rifles.

The Brady Act is codified at 18 U.S.C. § 921 et seq. Additional details about the Brady Act may be found in the posts discussing federal law on Background Checks, Prohibited Purchasers Generally and Dealer Regulations.
Notice that firearms are prohibited may be given by:
• Personal communication to the actor by the church or organization or a person with authority to act for the person or entity;
• Posting of signs reasonably likely to come to the attention of persons entering the house of worship or private residence;
• Announcement by a person with authority to act for the church or organization operating the house of worship in a regular congregational meeting in the house of worship;
• Publication in a bulletin, newsletter, worship program or similar document generally circulated or available to the members of the congregation regularly meeting in the house of worship; or
• Publication in a newspaper of general circulation in the county in which the house of worship is located or if the church or organization operating the house of worship has its principal office in this state.

Minimum Age to Purchase & Possess in Utah

Utah law provides that no person under age 18 may possess a handgun, sawed-off rifle, sawed–off shotgun, or fully automatic weapon. The state further prohibits any person under 18 years of age from possessing any other firearm (i.e., a rifle or shotgun) unless he or she:
• Has the permission of one’s parent or guardian to have the weapon; or
• Is accompanied by a parent or guardian while in possession of the gun.
Exceptions regarding possession of handguns by minors include any person:
• Firing at lawfully operated target concessions at amusement parks, piers, and similar locations provided the firearms to be used are firmly chained or affixed to the counters;
• In attendance at a hunter’s safety course or a firearms safety course;
• Engaging in practice or any other lawful use of a firearm at an established range or any other area where the discharge of a firearm is not prohibited by state or local law;
• Engaging in an organized competition involving the use of a firearm, or participating in or practicing for such competition;
• Under age 18 who is on real property with the permission of the owner, licensee, or lessee of the property and who has the permission of a parent or legal guardian or the owner, licensee, or lessee to possess a firearm not otherwise in violation of law;

Any person under 14 years of age in possession of a dangerous weapon shall be accompanied by a responsible adult. A “dangerous weapon” is “any item that in the manner of its use or intended use is capable of causing death or serious bodily injury.” An applicant for a concealed firearms permit must be 21 years of age or older. Applicants between the ages of 18 and 20 may apply for a provisional permit that allows the permittee to carry in the state without restriction except for elementary and secondary school campuses.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Persons Prohibited From Possessing A Firearm

Persons Prohibited From Possessing A Firearm

The Gun Control Act of 1968, as amended by the 1994 Brady Handgun Violence Prevention Act, prohibits certain people from possessing a firearm. The possession of any firearm by one of these “prohibited persons” is a felony offense. It is also a felony for any person, including a registered Federal Firearms Licensee to sell or otherwise transfer any firearm to a person knowing or having “reasonable cause” to believe that the person receiving the firearm is prohibited from firearm possession.

There are nine categories of people prohibited from possessing firearms under the Gun Control Act:

• Persons under indictment for, or convicted of, any felony crime punishable by imprisonment for a term exceeding one year
• Fugitives from justice
• Persons who are unlawful users of, or addicted to, any controlled substance
• Persons who have been declared by a court as mental defectives or have been committed to a mental institution
• Illegal aliens or aliens who were admitted to the United States under a nonimmigrant visa
• Persons who have been dishonorably discharged from the Armed Forces
• Persons who have renounced their United States citizenship
• Persons subject to certain types of restraining orders
• Persons who have been convicted of a misdemeanor crime of domestic violence

In addition, most persons under 18 years of age are prohibited from possessing handguns. These federal laws impose a life-long ban on gun possession by anyone convicted of a felony, as well as those merely under indictment for a felony. In addition, the federal courts have held that under the Gun Control Act, persons convicted of felonies are banned from owning guns even if they never serve jail time for the crime.

Prohibited Persons

Prohibited persons” may not possess firearms or ammunition. It is also unlawful to knowingly give a prohibited person firearms or ammunition. Those restrictions seem straight-forward, but there are unique definitions and exceptions that apply. These details should be understood so that you know exactly who is a prohibited person and precisely what they are prohibited from possessing. There are two categories of persons who may not possess firearms or dangerous weapons under Utah law. Penalties for weapons possession by category I restricted persons are more severe than the penalties for possession by category II restricted persons.

Category I covers persons who have “been convicted of any violent felony” or are “on probation or parole for any felony” or have been “within the last 10 years an adjudicated delinquent for an offense which if committed by an adult would have been a violent felony”. Under Utah law, “A Category I restricted person who intentionally or knowingly agrees, consents, offers, or arranges to purchase, transfer, possess, use, or have under his custody or control, or who intentionally or knowingly purchases, transfers, possesses, uses, or has under his custody or control any firearm is guilty of a second degree felony.”

Category II covers persons who have “been convicted of or are under indictment for any felony” or have “within the last seven years been an adjudicated delinquent for an offense which if committed by an adult would have been a felony” or are “an unlawful user of a controlled substance” or have “been found not guilty by reason of insanity for a felony offense” or have “been found mentally incompetent to stand trial for a felony offense” or have “been adjudicated as mentally defective as provided in the Brady Handgun Violence Prevention Act” or are “an alien who is illegally or unlawfully in the United States” or have “has been dishonorably discharged from the armed forces” or have “renounced his citizenship after having been a citizen of the United States”. A Category II restricted person who purchases, transfers, possesses, uses, or has under his custody or control any firearm is guilty of a third degree felony under Utah law. In addition to any person who has been convicted of any offense listed under §6105(b), the following persons shall not be eligible for or permitted to possess a firearm:

• You are a fugitive from justice.
• You were convicted of an offense under the “Controlled Substance, Drug, Device and Cosmetic Act”, or any equivalent Federal statute, or equivalent statute of any other state, that may be punishable by a term of imprisonment exceeding two years.
NOTE: This refers to the maximum sentence you could have received, not the actual sentence you did receive.
• You have been convicted of Driving Under the Influence of Alcohol or Controlled Substance (DUI) on three or more separate occasions within a five-year period. For the purposes of this paragraph only, the prohibition of possessing firearms shall only apply to transfers or purchases of firearms after the 3rd conviction. This means that you may keep what firearms you have if this is the only paragraph that applies to you. However, you may not transfer or receive any firearms.
• You have been adjudicated as an incompetent or you have been involuntarily committed to a mental institution for inpatient care and treatment under the Mental Health Procedures Act. This paragraph does not apply to any proceeding under §302 of the Mental Health Procedures Act if the examining physician issued a certification that inpatient care was not necessary or that the person was not committable.

• You are an alien who is illegally or unlawfully in the United States.
• You are the subject of an active final protection from abuse order issued pursuant to 23 Pa.C.S. §6108, are the subject of any other active protection from abuse order issued pursuant to 23 Pa.C.S. §6107(b), which provided for relinquishment of firearms during the period of time the order is in effect or are otherwise prohibited from possessing or acquiring a firearm under 18 U.S.C. §922 (g)(8). This prohibition shall terminate upon the expiration or vacation of the order or portion thereof relating to relinquishment of firearms.

• You, as a juvenile, were adjudicated delinquent of the below mentioned offenses, or under any equivalent Federal statute, or statute of any other state:

• §2502 (relating to Murder)
• §2503 (relating to Voluntary manslaughter)
• §2702 (relating to Aggravated assault)
• §2703 (relating to Assault by prisoner)
• §2704 (relating to Assault by life prisoner)
• §2901 (relating to Kidnapping)
• §3121 (relating to Rape)
• §3123 (relating to Involuntary deviate sexual intercourse)
• §3301 (relating to Arson and related offenses)
• §3502 (relating to Burglary)
• §3701 (relating to Robbery)
• §3923 (relating to Theft by extortion) when the offense is accompanied by threats of violence

• You, as a juvenile, were adjudicated delinquent of any of the offenses mentioned in §6105(b) or under any equivalent Federal statute, or statute of any other state with the exception of those crimes mentioned in paragraph 7. This prohibition will terminate 15 years after the last applicable delinquent adjudication or upon the person reaching the age of 30, whichever is earlier.

• You are prohibited from possessing or acquiring a firearm under federal law because you have been convicted of a misdemeanor crime of domestic violence*. If the offense which resulted in the prohibition under 18 U.S.C. §922(g) was committed by a person in any of the following relationships:

(i) the current or former spouse, parent or guardian of the victim;
(ii) a person with whom the victim shares a child in common;
(iii) a person who cohabits with or has cohabited with the victim as a spouse, parent or guardian; or
(iv) a person similarly situated to a spouse, parent or guardian of the victim; then the relationship need not be an element of the offense to meet the requirements of this paragraph.

• You, as the subject of a temporary or active final protection from abuse order, were convicted under 18 Pa.C.S. §6105(a.1 of failing to relinquish a firearm or other weapon or ammunition to the Sheriff or other law enforcement agency as required by the order. This prohibition terminates five years after the date of conviction, final release from confinement or final release from supervision, whichever is later.

What to Do if You’re a Prohibited Person

If you are a prohibited person, stay away from firearms for as long as you remain a prohibited person. Possession of a firearm is enough to get you into trouble – it doesn’t have to be your firearm. Also, be extremely careful near firearms even if you’re not physically holding one. Depending on the situation, having access to a nearby firearm might be enough to get you into trouble. If you want to regain your right to possess a firearm, you should contact an attorney in the state where the event happened that keeps you from possessing firearms. You may be able to overturn your status as a prohibited person. It is rare, but it can happen. Whatever you do, do not try to have someone else get a firearm or ammunition for you.

Prohibited Purchasers In Utah

Federal law prohibits certain persons from purchasing or possessing firearms, such as felons, certain domestic abusers, and certain people with a history of mental illness. Utah law provides that, subject to certain limited exceptions, no person shall possess a firearm if he or she:
Is a Category I restricted person, meaning a person who:

• Has been convicted of any violent felony;
• Is on probation or parole for any felony;
• Is on parole from a “secure facility”;or
• Within the last 10 years has been adjudicated delinquent for an offense which if committed by an adult would have been a violent felony; or
• Is an alien who is illegally or unlawfully in the U.S.;
Is a Category II restricted person, meaning a person who:
• Has been convicted of a felony or, within the last seven years has been adjudicated delinquent for an offense which if committed by an adult would have been a felony;
• Is an unlawful user of a controlled substance;
• Is in possession of a dangerous weapon and is knowingly and intentionally in unlawful possession of a Schedule I or II controlled substance;
• Has been found not guilty by reason of insanity of, or has been found mentally incompetent to stand trial for, a felony offense;
• Has been adjudicated mentally defective as provided in the Brady Handgun Violence Prevention Act, codified at 18 U.S.C. § 921 et seq. or has been committed to a mental institution;
• Has been dishonorably discharged from the armed forces;
• Has renounced one’s citizenship after having been a citizen of the U.S.;

• Is subject to a final domestic violence protective order if the order includes a finding that:
• The respondent or defendant represents a credible threat to the physical safety of an intimate partner as defined by federal law; or
• Explicitly prohibits the use, attempted use, or threatened use of physical force that would reasonably be expected to cause bodily harm against an intimate partner or the child of an intimate partner; or
• Has been convicted of a domestic violence misdemeanor.
Individuals subject to a sexual violence protective order are prohibited from purchasing or possessing firearms so long as: The respondent has been given notice of the petition for a protective order and an opportunity to be heard; and the petition establishes:
• By a preponderance of the evidence that the respondent committed sexual violence against the petitioner; and
• By clear and convincing evidence that the respondent’s use or possession of a firearm poses a serious threat of harm to the petitioner or a family or household member designated in the protective order.
Additionally, a person who has been convicted of a crime for which the penalty was enhanced due to the offense being “gang-related” may not possess a firearm or ammunition within a minimum of five years after the conviction. Utah repealed its prohibition against firearm possession by a person currently under indictment for a felony.

A Category I restricted person who intentionally or knowingly agrees, consents, offers, or arranges to purchase, transfer, possess, use, or have under one’s custody or control, or who intentionally or knowingly purchases, transfers, possesses, uses, or has under one’s custody or control any firearm is criminally liable for a second degree felony.
A Category II restricted person who purchases, transfers, possesses, uses, or has under one’s custody or control any firearm is criminally liable for a third degree felony. A person may be subject to the restrictions of both categories at the same time. If a finding is made that the subject of a child protective order or an ex parte child protective order may pose a serious threat of harm to the minor, the order may prohibit the subject from purchasing, using or possessing a firearm.

Gun Lawyer Free Consultation

When you need legal help with gun law in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Firearms Dealers And Licensing Requirements

Firearms Dealers And Licensing Requirements

Although nearly all firearms in the United States are originally sold by licensed gun dealers, these dealers are subject to very little federal scrutiny. The lack of oversight, due to inadequate funding and gun lobby-backed legislation, too often allows corrupt or irresponsible gun dealers to endanger public safety without any accountability or consequences. Firearms initially enter the consumer market through gun dealers, who are the critical link between manufacturers or distributors and the general public. Even though all guns that are sold to the public, including guns that end up recovered in crimes, originate with dealers, dealers are subject to very little federal oversight. Over 56,600 individuals currently have “Type 1” federal firearms licenses, which allow them to act as firearms dealers, and almost 8,000 individuals have “Type 2” licenses, which allow them to buy and sell guns as pawnbrokers. About 71,452 individuals have other types of federal firearms licenses. Federal dealer licenses are in high demand because a dealer may purchase unlimited quantities of firearms through the mail, at wholesale prices, without being subject to background checks or any state or local waiting periods.

GUN DEALERS AND TRAFFICKING

Oversight of dealers is critical because gun dealers represent a major source of illegally trafficked firearms. Despite the need for strong dealer oversight, ATF faces numerous obstacles that enable corrupt dealers to go undetected and unpunished. For example, ATF may conduct only one unannounced inspection of each dealer per year, the burden of proof for prosecution and revocation are extremely high, and serious violations of firearms laws have been classified as misdemeanors rather than felonies. In addition, ATF has historically been grossly underfunded and understaffed. FFLs must be monitored to ensure that firearms are not stolen or trafficked. Missing guns pose a serious risk to public safety because they may end up in criminal hands and cannot be traced to the initial purchaser. Federal law makes it unlawful for any person except a licensed dealer to “engage in the business” of dealing in firearms. As applied to a firearms dealer, the term “engaged in the business” is defined as: person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms. By contrast, a so-called “private seller” (one who is not “engaged in the business”) is exempt from federal licensing requirements. A Federal Firearms License (FFL) is a license in the United States that enables an individual or a company to engage in a business pertaining to the manufacture or importation of firearms and ammunition, or the interstate and intrastate sale of firearms. Holding an FFL to engage in certain such activities has been a legal requirement within the United States since the enactment of the Gun Control Act of 1968. The FFL is issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE, commonly known as the “ATF”).

A gun shop (also known by various other names such as firearm store and gun store) is a business establishment that sells small arms, such as handguns and shotguns, to individuals in an open shopping format. It may also provide repairs for firearms and their parts. Other items such as ammunition and accessories for hunting are frequently sold on the premises as well, even including souvenir t-shirts. Often having designs reminiscent of other establishments such as department stores displaying various items of clothing on racks and grocery stores displaying various foodstuffs on shelves, these firms operate under widely different gun control laws depending on the specific nation-state and locality involved. Some locations may only employ a single gunsmith in a small space while others might have many individuals working in a large space. The arms industry, also known as the defense industry or the arms trade, is a global industry which manufactures and sells weapons and military technology. It consists of a commercial industry involved in the research and development, engineering, production, and servicing of military material, equipment, and facilities.

Arms-producing companies, also referred to as arms dealers, defense contractors, or as the military industry, produce arms for the armed forces of states and for civilians. Departments of government also operate in the arms industry, buying and selling weapons, munitions and other military items. An arsenal is a place where arms and ammunition – whether privately or publicly owned – are made, maintained and repaired, stored, or issued, in any combination. Products of the arms industry include guns, artillery, ammunition, missiles, military aircraft, military vehicles, ships, electronic systems, night-vision devices, holographic weapon sights, laser rangefinders, laser sights, hand grenades, landmines and more. The arms industry also provides other logistical and operational support. A firearms license (also known as a gun license) is a license or permit issued by a government authority (typically by the police) of a, that allows the licensee to buy, own, possess, or carry a firearm, often subject to a number of conditions or restrictions, especially with regard to storage requirements or the completion of a firearms safety course, as well as background checks, etc. Firearms licenses are not required in all jurisdictions. Additionally, some countries or states may require by law a “permit-to-purchase” in order to buy handguns or firearms The permit or license scope varies according to what firearm(s) or activity(s) it allows the holder to legally do with the firearm. Some jurisdictions may require a firearm license to own a firearm, to engage in hunting, target shooting or collecting, or to carry a concealed firearm, or operate a business (such as being a gun dealer or a gunsmith). Some jurisdictions may require separate licenses for rifles, shotguns or handguns. A criminal background check is required if a gun is purchased from a licensed dealer.

STATES WITH STRICT LIABILITY on FIREARMS DEALERS

Two states—Connecticut and Pennsylvania—as well as the District of Columbia, impose strict liability on firearms dealers under certain circumstances. In Connecticut, any person who sells, delivers or otherwise transfers a firearm to a person knowing that person is prohibited from possessing such firearm “shall be strictly liable for damages for the injury or death of another person resulting from the use of such firearm by any person.” Connecticut also provides that any person who sells, delivers or provides any firearm to another person to “engage in conduct which constitutes an offense knowing or under circumstances in which he should know that such other person intends to use such firearm in such conduct shall be criminally liable for such conduct and shall be prosecuted and punished as if he were the principal offender.” The District of Columbia provides that any firearms dealer who can be shown by a preponderance of the evidence to have knowingly and willfully engaged in the illegal sale of a firearm will be strictly liable in tort for all damages caused by the discharge of the firearm in the District, regardless of whether the person operating the firearm is the original, illegal purchaser.

A strict liability action may not be brought, however:
• When the basis of the strict liability is a firearm originally distributed to a law enforcement agency or a law enforcement officer.
• By a person who can be shown by a preponderance of the evidence to have committed a self-inflicted injury or who was injured by a firearm while committing a crime, attempting to commit a crime, engaged in criminal activity, or engaged in a delinquent act.
• By a person who can be shown by a preponderance of the evidence to be engaged in the sale or distribution of illegal narcotics.
• By a person who either assumed the risk of the injury that occurred or negligently contributed to the injury that occurred.
Dealers of assault weapons or machine guns in the District will also, with certain exceptions, be held strictly liable in tort for all direct and consequential damages arising from bodily injury or death if the bodily injury or death proximately results from the discharge of the assault weapon or machine gun in the District.

Federal law requires federally licensed firearms dealers (but not private sellers) to initiate a background check on the purchaser prior to sale of a firearm. Federal law provides states with the option of serving as a state “point of contact” and conducting their own background checks using state, as well as federal, records and databases, or having the checks performed by the FBI using only the federal National Instant Criminal Background Check System (“NICS”) database. (Note that state files are not always included in the federal database.) Utah is a point of contact state for NICS. Utah law provides that, before transferring a firearm, all firearm dealers in Utah must contact the Criminal Investigations and Technical Services Division of the Department of Public Safety (more commonly known as the Bureau of Criminal Identification, or BCI), which conducts the background check referenced above. The dealer must require an individual receiving a firearm to present one form of government-issued photo identification. The individual must consent in writing to the background check and provide personal information on a form provided by BCI. The dealer must then contact BCI by telephone or electronic means.

BCI is required to review criminal history files, including juvenile court records, to determine if the individual is prohibited from purchasing or possessing a firearm by state or federal law, prior to approving a firearm transfer. The dealer may not transfer the firearm until receiving approval from BCI. Federal law does not require dealers to conduct a background check if a firearm purchaser presents a state permit to purchase or possess firearms that meets certain conditions. As a result, Utah concealed handgun license holders are exempt from the federal background check requirement when purchasing a firearm. Utah law also exempts concealed handgun license holders from the state provision requiring a background check. (Note, however, that people who have become prohibited from possessing firearms may continue to hold state firearms licenses if the state fails to remove these licenses in a timely fashion.) Firearms transfers by private sellers (sellers who are not licensed as firearms dealers) are not subject to background checks in Utah.

DEALER DUTIES AND PROHIBITIONS

Once licensed, federal law requires dealers to:
• Initiate background checks on unlicensed firearm purchasers.
• Maintain records of the acquisition and sale of firearms.
• Report multiple sales of handguns (i.e., the sale of two or more pistols or revolvers to an unlicensed person within any five consecutive business days).
• If a licensed dealer in California, Arizona, New Mexico, or Texas, report the sale of two or more of certain semiautomatic rifles to an unlicensed person within any five consecutive business days.
• Report the theft or loss of a firearm within 48 hours after the theft or loss is discovered.
Dealers must also submit to a maximum of one ATF inspection per year to ensure compliance with federal recordkeeping requirements. More frequent inspections are permitted if a federal magistrate has issued a search warrant or if the search is incidental to a criminal investigation. In addition, dealers must respond to requests for information from ATF regarding the disposition of a firearm if such request is made during the course of a bona fide criminal investigation.
A licensed dealer may not sell or deliver:
• A handgun to a resident of another state.
• A handgun or handgun ammunition to a person the dealer knows or has reasonable cause to believe is under the age of 21.
• A shotgun or rifle or ammunition for that firearm to a person the dealer knows or has reasonable cause to believe is under the age of 18.
A dealer may sell a rifle or shotgun to a resident of a different state if the sale is conducted in person at the dealer’s place of business and the sale complies with all of the legal conditions for sale in both states. A dealer may not deliver a handgun to a purchaser through the mail; however, a dealer may mail a handgun in the course of a customary trade shipment to a firearms manufacturer or other FFL. Federal law does not require dealers to conduct business on commercial premises. Dealers may temporarily conduct business at a location other than that specified on the dealer’s license if the temporary location is a gun show in the state specified on the license.

Firearms Lawyer Free Consultation

When you need legal help with gun law in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

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