HB 0155 2004
1	A bill to be entitled
2	An act relating to firearm records; creating s. 790.335,
3	F.S.; providing legislative findings and intent;
4	prohibiting the creation or maintenance of any list,
5	record, or registry of privately owned firearms or any
6	list, record, or registry of the owners of those firearms;
7	providing exceptions; providing criminal penalties for a
8	violation of the act; providing for the imposition of
9	fines on certain governmental entities; requiring the
10	state attorney to vigorously prosecute violators of this
11	act; prohibiting the expenditure of public funds for
12	defense counsel for persons charged with a violation of
13	this act; providing exceptions; requiring liberal
14	construction of the act; providing for severability;
15	providing for application to records already in existence;
16	providing an effective date.
17
18	WHEREAS, the United States Supreme Court has ruled that
19	since felons are prohibited from owning firearms, compelling
20	them to register their firearms would violate their Fifth
21	Amendment rights against self-incrimination (Haynes v. U.S., 390
22	U.S. 85 (1968)) and, as a consequence, criminals may not be
23	forced to register firearms and may not be prosecuted for
24	failure to register firearms, and
25	WHEREAS, 18 U.S.C. s. 926, the Firearms Owner's Protection
26	Act, prohibits the establishment of "any system of registration
27	of firearms, firearms owners, or firearms transactions or
28	dispositions," and
29	WHEREAS, the Firearms Owner's Protection Act prohibits any
30	rule or regulation that may require that records required to be
31	maintained by firearms dealers under federal law or any portion
32	of the contents of such firearms records from being recorded at
33	or transferred to a facility owned, managed, or controlled by
34	the United States or any state or political subdivision thereof,
35	and
36	WHEREAS, history has shown that the registration of
37	firearms in Cuba enabled Fidel Castro to confiscate firearms and
38	render the disarmed population helpless under his tyranny, and
39	WHEREAS, history has also shown that the registration of
40	firearms in Nazi Germany enabled Adolph Hitler to confiscate
41	firearms and render the disarmed population helpless in the face
42	of Nazi atrocities, and
43	WHEREAS, firearm registration lists have led to gun
44	confiscation in Australia, Bermuda, Cuba, Germany, Great
45	Britain, Greece, Ireland, Jamaica, the former Soviet Union, and
46	other countries, and
47	WHEREAS, history has shown that registration of firearms in
48	California, New York City, Chicago, and Washington, D.C., has
49	led to the banning and confiscation of firearms, and
50	WHEREAS, repeated attempts to accumulate firearms data into
51	computerized databases by some of Florida's agencies and
52	political subdivisions have placed the privacy rights of law-
53	abiding firearm owners at risk, thereby making legislative
54	protection necessary, NOW, THEREFORE,
55
56	Be It Enacted by the Legislature of the State of Florida:
57
58	Section 1. Section 790.335, Florida Statutes, is created
59	to read:
60	790.335 Prohibition of registration of firearms.--
61	(1) LEGISLATIVE FINDINGS AND INTENT.--
62	(a) The Legislature finds and declares that:
63	1. The right of individuals to keep and bear arms is
64	guaranteed under both the Second Amendment to the United States
65	Constitution and s. 8, Art. I of the State Constitution, and
66	keeping a list, record, or registry of those exercising that
67	right is not only a violation of the right to keep and bear
68	arms, but also a violation of the firearm owner's right to
69	privacy.
70	2. A list, record, or registry of legally owned firearms
71	or law-abiding firearm owners is not a law enforcement tool and
72	can become an instrument for profiling, harassing, or abusing
73	law- abiding citizens based on their choice to own a firearm and
74	exercise their Second Amendment right to keep and bear arms as
75	guaranteed under the United States Constitution. Further, such a
76	list, record, or registry has the potential to fall into the
77	wrong hands and become a shopping list for thieves.
78	3. A list, record, or registry of legally owned firearms
79	or law-abiding firearm owners is not a tool for fighting
80	terrorism, but rather is an instrument that can be used as a
81	means to profile innocent citizens using terrorism as a phony
82	excuse to harass and abuse American citizens based solely on
83	their choice to own firearms and exercise their Second Amendment
84	right to keep and bear arms as guaranteed under the United
85	States Constitution.
86	4. Any government official compiling such a list, record,
87	or registry is violating the privacy of the law-abiding firearm
88	owners and the public trust.
89	5. Law-abiding firearm owners whose names have been
90	recorded in a list, record, or registry are entitled to redress.
91	(b) The Legislature intends through the provisions of this
92	section to:
93	1. Protect the right of individuals to keep and bear arms
94	as guaranteed under both the Second Amendment to the United
95	States Constitution and s. 8, Art. I of the State Constitution.
96	2. Protect the privacy rights of law-abiding firearm
97	owners.
98	3. Provide an absolute, unequivocal prohibition of any
99	form of registration of law-abiding firearm owners or their
100	firearms.
101	(2) PROHIBITIONS.--No state governmental agency or local
102	government, special district, or other political subdivision or
103	official, agent, or employee of such state or other governmental
104	entities or any other person, public or private, shall keep or
105	cause to be kept any list, record, or registry of privately
106	owned firearms or any list, record, or registry of the owners of
107	those firearms.
108	(3) EXCEPTIONS.--
109	(a) The provisions of this section shall not apply to:
110	1.a. Firearms which have been used in committing any crime
111	of violence.
112	b. Any person who has been convicted of a crime of
113	violence.
114	c. Records of a firearm that has been reported stolen
115	which are retained for a period not in excess of 30 days after
116	such firearm is recovered.
117	2. The keeping of federally required firearm records which
118	must be retained by firearm dealers under federal law, including
119	copies of such records transmitted to law enforcement agencies.
120	However, no state governmental agency or local government,
121	special district, or other political subdivision or official,
122	agent, or employee of such state or other governmental entities
123	or any other person, private or public, shall accumulate,
124	compile, computerize, or otherwise collect or convert such
125	written records into any form of list, registry, or database for
126	any purpose.
127	3.a. The record keeping provisions of s. 790.065, except
128	that any records containing any of the information set forth in
129	s. 790.065(1) pertaining to a buyer or transferee who is not
130	found to be prohibited from receipt or transfer of a firearm by
131	reason of state or federal law, which records are created by the
132	Department of Law Enforcement to conduct the criminal history
133	record check, shall be confidential and exempt from the
134	provisions of s. 119.07(1) and may not be disclosed by the
135	Department of Law Enforcement, or any officer or employee
136	thereof, to any person or to another agency. The Department of
137	Law Enforcement shall destroy any such records forthwith after
138	it communicates the approval and nonapproval numbers to the
139	licensee and, in any event, such records shall be destroyed
140	within 48 hours after the day of the response to the licensee's
141	request.
142	b. Nothing in this subparagraph shall be construed to
143	allow the maintaining of records containing the names of
144	purchasers or transferees who receive unique approval numbers or
145	the maintaining of records of firearm transactions.
146	4. The firearms records required in chapter 539 may be
147	kept until the expiration of the loan which is secured by a
148	firearm. Except as required by federal law, any such firearms
149	records shall not, at any time, be electronically transferred to
150	any public or private entity, agency, business, or enterprise,
151	nor shall any such records be copied or transferred for purposes
152	of accumulation of such records into lists, registries, or
153	databases.
154	5. The Department of Law Enforcement may maintain records
155	of NCIC transactions to the extent required by federal law and
156	may maintain a log of dates of requests for criminal history
157	records checks, unique approval and nonapproval numbers, license
158	identification numbers, and transaction numbers corresponding to
159	such dates.
160	6. An insurer may, as a condition to providing insurance
161	against theft or loss of a firearm, require the insured to
162	identify such firearm. Such record may not be sold, commingled
163	with records relating to other firearms, or transferred to any
164	other person or entity. The insurer may not keep a record of
165	such firearm more than 60 days after the policy of insurance
166	expires or after notification by the insured that the insured is
167	no longer the owner of such firearm.
168	7. The maintenance of a list of customers of a firearm
169	dealer by such dealer, provided that such list does not disclose
170	the particular firearms purchased. Such list, or any part
171	thereof, may not be sold, commingled with records relating to
172	other firearms, or transferred to any other person or entity.
173	8. The maintenance of sales receipts by the seller of
174	firearms or by a person providing credit for such purchase,
175	provided that such receipts shall not serve as or be used for
176	the creation of a database for registration of firearms.
177	9. Personal records of firearms maintained by the owner of
178	such firearms.
179	10. Records maintained by a business which stores or acts
180	as the selling agent of firearms on behalf of the lawful owner
181	of the firearms.
182	11. Membership lists of organizations comprised of firearm
183	owners.
184	12. Records maintained by an employer or contracting
185	entity of the firearms owned by its officers, employees, or
186	agents, if such firearms are used in the course of business
187	performed on behalf of the employer.
188	13. Records maintained pursuant to s. 790.06 by the
189	Department of Agriculture and Consumer Services of a person who
190	was a licensee within the prior 2 years.
191	(4) PENALTIES.--
192	(a) Any person who violates a provision of this section
193	commits a felony of the third degree, punishable as provided in
194	s. 775.082 or s. 775.083.
195	(b) Any person who is an employee of state or local
196	government who violates a provision of this section and who knew
197	or reasonably should have known that such action was in
198	violation of this section shall be subject to immediate
199	dismissal from such employment. Except as required by the
200	provisions of s. 16, Art. I of the State Constitution or the
201	Sixth Amendment to the United States Constitution, no public
202	funds shall be used to defend the unlawful conduct of any person
203	charged with a violation of this section, unless the charges
204	against such person are dismissed or such person is determined
205	to be not guilty at trial.
206	(c) The governmental entity, or the designee of such
207	governmental entity, in whose service or employ a list, record,
208	or registry was compiled in violation of this section shall be
209	assessed a fine of not less than $250,000 nor more than $5
210	million, if the court determines that the evidence shows that
211	the list, record, or registry was compiled or maintained with
212	the knowledge or complicity of the management of the
213	governmental entity.
214	(d) The state attorney in the appropriate jurisdiction
215	shall investigate complaints of violations of this section and,
216	where evidence indicates a violation may have occurred, shall
217	bring a cause of action and vigorously prosecute violators.
218	(5) LIBERAL CONSTRUCTION.--This section shall be liberally
219	construed to effectuate its remedial and deterrent purposes.
220	Section 2. Any list, record, or registry maintained or
221	under construction on the effective date of this act shall be
222	destroyed, unless prohibited by law, within 60 calendar days
223	after this act becomes law. Thereafter, failure to destroy any
224	such list, record, or registry may result in prosecution under
225	this act.
226	Section 3. If any provision of this act or its application
227	to any particular person or circumstance is held invalid, that
228	provision or its application is severable and does not affect
229	the validity of other provisions or applications of this act.
230	Section 4. This act shall take effect upon becoming a law.