| 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 knowing and willful creation or |
| 5 | maintenance of any list, record, or registry of privately |
| 6 | owned firearms or any list, record, or registry of the |
| 7 | owners of those firearms; providing exceptions; providing |
| 8 | criminal penalties for a violation of the act; providing |
| 9 | for the imposition of civil fines on certain governmental |
| 10 | entities; authorizing the Attorney General to enforce the |
| 11 | civil penalties against governmental agencies; requiring |
| 12 | the state attorney to prosecute criminal violators of this |
| 13 | act; prohibiting the expenditure of public funds for |
| 14 | defense counsel for persons charged with a violation of |
| 15 | this act; providing exceptions; providing for liberal |
| 16 | construction of the act; providing for application to |
| 17 | records already in existence; providing an effective date. |
| 18 |
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| 19 | Be It Enacted by the Legislature of the State of Florida: |
| 20 |
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| 21 | Section 1. Section 790.335, Florida Statutes, is created |
| 22 | to read: |
| 23 | 790.335 Prohibition of registration of firearms.-- |
| 24 | (1) LEGISLATIVE FINDINGS AND INTENT.-- |
| 25 | (a) The Legislature finds and declares that: |
| 26 | 1. The right of individuals to keep and bear arms is |
| 27 | guaranteed under both the Second Amendment to the United States |
| 28 | Constitution and s. 8, Art. I of the State Constitution. |
| 29 | 2. A list, record, or registry of legally owned firearms |
| 30 | or law-abiding firearm owners is not a law enforcement tool and |
| 31 | can become an instrument for profiling, harassing, or abusing |
| 32 | law-abiding citizens based on their choice to own a firearm and |
| 33 | exercise their Second Amendment right to keep and bear arms as |
| 34 | guaranteed under the United States Constitution. Further, such a |
| 35 | list, record, or registry has the potential to fall into the |
| 36 | wrong hands and become a shopping list for thieves. |
| 37 | 3. A list, record, or registry of legally owned firearms |
| 38 | or law-abiding firearm owners is not a tool for fighting |
| 39 | terrorism, but rather is an instrument that can be used as a |
| 40 | means to profile innocent citizens and to harass and abuse |
| 41 | American citizens based solely on their choice to own firearms |
| 42 | and exercise their Second Amendment right to keep and bear arms |
| 43 | as guaranteed under the United States Constitution. |
| 44 | 4. Law-abiding firearm owners whose names have been |
| 45 | illegally recorded in a list, record, or registry are entitled |
| 46 | to redress. |
| 47 | (b) The Legislature intends through the provisions of this |
| 48 | section to: |
| 49 | 1. Protect the right of individuals to keep and bear arms |
| 50 | as guaranteed under both the Second Amendment to the United |
| 51 | States Constitution and s. 8, Art. I of the State Constitution. |
| 52 | 2. Protect the privacy rights of law-abiding firearm |
| 53 | owners. |
| 54 | (2) PROHIBITIONS.--No state governmental agency or local |
| 55 | government, special district, or other political subdivision or |
| 56 | official, agent, or employee of such state or other governmental |
| 57 | entity or any other person, public or private, shall knowingly |
| 58 | and willfully keep or cause to be kept any list, record, or |
| 59 | registry of privately owned firearms or any list, record, or |
| 60 | registry of the owners of those firearms. |
| 61 | (3) EXCEPTIONS.--The provisions of this section shall not |
| 62 | apply to: |
| 63 | (a) Records of firearms that have been used in committing |
| 64 | any crime. |
| 65 | (b) Records relating to any person who has been convicted |
| 66 | of a crime. |
| 67 | (c) Records of firearms that have been reported stolen |
| 68 | that are retained for a period not in excess of 10 days after |
| 69 | such firearms are recovered. Official documentation recording |
| 70 | the theft of a recovered weapon may be maintained no longer than |
| 71 | the balance of the year entered, plus 2 years. |
| 72 | (d) Firearm records that must be retained by firearm |
| 73 | dealers under federal law, including copies of such records |
| 74 | transmitted to law enforcement agencies. However, no state |
| 75 | governmental agency or local government, special district, or |
| 76 | other political subdivision or official, agent, or employee of |
| 77 | such state or other governmental entity or any other person, |
| 78 | private or public, shall accumulate, compile, computerize, or |
| 79 | otherwise collect or convert such written records into any form |
| 80 | of list, registry, or database for any purpose. |
| 81 | (e)1. Records kept pursuant to the recordkeeping |
| 82 | provisions of s. 790.065; however, nothing in this section shall |
| 83 | be construed to authorize the public release or inspection of |
| 84 | records that are made confidential and exempt from the |
| 85 | provisions of s. 119.07(1) by s. 790.065(4)(a). |
| 86 | 2. Nothing in this paragraph shall be construed to allow |
| 87 | the maintaining of records containing the names of purchasers or |
| 88 | transferees who receive unique approval numbers or the |
| 89 | maintaining of records of firearm transactions. |
| 90 | (f) Firearm records, including paper pawn transaction |
| 91 | forms and contracts on firearm transactions, required by |
| 92 | chapters 538 and 539. |
| 93 | 1. Electronic firearm records held pursuant to chapter 538 |
| 94 | may only be kept by a secondhand dealer for 30 days after the |
| 95 | date of the purchase of the firearm by the secondhand dealer. |
| 96 | 2. Electronic firearm records held pursuant to chapter 539 |
| 97 | may only be kept by a pawnbroker for 30 days after the |
| 98 | expiration of the loan that is secured by a firearm or 30 days |
| 99 | after the date of purchase of a firearm, whichever is |
| 100 | applicable. |
| 101 | 3. Except as required by federal law, any firearm records |
| 102 | kept pursuant to chapter 538 or chapter 539 shall not, at any |
| 103 | time, be electronically transferred to any public or private |
| 104 | entity, agency, business, or enterprise, nor shall any such |
| 105 | records be copied or transferred for purposes of accumulation of |
| 106 | such records into lists, registries, or databases. |
| 107 | 4. Notwithstanding subparagraph 3., secondhand dealers and |
| 108 | pawnbrokers may electronically submit firearm transaction |
| 109 | records to the appropriate law enforcement agencies as required |
| 110 | by chapters 538 and 539; however, the law enforcement agencies |
| 111 | may not electronically submit such records to any other person |
| 112 | or entity and must destroy such records within 60 days after |
| 113 | receipt of such records. |
| 114 | 5. Notwithstanding subparagraph 3., secondhand dealers and |
| 115 | pawnbrokers may electronically submit limited firearms records |
| 116 | consisting solely of the manufacturer, model, serial number, and |
| 117 | caliber of pawned or purchased firearms to a third-party private |
| 118 | provider that is exclusively incorporated, exclusively owned, |
| 119 | and exclusively operated in the United States and that restricts |
| 120 | access to such information to only appropriate law enforcement |
| 121 | agencies for legitimate law enforcement purposes. Such records |
| 122 | must be destroyed within 30 days by the third-party provider. As |
| 123 | a condition of receipt of such records, the third-party provider |
| 124 | must agree in writing to comply with the requirements of this |
| 125 | section. Any pawnbroker or secondhand dealer who contracts with |
| 126 | a third-party provider other than as provided in this act or |
| 127 | electronically transmits any records of firearms transactions to |
| 128 | any third-party provider other than the records specifically |
| 129 | allowed by this paragraph commits a felony of the second degree, |
| 130 | punishable as provided in s. 775.082 or s. 775.083. |
| 131 | (g) Records kept by the Department of Law Enforcement of |
| 132 | NCIC transactions to the extent required by federal law and a |
| 133 | log of dates of requests for criminal history record checks, |
| 134 | unique approval and nonapproval numbers, license identification |
| 135 | numbers, and transaction numbers corresponding to such dates. |
| 136 | (h) Records of an insurer that, as a condition to |
| 137 | providing insurance against theft or loss of a firearm, identify |
| 138 | such firearm. Such records may not be sold, commingled with |
| 139 | records relating to other firearms, or transferred to any other |
| 140 | person or entity. The insurer may not keep a record of such |
| 141 | firearm more than 60 days after the policy of insurance expires |
| 142 | or after notification by the insured that the insured is no |
| 143 | longer the owner of such firearm. |
| 144 | (i) Lists of customers of a firearm dealer retained by |
| 145 | such dealer, provided that such lists do not disclose the |
| 146 | particular firearms purchased. Such lists, or any parts thereof, |
| 147 | may not be sold, commingled with records relating to other |
| 148 | firearms, or transferred to any other person or entity. |
| 149 | (j) Sales receipts retained by the seller of firearms or |
| 150 | by a person providing credit for such purchase, provided that |
| 151 | such receipts shall not serve as or be used for the creation of |
| 152 | a database for registration of firearms. |
| 153 | (k) Personal records of firearms maintained by the owner |
| 154 | of such firearms. |
| 155 | (l) Records maintained by a business that stores or acts |
| 156 | as the selling agent of firearms on behalf of the lawful owner |
| 157 | of the firearms. |
| 158 | (m) Membership lists of organizations comprised of firearm |
| 159 | owners. |
| 160 | (n) Records maintained by an employer or contracting |
| 161 | entity of the firearms owned by its officers, employees, or |
| 162 | agents, if such firearms are used in the course of business |
| 163 | performed on behalf of the employer. |
| 164 | (o) Records maintained pursuant to s. 790.06 by the |
| 165 | Department of Agriculture and Consumer Services of a person who |
| 166 | was a licensee within the prior 2 years. |
| 167 | (p) Records of firearms involved in criminal |
| 168 | investigations, criminal prosecutions, criminal appeals, and |
| 169 | postconviction motions, civil proceedings relating to the |
| 170 | surrender or seizure of firearms including protective |
| 171 | injunctions, Baker Act commitments, and sheriff's levies |
| 172 | pursuant to court judgments, and voluntary surrender by the |
| 173 | owner or custodian of the firearm. |
| 174 | (q) Paper documents relating to firearms involved in |
| 175 | criminal cases, criminal investigations, and criminal |
| 176 | prosecutions, civil proceedings relating to the surrender or |
| 177 | seizure of firearms including protective injunctions, Baker Act |
| 178 | commitments, and sheriff's levies pursuant to court judgments, |
| 179 | and voluntary surrender by the owner or custodian of the |
| 180 | firearm. |
| 181 | (r) Non-criminal records relating to the receipt, storage |
| 182 | or return of firearms, including, but not limited to, records |
| 183 | relating to firearms impounded for storage or safekeeping, |
| 184 | receipts proving that a firearm was returned to the rightful |
| 185 | owner and supporting records of identification and proof of |
| 186 | ownership, or records relating to firearms impounded pursuant to |
| 187 | levies or court orders, provided, however, that such records |
| 188 | shall not be compiled, sorted, or otherwise arranged into any |
| 189 | lists, indexes, or registries of firearms or firearms owners. |
| 190 | (4) PENALTIES.-- |
| 191 | (a) Any person who violates a provision of this section |
| 192 | commits a felony of the third degree, punishable as provided in |
| 193 | s. 775.082 or s. 775.083. |
| 194 | (b) Except as required by the provisions of s. 16, Art. I |
| 195 | of the State Constitution or the Sixth Amendment to the United |
| 196 | States Constitution, no public funds shall be used to defend the |
| 197 | unlawful conduct of any person charged with a violation of this |
| 198 | section, unless the charges against such person are dismissed or |
| 199 | such person is determined to be not guilty at trial. |
| 200 | Notwithstanding this paragraph, public funds may be expended to |
| 201 | provide the services of the office of public defender or court- |
| 202 | appointed conflict counsel as provided by law. |
| 203 | (c) The governmental entity, or the designee of such |
| 204 | governmental entity, in whose service or employ a list, record, |
| 205 | or registry was compiled in violation of this section may be |
| 206 | assessed a fine of not more than $5 million, if the court |
| 207 | determines that the evidence shows that the list, record, or |
| 208 | registry was compiled or maintained with the knowledge or |
| 209 | complicity of the management of the governmental entity. The |
| 210 | Attorney General may bring a civil cause of action to enforce |
| 211 | the fines assessed under this paragraph. |
| 212 | (d) The state attorney in the appropriate jurisdiction |
| 213 | shall investigate complaints of criminal violations of this |
| 214 | section and, where evidence indicates a violation may have |
| 215 | occurred, shall prosecute violators. |
| 216 | (5) CONSTRUCTION.--This section shall be construed to |
| 217 | effectuate its remedial and deterrent purposes. This section may |
| 218 | not be construed to grant any substantive, procedural privacy |
| 219 | right or civil claim to any criminal defendant, and a violation |
| 220 | of this section may not be grounds for the suppression of |
| 221 | evidence in any criminal case. |
| 222 | Section 2. Any list, record, or registry maintained or |
| 223 | under construction on the effective date of this act shall be |
| 224 | destroyed, unless prohibited by law, within 60 calendar days |
| 225 | after this act becomes law. Thereafter, failure to destroy any |
| 226 | such list, record, or registry may result in prosecution under |
| 227 | this act. |
| 228 | Section 3. This act shall take effect upon becoming a law. |