HOUSE BILL 77
51st legislature - STATE OF NEW MEXICO - first session, 2013
Miguel P. Garcia
RELATING TO FIREARMS; CREATING THE FIREARM TRANSFER ACT; PROHIBITING CERTAIN PERSONS FROM PURCHASING OR RECEIVING FIREARMS; REQUIRING BACKGROUND CHECKS BY THE DEPARTMENT OF PUBLIC SAFETY PRIOR TO THE TRANSFER OF FIREARMS BY PERSONS OTHER THAN LICENSED GUN DEALERS; ESTABLISHING PROCEDURES FOR THE CONDUCT OF BACKGROUND CHECKS; ADDRESSING PRIVATE TRANSFERS AND TRANSFERS AT GUN SHOWS; CREATING IMMUNITY FROM CIVIL LIABILITY; PROVIDING EXCLUSIONS FROM THE REQUIREMENTS OF THE FIREARM TRANSFER ACT; PROVIDING FOR RULEMAKING; ALLOWING ASSESSMENT OF AN ADMINISTRATIVE FEE; CREATING CRIMES AND IMPOSING CRIMINAL PENALTIES FOR VIOLATIONS OF PROVISIONS OF THE FIREARM TRANSFER ACT; CREATING THE FIREARM TRANSFER FUND; MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. SHORT TITLE.--This act may be cited as the "Firearm Transfer Act".
SECTION 2. DEFINITIONS.--As used in the Firearm Transfer Act:
A. "background check" means determining the eligibility of a person to own or possess a firearm by checking relevant databases and information sources to discover whether the person:
(1) is at least eighteen years of age;
(2) is a fugitive from justice;
(3) has been convicted of or is under indictment for a felony in any jurisdiction;
(4) has been adjudicated mentally incompetent or has been committed to a mental institution;
(5) is an unlawful user of, or addicted to, alcohol or a controlled substance;
(6) was discharged from the armed forces under dishonorable circumstances;
(7) is subject to a restraining order regarding, or convicted of a misdemeanor for, domestic violence; or
(8) is prohibited by federal law or the law of another jurisdiction from purchasing or possessing a firearm;
B. "department" means the department of public safety;
C. "firearm" means a weapon that will, is designed to or may readily be converted to expel a projectile by the action of an explosion;
D. "gun show" means an event at which more than twenty-five firearms are on site and available for transfer;
E. "handgun" means a firearm that will, is designed to or may readily be converted to expel a projectile by the action of an explosion and the barrel length of which, not including a revolving, detachable or magazine breech, does not exceed twelve inches; and
F. "licensed gun dealer" means a person engaged in the business, as defined in 18 U.S.C. 921, of selling, leasing or otherwise transferring a firearm and who is licensed by the United States attorney general pursuant to 18 U.S.C. 923.
SECTION 3. PERSONS PROHIBITED FROM PURCHASING OR RECEIVING A FIREARM.--A person is prohibited from purchasing or receiving a firearm if that person:
A. is less than eighteen years of age;
B. is a fugitive from justice;
C. has been convicted of or is under indictment for a felony in any jurisdiction;
D. has been adjudicated mentally incompetent or has been committed to a mental institution;
E. is an unlawful user of, or addicted to, alcohol or a controlled substance;
F. was discharged from the armed forces under dishonorable circumstances;
G. is subject to a restraining order regarding, or was convicted of a misdemeanor for, domestic violence; or
H. is prohibited by federal law or the law of another jurisdiction from purchasing or possessing a firearm.
SECTION 4. TRANSFER BY A PERSON OTHER THAN A LICENSED GUN DEALER--BACKGROUND CHECKS.--
A. Except for transfers that take place at a gun show pursuant to Section 5 of the Firearm Transfer Act, prior to transferring a firearm, a transferor other than a licensed gun dealer shall request by telephone that the department conduct a background check on the recipient to determine if the recipient is qualified to purchase or receive a firearm and shall provide the following information to the department:
(1) the name, address and telephone number of the transferor;
(2) the make, model, caliber and manufacturer's number of the firearm being transferred;
(3) the name, date of birth, race, sex and address of the recipient;
(4) the social security number of the recipient if the recipient voluntarily provides that number;
(5) the address of the place where the transfer is occurring; and
(6) the type, issuer and identification number of a current piece of identification bearing a recent photograph of the recipient presented by the recipient. The identification presented by the recipient shall include one piece of current identification bearing a photograph and the date of birth of the recipient that:
(a) is issued under the authority of the United States government, a state, a political subdivision of a state, a foreign government, a political subdivision of a foreign government, an international governmental organization or an international quasi-governmental organization; and
(b) is intended to be used for identification of an individual or is commonly accepted for the purpose of identification of an individual.
B. If the identification presented by the recipient under Subsection A of this section does not include the current address of the recipient, the recipient shall present a second piece of current identification that contains the purchaser's current address.
C. The department shall establish a telephone number that shall be operational seven days a week between the hours of 8:00 a.m. and 10:00 p.m. for the purpose of responding to inquiries for a background check under this section.
D. Upon receipt of a request for a background check under the Firearm Transfer Act, the department shall immediately, during the telephone call or by return call:
(1) determine from the records available to it whether the recipient is prohibited by state or federal law from purchasing or receiving a firearm and is disqualified from completing the transfer; and
(2) notify the transferor when a recipient is disqualified from completing the transfer or provide the transferor with a unique approval number indicating that the recipient is qualified to complete the transfer. The unique approval number is a permit valid for twenty-four hours for the requested transfer. If the firearm is not transferred from the transferor to the recipient within twenty-four hours after receipt of the unique approval number, a new request must be made by the transferor.
E. If the department is unable to determine whether the recipient is qualified for or disqualified from completing the transfer within thirty minutes of receiving the request, the department shall notify the transferor and provide the transferor with an estimate of the time when the department will provide the requested information.
F. The recipient of the firearm must be present when the transferor requests a background check under the Firearm Transfer Act.
G. The department shall retain a record of the information obtained during a request for a background check pursuant to this section for five years.
SECTION 5. TRANSFERS AT A GUN SHOW--BACKGROUND CHECKS.--
A. A transferor other than a licensed gun dealer shall not transfer a firearm at a gun show unless the transferor:
(1) requests a background check of the recipient pursuant to Section 4 of the Firearm Transfer Act prior to completing the transfer;
(2) receives notification from the department, including a unique approval number, that the recipient is qualified to complete the transfer; and
(3) has the recipient complete the form described in Section 6 of the Firearm Transfer Act.
B. The recipient of the firearm must be present when the transferor requests a background check pursuant to the Firearm Transfer Act.
C. The transferor shall retain the completed form described in Section 6 of the Firearm Transfer Act for five years and shall make the completed form available to law enforcement agencies for the purpose of criminal investigations.
D. A person responsible for organizing a gun show shall prominently display at the gun show a notice explaining the requirements of Subsections A, B and C of this section and shall provide the form described in Section 6 of the Firearm Transfer Act to any person transferring a firearm at a gun show.
SECTION 6. GUN SHOW TRANSFER FORM.--The department shall create a form to be completed, under penalty of perjury, by a person seeking to obtain a firearm at a gun show from a transferor other than a licensed gun dealer. The form shall:
A. include the requests for disclosure of information and similar warnings and certifications, consistent with state law, as are required by federal law for over-the-counter firearm transactions;
B. include a conspicuous warning that it is executed under penalty of perjury and that a materially false answer or the submission of a materially false document to the department may subject the applicant to criminal prosecution for perjury as provided in Section 30-25-1 NMSA 1978; and
C. be made available by the department to the public, including gun show organizations, at no cost and at locations designated by the department.
SECTION 7. IMMUNITY.--
A. A transferor who, pursuant to Section 4 of the Firearm Transfer Act, receives notification, including a unique approval number, from the department that the recipient is qualified to complete the transfer of a firearm is immune from civil liability for any use of the firearm from the time of the transfer unless the transferor knows, or reasonably should know, that the recipient:
(1) is likely to commit an unlawful act involving the firearm; or
(2) intends to deliver the firearm to a third person who the transferor knows, or reasonably should know, may not purchase or receive the firearm.
B. If the transferor is required to request a background check pursuant to Section 5 of the Firearm Transfer Act, the immunity provided by Subsection A of this section applies only if, in addition to receiving the notification required by this section, the transferor has the recipient complete the form and the transferor retains that form, as identified in and required by Section 5 of the Firearm Transfer Act.
C. A public employee or public agency incurs no criminal or civil liability for performing the background checks required by this section; provided that the employee or agency acts in good faith and without malice.
SECTION 8. EXCLUSIONS.--The Firearm Transfer Act does not apply to the:
A. parent or guardian of a minor, or another person with the consent of the parent or guardian, transferring to the minor a firearm other than a handgun;
B. temporary transfer of any firearm to a minor for hunting, target practice or any other lawful purpose; or
C. transfer of a firearm to a licensed gun dealer; provided that the transferor maintains a copy of the recipient's applicable license for five years from the date of transfer.
SECTION 9. RULES--DEPARTMENT TO ADMINISTER.--The department shall promulgate rules necessary to implement and administer the provisions of the Firearm Transfer Act. The rules shall include:
A. provision for the assessment of a reasonable fee to conduct background checks; provided that the fee for a private transfer shall not exceed twenty-five dollars ($25.00) and the fee for a gun show transfer shall not exceed thirty-five dollars ($35.00);
B. creation of a unique approval numbering system for use in responses to background check requests that a recipient is qualified to complete the transfer of a firearm;
C. provision for the type of identification that may be used to establish a recipient's current address; and
D. a description of the type of notice to be displayed at a gun show that reflects the background check and approval requirements of the Firearm Transfer Act.
SECTION 10. UNLAWFULLY PURCHASING OR RECEIVING A FIREARM.--
A. A person commits the crime of unlawfully purchasing or receiving a firearm if the person, knowing that the person is prohibited by state law from purchasing or receiving the firearm, purchases or receives, or attempts to purchase or receive, the firearm.
B. A person who commits the crime of unlawfully purchasing or receiving a firearm is guilty of a misdemeanor.
SECTION 11. UNLAWFULLY TRANSFERRING A FIREARM.--
A. A person commits the crime of unlawfully transferring a firearm if the person knowingly transfers or attempts to transfer, either in a private transaction or at a gun show, a firearm to another person without receiving notice from the department, including a unique approval number for that transaction, that the recipient is qualified to complete the transfer or, in the case of a transfer at a gun show, if the person fails to have the recipient complete the form required by Section 6 of the Firearm Transfer Act.
B. A person who commits the crime of unlawfully transferring a firearm is guilty of a misdemeanor.
SECTION 12. FAILURE TO RETAIN FORMS OR POST NOTICE.--A person who fails to retain a gun show transfer form or who fails to display the notice at a gun show as required by Section 6 of the Firearm Transfer Act is guilty of a petty misdemeanor.
SECTION 13. FUND CREATED.--
A. The "firearm transfer fund" is created in the state treasury.
B. All money received by the department pursuant to the provisions of the Firearm Transfer Act shall be deposited by the state treasurer for credit to the firearm transfer fund. The state treasurer shall invest the fund as all other state funds are invested, and income from investment of the fund shall be credited to the fund. Balances remaining at the end of any fiscal year shall not revert to the general fund and may be used to maintain the state's criminal history database.
C. Money in the firearm transfer fund is appropriated to the department to carry out the provisions of the Firearm Transfer Act.
SECTION 14. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2014.
- 12 -