II
112th CONGRESS
1st Session
S. 436
IN THE SENATE OF THE UNITED STATES
March 2, 2011
Mr. Schumer (for himself and Mrs. Gillibrand) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL
To ensure that all individuals who should be prohibited from buying a firearm are listed in the national instant criminal background check system and require a background check for every firearm sale.
Short title; table of contents
Short title
This Act may be cited
as the Fix Gun Checks Act of
2011
.
Table of contents
The table of contents for this Act is as follows:
Sec. 1. Short title and table of contents.
TITLE I—Ensuring that all individuals who should be prohibited from buying a gun are listed in the National Instant Criminal Background Check System
Sec. 101. Penalties for States that do not make data electronically available to the National Instant Criminal Background Check System.
Sec. 102. Requirement that Federal agencies certify that they have submitted to the National Instant Criminal Background Check System all records identifying persons prohibited from purchasing firearms under Federal law.
Sec. 103. Adjudicated as a mental defective; mental health assessment plan.
Sec. 104. Clarification of the definition of drug abusers and drug addicts who are prohibited from possessing firearms.
TITLE II—Requiring a background check for every firearm sale
Sec. 201. Purpose.
Sec. 202. Firearms transfers.
Sec. 203. Effective date.
Ensuring that all individuals who should be prohibited from buying a gun are listed in the National Instant Criminal Background Check System
Penalties for States that do not make data electronically available to the National Instant Criminal Background Check System
Section 104(b) of the NICS Improvement Amendments Act of 2007 (18 U.S.C. 922 note) is amended to read as follows:
Penalties
Discretionary reduction
For each of fiscal years 2011 and 2012, the Attorney General may withhold not more than 3 percent of the amount that would otherwise be allocated to a State under section 505 of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3755) if the State provides less than 50 percent of the records required to be provided under sections 102 and 103.
Mandatory reduction
Fiscal years 2013 to 2017
For each of fiscal years 2013 through 2017, the Attorney General shall withhold 15 percent of the amount that would otherwise be allocated to a State under section 505 of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3755) if the State provides less than 75 percent of the records required to be provided under sections 102 and 103.
Subsequent years
During fiscal year 2018, and each fiscal year thereafter, the Attorney General shall withhold 25 percent of the amount that would otherwise be allocated to a State under section 505 of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3755), if the State provides less than 90 percent of the records required to be provided under sections 102 and 103.
Waiver by Attorney General
If a State provides substantial evidence, as determined by the Attorney General, that the State is making a reasonable effort to comply with the requirements of sections 102 and 103, including an inability to comply due to court order or other legal restriction, the Attorney General may reduce the percentage of the amount that would otherwise be allocated to a State under section 505 of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3755) withheld—
under paragraph (2)(A) to be not less than 5 percent; and
under paragraph (2)(B) to be not less than 15 percent.
Transfer of withheld funds
Any funds withheld by the Attorney General under
this subsection shall be transferred to the appropriations account appropriated
under the heading State and local law enforcement assistance
under the heading Office
of Justice Programs
under the heading
Department of
Justice
.
Sense of Congress
It is the sense of Congress that any funds transferred under paragraph (4) should be used to carry out the activities described in the NICS Improvement Amendments Act of 2007 (18 U.S.C. 922 note).
.
Requirement that Federal agencies certify that they have submitted to the National Instant Criminal Background Check System all records identifying persons prohibited from purchasing firearms under Federal law
Section 103(e)(1) of the Brady Handgun Violence Prevention Act (18 U.S.C. 922 note) is amended by adding at the end the following:
Semiannual certification and reporting
In general
The head of each Federal department or agency shall submit to the Attorney General a written certification indicating whether the department or agency has provided to the Attorney General the pertinent information contained in any record of any person that the department or agency was in possession of during the time period addressed by the report demonstrating that the person falls within a category described in subsection (g) or (n) of section 922 of title 18, United States Code.
Submission dates
The head of a Federal department or agency shall submit a certification under clause (i)—
not later than July 31 of each year, which shall address any record the department or agency was in possession of during the period beginning on January 1 of the year and ending on June 30 of the year; and
not later than January 31 of each year, which shall address any record the department or agency was in possession of during the period beginning on July 1 of the previous year and ending on December 31 of the previous year.
Contents
A certification required under clause (i) shall state, for the applicable period—
the number of records of the Federal department or agency demonstrating that a person fell within each of the categories described in section 922(g) of title 18, United States Code;
the number of records of the Federal department or agency demonstrating that a person fell within the category described in section 922(n) of title 18, United States Code; and
for each category of records described in subclauses (I) and (II), the total number of records of the Federal department or agency that have been provided to the Attorney General.
.
Adjudicated as a mental defective; mental health assessment plan
Definition
Section 921(a) of title 18, United States Code, is amended by adding at the end the following:
The term adjudicated as a mental defective includes an order by a court, board, commission, or other lawful authority that a person, in response to marked subnormal intelligence, mental illness or incompetency, be compelled to receive services—
including counseling, medication, or testing to determine compliance with prescribed medications; and
not including testing for use of alcohol or for abuse of any controlled substance or other drug.
.
Mental Health Assessment Plan for Institutions of Higher Education
Part B of title I of the Higher Education Act of 1965 (20 U.S.C. 1011 et seq.) is amended by adding at the end the following:
Mental Health Assessment Plan for Institutions of Higher Education
Restriction on Eligibility
Each college, university, or postsecondary institution that receives Federal funds under this Act or any form of financial assistance under any Federal program, including participation in any federally funded or guaranteed student loan program, shall develop and implement, not later than 1 year from the date of enactment of this section, a mental health assessment plan that, at a minimum, includes—
a framework through which such college, university, or postsecondary institution will address the risks posed by students, including full-time students and part-time students, who, as a result of apparent mental illness or incompetency, pose a safety risk to themselves or others;
the establishment of a team that will assess the mental health needs of, and safety risks posed by, any such student, consisting of—
educators;
administrators;
counselors; or
other qualified members of the educational community;
a procedure for reporting such students to the team described in paragraph (2);
a procedure for making voluntary referrals for such students to on- and off-campus mental health resources;
a procedure for making involuntary referrals for such students to State or local mental health authorities for mandatory evaluation, which shall include reporting such referrals to a State agency responsible for identifying persons described in section 922(g)(4) of title 18, United States Code; and
a procedure for informing and educating the families of students who have been identified as posing safety risks to themselves or others.
Information Availability
Each college, university, or postsecondary institution that provides the plan described in subsection (a) shall make available to the students, faculty, and staff at such college, university, or postsecondary institution, a copy of the mental health assessment plan required under subsection (a).
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Clarification of the definition of drug abusers and drug addicts who are prohibited from possessing firearms
Inferences of abuse
Section 921 of title 18, United States Code, is amended by adding at the end the following:
Unlawful user of any controlled substance
In general
An inference that a person is an unlawful user of a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) may be drawn based on—
a conviction for the use or possession of a controlled substance within the past 5 years;
an arrest for the use or possession of a controlled substance within the past 5 years;
an arrest for the possession of drug paraphernalia within the past 5 years, if testing has demonstrated the paraphernalia contained traces of a controlled substance;
a drug test administered within the past 5 years demonstrating that the person had used a controlled substance unlawfully; or
an admission to using or possessing a controlled substance unlawfully within the past 5 years.
Members of Armed Forces
For a current or former member of the Armed Forces, an inference that a person is an unlawful user of a controlled substance may be drawn based on disciplinary or other administrative action within the past 5 years based on confirmed use of a controlled substance, including a court-martial conviction, nonjudicial punishment, or an administrative discharge based on use of a controlled substance or drug rehabilitation failure.
.
Application to Federal courts
Section 103(e)(1) of the Brady Handgun Violence Prevention Act (18 U.S.C. 922 note), as amended by this section 102, is amended—
in subparagraph
(C), by inserting (including any record of a Federal court of any person
ordered into a diversion program as described in section 921(a)(37))
after any person
; and
by adding at the end the following:
Application to Federal courts
In this paragraph—
the terms department or agency of the United States and Federal department or agency include a Federal court; and
for purposes of any request, submission, or notification, the Director of the Administrative Office of the United States Courts shall perform the functions of the head of the department or agency.
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Definition
Section 921(a) of title 18, United States Code, as amended by section 103(a), is amended by adding at the end the following:
The term addicted to any controlled substance includes a person ordered by a court into a diversion program designed for abusers of or addicts to controlled substances as part of a criminal or juvenile delinquency proceeding, regardless of whether the person was convicted, whether the court made a finding of guilt, or whether the program accepts participants who are abusers of or addicted to substances other than controlled substances.
.
Conforming amendment to NICS Improvement Amendments Act
Section
102(b)(1)(C)(iii) of the NICS Improvement Amendments Act of 2007 (18 U.S.C. 922
note) is amended by striking (as such
and all that follows
through adjudications,
.
Requiring a background check for every firearm sale
Purpose
The purpose of this title is to extend the Brady Law background check procedures to all sales and transfers of firearms.
Firearms transfers
In general
Chapter 44 of title 18, United States Code, is amended by adding at the end the following:
Background checks for firearm transfers by unlicensed persons
Definitions
In this section—
the term unlicensed transferee means a person who—
is not licensed under this chapter; and
desires to received a firearm from an unlicensed transferor; and
the term unlicensed transferor means a person who—
is not licensed under this chapter; and
desires to transfer a firearm to an unlicensed transferee.
Responsibilities of transferors other than licensees
In general
It shall be unlawful for an unlicensed transferor to transfer a firearm to an unlicensed transferee, unless the firearm is transferred—
through a licensed dealer under subsection (d);
through a law enforcement agency under subsection (e);
after inspecting a permit that confirms a background check under subsection (f); or
in accordance with an exception described in subsection (g); and
in accordance with paragraph (2).
Criminal background checks
Except as provided in subsection (g), an unlicensed transferor—
subject to subparagraph (B), may not transfer a firearm to an unlicensed transferee until—
the licensed dealer through which the transfer is made under subsection (d) makes a notification described in subsection (d)(3)(A);
the law enforcement agency through which the transfer is made under subsection (e) makes a notification described in subsection (e)(4)(A); or
the unlicensed transferee has presented a permit that confirms that a background check has been conducted, as described in subsection (f); and
may not transfer a firearm to an unlicensed transferee if—
the licensed dealer through which the transfer is made under subsection (d) makes the notification described in subsection (d)(3)(B); or
the law enforcement agency through which the transfer is made under subsection (e) makes the notification described in subsection (e)(3)(B).
Absence of recordkeeping requirements
Nothing in this section shall permit or authorize the Attorney General to impose recordkeeping requirements on any unlicensed transferor.
Responsibilities of transferees other than licensees
In general
It shall be unlawful for an unlicensed transferee to receive a firearm from an unlicensed transferor, unless the firearm is transferred—
through a licensed dealer under subsection (d);
through a law enforcement agency under subsection (e);
after inspecting a permit that confirms a background check in accordance with subsection (f); or
in accordance with an exception described in subsection (g); and
in accordance with paragraph (2).
Criminal background checks
Except as provided in subsection (g), an unlicensed transferee—
subject to subparagraph (B), may not receive a firearm from an unlicensed transferor until—
the licensed dealer through which the transfer is made under subsection (d) makes a notification described in subsection (d)(3)(A);
the law enforcement agency through which the transfer is made under subsection (e) makes a notification described in subsection (e)(4)(A); or
the unlicensed transferee has presented a permit that confirms that a background check described in subsection (f) has been conducted; and
may not receive a firearm from another unlicensed transferor if—
the licensed dealer through which the transfer is made under subsection (d) makes a notification described in subsection (d)(3)(B); or
the law enforcement agency through which the transfer is made under subsection (e) makes a notification described in subsection (e)(4)(B).
Background checks through licensed dealers
A licensed dealer who agrees to assist in the transfer of a firearm between unlicensed transferor and an unlicensed transferee shall—
enter such information about the firearm as the Attorney General may require by regulation into a separate bound record;
record the transfer on a form specified by the Attorney General;
comply with section 922(t) as if transferring the firearm from the inventory of the licensed dealer to the unlicensed transferee (except that a licensed dealer assisting in the transfer of a firearm under this subsection shall not be required to comply again with the requirements of section 922(t) in delivering the firearm to the unlicensed transferee) and notify the unlicensed transferor and unlicensed transferee—
of such compliance; and
if the transfer is subject to the requirements of section 922(t)(1), of any receipt by the licensed dealer of a notification from the national instant criminal background check system that the transfer would violate section 922 or State law;
not later than 31 days after the date on which the transfer occurs, submit to the Attorney General a report of the transfer, which—
shall be on a form specified by the Attorney General by regulation; and
shall not include the name of or other identifying information relating to the unlicensed transferor or unlicensed transferee;
if the licensed dealer assists an unlicensed transferor in transferring, at the same time or during any 5 consecutive business days, 2 or more pistols or revolvers, or any combination of pistols and revolvers totaling 2 or more, to the same unlicensed transferee, in addition to the reports required under paragraph (4), prepare a report of the multiple transfers, which shall—
be prepared on a form specified by the Attorney General; and
not later than the close of business on the date on which the transfer requiring the report under this paragraph occurs, be submitted to—
the office specified on the form described in subparagraph (A); and
the appropriate State law enforcement agency of the jurisdiction in which the transfer occurs; and
retain a record of the transfer as part of the permanent business records of the licensed dealer.
Background checks through law enforcement agencies
A State or local law enforcement agency that agrees to assist an unlicensed transferor in carrying out the responsibilities of the unlicensed transferor under subsection (b) with respect to the transfer of a firearm shall—
contact the national instant criminal background check system under section 922(t); and
receive an identification number as described in section 922(t)(1)(B)(i); or
wait the period described in 922(t)(1)(B)(ii);
conduct such other checks as the agency considers appropriate to determine whether the receipt or possession of the firearm by the unlicensed transferee would violate section 922 or State law;
verify the identity of the unlicensed transferee by—
examining a valid identification document (as defined in section 1028(d)) of the unlicensed transferee containing a photograph of the unlicensed transferee; or
confirming that the unlicensed transferor has examined a valid identification document described in subparagraph (A);
notify the unlicensed transferor and transferee—
of the compliance by the law enforcement agency with the requirements under paragraphs (1), (2), and (3); and
of any receipt by the law enforcement agency of a notification from the national instant criminal background check system or other information that the transfer would violate section 922 or would violate State law;
not later than 31 days after the date on which the transfer occurs, submit to the Attorney General a report of the transfer, which—
shall be on a form specified by the Attorney General by regulation; and
shall not include the name of or other identifying information relating to the unlicensed transferor or unlicensed transferee;
if the law enforcement agency assists an unlicensed transferor in transferring, at the same time or during any 5 consecutive business days, 2 or more pistols or revolvers, or any combination of pistols and revolvers totaling 2 or more, to the same unlicensed transferee, in addition to the reports required under paragraph (5), prepare a report of the multiple transfers, which shall be—
prepared on a form specified by the Attorney General; and
not later 24 hours after the transfer requiring the report under this paragraph occurs, submitted to—
the office specified on the form described in subparagraph (A); and
the appropriate State law enforcement agency of the jurisdiction in which the transfer occurs; and
maintain records of the transfer at such place, and in such form, as the Attorney General may prescribe.
Purchase permits confirming background checks
An unlicensed transferor may transfer a firearm to an unlicensed transferee if the unlicensed transferor verifies that—
the unlicensed transferee has presented a valid permit or license that allows the unlicensed transferee to possess, acquire, or carry a firearm;
the permit or license was issued not more than 5 years before the date on which the permit or license is presented under paragraph (1) by a law enforcement agency in the State in which the transfer is to take place;
the law of the State provides that the permit or license is to be issued only after a law enforcement official has verified that neither the national instant criminal background check system nor other information indicates that possession of a firearm by the unlicensed transferee would be in violation of Federal, State, or local law; and
if the permit or license does not include a photograph of the unlicensed transferee, the unlicensed transferor has examined a valid identification document (as defined in section 1028(d)) of the unlicensed transferee containing a photograph of the unlicensed transferee.
Exceptions
Unless prohibited by any other provision of law, subsections (b) and (c) shall not apply to any transfer of a firearm between an unlicensed transferor and unlicensed transferee, if—
the transfer is a bona fide gift between immediate family members, including spouses, parents, children, siblings, grandparents, and grandchildren;
the transfer occurs by operation of law, or because of the death of another person for whom the unlicensed transferor is an executor or administrator of an estate or a trustee of a trust created in a will;
the transfer is temporary and occurs while in the home of the unlicensed transferee, if—
the unlicensed transferee is not otherwise prohibited from possessing firearms; and
the unlicensed transferee believes that possession of the firearm is necessary to prevent imminent death or great bodily harm to the unlicensed transferee;
the transfer is approved by the Attorney General under section 5812 of the Internal Revenue Code of 1986; or
upon application of the unlicensed transferor, the Attorney General determined that compliance with subsection (b) is impracticable because—
the ratio of the number of law enforcement officers of the State in which the transfer is to occur to the number of square miles of land area of the State does not exceed 0.0025;
the location at which the transfer is to occur is extremely remote in relation to the chief law enforcement officer (as defined in section 922(s)(8)); and
there is an absence of telecommunications facilities in the geographical area in which the unlicensed transferor is located; or
the transfer is a temporary transfer of possession without transfer of title that takes place—
at a shooting range located in or on premises owned or occupied by a duly incorporated organization organized for conservation purposes or to foster proficiency in firearms;
at a target firearm shooting competition under the auspices of or approved by a State agency or nonprofit organization; or
while hunting, fishing, or trapping, if—
the activity is legal in all places where the unlicensed transferee possesses the firearm; and
the unlicensed transferee holds any required license or permit.
Processing fees
A licensed dealer or law enforcement agency that processes the transfer of a firearm under this section may assess and collect a fee, in an amount not to exceed $15, with respect to each firearm transfer processed.
Records
Nothing in subsection (e)(7) shall be construed to authorize the Attorney General to inspect records described in such subsection or to require that the records be transferred to a facility owned, managed, or controlled by the United States.
.
Penalties
Section
924(a)(5) of title 18, United States Code, is amended by inserting or
section 932
after section 922
.
Conforming amendment
The table of sections for chapter 44 of title 18, United States Code, is amended by adding at the end the following:
932. Background checks for firearm transfers by unlicensed persons.
.
Effective date
The amendments made by this Act shall take effect 180 days after the date of enactment of this Act.
