CHAPTER 414

FORMERLY

HOUSE BILL NO. 588

AS AMENDED BY HOUSE AMENDMENTS NO. 1, 3, 4

AN ACT TO AMEND TITLE 11, DELAWARE CODE RELATING TO CRIMINAL HISTORY RECORD CHECKS FOR SALES OF FIREARMS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 11, Delaware Code by adding thereto a new Section 1448A as follows:

§1448A Criminal History Record Checks for Sales of Firearms.

(a) No licensed importer, licensed manufacturer, or licensed dealer shall sell or deliver from his inventory any firearm, as defined in 11 Del. C. 222 (9), to another person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, until he has:

(1) obtained a completed consent form from the potential buyer or transferee, which form shall have been promulgated by the State Bureau of Identification (SBI) and provided by the licensed importer, licensed manufacturer, or licensed dealer, which shall include the name, address, birth, date, gender, race, and social security number, driver's license number or other identification number of such potential buyer or transferee and has inspected identification containing a photograph of the potential buyer or transferee;

(2) requested, by means of a toll—free telephone call pursuant to subsection (e) herein, the SBI to conduct a criminal history record check; and

(3) received a unique approval number for that inquiry from the SBI, and has recorded the date and approval number on the consent form.

(b) Upon receipt of a request for a criminal history record check, the SBI during the licensee's call or by return call, shall;

(1) review its criminal history records to determine if the potential buyer or transferee is prohibited from receipt or possession of a firearm pursuant to 11 Del. C. §1448 or federal law; and

(2) inform the licensee making the inquiry either (1) that its records demonstrate that the potential buyer or transferee is so prohibited, or (ii) provide the licensee with a unique approval number.

(c) In the event of electronic failure or similar emergency beyond the control of the SBI, the SBI shall immediately notify the requesting licensee of the reason for, and estimated length of, such delay. After such notification, the SBI shall no later than the end of the third business day following a request for a criminal history record check of the licensee, either

(1) inform the licensee that its records demonstrate that the potential buyer or transferee is prohibited from receipt or possession of a firearm pursuant to 11 Del. C. §1448 or federal law, or

(2) provide the licensee with a unique approval number. Unless notified by the end of the third business day following a request for a records check that the potential buyer or transferee is so prohibited, and without regard to whether he has received a unique approval number, the licensee may complete the sale or delivery and shall not be deemed in violation of this section with respect to such sale or delivery.

(d)(1) Any records containing any of the information set forth in subsection (a)(1) pertaining to a potential buyer or transferee who is not found to be prohibited from receipt or possession of a firearm by reason of 11 Del. C. §1448 or federal law shall be confidential and may not be disclosed by any officer or employee of SBI to any person or to another agency. The SBI shall destroy any such records after it communicates the corresponding approval number to the licensee and such records shall be destroyed within 30 days after the day of receipt of the licensee's request.

(2) Notwithstanding contrary provisions of this subsection, the SBI shall maintain a log of dates of requests for criminal history record checks and unique approval numbers corresponding to such dates for a period of not longer than one year.

(3) Nothing in this section shall be construed to allow the State of Delaware to maintain records containing the names of licensees who receive unique approval numbers or to maintain records of firearm transactions, including the names or other identification of licensees and potential buyers or transferees, involving persons not prohibited by 11 Del. C. §1448 and federal law from the receipt or possession of firearms.

(e) The SBI shall establish a toll-free telephone number which shall be operational between the hours of 9:00 a.m. and 9:00 p.m., Monday through Saturday and 9:00 am. and 5:00 p.m. Sunday for purposes of responding to inquiries as described in this section from licensed manufacturers, licensed importers, and licensed dealers. The SBI shall employ and train such personnel as are necessary to administer the provisions of this section.

(f) Any person who is denied the right to receive or purchase a firearm as a result of the procedures established by this section may request an amendment of any errors in the record pertaining to him by petitioning the SBI. If the SBI fails to amend the record within thirty (30) days, the person requesting the amendment may petition the Superior Court in the county of his residence for a writ of mandamus directing the SBI to amend the record. The court shall award the petitioner all reasonable attorney fees and other costs, if it determines that S.B.I. willfully refused to amend the record. If the record as corrected demonstrates that such person is not prohibited from receipt or possession of a firearm by 11 Del. C. §1448 or federal law, the SBI shall destroy any records it maintains which contain any information derived from the criminal history records check set forth in subsection (a)(1).

(g) The SBI shall promulgate regulations to ensure the identity, confidentiality, and security of all records and data provided pursuant to this section.

(h) A licensed importer, licensed manufacturer, or licensed dealer is not required to comply with the provisions of this section in the event of:

(1) unavailability of telephone service at the licensed premises due to:

(a ) the failure of the entity which provides telephone service in the state, region, or other geographical area in which the licensee is located , or;

(b) the interruption of telephone service by reason of hurricane, tornado, flood, natural disaster, or other act of God, or war, invasion, insurrection, riot, or other bona fide emergency, or other reason beyond the control of the licensee; or

(2) failure of the SBI reasonably to comply with the requirements of subsection (b) and (c) of this section.

Within seventy-two (72) hours of the normalization of telephone service the licensed importer, licensed manufacturer or licensed dealer shall communicate to S.B.I. the identifying data as set forth in paragraph (1) of subsection (a) for each Sale or delivery of a firearm during the unavailability of telephone service.

(i) Compliance with the provisions of this section shall be a complete defense to any claim or cause of action under the laws of this state for liability for damages arising from the importation or manufacture, or the subsequent sale or transfer to any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year, of any firearm which has been shipped or transported in interstate or foreign commerce.

(j) The provisions of this section shall not apply to:

(1) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898;

(2) any replica of any firearm described in subparagraph (1) of this subsection if such replica;

(a) is not designed or redesigned to use rimfire or conventional centerfire fixed ammunition, or

(b) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade;

(3) any shotgun, which is defined as a firearm designed or intended to be fired from the shoulder and designed or made to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger;

(4) the return, by a licensed pawnbroker, of a firearm to the person from whom it was received.

(6) Transactions in which the potential buyer or transferee holds a valid concealed deadly weapons license pursuant to 11 Del. C. , §1441; and

(7) Transactions involving a law enforcement officer as defined by 11 Del. C., §222 (12);

(k) Any licensed dealer, licensed manufacturer, licensed importer or employee thereof who willfully and intentionally requests a criminal history record check from the SBI for any purpose other than compliance with subsection (a), or willfully and intentionally disseminates any criminal history record information to any person other than the subject of such information or discloses to any person the unique identification number shall be guilty of a Class A misdemeanor.

(1) Any person who, in connection with the purchase, transfer, or attempted purchase or transfer of a firearm pursuant to the subsection (a) willfully and intentionally makes any materially false oral or written statement or willfully and intentionally furnishes or exhibits any false identification intended or likely to deceive the licensee shall be guilty of a Class G felony.

(m) Any licensed importer, licensed manufacturer, licensed importer or employee thereof who willfully and intentionally sells or delivers a firearm in violation of this section shall be guilty of a Class A misdemeanor. Second or subsequent offenses by an individual shall be a Class G Felony.

(n) The SBI shall provide to the judiciary committees of the Senate and House of Representatives an annual report including the number of inquiries made pursuant to this section for the prior calendar year. Such report shall include, but not be limited to, the number of inquiries received from licensees, the number of inquiries resulting in a determination that the potential buyer or transferee was prohibited from receipt or possession of a firearm pursuant to 11 Del. C. §1448 or federal law, and the estimated costs of administering this section.

(o) This section shall become effective six months from the date of enactment or at such time as the SBI has notified all licensed importers, licensed manufacturers, and licensed dealers in writing that the procedures and toll—free number described in this section are operational, which ever shall occur first.

(p) Violations of this Section shall be in the exclusive jurisdiction of Superior Court.

(q) Notwithstanding 11 Del. C., Chapter 89, 29 Del. C., Chapter 10, and other Delaware laws the S.O.I. is authorized and directed to release records and data required by this Section. The S.B.I. shall not release or disclose criminal records or data except as specified in subsections (b) and (c).

Approved July 20, 1990.