18.2-308.2:2 - Criminal history record information check required for the transfer of certain firearms - Virginia Statutes

§ 18.2-308.2:2. Criminal history record information check required for thetransfer of certain firearms.

A. Any person purchasing from a dealer a firearm as herein defined shallconsent in writing, on a form to be provided by the Department of StatePolice, to have the dealer obtain criminal history record information. Suchform shall include only the written consent; the name, birth date, gender,race, citizenship, and social security number and/or any other identificationnumber; the number of firearms by category intended to be sold, rented,traded, or transferred; and answers by the applicant to the followingquestions: (i) has the applicant been convicted of a felony offense or foundguilty or adjudicated delinquent as a juvenile 14 years of age or older atthe time of the offense of a delinquent act that would be a felony ifcommitted by an adult; (ii) is the applicant subject to a court orderrestraining the applicant from harassing, stalking, or threatening theapplicant's child or intimate partner, or a child of such partner, or is theapplicant subject to a protective order; and (iii) has the applicant everbeen acquitted by reason of insanity and prohibited from purchasing,possessing or transporting a firearm pursuant to § 18.2-308.1:1 or anysubstantially similar law of any other jurisdiction, been adjudicated legallyincompetent, mentally incapacitated or adjudicated an incapacitated personand prohibited from purchasing a firearm pursuant to § 18.2-308.1:2 or anysubstantially similar law of any other jurisdiction, or been involuntarilyadmitted to an inpatient facility or involuntarily ordered to outpatientmental health treatment and prohibited from purchasing a firearm pursuant to§ 18.2-308.1:3 or any substantially similar law of any other jurisdiction.

B. 1. No dealer shall sell, rent, trade or transfer from his inventory anysuch firearm to any other person who is a resident of Virginia until he has(i) obtained written consent and the other information on the consent formspecified in subsection A, and provided the Department of State Police withthe name, birth date, gender, race, citizenship, and social security and/orany other identification number and the number of firearms by categoryintended to be sold, rented, traded or transferred and (ii) requestedcriminal history record information by a telephone call to or othercommunication authorized by the State Police and is authorized by subdivision2 of this subsection to complete the sale or other such transfer. Toestablish personal identification and residence in Virginia for purposes ofthis section, a dealer must require any prospective purchaser to present onephoto-identification form issued by a governmental agency of the Commonwealthor by the United States Department of Defense, and other documentation ofresidence. Except where the photo-identification was issued by the UnitedStates Department of Defense, the other documentation of residence shall showan address identical to that shown on the photo-identification form, such asevidence of currently paid personal property tax or real estate tax, or acurrent (a) lease, (b) utility or telephone bill, (c) voter registrationcard, (d) bank check, (e) passport, (f) automobile registration, or (g)hunting or fishing license; other current identification allowed as evidenceof residency by Part 178.124 of Title 27 of the Code of Federal Regulationsand ATF Ruling 2001-5; or other documentation of residence determined to beacceptable by the Department of Criminal Justice Services, that corroboratesthat the prospective purchaser currently resides in Virginia. Where thephoto-identification was issued by the Department of Defense, permanentorders assigning the purchaser to a duty post in Virginia shall be the onlyother required documentation of residence. For the purposes of this sectionand establishment of residency for firearm purchase, residency shall bedeemed to be the permanent duty post of a member of the armed forces. Whenthe photo-identification presented to a dealer by the prospective purchaseris a driver's license or other photo-identification issued by the Departmentof Motor Vehicles, and such identification form contains a date of issue, thedealer shall not, except for a renewed driver's license or otherphoto-identification issued by the Department of Motor Vehicles, sell orotherwise transfer a firearm to the prospective purchaser until 30 days afterthe date of issue of an original or duplicate driver's license unless theprospective purchaser also presents a copy of his Virginia Department ofMotor Vehicles driver's record showing that the original date of issue of thedriver's license was more than 30 days prior to the attempted purchase.

In addition, no dealer shall sell, rent, trade or transfer from his inventoryany assault firearm to any person who is not a citizen of the United Statesor who is not a person lawfully admitted for permanent residence. Toestablish citizenship or lawful admission for a permanent residence forpurposes of purchasing an assault firearm, a dealer shall require aprospective purchaser to present a certified birth certificate or acertificate of birth abroad issued by the United States State Department, acertificate of citizenship or a certificate of naturalization issued by theUnited States Citizenship and Immigration Services, an unexpired U.S.passport, a United States citizen identification card, a current voterregistration card, a current selective service registration card, or animmigrant visa or other documentation of status as a person lawfully admittedfor permanent residence issued by the United States Citizenship andImmigration Services.

Upon receipt of the request for a criminal history record information check,the State Police shall (1) review its criminal history record information todetermine if the buyer or transferee is prohibited from possessing ortransporting a firearm by state or federal law, (2) inform the dealer if itsrecord indicates that the buyer or transferee is so prohibited, and (3)provide the dealer with a unique reference number for that inquiry.

2. The State Police shall provide its response to the requesting dealerduring the dealer's request, or by return call without delay. If the criminalhistory record information check indicates the prospective purchaser ortransferee has a disqualifying criminal record or has been acquitted byreason of insanity and committed to the custody of the Commissioner ofBehavioral Health and Developmental Services, the State Police shall haveuntil the end of the dealer's next business day to advise the dealer if itsrecords indicate the buyer or transferee is prohibited from possessing ortransporting a firearm by state or federal law. If not so advised by the endof the dealer's next business day, a dealer who has fulfilled therequirements of subdivision 1 of this subsection may immediately complete thesale or transfer and shall not be deemed in violation of this section withrespect to such sale or transfer. In case of electronic failure or othercircumstances beyond the control of the State Police, the dealer shall beadvised immediately of the reason for such delay and be given an estimate ofthe length of such delay. After such notification, the State Police shall, assoon as possible but in no event later than the end of the dealer's nextbusiness day, inform the requesting dealer if its records indicate the buyeror transferee is prohibited from possessing or transporting a firearm bystate or federal law. A dealer who fulfills the requirements of subdivision 1of this subsection and is told by the State Police that a response will notbe available by the end of the dealer's next business day may immediatelycomplete the sale or transfer and shall not be deemed in violation of thissection with respect to such sale or transfer.

3. Except as required by subsection D of § 9.1-132, the State Police shallnot maintain records longer than 30 days, except for multiple handguntransactions for which records shall be maintained for 12 months, from anydealer's request for a criminal history record information check pertainingto a buyer or transferee who is not found to be prohibited from possessingand transporting a firearm under state or federal law. However, the log onrequests made may be maintained for a period of 12 months, and such log shallconsist of the name of the purchaser, the dealer identification number, theunique approval number and the transaction date.

4. On the last day of the week following the sale or transfer of any firearm,the dealer shall mail or deliver the written consent form required bysubsection A to the Department of State Police. The State Police shallimmediately initiate a search of all available criminal history recordinformation to determine if the purchaser is prohibited from possessing ortransporting a firearm under state or federal law. If the search disclosesinformation indicating that the buyer or transferee is so prohibited frompossessing or transporting a firearm, the State Police shall inform the chieflaw-enforcement officer in the jurisdiction where the sale or transferoccurred and the dealer without delay.

5. Notwithstanding any other provisions of this section, rifles and shotgunsmay be purchased by persons who are citizens of the United States or personslawfully admitted for permanent residence but residents of other states underthe terms of subsections A and B upon furnishing the dealer with proof ofcitizenship or status as a person lawfully admitted for permanent residenceand one photo-identification form issued by a governmental agency of theperson's state of residence and one other form of identification determinedto be acceptable by the Department of Criminal Justice Services.

6. For the purposes of this subsection, the phrase "dealer's next businessday" shall not include December 25.

C. No dealer shall sell, rent, trade or transfer from his inventory anyfirearm, except when the transaction involves a rifle or a shotgun and can beaccomplished pursuant to the provisions of subdivision B 5 to any person whois not a resident of Virginia unless he has first obtained from theDepartment of State Police a report indicating that a search of all availablecriminal history record information has not disclosed that the person isprohibited from possessing or transporting a firearm under state or federallaw. The dealer shall obtain the required report by mailing or delivering thewritten consent form required under subsection A to the State Police within24 hours of its execution. If the dealer has complied with the provisions ofthis subsection and has not received the required report from the StatePolice within 10 days from the date the written consent form was mailed tothe Department of State Police, he shall not be deemed in violation of thissection for thereafter completing the sale or transfer.

D. Nothing herein shall prevent a resident of the Commonwealth, at hisoption, from buying, renting or receiving a firearm from a dealer in Virginiaby obtaining a criminal history record information check through the dealeras provided in subsection C.

E. If any buyer or transferee is denied the right to purchase a firearm underthis section, he may exercise his right of access to and review andcorrection of criminal history record information under § 9.1-132 orinstitute a civil action as provided in § 9.1-135, provided any such actionis initiated within 30 days of such denial.

F. Any dealer who willfully and intentionally requests, obtains, or seeks toobtain criminal history record information under false pretenses, or whowillfully and intentionally disseminates or seeks to disseminate criminalhistory record information except as authorized in this section shall beguilty of a Class 2 misdemeanor.

G. For purposes of this section:

"Actual buyer" means a person who executes the consent form required insubsection B or C, or other such firearm transaction records as may berequired by federal law.

"Antique firearm" means:

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

2. Any replica of any firearm described in subdivision 1 of this definitionif such replica (i) is not designed or redesigned for using rimfire orconventional centerfire fixed ammunition or (ii) uses rimfire or conventionalcenterfire fixed ammunition that is no longer manufactured in the UnitedStates and that is not readily available in the ordinary channels ofcommercial trade;

3. Any muzzle-loading rifle, muzzle-loading shotgun, or muzzle-loading pistolthat is designed to use black powder, or a black powder substitute, and thatcannot use fixed ammunition. For purposes of this subdivision, the term"antique firearm" shall not include any weapon that incorporates a firearmframe or receiver, any firearm that is converted into a muzzle-loadingweapon, or any muzzle-loading weapon that can be readily converted to firefixed ammunition by replacing the barrel, bolt, breech-block, or anycombination thereof; or

4. Any curio or relic as defined in this subsection.

"Assault firearm" means any semi-automatic center-fire rifle or pistolwhich expels single or multiple projectiles by action of an explosion of acombustible material and is equipped at the time of the offense with amagazine which will hold more than 20 rounds of ammunition or designed by themanufacturer to accommodate a silencer or equipped with a folding stock.

"Curios or relics" means firearms that are of special interest tocollectors by reason of some quality other than is associated with firearmsintended for sporting use or as offensive or defensive weapons. To berecognized as curios or relics, firearms must fall within one of thefollowing categories:

1. Firearms that were manufactured at least 50 years prior to the currentdate, which use rimfire or conventional centerfire fixed ammunition that isno longer manufactured in the United States and that is not readily availablein the ordinary channels of commercial trade, but not including replicasthereof;

2. Firearms that are certified by the curator of a municipal, state, orfederal museum that exhibits firearms to be curios or relics of museuminterest; and

3. Any other firearms that derive a substantial part of their monetary valuefrom the fact that they are novel, rare, bizarre, or because of theirassociation with some historical figure, period, or event. Proof ofqualification of a particular firearm under this category may be establishedby evidence of present value and evidence that like firearms are notavailable except as collectors' items, or that the value of like firearmsavailable in ordinary commercial channels is substantially less.

"Dealer" means any person licensed as a dealer pursuant to 18 U.S.C. § 921et seq.

"Firearm" means any handgun, shotgun, or rifle that will or is designed toor may readily be converted to expel single or multiple projectiles by actionof an explosion of a combustible material.

"Handgun" means any pistol or revolver or other firearm originallydesigned, made and intended to fire single or multiple projectiles by meansof an explosion of a combustible material from one or more barrels when heldin one hand.

"Lawfully admitted for permanent residence" means the status of having beenlawfully accorded the privilege of residing permanently in the United Statesas an immigrant in accordance with the immigration laws, such status nothaving changed.

H. The Department of Criminal Justice Services shall promulgate regulationsto ensure the identity, confidentiality and security of all records and dataprovided by the Department of State Police pursuant to this section.

I. The provisions of this section shall not apply to (i) transactions betweenpersons who are licensed as firearms importers or collectors, manufacturersor dealers pursuant to 18 U.S.C. § 921 et seq.; (ii) purchases by or sales toany law-enforcement officer or agent of the United States, the Commonwealthor any local government; or (iii) antique firearms, curios or relics.

J. The provisions of this section shall not apply to restrict purchase, tradeor transfer of firearms by a resident of Virginia when the resident ofVirginia makes such purchase, trade or transfer in another state, in whichcase the laws and regulations of that state and the United States governingthe purchase, trade or transfer of firearms shall apply. A National InstantCriminal Background Check System (NICS) check shall be performed prior tosuch purchase, trade or transfer of firearms.

J1. All licensed firearms dealers shall collect a fee of $2 for everytransaction for which a criminal history record information check is requiredpursuant to this section, except that a fee of $5 shall be collected forevery transaction involving an out-of-state resident. Such fee shall betransmitted to the Department of State Police by the last day of the monthfollowing the sale for deposit in a special fund for use by the State Policeto offset the cost of conducting criminal history record information checksunder the provisions of this section.

K. Any person willfully and intentionally making a materially false statementon the consent form required in subsection B or C or on such firearmtransaction records as may be required by federal law, shall be guilty of aClass 5 felony.

L. Except as provided in § 18.2-308.2:1, any dealer who willfully andintentionally sells, rents, trades or transfers a firearm in violation ofthis section shall be guilty of a Class 6 felony.

L1. Any person who attempts to solicit, persuade, encourage, or entice anydealer to transfer or otherwise convey a firearm other than to the actualbuyer, as well as any other person who willfully and intentionally aids orabets such person, shall be guilty of a Class 6 felony. This subsection shallnot apply to a federal law-enforcement officer or a law-enforcement officeras defined in § 9.1-101, in the performance of his official duties, or otherperson under his direct supervision.

M. Any person who purchases a firearm with the intent to (i) resell orotherwise provide such firearm to any person who he knows or has reason tobelieve is ineligible to purchase or otherwise receive from a dealer afirearm for whatever reason or (ii) transport such firearm out of theCommonwealth to be resold or otherwise provided to another person who thetransferor knows is ineligible to purchase or otherwise receive a firearm,shall be guilty of a Class 5 felony. However, if the violation of thissubsection involves such a transfer of more than one firearm, the personshall be sentenced to a mandatory minimum term of imprisonment of five years.

N. Any person who is ineligible to purchase or otherwise receive or possess afirearm in the Commonwealth who solicits, employs or assists any person inviolating subsection M shall be guilty of a Class 5 felony and shall besentenced to a mandatory minimum term of imprisonment of five years.

O. All driver's licenses issued on or after July 1, 1994, shall carry aletter designation indicating whether the driver's license is an original,duplicate or renewed driver's license.

P. Except as provided in subdivisions 1, 2, and 3 of this subsection, itshall be unlawful for any person who is not a licensed firearms dealer topurchase more than one handgun within any 30-day period. A violation of thissubsection shall be punishable as a Class 1 misdemeanor.

1. Purchases in excess of one handgun within a 30-day period may be made uponcompletion of an enhanced background check, as described herein, by specialapplication to the Department of State Police listing the number and type ofhandguns to be purchased and transferred for lawful business or personal use,in a collector series, for collections, as a bulk purchase from estate salesand for similar purposes. Such applications shall be signed under oath by theapplicant on forms provided by the Department of State Police, shall statethe purpose for the purchase above the limit, and shall require satisfactoryproof of residency and identity. Such application shall be in addition to thefirearms sales report required by the Bureau of Alcohol, Tobacco and Firearms(ATF). The Superintendent of State Police shall promulgate regulations,pursuant to the Administrative Process Act (§ 2.2-4000 et seq.), for theimplementation of an application process for purchases of handguns above thelimit.

Upon being satisfied that these requirements have been met, the Department ofState Police shall forthwith issue to the applicant a nontransferablecertificate, which shall be valid for seven days from the date of issue. Thecertificate shall be surrendered to the dealer by the prospective purchaserprior to the consummation of such sale and shall be kept on file at thedealer's place of business for inspection as provided in § 54.1-4201 for aperiod of not less than two years. Upon request of any local law-enforcementagency, and pursuant to its regulations, the Department of State Police maycertify such local law-enforcement agency to serve as its agent to receiveapplications and, upon authorization by the Department of State Police, issuecertificates forthwith pursuant to this subsection. Applications andcertificates issued under this subsection shall be maintained as records asprovided in subdivision B 3. The Department of State Police shall makeavailable to local law-enforcement agencies all records concerningcertificates issued pursuant to this subsection and all records provided forin subdivision B 3.

2. The provisions of this subsection shall not apply to:

a. A law-enforcement agency;

b. An agency duly authorized to perform law-enforcement duties;

c. State and local correctional facilities;

d. A private security company licensed to do business within the Commonwealth;

e. The purchase of antique firearms as herein defined;

f. A person whose handgun is stolen or irretrievably lost who deems itessential that such handgun be replaced immediately. Such person may purchaseanother handgun, even if the person has previously purchased a handgun withina 30-day period, provided (i) the person provides the firearms dealer with acopy of the official police report or a summary thereof, on forms provided bythe Department of State Police, from the law-enforcement agency that took thereport of the lost or stolen handgun; (ii) the official police report orsummary thereof contains the name and address of the handgun owner, thedescription of the handgun, the location of the loss or theft, the date ofthe loss or theft, and the date the loss or theft was reported to thelaw-enforcement agency; and (iii) the date of the loss or theft as reflectedon the official police report or summary thereof occurred within 30 days ofthe person's attempt to replace the handgun. The firearms dealer shall attacha copy of the official police report or summary thereof to the original copyof the Virginia firearms transaction report completed for the transaction andretain it for the period prescribed by the Department of State Police;

g. A person who trades in a handgun at the same time he makes a handgunpurchase and as a part of the same transaction, provided that no more thanone transaction of this nature is completed per day;

h. A person who holds a valid Virginia permit to carry a concealed handgun;

i. A person who purchases a handgun in a private sale. For purposes of thissubdivision, a private sale means purchase from a person who makes occasionalsales, exchanges or purchases of firearms for the enhancement of a personalcollection of curios or relics as herein defined, or who sells all or part ofsuch collection of curios and relics; or

j. A law-enforcement officer. For purposes of this subdivision, alaw-enforcement officer means any employee of a police department orsheriff's office that is part of or administered by the Commonwealth or anypolitical subdivision thereof, and who is responsible for the prevention anddetection of crime and the enforcement of the penal, traffic or highway lawsof the Commonwealth.

3. For the purposes of this subsection, "purchase" shall not include theexchange or replacement of a handgun by a seller for a handgun purchased fromsuch seller by the same person seeking the exchange or replacement within the30-day period immediately preceding the date of exchange or replacement.

(1989, c. 745; 1990, cc. 594, 692; 1991, cc. 515, 525, 716; 1992, cc. 637,872; 1993, cc. 451, 461, 486, 493, 674; 1994, c. 624; 1997, c. 341; 1998, c.844; 2002, c. 695; 2003, cc. 833, 976; 2004, cc. 354, 461, 837, 904, 922;2005, cc. 578, 859; 2007, c. 509; 2008, cc. 854, 869; 2009, cc. 813, 840.)