First Regular Session
Sixty-second General Assembly
LLS NO. 99-0190.01 Jeff Conway SENATE BILL 99-058
STATE OF COLORADO
BY SENATOR Owen
STATE, VETERANS, & MILITARY AFFAIRS
A BILL FOR AN ACT
101 CONCERNING IMPLEMENTATION OF THE NATIONAL INSTANT CRIMINAL
102 BACKGROUND CHECK SYSTEM, AND, IN CONNECTION THEREWITH,
103 AUTHORIZING THE COLORADO BUREAU OF INVESTIGATION TO SERVE
104 AS THE STATE POINT OF CONTACT, TO PROMULGATE NECESSARY
105 RULES, AND TO CARRY OUT DUTIES AS THEY ARE SET FORTH IN
106 STATE LAW, AND MAKING AN APPROPRIATION THEREFOR.
Bill Summary
(Note: This summary applies to this bill as introduced and does
not necessarily reflect any amendments that may be subsequently
adopted.)
Authorizes the Colorado bureau of investigation ("bureau") to act
as the state point of contact for implementation of the permanent
provisions of the federal Brady law. Authorizes the director of the bureau
to promulgate rules necessary for the bureau to carry out its duties as a
state point of contact.
Adds to the grounds for denial of a transfer of a firearm under state
law, the grounds of being the subject of an information or felony
complaint or having been arrested or charged with a crime that, if
convicted, would prohibit the arrestee from receiving a firearm.
Requires the bureau to provide notice of the denial to the law
enforcement agencies having jurisdiction over the area in which the
transferee resides and in which the transferor conducts business.
Permits the director of the bureau to charge a fee to cover the
direct and indirect costs incurred in processing instant criminal
background checks. Creates a cash fund for said fees.
Clarifies that the state's sovereign immunity is waived only for the
[ ] denotes HOUSE amendment. { } denotes SENATE amendment.
Capital letters indicate new material to be added to existing statute.
Dashes through the words indicate material to be deleted from existing statute.
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limited purpose of an individual cause of action to correct background
information or to approve a firearm transfer.
Permits the director of the bureau to promulgate rules to
implement a state appeals process for denial of a firearm transfer.
Requires the transferor to provide written information about the appeals
process. Requires the transferee to carry the burden of obtaining and
providing dispositional information during the appeals process.
Clarifies that no act taken to implement this act is a violation of
the criminal code.
Creates criminal penalties for fraudulently providing information
or obtaining a firearm, for requesting a background check under false
pretenses, or the unauthorized dissemination of the information.
Makes an appropriation.
1 Be it enacted by the General Assembly of the State of Colorado:
2 SECTION 1. Legislative declaration. (1) The general assembly
3 hereby finds, determines, and declares that the interim provisions of the
4 federal "Brady Handgun Violence Prevention Act", 18 U.S.C. sec. 922(s),
5 referred to in this section as the "federal Brady law", under which
6 Colorado was permitted to conduct its own statewide criminal
7 background check system for prospective handgun purchasers, expired on
8 or about November 30, 1998, five years after Public Law 103-159 was
9 enacted. The general assembly further finds that the statewide instant
10 criminal background check system, located in article 26.5 of title 12,
11 Colorado Revised Statutes, was repealed on or about December 31, 1998.
12 The general assembly further finds that the permanent provisions of the
13 federal Brady law are now in effect, pursuant to which a national instant
14 criminal background check system is applied to firearms purchases.
15 While federal law generally preempts any state laws on this subject, the
16 federal government has recognized the valuable prior experience and
17 expertise that the state authorities have developed through the
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1 implementation of their own criminal background check systems. As a
2 result, the federal government has encouraged state law enforcement
3 agencies, by state statute or executive order, to provide assistance and to
4 serve voluntarily as "points of contact" in implementing the permanent
5 provisions of the federal Brady law. In addition, the federal Brady law
6 provides that while serving as a point of contact, the state must meet or
7 exceed federal standards, and a state, by law or rule, may pursue its own
8 policy so long as it is consistent with federal law.
9 (2) The general assembly further finds, determines, and declares
10 that the director of the Colorado bureau of investigation shall have all
11 necessary latitude in promulgating rules to carry out the bureau's duties
12 as the state point of contact under the federal Brady law, and the federal
13 statutes, regulations, and guidelines adopted or amended in connection
14 therewith.
15 SECTION 2. 24-33.5-412 (1) (l), Colorado Revised Statutes, is
16 amended to read:
17 24-33.5-412. Functions of bureau - legislative review. (1) The
18 bureau has the following authority:
19 (l) To carry out the duties set forth in article 26.5 of title 12,
20 C.R.S., SECTION 24-33.5-424 concerning the statewide NATIONAL instant
21 criminal background check system ("NICS") in connection with the
22 transfer of handguns FIREARMS.
23 SECTION 3. Part 4 of article 33.5 of title 24, Colorado Revised
24 Statutes, is amended BY THE ADDITION OF A NEW SECTION to
25 read:
26 24-33.5-424. National instant criminal background check -
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1 state point of contact - rule-making - instant criminal background
2 check fund - created. (1) THE BUREAU SHALL BE AUTHORIZED TO ENTER
3 INTO AN AGREEMENT WITH THE FEDERAL GOVERNMENT TO ACT AS THE
4 STATE POINT OF CONTACT FOR IMPLEMENTATION OF THE PERMANENT
5 PROVISIONS OF THE FEDERAL "BRADY HANDGUN VIOLENCE PREVENTION
6 ACT", 18 U.S.C. SEC. 922 (s), REFERRED TO IN THIS SECTION AS THE
7 "FEDERAL BRADY LAW", THE NATIONAL INSTANT CRIMINAL BACKGROUND
8 CHECK SYSTEM ("NICS") CREATED PURSUANT TO THAT ACT, AND ALL
9 FEDERAL REGULATIONS AND APPLICABLE GUIDELINES ADOPTED PURSUANT
10 TO THAT ACT. THE DIRECTOR IS AUTHORIZED TO PROMULGATE SUCH RULES
11 AS ARE NECESSARY TO CARRY OUT THE DUTIES OF THE BUREAU AS THE
12 STATE POINT OF CONTACT AND TO ASSIST IN IMPLEMENTING THE
13 PERMANENT PROVISIONS OF THE FEDERAL BRADY LAW, THE NICS SYSTEM,
14 AND ALL FEDERAL REGULATIONS AND APPLICABLE GUIDELINES ADOPTED
15 PURSUANT TO THAT ACT. ANY RULES PROMULGATED PURSUANT TO THIS
16 SECTION SHALL BE PROMULGATED IN ACCORDANCE WITH THE "STATE
17 ADMINISTRATIVE PROCEDURE ACT", ARTICLE 4 OF THIS TITLE.
18 (2) THE BUREAU, ACTING AS THE STATE POINT OF CONTACT FOR
19 IMPLEMENTATION OF THE FEDERAL BRADY LAW, SHALL DENY A TRANSFER
20 OF A FIREARM TO A PROSPECTIVE TRANSFEREE IF THE TRANSFER WOULD
21 VIOLATE 18 U.S.C. SEC. 922. IN ADDITION, THE BUREAU, ACTING AS THE
22 STATE POINT OF CONTACT FOR IMPLEMENTATION OF THE FEDERAL BRADY
23 LAW, SHALL DENY A TRANSFER OF A FIREARM IF THE PROSPECTIVE
24 TRANSFEREE:
25 (a) HAS BEEN ARRESTED FOR OR CHARGED WITH A CRIME FOR
26 WHICH THE PROSPECTIVE TRANSFEREE, IF CONVICTED, WOULD BE
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1 PROHIBITED UNDER STATE OR FEDERAL LAW FROM PURCHASING,
2 RECEIVING, OR POSSESSING A FIREARM;
3 (b) IS THE SUBJECT OF AN INFORMATION OR A FELONY COMPLAINT
4 ALLEGING THAT THE PROSPECTIVE TRANSFEREE HAS COMMITTED A CRIME
5 PUNISHABLE BY IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR AS
6 SPECIFIED IN 18 U.S.C. SEC. 921 (20).
7 (3) UPON DENIAL OF A FIREARM TRANSFER BY THE BUREAU,
8 ACTING AS THE STATE POINT OF CONTACT, THE BUREAU SHALL NOTIFY THE
9 TRANSFEROR AND SEND NOTICE OF THE DENIAL TO THE NICS SYSTEM,
10 PURSUANT TO THE FEDERAL BRADY LAW. IN ADDITION, THE BUREAU
11 SHALL IMMEDIATELY SEND NOTIFICATION OF SUCH DENIAL AND THE BASIS
12 FOR THE DENIAL TO THE LOCAL LAW ENFORCEMENT AGENCIES HAVING
13 JURISDICTION OVER THE AREA IN WHICH THE TRANSFEREE RESIDES AND IN
14 WHICH THE TRANSFEROR CONDUCTS BUSINESS.
15 (4) THE DIRECTOR MAY ESTABLISH A FEE TO BE PAID BY A
16 TRANSFEREE EACH TIME THE TRANSFEROR MAKES A REQUEST FOR THE
17 BUREAU TO ACCESS THE NICS SYSTEM AND PROCESS AN INSTANT
18 CRIMINAL BACKGROUND CHECK OF THE TRANSFEREE. THE DIRECTOR MAY
19 ALSO SET FORTH THE PROCEDURES TO BE USED TO COLLECT THE FEE. THE
20 DIRECTOR SHALL SET THE FEE, IF ANY FEE IS IMPOSED, AT A LEVEL
21 SUFFICIENT TO COVER THE DIRECT AND INDIRECT COSTS ASSOCIATED WITH
22 PROCESSING SUCH REQUESTS. ANY FEE COLLECTED PURSUANT TO THIS
23 SUBSECTION (4) SHALL BE TRANSMITTED TO THE STATE TREASURER, WHO
24 SHALL CREDIT THE SAME TO THE INSTANT CRIMINAL BACKGROUND CHECK
25 CASH FUND, WHICH FUND IS HEREBY CREATED. ANY INTEREST DERIVED
26 FROM THE DEPOSIT AND INVESTMENT OF MONEYS IN THE FUND SHALL BE
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1 CREDITED TO THE FUND. ALL MONEYS IN THE FUND SHALL BE SUBJECT TO
2 APPROPRIATION BY THE GENERAL ASSEMBLY FOR THE DIRECT AND
3 INDIRECT COSTS OF IMPLEMENTING THE PROVISIONS OF THIS SECTION.
4 (5) THE DIRECTOR MAY PROMULGATE RULES THAT SET FORTH
5 PROCEDURES WHEREBY A PROSPECTIVE TRANSFEREE WHOSE TRANSFER IS
6 DENIED MAY REQUEST A REVIEW OF THE DENIAL AND OF THE INSTANT
7 CRIMINAL BACKGROUND CHECK RECORDS THAT PROMPTED THE DENIAL.
8 UPON DENIAL, THE TRANSFEROR SHALL PROVIDE THE TRANSFEREE WITH
9 WRITTEN INFORMATION PREPARED BY THE BUREAU CONCERNING THE
10 PROCEDURE BY WHICH THE TRANSFEREE MAY REQUEST SUCH A REVIEW.
11 WHEN DISPOSITIONAL INFORMATION INDICATING A TRANSFEREE IS NOT
12 PROHIBITED FROM PURCHASING, RECEIVING, OR POSSESSING A HANDGUN
13 IS NOT INCLUDED IN THE BUREAU'S RECORDS, IT IS THE TRANSFEREE'S
14 RESPONSIBILITY TO OBTAIN THE DISPOSITIONAL INFORMATION AND
15 PROVIDE SUCH INFORMATION TO THE BUREAU BEFORE THE BUREAU MAY
16 REVERSE THE DENIAL.
17 (6) AN INDIVIDUAL MAY BRING A CAUSE OF ACTION TO SEEK A
18 COURT ORDER TO CORRECT CONTESTED BACKGROUND INFORMATION OR
19 TO APPROVE A FIREARM TRANSFER, BUT NO OTHER CAUSE OF ACTION IS
20 HEREBY CREATED OR MADE AVAILABLE UNDER STATE LAW. NOTHING IN
21 THIS SUBSECTION (6) SHALL BE CONSTRUED TO OTHERWISE ABROGATE OR
22 LIMIT THE SOVEREIGN IMMUNITY GRANTED TO PUBLIC ENTITIES PURSUANT
23 TO THE "COLORADO GOVERNMENTAL IMMUNITY ACT", ARTICLE 10 OF
24 THIS TITLE.
25 (7) NO ACT PERFORMED BY THE BUREAU OR ITS AGENTS IN
26 CARRYING OUT THEIR DUTIES UNDER THIS SECTION SHALL BE CONSTRUED
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1 TO BE A VIOLATION OF TITLE 18, C.R.S.
2 (8) (a) IT IS UNLAWFUL FOR:
3 (I) ANY TRANSFEREE TO WILLFULLY AND KNOWINGLY PROVIDE
4 FALSE INFORMATION OR FALSE OR FRAUDULENT IDENTIFICATION IN
5 CONNECTION WITH A TRANSFER MADE PURSUANT TO THIS SECTION;
6 (II) ANY TRANSFEROR, OR EMPLOYEE OR AGENT OF A TRANSFEROR,
7 TO VIOLATE THE PROVISIONS OF THIS SECTION;
8 (III) ANY PERSON TO KNOWINGLY ACQUIRE A FIREARM FOR A
9 PERSON WHO IS PROHIBITED BY LOCAL, STATE, OR FEDERAL LAW FROM
10 PURCHASING, RECEIVING, OR POSSESSING A FIREARM;
11 (IV) ANY TRANSFEROR TO REQUEST CRIMINAL HISTORY RECORD
12 INFORMATION UNDER FALSE PRETENSES OR TO WILLFULLY AND
13 INTENTIONALLY DISSEMINATE CRIMINAL HISTORY RECORD INFORMATION
14 TO ANY PERSON OTHER THAN THE SUBJECT OF SUCH INFORMATION;
15 (V) ANY AGENT OR EMPLOYEE OR FORMER AGENT OR EMPLOYEE
16 OF THE BUREAU TO INTENTIONALLY VIOLATE THE PROVISIONS OF THIS
17 SECTION.
18 (b) ANY PERSON WHO VIOLATES THE PROVISIONS OF PARAGRAPH
19 (a) OF THIS SUBSECTION (8) COMMITS A CLASS 1 MISDEMEANOR AND SHALL
20 BE PUNISHED AS PROVIDED IN SECTION 18-1-106, C.R.S.
21 (9) (a) ANY LAW ENFORCEMENT AGENCY, INCLUDING THE BUREAU,
22 THE STATE JUDICIAL DEPARTMENT, ANY COURT OF THIS STATE OR OF ANY
23 POLITICAL SUBDIVISION OF THIS STATE, OR ANY EMPLOYEE OR AGENT OF
24 ANY OF SUCH ENTITIES WHO ACTS IN GOOD FAITH IN IMPLEMENTING THE
25 PROVISIONS OF THIS SECTION SHALL BE IMMUNE FROM ANY CIVIL OR
26 CRIMINAL LIABILITY OR REGULATORY SANCTION THAT MAY ARISE FROM
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1 THE TRANSFER OR DENIAL OF THE TRANSFER OF A FIREARM.
2 (b) ANY TRANSFEROR WHO ACTS IN GOOD FAITH COMPLIANCE WITH
3 THE PROVISIONS OF THIS SECTION SHALL BE IMMUNE FROM ANY CIVIL OR
4 CRIMINAL LIABILITY OR REGULATORY SANCTION THAT MAY ARISE FROM
5 THE TRANSFER OR DENIAL OF THE TRANSFER OF A FIREARM.
6 SECTION 4. 18-4-412, Colorado Revised Statutes, is amended
7 BY THE ADDITION OF A NEW SUBSECTION to read:
8 18-4-412. Theft of medical records or medical information -
9 penalty. (4) THE OBTAINING, ACCESSING, USE, OR DISCLOSURE OF
10 MEDICAL RECORDS OR MEDICAL INFORMATION BY THE COLORADO BUREAU
11 OF INVESTIGATION OR BY ANY OF ITS EMPLOYEES IN IMPLEMENTING
12 SECTION 24-33.5-424, C.R.S., SHALL NOT CONSTITUTE THEFT OF A
13 MEDICAL RECORD OR MEDICAL INFORMATION UNDER THIS SECTION.
14 SECTION 5. Appropriation. In addition to any other
15 appropriation, there is hereby appropriated, out of any moneys in the
16 instant criminal background check cash fund created in section
17 24-33.5-424, Colorado Revised Statutes, not otherwise appropriated, to
18 the department of public safety, for the fiscal year beginning July 1, 1999,
19 the sum of ___ dollars ($ ) and ___ FTE, or so much thereof as may be
20 necessary, for the implementation of this act.
21 SECTION 6. Safety clause. The general assembly hereby finds,
22 determines, and declares that this act is necessary for the|~ immediate
|~ 23 preservation of the public peace, health, and safety.