Legislature(1999 - 2000)
05/14/1999 01:40 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 130 - FEES/IMMUNITY SALE/TRANSFER OF FIREARMS CHAIRMAN KOTT announced the first order of business is SB 130, "An Act relating to immunity for sale or transfer of a firearm; relating to administrative functions performed by and fees charged by the Department of Public Safety for transfer of a firearm." Number 0050 VICTOR GUNN, Legislative Administrative Assistant to Senator Pete Kelly, Alaska State Legislature, testified on behalf of the sponsor. He informed the committee that there are regulations for the U.S. Bureau of Alcohol, Tobacco, and Firearms (BATF) which require local chief law enforcement officers to sign certifications on federal tax forms one, four and five before BATF will approve the transfer of National Firearms Act (NFA) firearms to individuals. This is required in Sections 58.12 and 58.22 of the Internal Revenue Service (IRS) code of 1984 and Sections 58.12 and 58.22 of the NFA of 1934 as amended. Both provisions contain almost identical last sentences: "Applications shall be denied if the transfer, receipt, or possession would place the transferee in violation of law." A researcher in this field has stated that language creates monster regulation abdicating BATF's federal legal responsibility to collect federal taxes and enforce federal law to thousands of local officials. Mr. Gunn informed the committee that in the past two decades some Alaskan chief law enforcement officers have refused to sign the tranferee's tax form. Frequently, these officers cite liability and an unfunded federal mandate as the reasoning behind not signing the transferee's tax form. The concern of liability is derived from the language utilized for the chief law enforcement officer on page 2 of the forms. That language says: "I have no information indicating that the transferee will use the firearm or the device described on this application for other than lawful purposes. I have no information that the receipt and/or possession described in item 4 of this form would place the transferee in violation of state or local law." Some of the chief law enforcement officers feel that such language would place them in a liable situation if the transferee used the firearm in an illegal manner anytime in the future. Mr. Gunn noted that his research had not found an occurrence of legally transferred NFA firearms committing any violent crime with the firearm since the 1930s. The officers claim that this is an unfunded federal mandate because BATF abdicates its authority to local officials. MR. GUNN pointed out that each firearm transfer requires a submittal of fingerprints and a recent photo to BATF. Aside from the high purchase price of NFA regulated firearms, the applicant pays a tax of up to $200 per transfer. Furthermore, many of the Alaskan applicants also applied for and received concealed and carry weapon permits for which there is much scrutiny. He indicated that thess are not criminal types purchasing these firearms. MR. GUNN stated that the certification requirement in essence allows local officials to veto a federal right. This legislation, SB 130, is before the committee at the request of Alaskans who have applied for the lawful transfer of a NFA firearm, but have found resistance due to concerns from law enforcement. This legislation would address liability and unfunded mandate complaints. Mr. Gunn informed the committee that it is estimated that there will be less than 50 transfers per year statewide. He acknowledged the Department of Public Safety's (DPS) concern that SB 130 would create more work in a time of fiscal constraint. Mr. Gunn, as a former Fairbanks Chief Law Enforcement Officer, recalled that in his final two years as such there were only two requests for signatures for NFA firearms which isn't a tremendous amount. He pointed out that the DPS and the Department of Law have submitted zero fiscal notes. This bill provides for a reasonable fee. Furthermore, he suggested that the scrutiny following a concealed carry weapon (CCW) permit issuance, which requires fingerprints and photos and a background check, should be sufficient. If some time has elapsed, then a check of the National Crime Information Center and the Alaska Judicial Information System should reveal any recent nonqualifying activity as is performed when a CCW permit is renewed. He also reminded the committee of Article I, Section 19 of the Alaska State Constitution as amended in 1994 which states, "The individual right to keep and bear arms shall not be denied or infringed by the state or political subdivision of the state." CHAIRMAN KOTT inquired as to whether Mr. Gunn, when Fairbanks Chief, honored or rejected the two requests he mentioned. MR. GUNN answered that those requests were honored. Number 0534 REPRESENTATIVE GREEN inquired as to examples of the weapons being referenced here. MR. GUNN clarified that NFA firearms are also Title 2 firearms which include firearms that can fire fully automatic, silencers, sawed-off shotguns, and destructive devices. He noted that currently, there is a finite number of such firearms and they are all registered by the federal government. Basically, these firearms are traded amongst collectors who can afford them. Although Mr. Gunn understood DPS's position regarding the unfunded federal mandate, he also realized that could not be changed in the near future. The congressional delegation is aware of this. He explained that this legislation only attempts to alleviate the current situation in which firearms have been legally purchased, but possession cannot be taken due to the inability to obtain a signature from law enforcement. REPRESENTATIVE GREEN asked whether Mr. Gunn felt that the checks for the CCW firearms was adequate for the use of an automatic weapon. He also asked if those checks were federal or state? MR. GUNN explained that the federal government, BATF, obtains the fingerprints and the photo which has nothing to do with the signature block. Every time there is a transfer that occurs as well as paying the tax. REPRESENTATIVE GREEN inquired as to whether Mr. Gunn felt that removal of liability would create a situation in which chief law enforcement officers provide carte blanch signatures. MR. GUNN replied no. Number 0852 REPRESENTATIVE MURKOWSKI understood that these forms being referenced are standard across the nation. She asked if other states are having similar difficulty in obtaining signatures. If so, what are those states doing to address the situation? MR. GUNN commented that some states have had problems similar to those in Alaska. Usually, the problem exists in a specific jurisdiction. Mr. Gunn emphasized that this would not require the signature, but would simply remedy the complaints surrounding these transfers. REPRESENTATIVE MURKOWSKI asked if other states are granting immunity for the sale or transfer of such firearms. MR. GUNN responded yes and noted that in some states it is entirely illegal to own such firearms. REPRESENTATIVE ROKEBERG inquired as to what federal tax forms one, four and five cover. He indicated the need for the committee packet to include a description of each. MR. GUNN agreed to do so. He explained that form four is regarding a transfer from a dealer to an individual. Form one is regarding the tax paid for the construction of such a firearm. Form five deals with the situation in which a government sells a registered NFA weapon to an individual. Number 1092 CHAIRMAN KOTT inquired as to the general trend of chief law enforcement officers in Alaska with regard to signing the forms. MR. GUNN informed the committee that two chiefs on the Kenai Peninsula are signing these forms. The Anchorage Chief of Police and the DPS designated officials, per the commissioner's decision, are not signing these forms. He pointed out that chief law enforcement officers can include a district attorney, and a judge. Although this is a federal form, federal law enforcement officers who are the most appropriate people to sign will not sign these forms. That problem can't be addressed. CHAIRMAN KOTT asked if DPS would fulfill this requirement in those communities with Village Public Safety Officers. MR. GUNN said that the requirement would fall to whomever the commissioner would designate for that area. Generally, the person in charge of a trooper district would be the designated signer. REPRESENTATIVE MURKOWSKI indicated the need to hear from some of the police chiefs with regard to why they aren't signing these forms and if in fact, SB 130 would make a difference. REPRESENTATIVE CROFT referred to the "shall" language on page 1, lines 13-14 and understood that language to mean that DPS wasn't required to sign the form. MR. GUNN agreed that the language does not require the signature. REPRESENTATIVE CROFT expressed concern that the "shall" language would be interpreted to mean that DPS is required to sign. He inquired as to where SB 130 or another part of the law that says DPS may or may not sign. MR. GUNN could not answer. Number 1390 CHRIS STOCKARD, Captain, Department of Public Safety, Alaska State Trooper, informed the committee that he was assigned to the Commissioner's office. He believed that Mr. Gunn summed up DPS's position fairly well. It is the belief of DPS that this is a federal responsibility. He agreed with Chairman Kott that currently, DPS is not signing these forms. The department's concerns stem partially from the liability issue in that the form nor regulations specify the extent to which the local law enforcement goes to obtain its knowledge that this applicant won't commit an unlawful act. Therefore, the concern surrounding what is really being signed for is a major issue. Secondly, this is a federal job. CHAIRMAN KOTT surmised then that even if the civil liability is remedied, the department still maintains that the federal government should do this. If the federal government says they won't, and Alaska's constitution provides for the right to keep and bear arms; where is the middle ground? MR. STOCKARD said that the current policy is that DPS isn't authorized to sign these forms. The department would prefer local officials with better knowledge of their local areas to sign, if they want to sign. REPRESENTATIVE CROFT identified the operative phrase as the one reading, "I certify that ... I have no knowledge indicating that the transferee will use the firearm or device described in the application other than lawful purposes. I have no information that the receipt or possession of firearms will place the transferee in violation of state or local law." He asked if the crux of the matter is with regard to how much investigation is required before signing? MR. STOCKARD agreed. REPRESENTATIVE CROFT said that there should be some standards. He believed the best solution to be to rewrite the form, but since this is a federal form that will probably not occur. REPRESENTATIVE GREEN wondered if the signature giving the state immunity would sign away liability. REPRESENTATIVE KERTTULA commented that there might be sovereign immunity, but with SB 130 there would be a problem. However, she was not sure. REPRESENTATIVE CROFT pointed out that this is a 1934 law. That was perhaps, a time when the chief of police of a small town could make this type of declaration. Today, this doesn't seem appropriate. Number 1786 NOEL NAPOLILLI, 28 year veteran of the Fairbanks School District, informed the committee that he has published many articles on the historical application of Class 3 firearms for which he was a dealer and currently, a collector. He pointed out that the concern that a person could walk off the street, receive a signature for a Class 3 firearm, and take it home that day is erroneous due to the lengthy application and background check procedures. Furthermore, Mr. Napolilli noted that he is unable to purchase more Class 3 firearms because he resides out of the city limits and has no one who can sign. There are many in Fairbanks' city limits who purchased Class 3 firearms when the troopers were signing. The firearms were placed in the possession of the Class 3 dealers, but the policy had changed, the troopers stopped signing. Therefore, the firearms can't be transferred from the dealer. This is an unfair situation which needs remedy. This legislation would be a good solution. CHAIRMAN KOTT asked if there were others who wished to testify in Fairbanks. There being no one, Chairman Kott closed public testimony. CHAIRMAN KOTT surmised that there is nothing in SB 130 which would mandate DPS or its troopers to sign these forms. MR. GUNN said that was his understanding. He offered to provide the committee with a copy of a letter citing that liability is the reason the Anchorage Chief of Police is not signing these forms. CHAIRMAN KOTT pointed out that passage of SB 130 could result in nothing changing. MR. GUNN agreed. CHAIRMAN KOTT understood that if the department feels that there is a liability issue and this is a federal issue, Mr. Napolilli would still be unable to purchase such a firearm. MR. GUNN informed the committee that he and Commissioner Smith, DPS, agree that this should be a federal responsibility, but it is not going to happen. With regard to Representative Croft's comments that the CCW standards could be utilized, that was reviewed. However, that seemed too stringent for the chief law enforcement officer. Mr. Gunn said that the sponsor would be amenable to including that in the language if it is the will of the legislature. Number 2105 CHAIRMAN KOTT asked if, in addition to the $200 federal fee, fingerprinting, photo, and background check, the desire is for the development of a statewide investigative system. MR. GUNN clarified that the problem is that the transfer can't be completed without the signature on the tax form. REPRESENTATIVE CROFT said that he believed that police shouldn't have a duty to investigate or the parameters should be clearly specified. This legislation is blanket immunity. MR. GUNN interjected that he invested 24 years in law enforcement and wouldn't have thrown that away by signing one these forms for someone to go out and commit a violent act with a known registered, heavily regulated firearm. Furthermore, he didn't know any individual who would do so. REPRESENTATIVE CROFT commented that there is not the desire to immunize the odd case where civil consequences would be appropriate. Also there is the need to pen laws that make sense. REPRESENTATIVE GREEN indicated the need for language to be inserted in SB 130 to say that the chief law enforcement officer has certified something similar to the qualifications for the CCW. MR. GUNN interjected that the form, et cetera goes to the federal government upon which the federal investigation begins. REPRESENTATIVE GREEN suggested that his recommendation would alleviate Representative Croft's concerns. The signature would qualify for immunity because proactive action has been taken by the individual to have these firearms transferred and the chief officer has seen that was done. MR. GUNN said that was how the bill was originally going to be written. However, discussions with Deputy Commissioner Smith resulted in the legislation being kept simple and avoiding use of "shall" language. Mr. Gunn agreed with Representative Green and Representative Croft's comments. The sponsor would be happy to have a conceptual amendment to that effect. REPRESENTATIVE CROFT asked Mr. Napolilli if he had a CCW permit. MR. NAPOLILLI replied yes. REPRESENTATIVE GREEN inquired as to Mr. Napolilli's opinion of having the chief officer sign off on the individual having accomplished a list of requirements similar to the CCW requirements. MR. NAPOLILLI understood Representative Green to mean that a person with a CCW permit would be acceptable proof of being able to own the Class 3 weapon and the law enforcement officer would be more comfortable with signing. He didn't believe the general public would have any problems with that. REPRESENTATIVE GREEN commented that he didn't want to inhibit anyone like Mr. Napolilli, a collector. TAPE 99-69, SIDE B MR. NAPOLILLI reiterated that he didn't believe that any of the individuals he knew, who were interested in purchasing Class 3 firearms, would have any difficulty with purchasing a CCW permit. Number 0028 REPRESENTATIVE MURKOWSKI understood Mr. Napolilli to say that the federal government has been asked to change the form, but they have refused to do so. What is the reason given for not changing? MR. NAPOLILLI said that he understood the federal government's rationale. The federal government does a thorough background investigation for each person who applies. The federal government wanted to receive knowledge from the local officials with regard to those individuals who don't have a record, but may be a known habitual drunkard or drug dealer, for instance. The desire was for the local law enforcement to be able to stop the process, by not signing the form, before there was an FBI background investigation. CHAIRMAN KOTT closed the public testimony again. He noted that there has been substantial discussion regarding whether to insert language into SB 130 which is similar to the language in the CCW law. Number 0125 REPRESENTATIVE GREEN offered the following conceptual amendment: Page , line 11, after "execute", insert language to the effect of "if the transferee provides evidence of having a valid CCW permit." He pondered as to whether that would encourage an officer to sign the form. REPRESENTATIVE CROFT said that he believed that would meet the first sentence in the signature block, but was concerned that it may not accommodate the second sentence. The took an at-ease from 2:31 p.m. to 2:40 p.m. CHAIRMAN KOTT announced that SB 130 would be held in order for the committee to ponder language suggestions and speak with law enforcement officials.
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