Legislature(1999 - 2000)

05/14/1999 01:40 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
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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