Representative Brad M. Daw proposes the following substitute bill:


1     
DISPOSAL OF FIREARMS

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Brad M. Daw

5     
Senate Sponsor: Curtis S. Bramble

6     

7     LONG TITLE
8     General Description:
9           This bill modifies and enacts provisions related to the disposal of firearms.
10     Highlighted Provisions:
11          This bill:
12          ▸      defines terms;
13          ▸     requires that the Department of Public Safety contract with a federally licensed
14     firearms dealer to act as the state-approved dealer for the state;
15          ▸     provides that when a governmental agency disposes of a confiscated or unclaimed
16     firearm, the governmental agency shall:
17               •     sell the firearm to a federally licensed firearms dealer;
18               •     give the firearm to the state-approved dealer to sell in accordance with the
19     provisions of this bill; or
20               •      transfer the firearm to the Bureau of Forensic Services for testing;
21          ▸     addresses the allocation of proceeds from the sale of a confiscated or unclaimed
22     firearm; and
23          ▸     makes technical and conforming changes.
24     Money Appropriated in this Bill:
25          None
26     Other Special Clauses:
27          This bill provides a special effective date.
28     Utah Code Sections Affected:
29     AMENDS:
30          24-3-103, as enacted by Laws of Utah 2013, Chapter 394
31          53-5c-201, as last amended by Laws of Utah 2015, Chapter 258
32          53-5c-202, as enacted by Laws of Utah 2013, Chapter 188
33     ENACTS:
34          24-3-103.5, Utah Code Annotated 1953
35     

36     Be it enacted by the Legislature of the state of Utah:
37          Section 1. Section 24-3-103 is amended to read:
38          24-3-103. Property no longer needed as evidence -- Disposition of property.
39          (1) When the prosecuting attorney determines that property no longer needs to be held
40     as evidence, the prosecuting attorney may:
41          (a) petition the court to apply any property that is money towards restitution, fines,
42     fees, or monetary judgments owed by the owner of the property;
43          (b) petition the court for an order transferring ownership of any weapons to the seizing
44     agency for [its] the agency's use and disposal [as the seizing agency determines] in accordance
45     with applicable law , if the owner:
46          (i) is the person who committed the crime for which the weapon was seized; or
47          (ii) may not lawfully possess the weapon; or
48          (c) notify the agency that has possession of the property that the property may be:
49          (i) returned to the rightful owner, if the rightful owner may lawfully possess it; or
50          (ii) disposed of, if the property is contraband.
51          (2) The agency shall exercise due diligence in attempting to notify the rightful owner of
52     the property to advise the owner that the property is to be returned.
53          (3) (a) Before the agency may release property to a person claiming ownership of the
54     property, the person shall establish [to the agency pursuant to] in accordance with Subsection
55     (3)(b) that the person:
56          (i) is the rightful owner; and
57          (ii) may lawfully possess the property.
58          (b) The person shall establish ownership under Subsection (3)(a) by providing to the
59     agency:
60          (i) identifying proof or documentation of ownership of the property; or
61          (ii) a notarized statement, if proof or documentation is not available.
62          (4) (a) When property is returned to the owner, a receipt listing in detail the property
63     returned shall be signed by the owner.
64          (b) The receipt shall be retained by the agency and a copy shall be provided to the
65     owner.
66          (5) [If] (a) Except as provided in Subsection (5)(b), if the agency is unable to locate the
67     rightful owner of the property or if the rightful owner is not entitled to lawfully possess the
68     property, the agency may:
69          [(a)] (i) apply the property to a public interest use;
70          [(b)] (ii) sell the property at public auction and apply the proceeds of the sale to a
71     public interest use; or
72          [(c)] (iii) destroy the property if [it] the property is unfit for a public interest use or for
73     sale.
74          (b) If the property described in Subsection (5)(a) is a firearm, the agency shall dispose
75     of the firearm in accordance with Section 24-3-103.5.
76          (6) Before applying the property or the proceeds from the sale of the property to a
77     public interest use, the agency shall obtain from the legislative body of its jurisdiction:
78          (a) permission to apply the property or the proceeds to public interest use; and
79          (b) the designation and approval of the public interest use of the property or the
80     proceeds.
81          Section 2. Section 24-3-103.5 is enacted to read:
82          24-3-103.5. Disposition of firearms no longer needed as evidence.
83          (1) As used in this section:
84          (a) "Confiscated or unclaimed firearm" means a firearm that is subject to disposal by
85     an agency under Section 24-3-103 or 53-5c-202.
86          (b) "Department" means the Department of Public Safety created in Section 53-1-103.
87          (c) "Federally licensed firearms dealer" means a person:
88          (i) licensed as a dealer under 18 U.S.C. Sec. 923; and
89          (ii) engaged in the business of selling firearms.
90          (d) "State-approved dealer" means the federally licensed firearms dealer that contracts
91     with the department under Subsection (4).
92          (2) An agency shall dispose of a confiscated or unclaimed firearm by:
93          (a) selling or destroying the confiscated or unclaimed firearm in accordance with
94     Subsection (3);
95          (b) giving the confiscated or unclaimed firearm to the state-approved dealer to sell or
96     destroy in accordance with Subsection (4) and the agreement between the state-approved dealer
97     and the department; or
98          (c) after the agency obtains approval from the legislative body of the agency's
99     jurisdiction, transferring the confiscated or unclaimed firearm to the Bureau of Forensic
100     Services, created in Section 53-10-401, for testing.
101          (3) (a) An agency that elects to dispose of a confiscated or unclaimed firearm under
102     Subsection (2)(a) shall:
103          (i) sell the confiscated or unclaimed firearm to a federally licensed firearms dealer and
104     apply the proceeds from the sale to a public interest use; or
105          (ii) destroy the firearm, if the agency determines that:
106          (A) the condition of a confiscated or unclaimed firearm makes the firearm unfit for
107     sale; or
108          (B) the confiscated or unclaimed firearm is associated with a notorious crime.
109          (b) Before an agency applies the proceeds of a sale of a confiscated or unclaimed
110     firearm to a public interest use, the agency shall obtain from the legislative body of the agency's
111     jurisdiction:
112          (i) permission to apply the proceeds of the sale to a public interest use; and
113          (ii) the designation and approval of the public interest use to which the agency applies
114     the proceeds.
115          (4) (a) (i) The department shall, in accordance with Title 63G, Chapter 6a, Utah
116     Procurement Code, contract with a federally licensed firearms dealer to sell or destroy all
117     confiscated or unclaimed firearms in the state.
118          (ii) The term of an agreement executed in accordance with this Subsection (4) may not
119     exceed five years.
120          (iii) Nothing in this Subsection (4) prevents the department from contracting with the
121     same federally licensed firearms dealer more than once.
122          (b) An agreement executed in accordance with Subsection (4)(a) shall:
123          (i) address the amount of money that the federally licensed firearms dealer is entitled to
124     retain from the sale of each confiscated or unclaimed firearm as compensation for the federally
125     licensed firearms dealer's performance under the agreement;
126          (ii) require the federally licensed firearms dealer to donate, on behalf of the state, all
127     proceeds from the sale of a confiscated or unclaimed firearm, except the amount described in
128     Subsection (4)(b)(i), to an organization that:
129          (A) is exempt from taxation under Section 501(c)(3), Internal Revenue Code;
130          (B) complies with any applicable licensing or registration requirements in the state;
131          (C) primarily helps the families of law enforcement officers in the state who die in the
132     line of duty;
133          (D) gives financial assistance to the families of law enforcement officers in the state
134     who die in the line of duty; and
135          (E) provides other assistance to children of active law enforcement officers, including
136     scholarships;
137          (iii) state that if the federally licensed firearms dealer determines that the condition of a
138     confiscated or unclaimed firearm makes the firearm unfit for sale, the federally licensed
139     firearms dealer shall destroy the firearm; and
140          (iv) provide a procedure by which the department can ensure that the federally licensed
141     firearms dealer complies with the provisions of the agreement and applicable law.
142          Section 3. Section 53-5c-201 is amended to read:
143          53-5c-201. Voluntary commitment of a firearm by owner cohabitant -- Law
144     enforcement to hold firearm.
145          (1) (a) An owner cohabitant may voluntarily commit a firearm to a law enforcement
146     agency for safekeeping if the owner cohabitant believes that another cohabitant is an immediate
147     threat to:
148          (i) himself or herself;
149          (ii) the owner cohabitant; or
150          (iii) any other person.
151          (b) A law enforcement agency may not hold a firearm under this section if the law
152     enforcement agency obtains the firearm in a manner other than the owner cohabitant
153     voluntarily presenting, of [his or her] the owner cohabitant's own free will, the firearm to the
154     law enforcement agency at the agency's office.
155          (2) Unless a firearm is an illegal firearm subject to Section 53-5c-202, a law
156     enforcement agency that receives a firearm in accordance with this chapter shall:
157          (a) record:
158          (i) the owner cohabitant's name, address, and phone number;
159          (ii) the firearm serial number; and
160          (iii) the date that the firearm was voluntarily committed;
161          (b) require the owner cohabitant to sign a document attesting that the owner cohabitant
162     has an ownership interest in the firearm;
163          (c) hold the firearm in safe custody for 60 days after the day on which [it] the firearm is
164     voluntarily committed; and
165          (d) upon proof of identification, return the firearm to:
166          (i) the owner cohabitant after the expiration of the 60-day period or, if the owner
167     cohabitant requests return of the firearm before the expiration of the 60-day period, at the time
168     of the request; or
169          (ii) [to] an owner other than the owner cohabitant in accordance with Section
170     53-5c-202.
171          (3) The law enforcement agency shall hold the firearm for an additional 60 days:
172          (a) if the initial 60-day period expires; and
173          (b) the owner cohabitant requests that the law enforcement agency hold the firearm for
174     an additional 60 days.
175          (4) A law enforcement agency may not request or require that the owner cohabitant
176     provide the name or other information of the cohabitant who poses an immediate threat or any
177     other cohabitant.
178          (5) Notwithstanding an ordinance or policy to the contrary adopted in accordance with
179     Section 63G-2-701, a law enforcement agency shall destroy a record created under Subsection
180     (2), Subsection 53-5c-202(4)(b)(iii), or any other record created in the application of this
181     chapter no later than five days after:
182          (a) returning a firearm in accordance with Subsection (2)(d); or
183          (b) [appropriating, selling, or destroying] disposing of the firearm in accordance with
184     Section 53-5c-202.
185          (6) Unless otherwise provided, the provisions of Title 77, Chapter 24a, Lost or Mislaid
186     Personal Property, do not apply to a firearm received by a law enforcement agency in
187     accordance with this chapter.
188          (7) A law enforcement agency shall adopt a policy for the safekeeping of a firearm held
189     in accordance with this chapter.
190          Section 4. Section 53-5c-202 is amended to read:
191          53-5c-202. Illegal firearms confiscated -- Disposition of unclaimed firearm.
192          (1) If a law enforcement agency receives a firearm in accordance with Section
193     53-5c-201, and the firearm is an illegal firearm, the law enforcement agency shall:
194          (a) notify the owner cohabitant attempting to voluntarily commit the firearm that the
195     firearm is an illegal firearm; and
196          (b) confiscate the firearm and dispose of [it as the head of the law enforcement agency
197     determines] the firearm in accordance with Section 24-3-103.5 .
198          (2) (a) If a law enforcement agency cannot, after a reasonable attempt, locate an owner
199     cohabitant to return a firearm in accordance with Section 53-5c-201, the law enforcement
200     agency [may:] shall dispose of the firearm in accordance with Section 24-3-103.5.
201          [(i) appropriate the firearm to public interest use as provided in Subsection (3);]
202          [(ii) sell the firearm at public auction as provided by law and appropriate the proceeds
203     of the sale to public interest use; or]
204          [(iii) destroy the firearm if unfit for sale.]
205          (b) A law enforcement agency [may take an action in accordance with] may not
206     dispose of a firearm under Subsection (2)(a) [no earlier than] before one year after the day on
207     which the owner cohabitant initially voluntarily commits the firearm in accordance with
208     Section 53-5c-201.
209          [(3) Before appropriating the firearm to public interest use, the law enforcement
210     agency, having possession of the firearm, shall obtain from the legislative body of its
211     jurisdiction:]
212          [(a) permission to appropriate the firearm to public interest use; and]
213          [(b) the designation and approval of the public interest use of the firearm.]
214          [(4)] (3) (a) If a person other than an owner cohabitant who voluntarily commits a
215     firearm in accordance with Section 53-5c-201 claims ownership of the firearm, the person may:
216          (i) request that the law enforcement agency return the firearm in accordance with
217     Subsection [(4)] (3)(b); or
218          (ii) petition the court for the firearm's return in accordance with Subsection [(4)] (3)(c).
219          (b) Except as provided in Section 53-5c-201, the law enforcement agency shall return a
220     firearm to a person other than an owner cohabitant who claims ownership of the firearm if:
221          (i) the 60-day period described in Section 53-5c-201 has expired;
222          (ii) the person provides identification; and
223          (iii) the person signs a document attesting that the person has an ownership interest in
224     the firearm.
225          (c) After sufficient notice is given to the prosecutor, the court may order that the
226     firearm be:
227          (i) returned to the rightful owner as determined by the court; or
228          [(ii) converted to public interest use; or]
229          [(iii) destroyed.]
230          (ii) disposed of in accordance with Section 24-3-103.5.
231          (d) A law enforcement agency shall return a firearm ordered returned to the rightful
232     owner as expeditiously as possible after a court determination.
233          Section 5. Effective date.
234          This bill takes effect on January 1, 2018.