This document includes House Floor Amendments incorporated into the bill on Fri, Feb 28, 2020 at 5:28 PM by naomigarrow.
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7 LONG TITLE
8 General Description:
9 This bill clarifies that the Legislature has preempted the field of firearm regulation for
10 the state.
11 Highlighted Provisions:
12 This bill:
13 ▸ creates the Firearms Preemption Enforcement Act;
14 ▸ clarifies preemption of the field of firearms regulation;
15 ▸ defines terms;
16 ▸ outlines violations of legislative preemption;
17 ▸ provides for civil action for a violation of legislative preemption;
18 ▸ outlines remedies for violating legislative preemption;
19 ▸ addresses governmental immunity; and
20 ▸ makes technical changes.
21 Money Appropriated in this Bill:
22 None
23 Other Special Clauses:
24 None
25 Utah Code Sections Affected:
26 AMENDS:
27 47-3-303, as enacted by Laws of Utah 2013, Chapter 155
28 53-5a-102, as last amended by Laws of Utah 2013, Chapter 278
29 63G-7-301, as last amended by Laws of Utah 2019, Chapters 229 and 248
30 76-10-500, as enacted by Laws of Utah 1999, Chapter 5
31 76-10-501, as last amended by Laws of Utah 2015, Chapters 212 and 406
32 ENACTS:
32a Ĥ→ 53-5a-103.5, Utah Code Annotated 1953 ←Ĥ
33 78B-6-2201, Utah Code Annotated 1953
34 78B-6-2202, Utah Code Annotated 1953
35 78B-6-2203, Utah Code Annotated 1953
36 78B-6-2204, Utah Code Annotated 1953
37
38 Be it enacted by the Legislature of the state of Utah:
39 Section 1. Section 47-3-303 is amended to read:
40 47-3-303. Rulemaking.
41 (1) The State Armory Board, any state agency, or institution of higher education that
42 operates or has control of a shooting range shall make rules in accordance with Title 63G,
43 Chapter 3, Utah Administrative Rulemaking Act, to implement procedures for use of the range
44 by the public.
45 (2) The rules shall include provisions requiring indoor shooting ranges to be available
46 on a reservation basis, for firearms not exceeding the range design criteria:
47 (a) at least twice per week;
48 (b) after 4 p.m. on work or school days, or after students and faculty are excused or
49 dismissed on the work or school day; and
50 (c) between 8 a.m. and 10 p.m. on weekends.
51 (3) A political subdivision may enact an ordinance, rule, or resolution regarding the
52 use of public shooting ranges, facilities, and targets, to include limits on the use of firearms and
53 ammunition within the range design criteria.
54 Section 2. Section 53-5a-102 is amended to read:
55 53-5a-102. Uniform firearm laws.
56 (1) In addition to the definitions in Section 76-10-501, "local authority" and "state
57 agency" mean the same as those terms are defined in Section 78B-6-2202.
58 (2) The individual right to keep and bear arms being a constitutionally protected right
59 under Article I, Section 6 of the Utah Constitution and the Second Amendment to the United
60 States Constitution, the Legislature finds the need to provide uniform civil and criminal firearm
61 laws throughout the state, and declares that the Legislature occupies the whole field of state
62 regulation of firearms and ammunition.
63 [
64 may not:
65 (a) prohibit an individual from owning, possessing, purchasing, selling, transferring,
66 transporting, or keeping a firearm at the individual's place of residence, property, business, or
67 in any vehicle lawfully in the individual's possession or lawfully under the individual's control;
68 or
69 (b) require an individual to have a permit or license to purchase, own, possess,
70 transport, or keep a firearm, ammunition, or firearm accessory.
71 [
72 uniformly applicable throughout this state and in all [
73
74 [
75 where the Legislature specifically delegates responsibility to a local [
76 state [
77 [
78 or state [
79 or state agency, may not enact, establish, or enforce any ordinance, regulation, rule, or policy
80 pertaining to firearms that in any way inhibits or restricts the possession, transfer, or use of
81 firearms on either public or private property.
82 [
83 [
84 [
85
86 (7) Nothing in this section restricts or expands private property rights.
87 Section 3. Section 63G-7-301 is amended to read:
87a Ĥ→ 53-5a-103.5. Homeless Shelters.
87b (1) As used in this section, "homeless shelter" means a facility that provides temporary
87c shelter to homeless individuals and has the capacity to provide temporary shelter to at least 20
87d individuals per night.
87e (2) A local government entity may prohibit the possession of firearms within a
87f homeless shelter over which it exercises authority. ←Ĥ
88 63G-7-301. Waivers of immunity.
89 (1) (a) Immunity from suit of each governmental entity is waived as to any contractual
90 obligation.
91 (b) Actions arising out of contractual rights or obligations are not subject to the
92 requirements of Sections 63G-7-401, 63G-7-402, 63G-7-403, or 63G-7-601.
93 (c) The Division of Water Resources is not liable for failure to deliver water from a
94 reservoir or associated facility authorized by Title 73, Chapter 26, Bear River Development
95 Act, if the failure to deliver the contractual amount of water is due to drought, other natural
96 condition, or safety condition that causes a deficiency in the amount of available water.
97 (2) Immunity from suit of each governmental entity is waived:
98 (a) as to any action brought to recover, obtain possession of, or quiet title to real or
99 personal property;
100 (b) as to any action brought to foreclose mortgages or other liens on real or personal
101 property, to determine any adverse claim on real or personal property, or to obtain an
102 adjudication about any mortgage or other lien that the governmental entity may have or claim
103 on real or personal property;
104 (c) as to any action based on the negligent destruction, damage, or loss of goods,
105 merchandise, or other property while it is in the possession of any governmental entity or
106 employee, if the property was seized for the purpose of forfeiture under any provision of state
107 law;
108 (d) subject to Subsection 63G-7-302(1), as to any action brought under the authority of
109 Utah Constitution, Article I, Section 22, for the recovery of compensation from the
110 governmental entity when the governmental entity has taken or damaged private property for
111 public uses without just compensation;
112 (e) subject to Subsection 63G-7-302(2), as to any action brought to recover attorney
113 fees under Sections 63G-2-405 and 63G-2-802;
114 (f) for actual damages under Title 67, Chapter 21, Utah Protection of Public Employees
115 Act;
116 (g) as to any action brought to obtain relief from a land use regulation that imposes a
117 substantial burden on the free exercise of religion under Title 63L, Chapter 5, Utah Religious
118 Land Use Act;
119 (h) except as provided in Subsection 63G-7-201(3), as to any injury caused by:
120 (i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,
121 crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
122 (ii) any defective or dangerous condition of a public building, structure, dam, reservoir,
123 or other public improvement;
124 (i) subject to Subsections 63G-7-101(4) and 63G-7-201(4), as to any injury
125 proximately caused by a negligent act or omission of an employee committed within the scope
126 of employment;
127 (j) as to any action or suit brought under Section 20A-19-301 and as to any
128 compensation or expenses awarded under Section 20A-19-301(5); and
129 (k) notwithstanding Subsection 63G-7-101(4), as to a claim for an injury resulting from
130 a sexual battery, as provided in Section 76-9-702.1, committed:
131 (i) against a student of a public elementary or secondary school, including a charter
132 school; and
133 (ii) by an employee of a public elementary or secondary school or charter school who:
134 (A) at the time of the sexual battery, held a position of special trust, as defined in
135 Section 76-5-404.1, with respect to the student;
136 (B) is criminally charged in connection with the sexual battery; and
137 (C) the public elementary or secondary school or charter school knew or in the exercise
138 of reasonable care should have known, at the time of the employee's hiring, to be a sex
139 offender, as defined in Section 77-41-102, required to register under Title 77, Chapter 41, Sex
140 and Kidnap Offender Registry, whose status as a sex offender would have been revealed in a
141 background check under Section 53G-11-402.
142 (3) (a) As used in this Subsection (3):
143 (i) "Appropriate behavior policy" means a policy that:
144 (A) is not less stringent than a model policy, created by the State Board of Education,
145 establishing a professional standard of care for preventing the conduct described in Subsection
146 (3)(a)(i)(D);
147 (B) is adopted by the applicable local education governing body;
148 (C) regulates behavior of a school employee toward a student; and
149 (D) includes a prohibition against any sexual conduct between an employee and a
150 student and against the employee and student sharing any sexually explicit or lewd
151 communication, image, or photograph.
152 (ii) "Local education agency" means:
153 (A) a school district;
154 (B) a charter school; or
155 (C) the Utah Schools for the Deaf and the Blind.
156 (iii) "Local education governing board" means:
157 (A) for a school district, the local school board;
158 (B) for a charter school, the charter school governing board; or
159 (C) for the Utah Schools for the Deaf and the Blind, the state board.
160 (iv) "Public school" means a public elementary or secondary school.
161 (v) "Sexual abuse" means the offense described in Subsection 76-5-404.1(2).
162 (vi) "Sexual battery" means the offense described in Section 76-9-702.1, considering
163 the term "child" in that section to include an individual under age 18.
164 (b) Notwithstanding Subsection 63G-7-101(4), immunity from suit is waived as to a
165 claim against a local education agency for an injury resulting from a sexual battery or sexual
166 abuse committed against a student of a public school by a paid employee of the public school
167 who is criminally charged in connection with the sexual battery or sexual abuse, unless:
168 (i) at the time of the sexual battery or sexual abuse, the public school was subject to an
169 appropriate behavior policy; and
170 (ii) before the sexual battery or sexual abuse occurred, the public school had:
171 (A) provided training on the policy to the employee; and
172 (B) required the employee to sign a statement acknowledging that the employee has
173 read and understands the policy.
174 (4) (a) As used in this Subsection (4):
175 (i) "Higher education institution" means an institution included within the state system
176 of higher education under Section 53B-1-102.
177 (ii) "Policy governing behavior" means a policy adopted by a higher education
178 institution or the State Board of Regents that:
179 (A) establishes a professional standard of care for preventing the conduct described in
180 Subsections (4)(a)(ii)(C) and (D);
181 (B) regulates behavior of a special trust employee toward a subordinate student;
182 (C) includes a prohibition against any sexual conduct between a special trust employee
183 and a subordinate student; and
184 (D) includes a prohibition against a special trust employee and subordinate student
185 sharing any sexually explicit or lewd communication, image, or photograph.
186 (iii) "Sexual battery" means the offense described in Section 76-9-702.1.
187 (iv) "Special trust employee" means an employee of a higher education institution who
188 is in a position of special trust, as defined in Section 76-5-404.1, with a higher education
189 student.
190 (v) "Subordinate student" means a student:
191 (A) of a higher education institution; and
192 (B) whose educational opportunities could be adversely impacted by a special trust
193 employee.
194 (b) Notwithstanding Subsection 63G-7-101(4), immunity from suit is waived as to a
195 claim for an injury resulting from a sexual battery committed against a subordinate student by a
196 special trust employee, unless:
197 (i) the institution proves that the special trust employee's behavior that otherwise would
198 constitute a sexual battery was:
199 (A) with a subordinate student who was at least 18 years old at the time of the
200 behavior; and
201 (B) with the student's consent; or
202 (ii) (A) at the time of the sexual battery, the higher education institution was subject to
203 a policy governing behavior; and
204 (B) before the sexual battery occurred, the higher education institution had taken steps
205 to implement and enforce the policy governing behavior.
206 (5) Immunity from suit of each governmental entity and its employees or agents is
207 waived with respect to the provisions of Title 78B, Chapter 6, Part 22, Firearms Preemption
208 Enforcement Act.
209 Section 4. Section 76-10-500 is amended to read:
210 76-10-500. Uniform law.
211 (1) The individual right to keep and bear arms being a constitutionally protected right
212 under Article I, Section 6 of the Utah Constitution and the Second Amendment to the United
213 States Constitution, the Legislature finds the need to provide uniform civil and criminal laws
214 throughout the state, and declares that the Legislature occupies the whole field of state
215 regulation of firearms and ammunition.
216 (2) Except as specifically provided by state law, [
217
218 (a) [
219 transferring, transporting, or keeping any firearm [
220 the individual's place of residence, property, business, or in any vehicle lawfully in [
221 individual's possession or lawfully under [
222 (b) [
223 possess, transport, or keep a firearm, ammunition, or firearm accessory.
224 [
225 political subdivisions [
226 (4) [
227 except where the Legislature specifically delegates responsibility to a local [
228 authority or state [
229 (5) Unless specifically authorized by the Legislature by statute, a local authority or
230 state [
231 pertaining to firearms that in any way inhibits or restricts the possession or use of firearms,
232 ammunition, or a firearm accessory on either public or private property.
233 (6) Nothing in this part restricts or expands private property rights.
234 Section 5. Section 76-10-501 is amended to read:
235 76-10-501. Definitions.
236 As used in this part:
237 (1) (a) "Antique firearm" means:
238 (i) any firearm, including any firearm with a matchlock, flintlock, percussion cap, or
239 similar type of ignition system, manufactured in or before 1898; or
240 (ii) a firearm that is a replica of any firearm described in this Subsection (1)(a), if the
241 replica:
242 (A) is not designed or redesigned for using rimfire or conventional centerfire fixed
243 ammunition; or
244 (B) uses rimfire or centerfire fixed ammunition which is:
245 (I) no longer manufactured in the United States; and
246 (II) is not readily available in ordinary channels of commercial trade; or
247 (iii) (A) that is a muzzle loading rifle, shotgun, or pistol; and
248 (B) is designed to use black powder, or a black powder substitute, and cannot use fixed
249 ammunition.
250 (b) "Antique firearm" does not include:
251 (i) a weapon that incorporates a firearm frame or receiver;
252 (ii) a firearm that is converted into a muzzle loading weapon; or
253 (iii) a muzzle loading weapon that can be readily converted to fire fixed ammunition by
254 replacing the:
255 (A) barrel;
256 (B) bolt;
257 (C) breechblock; or
258 (D) any combination of Subsection (1)(b)(iii)(A), (B), or (C).
259 (2) "Bureau" means the Bureau of Criminal Identification created in Section 53-10-201
260 within the Department of Public Safety.
261 (3) (a) "Concealed firearm" means a firearm that is:
262 (i) covered, hidden, or secreted in a manner that the public would not be aware of its
263 presence; and
264 (ii) readily accessible for immediate use.
265 (b) A firearm that is unloaded and securely encased is not a concealed firearm for the
266 purposes of this part.
267 (4) "Criminal history background check" means a criminal background check
268 conducted by a licensed firearms dealer on every purchaser of a handgun, except a Federal
269 Firearms Licensee, through the bureau or the local law enforcement agency where the firearms
270 dealer conducts business.
271 (5) "Curio or relic firearm" means a firearm that:
272 (a) is of special interest to a collector because of a quality that is not associated with
273 firearms intended for:
274 (i) sporting use;
275 (ii) use as an offensive weapon; or
276 (iii) use as a defensive weapon;
277 (b) (i) was manufactured at least 50 years before the current date; and
278 (ii) is not a replica of a firearm described in Subsection (5)(b)(i);
279 (c) is certified by the curator of a municipal, state, or federal museum that exhibits
280 firearms to be a curio or relic of museum interest;
281 (d) derives a substantial part of its monetary value:
282 (i) from the fact that the firearm is:
283 (A) novel;
284 (B) rare; or
285 (C) bizarre; or
286 (ii) because of the firearm's association with an historical:
287 (A) figure;
288 (B) period; or
289 (C) event; and
290 (e) has been designated as a curio or relic firearm by the director of the United States
291 Treasury Department Bureau of Alcohol, Tobacco, and Firearms under 27 C.F.R. Sec. 478.11.
292 (6) (a) "Dangerous weapon" means:
293 (i) a firearm; or
294 (ii) an object that in the manner of its use or intended use is capable of causing death or
295 serious bodily injury.
296 (b) The following factors are used in determining whether any object, other than a
297 firearm, is a dangerous weapon:
298 (i) the location and circumstances in which the object was used or possessed;
299 (ii) the primary purpose for which the object was made;
300 (iii) the character of the wound, if any, produced by the object's unlawful use;
301 (iv) the manner in which the object was unlawfully used;
302 (v) whether the manner in which the object is used or possessed constitutes a potential
303 imminent threat to public safety; and
304 (vi) the lawful purposes for which the object may be used.
305 (c) "Dangerous weapon" does not include an explosive, chemical, or incendiary device
306 as defined by Section 76-10-306.
307 (7) "Dealer" means a person who is:
308 (a) licensed under 18 U.S.C. Sec. 923; and
309 (b) engaged in the business of selling, leasing, or otherwise transferring a handgun,
310 whether the person is a retail or wholesale dealer, pawnbroker, or otherwise.
311 (8) "Enter" means intrusion of the entire body.
312 (9) "Federal Firearms Licensee" means a person who:
313 (a) holds a valid Federal Firearms License issued under 18 U.S.C. Sec. 923; and
314 (b) is engaged in the activities authorized by the specific category of license held.
315 (10) (a) "Firearm" means a pistol, revolver, shotgun, short barreled shotgun, rifle or
316 short barreled rifle, or a device that could be used as a dangerous weapon from which is
317 expelled a projectile by action of an explosive.
318 (b) As used in Sections 76-10-526 and 76-10-527, "firearm" does not include an
319 antique firearm.
320 (11) "Firearms transaction record form" means a form created by the bureau to be
321 completed by a person purchasing, selling, or transferring a handgun from a dealer in the state.
322 (12) "Fully automatic weapon" means a firearm which fires, is designed to fire, or can
323 be readily restored to fire, automatically more than one shot without manual reloading by a
324 single function of the trigger.
325 (13) (a) "Handgun" means a pistol, revolver, or other firearm of any description, loaded
326 or unloaded, from which a shot, bullet, or other missile can be discharged, the length of which,
327 not including any revolving, detachable, or magazine breech, does not exceed 12 inches.
328 (b) As used in Sections 76-10-520, 76-10-521, and 76-10-522, "handgun" and "pistol
329 or revolver" do not include an antique firearm.
330 (14) "House of worship" means a church, temple, synagogue, mosque, or other
331 building set apart primarily for the purpose of worship in which religious services are held and
332 the main body of which is kept for that use and not put to any other use inconsistent with its
333 primary purpose.
334 (15) "Local authority" means the same as that term is defined in Section 78B-6-2202.
335 [
336 [
337 dangerous weapon is carried on the person or within such close proximity and in such a manner
338 that it can be retrieved and used as readily as if carried on the person.
339 [
340 primary or secondary residence.
341 [
342 held in a gun rack, or in a closed case or container, whether or not locked, or in a trunk or other
343 storage area of a motor vehicle, not including a glove box or console box.
344 [
345 barrel or barrels of fewer than 18 inches in length, or in the case of a rifle, having a barrel or
346 barrels of fewer than 16 inches in length, or a dangerous weapon made from a rifle or shotgun
347 by alteration, modification, or otherwise, if the weapon as modified has an overall length of
348 fewer than 26 inches.
349 [
350 containing pellets or a single slug.
351 [
352 against the shoulder.
353 [
354 [
355 agency, institution, officer, corporation, fund, division, office, committee, authority, laboratory,
356 library, unit, bureau, panel, or other administrative unit of the state, including the Board of
357 Regents, each institution of higher education, and the boards of trustees of each higher
358 education institution.
359 [
360 76-3-203.5.
361 Section 6. Section 78B-6-2201 is enacted to read:
362
363 78B-6-2201. Firearm Preemption Enforcement Act.
364 This part is known as the "Firearm Preemption Enforcement Act."
365 Section 7. Section 78B-6-2202 is enacted to read:
366 78B-6-2202. Definitions.
367 As used in this part:
368 (1) "Ammunition" means a bullet, a cartridge case, primer, propellant powder, or other
369 ammunition designed for use in any firearm, either as an individual component part or in a
370 completely assembled cartridge.
371 (2) "Firearm" means the same as that term is defined in Section 76-10-501.
372 (3) "Firearm accessory" means an item that is legal to use in conjunction with or
373 mounted upon a firearm, firearm action, or firearm receiver, but is not essential to the basic
374 function of a firearm.
375 (4) "Legislative preemption" means the preemption provided for in Sections 53-5a-102
376 and 76-10-500.
377 (5) "Local authority" means a county, city, town, metro township, local district, local
378 education agency, public school, special service district under Title 17D, Chapter 1, Special
379 Service District Act, an entity created by interlocal cooperation agreement under Title 11,
380 Chapter 13, Interlocal Cooperation Act, or any other governmental entity designated in statute
381 as a political subdivision of the state.
382 (6) "Local education agency" means a school district or charter school.
383 (7) "State agency" means the same as that term is defined in Section 76-10-501.
384 Section 8. Section 78B-6-2203 is enacted to read:
385 78B-6-2203. Violation of legislative preemption -- Exceptions.
386 (1) A local authority or state agency that enacts or enforces an ordinance, regulation,
387 measure, directive, rule, enactment, order, or policy that violates legislative preemption is
388 liable as provided in this part.
389 (2) An ordinance, regulation, measure, directive, rule, enactment, order, or policy that
390 violates legislative preemption is void.
391 (3) This part does not prohibit:
392 (a) a law enforcement agency from enacting and enforcing regulations pertaining to
393 firearms, ammunition, or firearm accessories issued to or used by a peace officer in the course
394 of the peace officer's official duties;
395 (b) a court or administrative law judge from hearing and resolving any case or
396 controversy or issuing any opinion or order on a matter consistent with state law within the
397 jurisdiction of that court or administrative law judge;
398 (c) a rule of a correctional facility or mental or behavioral health facility under Section
399 76-8-311.3; or
400 (d) a local authority or state agency from enacting or enforcing an ordinance,
401 regulation, measure, directive, rule, enactment, order, or policy, developed in response to and
402 in accordance with legislative authority.
403 Section 9. Section 78B-6-2204 is enacted to read:
404 78B-6-2204. Civil action -- Injunction.
405 (1) An individual who is harmed by a local authority or state agency that makes or
406 causes to be enforced an ordinance, regulation, measure, directive, rule, enactment, order, or
407 policy in violation of legislative preemption may:
408 (a) request that the local authority rescind or repeal the ordinance, regulation, measure,
409 directive, rule, enactment, order, or policy; or
410 (b) if the local authority declines to rescind or repeal the ordinance, regulation,
411 measure, directive, rule, enactment, order, or policy, file suit against the local authority or state
412 agency in any court of this state having jurisdiction over the local authority or state agency.
413 (2) If the court determines that a local authority or state agency violated legislative
414 preemption, the court shall:
415 (a) order that the relevant ordinance, regulation, measure, directive, rule, enactment,
416 order, or policy is void;
417 (b) issue a permanent injunction against the local authority or state agency prohibiting
418 the local authority or state agency from enforcing the void ordinance, regulation, measure,
419 directive, rule, enactment, order, or policy; and
420 (c) award to the prevailing party:
421 (i) actual damages, which includes the cost of time in bringing the civil action, or
422 defending against the action;
423 (ii) reasonable attorney fees and costs in accordance with the laws of this state; and
424 (iii) interest on the sums awarded pursuant to this Subsection (2) accrued at the legal
425 rate from the date on which the suit is filed.
426 (3) In accordance with Subsection 63G-7-301(5), a state agency or local authority that
427 violates this part is not immune from suit or liability for the violation Ĥ→ . [
427a
428 in an official capacity for a state agency or local authority who knowingly or willfully violates
429 this part is not immune from suit or liability for the violation.