This document includes House Floor Amendments incorporated into the bill on Thu, Feb 17, 2022 at 2:50 PM by pflowers.
Representative A. Cory Maloy proposes the following substitute bill:


1     
FIREARM PREEMPTION AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Chris H. Wilson

5     
House Sponsor: A. Cory Maloy

6     

7     LONG TITLE
8     General Description:
9          This bill addresses the Legislature's preemption of the field of firearm regulation for the
10     state.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms;
14          ▸     clarifies preemption of the field of firearms regulation;
15          ▸     creates the Firearms Preemption Enforcement Act;
16          ▸     outlines exceptions and violations of legislative firearm preemption;
17          ▸     provides for civil action and remedies for a violation of legislative firearm
18     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          53-5a-102, as last amended by Laws of Utah 2013, Chapter 278
28          63G-7-301, as last amended by Laws of Utah 2020, Chapters 288, 338, and 365
29          76-10-500, as enacted by Laws of Utah 1999, Chapter 5
30     ENACTS:
31          53-5a-103.5, Utah Code Annotated 1953
32          78B-6-2301, Utah Code Annotated 1953
33          78B-6-2302, Utah Code Annotated 1953
34          78B-6-2303, Utah Code Annotated 1953
35     

36     Be it enacted by the Legislature of the state of Utah:
37          Section 1. Section 53-5a-102 is amended to read:
38          53-5a-102. Uniform firearm laws.
39          (1) As used in this section:
40          (a) "Ammunition" means the same as that term is defined in Section 53-5d-102.
41          (b) "Dangerous weapon" means the same as that term is defined in Section 76-10-501.
42          (c) "Firearm" means:
43          (i) a pistol, revolver, shotgun, short barreled shotgun, rifle or short barreled rifle, or a
44     device that could be used as a dangerous weapon from which is expelled a projectile by action
45     of an explosive;
46          (ii) ammunition; and
47          (iii) a firearm accessory.
48          (d) "Firearm accessory" means the same as that term is defined in Section 53-5b-103.
49          (e) "Local or state governmental entity" means the same as that term is defined in
50     Section 78B-6-2301.
51          (f) "Short barreled shotgun" or "short barreled rifle" means the same as that term is
52     defined in Section 76-10-501.
53          (g) "Shotgun" means the same as that term is defined in Section 76-10-501.
54          [(1)] (2) The individual right to keep and bear arms being a constitutionally protected
55     right under Article I, Section 6 of the Utah Constitution and the Second Amendment to the
56     United States Constitution, the Legislature finds the need to provide uniform civil and criminal
57     firearm laws throughout the state and declares that the Legislature occupies the whole field of
58     state regulation of firearms.
59          [(2)] (3) Except as specifically provided by state law, a local [authority] or state
60     governmental entity may not:
61          (a) prohibit an individual from owning, possessing, purchasing, selling, transferring,
62     transporting, or keeping a firearm at the individual's place of residence, property, business, or
63     in any vehicle lawfully in the individual's possession or lawfully under the individual's control;
64     or
65          (b) require an individual to have a permit or license to purchase, own, possess,
66     transport, or keep a firearm.
67          [(3)] (4) In conjunction with Title 76, Chapter 10, Part 5, Weapons, this section is
68     uniformly applicable throughout this state and in all [its] the state's political subdivisions [and
69     municipalities].
70          [(4) All authority] (5) Authority to regulate firearms is reserved to the state except
71     where the Legislature specifically delegates responsibility to local [authorities] or state
72     governmental entities.
73          [(5)] (6) Unless specifically authorized by the Legislature by statute, a local [authority
74     or state entity] or state governmental entity may not enact, establish, or enforce any ordinance,
75     regulation, rule, or policy pertaining to firearms that in any way inhibits or restricts the
76     possession, ownership, purchase, sale, transfer, transport, or use of firearms on either public or
77     private property.
78          [(6) As used in this section:]
79          [(a) "firearm" has the same meaning as defined in Section 76-10-501; and]
80          [(b) "local authority or state entity" includes public school districts, public schools, and
81     state institutions of higher education.]
82          [(7) Nothing in this section restricts or expands]
83          (7) This section does not restrict or expand private property rights.
84          (8) A violation of this section is subject to Title 78B, Chapter 6, Part 23, Firearm
85     Preemption Enforcement Act.
86          Section 2. Section 53-5a-103.5 is enacted to read:
87          53-5a-103.5. Firearm regulation in homeless shelters.
88          (1) As used in this section:
89          (a) (i) "Homeless shelter" means a permanent or temporary facility operated
89a     Ĥ→ or owned ←Ĥ by a local
90     or state governmental entity that provides temporary shelter to homeless individuals and has
91     the capacity to provide temporary shelter to at least Ĥ→ [20] 10 ←Ĥ individuals per night.
92          (ii) "Homeless shelter" does not include a permanent or temporary facility operated by
93     a local or state governmental entity that provides temporary shelter to individuals displaced due
94     to a disaster or under a state of emergency.
95          (b) "Local or state governmental entity" means the same as that term is defined in
96     Section 78B-6-2301.
97          (2) (a) Except as provided in Subsection (2)(b) and subject to Subsection (3), a local or
98     state governmental entity may prohibit the possession of a firearm within a homeless shelter
99     over which the local or state government entity exercises authority.
100          (b) A local or state governmental entity may not prohibit the possession of a firearm on
101     the grounds outside of a homeless shelter.
102          (3) If a local or state governmental entity prohibits the possession of a firearm under
103     Subsection (2), the local or state governmental entity shall:
104          (a) display readily visible signage at all public entrances of the homeless shelter
105     indicating that firearms are not permitted inside the homeless shelter;
106          (b) (i) provide a means of detecting a firearm at all public entrances to the homeless
107     shelter; and
108          (ii) ensure an individual is physically present at a public entrance to the homeless
109     shelter when the public entrance to the homeless shelter is in use;
110          (c) provide secure storage for a firearm while an individual is inside the homeless
111     shelter; and
112          (d) prohibit the collection of information about a firearm that is stored at the homeless
113     shelter, including taking a photograph of the firearm or recording the serial number of the
114     firearm.
115          (4) A stored firearm in a homeless shelter that is abandoned for more than seven days
116     by the owner of the firearm may be relinquished by the homeless shelter to a law enforcement
117     agency for disposal.
118          Section 3. Section 63G-7-301 is amended to read:
119          63G-7-301. Waivers of immunity.
120          (1) (a) Immunity from suit of each governmental entity is waived as to any contractual
121     obligation.
122          (b) Actions arising out of contractual rights or obligations are not subject to the
123     requirements of Section 63G-7-401, 63G-7-402, 63G-7-403, or 63G-7-601.
124          (c) The Division of Water Resources is not liable for failure to deliver water from a
125     reservoir or associated facility authorized by Title 73, Chapter 26, Bear River Development
126     Act, if the failure to deliver the contractual amount of water is due to drought, other natural
127     condition, or safety condition that causes a deficiency in the amount of available water.
128          (2) Immunity from suit of each governmental entity is waived:
129          (a) as to any action brought to recover, obtain possession of, or quiet title to real or
130     personal property;
131          (b) as to any action brought to foreclose mortgages or other liens on real or personal
132     property, to determine any adverse claim on real or personal property, or to obtain an
133     adjudication about any mortgage or other lien that the governmental entity may have or claim
134     on real or personal property;
135          (c) as to any action based on the negligent destruction, damage, or loss of goods,
136     merchandise, or other property while it is in the possession of any governmental entity or
137     employee, if the property was seized for the purpose of forfeiture under any provision of state
138     law;
139          (d) subject to Subsection 63G-7-302(1), as to any action brought under the authority of
140     Utah Constitution, Article I, Section 22, for the recovery of compensation from the
141     governmental entity when the governmental entity has taken or damaged private property for
142     public uses without just compensation;
143          (e) subject to Subsection 63G-7-302(2), as to any action brought to recover attorney
144     fees under Sections 63G-2-405 and 63G-2-802;
145          (f) for actual damages under Title 67, Chapter 21, Utah Protection of Public Employees
146     Act;
147          (g) as to any action brought to obtain relief from a land use regulation that imposes a
148     substantial burden on the free exercise of religion under Title 63L, Chapter 5, Utah Religious
149     Land Use Act;
150          (h) except as provided in Subsection 63G-7-201(3), as to any injury caused by:
151          (i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,
152     crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
153          (ii) any defective or dangerous condition of a public building, structure, dam, reservoir,
154     or other public improvement;
155          (i) subject to Subsections 63G-7-101(4) and 63G-7-201(4), as to any injury
156     proximately caused by a negligent act or omission of an employee committed within the scope
157     of employment; [and]
158          (j) notwithstanding Subsection 63G-7-101(4), as to a claim for an injury resulting from
159     a sexual battery, as provided in Section 76-9-702.1, committed:
160          (i) against a student of a public elementary or secondary school, including a charter
161     school; and
162          (ii) by an employee of a public elementary or secondary school or charter school who:
163          (A) at the time of the sexual battery, held a position of special trust, as defined in
164     Section 76-5-404.1, with respect to the student;
165          (B) is criminally charged in connection with the sexual battery; and
166          (C) the public elementary or secondary school or charter school knew or in the exercise
167     of reasonable care should have known, at the time of the employee's hiring, to be a sex
168     offender, as defined in Section 77-41-102, required to register under Title 77, Chapter 41, Sex
169     and Kidnap Offender Registry, whose status as a sex offender would have been revealed in a
170     background check under Section 53G-11-402[.]; and
171          (k) as to any action brought under Section 78B-6-2303.
172          (3) (a) As used in this Subsection (3):
173          (i) "Code of conduct" means a code of conduct that:
174          (A) is not less stringent than a model code of conduct, created by the State Board of
175     Education, establishing a professional standard of care for preventing the conduct described in
176     Subsection (3)(a)(i)(D);
177          (B) is adopted by the applicable local education governing body;
178          (C) regulates behavior of a school employee toward a student; and
179          (D) includes a prohibition against any sexual conduct between an employee and a
180     student and against the employee and student sharing any sexually explicit or lewd
181     communication, image, or photograph.
182          (ii) "Local education agency" means:
183          (A) a school district;
184          (B) a charter school; or
185          (C) the Utah Schools for the Deaf and the Blind.
186          (iii) "Local education governing board" means:
187          (A) for a school district, the local school board;
188          (B) for a charter school, the charter school governing board; or
189          (C) for the Utah Schools for the Deaf and the Blind, the state board.
190          (iv) "Public school" means a public elementary or secondary school.
191          (v) "Sexual abuse" means the offense described in Subsection 76-5-404.1(2).
192          (vi) "Sexual battery" means the offense described in Section 76-9-702.1, considering
193     the term "child" in that section to include an individual under age 18.
194          (b) Notwithstanding Subsection 63G-7-101(4), immunity from suit is waived as to a
195     claim against a local education agency for an injury resulting from a sexual battery or sexual
196     abuse committed against a student of a public school by a paid employee of the public school
197     who is criminally charged in connection with the sexual battery or sexual abuse, unless:
198          (i) at the time of the sexual battery or sexual abuse, the public school was subject to a
199     code of conduct; and
200          (ii) before the sexual battery or sexual abuse occurred, the public school had:
201          (A) provided training on the code of conduct to the employee; and
202          (B) required the employee to sign a statement acknowledging that the employee has
203     read and understands the code of conduct.
204          (4) (a) As used in this Subsection (4):
205          (i) "Higher education institution" means an institution included within the state system
206     of higher education under Section 53B-1-102.
207          (ii) "Policy governing behavior" means a policy adopted by a higher education
208     institution or the Utah Board of Higher Education that:
209          (A) establishes a professional standard of care for preventing the conduct described in
210     Subsections (4)(a)(ii)(C) and (D);
211          (B) regulates behavior of a special trust employee toward a subordinate student;
212          (C) includes a prohibition against any sexual conduct between a special trust employee
213     and a subordinate student; and
214          (D) includes a prohibition against a special trust employee and subordinate student
215     sharing any sexually explicit or lewd communication, image, or photograph.
216          (iii) "Sexual battery" means the offense described in Section 76-9-702.1.
217          (iv) "Special trust employee" means an employee of a higher education institution who
218     is in a position of special trust, as defined in Section 76-5-404.1, with a higher education
219     student.
220          (v) "Subordinate student" means a student:
221          (A) of a higher education institution; and
222          (B) whose educational opportunities could be adversely impacted by a special trust
223     employee.
224          (b) Notwithstanding Subsection 63G-7-101(4), immunity from suit is waived as to a
225     claim for an injury resulting from a sexual battery committed against a subordinate student by a
226     special trust employee, unless:
227          (i) the institution proves that the special trust employee's behavior that otherwise would
228     constitute a sexual battery was:
229          (A) with a subordinate student who was at least 18 years old at the time of the
230     behavior; and
231          (B) with the student's consent; or
232          (ii) (A) at the time of the sexual battery, the higher education institution was subject to
233     a policy governing behavior; and
234          (B) before the sexual battery occurred, the higher education institution had taken steps
235     to implement and enforce the policy governing behavior.
236          Section 4. Section 76-10-500 is amended to read:
237          76-10-500. Uniform law.
238          (1) As used in this section:
239          (a) "Directive" means the same as that term is defined in Section 78B-6-2301.
240          (b) "Firearm" means the same as that term is defined in Section 53-5a-102.
241          (c) "Local or state governmental entity" means the same as that term is defined in
242     Section 78B-6-2301.
243          [(1)] (2) The individual right to keep and bear arms being a constitutionally protected
244     right under Article I, Section 6 of the Utah Constitution and the Second Amendment to the
245     United States Constitution, the Legislature finds the need to provide uniform civil and criminal
246     laws throughout the state and declares that the Legislature occupies the whole field of state
247     regulation of firearms.
248          (3) Except as specifically provided by state law, [a citizen of the United States or a
249     lawfully admitted alien shall not be] a local or state governmental entity may not:
250          (a) [prohibited] prohibit an individual from owning, possessing, purchasing, selling,
251     transferring, transporting, or keeping any firearm at [his] the individual's place of residence,
252     property, business, or in any vehicle lawfully in [his] the individual's possession or lawfully
253     under [his] the individual's control; or
254          (b) [required] require an individual to have a permit or license to purchase, own,
255     possess, transport, or keep a firearm.
256          [(2)] (4) This part is uniformly applicable throughout this state and in all [its] the state's
257     political subdivisions [and municipalities. All authority].
258          (5) Authority to regulate firearms [shall be] is reserved to the state except where the
259     Legislature specifically delegates responsibility to local [authorities] or state governmental
260     entities.
261          (6) Unless specifically authorized by the Legislature by statute, a local [authority] or
262     state governmental entity may not enact or enforce [any ordinance, regulation, or rule] a
263     directive pertaining to firearms that in any way inhibits or restricts the possession, ownership,
264     purchase, sale, transfer, transport, or use of firearms on either public or private property.
265          (7) This part does not restrict or expand private property rights.
266          (8) A violation of this section is subject to Title 78B, Chapter 6, Part 23, Firearm
267     Preemption Enforcement Act.
268          Section 5. Section 78B-6-2301 is enacted to read:
269     
Part 23. Firearm Preemption Enforcement Act

270          78B-6-2301. Definitions.
271          As used in this part:
272          (1) "Directive" means an ordinance, regulation, measure, rule, enactment, order, or
273     policy issued, enacted, or required by a local or state governmental entity.
274          (2) "Firearm" means the same as that term is defined in Section 53-5a-102.
275          (3) "Legislative firearm preemption" means the preemption provided for in Sections
276     53-5a-102 and 76-10-500.
277          (4) "Local or state governmental entity" means:
278          (a) a department, commission, board, council, agency, institution, officer, corporation,
279     fund, division, office, committee, authority, laboratory, library, unit, bureau, panel, or other
280     administrative unit of the state, including the Utah Board of Higher Education, each institution
281     of higher education, and the boards of trustees of each higher education institution; or
282          (b) a county, city, town, metro township, local district, local education agency, public
283     school, school district, charter school, special service district under Title 17D, Chapter 1,
284     Special Service District Act, an entity created by interlocal cooperation agreement under Title
285     11, Chapter 13, Interlocal Cooperation Act, or any other governmental entity designated in
286     statute as a political subdivision of the state.
287          Section 6. Section 78B-6-2302 is enacted to read:
288          78B-6-2302. Violation of legislative preemption -- Exceptions.
289          (1) A local or state governmental entity may not enact or enforce a directive that
290     violates legislative firearm preemption.
291          (2) This part does not prohibit the enactment or enforcement of a directive:
292          (a) by a law enforcement agency if the directive pertains to a firearm issued to or used
293     by a peace officer in the course of the peace officer's official duties;
294          (b) by a correctional facility or mental health facility under Section 76-8-311.3;
295          (c) of judicial administration if the directive establishes a secure courthouse;
296          (d) by the State Tax Commission if the directive establishes a secure area within a
297     State Tax Commission facility; or
298          (e) by a local or state governmental entity if the directive is developed in response to
299     and in accordance with legislative authority.
300          Section 7. Section 78B-6-2303 is enacted to read:
301          78B-6-2303. Civil action -- Injunction -- Damages -- Immunity.
302          (1) A person who is harmed by a local or state governmental entity that makes or
303     causes to be enforced a directive in violation of legislative firearm preemption may submit a
304     written communication to the local or state governmental entity that harmed the person asking
305     the local or state governmental entity that harmed the person to rescind or repeal the directive.
306          (2) (a) If a local or state governmental entity fails to rescind or repeal a directive within
307     30 days after the day on which the local or state governmental entity receives a request
308     described in Subsection (1), the person who submitted the request may file suit against the
309     local or state governmental entity that failed to rescind or repeal the directive.
310          (b) The suit described in Subsection (2)(a) may be filed in any court of this state having
311     jurisdiction over the local or state governmental entity that failed to rescind or repeal the
312     directive in accordance with Title 63G, Chapter 7, Governmental Immunity Act of Utah.
313          (3) If the court determines that the local or state governmental entity that failed to
314     rescind or repeal the directive violated legislative firearm preemption, the court shall:
315          (a) order that the relevant directive is void;
316          (b) prohibit the local or state governmental entity that failed to rescind or repeal the
317     void directive from enforcing the void directive; and
318          (c) award to the prevailing party:
319          (i) actual damages, which includes the cost of time in bringing the civil action or
320     defending against the action;
321          (ii) reasonable attorney fees and costs in accordance with the laws of this state; and
322          (iii) interest on the sums awarded under this Subsection (3) accrued at the legal rate
323     from the date on which the suit is filed.