1     
FIREARM POSSESSION REVISIONS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Phil Lyman

5     
Senate Sponsor: Kirk A. Cullimore

6     Cosponsors:
7     Melissa G. Ballard
8     Kera Birkeland
9     Kay J. Christofferson
Tim Jimenez
Jason B. Kyle
Trevor Lee
Rex P. Shipp
Christine F. Watkins

10     

11     LONG TITLE
12     General Description:
13          This bill amends the definition of a restricted person.
14     Highlighted Provisions:
15          This bill:
16          ▸     defines terms;
17          ▸     amends the definition of a restricted person; and
18          ▸     makes technical and conforming changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          76-10-501, as last amended by Laws of Utah 2015, Chapters 212, 406
26          76-10-503, as last amended by Laws of Utah 2021, Chapter 262
27          76-10-532, as last amended by Laws of Utah 2015, Chapter 37
28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 76-10-501 is amended to read:
31          76-10-501. Definitions.
32          As used in this part:
33          (1) (a) "Antique firearm" means:
34          (i) any firearm, including any firearm with a matchlock, flintlock, percussion cap, or
35     similar type of ignition system, manufactured in or before 1898; [or]
36          (ii) a firearm that is a replica of any firearm described in this Subsection (1)(a), if the
37     replica:
38          (A) is not designed or redesigned for using rimfire or conventional centerfire fixed
39     ammunition; or
40          (B) uses rimfire or centerfire fixed ammunition which is:
41          (I) no longer manufactured in the United States; and
42          (II) is not readily available in ordinary channels of commercial trade; or
43          (iii) (A) that is a muzzle loading rifle, shotgun, or pistol; and
44          (B) is designed to use black powder, or a black powder substitute, and cannot use fixed
45     ammunition.
46          (b) "Antique firearm" does not include:
47          (i) a weapon that incorporates a firearm frame or receiver;
48          (ii) a firearm that is converted into a muzzle loading weapon; or
49          (iii) a muzzle loading weapon that can be readily converted to fire fixed ammunition by
50     replacing the:
51          (A) barrel;
52          (B) bolt;
53          (C) breechblock; or
54          (D) any combination of Subsection (1)(b)(iii)(A), (B), or (C).
55          (2) "Bureau" means the Bureau of Criminal Identification created in Section 53-10-201
56     within the Department of Public Safety.
57          (3) (a) "Concealed firearm" means a firearm that is:
58          (i) covered, hidden, or secreted in a manner that the public would not be aware of its
59     presence; and
60          (ii) readily accessible for immediate use.
61          (b) A firearm that is unloaded and securely encased is not a concealed firearm for the
62     purposes of this part.
63          (4) "Criminal history background check" means a criminal background check
64     conducted by a licensed firearms dealer on every purchaser of a handgun, except a Federal
65     Firearms Licensee, through the bureau or the local law enforcement agency where the firearms
66     dealer conducts business.
67          (5) "Curio or relic firearm" means a firearm that:
68          (a) is of special interest to a collector because of a quality that is not associated with
69     firearms intended for:
70          (i) sporting use;
71          (ii) use as an offensive weapon; or
72          (iii) use as a defensive weapon;
73          (b) (i) was manufactured at least 50 years before the current date; and
74          (ii) is not a replica of a firearm described in Subsection (5)(b)(i);
75          (c) is certified by the curator of a municipal, state, or federal museum that exhibits
76     firearms to be a curio or relic of museum interest;
77          (d) derives a substantial part of its monetary value:
78          (i) from the fact that the firearm is:
79          (A) novel;
80          (B) rare; or
81          (C) bizarre; or
82          (ii) because of the firearm's association with an historical:
83          (A) figure;
84          (B) period; or
85          (C) event; and
86          (e) has been designated as a curio or relic firearm by the director of the United States
87     Treasury Department Bureau of Alcohol, Tobacco, and Firearms under 27 C.F.R. Sec. 478.11.
88          (6) (a) "Dangerous weapon" means:
89          (i) a firearm; or
90          (ii) an object that in the manner of its use or intended use is capable of causing death or
91     serious bodily injury.
92          (b) The following factors are used in determining whether any object, other than a
93     firearm, is a dangerous weapon:
94          (i) the location and circumstances in which the object was used or possessed;
95          (ii) the primary purpose for which the object was made;
96          (iii) the character of the wound, if any, produced by the object's unlawful use;
97          (iv) the manner in which the object was unlawfully used;
98          (v) whether the manner in which the object is used or possessed constitutes a potential
99     imminent threat to public safety; and
100          (vi) the lawful purposes for which the object may be used.
101          (c) "Dangerous weapon" does not include an explosive, chemical, or incendiary device
102     as defined by Section 76-10-306.
103          (7) "Dealer" means a person who is:
104          (a) licensed under 18 U.S.C. Sec. 923; and
105          (b) engaged in the business of selling, leasing, or otherwise transferring a handgun,
106     whether the person is a retail or wholesale dealer, pawnbroker, or otherwise.
107          (8) "Domestic violence" means the same as that term is defined in Section 77-36-1.
108          [(8)] (9) "Enter" means intrusion of the entire body.
109          [(9)] (10) "Federal Firearms Licensee" means a person who:
110          (a) holds a valid Federal Firearms License issued under 18 U.S.C. Sec. 923; and
111          (b) is engaged in the activities authorized by the specific category of license held.
112          [(10)] (11) (a) "Firearm" means a pistol, revolver, shotgun, short barreled shotgun, rifle
113     or short barreled rifle, or a device that could be used as a dangerous weapon from which is
114     expelled a projectile by action of an explosive.
115          (b) As used in Sections 76-10-526 and 76-10-527, "firearm" does not include an
116     antique firearm.
117          [(11)] (12) "Firearms transaction record form" means a form created by the bureau to
118     be completed by a person purchasing, selling, or transferring a handgun from a dealer in the
119     state.
120          [(12)] (13) "Fully automatic weapon" means a firearm which fires, is designed to fire,
121     or can be readily restored to fire, automatically more than one shot without manual reloading
122     by a single function of the trigger.
123          [(13)] (14) (a) "Handgun" means a pistol, revolver, or other firearm of any description,
124     loaded or unloaded, from which a shot, bullet, or other missile can be discharged, the length of
125     which, not including any revolving, detachable, or magazine breech, does not exceed 12 inches.
126          (b) As used in Sections 76-10-520, 76-10-521, and 76-10-522, "handgun" and "pistol
127     or revolver" do not include an antique firearm.
128          [(14)] (15) "House of worship" means a church, temple, synagogue, mosque, or other
129     building set apart primarily for the purpose of worship in which religious services are held and
130     the main body of which is kept for that use and not put to any other use inconsistent with its
131     primary purpose.
132          [(15)] (16) "Prohibited area" means a place where it is unlawful to discharge a firearm.
133          [(16)] (17) "Readily accessible for immediate use" means that a firearm or other
134     dangerous weapon is carried on the person or within such close proximity and in such a manner
135     that it can be retrieved and used as readily as if carried on the person.
136          [(17)] (18) "Residence" means an improvement to real property used or occupied as a
137     primary or secondary residence.
138          [(18)] (19) "Securely encased" means not readily accessible for immediate use, such as
139     held in a gun rack, or in a closed case or container, whether or not locked, or in a trunk or other
140     storage area of a motor vehicle, not including a glove box or console box.
141          [(19)] (20) "Short barreled shotgun" or "short barreled rifle" means a shotgun having a
142     barrel or barrels of fewer than 18 inches in length, or in the case of a rifle, having a barrel or
143     barrels of fewer than 16 inches in length, or a dangerous weapon made from a rifle or shotgun
144     by alteration, modification, or otherwise, if the weapon as modified has an overall length of
145     fewer than 26 inches.
146          [(20)] (21) "Shotgun" means a smooth bore firearm designed to fire cartridges
147     containing pellets or a single slug.
148          [(21)] (22) "Shoulder arm" means a firearm that is designed to be fired while braced
149     against the shoulder.
150          (23) "Single criminal episode" means the same as that term is defined in Section
151     76-1-401.
152          [(22)] (24) "Slug" means a single projectile discharged from a shotgun shell.
153          [(23)] (25) "State entity" means a department, commission, board, council, agency,
154     institution, officer, corporation, fund, division, office, committee, authority, laboratory, library,
155     unit, bureau, panel, or other administrative unit of the state.
156          [(24)] (26) "Violent felony" means the same as that term is defined in Section
157     76-3-203.5.
158          Section 2. Section 76-10-503 is amended to read:
159          76-10-503. Restrictions on possession, purchase, transfer, and ownership of
160     dangerous weapons by certain persons -- Exceptions.
161          (1) For purposes of this section:
162          (a) A Category I restricted person is a person who:
163          (i) has been convicted of [any] a violent felony [as defined in Section 76-3-203.5];
164          (ii) is on probation or parole for [any] a felony;
165          (iii) is on parole from secure care, as defined in Section 80-1-102;
166          (iv) within the last 10 years has been adjudicated under Section 80-6-701 for an offense
167     which if committed by an adult would have been a violent felony as defined in Section
168     76-3-203.5;
169          (v) is an alien who is illegally or unlawfully in the United States; or
170          (vi) is on probation for a conviction of possessing:
171          (A) a substance classified in Section 58-37-4 as a Schedule I or II controlled substance;
172          (B) a controlled substance analog; or
173          (C) a substance listed in Section 58-37-4.2.
174          (b) A Category II restricted person is a person who:
175          (i) has been convicted of [any]:
176          (A) a domestic violence offense that is a felony;
177          (B) a felony that is not a domestic violence offense or a violent felony and within seven
178     years after completing the sentence for the conviction, has been convicted of or charged with
179     another felony or class A misdemeanor;
180          (C) multiple felonies that are part of a single criminal episode and are not domestic
181     violence offenses or violent felonies and within seven years after completing the sentence for
182     the convictions, has been convicted of or charged with another felony or class A misdemeanor;
183     or
184          (D) multiple felonies that are not part of a single criminal episode;
185          (ii) (A) within the last seven years has completed a sentence for:
186          (I) a conviction for a felony that is not a domestic violence offense or a violent felony;
187     or
188          (II) convictions for multiple felonies that are part of a single criminal episode and are
189     not domestic violence offenses or violent felonies; and
190          (B) within the last seven years and after the completion of a sentence for a conviction
191     described in Subsection (1)(b)(ii)(A), has not been convicted of or charged with another felony
192     or class A misdemeanor;
193          [(ii)] (iii) within the last seven years has been adjudicated delinquent for an offense
194     which if committed by an adult would have been a felony;
195          [(iii)] (iv) is an unlawful user of a controlled substance as defined in Section 58-37-2;
196          [(iv)] (v) is in possession of a dangerous weapon and is knowingly and intentionally in
197     unlawful possession of a Schedule I or II controlled substance as defined in Section 58-37-2;
198          [(v)] (vi) has been found not guilty by reason of insanity for a felony offense;
199          [(vi)] (vii) has been found mentally incompetent to stand trial for a felony offense;
200          [(vii)] (viii) has been adjudicated as mentally defective as provided in the Brady
201     Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993), or has been
202     committed to a mental institution;
203          [(viii)] (ix) has been dishonorably discharged from the armed forces;
204          [(ix)] (x) has renounced the individual's citizenship after having been a citizen of the
205     United States;
206          [(x)] (xi) is a respondent or defendant subject to a protective order or child protective
207     order that is issued after a hearing for which the respondent or defendant received actual notice
208     and at which the respondent or defendant has an opportunity to participate, that restrains the
209     respondent or defendant from harassing, stalking, threatening, or engaging in other conduct that
210     would place an intimate partner, as defined in 18 U.S.C. Sec. 921, or a child of the intimate
211     partner, in reasonable fear of bodily injury to the intimate partner or child of the intimate
212     partner, and that:
213          (A) includes a finding that the respondent or defendant represents a credible threat to
214     the physical safety of an individual who meets the definition of an intimate partner in 18 U.S.C.
215     Sec. 921 or the child of the individual; or
216          (B) explicitly prohibits the use, attempted use, or threatened use of physical force that
217     would reasonably be expected to cause bodily harm against an intimate partner or the child of
218     an intimate partner; or
219          [(xi)] (xii) has been convicted of the commission or attempted commission of assault
220     under Section 76-5-102 or aggravated assault under Section 76-5-103 against a current or
221     former spouse, parent, guardian, individual with whom the restricted person shares a child in
222     common, individual who is cohabitating or has cohabitated with the restricted person as a
223     spouse, parent, or guardian, or against an individual similarly situated to a spouse, parent, or
224     guardian of the restricted person.
225          (c) As used in this section, a conviction of a felony or adjudication of delinquency for
226     an offense which would be a felony if committed by an adult does not include:
227          (i) a conviction or an adjudication under Section 80-6-701 for an offense pertaining to
228     antitrust violations, unfair trade practices, restraint of trade, or other similar offenses relating to
229     the regulation of business practices not involving theft or fraud; or
230          (ii) a conviction or an adjudication under Section 80-6-701 which, according to the law
231     of the jurisdiction in which it occurred, has been expunged, set aside, reduced to a
232     misdemeanor by court order, pardoned or regarding which the person's civil rights have been
233     restored unless the pardon, reduction, expungement, or restoration of civil rights expressly
234     provides that the person may not ship, transport, possess, or receive firearms.
235          (d) It is the burden of the defendant in a criminal case to provide evidence that a
236     conviction or an adjudication under Section 80-6-701 is subject to an exception provided in
237     Subsection (1)(c), after which it is the burden of the state to prove beyond a reasonable doubt
238     that the conviction or the adjudication is not subject to that exception.
239          (2) A Category I restricted person who intentionally or knowingly agrees, consents,
240     offers, or arranges to purchase, transfer, possess, use, or have under the person's custody or
241     control, or who intentionally or knowingly purchases, transfers, possesses, uses, or has under
242     the person's custody or control:
243          (a) any firearm is guilty of a second degree felony; or
244          (b) any dangerous weapon other than a firearm is guilty of a third degree felony.
245          (3) A Category II restricted person who intentionally or knowingly purchases, transfers,
246     possesses, uses, or has under the person's custody or control:
247          (a) any firearm is guilty of a third degree felony; or
248          (b) any dangerous weapon other than a firearm is guilty of a class A misdemeanor.
249          (4) A person may be subject to the restrictions of both categories at the same time.
250          (5) If a higher penalty than is prescribed in this section is provided in another section
251     for one who purchases, transfers, possesses, uses, or has under this custody or control any
252     dangerous weapon, the penalties of that section control.
253          (6) It is an affirmative defense to a charge based on the definition in Subsection
254     [(1)(b)(iv)] (1)(b)(v) that the person was:
255          (a) in possession of a controlled substance pursuant to a lawful order of a practitioner
256     for use of a member of the person's household or for administration to an animal owned by the
257     person or a member of the person's household; or
258          (b) otherwise authorized by law to possess the substance.
259          (7) (a) It is an affirmative defense to transferring a firearm or other dangerous weapon
260     by a person restricted under Subsection (2) or (3) that the firearm or dangerous weapon:
261          (i) was possessed by the person or was under the person's custody or control before the
262     person became a restricted person;
263          (ii) was not used in or possessed during the commission of a crime or subject to
264     disposition under Section 24-3-103;
265          (iii) is not being held as evidence by a court or law enforcement agency;
266          (iv) was transferred to a person not legally prohibited from possessing the weapon; and
267          (v) unless a different time is ordered by the court, was transferred within 10 days of the
268     person becoming a restricted person.
269          (b) Subsection (7)(a) is not a defense to the use, purchase, or possession on the person
270     of a firearm or other dangerous weapon by a restricted person.
271          (8) (a) A person may not sell, transfer, or otherwise dispose of any firearm or
272     dangerous weapon to any person, knowing that the recipient is a person described in
273     Subsection (1)(a) or (b).
274          (b) A person who violates Subsection (8)(a) when the recipient is:
275          (i) a person described in Subsection (1)(a) and the transaction involves a firearm, is
276     guilty of a second degree felony;
277          (ii) a person described in Subsection (1)(a) and the transaction involves any dangerous
278     weapon other than a firearm, and the transferor has knowledge that the recipient intends to use
279     the weapon for any unlawful purpose, is guilty of a third degree felony;
280          (iii) a person described in Subsection (1)(b) and the transaction involves a firearm, is
281     guilty of a third degree felony; or
282          (iv) a person described in Subsection (1)(b) and the transaction involves any dangerous
283     weapon other than a firearm, and the transferor has knowledge that the recipient intends to use
284     the weapon for any unlawful purpose, is guilty of a class A misdemeanor.
285          (9) (a) A person may not knowingly solicit, persuade, encourage or entice a dealer or
286     other person to sell, transfer or otherwise dispose of a firearm or dangerous weapon under
287     circumstances which the person knows would be a violation of the law.
288          (b) A person may not provide to a dealer or other person any information that the
289     person knows to be materially false information with intent to deceive the dealer or other
290     person about the legality of a sale, transfer or other disposition of a firearm or dangerous
291     weapon.
292          (c) "Materially false information" means information that portrays an illegal transaction
293     as legal or a legal transaction as illegal.
294          (d) A person who violates this Subsection (9) is guilty of:
295          (i) a third degree felony if the transaction involved a firearm; or
296          (ii) a class A misdemeanor if the transaction involved a dangerous weapon other than a
297     firearm.
298          Section 3. Section 76-10-532 is amended to read:
299          76-10-532. Removal from National Instant Check System database.
300          (1) A person who is subject to the restrictions in Subsection [76-10-503(1)(b)(v), (vi),
301     or (vii)] 76-10-503(1)(b)(vi), (vii), or (viii), or 18 U.S.C. 922(d)(4) and (g)(4) based on a
302     commitment, finding, or adjudication that occurred in this state may petition the district court
303     in the county in which the commitment, finding, or adjudication occurred to remove the
304     disability imposed.
305          (2) The petition shall be filed in the district court in the county where the commitment,
306     finding, or adjudication occurred. The petition shall include:
307          (a) a listing of facilities, with their addresses, where the petitioner has ever received
308     mental health treatment;
309          (b) a release signed by the petitioner to allow the prosecutor or county attorney to
310     obtain the petitioner's mental health records;
311          (c) a verified report of a mental health evaluation conducted by a licensed psychiatrist
312     occurring within 30 days prior to the filing of the petition, which shall include a statement
313     regarding:
314          (i) the nature of the commitment, finding, or adjudication that resulted in the restriction
315     on the petitioner's ability to purchase or possess a dangerous weapon;
316          (ii) the petitioner's previous and current mental health treatment;
317          (iii) the petitioner's previous violent behavior, if any;
318          (iv) the petitioner's current mental health medications and medication management;
319          (v) the length of time the petitioner has been stable;
320          (vi) external factors that may influence the petitioner's stability;
321          (vii) the ability of the petitioner to maintain stability with or without medication; and
322          (viii) whether the petitioner is dangerous to public safety; and
323          (d) a copy of the petitioner's state and federal criminal history record.
324          (3) The petitioner shall serve the petition on the prosecuting entity that prosecuted the
325     case or, if the disability is not based on a criminal case, on the county or district attorney's
326     office having jurisdiction where the petition was filed and the individual who filed the original
327     action which resulted in the disability.
328          (4) The court shall schedule a hearing as soon as practicable. The petitioner may
329     present evidence and subpoena witnesses to appear at the hearing. The prosecuting, county
330     attorney, or the individual who filed the original action which resulted in the disability may
331     object to the petition and present evidence in support of the objection.
332          (5) The court shall consider the following evidence:
333          (a) the facts and circumstances that resulted in the commitment, finding, or
334     adjudication;
335          (b) the person's mental health and criminal history records; and
336          (c) the person's reputation, including the testimony of character witnesses.
337          (6) The court shall grant the relief if the court finds by clear and convincing evidence
338     that:
339          (a) the person is not a danger to the person or to others;
340          (b) the person is not likely to act in a manner dangerous to public safety; and
341          (c) the requested relief would not be contrary to the public interest.
342          (7) The court shall issue an order with its findings and send a copy to the bureau.
343          (8) The bureau, upon receipt of a court order removing a person's disability under
344     Subsection [76-10-503(1)(b)(vii)] 76-10-503(1)(b)(viii), shall send a copy of the court order to
345     the National Instant Check System requesting removal of the person's name from the database.
346     In addition, if the person is listed in a state database utilized by the bureau to determine
347     eligibility for the purchase or possession of a firearm or to obtain a concealed firearm permit,
348     the bureau shall remove the petitioner's name or send a copy of the court's order to the agency
349     responsible for the database for removal of the petitioner's name.
350          (9) If the court denies the petition, the petitioner may not petition again for relief until
351     at least two years after the date of the court's final order.
352          (10) The petitioner may appeal a denial of the requested relief. The review on appeal
353     shall be de novo.