Gun Industry Immunity Policy Summary

Posted on Wednesday, May 20th, 2015

background-header

Last updated May 20, 2015.

Immunity statutes grant legal protection to gun manufacturers and dealers, shielding them from liability for a wide range of conduct.  Similar immunity laws have been adopted in some form by the federal government and 34 states.

federal-header

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA)1, a federal statute which provides broad immunity to gun manufacturers and dealers in federal and state court. Generally speaking, the PLCAA prohibits “qualified civil liability actions,” which are defined as civil or administrative proceedings which “result[] from the criminal or lawful misuse” of firearms or ammunition.2

There are six exceptions to the blanket civil immunity provided by the PLCAA:

(1) an action brought against someone convicted of “knowingly transfer[ing] a firearm, knowing that such firearm will be used to commit a crime of violence” by someone directly harmed by such unlawful conduct;

(2) an action brought against a seller for negligent entrustment or negligence per se;

(3) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought;3

(4) an action for breach of contract or warranty in connection with the purchase of the product;

(5) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or

(6) an action commenced by the Attorney General to enforce the Gun Control Act or the National Firearms Act.4

The PLCAA was enacted by Congress under its power to regulate interstate commerce.  There have been several constitutional challenges to the PLCAA, but to date none have been successful.5

There are several reported decisions involving the third exception to the PLCAA, commonly referred to as the “predicate exception.”  The predicate exception applies when the plaintiff proves that a manufacturer or seller knowingly committed a violation of an underlying statute, referred to as a “predicate statute,” that is “applicable to the sale or marketing” of a firearm or ammunition.

There have been several reported decisions interpreting the “predicate exception” and the results have been mixed.  The only two federal appellate courts to consider the issue – the Second and Ninth Circuits – have both found in split decisions that the PLCAA barred claims brought under generally applicable public nuisance statutes. The same result has been reached by state courts in Alaska and Illinois and a federal district court in Washington, D.C.

State appellate courts in Indiana and New York, however, have allowed such suits to proceed. Unlike the other cases, these two cases involved allegations that gun manufacturers and distributors knowingly sold firearms to straw purchasers who, in turn, were selling the firearms to criminals.

Relatively few reported decisions have substantively interpreted the PLCAA’s other exceptions, particularly regarding suits against sellers for negligent entrustment and negligence per se.

See the case descriptions below for further information.

 

Cases Finding That the PLCAA Bars State Law Claims For Damages

City of New York v. Beretta U.S.A. Corp., 524 F.3d 384 (2d Cir. 2008):   The City of New York filed a lawsuit against various firearms manufacturers and sellers for creating a public nuisance.  A public nuisance is a state law tort action (though codified in a New York statute) which requires the plaintiff to prove that the defendant knowingly or recklessly maintains a condition which endangers the safety or health of a considerable number of persons.6 The City alleged that firearms suppliers created a public nuisance by “failing to take reasonable steps to inhibit the flow of firearms into illegal markets.”

The legal issue presented was whether New York’s public nuisance statute – a statute which applies generally to any public nuisance – was “applicable to the sale or marketing” of firearms. The City maintained that the statute could be applied to the sale or marketing of firearms and, as a result, was “applicable” under the PLCAA.  The firearms suppliers, however, took the position that the predicate exception “was intended to include statutes that specifically and expressly regulate the firearms industry.”

In a 2-1 decision, the Second Circuit found that the public nuisance statute was not “applicable to the sale or marketing” of firearms,” though it disagreed with the broad interpretation of the statute offered by the firearm industry.  The Second Circuit reasoned that the predicate exception was “meant to apply only to statutes that actually regulate the firearms industry,” in a manner “similar to” the two enumerated examples of “predicate” statutes identified in the PLCAA, specifically “statutes regulating record-keeping and those prohibiting participation in direct illegal sales.”  However, it did find that a predicate statute need not “expressly refer to the firearms industry.”

The dissenting judge found that the word “applicable” had a clear and ordinary meaning: that it is “capable of being applied” to the sale or marketing of firearms.  He found that the public nuisance statutes fell squarely within that definition.

Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009):  In another 2-1 decision, the Ninth Circuit reached a similar holding with respect to California’s public nuisance statute.  It considered the same arguments faced by the Second Circuit, in particular whether the word “applicable” meant “capable of being applied” or whether it meant statutes that “target the firearms industry specifically.”  Ultimately, while the court “sympathized” with the three young children and federal employee who were shot by guns manufactured by the defendants, it found that the PLCAA was “intended to preempt general tort theories of liability” like public nuisance statutes.

Estate of Charlot v. Bushmaster Firearms, Inc., 628 F. Supp. 2d 174 (D.D.C. 2009): In this case, the plaintiffs represented the estate of a victim of the “DC sniper,” who had killed the victim with an assault weapon manufactured by the defendant.  Plaintiffs alleged that their suit for damages should proceed under the PLCAA’s predicate exception based on defendants’ violation of a DC ordinance imposing strict tort liability on manufacturers, importers, and dealers of assault weapons and machine guns.

 

The district court found that DC’s strict liability ordinance was not a predicate law applicable to the sale or marketing of firearms because the defendant “cannot be said to have violated the [ordinance] simply by lawfully selling a gun” to a dealer.  Though the plaintiffs argued that the ordinance’s requirement to compensate for injuries “presuppose[d] a violation of a statutory duty,” the court disagreed and found that the ordinance merely “imposes a duty to pay compensation.”  Because the plaintiffs did not sufficiently allege facts showing that defendants had knowingly violated another federal or state law relating to the sale or marketing of firearms, the PLCAA preempted their suit.

Adames v. Sheehan, 909 N.E.2d 742 (Ill. 2009): The Illinois Supreme Court found that the PLCAA preempted a claim for design defects, failure to warn, and breach of the implied warranty of merchantability against firearms manufacturers.  One young boy was playing with his father’s gun and accidentally shot his friend.

The decedent’s family brought claims against the gun manufacturer for design defects and a failure to warn.  They alleged that the gun was inherently dangerous and defective because 1) it did not incorporate safety features, including technology that would have prevented children from firing the gun, and 2) it did not include adequate warnings concerning the foreseeable use of the gun by children.

The Illinois Supreme Court found those claims pre-empted by the PLCAA.  The plaintiffs asserted that the fifth exception to the PLCAA – permitting certain design defect claims – was applicable, but the court found it was not because the child’s death was caused by a volitional act that constituted a criminal offense, and therefore was preempted.

Noble v. Shawnee Gun Shop, Inc., 409 S.W.3d 476 (Mo. Ct. App. 2013): In this consolidated case, plaintiffs sued a gun shop for negligently entrusting firearm ammunition and magazines to a purchaser who later used the items to shoot and kill two individuals.  The state Appeals Court found that while the PLCAA “may exempt negligent entrustment claims from mandatory dismissal under federal law, it does not affirmatively authorize or establish such claims — it simply does not extinguish them . . . . [Plaintiffs] must look to some other source of law to establish a cause of action falling within the Act’s negligent entrustment exception.” Because the court found that Missouri law held that a seller of chattels could not be held liable for negligent entrustment, the court found that the PLCAA preempted plaintiffs’ claim.

Phillips v. Lucky Gunner, LLC, 2015 U.S. Dist. LEXIS 39284 (D. Colo. Mar. 27, 2015): In this case, the parents of a victim of a mass shooting in an Aurora, Colorado movie theater sued various internet retailers for negligence, negligent entrustment, and creating a public nuisance for allegedly selling the shooter ammunition and other equipment used in his attack without reasonable safeguards to prevent dangerous people from purchasing their wares.  The plaintiffs alleged that defendants knowingly violated predicate municipal ordinances prohibiting unlawful carry, possession, and discharge of firearms, and a predicate federal criminal statute prohibiting “any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is an unlawful user of or addicted to any controlled substance.”7).

The federal district court rejected the negligence claim, stating that “general negligence actions — including negligence with concurrent causation,” were preempted by the PLCAA.  The court found that the public nuisance codes cited by plaintiffs could not be predicate laws because they did not authorize private civil actions and were not, anyway, applicable to the sale or marketing of firearms or ammunition.  The court also found that plaintiffs had failed to allege facts showing the defendants had knowingly violated the predicate federal statute because defendants’ “indifference to the buyer by the use of electronic communication” did not indicate actual knowledge of the individual shooter’s condition or planned criminal activity.

Finally, the court noted that, though the PLCAA identifies negligent entrustment as an exception to immunity, it does not create a cause of action.  Accordingly, the plaintiffs’ negligent entrustment claim was evaluated and ultimately rejected under Colorado’s negligent entrustment law and precedents.  The court determined that plaintiffs had not alleged facts “showing defendants had ‘actual knowledge’ of [the shooter’s] mental condition or his intentions, or showing that defendants reasonably should have known anything about his purposes in making his online purchases.”

 

Cases Allowing Claims Over PLCAA Preemption Arguments

Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422 (Ind.  App. 2007):  The City of Gary, Indiana brought a public nuisance claim against various gun manufacturers and distributors.  Specifically, the City alleged that the defendants knowingly sold guns to straw purchasers who, in turn, sold guns to known criminals.  The evidence supporting the claim was derived from a sting operation conducted by the City’s police department.

The Indiana Court of Appeals allowed the suit to proceed over the PLCAA defense raised by the firearms industry.  In particular, it rejected the firearms industry’s argument that the term “applicable” is limited to statutes that are targeted to the gun industry, finding instead that “on the face of the [predicate exception], Indiana’s public nuisance statute appears applicable to the sale or marketing of firearms.”

City of New York v. Bob Moates’ Sport Shop, Inc., 253 F.R.D. 237 (E.D.N.Y. 2008): The City of New York brought an equitable civil action against out of-state gun retailers for allegedly creating a public nuisance by illegally and negligently furnishing firearms to prohibited persons that were then trafficked into New York City.  The court ruled that the PLCAA did not preempt the City’s claim because the City had alleged and proffered evidence supporting the conclusion that defendants’ participation in straw purchases violated predicate federal statutes specifically relating to the sale and marketing of firearms, as well as a predicate state statute declaring that any unlawfully possessed, transported or disposed handgun is a nuisance.

Williams v. Beemiller, Inc.952 N.Y.S.2d 333 (N.Y. App. Div. 4th Dep’t 2012), amended by 103 A.D.3d 1191 (N.Y. App. Div. 4th Dep’t 2013):  Plaintiff, a high school student, brought suit against the manufacturer, distributor, and dealer of the Hi-Point 9-mm semi-automatic gun used by his shooter, who had misidentified the plaintiff as a rival gang member.  In the Complaint, the plaintiff alleged, among other things, that the gun used to shoot him was knowingly and negligently distributed to a prohibited felon who was using straw purchasers to obtain large numbers of handguns.  The complaint also alleged that defendants negligently entrusted the gun to individuals they knew or should have known would create an unreasonable risk of physical injury to others; committed negligence per se by violating various federal and state gun laws; created a public nuisance by distributing a large number of guns into the illegal gun market and selling them to that market; and knowingly violated federal, state, and local enactments.

The Appellate Division of the New York Supreme Court found that the PLCAA did not preempt the plaintiff’s suit because the complaint sufficiently alleged facts showing that defendants had knowingly violated predicate federal gun laws, including the Gun Control Act’s requirement that licensed firearms dealers keep records containing information the identity of the actual buyer, who supplies the money and intends to possess the firearm, as opposed to that individual’s straw purchaser or agent.  After reargument, the court amended its decision in 2013 to additionally state that the plaintiff’s allegations were sufficient to state a cause of action for common law negligence and public nuisance under New York state law.  Because the court allowed the suit to proceed under these PLCAA exceptions it did not interpret whether this case also fell under PLCAA exceptions for claims of negligent entrustment or negligence per se.

Estate of Kim v. Coxe, 295 P.3d 380 (Alaska 2013): This case arose when a vagrant took a rifle off a gun store shelf when the shopkeeper, Coxe, was not looking and left $200 in cash.  Coxe called the police and attempted to find the vagrant himself.  The vagrant then shot a 26 year old house painter, Simone Kim, with the firearm. Kim’s family then sued the gun store for wrongful death, claiming that:  1) Coxe was negligent per se and knowingly violated various federal statutes regulating the sale and marketing of firearms; and that 2) Coxe negligently entrusted the vagrant with the gun.

The Alaska Supreme Court determined that the defendant could not be held liable for negligence per se or knowingly violating applicable statutes if the firearm was stolen. Similarly, the court found that a firearm theft precludes a dealer’s liability under the PLCAA’s negligent entrustment exceptions.  Because the court recognized a factual dispute as to whether the gun had been stolen or sold to him, it remanded the case to trial court to resolve that factual issue.

 

State Law Immunity Statutes

At present, 34 states provide either blanket immunity to the gun industry in a way similar to the PLCAA or prohibit cities or other local government entities from bringing lawsuits against certain gun industry defendants.  Those states are: Alabama, Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington and West Virginia.

These immunity laws have been directed principally at state and local governmental lawsuits against certain gun industry defendants. In general, lawsuits against the gun industry allege that industry defendants have marketed and distributed their firearms in ways which they know or should know create and feed an illegal secondary market in firearms. This secondary market allows unauthorized purchasers, such as felons, to obtain guns for use in crime, to the injury of the government entity and its citizens.

A second claim central to a number of the lawsuits is that defendant manufacturers have failed to implement safer designs, including designs that would prevent unauthorized use of handguns by children and others. While some of the governmental lawsuits seek damages, others seek injunctive or other equitable relief.

In 2002, California became the first state to repeal an immunity statute. California’s law, adopted in 1983, stated that “[i]n a product liability action, no firearm or ammunition shall be deemed defective in design on the basis that the benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged.”  The state legislature moved to repeal the statute following the California Supreme Court’s decision in Merrill v. Navegar (Cal. 2001) 26 Cal. 4th 465, which held that the law immunized an assault weapons manufacturer from a negligence action brought by the victims of the 101 California Street massacre. For more information about California’s former immunity law and the Navegar litigation, see California’s Immunity Statutes summary.

For detailed information about government and private party lawsuits against the gun industry, the status of litigation involving gun industry immunity statutes in various states, or pending gun industry immunity legislation, visit the Brady Center’s Legal Action Project and the Coalition to Stop Gun Violence’s piece on Special Protection for the Gun Industry.

 

  1. 15 U.S.C. §§ 7901-7903. []
  2. 15 U.S.C. §§ 7902(a), 7903(5). []
  3. The PLCAA gives two examples of conduct which falls under this so-called “predicate” exception:  1) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product; and 2) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition. 15 U.S.C. § 7903(5)(A)(iii). []
  4. 15 U.S.C. § 7903(5)(A). []
  5. See, e.g., Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009) (rejecting separation of powers, due process, equal protection and takings challenges); City of New York v. Beretta U.S.A., Corp. 524 F.3d 384 (2d Cir. 2008) (rejecting First and Tenth Amendment challenges as well as separation of powers challenge); Estate of Charlot v Bushmaster Firearms, Inc. 628 F.Supp.2d 174 (D.D.C. 2009) (rejecting separation of powers challenge); Estate of Kim v. Coxe, 295 P.3d 380 (Alaska 2013) (rejecting separation of powers challenge); Adames v. Sheahan, 909 N.E.2d 742 (Ill. 2009) (rejecting Tenth Amendment challenge). []
  6. See N.Y. Penal Law § 240.45. []
  7. See 18 U.S.C. § 922(d)(3 []

Could the FBI and ATF Merge to Create an Innovative Approach to Gun Laws?

Posted on Tuesday, May 19th, 2015

Our partners at the Center for American Progress (CAP) released “The Bureau and the Bureau,” a new investigative report on the Bureau of Alcohol, Tobacco, Firearms, and Explosives and the poor management, inadequate resources, and onerous regulations that have led to the weak enforcement of gun laws in the United States. The report recommends that we fold the ATF into the FBI—an idea that has roots in President Reagan’s first campaign, and has been debated by Congress in different forms intermittently ever since.

atf-gov-photo

“Highlighting the challenges that ATF faces is not just another idle exercise in criticizing the inefficient bureaucracy of the federal government. The problem of gun violence in the United States is urgent: every day in America, assailants using guns murder 33 people. It is imperative that the federal government takes action to enforce the laws designed to stem the tide of this violence and that it does moreto ensure that guns do not end up in the hands of criminals and other dangerous individuals.” –”The Bureau and the Bureau,” Center for American Progress

CAP’s two-year investigation examined all aspects of both agencies—leadership structure, budgetary appropriations, coordination and communications, and the potential cost savings of merging the two bureaus. CAP’s report also shares ideas for a new organizational structure for the combined ATF and FBI. At the Law Center, we support common-sense solutions that will end the harrowing burden gun violence places on our communities. It’s essential that law enforcement organizations like the ATF have the highest caliber leadership and adequate funding to save lives, end gun trafficking, and enforce regulations on gun dealers. Because of political opposition from the gun lobby, the ATF was without a director for seven years, until B. Todd Jones was confirmed by the United States Senate in July 2014. He resigned after just seven months, following a failed effort to ban green tip “cop killer” bullets.

The instability of the ATF’s management structure makes now the right time to rethink the way the FBI and ATF work together. The gun lobby has pressured Congress to underfund the ATF and adopt burdensome regulations that make it harder for agents to enforce the smart gun laws already on the books, all of which has brought the ATF to a fever pitch of inefficiency.

CAP’s assessment that the FBI can provide strong oversight to an agency with a mission so critical to the safety of our citizens is an essential part of the conversation that needs to be had about enacting and enforcing smart gun laws at the federal level.

Read the full 160-page report on the Center for American Progress website.

Keeping California on the Leading Edge of Smart Gun Laws

Posted on Tuesday, May 19th, 2015

CA-Leg-Update

The 2015 legislative session is in full swing, and the Law Center is committed to shaping California’s common-sense approach to responsible gun ownership and safety. Our attorneys are busy: tracking laws, testifying at public safety hearings, and working alongside lawmakers to pass legislation that will keep the Golden State a model for the rest of the nation when it comes to enacting smart gun laws that save lives.

This year, we are particularly focused on two important bills to keep guns out of the hands of criminals and away from our schools:

SB 347 “prohibited persons”: would require that criminals convicted of firearms-related misdemeanors, like stealing a gun or selling ammunition to children or felons, are not able to possess or purchase a gun within 10 years of their conviction. This bill will protect public safety, given that individuals who commit gun-related crimes are much more likely than law-abiding citizens to commit future offenses, including acts of violence.

SB 707 “gun-free school zone”: would eliminate a dangerous loophole in California’s Gun-Free School Zone Act by prohibiting individuals licensed to carry concealed handguns from carrying their weapons onto school grounds without the written permission of school officials. This bill would help ensure that school administrators have the discretion they need to provide students with a safe and secure learning environment.

To learn more about all of the firearm-related bills introduced in the California State Legislature this year, check out our comprehensive 2015 California Legislative Summary below.

For more info on legislative trends that are currently developing nationwide, read our 2015 State Gun Law Trendwatch.

READ MORE »

Guns in Parking Areas

Posted on Monday, May 18th, 2015

The following states have laws addressing gun storage in vehicles in the parking areas of employers and others. In many states, employers and others are prohibited from excluding guns, even on their own private property, if the gun is stored in a vehicle in a parking area.

States firearms in parking area laws

Year Enacted

What the law does

AK

2005

Requires all businesses and property owners and tenants
to allow firearms in parking areas

AL

2013

Requires all property owners to allow firearms in parking areas

AR

2015

Allows firearms to be stored in vehicles in any publicly owned and maintained parking lot.

AZ

2009

Requires employers, businesses, tenants,and property owners to allow firearms in parking areas

FL

2008

Requires employers to allow firearms in customer’s, employee’s or invitee’ vehicles in parking areas

GA

2008

Requires employers to allow firearms in employee’s vehicles in parking areas

IL

2013

Requires any private property owner, except a private residence, to allow concealed carry license holders to possess and store firearms in vehicles in parking areas.

IN

2010

Requires employers to allow firearms in employee’s vehicles in parking areas

KS

2010

Requires employers to allow firearms in employee’s vehicles in parking areas

KY

2006

Requires any employer, owner, or lessee to allow firearms in vehicles in parking areas

LA

2008

Requires property owners, tenants, business owners and employers to allow firearms in vehicles in parking areas

ME

2011

Requires employers to allow firearms in vehicles in parking areas

MN

2003

Requires property owners and operators to allow firearms in vehicles in parking areas

MO

2013

Requires state employers to allow firearms in parking areas.

MS

2006

Requires employers to allow firearms in vehicles in parking areas

NC

2013

Requires state government agencies, k-12 schools, and universities and colleges to allow firearms in parking areas.

ND

2011

Requires landowners to allow firearms in customer’s, employee’s and invitee’s vehicles in parking areas

NE

2009

Requires property owners and operators to allow firearms in vehicles in parking areas

OK

2005

Requires any person, business owner, tenant or employer to allow firearms in vehicles in parking areas

TN

2013

Provides that a concealed carry permit holder may transport and store a firearm or ammunition in his or her vehicle in any public or private parking area.

TX

2011 and 2013

Requires employers to allow firearms in vehicles in parking areas. And, in 2013, Prohibits an institution of higher education from prohibiting a student who is a concealed carry permit holderfrom transporting or storing a handgun or ammunition in a vehicle on astreet, driveway or parking area located on the campus.

UT

2009

Requires any person or entity to allow firearms invehicles in parking areas

WI

2011

Requires property owners to allow firearms in vehicles in parking areas

 

Dealer Regulations in Virginia

Posted on Monday, May 18th, 2015

See our Dealer Regulations policy summary for a comprehensive discussion of this issue.

Federal law requires firearms dealers to obtain a license from the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF), although resource limitations prevent the ATF from properly overseeing all its licensees.

Virginia does not require firearms dealers to obtain a state license. For the laws requiring federally licensed dealers to conduct background checks on firearm purchasers, see the Virginia Background Checks section. Also see the Virginia Assault Weapons section for assault weapon sales-related provisions.

In 2010, Virginia repealed a law that had allowed counties to require sellers of handguns to furnish the clerk of the circuit court “with the name and address of the purchaser, the date of the purchase, and the number, make and caliber of the weapon sold” within 10 days of any handgun sale.1 The repealed law had also allowed a county to impose a license tax up to $25 on persons engaged in the business of selling handguns to the public.2

Virginia law prohibited a federally licensed firearms dealer from employing any person to act as a seller of firearms if the employee is an illegal alien, or is otherwise prohibited from possessing, purchasing or transporting a firearm under state law.3 Prior to permitting an applicant to begin employment, the dealer must obtain a written statement or affirmation from the applicant that he or she is not disqualified from possessing a firearm and must submit the applicant’s fingerprints and personal descriptive information to the Central Criminal Records Exchange to be forwarded to the FBI for a criminal history check.4 A dealer can obtain an exemption from this requirement if it submits a sworn notarized affidavit on a form prepared by the Department of State Police (“DSP”) stating that the seller was subjected to a record check prior to the ATF’s issuance of the federal license.5 Upon receipt of the request for a criminal history record information check, DSP must establish a unique number for that firearm seller.6 Beginning September 1, 2001, the firearm seller’s signature, firearm seller’s number and the dealer’s identification number shall be on all firearm transaction forms. DSP must void the seller’s number when a disqualifying record is discovered, and may suspend a seller’s number upon the seller’s arrest for a potentially disqualifying crime.7 This section does not restrict the transfer of a firearm at any place other than a dealership, or at any event required to be registered as a gun show.8

Virginia also allows, but does not require, firearms dealers to check whether a pre-owned firearm being transferred to a dealer from a non-dealer has been reported lost or stolen.9

See the Virginia Private Sales section for laws that apply to gun sales generally.

  1. 2010 Va. ALS 495 (amending Va. Code Ann. § 15.2-1207). []
  2. Id. (repealing former Va. Code Ann. § 15.2-1206). []
  3. Va. Code Ann. § 18.2-308.2:3(A). []
  4. Va. Code Ann. § 18.2-308.2:3(B). []
  5. Va. Code Ann. § 18.2-308.2:3(D1). []
  6. Va. Code Ann. § 18.2-308.2:3(G). []
  7. Id. []
  8. Va. Code Ann. § 18.2-308.2:3(H). []
  9. Va. Code Ann. § 18.2-308.2:4. []

Waiting Periods in Virginia

Posted on Monday, May 18th, 2015

Virginia imposes no waiting period between the time of purchase and the actual physical transfer of a firearm. See the Background Checks section for information regarding the time it takes the Department of State Police to process a background check.

See our Waiting Periods policy summary for a comprehensive discussion of this issue.

Retention of Sales & Background Check Records in Virginia

Posted on Monday, May 18th, 2015

In Virginia, firearms dealers must keep the original background check consent form (required as part of every Virginia firearms sale) for at least two years, and permit certain law enforcement officers to examine and copy a form related to a particular firearm in the course of a bona fide criminal investigation.1

Every firearm manufacturer or dealer must also keep a register of all machine guns, “sawed-off” rifles and “sawed-off” shotguns manufactured, sold, loaned, given or delivered, and must on demand allow any police officer to inspect his or her entire stock of such weapons and produce the register for inspection.2

Virginia law prohibits the Department of State Police (“DSP”) from maintaining dealer background check records longer than 30 days for any request “pertaining to a buyer or transferee who is not found to be prohibited from possessing and transporting a firearm under state or federal law.”3 However, records of multiple handgun transactions must be maintained for twelve months, and the log on all background check requests (which consists of the name of the purchaser, the dealer identification number, the unique approval number and the transaction date) may be maintained for twelve months.4 A dealer who requests a background check in connection with an intended sale or transfer of a handgun, which indicates the prospective purchaser or transferee is not a prohibited purchaser, but who nonetheless determines that the sale or transfer will not be completed, must notify the DSP by telephone.5

In 2010, Virginia repealed a law that had allowed counties to require sellers of handguns to furnish the clerk of the circuit court “with the name and address of the purchaser, the date of the purchase, and the number, make and caliber of the weapon sold” within 10 days of any handgun sale. The new law also required the courts to destroy every record of the reports previously received.6

See our Retention of Firearm Sales and Background Check Records policy summary for a comprehensive discussion of this issue.

  1. Va. Code Ann. § 54.1-4201. []
  2. Va. Code Ann. §§ 18.2-294 and 18.2-304. []
  3. Va. Code Ann. § 18.2-308.2:2(B)(3). []
  4. Id. []
  5. 19 Va. Admin. Code § 30-100-10(B). []
  6. 2010 Va. ALS 495 (amending Va. Code Ann. § 15.2-1207). []

Multiple Purchases & Sales of Firearms in Virginia

Posted on Monday, May 18th, 2015

In 2012, Virginia repealed its law prohibiting any person who is not a licensed firearms dealer from purchasing more than one handgun within any 30-day period.1

See our Restrictions on Multiple Purchases or Sales of Firearms policy summary for a comprehensive discussion of this issue.

  1. 2012 Acts of Assembly. Chapter No. 37. []

Mental Health Reporting in Virginia

Posted on Monday, May 18th, 2015

See our Mental Health Reporting policy summary for a comprehensive discussion of this issue.

Federal law prohibits possession of a firearm or ammunition by any person who has been “adjudicated as a mental defective” or involuntarily “committed to any mental institution.”1 No federal law, however, requires states to report the identities of these individuals to the National Instant Criminal Background Check System (“NICS”) database, which the FBI uses to perform background checks prior to firearm transfers.

Pursuant to a 2008 Virginia law, clerks of court must certify and forward “forthwith” to the Central Criminal Records Exchange (“Exchange”) a copy of any order for treatment issued upon a finding that a defendant, including a juvenile, is incompetent. Such treatment includes both inpatient treatment in a hospital and outpatient treatment.2

The 2008 Virginia law also requires clerks of court to certify and forward to the Exchange a copy of any order from a commitment hearing for: 1) involuntary admission to a mental health facility, as soon as practicable but no later than the close of business on the next business day; or 2) mandatory outpatient treatment, prior to the close of that business day.3 Clerks of court must also forward to the Exchange, as soon as practicable but no later than the close of business on the next business day, certification of any person who has agreed to voluntary admission in a mental health facility after being the subject of a temporary detention.4 Copies of the orders sent to the Exchange must be kept confidential in a separate file and used only to determine firearms eligibility. The Department of State Police (“DSP”) may forward “only a person’s eligibility to possess, purchase, or transfer a firearm to the National Instant Criminal Background Check System.”5 Clerks of court must certify and forward “forthwith” to the Exchange copies of any order adjudicating a person incapacitated as well as an order restoring a person’s capacity. The order and the accompanying forms must be kept confidential and in a separate file and may be used only to determine firearm eligibility.6

The chief law enforcement officer of a county or city must ensure that any acquittal by reason of insanity is reported to the Exchange immediately following the acquittal.7 In addition, court clerks and/or law enforcement (depending on the type of charge) are required to submit reports to the Exchange regarding certain criminal charges that remain pending due to mental incompetency or incapacity of the defendant. Court clerks must submit these reports electronically.8

Court clerks must certify and forward to the Exchange copies of any order granting a petition to restore the right to purchase, possess or transport a firearm to a person previously ineligible due to any of the conditions mentioned above.9 Such petitions must be granted if a court determines that the circumstances regarding the firearms prohibition and the person’s criminal history, treatment record, and reputation are such that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.10

In response to the Virginia Tech tragedy, Virginia Governor Timothy Kaine issued an Executive Order on April 30, 2007 directing all executive branch employees and law enforcement officials to consider court-ordered outpatient treatment as involuntary admission to a mental health facility, and to report it to the State Police and NICS.11 In 2008, this order was partially codified by several of the provisions described above.

In 2014, Virginia enacted a law requires judges and special justices to forward the information above to the clerk of the court “as soon as practicable, but no later than the close of business on the next business day.”12

Note that a 2002 Virginia Attorney General Opinion determined that the Department of State Police is authorized to provide mental health information to the FBI so long as the information is kept confidential and used only to determine a person’s eligibility to possess, purchase or transfer a firearm.13

For general information on the background check process and categories of prohibited purchasers or possessors, see the Virginia Background Checks section and the section entitled Prohibited Purchasers Generally.

  1. 18 U.S.C. § 922(d)(4). []
  2. Va. Code Ann. § 19.2-169.2. []
  3. Va. Code Ann. § 37.2-819. []
  4. Id. []
  5. Id. []
  6. Va. Code Ann. § 64.2-1014. []
  7. Va. Code Ann. § 19.2-390. []
  8. Id. []
  9. Va. Code Ann. §§ 18.2-308.1:1, 18.2-308.1:2, 18.2-308.1:3. []
  10. Id. []
  11. Va. Exec. Order No. 50 (April 30, 2007). []
  12. Va. Code Ann. § 37.2-819. []
  13. Va. Att’y Gen. Op. No. 01-062, 2002 Va. AG LEXIS 72 (April 4, 2002). []

Background Checks in Virginia

Posted on Monday, May 18th, 2015

See our Background Checks policy summary for a comprehensive discussion of this issue.

Federal law requires federally licensed firearms dealers (but not private sellers) to initiate a background check on the purchaser prior to sale of a firearm. Federal law provides states with the option of serving as a state “point of contact” and conducting their own background checks using state, as well as federal, records and databases, or having the checks performed by the FBI using only the federal National Instant Criminal Background Check System (“NICS”) database. (Note that state files are not always included in the federal database.)

In Virginia, all firearms transfers by licensed dealers are processed directly through the Department of State Police (“DSP”) which enforces the federal purchaser prohibitions referenced above.1

Before transferring a firearm from his or her inventory, a licensed dealer must:

  • Require a prospective purchaser to present one piece of government issued photo-identification, and a separate documentation of residence;
  • Obtain the purchaser’s written consent to a background check and the other information on a consent form;
  • Request criminal history record information regarding the purchaser by a telephone call to or other communication authorized by DSP; and
  • Provide DSP with the name, birth date, gender, race, citizenship, and social security and/or any other identification number of the purchaser, and the number of firearms by category intended to be transferred.2

The DSP must generally process each dealer’s background check request “during the dealer’s call [to the DSP], or by return call without delay.”3 Virginia law provides that most background checks must be processed by the end of the following business day, or the dealer is free to complete the transfer.4 A Virginia administrative regulation requires a dealer who processes a transfer because he or she has not received a response from the DSP by the end of the dealer’s next business day, to notify DSP of the transfer by telephone.5

See the Retention of Sales / Background Check Records in Virginia for more information.

Virginia does not require private sellers (sellers who are not licensed dealers) to initiate a background check when transferring a firearm. See our Private Sales policy summary for more information.

  1. Bureau of Justice Statistics Survey of State Procedures Related to Firearm Sales, 2005 (November 2006) and Va. Code Ann. § 18.2-308.2:2. []
  2. Va. Code Ann. § 18.2-308.2:2(B)(1). []
  3. Va. Code Ann. § 18.2-308.2:2(B)(2). []
  4. Id. []
  5. 19 Va. Admin. Code § 30-100-10(A). Non-residents seeking to purchase a handgun are treated differently, and the DSP is allowed up to 10 days to process background checks in those situations. Va. Code Ann. § 18.2-308.2:2(C). See 6 Va. Admin. Code §§ 20-130-10—20-130-100, and 19 Va. Admin. Code §§ 30-100-10—30-100-110 for additional information regarding the procedures used to perform background checks in Virginia. []