BRADY HANDGUN VIOLENCE PROTECTION ACT QUESTIONS AND ANSWERS February 28, l994 l. Q. Who must comply with the 5-day waiting period requirement imposed by the Brady Act? A. Federally licensed firearms importers, manufacturers, and dealers must comply with the requirement prior to the sale, transfer, or delivery of a handgun to a nonlicensed individual. 2. Q. How does the Brady Act affect a Federal firearms licensee? A. The waiting period provisions of the law make it unlawful for any Federal firearms licensee to sell a handgun to a nonlicensee unless the licensee: (l) obtains a statement from the purchaser (Brady form) containing the purchaser's name, address, and date of birth appearing on a valid photo identification, and a statement that the purchaser is not a felon, under indictment, or otherwise prohibited from receiving or possessing the firearm under the law; (2) verifies the identity of the transferee by examining an identification document presented; (3) within l day after the purchaser furnishes the statement, contacts (by telephone or otherwise) the chief law enforcement officer (CLEO) of the place of the residence of the purchaser and advises such officer of the contents of the statement; (4) within l day after the purchaser furnishes the statement, provides to the chief law enforcement officer of the place of residence of the purchaser a copy of the statement and the officer makes a reasonable effort to determine whether the purchaser is prohibited from possessing the particular handgun(s) sought to be purchased; and (5) the licensee waits 5 business days from the date the licensee furnished notice of the contents of the statement before transferring the handgun to the purchaser (during which period the licensee has not received information from the chief Law enforcement officer that possession of the handgun by the purchaser (2) would be in violation of the law) OR the licensee receives notice from the chief law enforcement officer of the place of the residence of the purchaser that possession of the handgun by the purchaser does not violate the law. 3. Q. Does the 5-day waiting period requirement apply to sales of handguns to Law Enforcement? A. No. These sales are exempt. However, the dealer should obtain from the purchaser a certification from the purchaser's commanding officer stating that the handgun is being acquired for official use. 4. Q. What is the effective date of the Brady Act? A. The waiting period provisions of the law are effective on February 28, 1994 and cease on November 30, 1998. However, the provisions dealing with the increase in license fees, multiple sales reports, transport of firearms by common carriers, and thefts of firearms from a Federal firearms licensee are permanent and were effective on November 30, 1993. 5. Q. Are there any exceptions to the 5-day waiting period requirement? A. Licensees need not comply with the waiting period requirements in 4 situations. These include handgun transfers (a) pursuant to an offical's written statement of the buyer's need for a handgun based upon a threat to life; (b) to buyers having a State permit or whose records have been checked and in either case an official has verified eligibility to possess firearms; (c) of National Firearms Act weapons approved by ATF; and (d) certified by ATF as exempt because compliance with the waiting period is impractical. 6. Q. Must a dealer wait 5 days before transferring the handgun to the buyer? A. No, if the dealer has received notice from the chief law enforcement officer within the 5 business days that the officer has no information indicating that the buyer's receipt or possession of the handgun would violate the law. 7. Q. When does the 5-day waiting period begin to run? A. At the time the licensee provides notice to the CLEO. (3) 8. Q. Does the Brady Act apply to licensed collectors? A. No, except if they purchase other than a curio or relic handgun. In that event they would have to provide the licensed dealer with a Brady form. 9. Q. Why can't the Brady form contain information such as P.O.B., gender, race, SS#, etc.? A. Because it is restricted to only 5 areas that are specifically referenced under the new law. ATF is offering the buyer the option to place this information on the Brady form. 10. Q. How much checking does the CLEO have to do? A. The CLEO must conduct a check that involves a reasonable effort to determine whether Federal, State, or local law would prohibit receipt by the transferee. For example, checking NCIC, wanted persons, and triple III. 11. Q. Does the CLEO have to respond to the licensee? A. No, the law does not specifically require a response either way. However, if the CLEO fails to respond on prohibited buyers, the officer would not be preventing the sale from occurring. 12. Q. What is a "handgun" for purposes of the Brady Act? A. The term "handgun" means (a) a firearm which has a short stock and is designed to be held and fired by the use of a single hand and (b) any combination of parts from which a firearm described by (a) can be assembled. 13. Q. Is the dealer required by the Brady Act to obtain and retain a copy of the Brady form? A. Yes. 14. Q. Does the CLEO have to maintain any records? A. No. Within 20 days after the date the Brady form was signed and dated by the purchaser, the CLEO must destroy all records except those that involved prohibited buyers. (4) 15. Q. Does a licensed collector selling a curio of relic handgun have to obtain a Brady form? A. No. Collectors' sales of handguns are not subject to the waiting period requirement. However, a licensed collector would be subject to the requirements of the Brady law if purchasing other than a curio or relic handgun from a licensed dealer. 16. Q. What is the penalty for a buyer's falsification of the Brady form? A. A felony offense under 18 U.S.C. 922(a)(6), 924(a)(1)(A). 17. Q. What is the penalty for the failure of a FFL to obtain the Brady form? A. Whoever knowingly violates these provisions shall be subject to a fine of not more than $100,000, imprisonment for not more than one year, or both. 18. Q. Were there any provisions under the Brady Act other than the 5-day waiting period? A. Yes. The Act contains provisions dealing with multiple sales reports, transport of firearms by common carriers, thefts of firearms from Federal firearms licensees, and an increase in the license fee for dealers in firearms. 19. Q. What is the change regarding the multiple sales report? A. In addition to furnishing multiple sales reports to ATF, licensees are required to submit such reports to the "department of State police or State law enforcement agency of the State or local law enforcement agency of the jurisdiction in which the sale or other disposition took place." 20. Q. Can the CLEO or other law enforcement official maintain a file of Reports of Multiple Sales received from a licensee? A. No. The law prohibits keeping records more than 20 days after the date the form is received by the CLEO. Exceptions would be for those forms involving prohibited persons. (5) 21. Q. Will current Federal firearms dealers (including pawnbrokers) have to pay an additional fee to maintain their license? A. Upon the next renewal of their license they will be required to pay a $90 fee for a 3-year period. 22. Q. Does the new law on common and contract carriers require that intrastate carriers obtain written acknowledgement of delivery of firearms? A. Yes, if the carrier delivers firearms which are being shipped interstate. 23. Q. What is the penalty for theft of a firearm from the person or premises of a licensed dealer? A. As provided by 18 U.S.C. 924(i)(1) - $250,000 fine, 10 years imprisonment, or both. 24. Q. A licensed firearms dealer attends a gunshow in a town distant from his licensed premises and meets a prospective customer who is interested in acquiring a handgun. However, because the handgun may not be delivered until the 5-day waiting period has elapsed, the dealer finds that he will be unable to meet with the customer and deliver the handgun after the period expires. May the dealer transfer the handgun to the gunshow promoter for delivery to the purchaser at the end of the 5-day waiting period? A. No. Assuming the gunshow promoter is unlicensed, the transfer of a handgun between the dealer and the promoter would be subject to the requirements of Brady. Thus, the transfer between the dealer and promoter could not be made without completion of ATF F 5300.35 and compliance with the 5-day waiting period. 25. Q. Dealer A attends a gunshow in a town distant from his licensed premises, but in the same state in which his licensed premises is located, and meets a prospective customer who is interested in acquiring a handgun. May Dealer A transfer the handgun to Dealer B for delivery to the purchaser at the end of the 5-day waiting period? A. Yes. Transfers of handguns between licensees are not subject to the requirements of Brady. Dealer A could transfer the handgun to Dealer B, and Dealer B could then have the purchaser complete ATF Form 5300.35. After Dealer B has complied with the Brady requirements and 5 business days have elapsed, Dealer B could (6) deliver the handgun to the purchaser, assuming the other requirements of the law have been satisfied. In addition, Dealer B should obtain an executed ATF Form 4473 from the purchaser at the time of delivery. 26. Q. What evidence is required for a CLEO to advise a licensee not to sell a handgun to an individual? A. The GCA makes it unlawful for an FFL to transfer a handgun if the FFL has reasonable cause to believe the buyer is prohibited from receiving or possessing the handgun under Federal, State, or local law. The same standard applies to notifications by CLEOs under Brady. Thus, if a records check results in information that an individual may be prohibited from acquiring a handgun, a CLEO would be justified in reporting to the FFL that there is reasonable cause to believe the buyer is a prohibited person. For example, a records check indicates that a purchaser was arrested for a felony but does not indicate the disposition of the charge. CLEOs should make every reasonable effort to determine a disposition of felony charges. However, if a disposition cannot be determined, the CLEO may notify the FFL that there is reasonable cause to believe the buyer is a prohibited person. If the buyer can provide the CLEO with information establishing that he/she was not under indictment for or convicted of the charge, the CLEO could notify the FFL that the CLEO has withdrawn the objection to the sale. Any questions CLEOs have concerning the effect under State law of convictions for various offenses, deferred adjudications, pardons, expunctions, etc. should be addressed to State authorities. Unless the particular offenses were charged in Federal court, State law will dictate whether the offenses are disabling. Questions concerning the effect of these events under Federal law should be addressed to the appropriate ATF Assistant Chief Counsel. 27. Q. What is sufficient evidence that an individual is an unlawful user of or addicted to controlled substances so that a CLEO should advise an FFL not to transfer a handgun to the individual? A. The disability of unlawful use is imposed only upon a present unlawful user of controlled substances. Evidence of such use might, for example, consist of statements of witnesses to such unlawful use, a series of convictions for unlawful possession where possession was of a quantity indicating personal use, a recent (7) conviction for unlawful possession where the quantity possessed indicated personal use, or medical records showing use of or addiction to controlled substances. 28. Q. What forms of identification must a dealer obtain from a purchaser under Brady? A. The identification document presented by the purchaser must have a photo of the purchaser, name, address, and date of birth, and must be issued by a governmental entity for the purposes of identification of individuals. Examples of acceptable identification documents are driver's licenses and passports. 29. Q. If a CLEO will accept notification only by mail, what evidence should the dealer obtain to establish the date on which the CLEO received actual notice so he will know when the 5-day waiting period begins? A. If a CLEO is notified by mail, licensees are required to send the notice by registered or certified mail (return receipt requested) or by any other method of mailing which will provide a written receipt. The date of receipt by the CLEO will be indicated on the return receipt returned to the FFL. The date of receipt will determine when the 5-day waiting period begins. 30. Q. What records should a CLEO check to determine whether the purchaser is prohibited from receiving or possessing firearms due to drug abuse, a dishonorable discharge, or being an illegal alien? A. Brady requires CLEOs to make a "reasonable effort" to ascertain within 5 business days whether the buyer's receipt or possession of a handgun would be in violation of law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General (NCIC). The law clearly anticipates some minimal effort to check available records. Thus, the CLEO should check every available record system that may contain information relating to the categories of prohibited persons, including drug abusers, individuals dishonorably discharged from the military, and illegal aliens. For example, if centralized mental health records are maintained in the jurisdiction and are accessible by the CLEO, the CLEO should make a (8) "reasonable effort" to determine whether the individual has been committed to a mental institution. Criminal records systems available to the CLEO may disclose whether the purchaser is possibly an unlawful user of controlled substances or an illegal alien. It is difficult to prescribe what type of records search is a "reasonable effort" in every instance. The level of research will vary from CLEO to CLEO, depending on the resources available, the personnel available to conduct the searches, and the law enforcement priorities of the CLEO's jurisdiction. 31. Q. When must a purchaser complete ATF F 5300.35? At what point in the transaction is the purchaser required to execute the ATF F 4473? A. Brady requires that ATF F 5300.35 be completed at the time the buyer expresses an intent to acquire a handgun from a licensee. The firearm need not be in the licensee's inventory as long as the buyer has the intent to acquire a handgun. The instructions on ATF F 4473 provide that the form is to be executed by the transferee at the time of delivery of the firearm. Thus, ATF Form 5300.35 would be executed prior to sale of a handgun and Form 4473 would be executed after the sale is made, at the time of delivery of the handgun. 32. Q. Can a CLEO maintain a data base of handgun purchasers? If so, what kind of information can be maintained in the data base? A. CLEOs are required to destroy Forms 5300.35 and records containing information derived from the forms within 20 business days after the date the form was executed. However, CLEOs need not destroy forms or information derived from forms if the purchaser is found to be prohibited by law from receiving or possessing a handgun. Thus, the Brady law does not prohibit CLEOs from maintaining a data base of individuals who are prohibited by law from receiving or possessing handguns. 33. Q. Can a dealer maintain a data base of handgun purchasers? A. Federal law does not preclude a dealer from maintaining a data base of handgun purchasers. However, such a data base would not excuse a dealer from complying with the requirements of Brady for each handgun sale, transfer, or delivery. (9) 34. Q. If a CLEO advises an FFL not to transfer a handgun to an individual, does the individual have any appeal rights? A. The individual may request the CLEO to provide the reason for the determination. The CLEO is required to provide reasons for the determination in writing within 20 business days after receipt of the request. The law provides that CLEOs and other persons responsible for providing criminal history background information are not liable for damages for preventing the sale of a handgun to an individual who may lawfully receive or possess a handgun. 35. Q. Brady requires a dealer to wait 5 "business days" before transferring a handgun to a purchaser. What are "business days?" A. "Business days" are days on which State offices in the State where the dealer's premises is located are open. If State offices are not open on Saturday and Sunday, these days do not count as "business days," even if the CLEO is open on these days. 36. Q. May a CLEO charge licensees a fee for performing a background check? If so, and the licensee refuses to pay the fee, is the CLEO still required to perform the records check? A. The Brady law does not prohibit the imposition of fees for performing records checks. Such fees would be imposed pursuant to applicable State and local law. If State law prohibits the sale of a handgun unless the fee for the records check is paid, then such a sale could not be made. Under these circumstances a CLEO would have no obligation to perform a records check. 37. Q. Is the redemption of a pawned handgun subject to the requirements of the Brady law? If so, may the pawnbroker obtain an executed Form 5300.35 and comply with the waiting period requirements before the redemption of the handgun so that at the time of redemption the handgun may be returned to the owner without further delay? A. The transfer of a pawned handgun from the licensed pawnbroker to the owner is subject to the requirements of Brady. The licensee may have the owner of the handgun execute the Form 5300.35 at the time the handgun is pawned or at any time during the redemption (10) period. Thus, the licensee may comply with the waiting period requirement prior to the redemption of the handgun. 38. Q. A handgun is delivered to a licensee by an unlicensed individual for the purposes of repair. Is the return of the repaired handgun subject to the requirements of the Brady law? Would the transfer of a replacement handgun from the licensee to the owner of the damaged handgun be subject to the requirements of Brady? A. Neither the transfer of a repaired handgun nor the transfer of a replacement handgun would be subject to the requirements of the Brady law. Completion of ATF F 4473 is also not required. However, the licensee's permanent acquisition and disposition records should reflect the return of the handgun or transfer of a replacement handgun. 39. Q. In light of the Brady law, may a licensee sell, transfer, or deliver a handgun to a nonlicensed individual who does not appear in person at the licensed premises? A. No. Unless the purchaser appears in person at the licensed premises, the licensee cannot comply with the requirement in the Brady law that the identity of the purchaser be verified by means of a Government-issued identification document containing a photograph. 40. Q. When does the 5-day waiting period begin to run under the Brady law? A. The 5-day waiting period runs from the time the CLEO receives actual notice of the contents of ATF F 5300.35 not from the time ATF F 5300.35 is received by the CLEO. FFL's are required by regulation to comply with the CLEO's instructions as to the manner in which actual notice must be given. 41. Q. What are the legal implications if a CLEO refuses to do the background check and the dealer sells a handgun to a prohibited person? A. The dealer is prohibited from making a sale if he/she has "reasonable cause to believe" that the buyer is a prohibited person. Assuming that the dealer does not have "reasonable cause to believe" that the buyer is -11- prohibited and the CLEO has not made a reasonable effort to conduct a background check as required by law, the dealer may deliver the handgun after expiration of the 5-day waiting period. 42. Q. If an alien legally in the United States has a letter from his embassy or consulate authorizing him to purchase a firearm, would his purchase of a handgun from a licensed dealer be subject to the Federal 5-day waiting period? A. The GCA makes it unlawful for a licensee to sell or deliver a handgun to a person who does not reside in the State in which the licensee's business premises is located. An alien legally in the United States having such an embassy or consulate letter is considered a resident of the State in which the embassy or consulate is located and may purchase a firearm from a licensee in that State. If the Federal 5-day waiting period applies to licensees' sales of handguns in that State, the alien's purchase of a handgun from a licensee would be subject to the waiting period. It should be noted that if State law prohibits the licensee from selling handguns, the letter of an embassy or consulate in that State authorizing the purchase of a firearm would not allow the alien to purchase a handgun. For example, a letter issued by an embassy in the District of Columbia, where the sale of handguns is prohibited, would not permit the alien to buy a handgun. 43. Q. The regulations require that dealers in alternative states with "instant check" systems retain with the Form 4473, a statement showing the date of verification, any identifying number, and the name, location, and title of the Government official who did the check. If the Government official refuses to provide FFLs with their name or any of the other information, will the FFL be in violation of the regulation? A. FFLs in "instant check" states should request all of the information listed in the regulation. However, if the individual responding to the requested background check refuses to provide the information, the FFL should record all available information and attach it to the Form 4473, including a notation that the individual refused to provide a name, etc. -12- 44. Q. If an individual repeatedly pawns the same firearm, is the FFL required to do a records check each time the firearm is redeemed? A. The fact that the transferee has redeemed the handgun before does not excuse the licensee from complying with the law. The transferee must obtain an executed Form 5300.35, give notice, and comply with all the other requirements of the law before transferring the handgun to the transferee.