Department of State Police criminal background checks for gun show firearm transfers; prohibited transfer report; liability
(1)The Department of State Police shall make the telephone number established under ORS 166.412 (Definitions) (5) available for requests for criminal background checks under this section from persons who are not gun dealers and who are transferring firearms at gun shows.
(2)Prior to transferring a firearm at a gun show, a transferor who is not a gun dealer may request by telephone that the department conduct a criminal background check on the recipient and shall provide the following information to the department:
(a)The name, address and telephone number of the transferor;
(b)The make, model, caliber and manufacturer’s number of the firearm being transferred;
(c)The name, date of birth, race, sex and address of the recipient;
(d)The Social Security number of the recipient if the recipient voluntarily provides that number;
(e)The address of the place where the transfer is occurring; and
(f)The type, issuer and identification number of a current piece of identification bearing a recent photograph of the recipient presented by the recipient. The identification presented by the recipient must meet the requirements of ORS 166.412 (Definitions) (4)(a).
(3)(a) Upon receipt of a request for a criminal background check under this section, the department shall immediately, during the telephone call or by return call:
(A)Determine from criminal records and other information available to it whether the recipient is disqualified under ORS 166.470 (Limitations and conditions for sales of firearms) from completing the transfer or is otherwise prohibited by state or federal law from possessing a firearm; and
(B)Notify the transferor when a recipient is disqualified from completing the transfer or provide the transferor with a unique approval number indicating that the recipient is qualified to complete the transfer. The unique approval number is a permit valid for 24 hours for the requested transfer. If the firearm is not transferred from the transferor to the recipient within 24 hours after receipt of the unique approval number, a new request must be made by the transferor.
(b)If the department is unable to determine whether the recipient is qualified for or disqualified from completing the transfer within 30 minutes of receiving the request, the department shall notify the transferor and provide the transferor with an estimate of the time when the department will provide the requested information.
(4)A public employee or public agency incurs no criminal or civil liability for performing the criminal background checks required by this section, provided the employee or agency acts in good faith and without malice.
(5)(a) The department may retain a record of the information obtained during a request for a criminal background check under this section for the period of time provided in ORS 166.412 (Definitions) (7).
(b)The record of the information obtained during a request for a criminal background check under this section is exempt from disclosure under public records law.
(c)If the department determines that a recipient is prohibited from possessing a firearm under ORS 166.250 (Unlawful possession of firearms) (1)(c), the department shall report the attempted transfer, the recipient’s name and any other personally identifiable information to all federal, state and local law enforcement agencies and district attorneys that have jurisdiction over the location or locations where the attempted transfer was made and where the recipient resides.
(d)If the department determines that, based on the judgment of conviction, the recipient is prohibited from possessing a firearm as a condition of probation or that the recipient is currently on post-prison supervision or parole, the department shall report the attempted transfer to the recipient’s supervising officer and the district attorney of the county in which the conviction occurred.
(e)If the department determines that the recipient is prohibited from possessing a firearm due to a court order described in ORS 166.255 (Possession of firearm or ammunition by certain persons prohibited) (1)(a), the department shall report the attempted transfer to the court that issued the order.
(f)If the department determines that the recipient is under the jurisdiction of the Psychiatric Security Review Board, the department shall report the attempted transfer to the board.
(g)Reports required by paragraphs (c) to (f) of this subsection shall be made within 24 hours after the determination is made, unless a report would compromise an ongoing investigation, in which case the report may be delayed as long as necessary to avoid compromising the investigation.
(h)On or before January 31 of each year, a law enforcement agency or a prosecuting attorney’s office that received a report pursuant to paragraph (c) of this subsection during the previous calendar year shall inform the department of any action that was taken concerning the report and the outcome of the action.
(i)The department shall annually publish a written report, based on any information received under paragraph (h) of this subsection, detailing the following information for the previous year:
(A)The number of recipients whom the department determined were prohibited from possessing a firearm under ORS 166.250 (Unlawful possession of firearms) (1)(c), arranged by category of prohibition;
(B)The number of reports made pursuant to paragraph (c) of this subsection;
(C)The number of investigations arising from the reports made pursuant to paragraph (c) of this subsection, the number of investigations concluded and the number of investigations referred for prosecution, all arranged by category of prohibition; and
(D)The number of criminal charges arising from the reports made pursuant to paragraph (c) of this subsection and the disposition of the charges, both arranged by category of prohibition.
(6)The recipient of the firearm must be present when the transferor requests a criminal background check under this section.
(7)(a) Except as otherwise provided in paragraph (b) of this subsection, a transferor who receives notification under this section that the recipient is qualified to complete the transfer of a firearm, has the recipient fill out the form required by ORS 166.438 (Transfer of firearms at gun shows) (1)(a) and retains the form as required by ORS 166.438 (Transfer of firearms at gun shows) (2) is immune from civil liability for any use of the firearm from the time of the transfer unless the transferor knows, or reasonably should know, that the recipient is likely to commit an unlawful act involving the firearm.
(b)The immunity provided by paragraph (a) of this subsection does not apply:
(A)If the transferor knows, or reasonably should know, that the recipient of the firearm intends to deliver the firearm to a third person who the transferor knows, or reasonably should know, may not lawfully possess the firearm; or
(B)In any product liability civil action under ORS 30.900 (“Product liability civil action” defined) to 30.920 (When seller or lessor of product liable). [2001 c.1 §6; 2015 c.50 §3; 2018 c.5 §5; 2018 c.120 §16]
Law Review Citations
51 OLR 427-637 (1972); 69 OLR 169 (1990)