[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2458 Introduced in Senate (IS)]
<DOC>
115th CONGRESS
2d Session
S. 2458
To authorize the Attorney General to deny the transfer of firearms and
explosives and Federal firearms and explosives licenses and permits to
known or suspected terrorists.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 27, 2018
Ms. Collins (for herself, Ms. Heitkamp, Mr. Flake, Mr. Heinrich, Mr.
Toomey, Ms. Baldwin, Mr. King, Mr. Nelson, Mr. Manchin, and Mr. Kaine)
introduced the following bill; which was read twice and referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To authorize the Attorney General to deny the transfer of firearms and
explosives and Federal firearms and explosives licenses and permits to
known or suspected terrorists.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Terrorist Firearms Prevention Act''.
SEC. 2. DISCRETIONARY AUTHORITY TO DENY TRANSFERS OF FIREARMS,
EXPLOSIVES, AND FIREARMS AND EXPLOSIVES LICENSES AND
PERMITS TO TERRORISTS.
(a) Authority.--
(1) In general.--On and after the date of enactment of this
Act, in accordance with the procedures under this section, and
without regard to section 842, 843, section 922(g) or (n), or
section 923 of title 18, United States Code, the Attorney
General may deny the transfer of a firearm, not later than 3
business days after a licensee under chapter 44 of title 18,
United States Code, contacts the national instant criminal
background check system established under section 103 of Public
Law 103-159 (34 U.S.C. 40901), deny the transfer of an
explosive, or deny the issuance of a Federal firearms or
explosives license or permit, if either of the following are
met:
(A) No fly list.--The Attorney General determines
that the transferee or applicant--
(i) based on the totality of the
circumstances, represents a threat to public
safety based on a reasonable suspicion that the
transferee or applicant is engaged, or has been
engaged, in conduct constituting, in
preparation of, in aid of, or related to
terrorism, or providing material support or
resources therefor; and
(ii) based on credible information, poses--
(I) a threat of committing an act
of international terrorism or domestic
terrorism with respect to an aircraft
(including a threat of piracy, or a
threat to airline, passenger, or civil
aviation security);
(II) a threat of committing an act
of domestic terrorism with respect to
the homeland;
(III) a threat of committing an act
of international terrorism against any
United States Government facility
abroad and associated or supporting
personnel, including United States
embassies, consulates and missions,
military installations, United States
ships, United States aircraft, or other
auxiliary craft owned or leased by the
United States Government; or
(IV) a threat of engaging in or
conducting a violent act of terrorism
and is operationally capable of doing
so.
(B) Selectee list.--The Attorney General determines
that the transferee or applicant--
(i) based on the totality of the
circumstances, represents a threat to public
safety based on a reasonable suspicion that the
transferee or applicant is engaged, or has been
engaged, in conduct constituting, in
preparation of, in aid of, or related to
terrorism, or providing material support or
resources therefor; and
(ii) based on credible information, is--
(I) a member of a terrorist
organization (including a foreign
terrorist organization designated
pursuant to a statute or Executive
order); and
(II) associated with terrorist
activity, unless information exists
that demonstrates that the application
of secondary screening to such
individual is not necessary.
(2) NICS.--Solely for purposes of sections 922(t) (1), (2),
(5), and (6) of title 18, United States Code, and section
103(g) of Public Law 103-159 (34 U.S.C. 40901(g)), a denial by
the Attorney General under paragraph (1) shall be treated as
equivalent to a determination that receipt of a firearm would
violate subsection (g) or (n) of section 922 of title 18,
United States Code. During the 3-business-day period beginning
when a licensee under chapter 44 of title 18, United States
Code, contacts the national instant criminal background check
system established under section 103 of Public Law 103-159 (34
U.S.C. 40901), and notwithstanding section 922(t)(2) of title
18, United States Code, the Attorney General may delay
assigning a unique identification number to a transfer of a
firearm in order to determine whether the transferee or
applicant meets the requirements under paragraph (1).
(b) Notification of Prospective Firearms and Explosives Transfers
to Known or Suspected Terrorist.--The Attorney General and Federal,
State, and local law enforcement shall be immediately notified, as
appropriate, of any request to transfer a firearm or explosive to a
person who is, or within the previous 5 years was, identified in the
Terrorist Screening Database maintained by the Terrorist Screening
Center of the Federal Bureau of Investigation.
(c) Review of Denial.--
(1) Remedial procedures and petition for review.--
(A) In general.--An individual who is a citizen or
lawful permanent resident of the United States and who
seeks to challenge a denial by the Attorney General
under subsection (a)(1) may--
(i) pursue the remedial procedures under
section 103(g) of Public Law 103-159 (34 U.S.C.
40901(g)); or
(ii) file a petition for review and any
claims related to that petition in the United
States District Court for the District of
Columbia or in the district court of the United
States for the judicial district in which the
individual resides.
(B) Exhaustion not required.--A petitioner is not
required to exhaust the remedial procedures authorized
under clause (i) of subparagraph (A) before filing a
petition for review under clause (ii) of subparagraph
(A).
(C) Procedures.--Notwithstanding any other
provision of law, the Attorney General may promulgate
regulations governing proceedings under subparagraph
(A)(i) to prevent the unauthorized disclosure of
information that reasonably could be expected to result
in damage to national security or ongoing law
enforcement operations.
(2) Deadlines for filing.--
(A) In general.--Except as provided in subparagraph
(B), a petition for review under paragraph (1)(A)(ii),
and any claims related to that petition, shall be filed
not later than the earlier of--
(i) 1 year after the petitioner receives
actual notice of the reason for the denial by
the Attorney General; or
(ii) 5 years after the petitioner receives
notice of the denial by the Attorney General.
(B) Exception.--The district court in which a
petition for review is to be filed under paragraph
(1)(A)(ii) may allow the petition to be filed after the
deadline specified in subparagraph (A) only if there is
good cause for not filing by that deadline.
(3) Authority of district courts.--The district court in
which a petition for review is filed under paragraph
(1)(A)(ii)--
(A) shall have--
(i) jurisdiction to decide all relevant
questions of law and fact; and
(ii) exclusive jurisdiction to affirm,
amend, modify, or set aside any part of the
denial of the Attorney General that is the
subject of the petition for review; and
(B) may order the Attorney General to conduct
further proceedings.
(4) Exclusive jurisdiction.--
(A) In general.--No district court of the United
States or court of appeals of the United States shall
have jurisdiction to consider the lawfulness or
constitutionality of this section except pursuant to a
petition for review under subsection (c)(1)(A)(ii).
(B) Noncitizens.--No district court of the United
States or court of appeals of the United States shall
have jurisdiction to hear any claim by an individual
who is not a citizen or lawful permanent resident of
the United States related to or arising out of a denial
by the Attorney General under subsection (a)(1).
(d) Requirement for an Administrative Record and Procedures for
Judicial Review.--Notwithstanding any other provision of law, the
following procedures shall apply with respect to a petition for review
filed in a district court under subsection (c)(1)(A)(ii):
(1) The United States shall file with the court an
administrative record, which shall consist of--
(A) the information the Attorney General relied
upon in denying the transfer or application;
(B) a summary of known material mitigation
information;
(C) any information the petitioner has submitted
pursuant to any administrative process; and
(D) any information determined relevant by the
United States.
(2)(A) The petitioner may file with the court any
information determined relevant by the petitioner.
(B) With leave of the court, the United States may
supplement the administrative record with additional
information.
(3) All information in the administrative record that is
not classified and is not otherwise privileged or subject to
statutory protections shall be provided to the petitioner.
(4) No discovery shall be permitted, unless the court shall
determine extraordinary circumstances requires discovery in the
interests of justice.
(5) Sensitive security information contained in the
administrative record may only be provided to petitioners
counsel, pursuant to a protective order.
(6)(A) The administrative record may include classified
information, which the United States shall submit to the court
in camera and ex parte. The court shall review all classified
information in camera and ex parte unless it enters an order
under paragraph (C).
(B) The United States shall notify the petitioner if the
administrative record filed under paragraph (1) contains
classified information.
(C) The court is authorized to determine the extent to
which cleared counsel shall be permitted to access classified
information necessary to protect the due process rights of a
petitioner and enter an appropriate order.
(D)(i) If the court enters an order under subparagraph (C)
providing for the disclosure of information and the United
States files with the court an affidavit of the Attorney
General objecting to the disclosure, the court shall order that
the information not be disclosed.
(ii) If information is not disclosed under clause (i), the
court shall enter such an order as the interests of justice
require, which may include an order quashing the denial by the
Attorney General under subsection (a)(1).
(iii) An order under subparagraph (C) or clause (ii) of
this subparagraph shall be subject to review by a court of
appeals pursuant to section 1292 of title 28, United States
Code.
(iv) An order under clause (ii) shall be administratively
stayed for 7 days.
(v) The functions and duties of the Attorney General under
this subparagraph--
(I) may be exercised by the Deputy Attorney
General, the Associate Attorney General, or by an
Assistant Attorney General designated by the Attorney
General for such purpose; and
(II) may not be delegated to any other official.
(E) Any information disclosed under subparagraph (C) shall
be subject to an appropriate protective order.
(7)(A) The administrative record may include information
obtained or derived from an order issued under the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.),
without regard to subsections (c), (e), (f), (g), and (h) of
section 106 (50 U.S.C. 1806), subsections (d), (f), (g), (h),
and (i) of section 305 (50 U.S.C. 1825), subsections (c), (e),
(f), (g), and (h) of section 405 (50 U.S.C. 1845), and section
706 (50 U.S.C. 1881e) of that Act. If the United States intends
to use such information against an aggrieved person (as defined
in section 101, 301, or 401 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801, 1821, and 1841)), it
shall provide in camera and ex parte notice to the court
concerning such use.
(B) If the court receives a notice under subparagraph (A),
the court shall review, in camera and ex parte, the order
described in that subparagraph and any other materials that may
be submitted by the United States.
(C) If the court determines that the order described in
subparagraph (A) was not lawfully authorized, or the
information was not obtained in conformity with the order, it
shall exclude such information from consideration as part of
the administrative record.
(8) Any classified information, sensitive security
information, law enforcement sensitive information, or
information that is otherwise privileged or subject to
statutory protections, that is part of the administrative
record, or cited by the court or the parties, shall be treated
by the court and the parties consistent with the provisions of
this subsection, and shall be sealed and preserved in the
records of the court to be made available in the event of
further proceedings. In no event shall such information be
released as part of the public record.
(9) The court shall award reasonable attorney fees to a
petitioner who is a prevailing party in an action under this
section.
(10) After the expiration of the time to seek further
review, or the conclusion of further proceedings, the court
shall return the administrative record, including any and all
copies, to the United States. All privileged information or
other information in the possession of counsel for the
petitioner that was provided by the United States under a
protective order shall be returned to the United States, or the
counsel for the petitioner shall certify its destruction,
including any and all copies.
(e) Scope of Review.--The district court shall quash any denial by
the Attorney General under subsection (a)(1), unless the United States
demonstrates, based on the administrative record, on a de novo review
of fact and law--
(1) that the transferee or applicant--
(A) based on the totality of the circumstances,
represents a threat to public safety based on a
reasonable suspicion that the transferee or applicant
is engaged, or has been engaged, in conduct
constituting, in preparation of, in aid of, or related
to terrorism, or providing material support or
resources therefor; and
(B) based on credible information, poses--
(i) a threat of committing an act of
international terrorism or domestic terrorism
with respect to an aircraft (including a threat
of piracy, or a threat to airline, passenger,
or civil aviation security);
(ii) a threat of committing an act of
domestic terrorism with respect to the
homeland;
(iii) a threat of committing an act of
international terrorism against any United
States Government facility abroad and
associated or supporting personnel, including
United States embassies, consulates and
missions, military installations, United States
ships, United States aircraft, or other
auxiliary craft owned or leased by the United
States Government; or
(iv) a threat of engaging in or conducting
a violent act of terrorism and is operationally
capable of doing so; or
(2) that the transferee or applicant--
(A) based on the totality of the circumstances,
represents a threat to public safety based on a
reasonable suspicion that the transferee or applicant
is engaged, or has been engaged, in conduct
constituting, in preparation of, in aid of, or related
to terrorism, or providing material support or
resources therefor; and
(B) based on credible information--
(i) is a member of a terrorist organization
(including a foreign terrorist organization)
designated pursuant to a statute or Executive
order; and
(ii) is associated with terrorist activity,
unless information exists that demonstrates
that the application of secondary screening to
such individual is not necessary.
(f) Effect of Quashing.--If the district court quashes a denial by
the Attorney General under subsection (e), notwithstanding any other
provision of law, the Attorney General shall--
(1) for a denial of the transfer of a firearm, cause a
unique identifier to issue pursuant to section 922(t)(2) of
title 18, United States Code, not later than 3 days after the
issuance of the order under subsection (e); and
(2) for a denial of a license or permit, expeditiously
issue a license or permit under chapter 40 or 44 of title 18,
United States Code, as applicable.
(g) Review of Decision of District Court.--A final decision of a
district court under this section shall be subject to review by a court
of appeals in accordance with section 1291 of title 28, United States
Code.
(h) Exclusive Remedies.--The remedial procedures and a petition for
review authorized under subsection (c)(1)(A) shall be the sole and
exclusive remedies for a claim by an individual who challenges a denial
under subsection (a)(1).
(i) Expedited Consideration.--
(1) Courts.--Not later than 14 days after the date on which
a petition is filed challenging a denial under subsection
(a)(1), a district court shall determine whether to quash the
denial, unless the petitioner consents to a longer period.
(2) Of quashing.--If the district court quashes a denial by
the Attorney General under subsection (e), a petitioner may
submit the order quashing the denial to the Department of
Homeland Security for expedited review, as appropriate.
(j) Transparency.--Not later than 60 days after the date of
enactment of this Act, and quarterly thereafter--
(1) the Attorney General shall submit to the Committee on
the Judiciary and the Select Committee on Intelligence of the
Senate and the Committee on the Judiciary and the Permanent
Select Committee on Intelligence of the House of
Representatives a report providing--
(A) the number of individuals denied a firearm or
explosives transfer or a license or permit under
subsection (a)(1) during the reporting period;
(B) the number of petitions for review filed under
subsection (c)(1)(A)(ii); and
(C) the number of instances in which a district
court quashed a denial by the Attorney General under
subsection (e); and
(2) the Secretary of Homeland Security shall submit to the
Committee on Homeland Security and Governmental Affairs, the
Select Committee on Intelligence, and the Committee on the
Judiciary of the Senate and the Committee on Homeland Security,
the Permanent Select Committee on Intelligence, and the
Committee on the Judiciary of the House of Representatives a
report providing--
(A) the number of individuals--
(i) with respect to whom a district court
quashed a denial by the Attorney General under
subsection (e); and
(ii) who submitted the order quashing the
denial to the Department of Homeland Security
under subsection (i)(2); and
(B) a description of the actions taken and final
determinations made by the Department of Homeland
Security with regard to submissions described in
subparagraph (A)(ii) respecting the status of
individuals on the No Fly List or Selectee List,
including the length of time taken to reach a final
determination.
(k) Definitions.--In this section:
(1) Classified information.--The term ``classified
information'' has the meaning given that term in section 1(a)
of the Classified Information Procedures Act (18 U.S.C. App.).
(2) Domestic terrorism.--The term ``domestic terrorism''
has the meaning given that term in section 2331(5) of title 18,
United States Code.
(3) International terrorism.--The term ``international
terrorism'' has the meaning given that term in section 2331(1)
of title 18, United States Code.
(4) Military installation.--The term ``military
installation'' has the meaning given that term in section
2801(c)(4) of title 10, United States Code.
(5) National security.--The term ``national security'' has
the meaning given that term in section 219 of the Immigration
and Nationality Act (8 U.S.C. 1189).
(6) Sensitive security information.--The term ``sensitive
security information'' has the meaning given that term by
sections 114(r) and 40119 of title 49, United States Code, and
the regulations and orders issued pursuant to those sections.
(7) Terrorist activity.--The term ``terrorist activity''
has the meaning given that term in section 212(a)(3)(B) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)).
(l) Rule of Construction.--Nothing in this section shall be
construed to--
(1) except as set forth in this section, authorize the
Attorney General to modify the length of period before a
firearm may be transferred under section 922(t) of title 18,
United States Code; or
(2) apply to any claim other than a claim challenging the
denial of a firearm, explosive, or issuance of a firearm or
explosives permit or license by the Attorney General.
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