Report for S.169 – a bill to establish waiting periods

The following is the report that I delivered to the House on S.169, which addresses procedures related to firearms and establishes a 24-hour waiting period for the purchase of handguns.


S.169 amends certain provisions of last year’s Act 94 related to large capacity ammunition feeding devices, which I will refer to as large capacity magazines, and background checks.  It also clarifies the implementation of the extreme risk protection orders in last year’s Act 97. Finally, it creates a 24-hour waiting period for the purchase of handguns.

I will first discuss the waiting period and then turn to the other provisions of the bill.

The presence of a firearm dangerously compounds the risk of impulsive acts of violence, especially suicide.  Waiting periods create an important cooling off window for gun purchasers to reconsider their intentions, which can lead to a change of heart and a saved life.  In addition, waiting periods provide additional time for the completion of a thorough background check.

S.169 would establish a 24-hour waiting period for the purchase of handguns. In urging this body to concur with the Senate bill, I will discuss five rationales for supporting this bill: the stories of Vermonters, expert testimony, data, logic, and compromise.

By stories, I mean the real-life accounts of family, friends, and neighbors lost to firearm violence. In December Andrew Black committed suicide in Essex with a handgun that he had purchased four hours earlier. Rob Black explained to the House Judiciary Committee that his son had shown no signs of depression.  A breakup with his girlfriend triggered the impulsive act of purchasing a handgun and, shortly after, using it to end his life. A waiting period could have interrupted this chain of events. Others testified to the traumatic effect of suicide on those who knew the victim and live with the doubt and questions as to what they could have done differently to help their friend or family member avoid that fate.

As for expert testimony, the Judiciary Committee heard from a specialist in pediatric critical care who is also a member of the Community Violence Prevention Task Force. She testified that many suicide attempts occur with little planning during a short-term crisis and that those who attempt suicide impulsively are more likely to choose a violent method.  Studies confirm that most suicide survivors contemplated their actions for only a brief period of time – often less than 24 hours – before making a suicide attempt.

Firearms are the most lethal means of suicide, she explained, with over 85% of firearm suicide attempts resulting in death. This fact is especially important because almost all people who survive a suicide attempt go on to live out their lives and do not subsequently die by suicide.  Contrary to common belief, the vast majority of suicide survivors recover and do not remain suicidal.

Based on this witness’s experience and her understanding of the scientific studies, she concluded that restrictions on highly lethal means would lead to fewer suicide deaths. A waiting period for purchasing handguns is such a restriction. National and State physician organizations support this conclusion.  The American Academy of Pediatrics, the American College of Physicians, the American Medical Association, the Vermont Chapter of the American Academy of Pediatrics, and the Vermont Medical Society all support the passage of a waiting period.

In addition to helping prevent suicides, this waiting period may also help prevent homicides.  A representative of the Vermont Network Against Domestic and Sexual Violence testified that firearms are the most frequently-used weapons in domestic homicides and that over half of all homicides in Vermont are domestic violence-related. A cooling off period can help prevent impulsive violence in domestic disputes.

Some argue that victims in domestic abuse situations need handguns immediately for selfdefense.  But handguns are not a panacea in those situations.  The witness from the Network explained that firearms do not increase victim safety and are rarely used in self-defense by victims of domestic violence – for every one time a woman used a handgun to kill someone in self-defense, 83 women were murdered with a firearm by their partner.  She concluded that S.169 would reduce the likelihood of these impulsive acts of violence.

Representatives of the Attorney General’s Office and of the Department of State’s Attorneys and Sheriffs testified, supporting the bill as a positive step for public safety.  They also noted that having a waiting period for handgun purchases would help in combatting the drug trade.  Currently, traffickers bring drugs into Vermont and exchange them for handguns, some that are purchased by Vermont residents near the time of the transaction. The waiting period would be an obstacle to such a deal.  It would make Vermont less attractive to those trading drugs for guns.

Data also supports S.169.  Studies published in respected scientific journals support the conclusion that a waiting period will reduce firearm violence. A 2015 study in the American Journal of Public Health published research showing that states with waiting period laws had 51% fewer firearm suicides and a 27% lower overall suicide rate than states without such laws. When South Dakota repealed its 48-hour waiting period for handgun purchases in 2009, overall suicides the following year increased by 7.6% compared with a 3.3% increase for the United States in general.

Another Study from 2017 in the Proceedings of the National Academy of Science concluded that a cooling off period significantly reduces the incidence of gun violence.  The authors estimated that waiting periods on handguns reduce gun homicides by roughly 17% and gun suicides by 7 to 11%.

In the end, however, it is the logic of a waiting period that provides the strongest rationale for the passage of S.169.  Lethal harm to oneself or another can occur when an impulsive act is combined with accessibility to a lethal weapon.  A waiting period provides time to cool off, to let the heat of the moment pass, to distance impulsivity from the ability to acquire a handgun.

I’ve talked about stories, expert testimony, data, and logic.  Another reason to support S.169 is that it reflects a compromise between proponents and opponents of firearm restrictions. The bill eases a number of restrictions on the transfer and use of large capacity magazines. Under current law, individuals may not transfer large capacity magazines in Vermont.  S.169 provides that individuals who own large capacity magazines may transfer them to immediate family members in a will.

In addition, last year’s law allowed large capacity magazines to be transported into Vermont for use in shooting competitions.  But under current law, that authority will sunset in June of this year.  S.169 would allow the continuation of the transport of these devices for organized shooting competitions. Without the provisions in S.169, such shooting competitions in Vermont would effectively come to an end.

Furthermore, the bill broadens the definition of immediate family members who do not need to obtain a background check for private sales or transfers between immediate family members.  In short, these provisions reduce certain restrictions on firearm owners.

The terms of the waiting period itself also represent a compromise.  Proponents of a waiting period urged the legislature to have a longer waiting period – either 48 or 72 hours.  They also wanted the waiting period to extend to all firearms. A 24-hour period for handguns is a compromise that reduces the burden of the waiting period on gun shows while also providing the important interruption of impulsive purchases and impulsive intent to harm oneself or others.

Having the waiting period extend to handguns only will still provide significant benefits.  According to the Department of Justice, Bureau of Justice Statistics, between 1993 and 2011, handguns were used in from 70 to 84 percent of firearm-related crimes. A study of firearm fatalities conducted by Vermont Public Radio found that handguns are used in 2/3 of firearm suicides in Vermont.

Section by Section Summary

  1. 169 makes several amendments related to firearms procedures.

Section 1 of the bill deals with large capacity magazines.  Last year, the General Assembly passed Act 94, found at 13 VSA § 4021, which generally prohibits the possession of large capacity magazines – no more than 10 rounds for long guns and no more than 15 rounds for handguns.  There were a number of exceptions to this general prohibition, and Section 1 of this bill concerns those exceptions.

First, subdivision (c)(1)(A) provides that a Vermont resident who lawfully possesses a large capacity magazines may transfer it from one immediate family member to another immediate family member by a lawfully executed will. As provided in Section 2 of the bill described below, the definition of immediate family member is expanded.

Second, in subdivision (d)(1)(B), the prohibition on possession of large capacity magazines does not apply if the device is transferred to or possessed by a Vermont or federal law enforcement officer for legitimate law enforcement purposes. However, law enforcement officers from other states were omitted, so S.169 includes them here.  This subdivision provides that the prohibition does not apply to a large capacity magazines possessed by an out-of-state law enforcement officer who is called into this State to assist a Vermont officer for legitimate law enforcement purposes.

Act 94 also included an exception to the magazine ban for devices transported into Vermont by a resident of another state for a shooting competition. However, this exception was sunsetted, so it expires on July 1, 2019.  S.169 makes three changes to this exception: (1) First, the language is changed slightly from an “established” shooting competition to an “organized” shooting competition, which the sportsmen’s groups indicated more accurately describes the events; (2) Second, the exception is expanded to include Vermonters as well as out of state residents, so Vermonters can possess and use large capacity magazines at the competitions so long as the device was grandfathered in by being lawfully possessed on or before October 1, 2018; (3) and Third, which you have to turn to Section 6 at the end of the bill to see, the sunset on the shooting competition is repealed, which means that possession and use of the magazines at shooting competitions will continue to be permitted in the future.

Section 2 of the bill addresses the background check requirement for firearms purchases, which was also established in Act 94 last year.  Under that provision, background checks were generally required for all firearms transfers, though again there were a number of exceptions.  One of those exceptions applied to transfers between immediate family members.  Section 2 of the bill expands the list of immediate family members to include a parent-in-law, a sibling-in-law, aunt, uncle, niece, and nephew.  As a result, transfers between additional family members can be made without needing a background check.

Section 3 of the bill establishes the new waiting period requirement for hand gun transfers. Under this section, a handgun cannot be transferred until 24 hours after completion of the background check required by federal or state law.

In addition to providing a cooling off period, this waiting period addresses a gap in the law, known as “default proceed” or the Charleston Loophole.  Federal law allows a dealer to deliver a gun to a purchaser as soon as a background check is completed, which usually takes only a few minutes.  Sometimes, however, a background check may not be instantly completed.  In such a situation, after three business days have passed, the dealer may provide the firearm to the purchaser, even if a background check is incomplete.  Each year over 3000 ineligible persons receive firearms through this default provision nationwide.  Dylann Roof was one individual who obtained a firearm without a completed background check, which would have revealed that he was a prohibited person, not allowed to obtain a firearm.  He used that firearm to kill nine people at Emanuel AME Church in Charleston.

Individuals should not be able to skirt the background check by taking advantage of this gap in the law.  S.169 would close this gap.  The 24-hour waiting period would commence upon completion of the background check, including in those instances when law enforcement needs additional time to do its work, such as, for example, determining if the purchaser is subject to a domestic violence restraining order.

Under subsection (c), the waiting period does not apply to a transfer that does not require a background check.  This means that a hand gun may be transferred without a waiting period if one of the exceptions to the background check requirement applies, such as transfers between immediate family members and law enforcement officers, transfers in emergency situations, or temporary loans.

Sections 4 and 5 of the bill concern Vermont’s extreme risk protection order statute that was passed in Act 97 last year. Act 97 established a procedure for a State’s Attorney or the Attorney General to obtain a court order, called an Extreme Risk Protection Order (known as an ERPO).  Such an order temporarily prohibits a person from possessing a dangerous weapon if the court finds that the person’s possession of the weapon poses an extreme risk of harm to the person or to other people. It came to the Senate Judiciary Committee’s attention, however, that some health care providers who would like to provide relevant information to law enforcement officers about potentially dangerous people are unsure if they can do so without violating the privacy provisions of HIPAA, the Health Insurance Portability and Accountability Act of 1996.

When the Senate Judiciary Committee reviewed this issue, it discovered that HIPAA already includes a relevant exception.  Health care providers can disclose information when the provider believes in good faith that disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public. This imminent threat standard is essentially the same as the extreme risk standard that we have in the ERPO law.  Section 4 makes that connection explicit by clarifying that an imminent threat includes circumstances when the health care provider reasonably believes that the patient poses an extreme risk of causing harm to himself or herself or another person by purchasing, possessing, or receiving a dangerous weapon.  Having this language gives health care providers the confidence to let law enforcement officers know when an extreme risk exists.

Section 5 is an attempt to gather information on the use of ERPOs in Vermont. It requires the Court Administrator, with the assistance of the Agency of Human Services, to report data on ERPO use annually to the Senate and House Committees on Judiciary.  The report will include the number of petitions filed and the number of orders issued, the county where the petition was filed, and follow-up information describing whether the order was renewed or terminated and whether the subject of the order was charged with violating it. In addition, the Agency of Human Services is required to include in the reports an analysis of the impact of extreme risk prevention orders on Vermont suicide rates.

As I mentioned earlier, Section 6 repeals the sunset for use of large capacity magazines in organized shooting competitions.

Section 7 provides that the bill takes effect on passage.

We heard from numerous witnesses.  We also held a  public hearing where we heard from 61  community members.

The vote in committee was 7-4-0.