2016 North Dakota Century Code Title 62.1 Weapons Chapter 62.1-01 Definitions - General Provisions
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TITLE 62.1
WEAPONS
CHAPTER 62.1-01
DEFINITIONS - GENERAL PROVISIONS
62.1-01-01. General definitions.
As used in this title, unless the context otherwise requires:
1. "Dangerous weapon" includes any switchblade or gravity knife, machete, scimitar,
stiletto, sword, dagger, or knife with a blade of five inches [12.7 centimeters] or more;
any throwing star, nunchaku, or other martial arts weapon; any billy, blackjack, sap,
bludgeon, cudgel, metal knuckles, or sand club; any slungshot; any bow and arrow,
crossbow, or spear; any weapon that will expel, or is readily capable of expelling, a
projectile by the action of a spring, compressed air, or compressed gas, including any
such weapon, loaded or unloaded, commonly referred to as a BB gun, air rifle, or CO2
gun; and any projector of a bomb or any object containing or capable of producing and
emitting any noxious liquid, gas, or substance. "Dangerous weapon" does not include
a spray or aerosol containing CS, also known as ortho-chlorobenzamalonitrile; CN,
also known as alpha-chloroacetophenone; or other irritating agent intended for use in
the defense of an individual, nor does the term include a device that uses voltage for
the defense of an individual, unless the device uses a projectile and voltage, then the
term includes the device for an individual who is prohibited from possessing a firearm
under this title. However, the term includes a device that uses a projectile and may be
used to apply multiple applications of voltage during a single incident.
2. "Direct supervision of an adult" means that an adult is present in such close proximity
so as to be capable of observing and directing the actions of the individual supervised.
3. "Firearm" or "weapon" means any device which will expel, or is readily capable of
expelling, a projectile by the action of an explosive and includes any such device,
loaded or unloaded, commonly referred to as a pistol, revolver, rifle, gun, machine gun,
shotgun, bazooka, or cannon. For a felon who is not sentenced under section
12.1-32-09.1, the term does not include a firearm or weapon that is a rifle that has a
barrel sixteen inches [40.64 centimeters] or longer or a shotgun that has a barrel
eighteen inches [45.72 centimeters] or longer and which is one of the following:
a. A firearm, including any firearm with a matchlock, flintlock, percussion cap, or
similar type of ignition system, manufactured before 1899.
b. A replica of any firearm described in subdivision a, if the replica is not designed or
redesigned for using rimfire or conventional centerfire fixed ammunition or uses
rimfire or conventional centerfire fixed ammunition that is no longer manufactured
in the United States and which is not readily available in the ordinary channels of
commercial trade.
c. A muzzleloading rifle or muzzleloading shotgun that is designed to use black
powder, or a black powder substitute, and cannot use fixed ammunition.
4. "Gaming site" means any room or premises licensed by the attorney general or by a
city or county governing body to conduct legal gaming operations.
5. "Government building" means a building which is owned, possessed, or used by or
leased to the state of North Dakota, or any of its political subdivisions.
6. "Handgun" means any firearm that is not designed to be fired from the shoulder, which
has a barrel less than sixteen inches [40.64 centimeters] long, and which is capable of
firing, by the energy of an explosive in a fixed metallic cartridge, an exposed projectile
through a rifled bore. The term includes all firearms that are designed to be readily
modified between rifle and pistol forms, if in compliance with the National Firearms Act
[26 U.S.C. 5801-5872].
7. "Law enforcement officer" means a public servant authorized by law or by a
government agency or branch to enforce the law and to conduct or engage in
investigations or prosecutions for violations of law.
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"Machine gun, submachine gun, or fully automatic rifle" means a firearm, mechanism,
or instrument not requiring that the trigger be pressed for each shot, and having a
reservoir, belt, or other means of storing and carrying ammunition which can be loaded
into the firearm, mechanism, or instrument and fired therefrom at a rate of five or more
shots to the second.
"Plain view" means the handgun is placed in such a location or carried in such a
position as to be easily discernible by the ordinary observation of a passerby. In a
motor vehicle, this includes being placed on the seat, dashboard, or in a gunrack as
long as the handgun is not covered or is in any other way concealed from view.
"Rifle" means any firearm designed or redesigned, made or remade, and intended to
be fired from the shoulder and using the energy of the explosive in a fixed metallic
cartridge to fire only a single projectile through a rifled bore for each pull of the trigger.
"Secured" means the firearm is closed into the trunk or nonpassenger part of the
vehicle; placed into a closed and secure carrying device; rendered inoperative by the
use of a trigger, hammer, cylinder, slide, or barrel-locking device that renders the
firearm incapable of firing until the device is unlocked and removed; or so
disassembled or disabled as to be rendered incapable of firing.
"Short-barreled rifle" means a rifle having one or more barrels less than sixteen inches
[40.64 centimeters] in length and any firearm made from a rifle, whether by alteration,
modification, or otherwise, if the firearm, as modified, has an overall length of less than
twenty-six inches [66.04 centimeters].
"Short-barreled shotgun" means a shotgun having one or more barrels less than
eighteen inches [45.72 centimeters] in length and any firearm made from a shotgun,
whether by alteration, modification, or otherwise, if the firearm, as modified, has an
overall length of less than twenty-six inches [66.04 centimeters].
"Shotgun" means a firearm designed or redesigned, made or remade, and intended to
be fired with one hand below or behind and one hand in front of the breach, which
uses the energy of the explosive in a fixed shotgun shell to fire through a smooth or a
rifled bore either a number of ball shot or a single projectile for each single pull of the
trigger.
"Silencer" means any device for or attached to any firearm which will silence or
deaden the sound or natural report of the firearm when it is discharged.
"Unloaded" means the chamber of the firearm does not contain a loaded shell. If the
firearm is a revolver, then none of the chambers in the cylinder may contain a loaded
shell.
62.1-01-02. Forfeiture of dangerous weapon or firearm by person arrested and
convicted of crime.
1. Any firearm or dangerous weapon used or possessed while in the commission of a
felony or a misdemeanor involving violence or intimidation must be seized and, upon
conviction and by motion, forfeited to the jurisdiction in which the arrest was made or
the jurisdiction in which the charge arose. Except as provided in chapter 29-01 for
stolen property, the forfeited dangerous weapon may be, pursuant to court order, sold
at public auction, sold or traded to other law enforcement agencies or dealers, retained
for use, or destroyed.
2. Notwithstanding any other provision of law; and subject to the duty to return firearms to
innocent owners under this section, section 29-31.1-02, and as provided in chapter
29-01 for stolen property; all firearms, as defined in section 62.1-01-01, which are
forfeited, recovered as stolen and unclaimed, or abandoned to any law enforcement
agency of this state or a political subdivision of this state, including the game and fish
department, or that are otherwise acquired by the state or a political subdivision of the
state and are no longer needed, shall be disposed of as provided in this section.
Except as provided in chapter 29-01 for stolen property, this section does not apply to
firearms that are seized or confiscated and disposed of under chapter 20.1-10.
3. a. Before the disposal of any firearm under this section, the agency with custody of
the firearm shall use its best efforts to determine if the firearm has been lost by, or
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stolen or otherwise unlawfully obtained from, an innocent owner and, if so, shall
provide notification to the innocent owner of its custody of the firearm. An
innocent owner may also notify the agency to claim a firearm.
After notification, the agency shall return the firearm to its innocent owner
provided the owner submits sufficient proof of ownership, as determined by the
agency, and pays the costs, if any, of returning the firearm to the innocent owner.
Costs are limited to the actual costs of shipping to the innocent owner and
associated costs from any transfer and background check fees charged when
delivering the firearm to the innocent owner.
If six months elapse after notification to the innocent owner of the custody of the
firearm by an agency and the innocent owner fails to bear the costs of return of
his or her firearm or fails to respond to the agency notification, or if six months
elapse after notice of a claim by an innocent owner and the innocent owner fails
to bear the costs of return of the innocent owner's firearm or take away the
innocent owner's firearm, then the agency shall dispose of the firearm as
provided in this section.
Except as provided in subdivision b of subsection 3 or subsection 5, the agency
shall dispose of the firearms that it receives under subsection 2 by sale at public
auction to persons that may lawfully possess a firearm and persons licensed as
firearms collectors, dealers, importers, or manufacturers under the provisions of
18 U.S.C. section 921 et seq., and authorized to receive such firearms under the
terms of the licenses.
The auction required by this subsection may occur online on a rolling basis or at
live events, but in no event may the auction occur less frequently than once every
year during any time the agency has an inventory of saleable firearms. The
agency shall establish a procedure to notify persons of its auctions.
The agency may not retain proceeds above that which are necessary to cover the
costs of administering this subsection, with any surplus to be transferred to the
general fund of the jurisdiction in which the agency is located, provided that an
agency may be reimbursed for any firearms formerly in use by the agency that
are sold under this section.
Employees of the agency are not eligible to bid on the firearms at an auction
conducted under this subsection, and except for the amounts authorized under
subdivision c of this subsection, neither the agency nor its employees may retain
any proceeds from any sale required by this subsection, nor may the agency or
its employees retain any firearm required to be sold under this subsection.
The requirements of subsection 4 do not apply to a firearm if there are not any
bids from eligible persons received within six months from when bidding opened
on the firearm, or if the agency director, sheriff, chief of police, or a designee of
the official certifies that the firearm is unsafe for use because of wear, damage,
age, or modification or because any federal or state law prohibits the sale or
distribution of the firearm. The agency director, sheriff, chief of police, or a
designee of the official, may transfer any of these firearms to the attorney
general's crime laboratory for training or experimental purposes, or to a museum
or historical society that displays these items to the public and is lawfully eligible
to receive the firearm, or the firearm may be destroyed. The requirements of
subsection 4 do not apply to a firearm and an agency director, sheriff, chief of
police, or a designee of the official may destroy the firearm, if:
(1) The firearm was used in a violent crime, in an accidental shooting, or a
self-inflicted shooting resulting in the death of an individual;
(2) There is not a claim for the firearm by an innocent owner; and
(3) A family member of the deceased individual makes a written request for the
destruction of the firearm.
Agencies subject to the provisions of this subsection may establish a procedure
to destroy firearms and may expend necessary funds for that purpose.
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All agencies subject to the provisions of this section shall keep records of the firearms
acquired and disposed of as provided in this section, as well as the proceeds of the
sales and the disbursement of the proceeds, and shall maintain these records for not
less than ten years from the date on which a firearm is disposed of or on which a
disbursement of funds is made, as the case may be.
Neither the state nor any political subdivision of the state, nor any of their officers,
agents, and employees, is liable to any person, including the purchaser of a firearm,
for personal injuries or damage to property arising from the sale or disposal of a
firearm under subsection 4 or 5 of this section, unless an officer, agent, or employee of
the state or political subdivision acted with gross negligence or recklessness.
As used in this section, the term "innocent owner" means a person who:
a. Did not beforehand know or in the exercise of ordinary care would not have
known of the conduct which caused that person's firearm to be forfeited, seized,
or abandoned to any law enforcement agency of the state or any political
subdivision of the state, including the game and fish department;
b. Did not participate in the commission of a crime or delinquent act involving that
person's firearm;
c. Legally owned and presently owns the firearm forfeited, seized, or abandoned;
and
d. Is authorized by state and federal law to receive and possess his or her firearm.
62.1-01-03. Limitation on authority of political subdivision regarding firearms.
A political subdivision, including home rule cities or counties, may not enact any ordinance
relating to the purchase, sale, ownership, possession, transfer of ownership, registration, or
licensure of firearms and ammunition which is more restrictive than state law. All such existing
ordinances are void.
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