Bill Text: NY A04236 | 2023-2024 | General Assembly | Introduced
Bill Title: Relates to establishing the civil rights restoration act; amends provisions regarding firearm licenses and destruction of firearms; exempts certain individuals from providing photographs in order to obtain a firearm license; expands the definition of immediate family.
Spectrum: Partisan Bill (Republican 11-0)
Status: (Introduced - Dead) 2024-01-03 - referred to judiciary [A04236 Detail]
Download: New_York-2023-A04236-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4236 2023-2024 Regular Sessions IN ASSEMBLY February 13, 2023 ___________ Introduced by M. of A. HAWLEY, BRABENEC, BLANKENBUSH, TAGUE, ANGELINO, GALLAHAN, DeSTEFANO, MANKTELOW -- Multi-Sponsored by -- M. of A. BARCLAY, DiPIETRO, MILLER -- read once and referred to the Committee on Judiciary AN ACT to amend the civil rights law, in relation to establishing the civil rights restoration act; to amend the penal law, in relation to medical and/or clinical records and reporting for purposes of firearm licenses, in relation to the destruction of firearms, in relation to registration of sellers of ammunition, and in relation to exempting certain individuals from having to provide a photograph for firearm licensing purposes; to amend the general business law, in relation to expanding the definition of immediate family; to amend the mental hygiene law, in relation to reporting; to repeal certain provisions of the penal law relating to firearms licenses and sellers of ammunition; and to repeal certain provisions of the mental hygiene law and the executive law, relating to reporting of substantial risk or threat of harm by mental health professionals The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "civil rights restoration act". 3 § 2. The civil rights law is amended by adding a new section 79-r to 4 read as follows: 5 § 79-r. Civil rights restoration. 1. In any proceeding that may impact 6 an individual's rights under the second amendment of the United States 7 constitution, or any similar state right, including such proceedings 8 that could result in the loss of a license to carry or possess a 9 firearm: 10 (a) No court order shall be issued nor proceeding be commenced unless 11 all pleadings or other accusatory instruments have been filed and served 12 in conformity with article thirty of the civil practice law and rules, EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08392-01-3A. 4236 2 1 and where such pleading includes an allegation that the individual has 2 been "involuntarily committed to a mental institution," such pleading 3 shall include an allegation as to the said court order date and juris- 4 diction; 5 (b) The burden of proof in such proceeding shall be no less than clear 6 and convincing evidence; 7 (c) Individuals may examine the entire contents of his or her firearm 8 license records constructed by state and local licensing and law 9 enforcement authorities; 10 (d) There shall be a right to counsel, including the right to assigned 11 counsel, if counsel cannot be afforded; and 12 (e) Any firearms confiscated and/or surrendered into law enforcement 13 evidence status during such proceeding shall not be destroyed, unless 14 specifically directed through a written order by a court of competent 15 jurisdiction at the conclusion of all disqualification proceedings 16 relating to the individual, including any appeals undertaken. 17 2. (a) There shall be contemporaneous written notification to all 18 individuals being reported to any law enforcement database that could 19 result in the deprivation of rights to own, possess, or use a firearm 20 and/or the deprivation of a lawfully owned firearm, including, but not 21 limited to, reports under former section 9.46 of the mental hygiene law 22 and under 18 USC § 922(g). 23 (b) There shall be written notification transmitted within ninety days 24 of the effective date of this section to all individuals previously 25 reported into any law enforcement database that could result in the 26 deprivation of rights to own, possess, or use a firearm and/or the 27 deprivation of a lawfully owned firearm, including, but not limited to, 28 the databases maintained by the office of mental health, the division of 29 criminal justice services, and the division of state police in conjunc- 30 tion with reports made under the former section 9.46 of the mental 31 hygiene law and/or under 18 USC § 922(g)(4), and that such written 32 notification shall include notice that the individual may have a right 33 to commence a proceeding in either the New York state supreme court or 34 county court under article seventy-eight of the civil practice law and 35 rules if he or she believes that the information contained within the 36 notification is in error. 37 (c) Any individual, business, or governmental official who, knowing 38 the information reported, conveyed or circulated to be false, reports 39 that a person has been involuntarily committed, shall be subject to a 40 civil fine of not more than ten thousand dollars per offense. 41 (d) In any proceeding where an individual establishes that a report 42 that he or she was involuntarily committed was false, reasonable attor- 43 ney's fees and costs shall be reimbursed by the state. 44 (e) The state shall correct any false or incorrect report against an 45 individual to state and federal databases, including those under 18 USC 46 §922(g), within seven days of entry and service upon the state of a 47 final order of disposition in a case. The failure of the state to timely 48 do so shall be punishable as a contempt of court. 49 (f) Notwithstanding any law, rule or regulation to the contrary, an 50 individual's medical and/or clinical records shall not be used for 51 routine law enforcement reporting purposes relative to firearms owner- 52 ship, use, possession, or suitability. 53 § 3. Section 400.02 of the penal law, as amended by chapter 371 of the 54 laws of 2022, is amended to read as follows: 55 § 400.02 Statewide license and record database.A. 4236 3 1 1. There shall be a statewide license and record database which shall 2 be created and maintained by the division of state police the cost of 3 which shall not be borne by any municipality. Records assembled or 4 collected for purposes of inclusion in such database shall not be 5 subject to disclosure pursuant to article six of the public officers 6 law, excepting any non-identifying records such as existing statistical 7 tabulations or those capable of being performed or such record responses 8 as can be reasonably satisfied through redacted response. All records 9 containing granted license applications from all licensing authorities 10 shall be monthly checked by the division of criminal justice services in 11 conjunction with the division of state police against criminal 12 conviction, criminal indictment, mental health, extreme risk protection 13 orders, orders of protection, and all other records as are necessary to 14 determine their continued accuracy as well as whether an individual is 15 no longer a valid license holder. The division of criminal justice 16 services shall also check pending applications made pursuant to this 17 article against such records to determine whether a license may be 18 granted. All state and local agencies shall cooperate with the division 19 of criminal justice services, as otherwise authorized by law, in making 20 their records available for such checks. The division of criminal 21 justice services, upon determining that an individual is ineligible to 22 possess a license, or is no longer a valid license holder, shall notify 23 the applicable licensing official of such determination and such licens- 24 ing official shall not issue a license or shall revoke such license [and25any weapons owned or possessed by such individual shall be removed26consistent with the provisions of subdivision eleven of section 400.0027of this article]. Local and state law enforcement shall have access to 28 such database in the performance of their duties. Records assembled or 29 collected for purposes of inclusion in the database established by this 30 section shall be released pursuant to a court order. 31 2. There shall be a statewide license and record database specific for 32 ammunition sales which shall be created and maintained by the division 33 of state police the cost of which shall not be borne by any municipality 34 no later than thirty days upon designating the division of state police 35 as the point of contact to perform both firearm and ammunition back- 36 ground checks under federal and state law. Records assembled or 37 collected for purposes of inclusion in such database shall not be 38 subject to disclosure pursuant to article six of the public officers 39 law, excepting any non-identifying records such as existing statistical 40 tabulations or those capable of being performed or such record responses 41 as can be reasonably satisfied through redacted response. All records 42 containing granted license applications from all licensing authorities 43 shall be monthly checked by the division of criminal justice services in 44 conjunction with the division of state police against criminal 45 conviction, criminal indictments, mental health, extreme risk protection 46 orders, orders of protection, and all other records as are necessary to 47 determine their continued accuracy as well as whether an individual is 48 no longer a valid license holder. The division of criminal justice 49 services shall also check pending applications made pursuant to this 50 article against such records to determine whether a license may be 51 granted. All state and local agencies shall cooperate with the division 52 of criminal justice services, as otherwise authorized by law, in making 53 their records available for such checks. No later than thirty days after 54 the superintendent of the state police certifies that the statewide 55 license and record database established pursuant to this section and the 56 statewide license and record database established for ammunition salesA. 4236 4 1 are operational for the purposes of this section, a dealer in firearms 2 licensed pursuant to section 400.00 of this article, a seller of ammuni- 3 tion as defined in subdivision twenty-four of section 265.00 of this 4 chapter shall not transfer any ammunition to any other person who is not 5 a dealer in firearms as defined in subdivision nine of such section 6 265.00 or a seller of ammunition as defined in subdivision twenty-four 7 of section 265.00 of this chapter, unless: 8 (a) before the completion of the transfer, the licensee or seller 9 contacts the statewide license and record database and provides the 10 database with information sufficient to identify such dealer or seller 11 transferee based on information on the transferee's identification docu- 12 ment as defined in paragraph (c) of this subdivision, as well as the 13 amount, caliber, manufacturer's name and serial number, if any, of such 14 ammunition; 15 (b) the licensee or seller is provided with a unique identification 16 number; and 17 (c) the transferor has verified the identity of the transferee by 18 examining a valid state identification document of the transferee issued 19 by the department of motor vehicles or if the transferee is not a resi- 20 dent of the state of New York, a valid identification document issued by 21 the transferee's state or country of residence containing a photograph 22 of the transferee. 23 § 4. Paragraph (b) of subdivision 11 of section 400.00 of the penal 24 law is REPEALED. 25 § 5. Section 400.05 of the penal law is amended by adding a new subdi- 26 vision 7 to read as follows: 27 7. Whenever any machine-gun or firearm is destroyed pursuant to subdi- 28 vision two of this section, all state and local law enforcement agencies 29 shall publish on their website, on an annual basis, an inventory of 30 every machine-gun or firearm that is destroyed, including the caliber, 31 make, model, manufacturer's name, serial number, or if none, any other 32 distinguishing number or identification mark of the machine-gun or 33 firearm, and if applicable, the jurisdiction and date of the court order 34 directing the surrender and/or destruction of such machine-gun or 35 firearm. 36 § 6. Paragraphs (c) of subdivisions 11 and 16-a and paragraph (b) of 37 subdivision 10 of section 400.00 of the penal law are REPEALED. 38 § 7. Subdivision 1 of section 898 of the general business law, as 39 amended by chapter 129 of the laws of 2019, is amended to read as 40 follows: 41 1. In addition to any other requirements pursuant to state and federal 42 law, all sales, exchanges or disposals of firearms, rifles or shotguns 43 shall be conducted in accordance with this section unless such sale, 44 exchange or disposal is conducted by a licensed importer, licensed 45 manufacturer or licensed dealer, as those terms are defined in 18 USC § 46 922, when such sale, exchange or disposal is conducted pursuant to that 47 person's federal firearms license or such sale, exchange or disposal is 48 between members of an immediate family. When a sale, exchange or 49 disposal is conducted pursuant to a person's federal firearms license, 50 before delivering a firearm, rifle or shotgun to any person, either (a) 51 the National Instant Criminal Background Check System (NICS) or its 52 successor has issued a "proceed" response to the federal firearms licen- 53 see, or (b) thirty calendar days shall have elapsed since the date the 54 federal firearms licensee contacted NICS to initiate a national instant 55 criminal background check and NICS has not notified the federal firearms 56 licensee that the transfer of the firearm, rifle or shotgun to suchA. 4236 5 1 person should be denied. For purposes of this section, "immediate fami- 2 ly" shall mean spouses, domestic partners, parents, brothers, sisters, 3 children and step-children. 4 § 8. Subdivision 17 of section 400.00 of the penal law is renumbered 5 subdivision 20 and a new subdivision 17 is added to read as follows: 6 17. Applicants who have a genuine and sincere religious belief, who 7 have provided fingerprints pursuant to this section, shall not be 8 required to provide photographs of themselves in order to obtain a 9 license as required by this section. 10 § 9. Section 400.03 of the penal law is REPEALED. 11 § 10. Subdivision 16-a of section 400.00 of the penal law is amended 12 by adding a new paragraph (c) to read as follows: 13 (c) The division of state police shall not require the registration of 14 a seller of ammunition, as defined in subdivision twenty-four of section 15 265.00 of this chapter, in order for such seller of ammunition to oper- 16 ate his or her business. 17 § 11. Section 9.46 of the mental hygiene law is REPEALED. 18 § 12. Subdivision 19 of section 837 of the executive law is REPEALED. 19 § 13. Paragraph 12 of subdivision (c) of section 33.13 of the mental 20 hygiene law, as amended by chapter 1 of the laws of 2013, is amended to 21 read as follows: 22 12. to a director of community services as defined in article nine of 23 this chapter or his or her designee, provided that such director or his 24 or her designee [(i)] requests such information in the exercise of his 25 or her statutory functions, powers and duties pursuant to section 9.37, 26 9.45, 9.47, 9.48, 9.60 or 41.13 of this chapter[; or (ii) the disclosure27of information is required pursuant to section 9.46 of this chapter]. 28 § 14. One year after the completion of transmission of notification of 29 all individuals pursuant to paragraph (b) of subdivision two of section 30 79-r of the civil rights law, as added by section two of this act, all 31 offices and agencies in use or possession of reports required under the 32 former section 9.46 of the mental hygiene law shall purge all such 33 information. 34 § 15. Severability. If any provision of this act, or the application 35 thereof to any person or circumstance, shall be adjudged by any court of 36 competent jurisdiction to be invalid or unconstitutional, such judgment 37 shall not affect, impair or invalidate the remainder thereof, but shall 38 be confined in its operation to the provision of this act, or in its 39 application to the person or circumstance, directly involved in the 40 controversy in which such judgment shall have been rendered. 41 § 16. This act shall take effect immediately.
