Bill Text: NY A08909 | 2017-2018 | General Assembly | Introduced

Bill Title: Relates to establishing the civil rights restoration act and amends provisions of law 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 9-0)

Status: (Introduced) 2018-01-08 - referred to judiciary [A08909 Detail]

Download: New_York-2017-A08909-Introduced.html

                STATE OF NEW YORK
                   IN ASSEMBLY
                                     January 8, 2018
          ANO, BLANKENBUSH -- read once and referred to the Committee on Judici-
        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; repealing certain provisions of
          the penal law relating to firearms licenses and sellers of ammunition;
          and  repealing  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-o to
     4  read as follows:
     5    § 79-o. 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,
    13  and  where  such pleading includes an allegation that the individual has
    14  been "involuntarily committed to a mental  institution,"  such  pleading
    15  shall  include  an allegation as to the said court order date and juris-
    16  diction;
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 8909                             2
     1    (b) The burden of proof in such proceeding shall be no less than clear
     2  and convincing evidence;
     3    (c)  Individuals may examine the entire contents of his or her firearm
     4  license records  constructed  by  state  and  local  licensing  and  law
     5  enforcement authorities;
     6    (d) There shall be a right to counsel, including the right to assigned
     7  counsel, if counsel cannot be afforded; and
     8    (e)  Any  firearms confiscated and/or surrendered into law enforcement
     9  evidence status during such proceeding shall not  be  destroyed,  unless
    10  specifically  directed  through  a written order by a court of competent
    11  jurisdiction at  the  conclusion  of  all  disqualification  proceedings
    12  relating to the individual, including any appeals undertaken.
    13    2.  (a)  There  shall  be  contemporaneous written notification to all
    14  individuals being reported to any law enforcement  database  that  could
    15  result  in  the  deprivation of rights to own, possess, or use a firearm
    16  and/or the deprivation of a lawfully owned firearm, including,  but  not
    17  limited  to, reports under former section 9.46 of the mental hygiene law
    18  and under 18 USC § 922(g).
    19    (b) There shall be written notification transmitted within ninety days
    20  of the effective date of this  section  to  all  individuals  previously
    21  reported  into  any  law  enforcement  database that could result in the
    22  deprivation of rights to own, possess,  or  use  a  firearm  and/or  the
    23  deprivation  of a lawfully owned firearm, including, but not limited to,
    24  the databases maintained by the office of mental health, the division of
    25  criminal justice services, and the division of state police in  conjunc-
    26  tion  with  reports  made  under  the  former section 9.46 of the mental
    27  hygiene law and/or under 18 USC  §  922(g)(4),  and  that  such  written
    28  notification  shall  include notice that the individual may have a right
    29  to commence a proceeding in either the New York state supreme  court  or
    30  county  court under article seventy-eight of the civil practice laws and
    31  rules if he or she believes that the information  contained  within  the
    32  notification is in error.
    33    (c)  Any  individual,  business, or governmental official who, knowing
    34  the information reported, conveyed or circulated to  be  false,  reports
    35  that  a  person  has been involuntarily committed, shall be subject to a
    36  civil fine of not more than ten thousand dollars per offense.
    37    (d) In any proceeding where an individual establishes  that  a  report
    38  that  he or she was involuntarily committed was false, reasonable attor-
    39  ney's fees and costs shall be reimbursed by the state.
    40    (e) The state shall correct any false or incorrect report  against  an
    41  individual  to state and federal databases, including those under 18 USC
    42  §922(g), within seven days of entry and service  upon  the  state  of  a
    43  final order of disposition in a case. The failure of the state to timely
    44  do so shall be punishable as a contempt of court.
    45    (f)  Notwithstanding  any  law, rule or regulation to the contrary, an
    46  individual's medical and/or clinical  records  shall  not  be  used  for
    47  routine  law  enforcement reporting purposes relative to firearms owner-
    48  ship, use, possession, or suitability.
    49    § 3. Section 400.02 of the penal law, as added by  chapter  1  of  the
    50  laws of 2013, is amended to read as follows:
    51  § 400.02 Statewide license and record database.
    52    There  shall be a statewide license and record database which shall be
    53  created and maintained by the division of state police the cost of which
    54  shall not be borne by any municipality. Records assembled  or  collected
    55  for  purposes  of  inclusion  in  such  database shall not be subject to
    56  disclosure pursuant to article six of the public officers law, excepting

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     1  any non-identifying records such as existing statistical tabulations  or
     2  those  capable  of  being  performed  or such record responses as can be
     3  reasonably  satisfied  through  redacted  response.  Records  containing
     4  granted  license applications shall be periodically checked by the divi-
     5  sion of criminal justice services against criminal  [conviction,  mental
     6  health,  and  all  other  records]  convictions as [are] is necessary to
     7  determine their continued accuracy as well as whether an  individual  is
     8  no  longer  a  valid  license  holder.  The division of criminal justice
     9  services shall also check pending applications  made  pursuant  to  this
    10  article  against  such  records  to  determine  whether a license may be
    11  granted. All state agencies shall cooperate with the division of  crimi-
    12  nal  justice  services,  as otherwise authorized by law, in making their
    13  records available for such checks.  The  division  of  criminal  justice
    14  services, upon determining that an individual is ineligible to possess a
    15  license, or is no longer a valid license holder, shall notify the appli-
    16  cable  licensing official of such determination and such licensing offi-
    17  cial shall not issue a license or revoke such license  and  any  weapons
    18  owned  or  possessed by such individual shall be removed consistent with
    19  the provisions of subdivision eleven of section 400.00 of this  article.
    20  Local  and  state law enforcement shall have access to such database, as
    21  otherwise authorized by law, in the performance of their duties. Records
    22  assembled or collected for purposes of inclusion in the database  estab-
    23  lished by this section shall be released pursuant to a court order.
    24    §  4.  Paragraph  (b) of subdivision 11 of section 400.00 of the penal
    25  law is REPEALED.
    26    § 5. Section 400.05 of the penal law is amended by adding a new subdi-
    27  vision 7 to read as follows:
    28    7. Whenever any machine-gun or firearm is destroyed pursuant to subdi-
    29  vision two of this section, all state and local law enforcement agencies
    30  shall publish on their website, on an  annual  basis,  an  inventory  of
    31  every  machine-gun  or firearm that is destroyed, including the caliber,
    32  make, model, manufacturer's name, serial number, or if none,  any  other
    33  distinguishing  number  or  identification  mark  of  the machine-gun or
    34  firearm, and if applicable, the jurisdiction and date of the court order
    35  directing the  surrender  and/or  destruction  of  such  machine-gun  or
    36  firearm.
    37    §  6.  Paragraph  (c) of subdivisions 11 and 16-a and paragraph (b) of
    38  subdivision 10 of section 400.00 of the penal law are REPEALED.
    39    § 7. Subdivision 1 of section 898 of  the  general  business  law,  as
    40  added by chapter 1 of the laws of 2013, is amended to read as follows:
    41    1.  In addition to any other requirements pursuant to state and feder-
    42  al  law,  all sales, exchanges or disposals of firearms, rifles or shot-
    43  guns shall be conducted in accordance  with  this  section  unless  such
    44  sale, 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. For purposes  of  this  section,
    49  "immediate  family"  shall  mean  spouses,  domestic  partners, parents,
    50  brothers, sisters, children and step-children.
    51    § 8. Subdivision 17 of section 400.00 of the penal law  is  renumbered
    52  subdivision 18 and a new subdivision 17 is added to read as follows:
    53    17.  Applicants  who  have a genuine and sincere religious belief, who
    54  have provided fingerprints  pursuant  to  this  section,  shall  not  be
    55  required  to  provide  photographs  of  themselves  in order to obtain a
    56  license as required by this section.

        A. 8909                             4
     1    § 9. Section 400.03 of the penal law is REPEALED.
     2    §  10.  Subdivision 16-a of section 400.00 of the penal law is amended
     3  by adding a new paragraph (c) to read as follows:
     4    (c) The division of state police shall not require the registration of
     5  a seller of ammunition, as defined in subdivision twenty-four of section
     6  265.00 of this chapter, in order for such seller of ammunition to  oper-
     7  ate his or her business.
     8    § 11. Section 9.46 of the mental hygiene law is REPEALED.
     9    § 12. Subdivision 19 of section 837 of the executive law is REPEALED.
    10    §  13.  Paragraph 12 of subdivision (c) of section 33.13 of the mental
    11  hygiene law, as amended by chapter 1 of the laws of 2013, is amended  to
    12  read as follows:
    13    12.  to a director of community services as defined in article nine of
    14  this chapter or his or her designee, provided that such director or  his
    15  or  her  designee [(i)] requests such information in the exercise of his
    16  or her statutory functions, powers and duties pursuant to section  9.37,
    17  9.45, 9.47, 9.48, 9.60 or 41.13 of this chapter[; or (ii) the disclosure
    18  of information is required pursuant to section 9.46 of this chapter].
    19    § 14. One year after the completion of transmission of notification of
    20  all  individuals pursuant to paragraph (b) of subdivision two of section
    21  79-o of the civil rights law, as added by section two of this  act,  all
    22  offices  and agencies in use or possession of reports required under the
    23  former section 9.46 of the mental  hygiene  law  shall  purge  all  such
    24  information.
    25    §  15.  Severability. If any provision of this act, or the application
    26  thereof to any person or circumstance, shall be adjudged by any court of
    27  competent jurisdiction to be invalid or unconstitutional, such  judgment
    28  shall  not affect, impair or invalidate the remainder thereof, but shall
    29  be confined in its operation to the provision of this  act,  or  in  its
    30  application  to  the  person  or  circumstance, directly involved in the
    31  controversy in which such judgment shall have been rendered.
    32    § 16. This act shall take effect immediately.