Add §79-r, Civ Rts L; amd §§400.00, 400.02 & 400.05, rpld §400.00 sub 11 ¶¶(b) & (c), sub 16-a ¶(c), sub 10
¶(b), §400.03, Pen L; amd §898, Gen Bus L; rpld §9.46, amd §33.13, Ment Hyg L; rpld §837 sub 19, Exec L
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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4236
SPONSOR: Hawley (MS) TITLE OF BILL:
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 exec-
utive law, relating to reporting of substantial risk or threat of harm
by mental health professionals
PURPOSE OR GENERAL IDEA OF BILL:
This bill relates to establishing the "Civil Rights Restoration Act" and
amends provisions of law regarding firearm licenses.
SUMMARY OF SPECIFIC PROVISIONS:
Section one of this bill states the title of the legislation.
Section two of this bill codifies the basic due process rights of
persons seeking to exercise and protect their fundamental rights under
the Second Amendment to the United States Constitution in the context of
a handgun license hearing. This section also prohibits the inappropriate
use of clinical records and establishes penalties for false reporting.
Section three of this bill removes from the statewide database, any
record reported pursuant to Mental Health Hygiene Law § 9.46 (repealed,
herein).
Section four of this bill restores judicial discretion in the context of
the license hearing.
Section five of this bill requires law enforcement to be transparent and
accountable in their destruction of firearms.
Section six of this bill repeals the pistol permit recertification
program.
Section seven of this bill amends the definition of "immediate family"
to include parents, brothers, and sisters.
Section eight of this bill permits persons who have a genuine and
sincere religious belief to provide fingerprints, in lieu of photo-
graphs, for the purposes of a background check.
Section nine of this bill repeals the seller of ammunition provision.
Section ten of this bill clarifies that a seller of ammunition is not
required to register with the division of the state police.
Section eleven of this bill repeals the MHL, § 9.46 reporting program
(also referred to as "ISARS" or the "Integrated SAFE Act Reporting
System").
Section twelve of this bill revokes the transmission of data through the
ISARS database or under MI-IL § 9.46 (repealed herein) to the division
of criminal justice services.
Section thirteen of this bill revokes the transmission of data through
the ISARS database or under MI-IL § 9.46 (repealed herein) to the direc-
tor of community services.
Section fourteen of this bill requires the timely purge of data in the
ISARS database or under MHL § 9.46 (repealed herein).
Section fifteen of this bill provides a standard severability clause
that states if any part of this act is nullified by the courts, the
remainder of the act will not be affected, impaired or invalidated.
Section sixteen of this bill provides for an immediate effective date.
JUSTIFICATION:
The SAFE Act has been surrounded by controversy since its enactment in
2013. The bill, riddled with errors and omissions, was passed with no
time for public input or thoughtful consideration by the Legislature.
The provisions contained within the SAFE Act, have been roundly criti-
cized as an attack on Second Amendment rights guaranteed by the United
States Constitution. Consequently, it is no surprise that key provisions
of the SAFE Act have not been implemented and court cases challenging
its constitutionality are still pending. While many agree more needs to
be done to keep guns out of the hands of criminals and those suffering
from mental illness, the SAFE Act does not, and.has not, addressed
these" societal challenges but instead has targeted law-abiding citizens
who use firearms for sport and self-defense.
Missing from any discussion surrounding the SAFE Act has been the
collective call to address the root causes of violence in our society.
Understandably, urban and inner-city populations might look at a firearm
as a threat but what has failed to be addressed is the acknowledgment
that a firearm is only a weapon when used as such. In today's culture of
violence, a rock, a stick, or even someone's bare hands, could have the
same devastating impact as a gun when used with malicious intent.
Also left out of the discussion, and equally concerning, is New York
State's path of constricting the federal civil rights of its citizens
through enactment of gun control measures like the SAFE Act. Regardless
of one's beliefs on the "right of the people to keep and bear arms," all
need to be concerned about the continued violations of constitutional
rights to personal liberty. In regards to the specific provisions of
this bill, the sponsor also notes that an important, unresolved issue
within the SAFE Act is the identified lack of due process for individ-
uals facing potential confiscation of their firearms. The current proc-
ess lacks adequate notification and review procedures that are commonly
provided in many governmental proceedings.
The sponsor of this legislation seeks to rebalance and conform the
rights of New York State citizens with their rights as United States
citizens. The "Civil Rights Restoration Act" clarifies and solidifies
rights to due process, equal protection, privacy, and property. It does
so by respecting and building upon the powerful civil rights history of
New York State. By reestablishing all New Yorkers' legal rights to a
hearing, counsel, and privacy of medical records, this legislation will
ensure that individual rights are protected through deliberate exercise
of due process.
PRIOR LEGISLATIVE HISTORY:
2017: A,6805 - enacting clause stricken.
A8909 - 01/08/18 referred to judiciary
A4990 - 01/05/22 referred to judiciary
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
This act will save the State money being spent on implementation of the
ammunition background check, the keeper of the ammunition, and the
pistol license recertification. Additionally the State would see signif-
icant cost-savings on money being spent on the "Integrated SAFE Act
Reporting System", its implementation, training, expansion and oper-
ations. With the enactment of this legislation, the State will incur
costs for the written, notification of persons reported into law
enforcement databases, both past and for any on-going reporting. It
will also require funding for assigned counsel for indigent legal
services at pistol license hearings.
EFFECTIVE DATE:
This act would take effect immediately.
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.
LBD08392-01-3
A. 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 [and
25 any weapons owned or possessed by such individual shall be removed
26 consistent with the provisions of subdivision eleven of section 400.00
27 of 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 sales
A. 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 such
A. 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 disclosure
27 of 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.
