Amd §265.00, add §§265.67 - 265.72, Pen L; amd §396-ee, Gen Bus L; amd §305, Ed L
Enacts the "children's weapon accident prevention act"; creates crimes of failure to store a weapon safely in the first and second degrees, aggravated failure to store a weapon safely, and criminally negligent storage of a weapon in the first and second degrees; provides affirmative defenses; directs the commissioner of education to develop a weapons safety program.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5380
SPONSOR: Shimsky TITLE OF BILL:
An act to amend the penal law, the general business law and the educa-
tion law, in relation to criminally negligent storage of a weapon and
weapons safety programs for children
PURPOSE OR GENERAL IDEA OF BILL:
To establish the "Children's Weapon Accident Prevention Act" to protect
children, and others, from injury and death due to unauthorized access,
discharge and use of weapons and to keep guns out of the hands of those
who might misuse them by requiring gun owners to safely store their
rifles, shotguns and other firearms when not in the owner's immediate
possession or control.
SUMMARY OF PROVISIONS:
Section 1 of the bill states that his act shall be known as the "chil-
dren's weapons accident prevention act".
Section 2 sets forth the legislative findings.
Section 3 amends penal law section 265.00 by adding five new subdivi-
sions 32, 33, 34, 35, and 36 to define "Weapon", "Locked box", "Gun
locking device", "Loaded rifle", and "Loaded shotgun", respectively.
Section 4 amends the penal law section by adding six new sections to
create 5 new crimes and one section relating to the applicability of
those crimes as follows:
1. § 265.60 defines failure to store a weapon safely in the second
degree as a violation;
2. § 265.65 defines failure to store a weapon safely in the first degree
as a class B misdemeanor;
3. § 265.70 defines aggravated failure to store a weapon safely in the
second degree, resulting in the removal or discharge of the weapon by a
child, as a class A misdemeanor;
4. § 265.75 defines criminally negligent storage of a weapon in the
second degree, resulting in a child causing serious physical injury to
himself/herself or any other person, as a class E felony;
5. § 265.80 defines criminally negligent storage of a weapon in the
first degree, resulting in a child causing the death of himself/herself
or any other person, as a class El felony. With respect to the crimes
defined in sections 265.65 and 265.70 of the penal law, it shall be an
affirmative defense that the defendant reasonably attempted to retrieve
or regain possession of the, firearm, rifle or shotgun prior to
discharge.
The provisions of this section shall not apply if: (1) such person under
eighteen gains access to a weapon by unlawful entry to any premises; (2)
such weapon is securely stored in a locked box and the ammunition is
separately and securely stored in a locked box; (3) such firearm, rifle
or shotgun is securely locked with a gun locking device; (4) such person
under eighteen possessed the loaded rifle or shotgun pursuant to a valid
hunting license; (5) such weapon is in the possession or control of a
police officer engaged in official duties; or (5) such weapon is needed
for the lawful purpose of self-defense.
6. § 265.75 gives the district attorney discretion whether or not to
prosecute a parent or guardian when death or injury of a child results
from a violation of penal law sections 265.65 or 265.70.
Section 5 amends general business law section 396-ee (2) to require gun
dealers to post a conspicuous notice that it is a crime in New York to
leave guns accessible to children.
Section 6 amends education law section 305 by adding a new subdivision
57 to require the commissioner to develop a weapon safety program
designed to protect children from the risk of gun-related death and
injury and to teach children how to follow an effective safety procedure
when they are exposed to a gun.
Section 7 is the severability clause. Section 8 is the effective date.
JUSTIFICATION:
In 40 states, firearms, rifles and semiautomatic weapons are sold to
parents without requirements to store the weapons safely.
In 2018, accidental gun deaths accounted for 1% (458) of total gun-re-
lated deaths (39,740) in the United States. As of October 2020, there
have been unintentional shootings by over 220 children resulting in 92
deaths and 135 injuries.
As gun sales in the US spike by 70% in March 2020, compared to the
previous March, accidental shooting deaths by minors increased by 43%.
Shelter-in-place orders during the coronavirus pandemic have led to
significant spikes in accidental shoots at home by children. Deadly
unintentional shoots were up 43% in March and April compared to the same
months in the previous two years. Between 1990 and 1994 in New York
state alone, there were a total of 6,627 hospitalizations of children
age 19 and under due to firearm injuries, an average of 1,325 per year.
One thousand four hundred nineteen of these were accidental, an average
of 284 per year. At the same time, there were 1,734 deaths of children
age. 19 and under, an average of 347 per year. Tragically, 48 of these
deaths were accidental, averaging 10 per year. In 1997, the last year
for which reliable figures are available for New York state, 5 children
under 18 were killed in firearm accidents and 72 were injured seriously
enough to be hospitalized.
It is estimated that about one of every three deaths from accidental
firearm discharge could have been prevented if proper weapon safety
procedures had been followed (United States General Accounting Office).
In 2013 and 2019 the Legislature passed comprehensive gun safety legis-
lation. These laws do not mandate safe storage for all guns. In an
effort to decrease access to guns by those legally disqualified from
possessing a gun under federal law, New York law requires the owner of a
gun to safely secure or store guns not in his or her direct control if
the owner lives with someone who the owner has reason to know is so
legally disqualified. It is the intent of this legislation to encourage
safe firearm storage more comprehensively and to prevent negligent
conduct before accidents occur.
The states of California, Connecticut, Florida, Hawaii, Iowa, Maine,
Maryland, New Jersey, Massachusetts, Virginia and Wisconsin have already
passed similar legislation. Accidental gun deaths of children were
reduced 23% in states with Child Access Prevention/Safe Gun storage
(CAP) laws, according to a study published in the Journal of the Ameri-
can Medical Association on October 1, 1997.
PRIOR LEGISLATIVE HISTORY:
2021-2022: A1180 referred to codes; 2019-20: A425 referred to codes;
2017-18: A1990 referred to codes; same as S3355 (Krueger) referred to
codes; 2015-16: A5278-A referred to codes; 2013-2014: A3941-A (Weisen-
berg) referred to codes; A2388 signed into law January 15, 2013;
2011-2012: S895; 2009-2010: A5844- B(Weisenberg); same as S3098-A
(Schneiderman); 2007-2008: A76A - Passed Assembly; 2005-2006: A673 -
Passed Assembly; 2003-2004: A4615-C-Passed Assembly; 2001-2002: A5363-B
- Passed Assembly; 2000: A1407-B - Passed Assembly
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None
EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding the
date on which it shall have become law provided, however, that sections
three and four of this act shall take effect May 1, 2024, provided,
further, that section five of this act shall take effect March 1, 2024.
Effective immediately the addition, amendment and/or repeal of any rule
or regulation necessary for the implementation of this act on its effec-
tive date are authorized to be made and completed on or before such
effective date.
STATE OF NEW YORK
________________________________________________________________________
5380
2023-2024 Regular Sessions
IN ASSEMBLY
March 9, 2023
___________
Introduced by M. of A. SHIMSKY -- read once and referred to the Commit-
tee on Codes
AN ACT to amend the penal law, the general business law and the educa-
tion law, in relation to criminally negligent storage of a weapon and
weapons safety programs for children
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title; construction. 1. This act shall be known and
2 may be cited as the "children's weapon accident prevention act".
3 2. The provisions of this act shall not be construed to preempt or
4 supersede any local law the provisions of which are no less stringent or
5 restrictive than the provisions of this act.
6 § 2. Legislative findings and intent. The legislature finds that a
7 tragically large number of children have been accidentally killed or
8 seriously injured by negligently stored weapons; that placing weapons
9 within reach or easy access of children is irresponsible, encourages
10 such accidents and should be prohibited; and that legislative action is
11 necessary to protect the safety of our children.
12 § 3. Section 265.00 of the penal law is amended by adding five new
13 subdivisions 36, 37, 38, 39 and 40 to read as follows:
14 36. "Weapon" means a "rifle", "shotgun" or "firearm".
15 37. "Locked box" means a safe, case or container which, when locked,
16 is incapable of being opened without the key, combination or other
17 unlocking mechanism, and is resistant to tampering by an unauthorized
18 person attempting to obtain access to and possession of the weapon or
19 ammunition contained therein. The division of state police shall develop
20 and promulgate rules and regulations setting forth the specific devices
21 or the minimum standards and criteria therefor which constitute an
22 effective locked box.
23 38. "Gun locking device" means an integrated design feature or an
24 attachable accessory that is resistant to tampering and is effective in
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09663-01-3
A. 5380 2
1 preventing the discharge of a weapon by a person who does not have
2 access to the key, combination or other mechanism used to disengage the
3 device.
4 39. "Loaded rifle" means any rifle loaded with ammunition or any rifle
5 which is possessed by one who, at the same time, possesses a quantity of
6 ammunition which may be used to discharge such rifle.
7 40. "Loaded shotgun" means any shotgun loaded with ammunition or any
8 shotgun which is possessed by one who, at the same time, possesses a
9 quantity of ammunition which may be used to discharge such shotgun.
10 § 4. The penal law is amended by adding six new sections 265.67,
11 265.68, 265.69, 265.70, 265.71 and 265.72 to read as follows:
12 § 265.67 Failure to store a weapon safely in the second degree.
13 A person is guilty of failure to store a weapon safely in the second
14 degree when he or she stores or otherwise leaves a weapon out of his or
15 her immediate possession or control without having first securely locked
16 such weapon in an appropriate locked box or rendered it incapable of
17 being fired by the use of a gun locking device appropriate to that weap-
18 on.
19 Failure to store a weapon safely in the second degree is a violation.
20 § 265.68 Failure to store a weapon safely in the first degree.
21 A person is guilty of failure to store a weapon safely in the first
22 degree when he or she commits the offense of failure to store a weapon
23 safely in the second degree as defined in section 265.67 of this article
24 and has been previously convicted of the offense of failure to store a
25 weapon safely in the second degree as defined in section 265.67 of this
26 article within the preceding five years.
27 Failure to store a weapon safely in the first degree is a class B
28 misdemeanor.
29 § 265.69 Aggravated failure to store a weapon safely.
30 A person is guilty of aggravated failure to store a weapon safely when
31 he or she commits the offense of failure to store a weapon safely in the
32 second degree as defined in section 265.67 of this article and such
33 weapon is removed from the premises or discharged by another person
34 under the age of eighteen.
35 Aggravated failure to store a weapon safely is a class A misdemeanor.
36 § 265.70 Criminally negligent storage of a weapon in the second degree.
37 1. A person is guilty of criminally negligent storage of a weapon in
38 the second degree when with criminal negligence, he or she stores or
39 leaves a loaded rifle, loaded shotgun or loaded firearm in any location
40 where such weapon is accessible to a person under the age of eighteen
41 and such weapon is discharged by such person under the age of eighteen,
42 which causes serious physical injury to such person under the age of
43 eighteen or any other person.
44 2. In any prosecution under this section it shall be an affirmative
45 defense that the defendant actively pursued all reasonable efforts to
46 retrieve or otherwise regain possession of such weapon prior to its
47 discharge.
48 3. The provisions of this section shall not apply if:
49 (a) such person under the age of eighteen gains access to such weapon
50 as a result of an unlawful entry to any premises by any person;
51 (b) such weapon is stored in a securely locked box which prevents
52 access to the weapon and any ammunition which may be used to discharge
53 such weapon is stored in a separate, securely locked box which prevents
54 access to such ammunition;
55 (c) such weapon is secured with a gun locking device which prevents
56 the weapon from discharging;
A. 5380 3
1 (d) such person under the age of eighteen possessed the loaded shotgun
2 or loaded rifle in compliance with a valid hunting license issued pursu-
3 ant to article eleven of the environmental conservation law;
4 (e) such weapon is in the possession or control of a police officer
5 while the officer is engaged in official duties; or
6 (f) such weapon is needed for the lawful purpose of self defense.
7 Criminally negligent storage of a weapon in the second degree is a
8 class E felony.
9 § 265.71 Criminally negligent storage of a weapon in the first degree.
10 1. A person is guilty of criminally negligent storage of a weapon in
11 the first degree when with criminal negligence, he or she stores or
12 leaves a loaded rifle, loaded shotgun or loaded firearm in any location
13 where such weapon is accessible to a person under the age of eighteen
14 and such weapon is discharged by such person under the age of eighteen,
15 which causes the death of such person under the age of eighteen or any
16 other person.
17 2. In any prosecution under this section it shall be an affirmative
18 defense that the defendant actively pursued all reasonable efforts to
19 retrieve or otherwise regain possession of such weapon prior to its
20 discharge.
21 3. The provisions of this section shall not apply if:
22 (a) such person under the age of eighteen gains access to such weapon
23 as a result of an unlawful entry to any premises by any person;
24 (b) such weapon is stored in a securely locked box which prevents
25 access to the weapon and any ammunition which may be used to discharge
26 such weapon is stored in a separate, securely locked box which prevents
27 access to the weapon;
28 (c) the weapon is secured with a gun locking device which prevents the
29 weapon from discharging;
30 (d) such person under the age of eighteen possessed the loaded shotgun
31 or loaded rifle in compliance with a valid hunting license issued pursu-
32 ant to article eleven of the environmental conservation law;
33 (e) such weapon is in the possession or control of a police officer
34 while the officer is engaged in official duties; or
35 (f) such weapon is needed for the lawful purpose of self defense.
36 Criminally negligent storage of a weapon in the first degree is a
37 class D felony.
38 § 265.72 Criminally negligent storage of a weapon in the first and
39 second degree; application.
40 If a person who is suspected of violating section 265.70 or 265.71 of
41 this article is the parent or guardian of a child who is injured or who
42 dies as the result of such violation, the district attorney shall
43 consider, among other factors, the impact of the injury or death on the
44 person who is suspected of violating section 265.70 or 265.71 of this
45 article when deciding whether or not to prosecute such person for such
46 offense.
47 § 5. The section heading and subdivision 2 of section 396-ee of the
48 general business law, the section heading as added by chapter 189 of the
49 laws of 2000 and subdivision 2 as amended by chapter 135 of the laws of
50 2019, are amended to read as follows:
51 Sale of certain weapons; locking devices and locked boxes therefor.
52 (2) Every person, firm or corporation engaged in the retail business
53 of selling rifles, shotguns or firearms, as such terms are defined in
54 section 265.00 of the penal law, shall, in the place where such rifles,
55 shotguns or firearms are displayed or transferred to the purchaser, post
56 a notice conspicuously stating in bold print that: "RESPONSIBLE FIREARM
A. 5380 4
1 STORAGE IS THE LAW IN NEW YORK STATE. RIFLES, SHOTGUNS AND FIREARMS MUST
2 EITHER BE STORED WITH A GUN LOCKING DEVICE OR IN A SAFE STORAGE DEPOSI-
3 TORY OR A LOCKED BOX OR NOT BE LEFT OUTSIDE THE IMMEDIATE POSSESSION AND
4 CONTROL OF THE OWNER OR OTHER LAWFUL POSSESSOR IF A CHILD RESIDES IN THE
5 HOME OR IS PRESENT, OR IF THE OWNER OR POSSESSOR RESIDES WITH A PERSON
6 PROHIBITED FROM POSSESSING A RIFLE, SHOTGUN OR FIREARM UNDER STATE OR
7 FEDERAL LAW. RIFLES, SHOTGUNS AND FIREARMS SHOULD BE STORED UNLOADED AND
8 LOCKED IN A LOCATION SEPARATE FROM AMMUNITION. LEAVING RIFLES, SHOTGUNS
9 OR FIREARMS ACCESSIBLE TO A CHILD OR OTHER PROHIBITED PERSON MAY SUBJECT
10 YOU TO IMPRISONMENT, FINE, OR BOTH. LEAVING RIFLES, SHOTGUNS AND
11 FIREARMS ACCESSIBLE TO A PERSON UNDER EIGHTEEN YEARS OF AGE IS A CRIME
12 IN NEW YORK STATE." Nothing in this subdivision shall be deemed to
13 affect, impair or supersede any special or local law relating to the
14 posting of notice regarding the safe storage of rifles, shotguns or
15 firearms.
16 § 6. Section 305 of the education law is amended by adding a new
17 subdivision 57 to read as follows:
18 57. The commissioner shall in cooperation with the division of crimi-
19 nal justice services develop a weapons safety program designed to
20 protect children from the risk of gun-related death and injury. Such
21 program shall be designed to teach children to follow an effective safe-
22 ty procedure when they are exposed to a gun, shall specifically warn
23 children that contact with guns can result in serious injury or death
24 and shall have been proven to be effective to prevent injury through
25 formal evaluation by objective public health and education profes-
26 sionals. Such program may be used in public and nonpublic schools at the
27 discretion of the local school board of education or board of trustees,
28 whichever is applicable. The commissioner shall submit an evaluation
29 report on this program to the governor, the speaker of the assembly, the
30 temporary president of the senate, the chair of the assembly codes
31 committee and the chair of the senate codes committee no later than
32 January first, two thousand twenty-seven.
33 § 7. Severability. If any word, phrase, clause, sentence, paragraph,
34 section, or part of this act shall be adjudged by any court of competent
35 jurisdiction to be invalid, such judgment shall not affect, impair, or
36 invalidate the remainder thereof, but shall be confined in its operation
37 to the words, phrase, clause, sentence, paragraph, section, or part
38 thereof directly involved in the controversy in which such judgment
39 shall have been rendered.
40 § 8. This act shall take effect on the first of November next succeed-
41 ing the date on which it shall have become a law, provided, however,
42 that sections three and four of this act shall take effect May 1, 2026;
43 provided, further, that section five of this act shall take effect March
44 1, 2026. Effective immediately the addition, amendment and/or repeal of
45 any rule or regulation necessary for the implementation of this act on
46 its effective date are authorized to be made and completed on or before
47 such effective date.
