Amd §230, Exec L; add Art 39-BB §§875-a - 875-i, Gen Bus L; amd §400.00, Pen L
Requires the creation and imposition of restrictive commercial practices and stringent recordkeeping and reporting to prevent gun sales to individuals with a criminal record; provides that such measures shall be promulgated by the superintendent of state police; restricts premises of sales; requires employee training; prohibits straw purchases; imposes additional license conditions; requires reporting on a seized or recovered gun to the criminal gun clearinghouse.
STATE OF NEW YORK
________________________________________________________________________
1023--A
2021-2022 Regular Sessions
IN ASSEMBLY
January 7, 2021
___________
Introduced by M. of A. PAULIN, GRIFFIN -- read once and referred to the
Committee on Codes -- recommitted to the Committee on Codes in accord-
ance with Assembly Rule 3, sec. 2 -- reported and referred to the
Committee on Ways and Means -- reported and referred to the Committee
on Rules -- Rules Committee discharged, bill amended, ordered
reprinted as amended and recommitted to the Committee on Rules
AN ACT to amend the executive law, in relation to requiring reporting on
a seized or recovered gun to the criminal gun clearinghouse; and to
amend the general business law and the penal law, in relation to
preventing the unlawful sale of firearms, rifles, and shotguns to
individuals with a criminal record
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 4 and 5 of section 230 of the executive law,
2 as added by chapter 189 of the laws of 2000, are amended and three new
3 subdivisions 7, 8 and 9 are added to read as follows:
4 4. The superintendent of the division of state police shall establish
5 and maintain within the division a criminal gun clearinghouse as a
6 central repository of information regarding all guns seized, forfeited,
7 found or otherwise coming into the possession of any state or local law
8 enforcement agency which are believed to have been used in the commis-
9 sion of a crime. The superintendent of the division of state police
10 shall adopt and promulgate regulations prescribing reporting procedures
11 for such state or local law enforcement agencies, including the form for
12 reporting such information. In addition to any other information which
13 the superintendent of the division of state police may require, the form
14 shall require (a) the serial number or other identifying information on
15 the gun, if available and (b) a brief description of the circumstances
16 under which the gun came into the possession of the law enforcement
17 agency, including the crime which was or may have been committed with
18 the gun. Whenever a state or local law enforcement agency seizes or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02111-03-2
A. 1023--A 2
1 recovers a gun that was unlawfully possessed, recovered from a crime
2 scene, or is reasonably believed to have been used in or associated with
3 the commission of a crime or is otherwise recovered as an abandoned or
4 discarded gun, the agency shall report such seized or recovered gun to
5 the criminal gun clearinghouse as soon as practicable, but in no case
6 more than twenty-four hours after the agency has taken possession of
7 such gun. Every report made to the criminal gun clearinghouse will
8 result in the prompt submission of a request to the national tracing
9 center of the bureau of alcohol, tobacco, firearms and explosives to
10 trace the movement of the subject gun and such federal agency will be
11 requested to provide the results of such a trace to the superintendent
12 of the division of state police and to the law enforcement agency that
13 submitted the clearinghouse report.
14 5. [In any case where a state or local law enforcement agency investi-
15 gates the commission of a crime in this state and a specific gun is
16 known to have been used in such crime, such agency shall submit a
17 request to the national tracing center of the United States Department
18 of Treasury, bureau of alcohol, tobacco and firearms to trace the move-
19 ment of such gun and such federal agency shall be requested to provide
20 the superintendent of the division of state police and the local law
21 enforcement agency with the results of such a trace. This subdivision
22 shall not apply where the source of a gun is already known to a local
23 law enforcement agency.] All state and local law enforcement agencies
24 shall participate in the bureau of alcohol, tobacco, firearms and
25 explosives collective data sharing program for the purpose of sharing
26 gun trace reports among all law enforcement agencies in the state on a
27 reciprocal basis.
28 7. (a) Whenever a state or local law enforcement agency seizes or
29 recovers a gun that was unlawfully possessed, recovered from the scene
30 of a crime, or is reasonably believed to have been used or associated
31 with the commission of a crime, or is recovered by the agency as an
32 abandoned or discarded gun, the agency shall arrange for every such gun
33 that is determined to be suitable for test-firing and of a type that is
34 eligible for national integrated ballistic information network data
35 entry and correlation to be test-fired as soon as practicable, and the
36 results of that test-firing shall be submitted forthwith to the national
37 integrated ballistic information network to determine whether the gun is
38 associated or related to a crime, criminal event, or any individual
39 associated or related to a crime or criminal event or reasonably
40 believed to be associated or related to a crime or criminal event.
41 (b) Whenever a state or local law enforcement agency recovers any
42 ammunition cartridge case that is of a type that is eligible for
43 national integrated ballistic information network data entry and corre-
44 lation at a crime scene, or has reason to believe that such recovered
45 ammunition cartridge case is related to or associated with the commis-
46 sion of a crime or the unlawful discharge of a gun, the agency shall, as
47 soon as practicable, arrange for the ballistics information to be
48 submitted to the national integrated ballistic information network.
49 8. Whenever a state or local law enforcement agency seizes or recovers
50 any gun, the agency shall promptly enter the make, model, caliber, and
51 serial number of the gun into the national crime information center
52 (NCIC) system to determine whether the gun was reported stolen.
53 9. The superintendent may adopt rules and regulations to effectuate
54 the provisions of this section.
55 § 2. The general business law is amended by adding a new article 39-BB
56 to read as follows:
A. 1023--A 3
1 ARTICLE 39-BB
2 PREVENTING THE UNLAWFUL SALE OF FIREARMS,
3 RIFLES, AND SHOTGUNS TO INDIVIDUALS WITH A CRIMINAL RECORD
4 Section 875-a. Definitions.
5 875-b. Security.
6 875-c. Access to firearms, rifles, and shotguns.
7 875-d. Location of firearm, rifle, and shotgun sales.
8 875-e. Employee training.
9 875-f. Maintenance of records.
10 875-g. Internal compliance, certification, and reporting.
11 875-h. Rules and regulations.
12 875-i. Violations.
13 § 875-a. Definitions. For the purposes of this article:
14 1. "Dealer" means a gunsmith or dealers in firearms licensed pursuant
15 to section 400.00 of the penal law.
16 2. "Dispose of" or "disposition of" means to give, give away, lease,
17 lend, keep for sale, offer, offer for sale, sell, or transfer.
18 3. "Firearm" has the same meaning as that term is defined in subdivi-
19 sion three of section 265.00 of the penal law.
20 4. "Rifle" has the same meaning as that term is defined in subdivision
21 eleven of section 265.00 of the penal law.
22 5. "Shotgun" has the same meaning as that term is defined in subdivi-
23 sion twelve of section 265.00 of the penal law.
24 6. "Straw purchase" means the purchase, or attempt to purchase, by a
25 person of a firearm, rifle, shotgun or ammunition for, on behalf of, or
26 for the use of another person known or unknown. The term shall not
27 include a bona fide gift to a person who is not prohibited from possess-
28 ing or receiving such a firearm. For purposes of this subdivision, a
29 gift to a person shall not be a bona fide gift if the person has offered
30 or given the purchaser a service or thing of value to acquire the
31 firearm for the person.
32 7. "Superintendent" means the superintendent of state police.
33 § 875-b. Security. 1. Every dealer shall implement a security plan
34 for securing firearms, rifles and shotguns, including firearms, rifles
35 and shotguns in shipment. The plan shall satisfy at least the following
36 requirements:
37 (a) all firearms, rifles and shotguns shall be secured, other than
38 during business hours, in a locked fireproof safe or vault on the deal-
39 er's business premises or in a secured and locked area on the dealer's
40 business premises; and
41 (b) ammunition shall be stored separately from firearms, rifles and
42 shotguns and out of reach of customers.
43 2. The dealer's business premises shall be secured by a security alarm
44 system that is installed and maintained by a security alarm operator
45 properly licensed pursuant to article six-D of this chapter. Standards
46 for such security alarm systems shall be established by the superinten-
47 dent in regulation. Such security alarm systems may be developed by a
48 federal or state agency, a not-for-profit organization, or another
49 entity specializing in security alarm standards approved by the super-
50 intendent for the purposes of this act. The security alarm system shall
51 be capable of being monitored by a central station, and shall provide,
52 at a minimum, complete protection and monitoring for all accessible
53 openings, and partial motion and sound detection at certain other areas
54 of the premises. The dealer location shall additionally be equipped
55 with a video recording device at each point of sale and each entrance
56 and exit to the premises, which shall be recorded from both the indoor
A. 1023--A 4
1 and outdoor vantage point and shall maintain such recordings for a peri-
2 od of not less than two years.
3 § 875-c. Access to firearms, rifles, and shotguns. Every retail dealer
4 shall exclude all persons under eighteen years of age from those
5 portions of its premises where firearms, rifles, shotguns, or ammunition
6 are stocked or sold, unless such person is accompanied by a parent or
7 guardian.
8 § 875-d. Location of firearm, rifle, and shotgun sales. Every dealer
9 shall sell or otherwise dispose of firearms, rifles, and shotguns only
10 at the location listed on the dealer's federal firearms license or at
11 gun shows.
12 § 875-e. Employee training. 1. Every dealer shall provide the train-
13 ing developed by the superintendent pursuant to subdivision two of this
14 section to all new employees within thirty days of employment, to all
15 existing employees within ninety days of the effective date of this
16 section, and to all employees annually thereafter.
17 2. The superintendent shall develop and make available to each dealer,
18 a training course in the conduct of firearm, rifle, and shotgun trans-
19 fers including at a minimum the following:
20 (a) Federal and state laws governing firearm, rifle, and shotgun
21 transfers.
22 (b) How to recognize, identify, respond, and report straw purchases,
23 illegal purchases, and fraudulent activity.
24 (c) How to recognize, identify, respond, and report an individual who
25 intends to use a firearm, rifle, or shotgun for unlawful purposes,
26 including self-harm.
27 (d) How to prevent, respond, and report theft or burglary of firearms,
28 rifles, shotguns, and ammunition.
29 (e) How to educate customers on rules of gun safety, including but not
30 limited to the safe handling and storage of firearms, rifles, shotguns
31 and ammunition.
32 (f) Such other topics the superintendent deems necessary and appropri-
33 ate.
34 3. No employee or agent of any retail dealer shall participate in the
35 sale or disposition of firearms, rifles, or shotguns unless such person
36 is at least twenty-one years of age and has first received the training
37 required by this section. The superintendent shall promulgate regu-
38 lations setting forth minimum requirements for the maintenance of
39 records of such training.
40 § 875-f. Maintenance of records. Every dealer shall establish and
41 maintain a book, or if the dealer should choose, an electronic-based
42 record of purchase, sale, inventory, and other records at the dealer's
43 place of business in such form and for such period as the superintendent
44 shall require, and shall submit a copy of such records to the New York
45 state police every April and October. Such records shall at a minimum
46 include the following:
47 1. the make, model, caliber or gauge, manufacturer's name, and serial
48 number of all firearms, rifles and shotguns that are acquired or
49 disposed of not later than one business day after their acquisition or
50 disposition. Monthly backups of these records kept in a book shall be
51 maintained in a secure container designed to prevent loss by fire,
52 theft, or flood. If the dealer chooses to maintain an electronic-based
53 record system, those records shall be backed up on an external server or
54 over the internet at the close of each business day;
A. 1023--A 5
1 2. all firearms, rifles and shotguns acquired but not yet disposed of
2 shall be accounted for through an inventory check prepared once each
3 month and maintained in a secure location;
4 3. firearm, rifle and shotgun disposition information, including the
5 serial numbers of firearms, rifles and shotguns sold, dates of sale, and
6 identity of purchasers, shall be maintained and made available at any
7 time to government law enforcement agencies and to the manufacturer of
8 the weapon or its designee; and
9 4. every dealer shall maintain records of criminal firearm, rifle and
10 shotgun traces initiated by the federal bureau of alcohol, tobacco,
11 firearms and explosives ("ATF"). All ATF Form 4473 transaction records
12 shall be retained on the dealer's business premises in a secure contain-
13 er designed to prevent loss by fire, theft, or flood.
14 § 875-g. Internal compliance, certification, and reporting. 1. Every
15 dealer shall:
16 (a) implement and maintain sufficient internal compliance procedures
17 to ensure compliance with the requirements of this article; and
18 (b) annually certify to the superintendent that such dealer has
19 complied with all of the requirements of this article. The superinten-
20 dent shall by regulation determine the form and content of such annual
21 certification.
22 2. (a) The superintendent shall promulgate regulations requiring peri-
23 odic inspections of not less than one inspection of every dealer every
24 three years, during regular and usual business hours, by the division of
25 state police of the premises of every dealer to determine compliance by
26 such dealer with the requirements of this article. Every dealer shall
27 provide the division of state police with full access to such dealer's
28 premises for such inspections.
29 (b) The superintendent shall prepare an annual report providing infor-
30 mation on the number of dealers inspected annually, the number of deal-
31 ers in compliance with the requirements of this article, the number of
32 dealers failing to comply with the requirements of this article, and
33 other information that the superintendent deems necessary and appropri-
34 ate. The first report shall be delivered to the governor, the majority
35 leader of the senate and the speaker of the assembly, and shall be made
36 available to the public on the division of state police website, on or
37 before January first, two thousand twenty-four and annually thereafter.
38 § 875-h. Rules and regulations. The superintendent may promulgate such
39 additional rules and regulations as the superintendent shall deem neces-
40 sary to prevent firearms, rifles, and shotguns from being diverted from
41 the legal stream of commerce.
42 § 875-i. Violations. Any person, firm, or corporation who knowingly
43 violates any provision of this article shall be guilty of a class A
44 misdemeanor punishable as provided for in the penal law.
45 § 3. Subdivisions 11 and 12 of section 400.00 of the penal law, subdi-
46 vision 11 as amended by chapter 1 of the laws of 2013 and subdivision 12
47 as amended by chapter 129 of the laws of 2019, are amended to read as
48 follows:
49 11. License: revocation and suspension. (a) The conviction of a licen-
50 see anywhere of a felony or serious offense or a licensee at any time
51 becoming ineligible to obtain a license under this section shall operate
52 as a revocation of the license. A license may be revoked or suspended as
53 provided for in section 530.14 of the criminal procedure law or section
54 eight hundred forty-two-a of the family court act. Except for a license
55 issued pursuant to section 400.01 of this article, a license may be
56 revoked and cancelled at any time in the city of New York, and in the
A. 1023--A 6
1 counties of Nassau and Suffolk, by the licensing officer, and elsewhere
2 than in the city of New York by any judge or justice of a court of
3 record; a license issued pursuant to section 400.01 of this article may
4 be revoked and cancelled at any time by the licensing officer or any
5 judge or justice of a court of record. A license to engage in the busi-
6 ness of dealer may be revoked or suspended for any violation of the
7 provisions of article thirty-nine-BB of the general business law. The
8 official revoking a license shall give written notice thereof without
9 unnecessary delay to the executive department, division of state police,
10 Albany, and shall also notify immediately the duly constituted police
11 authorities of the locality.
12 (b) Whenever the director of community services or his or her designee
13 makes a report pursuant to section 9.46 of the mental hygiene law, the
14 division of criminal justice services shall convey such information,
15 whenever it determines that the person named in the report possesses a
16 license issued pursuant to this section, to the appropriate licensing
17 official, who shall issue an order suspending or revoking such license.
18 (c) In any instance in which a person's license is suspended or
19 revoked under paragraph (a) or (b) of this subdivision, such person
20 shall surrender such license to the appropriate licensing official and
21 any and all firearms, rifles, or shotguns owned or possessed by such
22 person shall be surrendered to an appropriate law enforcement agency as
23 provided in subparagraph (f) of paragraph one of subdivision a of
24 section 265.20 of this chapter. In the event such license, firearm,
25 shotgun, or rifle is not surrendered, such items shall be removed and
26 declared a nuisance and any police officer or peace officer acting
27 pursuant to his or her special duties is authorized to remove any and
28 all such weapons.
29 12. Records required of gunsmiths and dealers in firearms. [Any] In
30 addition to the requirements set forth in article thirty-nine-BB of the
31 general business law, any person licensed as gunsmith or dealer in
32 firearms shall keep a record book approved as to form, except in the
33 city of New York, by the superintendent of state police. In the record
34 book shall be entered at the time of every transaction involving a
35 firearm the date, name, age, occupation and residence of any person from
36 whom a firearm is received or to whom a firearm is delivered, and the
37 calibre, make, model, manufacturer's name and serial number, or if none,
38 any other distinguishing number or identification mark on such firearm.
39 Before delivering a firearm to any person, the licensee shall require
40 him to produce either a license valid under this section to carry or
41 possess the same, or proof of lawful authority as an exempt person
42 pursuant to section 265.20 of this chapter and either (a) the National
43 Instant Criminal Background Check System (NICS) or its successor has
44 issued a "proceed" response to the licensee, or (b) thirty calendar days
45 have elapsed since the date the licensee contacted NICS to initiate a
46 national instant criminal background check and NICS has not notified the
47 licensee that the transfer of the firearm to such person should be
48 denied. In addition, before delivering a firearm to a peace officer, the
49 licensee shall verify that person's status as a peace officer with the
50 division of state police. After completing the foregoing, the licensee
51 shall remove and retain the attached coupon and enter in the record book
52 the date of such license, number, if any, and name of the licensing
53 officer, in the case of the holder of a license to carry or possess, or
54 the shield or other number, if any, assignment and department, unit or
55 agency, in the case of an exempt person. The original transaction report
56 shall be forwarded to the division of state police within ten days of
A. 1023--A 7
1 delivering a firearm to any person, and a duplicate copy shall be kept
2 by the licensee. The superintendent of state police may designate that
3 such record shall be completed and transmitted in electronic form. A
4 dealer may be granted a waiver from transmitting such records in elec-
5 tronic form if the superintendent determines that such dealer is incapa-
6 ble of such transmission due to technological limitations that are not
7 reasonably within the control of the dealer, or other exceptional
8 circumstances demonstrated by the dealer, pursuant to a process estab-
9 lished in regulation, and at the discretion of the superintendent.
10 Records assembled or collected for purposes of inclusion in the database
11 created pursuant to section 400.02 of this article shall not be subject
12 to disclosure pursuant to article six of the public officers law. The
13 record book shall be maintained on the premises mentioned and described
14 in the license and shall be open at all reasonable hours for inspection
15 by any peace officer, acting pursuant to his special duties, or police
16 officer. In the event of cancellation or revocation of the license for
17 gunsmith or dealer in firearms, or discontinuance of business by a
18 licensee, such record book shall be immediately surrendered to the
19 licensing officer in the city of New York, and in the counties of Nassau
20 and Suffolk, and elsewhere in the state to the executive department,
21 division of state police.
22 § 4. Severability. If any clause, sentence, paragraph, section or part
23 of this act shall be adjudged by any court of competent jurisdiction to
24 be invalid, such judgment shall not affect, impair or invalidate the
25 remainder thereof, but shall be confined in its operation to the clause,
26 sentence, paragraph, section or part thereof directly involved in the
27 controversy in which such judgment shall have been rendered.
28 § 5. This act shall take effect on the one hundred eightieth day after
29 it shall have become a law. Effective immediately, the addition, amend-
30 ment and/or repeal of any rule or regulation necessary for the implemen-
31 tation of this act on its effective date are authorized to be made and
32 completed on or before such effective date.
