Barclay, Crouch, Finch, Goodell, Hawley, Kolb, Oaks, Palmesano, Walsh, Walter
Amd §§446-a, 552, 656-a & 780-a, Fam Ct Act; amd §§240 & 252, Dom Rel L; rpld Art 39-DDD, Gen Bus L; rpld
§9.46, Ment Hyg L; rpld §§37, 38, 46 & 51, amd §58, Chap 1 of 2013; amd §§265.02 & 400.00, rpld §§265.01-b,
265.36, 265.37, 265.45, 400.02 & 400.03 Pen L; rpld §2509, SCPA
Relates to the suspension and revocation of a license to carry firearms; relates to the applicability of certain provisions of the penal law, large capacity ammunition feeding devices, and gun licenses; relates to effectiveness of certain provisions of the NY SAFE Act relating to suspension and revocation of firearms licenses, private sale or disposal of firearms, rifles or shotguns; establishes a minimum age to possess a firearm; repeals various other provisions of law relating to the NY SAFE Act.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2847
SPONSOR: Stec (MS) TITLE OF BILL:
An act to amend the family court act, in relation to the suspension and
revocation of a license to carry firearms; to amend the domestic
relations law, in relation to orders of protection; to amend the penal
law, in relation to the applicability of certain provisions of the penal
law, large capacity ammunition feeding devices, and gun licenses; to
amend section 58 of chapter 1 of the laws of 2013 amending the criminal
procedure law and other laws relating to suspension and revocation of
firearms licenses; private sale or disposal of firearms, rifles or shot-
guns and establishing a minimum age to possess a firearm, in relation to
the effectiveness thereof; and to repeal article 39-DDD of the general
business law relating to the private sale or disposal of firearms,
rifles and shotguns, section 9.46 of the mental hygiene law relating to
reports of substantial risk or threat of harm by mental health profes-
sionals, sections 37, 38, 46 and 51 of chapter 1 of the laws of 2013,
amending the criminal procedure law and other laws relating to suspen-
sion and revocation of firearms licenses; private sale or disposal of
firearms, rifles or shotguns and establishing a minimum age to possess a
firearm relating to gun control, section 265.01-b of the penal law
relating to criminal possession of a firearm, section 265.36 of the
penal law relating to unlawful possession of a large capacity ammunition
feeding device, 265.37 of the penal law relating to unlawful possession
of certain ammunition feeding devices, 265.45 of the penal law relating
to the safe storage of rifles, shotguns, and firearms, 400.02 of the
penal law relating to the statewide license and record database and
400.03 of the penal law relating to sellers of ammunition, and section
2509 of the surrogate's court procedure act relating to a firearms
inventory
PURPOSE:
This bill seeks to amend or repeal those sections of the NY SAFE Act
that are of questionable legality or which present practical problems
for mental health officials or law enforcement and those sections that
impose an unfunded mandate on local governments.
SUMMARY OF PROVISIONS:
Section 1 of the bill seeks to amend section 446-a of the Family Court
Act to clarify that the Family Court Judge can determine to suspend or
revoke the license to carry, possess, repair or dispose of a firearm or
the eligibility for such a license when issuing an order of protection;
this is particularly important in the case of a temporary order where
suspension, rather than revocation may be most appropriate until all
facts are known or adjudicated.
Section 2 makes the same amendment to 552 of the Family Court Act as
section 1 does for section 446 for much the same reasons. Depending on
the nature of the violation, the Family Court Judge should decide wheth-
er suspension or revocation is appropriate.
Sections 3, 4, 5 and 6 make the same amendments as sections 1 and 2 for
similar reasons.
Section 7 repeals section 17 of the SAFE act which added a new Article
39-DDD to the General Business Law. While there is some merit to requir-
ing a background check for sales or exchanges of certain weapons, the
SAFE act presumes that licensed dealers will be willing to perform the
background check, complete the necessary paperwork and maintain records
of such transaction and assume the liability therefor for a fee not to
exceed ten ($10.00) dollars per transaction. At a time when the minimum
wage is proposed to be increased to $9.00 per hour this is unrealistic
if the dealer were to charge more than ten ($10) dollars, the dealer
would violate the law and commit a misdemeanor, punishable by up to one
year in jail. It is more probable that no dealers would consent to
undertake these tasks for the limited fee authorized and the individual
seller would be left without the ability to transfer the weapon or risk
punishment for a class A misdemeanor by transferring the weapon without
a dealer's involvement.
Section 8 of this bill repeals section 20 of the SAFE Act. While
undoubtedly well intended, the new section 9.46 added to the Mental
Hygiene Law has been opposed by some organizations of mental health
professionals because it may deter individuals from seeking professional
help or from fully disclosing their intentions to their mental health
professional. There is further opposition to this provision on the basis
that it reinforces stereotypes of persons with mental illness as danger-
ous To add to the problems with this provision, it would appear to be an
unfunded mandate. If just all hospital admissions to psychiatric units
(presumably because the individual is likely to engage in conduct that
would result in harm to himself/herself or another) required a MHL 9.46
report, there would be over 200.000 reports annually in the state to be
received, evaluated and passed on to DCJS. County mental health offices
are not equipped to handle this flood of new work and would have to hire
at least hundreds of new staff without a revenue stream. Lastly, while
MHL 9.46 protects the mental health professional from civil or criminal
liability, no such protection is afforded the directors of community
services or their counties
Section 9 of this bill will repeal section 37 of the SAFE Act which
redefined an "assault weapon" by stating that a semiautomatic rifle or
pistol that has an ability to accept a detachable magazine (regardless
of size) or a semiautomatic shotgun, either of which has only one of the
characteristics listed in the statute, such as a folding or telescoping
stock, would now be defined as an "assault weapon". These artificial
distinctions would re- classify a large number of the weapons currently
owned by law abiding citizens for sporting and personal protection,
arguably infringing upon the rights guaranteed them by the Second Amend-
ment to the U.S. Constitution and Article 2, section 4 of the New York
Civil Rights Law.
Section 9 of this bill will also repeal section 38 of the SAFE Act which
redefines "large capacity ammunition feeding device" to include those
that can accept more than seven rounds of ammunition Section 35 contains
measures that would be extremely burdensome to enforce and would create
new "New York only" manufacturing standards on manufacturers of ammuni-
tion feeding devices. The SAFE act also does not contain appropriate
exemptions for police, military and other government agencies.
Section 9 of this bill also repeals the amendment to paragraph 3 of
subdivision a of section 265.20 of the Penal Law contained in section 46
of the SAFE Act as it refers to the registration of firearms, that by
the repeal of other sections would no longer be required. This section
also repeals new paragraph 7-f as that exemption would no longer be
needed with the repeal of sections dealing with the possession of ammu-
nition feeding devices capable of holding more than seven rounds.
Section 9 additionally repeals section 51 of the SAFE Act which would
criminalize the failure of a gun owner to report the loss or theft of a
gun to a police department within twenty-four hours of discovery by
making it a class A misdemeanor, punishable by up to a year in jail
previously, such a failure was only punishable by a fine not to exceed
one hundred dollars. This amendment criminalizes this failure or omis-
sion to act, without requiring knowledge or intent on the part of the
person failing to act and without regard to his or her ability to act.
Conceivably, a victim of a robbery, hospitalized as a result of injuries
sustained in the robbery for more than 24 hours, could be guilty of
failing to make a timely report
Section 10 of this bill would repeal section 41-a of the SAFE Act which
would criminalize the possession of a firearm, which would include the
newly defined "assault weapon" and make the failure to register a
firearm, including the newly defined assault weapon, a felony crime. The
latter provision of the SAFE Act could result in thousands of otherwise
law abiding New Yorkers being subject to felony prosecution if they
fail, refuse or neglect to register weapons that are now legal. This
section is of questionable constitutional validity and appears in
conflict with the New York Civil Rights Law.
Section 10 of this bill also repeals section 46-a of the SAFE Act which
would make possession of a newly defined large capacity ammunition feed-
ing device a crime.
Section 10 of this bill also repeals section 47 of the SAFE Act which
added a new requirement for the storage of rifles, shotguns and
firearms. While this section of the SAFE Act is well intentioned, it was
not fully thought out and contains practical problems that could unin-
tentionally subject otherwise law abiding citizens to criminal prose-
cution. The provisions of the SAFE Act would seem to require that
persons living with someone prohibited from possessing a firearm would
have to use a gun locking device or lock his or her weapons in a "safe
storage depository" nearly all of the time, which would seemingly
prevent such weapons from being immediately available for self-defense,
the defense of others or the protection of home invasion.
Section 10 of this bill would repeal section 49 of the SAFE Act which
would create a new statewide license and record database, This database
would cost approximately $32.7 million, according to the Executive's
proposed 2013-14 budget. While the creation of the database is well-in-
tended, the chilling effect on the rights of legal gun owners imposed by
the additional records maintained in this database, outweighs its bene-
fit.
Section 10 repeals section 50 of the SAFE Act which would impose a new
requirement on sellers of ammunition to record, in detail, every ammuni-
tion sale and clear every transaction through the proposed, to-be-es-
tablished statewide license and record database. This is a new mandate
on ammunition sellers and purchasers, regardless of the type of ammuni-
tion or quantity, which will result in tens of thousands of new records
required to be kept. The likely impact will be additional costs to New
York business owners, a chilling effect on the rights of New York gun
owners exercise of their legal rights and the shift of ammunition
purchases out of state.
Section 11 of this bill repeals the amendments to subdivision (8) of
section 265.02 of the Penal Law, added by section 41-b of the SAFE Act,
as that section would criminalize the possession of the newly defined
"large capacity ammunition feeding device".
Section 12 of this bill repeals those amendments of section 48 of the
SAFE Act that create a new firearm licensing system. The Executive's
proposed 2013-14 budget estimates the cost of this new system at $35.9
million at a time when the state is struggling to meet the challenges of
our current economic climate and faces significant cuts in federal
assistance. Additionally, this system would seem duplicative of the
record keeping of county clerks and separate from any national gun
registration database. The SAFE Act additionally establishes a complex
system for certain gun owners to request that their license information
to be withheld from disclosure. This issue is dealt with more simply in
this bill by making license information not subject to FOIL, The reason
for exempting this information arc ninny and varied and have been the
subject of much media attention since the disclosure by a Hudson Valley
newspaper of the names and addresses of those in certain counties that
had pistol permits The potential harm to police officers, corrections
officers, parole officers, federal agents, judges, victims of domestic
violence and others outweighs the need for public disclosure of this
information. These license holders have committed no crime, in fact,
they have submitted to a background investigation in order to get their
licenses so sufficient safeguards are in place obviating the need for
public disclosure of their personal information. Additionally, this bill
will repeal the new requirement that pistol license holders recertify
every five years under the threat of license revocation. Most important,
this bill repeals those new sections of law added by the SAFE Act which
would require, for the first time, registration of newly defined assault
weapons. This registration requirement will affect tens of thousands of
sportsmen and hunters in New York and potentially subject them to crimi-
nal prosecution for their failure to register their firearms. This
requirement could create a chilling effect on the exercise of citizens'
rights under the Second Amendment to the U.S. Constitution, the NYS
Constitution and the New York Civil Rights Law.
Section 13 of this bill repeals section 53 of the SAFE Act which would
require that the fiduciary or attorney of record include a particular-
ized description of every firearm, shotgun and rifle in the list of
assets of the decedent's estate in the surrogate's court and with the
division of criminal justice services. This section appears to require
all firearms, shotguns, and rifles, whether antique, non-working or
otherwise to be listed. While there appears to be no sanction for a
failure to list, it is practically difficult for an attorney of record,
who generally does not control the decedent's household effects and
personal property to report any specific property; he must usually trust
the next-of-kin to provide the list.
Section 14 amends the effective dates of the SAFE Act's various
sections.
Section 15 is a standard severability clause.
Section 16 sets the effective date.
EXISTING LAW:
In large part, this bill seeks, in many respects, to return to the law
existing prior to the enactment of the SAFE Act.
JUSTIFICATION:
The SAFE Act was rushed into print and to votes in both chambers of the
Legislature without the opportunity for rank and file members to review
the text, analyze the impacts or to consult with constituents and inter-
ested parties. Since its enactment, over 125,000 New Yorkers have signed
a petition requesting its repeal. Now that the public has had an oppor-
tunity to review the provisions of the SAFE Act, law enforcement groups,
mental health organizations, gun owner groups, and others have identi-
fied problems with the bill. Since the SAFE Act's signing into law,
several lawsuits have been instituted to challenge various aspects of
the law This bill attempts to address the legitimate concerns raised
about the SAFE Act.
LEGISLATIVE HISTORY:
2015-16: S.1556 referred to Judiciary; A.2391 held for consideration in
Codes
2013-14: S.3948 referred to Judiciary; A.6094 referred to Codes
EFFECTIVE DATE:
Immediately.
