Add §79-o, Civ Rts L; amd §§400, 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 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.
STATE OF NEW YORK
________________________________________________________________________
2132
2019-2020 Regular Sessions
IN ASSEMBLY
January 22, 2019
___________
Introduced by M. of A. HAWLEY, STEC, BRABENEC, LAWRENCE, CROUCH, MONTES-
ANO, BLANKENBUSH, TAGUE -- Multi-Sponsored by -- M. of A. BARCLAY,
B. 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; 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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01601-01-9
A. 2132 2
1 been "involuntarily committed to a mental institution," such pleading
2 shall include an allegation as to the said court order date and juris-
3 diction;
4 (b) The burden of proof in such proceeding shall be no less than clear
5 and convincing evidence;
6 (c) Individuals may examine the entire contents of his or her firearm
7 license records constructed by state and local licensing and law
8 enforcement authorities;
9 (d) There shall be a right to counsel, including the right to assigned
10 counsel, if counsel cannot be afforded; and
11 (e) Any firearms confiscated and/or surrendered into law enforcement
12 evidence status during such proceeding shall not be destroyed, unless
13 specifically directed through a written order by a court of competent
14 jurisdiction at the conclusion of all disqualification proceedings
15 relating to the individual, including any appeals undertaken.
16 2. (a) There shall be contemporaneous written notification to all
17 individuals being reported to any law enforcement database that could
18 result in the deprivation of rights to own, possess, or use a firearm
19 and/or the deprivation of a lawfully owned firearm, including, but not
20 limited to, reports under former section 9.46 of the mental hygiene law
21 and under 18 USC § 922(g).
22 (b) There shall be written notification transmitted within ninety days
23 of the effective date of this section to all individuals previously
24 reported into any law enforcement database that could result in the
25 deprivation of rights to own, possess, or use a firearm and/or the
26 deprivation of a lawfully owned firearm, including, but not limited to,
27 the databases maintained by the office of mental health, the division of
28 criminal justice services, and the division of state police in conjunc-
29 tion with reports made under the former section 9.46 of the mental
30 hygiene law and/or under 18 USC § 922(g)(4), and that such written
31 notification shall include notice that the individual may have a right
32 to commence a proceeding in either the New York state supreme court or
33 county court under article seventy-eight of the civil practice laws and
34 rules if he or she believes that the information contained within the
35 notification is in error.
36 (c) Any individual, business, or governmental official who, knowing
37 the information reported, conveyed or circulated to be false, reports
38 that a person has been involuntarily committed, shall be subject to a
39 civil fine of not more than ten thousand dollars per offense.
40 (d) In any proceeding where an individual establishes that a report
41 that he or she was involuntarily committed was false, reasonable attor-
42 ney's fees and costs shall be reimbursed by the state.
43 (e) The state shall correct any false or incorrect report against an
44 individual to state and federal databases, including those under 18 USC
45 §922(g), within seven days of entry and service upon the state of a
46 final order of disposition in a case. The failure of the state to timely
47 do so shall be punishable as a contempt of court.
48 (f) Notwithstanding any law, rule or regulation to the contrary, an
49 individual's medical and/or clinical records shall not be used for
50 routine law enforcement reporting purposes relative to firearms owner-
51 ship, use, possession, or suitability.
52 § 3. Section 400.02 of the penal law, as added by chapter 1 of the
53 laws of 2013, is amended to read as follows:
54 § 400.02 Statewide license and record database.
55 There shall be a statewide license and record database which shall be
56 created and maintained by the division of state police the cost of which
A. 2132 3
1 shall not be borne by any municipality. Records assembled or collected
2 for purposes of inclusion in such database shall not be subject to
3 disclosure pursuant to article six of the public officers law, excepting
4 any non-identifying records such as existing statistical tabulations or
5 those capable of being performed or such record responses as can be
6 reasonably satisfied through redacted response. Records containing
7 granted license applications shall be periodically checked by the divi-
8 sion of criminal justice services against criminal [conviction, mental
9 health, and all other records] convictions as [are] is necessary to
10 determine their continued accuracy as well as whether an individual is
11 no longer a valid license holder. The division of criminal justice
12 services shall also check pending applications made pursuant to this
13 article against such records to determine whether a license may be
14 granted. All state agencies shall cooperate with the division of crimi-
15 nal justice services, as otherwise authorized by law, in making their
16 records available for such checks. The division of criminal justice
17 services, upon determining that an individual is ineligible to possess a
18 license, or is no longer a valid license holder, shall notify the appli-
19 cable licensing official of such determination and such licensing offi-
20 cial shall not issue a license or revoke such license and any weapons
21 owned or possessed by such individual shall be removed consistent with
22 the provisions of subdivision eleven of section 400.00 of this article.
23 Local and state law enforcement shall have access to such database, as
24 otherwise authorized by law, in the performance of their duties. Records
25 assembled or collected for purposes of inclusion in the database estab-
26 lished by this section shall be released pursuant to a court order.
27 § 4. Paragraph (b) of subdivision 11 of section 400.00 of the penal
28 law is REPEALED.
29 § 5. Section 400.05 of the penal law is amended by adding a new subdi-
30 vision 7 to read as follows:
31 7. Whenever any machine-gun or firearm is destroyed pursuant to subdi-
32 vision two of this section, all state and local law enforcement agencies
33 shall publish on their website, on an annual basis, an inventory of
34 every machine-gun or firearm that is destroyed, including the caliber,
35 make, model, manufacturer's name, serial number, or if none, any other
36 distinguishing number or identification mark of the machine-gun or
37 firearm, and if applicable, the jurisdiction and date of the court order
38 directing the surrender and/or destruction of such machine-gun or
39 firearm.
40 § 6. Paragraph (c) of subdivisions 11 and 16-a and paragraph (b) of
41 subdivision 10 of section 400.00 of the penal law are REPEALED.
42 § 7. Subdivision 1 of section 898 of the general business law, as
43 added by chapter 1 of the laws of 2013, is amended to read as follows:
44 1. In addition to any other requirements pursuant to state and feder-
45 al law, all sales, exchanges or disposals of firearms, rifles or shot-
46 guns shall be conducted in accordance with this section unless such
47 sale, exchange or disposal is conducted by a licensed importer, licensed
48 manufacturer or licensed dealer, as those terms are defined in 18 USC §
49 922, when such sale, exchange or disposal is conducted pursuant to that
50 person's federal firearms license or such sale, exchange or disposal is
51 between members of an immediate family. For purposes of this section,
52 "immediate family" shall mean spouses, domestic partners, parents,
53 brothers, sisters, children and step-children.
54 § 8. Subdivision 17 of section 400.00 of the penal law is renumbered
55 subdivision 18 and a new subdivision 17 is added to read as follows:
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1 17. Applicants who have a genuine and sincere religious belief, who
2 have provided fingerprints pursuant to this section, shall not be
3 required to provide photographs of themselves in order to obtain a
4 license as required by this section.
5 § 9. Section 400.03 of the penal law is REPEALED.
6 § 10. Subdivision 16-a of section 400.00 of the penal law is amended
7 by adding a new paragraph (c) to read as follows:
8 (c) The division of state police shall not require the registration of
9 a seller of ammunition, as defined in subdivision twenty-four of section
10 265.00 of this chapter, in order for such seller of ammunition to oper-
11 ate his or her business.
12 § 11. Section 9.46 of the mental hygiene law is REPEALED.
13 § 12. Subdivision 19 of section 837 of the executive law is REPEALED.
14 § 13. Paragraph 12 of subdivision (c) of section 33.13 of the mental
15 hygiene law, as amended by chapter 1 of the laws of 2013, is amended to
16 read as follows:
17 12. to a director of community services as defined in article nine of
18 this chapter or his or her designee, provided that such director or his
19 or her designee [(i)] requests such information in the exercise of his
20 or her statutory functions, powers and duties pursuant to section 9.37,
21 9.45, 9.47, 9.48, 9.60 or 41.13 of this chapter[; or (ii) the disclosure
22 of information is required pursuant to section 9.46 of this chapter].
23 § 14. One year after the completion of transmission of notification of
24 all individuals pursuant to paragraph (b) of subdivision two of section
25 79-o of the civil rights law, as added by section two of this act, all
26 offices and agencies in use or possession of reports required under the
27 former section 9.46 of the mental hygiene law shall purge all such
28 information.
29 § 15. Severability. If any provision of this act, or the application
30 thereof to any person or circumstance, shall be adjudged by any court of
31 competent jurisdiction to be invalid or unconstitutional, such judgment
32 shall not affect, impair or invalidate the remainder thereof, but shall
33 be confined in its operation to the provision of this act, or in its
34 application to the person or circumstance, directly involved in the
35 controversy in which such judgment shall have been rendered.
36 § 16. This act shall take effect immediately.
