Add SS265.50 - 265.59, amd S400.00, Pen L; amd S396-ee, Gen Bus L
Enacts "Nicholas' law"; requires the safe storage of all weapons, either in a safe or with a locking device, and provides penalties for simple and complex violations (removal from premises, injury or death results); requires notices to be furnished upon transfer of weapons and issuance/renewal of licenses; defines weapons to mean rifles, shotguns, and firearms; does not preempt local laws no less restrictive or stringent.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8293A
SPONSOR: Paulin (MS) TITLE OF BILL: An act to amend the penal law and the general business
law, in relation to safe weapon storage
PURPOSE:
To provide regulations for safe storage of firearms in order to prevent
injury and death, particularly of children, by unintentional access,
discharge and use of weapons.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1: The act shall be known as "Nicholas's law."
Section 2: Recites the legislative findings.
Section 3: Ten new sections amending the penal law to include:
§ 265.50 defines "safe storage depository" and "weapon";
§ 255.51 excludes any duly licensed manufacturer of weapons from
§265.52;
§ 265.52 defines failure to store a weapon safely in the second degree
as storing or leaving a weapon out of one's immediate possession or
control without having first securely locked such weapon in a safe stor-
age depository or rendered it incapable of being fired by using an
appropriate gun locking device; failure to store a weapon safely in the
second degree is a violation;
§255.53 defines failure to store a weapon safely in the first degree as
committing the offense of failure to store a weapon safely in the second
degree and the person has been previously convicted of failure to store
a weapon safely in the second degree within the preceding 10 years;
failure to store a weapon safely in the first degree is a class A misde-
meanor;
§ 265.54 defines aggravated failure to store a weapon safely in the
second degree as committing the offense of failure to store a weapon
safely in the second degree and the weapon is removed by any other
person from the premises where it was stored unsafely; aggravated fail-
ure to store a weapon safely in the second degree is a class A misdemea-
nor;
§ 265.55 defines aggravated failure to store a weapon safely in the
first degree as committing the offense of failure to store a weapon
safely in the second degree and the weapon discharges and thereby caus-
es, directly or indirectly, physical injury, serious physical injury, or
death to any other person; aggravated failure to store a weapon safely
in the first degree is a class E felony;
§ 265.56 requires the district attorney, when deciding whether or not to
prosecute a parent or guardian of a child who is injured or who dies as
the result of a violation of § 265.55, to consider, among other factors,
the impact of the injury or death on such parent or guardian, and
further provides that a parent or guardian of a child who is injured or
who dies as the result of a violation of § 265.55 shall be prosecuted
only in those instances in which the parent or guardian behaved in a
reckless manner;
§ 265.57 defines failure to provide notice in the second degree as the
failure, in the sale, delivery or transfer of any weapon to another
person, to provide the transferee at the time of sale, delivery or
transfer, with a safety locking device that is capable of preventing the
weapon from firing or a safe storage depository and a copy of the warn-
ing set forth in the section in conspicuous and legible type; failure to
provide notice in the second degree is a violation;
§ 265.58 defines failure to provide notice in the first degree as
committing the offense of failure to provide notice in the second degree
to provide notice in the second degree and the person has been previous-
ly convicted of the offense of failure to provide notice in the second
degree within the preceding ten years; failure to provide notice in the
first degree is a class /3 misdemeanor;
§ 265.59 provides that whenever (i) a person is convicted of failure to
store a weapon safely in the second degree under section 265.52 or
aggravated failure to store a weapon safely in the second degree under
section 265.54, and has a prior conviction of failure to store a weapon
safely in the second degree under section 265.52 or aggravated failure
to store a weapon safely in the second degree under section 265.54, or
(ii) a person is convicted of failure to store a weapon safely in the
first degree under section 265.53 or aggravated failure to store a weap-
on safely in the first degree under section 265.55, the court shall
revoke any existing license possessed by such person, order such person
ineligible for such a license, and order the immediate surrender of any
or all firearms owned or possessed, or suspend or continue to suspend
any such existing license possessed by such person, order such person
ineligible for such a license, and order the immediate surrender of any
or all firearms owned or possessed by such person. This section further
provides that whenever a person is convicted as provided in this
section, the court shall require the respondent to inform the court of
all firearms he or she owns or possesses. Such person shall have the
right to a hearing regarding any revocation, suspension, ineligibility
or surrender order issued pursuant to this section. In addition, if the
court issues a revocation, suspension, ineligibility or surrender order,
the court shall immediately notify the local police authorities and the
division of state police in Albany.
Section 4: New subdivision 18 is added to § 400.00 of the penal law to
require the licensing officer to issue a notice set forth in the subdi-
vision in conspicuous and legible type upon the issuance or renewal of a
license.
Section 5: Subdivision 2 of § 396-ee of the general business law, as
added by chapter 189 of the laws of 2000, is amended to provide the text
of the notice that every person, firm or corporation engaged in the
retail business of selling rifles, shotguns or firearms must post
conspicuously in bold print in the place where such rifles, shotguns or
firearms are displayed or transferred to a purchaser.
Section 6: Provides for severability if a word, phrase, clause,
sentence, paragraph, section, or part of this act shall be adjudged by a
court of competent jurisdiction to be invalid.
Section 7: Provides the effective date.
JUSTIFICATION:
In 2001, legislation was passed to require the purchase of a safety
locking device with the purchase or transfer of a firearm. In 2013, the
SAFE Act was enacted, which included a provision that requires safe
storage of a firearms however, that provision applies only to a person
who owns or is custodian of a rifle, shotgun or firearm who resides with
an individual who such person knows or has reason to know is prohibited
from possessing a firearm under specific provisions of federal law. And
the SAFE Act does not provide for the safe storage of firearms in homes
when and where children are present. This legislation would provide for
criminal penalties for any person who stores or otherwise leaves a weap-
on out of his or her immediate possession or control without having
first securely locked such weapon in an appropriate safe storage deposi-
tory or rendered it incapable of being fired by using an appropriate gun
locking device.
In 2010, firearms killed 1,011 New Yorkers. Of these, 527 deaths were
homicides (52W), 459 were suicides (45%), and 13 were unintentional
(1.Mi). Safe storage is one way to help reduce the firearm death and
injury rate in New York State.
Safe storage may reduce theft and use of firearms in crime. It is esti-
mated that each year in the United States, half a million firearms are
stolen.
Safe storage is particularly important in keeping firearms out of the
hands of children and young people. A 2005 study of adult firearm stor-
age practices found that almost 2 million children under age 18 live in
homes with easily accessible loaded and/or unlocked guns. 116 Pediatrics
e3701-372 (Sept. 2005). We have learned that poorly stored guns increase
the risk of accidental gun deaths. Reducing Gun Violence in America:
Informing Policy with Evidence and Analysis, Webster OW, Vernick JS, ed.
2013, p. 13. Moreover, studies have shown that keeping firearms locked
and unloaded reduced unintentional injury in homes with children and
teens. 293 JANA 707, 711-713
(2005). Each year in New York State, on average 210 children ages 19
years and younger are treated at a hospital because of an unintentional
firearm injury, and 75 are injured severely enough to be hospitalized.
Two children in this age group are killed each year in an unintentional
firearm incident. A gun kept in the home is 43 times more likely to be
used to kill someone who the family knows than to kill someone in self-
defense.
(http://www.health.ny.gov/prevention/injury_prevention/children/fact_
sheets/birth-19_years/firearm_injuries_birth-19_years.htm)
This bill is named for 12-year old Nicholas Naumkin, who was shot in the
head by his 12-year-old friend at his friend's home in Wilton, New York.
His friend was playing with his father's gun when he shot Nicholas.
Nicholas died the following day, on December 23, 2010. A middle school
student in Saratoga Springs, Nicholas was a talented young man with a
passion for acting, drawing and computer animation.
In 2011, in New York, 389 children under the age of 18 were hospitalized
with a nonfatal gun injury. Of these injuries, 314 were due to an
assault and 60 were accidental (National Inpatient Sample, 2011). In
2010, according to the Centers for Disease Control (WISQARS), 116 chil-
dren under the age of 19 were killed by guns in New York - 93 were homi-
cides, 13 were suicides and ten were undetermined.
Child Access Prevention (CAP) laws, which include provisions similar to
those contained in this legislation, have been associated with lower
rates of unintentional gun deaths among children. Regulating Guns in
America: An Evaluation and Comparative Analysis of Federal, State and
Selected Local Gun Laws, p. 233, published by Legal Community Against
Violence, 2008. Currently, 27 states and the District of Columbia have
enacted CAP laws, including California, Connecticut, Florida, Illinois,
Massachusetts, New Jersey, Texas and Virginia. Studies have found CAP
laws to be effective in reducing accidental shootings of children by as
much as 23%.
Preventing children from obtaining access to firearms by requiring safe
storage will enable us to prevent child accidents, suicides and school
incidents. First, safe storage can prevent those tragic, accidents where
a child finds a loaded firearm and accidentally shoots another child.
Safe storage can also reduce suicides, particularly by teems who may
reach for an available firearm in a moment of distress. Studies indicate
mere presence of an available firearm the house increases teen suicide.
Many of these firearms came from homes where they were unlocked. A 1998
report issued by the State Department of Health indicated that a
substantial number of firearm owners in New York State do not properly
secure their firearms. The report, Firearm Ownership and Safe Storage in
New York State, concluded 38%. reported some form of unsafe storage,
where unsafe storage is defined as either failing to lock all firearms
or to secure ammunition separately in a locked place.
The intent of this legislation is to encourage safe firearm storage
before incidents occur, as in the tragic accident with Nicholas Naumkin.
Although we have been a leader in enacting strong gun safety laws, we do
not have CAP and safe storage laws critical to prevent gun accidents.
Safe storage laws save lives.
PRIOR LEGISLATIVE HISTORY:
Similar to A.3221, 2013 referred to codes. Same as S.1804, 2013 referred
to codes. Similar to A.381, 2011 and 2012 referred to codes. Same as
S.4538, 2011 and 2012 referred to codes. A.1094, 2009 and 2010 referred
to codes. A.7303, 2007 and 2008 referred to codes. Same as S.7475, 2008
referred to codes. A2063, 2005 and 2006 referred to codes. A.4555, 2004
referred to codes.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding the
date on which it shall have becomes a law.
STATE OF NEW YORK
________________________________________________________________________
8293--A
2013-2014 Regular Sessions
IN ASSEMBLY
December 6, 2013
___________
Introduced by M. of A. PAULIN, WEISENBERG, ABINANTI, ENGLEBRIGHT,
JAFFEE, JACOBS, ROSENTHAL, GALEF, COOK, ORTIZ, CYMBROWITZ, DINOWITZ,
WEINSTEIN, MAYER, SCARBOROUGH, WEPRIN, FAHY, BROOK-KRASNY -- Multi-
Sponsored by -- M. of A. ARROYO, AUBRY, BRENNAN, CLARK, GOTTFRIED,
HOOPER, MILLMAN, THIELE -- read once and referred to the Committee on
Codes -- recommitted to the Committee on Codes in accordance with
Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the penal law and the general business law, in relation
to safe weapon storage
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 "Nicholas's law".
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. The legislature hereby finds the following:
7 The presence of unsecured, easily accessible, weapons in homes and
8 other places increases the likelihood of death or injury from accidents
9 and impulsive acts. Guns left unattended must be kept locked or stored
10 securely to prevent access by children and others who should not have
11 access to them. Gun owners and other lawful possessors are responsible
12 for keeping their weapons from falling into the hands of children and
13 other unauthorized individuals.
14 § 3. The penal law is amended by adding ten new sections 265.50,
15 265.51, 265.52, 265.53, 265.54, 265.55, 265.56, 265.57, 265.58 and
16 265.59 to read as follows:
17 § 265.50 Definitions; safe weapon storage.
18 As used in sections 265.51 through 265.59 of this article, the follow-
19 ing terms shall have the following meanings:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13076-04-4
A. 8293--A 2
1 1. "Person" includes a natural person, corporation, partnership,
2 limited liability company, or any other entity.
3 2. "Safe storage depository" means a safe or other secure container
4 which, when locked, is incapable of being opened without the key, combi-
5 nation, or other unlocking mechanism and is capable of preventing an
6 unauthorized person from obtaining access to and possession of the weap-
7 on contained therein. The division of state police shall develop and
8 promulgate rules and regulations setting forth the specific devices or
9 the minimum standards and criteria therefor which constitute an effec-
10 tive safe storage depository.
11 3. "Weapon" means a "rifle", "shotgun", "firearm", "antique firearm",
12 or "machine gun".
13 § 265.51 Safe storage of weapons; applicability.
14 The provisions of section 265.52 of this article shall not apply to
15 any duly licensed manufacturer of weapons.
16 § 265.52 Failure to store a weapon safely in the second degree.
17 A person is guilty of failure to store a weapon safely in the second
18 degree when he or she owns or is a bailee or other knowing and voluntary
19 possessor of a weapon and stores or otherwise leaves a weapon out of his
20 or her immediate possession or control without having first securely
21 locked such weapon in an appropriate safe storage depository or rendered
22 it incapable of being fired by the use of a gun locking device appropri-
23 ate to that weapon.
24 Failure to store a weapon safely in the second degree is a violation.
25 § 265.53 Failure to store a weapon safely in the first degree.
26 A person is guilty of failure to store a weapon safely in the first
27 degree when he or she commits the offense of failure to store a weapon
28 safely in the second degree as defined in section 265.52 of this article
29 and has been previously convicted of the offense of failure to store a
30 weapon safely in the second degree as defined in section 265.52 of this
31 article within the preceding ten years.
32 Failure to store a weapon safely in the first degree is a class A
33 misdemeanor.
34 § 265.54 Aggravated failure to store a weapon safely in the second
35 degree.
36 A person is guilty of aggravated failure to store a weapon safely in
37 the second degree when he or she commits the offense of failure to store
38 a weapon safely in the second degree as defined in section 265.52 of
39 this article and such weapon is removed by any other person from the
40 premises where it was stored unsafely.
41 Aggravated failure to store a weapon safely in the second degree is a
42 class A misdemeanor.
43 § 265.55 Aggravated failure to store a weapon safely in the first
44 degree.
45 A person is guilty of aggravated failure to store a weapon safely in
46 the first degree when he or she commits the offense of failure to store
47 a weapon safely in the second degree as defined in section 265.52 of
48 this article and such weapon discharges and thereby causes, directly or
49 indirectly, physical injury, serious physical injury, or death to any
50 other person.
51 Aggravated failure to store a weapon safely in the first degree is a
52 class E felony.
53 § 265.56 Aggravated failure to store a weapon safely in the first
54 degree; application.
55 If a person who is suspected of violating section 265.55 of this arti-
56 cle is the parent or guardian of a child who is injured or who dies as
A. 8293--A 3
1 the result of such violation, the district attorney shall consider,
2 among other factors, the impact of the injury or death on the person who
3 is suspected of violating section 265.55 of this article when deciding
4 whether or not to prosecute such person for such crime.
5 A parent or guardian of a child who is injured or who dies as a result
6 of a violation of section 265.55 of this article shall be prosecuted
7 only in those instances in which the parent or guardian behaved in a
8 reckless manner.
9 § 265.57 Failure to provide notice in the second degree.
10 No person shall sell, deliver, or transfer any weapon to another
11 person unless the transferee is provided at the time of sale, delivery,
12 or transfer with:
13 1. A gun locking device that is capable of preventing that particular
14 weapon from firing or a safe storage depository; and
15 2. A copy of the following warning in conspicuous and legible twenty-
16 four point type on eight and one-half inches by eleven inches paper
17 stating in bold print the following warning:
18 WARNING
19 RESPONSIBLE FIREARM STORAGE IS THE LAW IN NEW YORK STATE. FIREARMS MUST
20 EITHER BE STORED WITH A GUN LOCKING DEVICE OR IN A SAFE STORAGE DEPOSI-
21 TORY OR NOT BE LEFT OUTSIDE THE IMMEDIATE POSSESSION AND CONTROL OF THE
22 OWNER OR OTHER LAWFUL POSSESSOR. FIREARMS SHOULD BE STORED UNLOADED AND
23 LOCKED IN A LOCATION SEPARATE FROM AMMUNITION. LEAVING FIREARMS ACCESSI-
24 BLE TO A CHILD OR OTHER PERSON MAY SUBJECT YOU TO IMPRISONMENT, FINE, OR
25 BOTH.
26 Failure to provide notice in the second degree is a violation.
27 § 265.58 Failure to provide notice in the first degree.
28 A person is guilty of failure to provide notice in the first degree
29 when he or she commits the offense of failure to provide notice in the
30 second degree as defined in section 265.57 of this article and has been
31 previously convicted of the offense of failure to provide notice in the
32 second degree as defined in section 265.57 of this article within the
33 preceding ten years.
34 Failure to provide notice in the first degree is a class B misdemea-
35 nor.
36 § 265.59 Suspension and revocation of a license to carry, possess,
37 repair or dispose of a firearm or firearms pursuant to
38 section 400.00 of this chapter and ineligibility for such a
39 license; order to surrender firearms.
40 1. Whenever (a) a person is convicted of failure to store a weapon
41 safely in the second degree under section 265.52 of this article or
42 aggravated failure to store a weapon safely in the second degree under
43 section 265.54 of this article, and has a prior conviction of failure to
44 store a weapon safely in the second degree under section 265.52 of this
45 article or aggravated failure to store a weapon safely in the second
46 degree under section 265.54 of this article; or (b) a person is
47 convicted of failure to store a weapon safely in the first degree under
48 section 265.53 of this article or aggravated failure to store a weapon
49 safely in the first degree under section 265.55 of this article, the
50 court shall revoke any existing license possessed by such person, order
51 such person ineligible for such a license, and order the immediate
52 surrender pursuant to subparagraph (f) of paragraph one of subdivision a
53 of section 265.20 of this article and subdivision six of section 400.05
54 of this chapter, of any or all firearms owned or possessed, or suspend
55 or continue to suspend any such existing license possessed by such
56 person, order such person ineligible for such a license, and order the
A. 8293--A 4
1 immediate surrender pursuant to subparagraph (f) of paragraph one of
2 subdivision a of section 265.20 of this article and subdivision six of
3 section 400.05 of this chapter, of any or all firearms owned or
4 possessed.
5 2. Any suspension order issued pursuant to this section shall remain
6 in effect for five years.
7 3. (a) Whenever a person is convicted as provided in paragraph one of
8 this section, the court shall require the respondent to inform the court
9 of all firearms he or she owns or possesses. Any order to surrender one
10 or more firearms shall specify a date and time by which the surrender
11 shall be completed and, to the extent possible, shall describe such
12 firearms to be surrendered and shall direct the authority receiving such
13 surrendered firearms to immediately notify the court of such surrender.
14 (b) The prompt surrender of one or more firearms pursuant to a court
15 order issued pursuant to this section shall be considered a voluntary
16 surrender for purposes of subparagraph (f) of paragraph one of subdivi-
17 sion a of section 265.20 of this article. The disposition of any such
18 firearms shall be in accordance with the provisions of subdivision six
19 of section 400.05 of this chapter.
20 (c) The provisions of this section shall not be deemed to limit,
21 restrict or otherwise impair the authority of the court to order and
22 direct the surrender of any or all pistols, revolvers, rifles, shotguns
23 or other firearms owned or possessed by a respondent pursuant to this
24 chapter.
25 4. (a) The court revoking or suspending the license, ordering a person
26 ineligible for such license, or ordering the surrender of any firearm as
27 provided in this section shall immediately notify the duly constituted
28 police authorities of the locality of such action and the division of
29 state police at its office in the city of Albany.
30 (b) Where an order of revocation, suspension, ineligibility, or
31 surrender is modified or vacated, the court shall immediately notify the
32 duly constituted police authorities of the locality concerning such
33 action and shall give written notice thereof without unnecessary delay
34 to the division of state police at its office in the city of Albany.
35 5. The respondent shall have the right to a hearing before the court
36 regarding any revocation, suspension, ineligibility or surrender order
37 issued pursuant to this section, provided that nothing in this subdivi-
38 sion shall preclude the court from issuing any such order prior to a
39 hearing. Where the court has issued such an order prior to a hearing, it
40 shall commence such hearing within fourteen days of the date such order
41 was issued.
42 § 4. Section 400.00 of the penal law is amended by adding a new subdi-
43 vision 18 to read as follows:
44 18. Upon the issuance or renewal of a license, the licensing officer
45 shall issue therewith the following notice in conspicuous and legible
46 twenty-four point type on eight and one-half inches by eleven inches
47 paper stating in bold print the following:
48 WARNING
49 RESPONSIBLE FIREARM STORAGE IS THE LAW IN NEW YORK STATE. FIREARMS MUST
50 EITHER BE STORED WITH A GUN LOCKING DEVICE OR IN A SAFE STORAGE DEPOSI-
51 TORY OR NOT BE LEFT OUTSIDE THE IMMEDIATE POSSESSION AND CONTROL OF THE
52 OWNER OR OTHER LAWFUL POSSESSOR. FIREARMS SHOULD BE STORED UNLOADED AND
53 LOCKED IN A LOCATION SEPARATE FROM AMMUNITION. LEAVING FIREARMS ACCESSI-
54 BLE TO A CHILD OR OTHER PERSON MAY SUBJECT YOU TO IMPRISONMENT, FINE, OR
55 BOTH.
A. 8293--A 5
1 § 5. Subdivision 2 of section 396-ee of the general business law, as
2 added by chapter 189 of the laws of 2000, is amended to read as follows:
3 (2) Every person, firm or corporation engaged in the retail business
4 of selling rifles, shotguns or firearms, as such terms are defined in
5 section 265.00 of the penal law, shall, in the place where such rifles,
6 shotguns or firearms are displayed or transferred to the purchaser, post
7 a notice conspicuously stating in bold print that: ["The use of a lock-
8 ing device or safety lock is only one aspect of responsible firearm
9 storage. For increased safety firearms should be stored unloaded and
10 locked in a location that is both separate from their ammunition and
11 inaccessible to children and any other unauthorized person."] "RESPONSI-
12 BLE FIREARM STORAGE IS THE LAW IN NEW YORK STATE. FIREARMS MUST EITHER
13 BE STORED WITH A GUN LOCKING DEVICE OR IN A SAFE STORAGE DEPOSITORY OR
14 NOT BE LEFT OUTSIDE THE IMMEDIATE POSSESSION AND CONTROL OF THE OWNER OR
15 OTHER LAWFUL POSSESSOR. FIREARMS SHOULD BE STORED UNLOADED AND LOCKED
16 IN A LOCATION SEPARATE FROM AMMUNITION. LEAVING FIREARMS ACCESSIBLE TO A
17 CHILD OR OTHER PERSON MAY SUBJECT YOU TO IMPRISONMENT, FINE, OR BOTH."
18 § 6. If any word, phrase, clause, sentence, paragraph, section, or
19 part of this act shall be adjudged by any court of competent jurisdic-
20 tion to be invalid, such judgment shall not affect, impair, or invali-
21 date the remainder thereof, but shall be confined in its operation to
22 the words, phrase, clause, sentence, paragraph, section, or part thereof
23 directly involved in the controversy in which such judgment shall have
24 been rendered.
25 § 7. This act shall take effect on the first of November next succeed-
26 ing the date on which it shall have become a law.
