Creates a private right of action for any person against any person who, within this state, manufactures or causes to be manufactured, distributes, transports, or imports into the state, or causes to be distributed or transported or imported into the state, keeps for sale or offers or exposes for sale, or gives or lends any firearm lacking a serial number required by law, assault weapon, .50 BMG rifle, or firearm precursor part, subject to certain exceptions; specifies that the provisions are inoperative upon invalidation of a specified law in Texas; relates to the liability of a person who challenges a firearm restriction in court.
STATE OF NEW YORK
________________________________________________________________________
10545
IN ASSEMBLY
July 6, 2022
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Abinanti) --
read once and referred to the Committee on Codes
AN ACT to create a private right of action for any person against any
person who, within this state, manufactures or causes to be manufac-
tured, distributes, transports, or imports into the state, or causes
to be distributed or transported or imported into the state, keeps for
sale or offers or exposes for sale, or gives or lends any firearm
lacking a serial number required by law, assault weapon, .50 BMG
rifle, or firearm precursor part, subject to certain exceptions; and
to amend the civil practice law and rules, in relation to the liabil-
ity of a person who challenges a firearm restriction in court
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative intent. (a) The Legislature hereby finds and
2 declares that the proliferation of assault weapons, .50 BMG rifles, and
3 unserialized firearms poses a threat to the health, safety, and security
4 of all residents of, and visitors to, this state. All New Yorker resi-
5 dents are directly harmed by the proliferation of these weapons and this
6 state has a compelling state interest in protecting its citizens from
7 gun violence and from intimidation by persons brandishing these weapons.
8 Further, this state has a compelling interest in enabling law enforce-
9 ment authorities to trace firearms used, manufactured, distributed, or
10 transported unlawfully.
11 (b) The Legislature has previously restricted assault weapons based
12 upon finding that each such firearm has such a high rate of fire and
13 capacity for firepower that its function as a legitimate sports or
14 recreational firearm is substantially outweighed by the danger that it
15 can be used to kill and injure human beings. The Legislature finds that
16 .50 BMG rifles pose a clear and present threat to the health, safety,
17 and security of all residents of, and visitors to, this state, because
18 those firearms have such a high capacity for long-distance and highly
19 destructive firepower that they pose an unacceptable risk of death and
20 serious injury of human beings, destruction or serious damage of vital
21 public and private buildings, civilian, police and military vehicles,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD16026-01-2
A. 10545 2
1 power generation and transmission facilities, petrochemical production
2 and storage facilities, and transportation infrastructure. The Legisla-
3 ture further finds and declares that the manufacture, distribution,
4 transport, importation, and sale of unserialized firearms poses a threat
5 to the health, safety, and security of all residents of, and visitors
6 to, this state, and impedes law enforcement activities, and that the
7 manufacture, distribution, transport, importation, and sale of firearm
8 precursor parts and kits is contributing to the proliferation of unseri-
9 alized firearms in the state.
10 (c) It is the intent of the Legislature in enacting this act to
11 restrict in this state the manufacture, distribution, transportation,
12 importation, and sale of assault weapons, .50 BMG rifles, and unserial-
13 ized firearms by creating new civil law prohibitions and a civil
14 enforcement mechanism, independent of existing law. Nothing in this act
15 shall be construed to limit in any way the enforceability of existing
16 laws concerning firearms.
17 § 2. For purposes of this act, the following definitions shall apply:
18 (a) ".50 BMG rifle" means a center fire rifle that can fire a .50 BMG
19 cartridge and is not already an assault weapon or a machinegun. ".50 BMG
20 rifle" does not include any antique firearm, nor any curio or relic, as
21 defined in Section 478.11 of Title 27 of the Code of Federal Regu-
22 lations.
23 (b) (1) "Assault weapon" means the following designated semiautomatic
24 firearms:
25 (A) All of the following specified rifles:
26 (i) All AK series, including, but not limited to, the models identi-
27 fied as follows:
28 (I) Made in China AK, AKM, AKS, AK47, AK47S, 56, 56S, 84S, and 86S.
29 (II) Norinco 56, 56S, 84S, and 86S.
30 (III) Poly Technologies AKS and AK47.
31 (IV) MAADI AK47 and ARM.
32 (ii) UZI and Galil.
33 (iii) Beretta AR-70.
34 (iv) CETME Sporter.
35 (v) Colt AR-15 series.
36 (vi) Daewoo K-1, K-2, Max 1, Max 2, AR 100, and AR 110C.
37 (vii) Fabrique Nationale FAL, LAR, FNC, 308 Match, and Sporter.
38 (viii) MAS 223.
39 (ix) HK-91, HK-93, HK-94, and HK-PSG-1.
40 (x) The following MAC types:
41 (I) RPB Industries Inc. sM10 and sM11.
42 (II) SWD Incorporated M11.
43 (xi) SKS with detachable magazine.
44 (xii) SIG AMT, PE-57, SG 550, and SG 551.
45 (xiii) Springfield Armory BM59 and SAR-48.
46 (xiv) Sterling MK-6.
47 (xv) Steyer AUG.
48 (xvi) Valmet M62S, M71S, and M78S.
49 (xvii) Armalite AR-180.
50 (xviii) Bushmaster Assault Rifle.
51 (xix) Calico M-900.
52 (xx) J&R ENG M-68.
53 (xxi) Weaver Arms Nighthawk.
54 (B) All of the following specified pistols:
55 (i) UZI.
56 (ii) Encom MP-9 and MP-45.
A. 10545 3
1 (iii) The following MAC types:
2 (I) RPB Industries Inc. sM10 and sM11.
3 (II) SWD Incorporated M-11.
4 (III) Advance Armament Inc. M-11.
5 (IV) Military Armament Corp. Ingram M-11.
6 (V) Intratec TEC-9.
7 (VI) Sites Spectre.
8 (VII) Sterling MK-7.
9 (VIII) Calico M-950.
10 (IX) Bushmaster Pistol.
11 (C) All of the following specified shotguns:
12 (i) Franchi SPAS 12 and LAW 12.
13 (ii) Striker 12.
14 (iii) The Streetsweeper type S/S Inc. SS/12.
15 (D) Any firearm declared to be an assault weapon by the court.
16 (E) Any firearm included in the list promulgated by the Attorney
17 General pursuant to the Penal Law and any other models that are only
18 variations of those weapons with minor differences, regardless of the
19 manufacturer. The Legislature has defined assault weapons as the types,
20 series, and models listed in this paragraph because it was the most
21 effective way to identify and restrict a specific class of semiautomatic
22 weapons.
23 (F) As used in this paragraph, "series" includes all other models that
24 are only variations, with minor differences, of those models listed in
25 subparagraph (A) of this paragraph, regardless of the manufacturer.
26 (2) (A) Notwithstanding paragraph (1) of this section, "assault weap-
27 on" also means any of the following:
28 (i) A semiautomatic, centerfire rifle that does not have a fixed maga-
29 zine but has any one of the following:
30 (I) A pistol grip that protrudes conspicuously beneath the action of
31 the weapon.
32 (II) A thumbhole stock.
33 (III) A folding or telescoping stock.
34 (IV) A grenade launcher or flare launcher.
35 (V) A flash suppressor.
36 (VI) A forward pistol grip.
37 (ii) A semiautomatic, centerfire rifle that has a fixed magazine with
38 the capacity to accept more than 10 rounds.
39 (iii) A semiautomatic, centerfire rifle that has an overall length of
40 less than 30 inches.
41 (iv) A semiautomatic pistol that does not have a fixed magazine but
42 has any one of the following:
43 (I) A threaded barrel, capable of accepting a flash suppressor,
44 forward handgrip, or silencer.
45 (II) A second handgrip.
46 (III) A shroud that is attached to, or partially or completely encir-
47 cles, the barrel that allows the bearer to fire the weapon without burn-
48 ing the bearer's hand, except a slide that encloses the barrel.
49 (IV) The capacity to accept a detachable magazine at some location
50 outside of the pistol grip.
51 (v) A semiautomatic pistol with a fixed magazine that has the capacity
52 to accept more than 10 rounds.
53 (vi) A semiautomatic shotgun that has both of the following:
54 (I) A folding or telescoping stock.
55 (II) A pistol grip that protrudes conspicuously beneath the action of
56 the weapon, thumbhole stock, or vertical handgrip.
A. 10545 4
1 (vii) A semiautomatic shotgun that does not have a fixed magazine.
2 (viii) Any shotgun with a revolving cylinder.
3 (ix) A semiautomatic, centerfire firearm that is not a rifle, pistol,
4 or shotgun, that does not have a fixed magazine, but that has any one of
5 the following:
6 (I) A pistol grip that protrudes conspicuously beneath the action of
7 the weapon.
8 (II) A thumbhole stock.
9 (III) A folding or telescoping stock.
10 (IV) A grenade launcher or flare launcher.
11 (V) A flash suppressor.
12 (VI) A forward pistol grip.
13 (VII) A threaded barrel, capable of accepting a flash suppressor,
14 forward handgrip, or silencer.
15 (VIII) A second handgrip.
16 (IX) A shroud that is attached to, or partially or completely encir-
17 cles, the barrel that allows the bearer to fire the weapon without burn-
18 ing the bearer's hand, except a slide that encloses the barrel.
19 (X) The capacity to accept a detachable magazine at some location
20 outside of the pistol grip.
21 (x) A semiautomatic, centerfire firearm that is not a rifle, pistol,
22 or shotgun, that has a fixed magazine with the capacity to accept more
23 than 10 rounds.
24 (xi) A semiautomatic, centerfire firearm that is not a rifle, pistol,
25 or shotgun, that has an overall length of less than 30 inches.
26 (B) For purposes of this paragraph, "fixed magazine" means an ammuni-
27 tion feeding device contained in, or permanently attached to, a firearm
28 in such a manner that the device cannot be removed without disassembly
29 of the firearm action.
30 (C) The Legislature finds a significant public purpose in exempting
31 from the definition of "assault weapon" pistols that are designed
32 expressly for use in Olympic target shooting events. Therefore, those
33 pistols that are sanctioned by the International Olympic Committee and
34 by USA Shooting, the national governing body for international shooting
35 competition in the United States, and that were used for Olympic target
36 shooting purposes as of January 1, 2001, and that would otherwise fall
37 within the definition of "assault weapon" pursuant to this section are
38 exempt, as provided in subparagraph (D) of this paragraph.
39 (D) "Assault weapon" does not include either of the following:
40 (i) Any antique firearm.
41 (ii) Any of the following pistols, because they are consistent with
42 the significant public purpose expressed in subparagraph (C) of this
43 paragraph:
44 MANUFACTURER MODEL CALIBER
45 BENELLI MP90 .22LR
46 BENELLI MP90 .32 S&W LONG
47 BENELLI MP95 .22LR
48 BENELLI MP95 .32 S&W LONG
49 HAMMERLI 280 .22LR
50 HAMMERLI 280 .32 S&W LONG
51 HAMMERLI SP20 .22LR
52 HAMMERLI SP20 .32 S&W LONG
53 PARDINI GPO .22 SHORT
54 PARDINI GP-SCHUMANN .22 SHORT
A. 10545 5
1 PARDINI HP .32 S&W LONG
2 PARDINI MP .32 S&W LONG
3 PARDINI SP .22LR
4 PARDINI SPE .22LR
5 WALTHER GSP .22LR
6 WALTHER GSP .32 S&W LONG
7 WALTHER OSP .22 SHORT
8 WALTHER OSP-2000 .22 SHORT
9 (iii) The Division of Criminal Justice Services shall create a program
10 that is consistent with the purposes stated in subparagraph (C) of this
11 paragraph to exempt new models of competitive pistols that would other-
12 wise fall within the definition of "assault weapon" pursuant to this
13 section from being classified as an assault weapon. The exempt compet-
14 itive pistols may be based on recommendations by USA Shooting consistent
15 with the regulations contained in the USA Shooting Official Rules or may
16 be based on the recommendation or rules of any other organization that
17 the division deems relevant.
18 (c) "Firearm" means a device, designed to be used as a weapon, from
19 which is expelled through a barrel, a projectile by the force of an
20 explosion or other form of combustion.
21 (d) (1) "Firearm precursor part" means a component of a firearm that
22 is necessary to build or assemble a firearm and is described in either
23 of the following categories:
24 (A) An unfinished receiver, including both a single part receiver and
25 a multiple part receiver, such as a receiver in an AR-10- or AR-15-style
26 firearm. An unfinished receiver includes a receiver tube, a molded or
27 shaped polymer frame or receiver, a metallic casting, a metallic forg-
28 ing, and a receiver flat, such as a Kalashnikov-style weapons system,
29 Kalashnikov-style receiver channel, or a Browning-style receiver side
30 plate.
31 (B) An unfinished handgun frame.
32 (2) The Division of Criminal Justice Services, consistent with this
33 subdivision, shall provide written guidance and pictorial diagrams
34 demonstrating each category of firearm precursor part specified in para-
35 graph (1) of this subdivision.
36 (3) Firearm parts that can only be used on antique firearms, as
37 defined in section 265.00 of the Penal Law, are not firearm precursor
38 parts.
39 (4) A firearm precursor part is not a firearm or the frame or receiver
40 of a firearm.
41 (e) "Unserialized firearm" means a firearm that does not have a serial
42 number as required by law or has had its serial number altered or oblit-
43 erated.
44 § 3. (a) Notwithstanding any other law, no person within this state
45 may manufacture or cause to be manufactured, distribute, transport, or
46 import into the state, or cause to be distributed, transported, or
47 imported into the state, keep for sale, offer or expose for sale, or
48 give or lend, any assault weapon, .50 BMG rifle, or unserialized
49 firearm, except as provided in subdivisions (d) and (e) of section four
50 of this act.
51 (b) No person within this state may manufacture or cause to be manu-
52 factured, distribute, transport, or import into the state, or cause to
53 be distributed or transported or imported into the state, keep for sale,
54 offer or expose for sale, or give or lend, any firearm precursor part.
55 This subdivision shall not apply to a manufacturer or importer of
A. 10545 6
1 firearms licensed pursuant to Chapter 44 (commencing with Section 921)
2 of Part I of Title 18 of the United States Code, and the regulations
3 issued pursuant thereto, except that the manufacturer or importer shall
4 not perform any of the acts prohibited by this subdivision with respect
5 to a kit of firearm precursor parts containing all parts necessary to
6 construct a functioning firearm.
7 (c) The prohibitions described in subdivisions (a) and (b) of this
8 section apply whether or not the assault weapon, .50 BMG rifle, unseri-
9 alized firearm, or firearm precursor part is misused or is intended to
10 be misused in a criminal or unlawful manner.
11 (d) Subdivisions (a) and (b) of this section do not apply to the sale
12 of an assault weapon, .50 BMG rifle, unserialized firearm, or firearm
13 precursor part to, or the purchase, transport, importation, sale or
14 other transfer, or manufacture of, an assault weapon, a .50 BMG rifle,
15 unserialized firearm, or firearm precursor part by, any law enforcement
16 agency, public entity that employs peace officers, or any authorized law
17 enforcement representative thereof, if that person or entity is not
18 prohibited by law from possessing an assault weapon, .50 BMG rifle,
19 unserialized firearm, or firearm precursor part, including, without
20 limitation, the Division of Criminal Justice Services, a police depart-
21 ment or sheriffs' or marshals' office, the Department of Corrections and
22 Community Supervision, the Division of State Police, the Attorney Gener-
23 al, a district attorneys' office, the Department of Environmental
24 Conservation, the Office of Parks, Recreation and Historic Preservation,
25 the Cannabis Control Board, the military or naval forces of this state
26 or of the United States, a law enforcement or military agency of another
27 state, any federal law enforcement agency, or any foreign government or
28 agency approved by the United States Department of State, for use in the
29 discharge of the official duties of such entities.
30 (e) Subdivisions (a) and (b) of this section do not apply to a person
31 who is the executor or administrator of an estate that includes an
32 assault weapon or a .50 BMG rifle registered in this state, or that was
33 legally possessed within this state, or a firearm assigned a serial
34 number that is disposed of as authorized by the probate court, if the
35 disposition is otherwise permitted under the laws of New York State.
36 § 4. (a) Notwithstanding the provisions of section three of this act,
37 any licensed firearms dealer may take possession of any assault weapon
38 or .50 BMG rifle from any person to whom it is legally registered or who
39 has been issued a permit to possess it pursuant to New York State law,
40 or of any firearm precursor part, for the purposes of servicing or
41 repair.
42 (b) Notwithstanding the provisions of section three of this act, any
43 licensed firearms dealer may transfer possession of any assault weapon,
44 .50 BMG rifle, or firearm precursor part received pursuant to subdivi-
45 sion (a) of this section, to a gunsmith for purposes of repairing or
46 servicing that weapon. A transfer is permissible only to the following
47 persons:
48 (1) A gunsmith employed the dealer.
49 (2) A gunsmith with whom the dealer has contracted for gunsmithing
50 services.
51 (c) Paragraph (2) of subdivision (b) of this section applies only if
52 the gunsmith receiving the assault weapon, .50 BMG rifle, or firearm
53 precursor part meets both of the following qualifications:
54 (1) The gunsmith holds a dealer license issued pursuant to Chapter 44
55 (commencing with Section 921) of Title 18 of the United States Code and
56 the regulations issued pursuant thereto.
A. 10545 7
1 (2) The gunsmith holds any business license required by a state or
2 local governmental entity.
3 (d) In addition to the uses permitted under New York State law, any
4 licensed gun dealer who lawfully possesses an assault weapon, .50 BMG
5 rifle, or firearm precursor part pursuant to those provisions may do
6 either of the following:
7 (1) Transport the firearm or firearm precursor part between dealers or
8 out of the state if that person is permitted pursuant to the National
9 Firearms Act. Any transporting allowed by this section or section three
10 of this act shall be in compliance with the Penal Law.
11 (2) Sell the firearm or firearm precursor part to a resident outside
12 the state.
13 (e) Notwithstanding the provisions of section three of this act, any
14 individual may, provided that the assault weapon or .50 BMG rifle, unse-
15 rialized firearm, or firearm precursor part is transported in compliance
16 with the Penal Law, do any of the following:
17 (1) Arrange in advance to relinquish an assault weapon, .50 BMG rifle,
18 unserialized firearm, or firearm precursor part to a police or sheriff's
19 department.
20 (2) Sell, deliver, or transfer an assault weapon, .50 BMG rifle, unse-
21 rialized firearm, or firearm precursor part to an authorized represen-
22 tative of a city, city and county, county, or state government, or of
23 the federal government, provided that the entity is acquiring the weapon
24 as part of an authorized, voluntary program in which the entity is
25 buying or receiving weapons from private individuals.
26 (3) Transfer, relinquish, or dispose of a firearm or precursor part in
27 compliance with the requirements of the Penal Law.
28 § 5. (a) Notwithstanding any other law, the requirements of this act
29 shall be enforced exclusively through the private civil actions
30 described in section six of this act. No enforcement of this act may be
31 taken or threatened by this state, a political subdivision, a district
32 or county or city attorney, or an executive or administrative officer or
33 employee of this state or a political subdivision against any person,
34 except as provided in section six of this act.
35 (b) The fact that conduct violates this act shall not be an independ-
36 ent basis for enforcement of any other law of this state, or the denial,
37 revocation, suspension, or withholding of any right or privilege
38 conferred by the law of this state or a political subdivision, or a
39 threat to do the same, by this state, a political subdivision, a
40 district or county or city attorney, or an executive or administrative
41 officer or employee of this state or a political subdivision, or a
42 board, commission, or similar body assigned authority to do so under
43 law, against any person, except as provided in section six of this act.
44 Nor shall any civil action predicated upon a violation of this act be
45 brought by this state, a political subdivision, a district or county or
46 city attorney, or an executive or administrative officer or employee of
47 this state or a political subdivision. For avoidance of doubt, the
48 rights and privileges described by this subdivision include, but are not
49 limited to, any business licenses and permits issued pursuant to New
50 York State law or any firearms, ammunition, or precursor parts dealer or
51 vendor licenses issued pursuant to the Penal Law. This subdivision shall
52 not be construed to prevent or limit enforcement of any other law regu-
53 lating conduct that also violates this act.
54 (c) Subdivisions (a) and (b) of this section shall not be construed to
55 do any of the following:
56 (1) Legalize the conduct prohibited by the Penal Law.
A. 10545 8
1 (2) Waive any requirements prescribed by the Penal Law.
2 (3) Limit or affect the availability of a remedy established by
3 section six of this act.
4 (4) Limit the enforceability of any other laws that regulate or
5 prohibit any conduct relating to assault weapons, .50 BMG rifles, or
6 firearm precursor parts.
7 § 6. (a) Any person, other than an officer or employee of a state or
8 local governmental entity in this state, may bring a civil action
9 against any person who does any of the following:
10 (1) Knowingly violates section three of this act.
11 (2) Knowingly engages in conduct that aids or abets a violation of
12 section three of this act, regardless of whether the person knew or
13 should have known that the person aided or abetted would be violating
14 section three of this act.
15 (3) Knowingly commits an act with the intent to engage in the conduct
16 described by paragraph (1) or (2) of this subdivision.
17 (b) If a claimant prevails in an action brought under this section,
18 the court shall award all of the following:
19 (1) Injunctive relief sufficient to prevent the defendant from violat-
20 ing this act or engaging in acts that aid or abet violations of this
21 act.
22 (2) (A) (i) Statutory damages in an amount of not less than ten thou-
23 sand dollars ($10,000) for each weapon or firearm precursor part as to
24 which the defendant violated section three of this act, and for each
25 weapon or firearm precursor part as to which the defendant aided or
26 abetted a violation of section three of this act.
27 (ii) This subparagraph shall remain in effect unless found by a court
28 to be invalid or unconstitutional, in which case this subparagraph is
29 repealed and subparagraph (B) of this paragraph shall become opera-
30 tional.
31 (B) (i) Statutory damages in an appropriate amount to be determined by
32 the court for each violation of this act. In making that determination,
33 the court shall consider factors that include, but are not limited to,
34 the number of firearms or precursor parts involved in the defendant's
35 violation of this act, the duration of the prohibited conduct, whether
36 the defendant has previously violated this act or any other federal,
37 state, or local law concerning the regulation of firearms, and any other
38 factors tending to increase the risk to the public, such as proximity of
39 the violations to sensitive places.
40 (ii) This subparagraph shall become effective only if a court finds
41 subparagraph (A) of this paragraph to be invalid or unconstitutional.
42 (3) Attorney's fees and costs.
43 (c) Notwithstanding subdivision (b) of this section, a court shall not
44 award relief under this section in response to a violation of subdivi-
45 sion (a) of this section if the defendant demonstrates that the defend-
46 ant previously paid the full amount of any monetary award under subdivi-
47 sion (b) of this section in a previous action for each firearm or
48 firearm precursor part as to which the defendant violated, or aided or
49 abetted a violation of, section three of this act.
50 (d) Notwithstanding any other law, a cause of action under this
51 section shall be extinguished unless the action is brought not later
52 than four years after the cause of action accrues.
53 (e) An act or omission in violation of section three of this act shall
54 be deemed an injury in fact to all residents of, and visitors to, this
55 state, and any such person shall have standing to bring a civil action
56 pursuant to this section.
A. 10545 9
1 (f) Notwithstanding any other law, none of the following is a defense
2 to an action brought under this section:
3 (1) A defendant's ignorance or mistake of law.
4 (2) A defendant's belief that the requirements of this act are uncon-
5 stitutional or were unconstitutional.
6 (3) A defendant's reliance on any court decision that has been over-
7 ruled on appeal or by a subsequent court, even if that court decision
8 had not been overruled when the defendant engaged in conduct that
9 violates this act.
10 (4) A defendant's reliance on any state or federal court decision that
11 is not binding on the court in which the action has been brought.
12 (5) Non-mutual issue preclusion or non-mutual claim preclusion.
13 (6) Any claim that the enforcement of this act or the imposition of
14 civil liability against the defendant will violate a constitutional
15 right of a third party.
16 (7) A defendant's assertion that this act proscribes conduct that is
17 separately prohibited by the Penal Law or any other law of this state,
18 or that this act proscribes conduct beyond that which is already prohib-
19 ited by the Penal Law or any other law of this state.
20 (8) Any claim that the assault weapon, .50 BMG rifle, or firearm
21 precursor part at issue was not misused, or was not intended to be
22 misused, in a criminal or unlawful manner.
23 (g) (1) Both of the following are affirmative defenses to an action
24 brought under this section:
25 (A) A person sued under paragraph (2) of subdivision (a) of this
26 section reasonably believed, after conducting a reasonable investi-
27 gation, that the person aided or abetted was complying with this act.
28 (B) A person sued under paragraph (3) of subdivision (a) of this
29 section reasonably believed, after conducting a reasonable investi-
30 gation, that the person was complying with this act or was aiding or
31 abetting another who was complying with this act.
32 (2) The defendant has the burden of proving an affirmative defense
33 under this subdivision by a preponderance of the evidence.
34 (h) This section shall not be construed to impose liability on any
35 speech or conduct protected by the First Amendment to the United States
36 Constitution, as made applicable to the states through the Fourteenth
37 Amendment to the United States Constitution, or by the New York State
38 Constitution.
39 (i) Notwithstanding any other law, this state, a state official, or a
40 district, county, or city attorney shall not intervene in an action
41 brought under this section. However, this subdivision does not prohibit
42 a person described by this subdivision from filing an amicus curiae
43 brief in the action.
44 (j) Notwithstanding any other law, a court shall not award attorney's
45 fees or costs to a defendant in an action brought under this section.
46 (k) An action pursuant to this section shall not be brought against a
47 federal government, state, political subdivision, or an employee of a
48 federal government, state, or political subdivision on the basis of acts
49 or omissions in the course of discharge of official duties.
50 § 7. (a) A defendant against whom an action is brought under section
51 six of this act does not have standing to assert the right of another
52 individual to keep and bear arms under the Second Amendment to the
53 United States Constitution as a defense to liability under that section
54 unless either of the following is true:
55 (1) The United States Supreme Court holds that the courts of this
56 state must confer standing on that defendant to assert the third-party
A. 10545 10
1 rights of other individuals in state court as a matter of federal
2 constitutional law.
3 (2) The defendant has standing to assert the rights of other individ-
4 uals under the tests for third-party standing established by the United
5 States Supreme Court.
6 (b) A defendant in an action brought under section six of this act may
7 assert an affirmative defense to liability under this section if both of
8 the following are true:
9 (1) The defendant has standing to assert the third-party right of an
10 individual to keep and bear arms in accordance with subdivision (a) of
11 this section.
12 (2) The defendant demonstrates that the relief sought by the claimant
13 will violate a third-party's rights under the Second Amendment to the
14 United States Constitution right as defined by clearly established case
15 law of the United States Supreme Court.
16 (c) Nothing in this section shall in any way limit or preclude a
17 defendant from asserting the defendant's personal constitutional rights
18 as a defense to liability under section six of this act, and a court
19 shall not award relief under section six of this act if the conduct for
20 which the defendant has been sued was an exercise of a state or federal
21 constitutional right that personally belongs to the defendant.
22 § 8. This act shall not be construed to do any of the following:
23 (a) Authorize the initiation of a cause of action under this act
24 against a person purchasing, obtaining, or attempting to purchase or
25 obtain an assault weapon, .50 BMG rifle, unserialized firearm, or
26 firearm precursor part from a person acting in violation of this act.
27 (b) Wholly or partly repeal, either expressly or by implication, any
28 other statute that regulates or prohibits any conduct relating to
29 assault weapons, .50 BMG rifles, unserialized firearms, or firearm
30 precursor parts, including the Penal Law.
31 (c) Restrict a political subdivision from regulating or prohibiting
32 conduct relating to assault weapons, .50 BMG rifles, unserialized
33 firearms, or firearm precursor parts in a manner that is at least as
34 stringent as the laws of this state.
35 § 9. (a) Notwithstanding any other law, a civil action brought under
36 section six of this act shall be brought in any of the following:
37 (1) The county in which all or a substantial part of the events or
38 omissions giving rise to the claim occurred.
39 (2) The county of residence for any one of the natural person defend-
40 ants at the time the cause of action occurred.
41 (3) The county of the principal office in this state of any one of the
42 defendants that is not a natural person.
43 (4) The county of residence for the claimant if the claimant is a
44 natural person residing in this state.
45 (b) Notwithstanding any other law, if a civil action is brought under
46 section six of this act in one of the venues described by subdivision
47 (a) of this section, the action shall not be transferred to a different
48 venue without the written consent of all parties.
49 § 10. (a) Notwithstanding any other law, this state has sovereign
50 immunity, a political subdivision has governmental immunity, and each
51 officer and employee of this state or a political subdivision has offi-
52 cial immunity in any action, claim, or counterclaim or any type of legal
53 or equitable action that challenges the validity of any provision or
54 application of this act, on constitutional grounds or otherwise.
A. 10545 11
1 (b) A provision of state law shall not be construed to waive or abro-
2 gate an immunity described by subdivision (a) of this section unless it
3 expressly waives immunity under this section.
4 § 11. (a) It is the intent of the Legislature that every provision,
5 section, subdivision, sentence, clause, phrase, and word in this act,
6 and every application of the provisions in this act, are severable from
7 each other.
8 (b) If any application of any provision in this act to any person,
9 group of persons, or circumstances is found by a court to be invalid or
10 unconstitutional, the remaining applications of that provision to all
11 other persons and circumstances shall be severed and shall not be
12 affected. All constitutionally valid applications of this act shall be
13 severed from any applications that a court finds to be invalid, leaving
14 the valid applications in force, because it is the Legislature's intent
15 and priority that the valid applications be allowed to stand alone. Even
16 if a reviewing court finds a provision of this act to impose an uncon-
17 stitutional burden in a large or substantial fraction of relevant cases,
18 the applications that do not present an unconstitutional burden shall be
19 severed from the remaining applications and shall remain in force, and
20 shall be treated as if the Legislature had enacted a statute limited to
21 the persons, group of persons, or circumstances for which the statute's
22 application does not present an unconstitutional burden. If any court
23 declares or finds a provision of this act facially unconstitutional,
24 when discrete applications of that provision can be enforced against a
25 person, group of persons, or circumstances without violating the United
26 States Constitution and the New York State Constitution, those applica-
27 tions shall be severed from all remaining applications of the provision,
28 and the provision shall be interpreted as if the Legislature had enacted
29 a provision limited to the persons, group of persons, or circumstances
30 for which the provision's application will not violate the United States
31 Constitution and the New York State Constitution.
32 (c) The Legislature further declares that it would have enacted this
33 act, and each provision, section, subdivision, sentence, clause, phrase,
34 and word, and all constitutional applications of this act, irrespective
35 of the fact that any provision, section, subdivision, sentence, clause,
36 phrase, or word, or application of this act, were to be declared uncon-
37 stitutional or to represent an unconstitutional burden.
38 (d) If any provision of this act is found by any court to be unconsti-
39 tutionally vague, then the applications of that provision that do not
40 present constitutional vagueness problems shall be severed and remain in
41 force.
42 (e) A court shall not decline to enforce the severability requirements
43 of this section on the ground that severance would rewrite the statute
44 or involve the court in legislative or lawmaking activity. A court that
45 declines to enforce or enjoins a state official from enforcing a statu-
46 tory provision of this act does not rewrite a statute, as the statute
47 continues to contain the same words as before the court's decision. Each
48 of the following is true about a judicial injunction or declaration of
49 unconstitutionality of a provision of this act:
50 (1) It is nothing more than an edict prohibiting enforcement that may
51 subsequently be vacated by a later court if that court has a different
52 understanding of the requirements of the New York State Constitution or
53 the United States Constitution.
54 (2) It is not a formal amendment of the language in a statute.
A. 10545 12
1 (3) It no more rewrites a statute than a decision by the executive not
2 to enforce a duly-enacted statute in a limited and defined set of
3 circumstances.
4 § 12. This act shall become inoperative upon invalidation of Subchap-
5 ter H (commencing with Section 171.201) of Chapter 171 of the Texas
6 Health and Safety Code in its entirety by a final decision of the United
7 States Supreme Court or Texas Supreme Court, and is repealed on January
8 1 of the following year.
9 § 13. The civil practice law and rules is amended by adding a new
10 section 1503 to read as follows:
11 § 1503. Firearm restriction challenge liability. (a) Notwithstanding
12 any other law, any person, including an entity, attorney, or law firm,
13 who seeks declaratory or injunctive relief to prevent this state, a
14 political subdivision, a governmental entity or public official in this
15 state, or a person in this state from enforcing any statute, ordinance,
16 rule, regulation, or any other type of law that regulates or restricts
17 firearms, in any state or federal court, or that represents any litigant
18 seeking that relief in any state or federal court, is jointly and
19 severally liable to pay the attorney's fees and costs of the prevailing
20 party.
21 (b) For purposes of this section, a party is considered a prevailing
22 party if a state or federal court does either of the following:
23 (1) dismisses any claim or cause of action brought by the party seek-
24 ing the declaratory or injunctive relief described by subdivision (a) of
25 this section, regardless of the reason for the dismissal; or
26 (2) enters judgment in the party's favor on any claim or cause of
27 action.
28 (c) Regardless of whether a prevailing party sought to recover attor-
29 ney's fees or costs in the underlying action, a prevailing party under
30 this section may bring a civil action to recover attorney's fees and
31 costs against a person, including an entity, attorney, or law firm, that
32 sought declaratory or injunctive relief described by subdivision (a) of
33 this section not later than the third anniversary of the date on which,
34 as applicable:
35 (1) the dismissal or judgment described by subdivision (b) of this
36 section becomes final upon the conclusion of appellate review; or
37 (2) the time for seeking appellate review expires.
38 (d) None of the following are a defense to an action brought under
39 subdivision (c) of this section:
40 (1) a prevailing party under this section failed to seek recovery of
41 attorney's fees or costs in the underlying action;
42 (2) the court in the underlying action declined to recognize or
43 enforce the requirements of this section; and/or
44 (3) the court in the underlying action held that any provision of this
45 section is invalid, unconstitutional, or preempted by federal law,
46 notwithstanding the doctrines of issue or claim preclusion.
47 (e) Any person, including an entity, attorney, or law firm, who seeks
48 declaratory or injunctive relief as described in subdivision (a) of this
49 section, shall not be deemed a prevailing party under this section or
50 any other provision of this chapter.
51 § 14. (a) A statute that regulates or prohibits firearms shall not be
52 construed to repeal any other statute that regulates or prohibits
53 firearms, either wholly or partly, unless the later-enacted statute
54 explicitly states that it is repealing the other statute.
55 (b) A statute shall not be construed to restrict a political subdivi-
56 sion from regulating or prohibiting firearms in a manner that is at
A. 10545 13
1 least as stringent as the laws of this state, unless the statute explic-
2 itly states that political subdivisions are prohibited from regulating
3 or prohibiting firearms in the manner described by the statute.
4 (c) Every statute that regulates or prohibits firearms is severable in
5 each of its applications to every person and circumstance. If any stat-
6 ute that regulates or prohibits firearms is found by any court to be
7 unconstitutional, either on its face or as applied, then all applica-
8 tions of that statute that do not violate the United States Constitution
9 and New York State Constitution shall be severed from the unconstitu-
10 tional applications and shall remain enforceable, notwithstanding any
11 other law, and the statute shall be interpreted as if containing
12 language limiting the statute's application to the persons, group of
13 persons, or circumstances for which the statute's application will not
14 violate the United States Constitution and New York State Constitution.
15 § 15. This act shall take effect immediately.
