S T A T E O F N E W Y O R K
________________________________________________________________________
2132
2019-2020 Regular Sessions
I N A S S E M B L Y
January 22, 2019
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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:
Section 1. Short title. This act shall be known and may be cited as
the "civil rights restoration act".
§ 2. The civil rights law is amended by adding a new section 79-o to
read as follows:
§ 79-O. CIVIL RIGHTS RESTORATION. 1. IN ANY PROCEEDING THAT MAY IMPACT
AN INDIVIDUAL'S RIGHTS UNDER THE SECOND AMENDMENT OF THE UNITED STATES
CONSTITUTION, OR ANY SIMILAR STATE RIGHT, INCLUDING SUCH PROCEEDINGS
THAT COULD RESULT IN THE LOSS OF A LICENSE TO CARRY OR POSSESS A
FIREARM:
(A) NO COURT ORDER SHALL BE ISSUED NOR PROCEEDING BE COMMENCED UNLESS
ALL PLEADINGS OR OTHER ACCUSATORY INSTRUMENTS HAVE BEEN FILED AND SERVED
IN CONFORMITY WITH ARTICLE THIRTY OF THE CIVIL PRACTICE LAW AND RULES,
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
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BEEN "INVOLUNTARILY COMMITTED TO A MENTAL INSTITUTION," SUCH PLEADING
SHALL INCLUDE AN ALLEGATION AS TO THE SAID COURT ORDER DATE AND JURIS-
DICTION;
(B) THE BURDEN OF PROOF IN SUCH PROCEEDING SHALL BE NO LESS THAN CLEAR
AND CONVINCING EVIDENCE;
(C) INDIVIDUALS MAY EXAMINE THE ENTIRE CONTENTS OF HIS OR HER FIREARM
LICENSE RECORDS CONSTRUCTED BY STATE AND LOCAL LICENSING AND LAW
ENFORCEMENT AUTHORITIES;
(D) THERE SHALL BE A RIGHT TO COUNSEL, INCLUDING THE RIGHT TO ASSIGNED
COUNSEL, IF COUNSEL CANNOT BE AFFORDED; AND
(E) ANY FIREARMS CONFISCATED AND/OR SURRENDERED INTO LAW ENFORCEMENT
EVIDENCE STATUS DURING SUCH PROCEEDING SHALL NOT BE DESTROYED, UNLESS
SPECIFICALLY DIRECTED THROUGH A WRITTEN ORDER BY A COURT OF COMPETENT
JURISDICTION AT THE CONCLUSION OF ALL DISQUALIFICATION PROCEEDINGS
RELATING TO THE INDIVIDUAL, INCLUDING ANY APPEALS UNDERTAKEN.
2. (A) THERE SHALL BE CONTEMPORANEOUS WRITTEN NOTIFICATION TO ALL
INDIVIDUALS BEING REPORTED TO ANY LAW ENFORCEMENT DATABASE THAT COULD
RESULT IN THE DEPRIVATION OF RIGHTS TO OWN, POSSESS, OR USE A FIREARM
AND/OR THE DEPRIVATION OF A LAWFULLY OWNED FIREARM, INCLUDING, BUT NOT
LIMITED TO, REPORTS UNDER FORMER SECTION 9.46 OF THE MENTAL HYGIENE LAW
AND UNDER 18 USC § 922(G).
(B) THERE SHALL BE WRITTEN NOTIFICATION TRANSMITTED WITHIN NINETY DAYS
OF THE EFFECTIVE DATE OF THIS SECTION TO ALL INDIVIDUALS PREVIOUSLY
REPORTED INTO ANY LAW ENFORCEMENT DATABASE THAT COULD RESULT IN THE
DEPRIVATION OF RIGHTS TO OWN, POSSESS, OR USE A FIREARM AND/OR THE
DEPRIVATION OF A LAWFULLY OWNED FIREARM, INCLUDING, BUT NOT LIMITED TO,
THE DATABASES MAINTAINED BY THE OFFICE OF MENTAL HEALTH, THE DIVISION OF
CRIMINAL JUSTICE SERVICES, AND THE DIVISION OF STATE POLICE IN CONJUNC-
TION WITH REPORTS MADE UNDER THE FORMER SECTION 9.46 OF THE MENTAL
HYGIENE LAW AND/OR UNDER 18 USC § 922(G)(4), AND THAT SUCH WRITTEN
NOTIFICATION SHALL INCLUDE NOTICE THAT THE INDIVIDUAL MAY HAVE A RIGHT
TO COMMENCE A PROCEEDING IN EITHER THE NEW YORK STATE SUPREME COURT OR
COUNTY COURT UNDER ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAWS AND
RULES IF HE OR SHE BELIEVES THAT THE INFORMATION CONTAINED WITHIN THE
NOTIFICATION IS IN ERROR.
(C) ANY INDIVIDUAL, BUSINESS, OR GOVERNMENTAL OFFICIAL WHO, KNOWING
THE INFORMATION REPORTED, CONVEYED OR CIRCULATED TO BE FALSE, REPORTS
THAT A PERSON HAS BEEN INVOLUNTARILY COMMITTED, SHALL BE SUBJECT TO A
CIVIL FINE OF NOT MORE THAN TEN THOUSAND DOLLARS PER OFFENSE.
(D) IN ANY PROCEEDING WHERE AN INDIVIDUAL ESTABLISHES THAT A REPORT
THAT HE OR SHE WAS INVOLUNTARILY COMMITTED WAS FALSE, REASONABLE ATTOR-
NEY'S FEES AND COSTS SHALL BE REIMBURSED BY THE STATE.
(E) THE STATE SHALL CORRECT ANY FALSE OR INCORRECT REPORT AGAINST AN
INDIVIDUAL TO STATE AND FEDERAL DATABASES, INCLUDING THOSE UNDER 18 USC
§922(G), WITHIN SEVEN DAYS OF ENTRY AND SERVICE UPON THE STATE OF A
FINAL ORDER OF DISPOSITION IN A CASE. THE FAILURE OF THE STATE TO TIMELY
DO SO SHALL BE PUNISHABLE AS A CONTEMPT OF COURT.
(F) NOTWITHSTANDING ANY LAW, RULE OR REGULATION TO THE CONTRARY, AN
INDIVIDUAL'S MEDICAL AND/OR CLINICAL RECORDS SHALL NOT BE USED FOR
ROUTINE LAW ENFORCEMENT REPORTING PURPOSES RELATIVE TO FIREARMS OWNER-
SHIP, USE, POSSESSION, OR SUITABILITY.
§ 3. Section 400.02 of the penal law, as added by chapter 1 of the
laws of 2013, is amended to read as follows:
§ 400.02 Statewide license and record database.
There shall be a statewide license and record database which shall be
created and maintained by the division of state police the cost of which
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shall not be borne by any municipality. Records assembled or collected
for purposes of inclusion in such database shall not be subject to
disclosure pursuant to article six of the public officers law, EXCEPTING
ANY NON-IDENTIFYING RECORDS SUCH AS EXISTING STATISTICAL TABULATIONS OR
THOSE CAPABLE OF BEING PERFORMED OR SUCH RECORD RESPONSES AS CAN BE
REASONABLY SATISFIED THROUGH REDACTED RESPONSE. Records containing
granted license applications shall be periodically checked by the divi-
sion of criminal justice services against criminal [conviction, mental
health, and all other records] CONVICTIONS as [are] IS necessary to
determine their continued accuracy as well as whether an individual is
no longer a valid license holder. The division of criminal justice
services shall also check pending applications made pursuant to this
article against such records to determine whether a license may be
granted. All state agencies shall cooperate with the division of crimi-
nal justice services, as otherwise authorized by law, in making their
records available for such checks. The division of criminal justice
services, upon determining that an individual is ineligible to possess a
license, or is no longer a valid license holder, shall notify the appli-
cable licensing official of such determination and such licensing offi-
cial shall not issue a license or revoke such license and any weapons
owned or possessed by such individual shall be removed consistent with
the provisions of subdivision eleven of section 400.00 of this article.
Local and state law enforcement shall have access to such database, as
otherwise authorized by law, in the performance of their duties. Records
assembled or collected for purposes of inclusion in the database estab-
lished by this section shall be released pursuant to a court order.
§ 4. Paragraph (b) of subdivision 11 of section 400.00 of the penal
law is REPEALED.
§ 5. Section 400.05 of the penal law is amended by adding a new subdi-
vision 7 to read as follows:
7. WHENEVER ANY MACHINE-GUN OR FIREARM IS DESTROYED PURSUANT TO SUBDI-
VISION TWO OF THIS SECTION, ALL STATE AND LOCAL LAW ENFORCEMENT AGENCIES
SHALL PUBLISH ON THEIR WEBSITE, ON AN ANNUAL BASIS, AN INVENTORY OF
EVERY MACHINE-GUN OR FIREARM THAT IS DESTROYED, INCLUDING THE CALIBER,
MAKE, MODEL, MANUFACTURER'S NAME, SERIAL NUMBER, OR IF NONE, ANY OTHER
DISTINGUISHING NUMBER OR IDENTIFICATION MARK OF THE MACHINE-GUN OR
FIREARM, AND IF APPLICABLE, THE JURISDICTION AND DATE OF THE COURT ORDER
DIRECTING THE SURRENDER AND/OR DESTRUCTION OF SUCH MACHINE-GUN OR
FIREARM.
§ 6. Paragraph (c) of subdivisions 11 and 16-a and paragraph (b) of
subdivision 10 of section 400.00 of the penal law are REPEALED.
§ 7. Subdivision 1 of section 898 of the general business law, as
added by chapter 1 of the laws of 2013, is amended to read as follows:
1. In addition to any other requirements pursuant to state and feder-
al law, all sales, exchanges or disposals of firearms, rifles or shot-
guns shall be conducted in accordance with this section unless such
sale, exchange or disposal is conducted by a licensed importer, licensed
manufacturer or licensed dealer, as those terms are defined in 18 USC §
922, when such sale, exchange or disposal is conducted pursuant to that
person's federal firearms license or such sale, exchange or disposal is
between members of an immediate family. For purposes of this section,
"immediate family" shall mean spouses, domestic partners, PARENTS,
BROTHERS, SISTERS, children and step-children.
§ 8. Subdivision 17 of section 400.00 of the penal law is renumbered
subdivision 18 and a new subdivision 17 is added to read as follows:
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17. APPLICANTS WHO HAVE A GENUINE AND SINCERE RELIGIOUS BELIEF, WHO
HAVE PROVIDED FINGERPRINTS PURSUANT TO THIS SECTION, SHALL NOT BE
REQUIRED TO PROVIDE PHOTOGRAPHS OF THEMSELVES IN ORDER TO OBTAIN A
LICENSE AS REQUIRED BY THIS SECTION.
§ 9. Section 400.03 of the penal law is REPEALED.
§ 10. Subdivision 16-a of section 400.00 of the penal law is amended
by adding a new paragraph (c) to read as follows:
(C) THE DIVISION OF STATE POLICE SHALL NOT REQUIRE THE REGISTRATION OF
A SELLER OF AMMUNITION, AS DEFINED IN SUBDIVISION TWENTY-FOUR OF SECTION
265.00 OF THIS CHAPTER, IN ORDER FOR SUCH SELLER OF AMMUNITION TO OPER-
ATE HIS OR HER BUSINESS.
§ 11. Section 9.46 of the mental hygiene law is REPEALED.
§ 12. Subdivision 19 of section 837 of the executive law is REPEALED.
§ 13. Paragraph 12 of subdivision (c) of section 33.13 of the mental
hygiene law, as amended by chapter 1 of the laws of 2013, is amended to
read as follows:
12. to a director of community services as defined in article nine of
this chapter or his or her designee, provided that such director or his
or her designee [(i)] requests such information in the exercise of his
or her statutory functions, powers and duties pursuant to section 9.37,
9.45, 9.47, 9.48, 9.60 or 41.13 of this chapter[; or (ii) the disclosure
of information is required pursuant to section 9.46 of this chapter].
§ 14. One year after the completion of transmission of notification of
all individuals pursuant to paragraph (b) of subdivision two of section
79-o of the civil rights law, as added by section two of this act, all
offices and agencies in use or possession of reports required under the
former section 9.46 of the mental hygiene law shall purge all such
information.
§ 15. Severability. If any provision of this act, or the application
thereof to any person or circumstance, shall be adjudged by any court of
competent jurisdiction to be invalid or unconstitutional, such judgment
shall not affect, impair or invalidate the remainder thereof, but shall
be confined in its operation to the provision of this act, or in its
application to the person or circumstance, directly involved in the
controversy in which such judgment shall have been rendered.
§ 16. This act shall take effect immediately.