NY State Senate Bill 2019-S2438

Senate Bill S2438

Signed By Governor

2019-2020 Legislative Session

Relates to access to foreign state records concerning previous or present mental illness of applicants for firearms license

download bill text pdf

Archive: Last Bill Status Via A1213 - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Sep 03, 2019	signed chap.242 delivered to governor
Jan 29, 2019	returned to assembly passed senate 3rd reading cal.90 substituted for s2438
Jan 29, 2019	substituted by a1213
Jan 28, 2019	ordered to third reading cal.90 reported and committed to rules
Jan 24, 2019	referred to codes

Votes

- Jan 29, 2019 - Floor Vote
  A1213
  
  62
  
  Aye
  
  1
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jan 29, 2019
      
      aye (62)
      
      Addabbo Jr.
      
      Akshar
      
      Antonacci
      
      Bailey
      
      Benjamin
      
      Biaggi
      
      Boyle
      
      Breslin
      
      Brooks
      
      Carlucci
      
      Comrie
      
      Felder
      
      Flanagan
      
      Funke
      
      Gallivan
      
      Gaughran
      
      Gianaris
      
      Gounardes
      
      Griffo
      
      Harckham
      
      Helming
      
      Hoylman-Sigal
      
      Jackson
      
      Jacobs
      
      Jordan
      
      Kaminsky
      
      Kaplan
      
      Kavanagh
      
      Kennedy
      
      Krueger
      
      LaValle
      
      Lanza
      
      Little
      
      Liu
      
      Martinez
      
      May
      
      Mayer
      
      Metzger
      
      Montgomery
      
      Myrie
      
      O'Mara
      
      Ortt
      
      Parker
      
      Persaud
      
      Ramos
      
      Ranzenhofer
      
      Ritchie
      
      Rivera
      
      Robach
      
      Salazar
      
      Sanders Jr.
      
      Savino
      
      Sepúlveda
      
      Serino
      
      Serrano
      
      Seward
      
      Skoufis
      
      Stavisky
      
      Stewart-Cousins
      
      Tedisco
      
      Thomas
      
      Young
      
      nay (1)
      
      Amedore
  Jan 28, 2019 - Rules Committee Vote
  S2438
  
  15
  
  Aye
  
  1
  
  Nay
  
  3
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Rules Committee Vote: Jan 28, 2019
      
      aye (15)
      
      Benjamin
      
      Breslin
      
      Comrie
      
      Flanagan
      
      Gianaris
      
      Hoylman-Sigal
      
      Kennedy
      
      Krueger
      
      Lanza
      
      Liu
      
      Martinez
      
      Parker
      
      Robach
      
      Savino
      
      Stewart-Cousins
      
      nay (1)
      
      Seward
      
      aye wr (3)
      
      Griffo
      
      LaValle
      
      Little
  Jan 29, 2019 - Codes Committee Vote
  S2438
  
  9
  
  Aye
  
  0
  
  Nay
  
  4
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Codes Committee Vote: Jan 29, 2019
      
      aye (9)
      
      Akshar
      
      Bailey
      
      Benjamin
      
      Biaggi
      
      Gounardes
      
      Kaminsky
      
      Kaplan
      
      Kavanagh
      
      Myrie
      
      aye wr (4)
      
      Boyle
      
      Gallivan
      
      Lanza
      
      O'Mara

co-Sponsors

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2019-S2438 (ACTIVE) - Details

See Assembly Version of this Bill:: A1213
Law Section:: Penal Law
Laws Affected:: Amd §400.00, Pen L
Versions Introduced in Other Legislative Sessions:: 2015-2016: A7463
2017-2018: S7605, A9978

2019-S2438 (ACTIVE) - Summary

Relates to access to foreign state records concerning previous or present mental illness of applicants for firearms licenses.

2019-S2438 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S2438

SPONSOR: KAPLAN
 
TITLE OF BILL:

An act to amend the penal law, in relation to access to foreign state
records

 
PURPOSE OR GENERAL IDEA OF BILL:

Individuals who are domiciled in other states but reside in New York are
able to apply for firearm licenses - but due to confidentiality rules.
New York authorities may be prevented from investigating the mental
illness record of those individuals in their home states. This measure
addresses that flaw by requiring applicants to waive the confidentiality
of their foreign home state mental illness records to the extent a waiv-
er is necessary to permit the New York licensing authority to view those
records.

 
SUMMARY OF PROVISIONS:

This measure would amend section 400.00(4) of the Penal Law to require
an applicant for a firearms license who is a New York resident but domi-
ciled in a foreign state to exercise a waiver of confidentiality that
would permit law enforcement officials to inquire of the foreign state
about the applicant's mental health records.

 
JUSTIFICATION:

The Court of Appeals recently held that a person can apply for a firearm
license in the county of his or her residence, regardless of the place
of the applicant's domicile (Osterweil v. Bartlett, 21 NY3d. 580
(2013)). The Osterweil decision has exposed a significant flaw in New
York's statutory scheme involving firearms licenses.  Currently. before
a firearms license is issued, an investigation must be made of the
applicant's history of mental illness. To that end, the licensing stat-
ute provides that "the records of the appropriate office of the depart-
ment of mental hygiene concerning previous or present mental illness of
the applicant shall be made available for inspection by the investigat-
ing officer of the police authority" (PL § 400.00(4)). This provision
adequately ensures that the licensing authority will be aware of the
mental health records of a New York State domiciliary because any such
records are likely to be maintained by an office under the control of
the department of mental hygiene. After Osterweil. however, foreign
state domiciliaries who maintain a New York residence have begun to
apply for firearm's licenses in New York without being subject to
adequate investigation of their home state record of mental illness.
Confidentiality rules prevent New York authorities from investigating
the mental illness record of foreign states. Moreover, it is unlikely
that New York residents who are domiciled elsewhere, many of whom only
have vacation homes and summer camps in New York.  will have a mental
illness record in New York. Thus. there is little chance under current
law for a complete investigation of the mental illness history of a
foreign domiciliary.

This measure would close the loophole created by Osterweil by requiring
an investigation of the mental illness records of a foreign state where
the applicant is domiciled in a foreign state. In order to permit such
an investigation, the measure requires such an applicant to execute a
waiver of confidentiality in such form as may be required by their
foreign home state.

 
PRIOR LEGISLATIVE HISTORY:

2015: A07463 (Kavanagh): Passed Assembly

2016: A07463 (Kavanagh): Passed Assembly

 
FISCAL IMPLICATIONS:

Minimal.

 
EFFECTIVE DATE:
This measure shall take effect 90 days after becoming law.

2019-S2438 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2438
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 24, 2019
                                ___________
 
 Introduced by Sens. KAPLAN, KAVANAGH, ADDABBO, BAILEY, BENJAMIN, BIAGGI,
   BRESLIN,  BROOKS,  CARLUCCI,  COMRIE,  GAUGHRAN,  GIANARIS, GOUNARDES,
   HARCKHAM, HOYLMAN, JACKSON, KAMINSKY, KRUEGER, LIU, MAYER, MONTGOMERY,
   MYRIE, PARKER, PERSAUD, RAMOS, SALAZAR,  SAVINO,  SEPULVEDA,  SERRANO,
   STAVISKY,  STEWART-COUSINS,  THOMAS -- read twice and ordered printed,
   and when printed to be committed to the Committee on Codes
 
 AN ACT to amend the penal law, in relation to access  to  foreign  state
   records
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 4 of  section  400.00  of  the  penal  law,  as
 amended by chapter 1 of the laws of 2013, is amended to read as follows:
   4.  Investigation.  Before a license is issued or renewed, there shall
 be an investigation of all statements required in the application by the
 duly constituted police authorities of the locality where such  applica-
 tion is made, including but not limited to such records as may be acces-
 sible  to  the  division of state police or division of criminal justice
 services pursuant to section 400.02 of this article. For  that  purpose,
 the  records  of  the  appropriate  office  of  the department of mental
 hygiene concerning previous or present mental illness of  the  applicant
 shall  be  available  for inspection by the investigating officer of the
 police authority. WHERE THE APPLICANT IS DOMICILED IN A  FOREIGN  STATE,
 THE INVESTIGATION SHALL INCLUDE INQUIRY OF THE FOREIGN STATE FOR RECORDS
 CONCERNING THE PREVIOUS OR PRESENT MENTAL ILLNESS OF THE APPLICANT, AND,
 TO THE EXTENT NECESSARY FOR INSPECTION BY THE INVESTIGATING OFFICER, THE
 APPLICANT  SHALL  EXECUTE  A WAIVER OF CONFIDENTIALITY OF SUCH RECORD IN
 SUCH FORM AS MAY BE REQUIRED BY THE FOREIGN STATE. In order to ascertain
 any previous criminal record, the investigating officer shall  take  the
 fingerprints  and  physical  descriptive  data  in quadruplicate of each
 individual by whom the application is signed and verified. Two copies of
 such fingerprints shall be taken on  standard  fingerprint  cards  eight
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

 S                                                          LBD02184-01-9

 S. 2438                             2
 
 inches  square,  and  one  copy may be taken on a card supplied for that
 purpose by the federal bureau of investigation; provided, however,  that
 in  the  case  of  a  corporate applicant that has already been issued a
 dealer  in firearms license and seeks to operate a firearm dealership at
 a second or subsequent location, the original fingerprints on  file  may
 be  used  to  ascertain  any criminal record in the second or subsequent
 application unless any of the corporate officers have changed since  the
 prior  application, in which case the new corporate officer shall comply
 with procedures governing an initial application for such license.  When
 completed,  one  standard card shall be forwarded to and retained by the
 division of criminal justice services in the  executive  department,  at
 Albany.  A search of the files of such division and written notification
 of the results of the search to the investigating officer shall be  made
 without  unnecessary  delay.  Thereafter, such division shall notify the
 licensing officer  and  the  executive  department,  division  of  state
 police,  Albany,  of  any criminal record of the applicant filed therein
 subsequent to the search of its files. A second standard  card,  or  the
 one supplied by the federal bureau of investigation, as the case may be,
 shall  be forwarded to that bureau at Washington with a request that the
 files of the bureau be searched and notification of the results  of  the
 search  be  made to the investigating police authority. Of the remaining
 two fingerprint cards, one shall be filed with the executive department,
 division of state police, Albany, within ten days after issuance of  the
 license,  and  the  other  remain  on file with the investigating police
 authority. No such fingerprints may be inspected  by  any  person  other
 than  a  peace  officer,  who  is  acting pursuant to his OR HER special
 duties, or a police officer, except on order of a judge or justice of  a
 court of record either upon notice to the licensee or without notice, as
 the judge or justice may deem appropriate. Upon completion of the inves-
 tigation, the police authority shall report the results to the licensing
 officer without unnecessary delay.
   §  2.  This  act  shall take effect on the sixtieth day after it shall
 have become a law.

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