Amd §400.00, add §400.20, Pen L; amd §§897 & 898, Gen Bus L
Establishes a waiting period before a firearm, shotgun or rifle may be delivered to a person; requires either the National Instant Criminal Background Check System (NICS) or its successor has issued a "proceed" response to the licensee, or ten business days have elapsed since the date the licensee, seller, transferor or dealer contacted NICS to initiate a national instant criminal background check and NICS has not notified the licensee, seller, transferor or dealer that the transfer of the firearm, rifle or shotgun to such person should be denied.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2406 Revised 4/5/17
SPONSOR: Paulin TITLE OF BILL: An act to amend the penal law and the general business
law, in relation to establishing a waiting period before a firearm,
shotgun or rifle may be delivered to a person
PURPOSE:
To establish a waiting period before a licensed gun dealer may deliver a
firearm, shotgun or rifle to a purchaser
SUMMARY OF PROVISIONS:
Section one amends subdivision 12 of section 400.00 of the penal law, as
amended by chapter 1 of the laws of 2013, to provide that before deliv-
ering a firearm to any person, the licensed gun dealer shall in addition
to requiring such person to produce either a license valid under this
section to carry or possess the same, or proof of lawful authority as an
exempt person pursuant to section 265.20, either (i) the National
Instant Criminal Background Check System or its successor (NICS) has
issued a "proceed" response to the licensee, or
(ii) ten business days have elapsed since the date the licensee
contacted NICS to initiate a national instant criminal background check
and NICS has not notified the licensee that the transfer of the firearm
to such person should be denied.
Section two amends the penal law by adding a new section 400.20 to
provide that when a national instant criminal background check is
required pursuant to state or federal law to be conducted through NICS
in connection with the sale or transfer of a rifle or shotgun to any
person, before delivering a rifle or shotgun to such person, either (i)
NICS has issued a "proceed" response to the seller or transferor, or
(ii) ten business days shall have elapsed since the date the seller or
transferor contacted NICS to initiate a national instant criminal back-
ground check and NICS has not notified the seller or transferor that the
transfer of the rifle or shotgun to such person should be denied.
Section three amends subdivision 1 of section 897 of the general busi-
ness law, as added by chapter 189 of the laws of 2000, to provide that
before delivering a firearm, rifle or shotgun to any person, either (i)
NICS has issued a "proceed" response to the seller or transferor, or
(ii) ten business days shall have elapsed since the date the seller or
transferor contacted NICS to initiate a national instant criminal back-
ground check and NICS has not notified the seller or transferor that the
transfer of the firearm, rifle or shotgun to such person should be
denied.
Section four amends subdivisions .1 and 2 of section 898 of the general
business law, as added by chapter 1 of the laws of 2013, to provide that
when a sale, exchange or disposal is conducted pursuant to a person's
federal firearms license, before delivering a firearm, rifle or shotgun
to any person, either (i) NICS has issued a "proceed" response to the
federal firearms licensee, or (ii) ten business days shall have elapsed
since the date the federal firearms licensee contacted NICS to initiate
a national instant criminal background check and NICS has not notified
the federal firearms licensee that the transfer of the firearm, rifle or
shotgun to such person should be denied. In addition, the section
provides that before a dealer who consents to conduct a national instant
criminal background check delivers a firearm, rifle or shotgun to any
person, either (i) NICS has issued a "proceed" response to the dealer,
or (ii) ten business days shall have elapsed since the date the dealer
contacted NICS to initiate a national instant criminal background check
and NICS has not notified the dealer that the transfer of the firearm,
rifle or shotgun to such person should be denied.
Section five provides the effective date.
JUSTIFICATION:
There is currently no law to prevent known or suspected terrorists from
buying a firearm. Since 2004, more than 2,000 guns were purchased by
individuals on the Terror Watch List.
Discussions with NICS (National Instant Criminal Background Check
System) Section personnel at the FBI revealed that New York can take one
simple step to address this unacceptable flaw.
Federal law requires licensed gun dealers to obtain a NICS background
check before selling a firearm and the NICS response to deny or proceed
with the sale must be reported to the gun dealer within 3 business days.
The gun dealer must deny the sale if the background check determines
that the buyer is one of 9 categories of prohibited purchaser.* Presence
on the Terror Watch List is not, absent a change in federal law, a
prohibited category.
Even though being on the Terror Watch List does not disqualify a person
from purchasing a firearm, the FBI checks the Terror Watch List when it
conducts a NICS check. If the proposed purchaser is on the Terror Watch
List, the FBI cannot deny the sale because being on the Terror Watch
List is not a prohibited purchaser category. In addition, because the
FBI is not authorized, without a change at the federal level, to reveal
that the proposed purchaser is on the Terror Watch List,** the FBI must
instead utilize the short time frame of 3 business days (issuing a
"delayed" response to the gun dealer) to discover a reason to deny the
purchase based on one of the 9 prohibited purchaser categories.
NICS Section personnel at the FBI have made it clear in discussions that
we need to give the FBI more time than 3 business days to conduct and
complete the background check of a prospective buyer before the firearm
is transferred to the buyer. In 2014, in approximately 9 percent of
NICS checks, a "delayed" response was issued because there may have been
a match to the Terror Watch List but there was no known prohibitor
revealed within 3 business days, records were incomplete or more time
was needed to complete the background check within 3 business days. In
conducting a NICS check, the FBI often must investigate or follow up on
information contained in the NICS databases by contacting local, state,
and federal law enforcement agencies as well as the courts since the
databases may not reflect current information.*** The very nature of
processing information by a state regarding for example mental health
and drug abuse - information which may constitute the basis for one of
the 9 categories prohibiting the purchase of a firearm - renders it
nearly impossible for a state to transmit such information instantane-
ously to the NICS databases, necessitating the FBI to undertake addi-
tional investigation to determine whether a proposed purchaser is a
prohibited purchaser.
Based on discussions with the Office of Court Administration (OCA) and
the Department of Criminal Justice Services (DCJS), we know that New
York is one of the most effective states in electronically delivering
relevant records to NICS. Nonetheless, there are still lags in making
sure that information in the NICS databases is complete and up-to-date.
For example, county, village and town courts will report to DCJS a
defendant's arraignment on a misdemeanor assault charge. In some courts,
however, even if a guilty verdict is entered and a judgment of
conviction is rendered, the conviction is not reported until after
sentencing, which in some cases could be 12 to 13 weeks after entry of
the guilty verdict. Accordingly, if a defendant were to attempt to buy a
gun during this 12 to 13-week period, a background check of the NICS
databases, without additional investigation, would not reveal the guilty
verdict or conviction and the defendant would not be prohibited from
buying the gun even if the misdemeanor assault constituted a misdemeanor
crime of domestic violence, one of the 9 categories prohibiting a
purchase. The time lag is exacerbated in those areas where a court meets
less frequently, such as once a month, resulting in once a month reports
to DCJS.****
Even though New York enacted a law which created a process to indicate
on a defendant's criminal record a conviction on a misdemeanor that
constitutes a misdemeanor crime of domestic violence,***** if the
conviction occurred prior to enactment of the law, the FBI would need to
investigate whether the required elements of a misdemeanor crime of
domestic violence were present to prohibit the purchase. In cases where
additional information is needed, an FBI examiner would need to first
identify the correct court in which conviction had been rendered,
contact the court clerk responsible for the relevant case file, and have
the file retrieved, which may not be possible within three business
days.
In the absence of a determination within 3 business days that a sale
should be denied or may proceed, it is in the discretion of the licensed
gun dealer to complete the sale of the firearm after 3 business days
(known as a "default proceed"). Because our law is structured in this
way, if a prospective purchaser is on the Terror Watch List and one of
the 9 prohibitors exists but the information that provides the basis for
the prohibitor is not timely reported or is not readily obtainable
through further investigation within 3 business days, the suspected
terrorist can legally buy the firearm.
According to the FBI, more than 15,000 gun sales went forward between
2010 and 2014 to individuals who should have been prohibited because the
determination whether to deny or proceed could not be made within 3
business days.
Once a sale of a firearm has been completed, it is much more difficult
to take the firearm out of the hands of the gun owner. Even if it is
later discovered that the purchaser was in fact a person prohibited from
purchasing a firearm, the FBI must notify the Bureau of Alcohol, Tobacco
and Firearms (ATF). The ATF must then track down the purchaser and
retrieve the purchased firearm.
In cases where a "delayed" response is issued, three business days is
plainly inadequate to complete the necessary investigation to determine
whether a person.can buy a gun, rifle or shotgun. This bill extends the
time for background checks for purchases from 3 business days to 10
business days. Requiring licensed gun dealers to wait an additional 7
business days before a transaction may proceed will provide the FBI the
critical additional time to gather the information it needs to determine
whether the proposed purchaser is prohibited from buying a gun, rifle or
shotgun without impinging on the right of law-abiding individuals to buy
a gun, rifle or shotgun. It is important to remember -- and this legis-
lation will not change this - where a background check is "clean," i.e.
reveals no hits in the NICS databases, the buyer may purchase the
firearm without delay.
A number of states, including California, Maryland, Washington, Tennes-
see and Pennsylvania, have already mandated additional time for law
enforcement to conduct background checks. The FBI stated that a state
can extend background check time when the FBI conducts the NICS checks,
or create a waiting period, pointing out that the law should focus on
the responsibility of the dealer to transfer the gun and not on the FBI
to conduct the check within a certain period of time, which this legis-
lation achieves. Two states, Minnesota and Rhode Island, where the deal-
ers contact the NICS unit to conduct NICS background checks, establish a
seven day waiting period.
In the wake of increased terrorist attacks throughout the country, it is
vital that we adopt common sense measures to keep firearms out of the
hands of known and suspected terrorists. Extending the amount of time
allowed for a background check to provide the FBI additional time to
conduct its investigation is a most effective and practical means to
ensure that both legally prohibited persons and known and suspected
terrorists cannot buy a firearm, rifle or shotgun in New York.
LEGISLATIVE HISTORY:
A.9433-A, 2016 amended and recommitted to codes.
Same as S.7596, 2016 referred to codes.
FISCAL IMPLICATIONS:
None to the State.
EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it shall have
become a law. *The nine categories of prohibited purchasers are: (1) a
convicted felon; (2) a fugitive from justice; (3) an unlawful user of or
addicted to any controlled substance; (4) a person adjudicated as a
mental defective or who has been committed to a mental institution; (5)
an illegal alien or an alien on a non-immigrant visa; (6) a person
discharged dishonorably from the Armed Forces; (7) a United States citi-
zen who has renounced citizenship; (8) a person who is subject to a
court order restraining him or her from harassing, stalking, or threat-
ening an intimate partner, his/her child, or the child of his/her inti-
mate partner; or (9) a person convicted of a misdemeanor crime of domes-
tic violence. 18 U.S.C. § 922(g).
**State law, legislation or other action to ban suspected terrorists
from purchasing a gun violates the prohibition on the FBI from revealing
presence on the Terror Watch List and are likely unenforceable absent
authorization or waiver by federal action.
***The accuracy and completeness of the NICS databases are dependent on
the states to transmit to NICS relevant and current information.
****Although we understand that 90% of the village and town courts have
electronic reporting capability, there are courts who still manually
file written reports. It is unknown how timely those reports are filed
following court proceedings.
*****Ch.258 of the Laws of 2011.
