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 thirty calendar 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: A2690
SPONSOR: Paulin TITLE OF BILL:
An act to amend the penal law and the general business law, in relation
to establishing an extension of time of up to thirty calendar days for
national instant background checks
PURPOSE:
To establish an extension of time of up to thirty calendar days for
national instant background checks
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) thirty calendar
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) thirty calendar days shall have elapsed since the date the seller
or transferor contacted NICS to initiate a national instant criminal
background 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) thirty calendar days shall have elapsed since the date the seller
or transferor contacted NICS to initiate a national instant criminal
background 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) thirty calendar 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) thirty calendar days shall have elapsed since the date
the dealer contacted NICS to initiate a national instant criminal back-
ground 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:
Guns have destroyed 39,773 lives across the United States in 2017,
according to sobering statistics recently released by the Centers for
Disease Control and Prevention. As a leader in curbing gun violence, New
York State must act to address this public health crisis. One potential-
ly deadly loophole in our intricate gun protection laws is known as the
"default-proceed" loophole or the "Charleston Loophole," after shooter
Dylann Roof legally purchased a firearm despite an inconclusive back-
ground check and then proceeded to murder nine innocent people in a
Charleston, South Carolina church. The loophole can be prevented by
passing the measure set forth in this bill by creating an extension of
time for national instant background checks from three days to up to
thirty calendar days where a federal background check produces inconclu-
sive results.
New York must extend the duration of time available to conduct back-
ground checks when necessary. Currently, national instant background
checks are mandated by the federal law 18 USC 922, pursuant to which
federal firearm licensees must wait up to three business days to receive
a result, which can be "proceed," "deny" or "delay." Most background
checks return a quick result of either "proceed" or "deny," but in
approximately 8-11 percent of cases, law enforcement requires more time
than the three days allotted to conduct accurate background checks and
will issue a "delay" result. At that point, under federal law, it is
within the discretion of the federal firearms licensee to complete a
sale and transfer a weapon, although state law can increase the time
period. The Federal Bureau of Investigation ("FBI") National Instant
Criminal Background Check System ("NICS") section will continue to keep
the delayed background check open for up to 88 days.
It has been estimated that over 300,000 firearms may have been trans-
ferred in 2016 even though the results of a national instant background
check were not sufficient to affirmatively approve the purchaser. A
number of states, including California, Colorado, Pennsylvania and Dela-
ware, have extended the time for background check results where there is
a "delay" response. Reasons for a "delay" response may include incom-
plete records, ongoing court proceedings, or inconsistent information.
Another concern that can be addressed by extending the time for back-
ground checks is giving the FBI more time to keep guns out of the hands
of terrorists. 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 section personnel at the FBI revealed that New York can take one
simple step to address this unacceptable flaw, which is to give addi-
tional time to law enforcement to determine an acceptable basis for
denial to a terrorist. This is especially critical because the FBI is
not authorized to reveal that the proposed purchaser is on the Terror
Watch List.
A 2016 United States Government Accounting Office report stated that in
cases of domestic violence, it takes the FBI over 7 business days to
complete 90 percent of checks in cases of misdemeanor crimes of domestic
violence. The report also showed that three percent of denials in those
domestic violence cases took over 21 days. The extra time is explained
by reporting differences between states. The GAO report states, "Accord-
ing to FBI data, more than 500 firearms were transferred to individuals
with prohibiting
misdemeanor crime of domestic violence records or
prohibiting protection orders each year from fiscal years 2006 through
2015 - about 6,700 total transfers - because the FBI denial determi-
nation was made after three business days, which resulted in the FBI
referring these cases to the ATF for firearm retrieval."
In conclusion, the measure in this legislation will help keep New York-
ers safer. It is incumbent upon the Legislature to act and to correct
this potentially deadly loophole. Background checks must be thorough and
accurate to avoid mistakes. We need to prevent disqualified purchasers
from utilizing this loophole by eradicating it, before it is too late.
LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS:
None to the State.
EFFECTIVE DATE:
This act shall take effect on the forty fifth day after it shall have
become a law.
STATE OF NEW YORK
________________________________________________________________________
2690
2019-2020 Regular Sessions
IN ASSEMBLY
January 24, 2019
___________
Introduced by M. of A. PAULIN, LENTOL, HEASTIE, DINOWITZ, GALEF, GOTT-
FRIED, MOSLEY, SIMON, JAFFEE, BLAKE, BUCHWALD, ABINANTI, OTIS, STECK,
FAHY, TAYLOR, D'URSO, SIMOTAS, ORTIZ, ENGLEBRIGHT, WEPRIN, HEVESI,
PERRY, SEAWRIGHT, BICHOTTE, CRUZ, FRONTUS, GRIFFIN, JACOBSON, PICHAR-
DO, REYES, SAYEGH, STERN -- read once and referred to the Committee on
Codes
AN ACT to amend the penal law and the general business law, in relation
to establishing an extension of time of up to thirty calendar days for
national instant background checks
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 12 of section 400.00 of the penal law, as
2 amended by chapter 1 of the laws of 2013, is amended to read as follows:
3 12. Records required of gunsmiths and dealers in firearms. Any person
4 licensed as gunsmith or dealer in firearms shall keep a record book
5 approved as to form, except in the city of New York, by the superinten-
6 dent of state police. In the record book shall be entered at the time of
7 every transaction involving a firearm the date, name, age, occupation
8 and residence of any person from whom a firearm is received or to whom a
9 firearm is delivered, and the calibre, make, model, manufacturer's name
10 and serial number, or if none, any other distinguishing number or iden-
11 tification mark on such firearm. Before delivering a firearm to any
12 person, the licensee shall require him to produce either a license valid
13 under this section to carry or possess the same, or proof of lawful
14 authority as an exempt person pursuant to section 265.20 of this chapter
15 and either (a) the National Instant Criminal Background Check System
16 (NICS) or its successor has issued a "proceed" response to the licensee,
17 or (b) thirty calendar days have elapsed since the date the licensee
18 contacted NICS to initiate a national instant criminal background check
19 and NICS has not notified the licensee that the transfer of the firearm
20 to such person should be denied. In addition, before delivering a
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00627-05-9
A. 2690 2
1 firearm to a peace officer, the licensee shall verify that person's
2 status as a peace officer with the division of state police. After
3 completing the foregoing, the licensee shall remove and retain the
4 attached coupon and enter in the record book the date of such license,
5 number, if any, and name of the licensing officer, in the case of the
6 holder of a license to carry or possess, or the shield or other number,
7 if any, assignment and department, unit or agency, in the case of an
8 exempt person. The original transaction report shall be forwarded to the
9 division of state police within ten days of delivering a firearm to any
10 person, and a duplicate copy shall be kept by the licensee. The super-
11 intendent of state police may designate that such record shall be
12 completed and transmitted in electronic form. A dealer may be granted a
13 waiver from transmitting such records in electronic form if the super-
14 intendent determines that such dealer is incapable of such transmission
15 due to technological limitations that are not reasonably within the
16 control of the dealer, or other exceptional circumstances demonstrated
17 by the dealer, pursuant to a process established in regulation, and at
18 the discretion of the superintendent. Records assembled or collected for
19 purposes of inclusion in the database created pursuant to section 400.02
20 of this article shall not be subject to disclosure pursuant to article
21 six of the public officers law. The record book shall be maintained on
22 the premises mentioned and described in the license and shall be open at
23 all reasonable hours for inspection by any peace officer, acting pursu-
24 ant to his special duties, or police officer. In the event of cancella-
25 tion or revocation of the license for gunsmith or dealer in firearms, or
26 discontinuance of business by a licensee, such record book shall be
27 immediately surrendered to the licensing officer in the city of New
28 York, and in the counties of Nassau and Suffolk, and elsewhere in the
29 state to the executive department, division of state police.
30 § 2. The penal law is amended by adding a new section 400.20 to read
31 as follows:
32 § 400.20 Waiting period in connection with the sale or transfer of a
33 rifle or shotgun.
34 When a national instant criminal background check is required pursuant
35 to state or federal law to be conducted through the National Instant
36 Criminal Background Check System (NICS) or its successor in connection
37 with the sale or transfer of a rifle or shotgun to any person, before
38 delivering a rifle or shotgun to such person, either (a) NICS has issued
39 a "proceed" response to the seller or transferor, or (b) thirty calendar
40 days shall have elapsed since the date the seller or transferor
41 contacted NICS to initiate a national instant criminal background check
42 and NICS has not notified the seller or transferor that the transfer of
43 the rifle or shotgun to such person should be denied.
44 § 3. Subdivision 1 of section 897 of the general business law, as
45 added by chapter 189 of the laws of 2000, is amended to read as follows:
46 1. A national instant criminal background check shall be conducted and
47 no person shall sell or transfer a firearm, rifle or shotgun at a gun
48 show, except in accordance with the provisions of 18 U.S.C. 922(t),
49 provided that before delivering a firearm, rifle or shotgun to any
50 person, either (a) the National Instant Criminal Background Check System
51 (NICS) or its successor has issued a "proceed" response to the seller or
52 transferor, or (b) thirty calendar days shall have elapsed since the
53 date the seller or transferor contacted NICS to initiate a national
54 instant criminal background check and NICS has not notified the seller
55 or transferor that the transfer of the firearm, rifle or shotgun to such
56 person should be denied.
A. 2690 3
1 § 4. Subdivisions 1 and 2 of section 898 of the general business law,
2 as added by chapter 1 of the laws of 2013, are amended to read as
3 follows:
4 1. In addition to any other requirements pursuant to state and feder-
5 al law, all sales, exchanges or disposals of firearms, rifles or shot-
6 guns shall be conducted in accordance with this section unless such
7 sale, exchange or disposal is conducted by a licensed importer, licensed
8 manufacturer or licensed dealer, as those terms are defined in 18 USC §
9 922, when such sale, exchange or disposal is conducted pursuant to that
10 person's federal firearms license or such sale, exchange or disposal is
11 between members of an immediate family. When a sale, exchange or
12 disposal is conducted pursuant to a person's federal firearms license,
13 before delivering a firearm, rifle or shotgun to any person, either (a)
14 the National Instant Criminal Background Check System (NICS) or its
15 successor has issued a "proceed" response to the federal firearms licen-
16 see, or (b) thirty calendar days shall have elapsed since the date the
17 federal firearms licensee contacted NICS to initiate a national instant
18 criminal background check and NICS has not notified the federal firearms
19 licensee that the transfer of the firearm, rifle or shotgun to such
20 person should be denied. For purposes of this section, "immediate fami-
21 ly" shall mean spouses, domestic partners, children and step-children.
22 2. Before any sale, exchange or disposal pursuant to this article, a
23 national instant criminal background check must be completed by a dealer
24 who consents to conduct such check, and upon completion of such back-
25 ground check, shall complete a document, the form of which shall be
26 approved by the superintendent of state police, that identifies and
27 confirms that such check was performed. Before a dealer who consents to
28 conduct a national instant criminal background check delivers a firearm,
29 rifle or shotgun to any person, either (a) NICS issued a "proceed"
30 response to the dealer, or (b) thirty calendar days shall have elapsed
31 since the date the dealer contacted NICS to initiate a national instant
32 criminal background check and NICS has not notified the dealer that the
33 transfer of the firearm, rifle or shotgun to such person should be
34 denied.
35 § 5. This act shall take effect on the forty-fifth day after it shall
36 have become a law.
