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.
