STATE OF NEW YORK
        ________________________________________________________________________

                                          4990

                               2021-2022 Regular Sessions

                   IN ASSEMBLY

                                    February 10, 2021
                                       ___________

        Introduced  by M. of A. HAWLEY, BRABENEC, MONTESANO, BLANKENBUSH, TAGUE,
          SALKA -- Multi-Sponsored by -- M. of A. BARCLAY, DeSTEFANO,  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; to repeal certain provisions of
          the penal law relating to firearms licenses and sellers of ammunition;
          and  to  repeal  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:

     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "civil rights restoration act".
     3    §  2.  The civil rights law is amended by adding a new section 79-q to
     4  read as follows:
     5    § 79-q. Civil rights restoration. 1. In any proceeding that may impact
     6  an individual's rights under the second amendment of the  United  States
     7  constitution,  or  any  similar  state right, including such proceedings
     8  that could result in the loss  of  a  license  to  carry  or  possess  a
     9  firearm:
    10    (a)  No court order shall be issued nor proceeding be commenced unless
    11  all pleadings or other accusatory instruments have been filed and served
    12  in conformity with article thirty of the civil practice law  and  rules,
    13  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.
                                                                   LBD04853-01-1

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     1  been "involuntarily committed to a mental  institution,"  such  pleading
     2  shall  include  an allegation as to the said court order date and juris-
     3  diction;
     4    (b) The burden of proof in such proceeding shall be no less than clear
     5  and convincing evidence;
     6    (c)  Individuals may examine the entire contents of his or her firearm
     7  license records  constructed  by  state  and  local  licensing  and  law
     8  enforcement authorities;
     9    (d) There shall be a right to counsel, including the right to assigned
    10  counsel, if counsel cannot be afforded; and
    11    (e)  Any  firearms confiscated and/or surrendered into law enforcement
    12  evidence status during such proceeding shall not  be  destroyed,  unless
    13  specifically  directed  through  a written order by a court of competent
    14  jurisdiction at  the  conclusion  of  all  disqualification  proceedings
    15  relating to the individual, including any appeals undertaken.
    16    2.  (a)  There  shall  be  contemporaneous written notification to all
    17  individuals being reported to any law enforcement  database  that  could
    18  result  in  the  deprivation of rights to own, possess, or use a firearm
    19  and/or the deprivation of a lawfully owned firearm, including,  but  not
    20  limited  to, reports under former section 9.46 of the mental hygiene law
    21  and under 18 USC § 922(g).
    22    (b) There shall be written notification transmitted within ninety days
    23  of the effective date of this  section  to  all  individuals  previously
    24  reported  into  any  law  enforcement  database that could result in the
    25  deprivation of rights to own, possess,  or  use  a  firearm  and/or  the
    26  deprivation  of a lawfully owned firearm, including, but not limited to,
    27  the databases maintained by the office of mental health, the division of
    28  criminal justice services, and the division of state police in  conjunc-
    29  tion  with  reports  made  under  the  former section 9.46 of the mental
    30  hygiene law and/or under 18 USC  §  922(g)(4),  and  that  such  written
    31  notification  shall  include notice that the individual may have a right
    32  to commence a proceeding in either the New York state supreme  court  or
    33  county  court under article seventy-eight of the civil practice laws and
    34  rules if he or she believes that the information  contained  within  the
    35  notification is in error.
    36    (c)  Any  individual,  business, or governmental official who, knowing
    37  the information reported, conveyed or circulated to  be  false,  reports
    38  that  a  person  has been involuntarily committed, shall be subject to a
    39  civil fine of not more than ten thousand dollars per offense.
    40    (d) In any proceeding where an individual establishes  that  a  report
    41  that  he or she was involuntarily committed was false, reasonable attor-
    42  ney's fees and costs shall be reimbursed by the state.
    43    (e) The state shall correct any false or incorrect report  against  an
    44  individual  to state and federal databases, including those under 18 USC
    45  §922(g), within seven days of entry and service  upon  the  state  of  a
    46  final order of disposition in a case. The failure of the state to timely
    47  do so shall be punishable as a contempt of court.
    48    (f)  Notwithstanding  any  law, rule or regulation to the contrary, an
    49  individual's medical and/or clinical  records  shall  not  be  used  for
    50  routine  law  enforcement reporting purposes relative to firearms owner-
    51  ship, use, possession, or suitability.
    52    § 3. Section 400.02 of the penal law, as amended by chapter 244 of the
    53  laws of 2019, is amended to read as follows:
    54  § 400.02 Statewide license and record database.
    55    There shall be a statewide license and record database which shall  be
    56  created and maintained by the division of state police the cost of which

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     1  shall  not  be borne by any municipality. Records assembled or collected
     2  for purposes of inclusion in such  database  shall  not  be  subject  to
     3  disclosure pursuant to article six of the public officers law, excepting
     4  any  non-identifying records such as existing statistical tabulations or
     5  those capable of being performed or such  record  responses  as  can  be
     6  reasonably  satisfied  through  redacted  response.  Records  containing
     7  granted license applications shall be periodically checked by the  divi-
     8  sion  of  criminal justice services against criminal [conviction, mental
     9  health, and all other records] convictions  as  [are]  is  necessary  to
    10  determine  their  continued accuracy as well as whether an individual is
    11  no longer a valid license  holder.  The  division  of  criminal  justice
    12  services  shall  also  check  pending applications made pursuant to this
    13  article against such records to  determine  whether  a  license  may  be
    14  granted.  All state agencies shall cooperate with the division of crimi-
    15  nal justice services, as otherwise authorized by law,  in  making  their
    16  records  available  for  such  checks.  The division of criminal justice
    17  services, upon determining that an individual is ineligible to possess a
    18  license, or is no longer a valid license holder, shall notify the appli-
    19  cable licensing official of such determination and such licensing  offi-
    20  cial  shall  not  issue a license or revoke such license and any weapons
    21  owned or possessed by such individual shall be removed  consistent  with
    22  the  provisions of subdivision eleven of section 400.00 of this article.
    23  Local and state law enforcement shall have access to  such  database  in
    24  the  performance  of  their  duties.  Records assembled or collected for
    25  purposes of inclusion in the database established by this section  shall
    26  be released pursuant to a court order.
    27    §  4.  Paragraph  (b) of subdivision 11 of section 400.00 of the penal
    28  law is REPEALED.
    29    § 5. Section 400.05 of the penal law is amended by adding a new subdi-
    30  vision 7 to read as follows:
    31    7. Whenever any machine-gun or firearm is destroyed pursuant to subdi-
    32  vision two of this section, all state and local law enforcement agencies
    33  shall publish on their website, on an  annual  basis,  an  inventory  of
    34  every  machine-gun  or firearm that is destroyed, including the caliber,
    35  make, model, manufacturer's name, serial number, or if none,  any  other
    36  distinguishing  number  or  identification  mark  of  the machine-gun or
    37  firearm, and if applicable, the jurisdiction and date of the court order
    38  directing the  surrender  and/or  destruction  of  such  machine-gun  or
    39  firearm.
    40    §  6.  Paragraph  (c) of subdivisions 11 and 16-a and paragraph (b) of
    41  subdivision 10 of section 400.00 of the penal law are REPEALED.
    42    § 7. Subdivision 1 of section 898 of  the  general  business  law,  as
    43  amended  by  chapter  129  of  the  laws  of 2019, is amended to read as
    44  follows:
    45    1. In addition to any other requirements pursuant to state and federal
    46  law, all sales, exchanges or disposals of firearms, rifles  or  shotguns
    47  shall  be  conducted  in  accordance with this section unless such sale,
    48  exchange or disposal is  conducted  by  a  licensed  importer,  licensed
    49  manufacturer  or licensed dealer, as those terms are defined in 18 USC §
    50  922, when such sale, exchange or disposal is conducted pursuant to  that
    51  person's  federal firearms license or such sale, exchange or disposal is
    52  between members of  an  immediate  family.  When  a  sale,  exchange  or
    53  disposal  is  conducted pursuant to a person's federal firearms license,
    54  before delivering a firearm, rifle or shotgun to any person, either  (a)
    55  the  National  Instant  Criminal  Background  Check System (NICS) or its
    56  successor has issued a "proceed" response to the federal firearms licen-

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     1  see, or (b) thirty calendar days shall have elapsed since the  date  the
     2  federal  firearms licensee contacted NICS to initiate a national instant
     3  criminal background check and NICS has not notified the federal firearms
     4  licensee  that  the  transfer  of  the firearm, rifle or shotgun to such
     5  person should be denied. For purposes of this section, "immediate  fami-
     6  ly"  shall  mean spouses, domestic partners, parents, brothers, sisters,
     7  children and step-children.
     8    § 8. Subdivision 17 of section 400.00 of the penal law  is  renumbered
     9  subdivision 19 and a new subdivision 17 is added to read as follows:
    10    17.  Applicants  who  have a genuine and sincere religious belief, who
    11  have provided fingerprints  pursuant  to  this  section,  shall  not  be
    12  required  to  provide  photographs  of  themselves  in order to obtain a
    13  license as required by this section.
    14    § 9. Section 400.03 of the penal law is REPEALED.
    15    § 10. Subdivision 16-a of section 400.00 of the penal law  is  amended
    16  by adding a new paragraph (c) to read as follows:
    17    (c) The division of state police shall not require the registration of
    18  a seller of ammunition, as defined in subdivision twenty-four of section
    19  265.00  of this chapter, in order for such seller of ammunition to oper-
    20  ate his or her business.
    21    § 11. Section 9.46 of the mental hygiene law is REPEALED.
    22    § 12. Subdivision 19 of section 837 of the executive law is REPEALED.
    23    § 13. Paragraph 12 of subdivision (c) of section 33.13 of  the  mental
    24  hygiene  law, as amended by chapter 1 of the laws of 2013, is amended to
    25  read as follows:
    26    12. to a director of community services as defined in article nine  of
    27  this  chapter or his or her designee, provided that such director or his
    28  or her designee [(i)] requests such information in the exercise  of  his
    29  or  her statutory functions, powers and duties pursuant to section 9.37,
    30  9.45, 9.47, 9.48, 9.60 or 41.13 of this chapter[; or (ii) the disclosure
    31  of information is required pursuant to section 9.46 of this chapter].
    32    § 14. One year after the completion of transmission of notification of
    33  all individuals pursuant to paragraph (b) of subdivision two of  section
    34  79-q  of  the civil rights law, as added by section two of this act, all
    35  offices and agencies in use or possession of reports required under  the
    36  former  section  9.46  of  the  mental  hygiene law shall purge all such
    37  information.
    38    § 15. Severability. If any provision of this act, or  the  application
    39  thereof to any person or circumstance, shall be adjudged by any court of
    40  competent  jurisdiction to be invalid or unconstitutional, such judgment
    41  shall not affect, impair or invalidate the remainder thereof, but  shall
    42  be  confined  in  its  operation to the provision of this act, or in its
    43  application to the person or  circumstance,  directly  involved  in  the
    44  controversy in which such judgment shall have been rendered.
    45    § 16. This act shall take effect immediately.