S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         7046
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                    April 30, 2013
                                      ___________
       Introduced by M. of A. LAVINE -- read once and referred to the Committee
         on Judiciary
       AN  ACT  to  amend  the  judiciary  law  and  the mental hygiene law, in
         relation to requiring a recent psychiatric evaluation of a  petitioner
         seeking relief from firearms disabilities
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Paragraph (q) of subdivision 2 of section 212 of the  judi-
    2  ciary  law,  as  amended by chapter 1 of the laws of 2013, is amended to
    3  read as follows:
    4    (q) (I) Adopt rules to require transmission, to the  criminal  justice
    5  information  services division of the federal bureau of investigation or
    6  to the division of criminal justice services,  of  the  name  and  other
    7  identifying  information of each person who has a guardian appointed for
    8  him or her pursuant to any provision of state law, based on  a  determi-
    9  nation  that  as  a  result  of  marked  subnormal  intelligence, mental
   10  illness, incapacity, condition or disease, he or she  lacks  the  mental
   11  capacity  to contract or manage his or her own affairs. Any such records
   12  transmitted directly to the federal bureau of investigation must also be
   13  transmitted to the  division  of  criminal  justice  services,  and  any
   14  records  received  by the division of criminal justice services pursuant
   15  to this paragraph may be  checked  against  the  statewide  license  and
   16  record database.
   17    (II)  ADOPT  RULES TO ESTABLISH A RELIEF FROM DISABILITIES PROGRAM FOR
   18  THOSE INDIVIDUALS WHO HAVE HAD GUARDIANS  APPOINTED  FOR  THEM  AND  WHO
   19  WOULD  OTHERWISE BE PROHIBITED FROM PURCHASING OR POSSESSING FIREARMS AS
   20  A RESULT OF TRANSMISSION OF INFORMATION PURSUANT TO SUBPARAGRAPH (I)  OF
   21  THIS  PARAGRAPH. SUCH RULES SHALL REQUIRE SUBMISSION OF A RECENT PSYCHI-
   22  ATRIC EVALUATION OF THE  PETITIONER  FOR  SUCH  RELIEF  BY  A  QUALIFIED
   23  PSYCHIATRIST,  UNLESS THE PETITIONER SUBMITS EVIDENCE DEMONSTRATING THAT
   24  THE ORIGINAL DISQUALIFICATION WAS ISSUED IN ERROR.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD10530-01-3
       A. 7046                             2
    1    S 2. Subdivision (j) of section 7.09 of the  mental  hygiene  law,  as
    2  amended by chapter 1 of the laws of 2013, is amended to read as follows:
    3    (j)  (1)  The commissioner, in cooperation with other applicable state
    4  agencies, shall collect, retain or modify data  or  records,  and  shall
    5  transmit  such  data or records: (i) to the division of criminal justice
    6  services, or to the criminal justice information  services  division  of
    7  the  federal  bureau of investigation, for the purposes of responding to
    8  queries to the national instant criminal background check system regard-
    9  ing attempts to purchase or otherwise take possession  of  firearms,  as
   10  defined  in 18 USC 921(a)(3), in accordance with applicable federal laws
   11  or regulations, or (ii) to the division of  criminal  justice  services,
   12  which may re-disclose such data and records only for determining whether
   13  a  license  issued pursuant to section 400.00 of the penal law should be
   14  denied, suspended or revoked, under subdivision eleven of such  section,
   15  or for determining whether a person is no longer permitted under federal
   16  or  state  law to possess a firearm. Such records, which may not be used
   17  for any other purpose, shall include only names and  other  non-clinical
   18  identifying information of persons who have been involuntarily committed
   19  to  a hospital pursuant to article nine of this chapter, or section four
   20  hundred two or subdivision two of section  five  hundred  eight  of  the
   21  correction law, or article seven hundred thirty or section 330.20 of the
   22  criminal  procedure  law  or sections 322.2 or 353.4 of the family court
   23  act, or to a secure treatment facility pursuant to article ten  of  this
   24  chapter.
   25    (2)  The  commissioner  shall  establish  within  the office of mental
   26  health an administrative process to permit a person who has been or  may
   27  be  disqualified  from  possessing  such  a  firearm  pursuant to 18 USC
   28  922(4)(d) or who has been or may be disqualified from continuing to have
   29  a license to carry, possess, repair,  or  dispose  of  a  firearm  under
   30  section  400.00  of  the penal law because such person was involuntarily
   31  committed or civilly confined to a facility under  the  jurisdiction  of
   32  the commissioner, to petition for relief from that disability where such
   33  person's  record  and  reputation  are such that such person will not be
   34  likely to act in a manner dangerous  to  public  safety  and  where  the
   35  granting  of  the  relief  would  not  be contrary to public safety. The
   36  commissioner shall promulgate regulations to establish the  relief  from
   37  disabilities  program,  which  shall  include,  but  not  be limited to,
   38  provisions providing for: (i) an opportunity for a  disqualified  person
   39  to petition for relief in writing; (ii) SUBMISSION OF A RECENT PSYCHIAT-
   40  RIC EVALUATION OF THE PETITIONER BY A QUALIFIED PSYCHIATRIST, UNLESS THE
   41  PETITIONER  SUBMITS  EVIDENCE  DEMONSTRATING THAT THE ORIGINAL DISQUALI-
   42  FICATION WAS ISSUED IN ERROR; (III) the  authority  for  the  agency  to
   43  require  that  the  petitioner  undergo  a  clinical evaluation and risk
   44  assessment; and [(iii)] (IV) a requirement that the agency issue a deci-
   45  sion in writing explaining the reasons for a denial or grant of  relief.
   46  The denial of a petition for relief from disabilities may be reviewed de
   47  novo  pursuant  to  the  proceedings  under article seventy-eight of the
   48  civil practice law and rules.
   49    S 3. Subdivision (g) of section 13.09 of the mental  hygiene  law,  as
   50  amended by chapter 1 of the laws of 2013, is amended to read as follows:
   51    (g)  (1)  The commissioner, in cooperation with other applicable state
   52  agencies, shall collect, retain or modify data  or  records,  and  shall
   53  transmit  such  data or records to: (i) the division of criminal justice
   54  services, or to the criminal justice information  services  division  of
   55  the  federal  bureau of investigation, for the purposes of responding to
   56  queries to the national instant criminal background check system regard-
       A. 7046                             3
    1  ing attempts to purchase or otherwise take possession  of  firearms,  as
    2  defined  in 18 USC 921(a)(3), in accordance with applicable federal laws
    3  or regulations, or (ii) to the division of  criminal  justice  services,
    4  for  the  purposes  of  determining whether a license issued pursuant to
    5  section 400.00 of the penal law should be denied, suspended or  revoked,
    6  under  subdivision  eleven of such section, or for determining whether a
    7  person is no longer permitted under federal or state law  to  possess  a
    8  firearm.  Such  records  shall include only names and other non-clinical
    9  identifying information of persons who have had a guardian appointed for
   10  them pursuant to any provision of state law, based  on  a  determination
   11  that as a result of marked subnormal intelligence, mental illness, inca-
   12  pacity,  condition or disease, they lack the mental capacity to contract
   13  or manage their own affairs, and persons  who  have  been  involuntarily
   14  committed  to a facility pursuant to article fifteen of this chapter, or
   15  article seven hundred thirty or section 330.20 of the criminal procedure
   16  law or sections 322.2 or 353.4 of the family court act.
   17    (2) The commissioner shall establish within the office for people with
   18  developmental disabilities an administrative process to permit a  person
   19  who  has  been  or  may  be  disqualified from possessing such a firearm
   20  pursuant to 18 USC 922(4)(d), or who has been  or  may  be  disqualified
   21  from  continuing to have a license to carry, possess, repair, or dispose
   22  of a firearm under section 400.00 of the penal law because  such  person
   23  was  involuntarily committed or civilly confined to a facility under the
   24  jurisdiction of the commissioner, to petition for relief from that disa-
   25  bility where such person's record and  reputation  are  such  that  such
   26  person  will not be likely to act in a manner dangerous to public safety
   27  and where the granting of the relief would not  be  contrary  to  public
   28  safety.  The  commissioner shall promulgate regulations to establish the
   29  relief from disabilities program, which shall include, but not be limit-
   30  ed to, provisions providing for: (i) an opportunity for  a  disqualified
   31  person  to  petition  for relief in writing; (ii) SUBMISSION OF A RECENT
   32  PSYCHIATRIC EVALUATION OF THE PETITIONER BY  A  QUALIFIED  PSYCHIATRIST,
   33  UNLESS  THE  PETITIONER SUBMITS EVIDENCE DEMONSTRATING THAT THE ORIGINAL
   34  DISQUALIFICATION WAS ISSUED IN ERROR; (III) the authority for the agency
   35  to require that the petitioner undergo a clinical  evaluation  and  risk
   36  assessment; and [(iii)] (IV) a requirement that the agency issue a deci-
   37  sion  in writing explaining the reasons for a denial or grant of relief.
   38  The denial of a petition for relief from disabilities may be reviewed de
   39  novo pursuant to the proceedings  under  article  seventy-eight  of  the
   40  civil practice law and rules.
   41    S  4. This act shall take effect on the first of January next succeed-
   42  ing the date upon which it shall have become a law.