Senate Bill S4081

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4081

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              April 9, 2009
                               ___________

Introduced  by  Sens.  SCHNEIDERMAN, ADAMS, BRESLIN, DIAZ, DILAN, DUANE,
  KRUEGER, KRUGER, MONTGOMERY, ONORATO,  OPPENHEIMER,  PARKER,  PERKINS,
  SAMPSON,  STAVISKY,  THOMPSON  --  read twice and ordered printed, and
  when printed to be committed to the Committee on Finance

AN ACT to amend the state finance law, in relation to the procurement of
  handguns by state agencies

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Declaration of legislative findings and intent. The legis-
lature finds that it is in the state's best interest to procure handguns
for use by state employees in  the  performance  of  their  duties  from
responsible  suppliers that are committed to a standard of conduct which
makes every effort to eliminate sales of guns that might lead to illegal
possession and/or misuse by criminals, unauthorized juveniles, and other
prohibited persons.
  Over 30,000 people in the United States die each  year  from  gunfire,
including  4,200  children. On average, firearms kill approximately nine
American children every day. In New York City,  firearms,  predominantly
handguns,  are  used  in  approximately sixty-six percent of the murders
committed each year. More than twice the number of individuals  murdered
with  a  firearm  suffered  injuries inflicted by firearms. Handguns are
also used in a high percentage of other crimes, including robbery, felo-
ny reckless endangerment and menacing.
  Government agencies purchase approximately twenty-five percent of  all
guns  sold  in  the  United  States,  including  guns for police forces,
correctional services, and public safety agencies. The state is a  major
purchaser  of  handguns  for  use by the state's various law enforcement
agencies.  The  legislature  finds  that  the  state,  acting  with  the
discretion  allowed any private participant in the market, should choose
to allocate its purchasing dollars in a manner that promotes the respon-
sible manufacture, shipment, and distribution of handguns.  In  further-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00993-01-9
              

S. 4081                             2

ance  of  this  goal,  this  legislation  requires  that  state agencies
purchase handguns from suppliers that refrain from marketing or manufac-
turing handguns in a manner that is attractive to  criminals  and  juve-
niles,  as  well  as adhere to other provisions designed to minimize the
risk to innocent third parties and to prevent handguns from leaving  the
legal  stream of commerce. Nevertheless, the legislature recognizes that
handguns which satisfy the standards required by  this  legislation  may
not  be  suitable  for  law  enforcement  needs,  thus,  the legislation
provides an  exception  if  necessary  for  handguns  procured  for  law
enforcement or military uses.
  The  legislature  finds that it is imperative that the state spend its
citizens' money in a manner that promotes the safety and  well-being  of
all  residents.  Accordingly,  the legislature finds that when procuring
handguns, the state should do so from responsible manufacturers whenever
possible.
  S 2. The state finance law is amended by adding a new section  169  to
read as follows:
  S  169.  PURCHASE  OF  HANDGUNS.   1. FOR THE PURPOSES OF THIS SECTION
ONLY, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
  (A) "CONTRACT" MEANS ANY WRITTEN AGREEMENT, PURCHASE ORDER, OR INSTRU-
MENT WHEREBY A CONTRACTING AGENCY IS COMMITTED TO EXPEND OR DOES  EXPEND
FUNDS  IN RETURN FOR WORK, LABOR, SERVICES, SUPPLIES, EQUIPMENT, MATERI-
ALS, OR ANY COMBINATION OF THE FOREGOING.
  (B) "RESPONSIBLE  SUPPLIER"  MEANS  THAT  THE  SUPPLIER  OF  HANDGUNS,
INCLUDING  A  MANUFACTURER,  RETAIL  DEALER, AND/OR WHOLESALE DEALER, IS
ABLE TO DEMONSTRATE THAT IT IS COMMITTED TO A STANDARD OF CONDUCT  WHICH
MAKES  EVERY  REASONABLE EFFORT TO ELIMINATE SALES OF WEAPONS THAT MIGHT
LEAD TO ILLEGAL POSSESSION  AND/OR  MISUSE  BY  CRIMINALS,  UNAUTHORIZED
JUVENILES,  AND  OTHER PROHIBITED PERSONS. THIS STANDARD INCLUDES DEMON-
STRATED COMPLIANCE WITH THE FOLLOWING PROVISIONS:
  (1) DOES NOT SELL WEAPONS TO DEALERS WHO HAVE SOLD  MORE  THAN  TWENTY
WEAPONS  WITHIN ANY CONTINUOUS TWELVE MONTH PERIOD IN THE PRECEDING FIVE
YEARS TRACED TO USE IN A CRIME OR ILLEGAL POSSESSION, AS  DETERMINED  BY
THE UNITED STATES BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES OR
WHO HAVE NOT, ON THEIR OWN, SOLD WEAPONS, TWENTY OR MORE OF WHICH WITHIN
ANY  CONTINUOUS  TWELVE  MONTH  PERIOD  IN  THE PRECEDING FIVE YEARS ARE
TRACED TO USE IN A CRIME OR ILLEGAL POSSESSION,  AS  DETERMINED  BY  THE
UNITED STATES BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES;
  (2)  MAKES  NO  SALES  AT  GUN SHOWS OR ALTERNATIVE VENUES UNLESS SUCH
SALES AT THE GUN SHOW OR  ALTERNATIVE  VENUE  ARE  CONDUCTED  ONLY  UPON
COMPLETION  OF  A  BACKGROUND  CHECK  AND ALL SELLERS AT THE GUN SHOW OR
ALTERNATIVE VENUE AGREE TO CONDUCT SALES ONLY UPON COMPLETION OF A BACK-
GROUND CHECK AS DICTATED BY STATE AND FEDERAL LAW FOR SALE AT  A  RETAIL
GUN STORE;
  (3) (I) IN THE CASE OF A MANUFACTURER SELLING WEAPONS TO DEALERS, ONLY
SELLS  TO  DEALERS WHO OPERATE A RETAIL SHOP LOCATED AT A FIXED ADDRESS,
OR (II) IN THE CASE OF RETAIL OR WHOLESALE DEALERS WHERE:
  A. THE DEALER MAINTAINS AN ELECTRONIC DATABASE OF MAKE, MODEL, CALIBER
OR GAUGE, AND SERIAL NUMBER OF ALL WEAPONS HELD IN INVENTORY OR  OFFERED
FOR SALE;
  B. THE DEALER MAINTAINS AN ELECTRONIC DATABASE OF MAKE, MODEL, CALIBER
OR GAUGE, AND SERIAL NUMBER OF ALL WEAPONS SOLD AND THE NAME AND LICENSE
NUMBER OF ALL PURCHASERS; AND
  C. THE DEALER MAKES VISIBLE ALL PERMITS AND LEGALLY REQUIRED SIGNAGE;
  (4)  PROVIDES FULL ACCESS OF AFOREMENTIONED RECORDS TO LAW ENFORCEMENT
AND GOVERNMENT REGULATORS CONDUCTING COMPLIANCE INSPECTIONS;

S. 4081                             3

  (5) LIMITS PURCHASES BY ANY INDIVIDUAL IN ANY GIVEN THIRTY DAY  PERIOD
TO ONE WEAPON; AND
  (6) IMPLEMENTS A SECURITY PLAN FOR SECURING WEAPONS IN TRANSIT.
  (C) "CONTRACTING AGENCY" MEANS A STATE AGENCY OR COVERED AUTHORITY.
  (D)  "CONTRACTOR" MEANS ANY SUPPLIER, BY SALE OR LEASE, OF HANDGUNS TO
A CONTRACTING AGENCY.
  (E) "HANDGUN" MEANS A REVOLVER OR SEMI-AUTOMATIC  PISTOL  DESIGNED  TO
EXPEL A PROJECTILE BY THE ACTION OF AN EXPLOSIVE.
  (F)  "STATE  AGENT"  MEANS  ANY  INDIVIDUAL WHO, AS PART OF HIS OR HER
OFFICIAL DUTIES, PURCHASES OR LEASES A HANDGUN FINANCED IN WHOLE  OR  IN
PART BY A CONTRACTING AGENCY FOR PERFORMANCE OF OFFICIAL DUTIES.
  2.  A  CONTRACTING AGENCY SHALL ONLY ENTER INTO A CONTRACT TO PURCHASE
OR OBTAIN FOR ANY PURPOSE HANDGUNS FROM A RESPONSIBLE  SUPPLIER,  AND  A
STATE  AGENT  SHALL ONLY PURCHASE OR LEASE A HANDGUN FOR USE IN PERFORM-
ANCE OF OFFICIAL DUTIES FROM A RESPONSIBLE SUPPLIER.
  3. THE SUPERINTENDENT OF STATE POLICE SHALL PROMULGATE RULES  SPECIFY-
ING  THE  DOCUMENTS AND INFORMATION THAT CONTRACTORS MUST PROVIDE TO THE
CONTRACTING AGENCY FOR PURPOSES OF SUBPARAGRAPH THREE OF  PARAGRAPH  (B)
OF SUBDIVISION ONE OF THIS SECTION.
  4.  UPON  A  DETERMINATION  THAT  A CONTRACTOR IS IN VIOLATION OF THIS
SECTION, THE CONTRACTING AGENCY SHALL REVIEW SUCH INFORMATION AND  OFFER
THE  CONTRACTOR  AN  OPPORTUNITY  TO  RESPOND. IF THE CONTRACTING AGENCY
FINDS THAT A VIOLATION HAS OCCURRED, IT SHALL TAKE SUCH ACTION AS MAY BE
APPROPRIATE AND PROVIDED FOR BY LAW, RULE OR  CONTRACT,  INCLUDING,  BUT
NOT  LIMITED  TO,  IMPOSING  SANCTIONS,  SEEKING  COMPLIANCE, RECOVERING
DAMAGES, DECLARING THE  CONTRACTOR  IN  DEFAULT,  SEEKING  DEBARMENT  OR
SUSPENSION OF THE CONTRACTOR AND/OR DEEMING IT AS NON-RESPONSIBLE.
  5. EVERY CONTRACT FOR OR ON BEHALF OF ALL CONTRACTING AGENCIES FOR THE
SUPPLY OF HANDGUNS SHALL CONTAIN A PROVISION OR PROVISIONS DETAILING THE
REQUIREMENTS OF THIS SECTION.
  6.  WITH  REGARD  TO  A "CONTRACTING AGENCY", THE REQUIREMENTS OF THIS
SECTION SHALL BE WAIVED IN WRITING UNDER THE FOLLOWING CIRCUMSTANCES:
  (A) THERE IS ONLY ONE PROSPECTIVE CONTRACTOR WILLING TO ENTER  INTO  A
CONTRACT; OR
  (B)  WHERE  IT IS DETERMINED THAT ALL BIDDERS TO A CONTRACT ARE DEEMED
INELIGIBLE FOR PURPOSES OF THIS SECTION; OR
  (C) WHERE IT IS AVAILABLE FROM  A  SOLE  SOURCE  AND  THE  PROSPECTIVE
CONTRACTOR  IS  NOT  CURRENTLY DISQUALIFIED FROM DOING BUSINESS WITH THE
CONTRACTING AGENCY; OR
  (D) THE CONTRACT IS NECESSARY IN ORDER  TO  RESPOND  TO  AN  EMERGENCY
WHICH  ENDANGERS  THE  PUBLIC  HEALTH  AND  SAFETY  AND  NO ENTITY WHICH
COMPLIES WITH THE REQUIREMENTS OF THIS SECTION CAPABLE OF RESPONDING  TO
THE EMERGENCY IS IMMEDIATELY AVAILABLE; OR
  (E)  WHERE  A  CONTRACTING  AGENCY WHOSE PRIMARY RESPONSIBILITY IS LAW
ENFORCEMENT DEEMS IT NECESSARY TO PURCHASE HANDGUNS FROM  OTHER  THAN  A
RESPONSIBLE SUPPLIER; OR
  (F)  WHERE INCLUSION OR APPLICATION OF SUCH PROVISIONS WILL VIOLATE OR
BE INCONSISTENT WITH THE TERMS AND CONDITIONS OF A GRANT, SUBVENTION, OR
CONTRACT OF THE UNITED STATES  OR  NEW  YORK  STATE  GOVERNMENT  OR  THE
INSTRUCTIONS  OF  AN  AUTHORIZED  REPRESENTATIVE OF ANY SUCH AGENCY WITH
RESPECT TO ANY SUCH GRANT, SUBVENTION, OR CONTRACT.
  ALL WRITTEN WAIVERS SHALL BECOME PART OF  THE  CONTRACT  FILE  OF  THE
CONTRACTING  AGENCY.  NOTWITHSTANDING ANY WAIVER, THE CONTRACTING AGENCY
SHALL TAKE EVERY REASONABLE MEASURE TO CONTRACT WITH A  MANUFACTURER  OR
DEALER WHO BEST SATISFIES THE REQUIREMENTS OF THIS SECTION.

S. 4081                             4

  7.  WITH  REGARD  TO  "STATE AGENTS", THE REQUIREMENTS OF THIS SECTION
SHALL BE WAIVED IN WRITING UNDER THE FOLLOWING CIRCUMSTANCES:
  (A)  THE EMPLOYER OF THE STATE AGENT DETERMINES THAT THERE IS ONLY ONE
PROSPECTIVE SUPPLIER WILLING OR ABLE TO SUPPLY SUCH HANDGUN; OR
  (B) WHERE THE EMPLOYER OF THE STATE AGENT DETERMINES THAT ALL PROSPEC-
TIVE SUPPLIERS ARE DEEMED INELIGIBLE FOR PURPOSES OF THIS SECTION; OR
  (C) WHERE THE EMPLOYER OF THE STATE AGENT DETERMINES THAT THE  HANDGUN
IS AVAILABLE ONLY FROM A SOLE SOURCE AND THE PROSPECTIVE SUPPLIER IS NOT
CURRENTLY  DISQUALIFIED FROM DOING BUSINESS WITH THE CONTRACTING AGENCY;
OR
  (D) THE EMPLOYER OF THE STATE AGENT DETERMINES THAT IT IS NECESSARY IN
ORDER TO RESPOND TO AN EMERGENCY WHICH ENDANGERS THE PUBLIC  HEALTH  AND
SAFETY  AND  NO  ENTITY  WHICH  COMPLIES  WITH  THE REQUIREMENTS OF THIS
SECTION CAPABLE OF RESPONDING TO THE EMERGENCY IS IMMEDIATELY AVAILABLE;
OR
  (E) WHERE THE EMPLOYER OF THE STATE AGENT WHOSE PRIMARY RESPONSIBILITY
IS LAW ENFORCEMENT DEEMS IT NECESSARY TO PURCHASE  HANDGUNS  FROM  OTHER
THAN A RESPONSIBLE SUPPLIER; OR
  (F)  WHERE THE EMPLOYER OF THE STATE AGENT DEEMS THAT THE INCLUSION OR
APPLICATION OF SUCH PROVISIONS WILL VIOLATE OR BE INCONSISTENT WITH  THE
TERMS  AND  CONDITIONS OF A GRANT, SUBVENTION, OR CONTRACT OF THE UNITED
STATES OR NEW YORK STATE GOVERNMENT OR THE INSTRUCTIONS OF AN AUTHORIZED
REPRESENTATIVE OF ANY SUCH  AGENCY  WITH  RESPECT  TO  ANY  SUCH  GRANT,
SUBVENTION OR CONTRACT.
  8.  THIS  SECTION  SHALL  NOT APPLY TO ANY CONTRACT WITH A CONTRACTING
AGENCY ENTERED INTO PRIOR TO THE EFFECTIVE DATE OF THIS SECTION.
  9. IF ANY  SUBDIVISION,  PARAGRAPH,  SUBPARAGRAPH,  SENTENCE,  CLAUSE,
PHRASE,  OR  OTHER  PORTION OF THIS SECTION IS, FOR ANY REASON, DECLARED
UNCONSTITUTIONAL OR INVALID, IN WHOLE OR IN PART, BY ANY COURT OF COMPE-
TENT JURISDICTION, SUCH PORTION SHALL  BE  DEEMED  SEVERABLE,  AND  SUCH
UNCONSTITUTIONALITY  OR  INVALIDITY SHALL NOT AFFECT THE VALIDITY OF THE
REMAINING PORTIONS OF  THIS  SECTION,  WHICH  REMAINING  PORTIONS  SHALL
CONTINUE IN FULL FORCE AND EFFECT.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.