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

                                  4441

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 4, 2009
                               ___________

Introduced  by  M.  of A. KOON, MARKEY -- Multi-Sponsored by -- M. of A.
  ALFANO, BARRA, TOWNS -- read once and referred  to  the  Committee  on
  Codes

AN ACT to amend the penal law, in relation to personalized gun safety

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

  Section 1. The penal law is amended by adding a  new  article  401  to
read as follows:
                               ARTICLE 401
                         PERSONALIZED GUN SAFETY
SECTION 401.00 DEFINITIONS.
        401.05 TEMPORARY FIREARM SAFETY STANDARD COMMISSION.
        401.10 SAFETY STANDARD TESTING.
        401.15 ENFORCEMENT.
        401.20 EXEMPTIONS.
        401.25 PENALTIES.
        401.30 LIABILITY.
        401.35 SEVERABILITY.
S 401.00 DEFINITIONS.
  FOR  PURPOSES  OF  THIS  ARTICLE,  THE  FOLLOWING TERMS SHALL HAVE THE
FOLLOWING MEANINGS:
  1. "PERSON" MEANS ANY INDIVIDUAL, CORPORATION,  COMPANY,  ASSOCIATION,
FIRM,  PARTNERSHIP, SOCIETY, JOINT STOCK COMPANY OR ASSOCIATION, LIMITED
LIABILITY COMPANY, OR OTHER ENTITY.
  2. "AUTHORIZED USER" MEANS THE PERSON WHO OWNS THE FIREARM, AS DEFINED
IN SECTION 265.00 OF THIS CHAPTER, OR A PERSON TO  WHOM  THE  OWNER  HAS
GIVEN CONSENT TO USE THE FIREARM.
  3. "COMMISSION" MEANS THE TEMPORARY FIREARM SAFETY STANDARD COMMISSION
ESTABLISHED IN SECTION 401.05 OF THIS ARTICLE.
S 401.05 TEMPORARY FIREARM SAFETY STANDARD COMMISSION.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02503-01-9

              

A. 4441                             2

  1. THERE IS HEREBY CREATED A TEMPORARY FIREARM SAFETY STANDARD COMMIS-
SION.  SUCH  COMMISSION SHALL BE ESTABLISHED WITHIN SIX MONTHS AFTER THE
EFFECTIVE DATE OF THIS ARTICLE, AND IT SHALL ADOPT A PERFORMANCE  SAFETY
STANDARD FOR FIREARMS, AS DEFINED IN SECTION 265.00 OF THIS CHAPTER. THE
COMMISSION SHALL EXPIRE ONE YEAR AFTER THE ISSUANCE OF SUCH STANDARD.
  2.  SUCH  TEMPORARY  STATE COMMISSION SHALL CONSIST OF NINE MEMBERS AS
FOLLOWS: ONE SUCH MEMBER SHALL BE THE SUPERINTENDENT OF STATE POLICE  OR
HIS  OR  HER  DESIGNEE; ONE SUCH MEMBER SHALL BE THE COMMISSIONER OF THE
DIVISION OF CRIMINAL JUSTICE SERVICES OR HIS OR HER DESIGNEE;  ONE  SUCH
MEMBER  SHALL  BE THE COMMISSIONER OF HEALTH OR HIS OR HER DESIGNEE; ONE
SUCH MEMBER SHALL BE APPOINTED BY THE  GOVERNOR;  ONE  MEMBER  SHALL  BE
APPOINTED BY THE ATTORNEY GENERAL; TWO MEMBERS SHALL BE APPOINTED BY THE
TEMPORARY PRESIDENT OF THE SENATE; AND TWO MEMBERS SHALL BE APPOINTED BY
THE SPEAKER OF THE ASSEMBLY.
  3.  THE  GOVERNOR  SHALL  SELECT  A CHAIRPERSON OF THE COMMISSION FROM
AMONG THE MEMBERS, AND SUCH CHAIRPERSON SHALL SERVE AS SUCH AT THE PLEA-
SURE OF THE GOVERNOR.
  4. MEMBERS OF THE  COMMISSION  SHALL  NOT  BE  COMPENSATED  FOR  THEIR
SERVICES,  BUT  SHALL  BE  ALLOWED  THEIR  ACTUAL AND NECESSARY EXPENSES
INCURRED IN THE PERFORMANCE OF THEIR DUTIES. NO MEMBER OF THE COMMISSION
SHALL BE DISQUALIFIED FROM HOLDING ANY PUBLIC OFFICE OR EMPLOYMENT,  NOR
SHALL  HE  OR SHE FORFEIT ANY SUCH OFFICE OR EMPLOYMENT BY VIRTUE OF HIS
OR HER APPOINTMENT HEREUNDER. THE DIVISION OF STATE POLICE SHALL FURNISH
REASONABLE OFFICE SPACE AND DAY-TO-DAY STAFF SUPPORT TO THE COMMISSION.
  5. THE COMMISSION SHALL, ON OR BEFORE ONE  YEAR  AFTER  ITS  CREATION,
ADOPT A PRELIMINARY FIREARM SAFETY PERFORMANCE STANDARD FOR ALL FIREARMS
MANUFACTURED, ASSEMBLED, ALTERED, OFFERED FOR SALE, SOLD, TRADED, TRANS-
FERRED, SHIPPED, LEASED, DISTRIBUTED, ACQUIRED, OR POSSESSED WITHIN THIS
STATE.    THE  STANDARD  SHALL  REQUIRE,  BUT NEED NOT BE LIMITED TO THE
FOLLOWING:
  (A) A FIREARM MUST BE PERSONALIZED SO THAT IT CAN BE FIRED  ONLY  WHEN
OPERATED BY THAT FIREARM'S AUTHORIZED USER;
  (B)  THE  TECHNOLOGY  CREATING PERSONALIZED FIREARMS SHALL BE INCORPO-
RATED INTO THE DESIGN OF THE FIREARM AND BE PART OF ITS ORIGINAL  EQUIP-
MENT AND NOT AN ACCESSORY;
  (C)  PERSONALIZED  FIREARMS  SHALL  NOT BE MANUFACTURED, ASSEMBLED, OR
ALTERED SO AS TO PERMIT THE PERSONALIZED CHARACTERISTICS TO  BE  READILY
DEACTIVATED.
  6.  THE  COMMISSION SHALL FORMULATE THE NECESSARY TESTING PROCEDURE TO
DETERMINE IF A FIREARM COMPLIES WITH THE COMMISSION'S STANDARD.
  7. THE COMMISSION SHALL DESIGNATE ONE OR MORE INDEPENDENT LABORATORIES
FOR DETERMINING WHETHER OR NOT FIREARMS  COMPLY  WITH  THE  COMMISSION'S
STANDARD.   THE LABORATORIES SHALL USE THE TEST METHOD FORMULATED BY THE
COMMISSION TO DETERMINE COMPLIANCE.
  8. THE COMMISSION IS AUTHORIZED:
  (A) TO CALL UPON ANY AGENCY, DEPARTMENT, OFFICE, DIVISION,  OR  PUBLIC
AUTHORITY  OF  THIS STATE TO SUPPLY IT WITH SUCH INFORMATION AS IT DEEMS
NECESSARY TO DISCHARGE ITS RESPONSIBILITIES.   EACH AGENCY,  DEPARTMENT,
OFFICE,  DIVISION,  AND  PUBLIC  AUTHORITY OF THIS STATE SHALL COOPERATE
WITH THE COMMISSION AND FURNISH SUCH INFORMATION AND  ASSISTANCE  AS  IS
REASONABLY NECESSARY FOR THE COMMISSION TO ACCOMPLISH ITS PURPOSES;
  (B)  TO  CONDUCT PUBLIC HEARINGS, HEAR THE TESTIMONY OF WITNESSES, AND
REQUEST ANY DOCUMENTS THE COMMISSION DEEMS NECESSARY TO  CARRY  OUT  THE
COMMISSION'S RESPONSIBILITIES;
  (C)  TO CONTRACT WITH ANY STATE OR PRIVATE ENTITY FOR THE PROVISION OF
SUCH SERVICES AS THE COMMISSION DETERMINES TO BE NECESSARY; AND

A. 4441                             3

  (D) TO TAKE SUCH OTHER ACTIONS NOT INCONSISTENT WITH THE  PURPOSES  OF
THIS SECTION AS SHALL ENABLE THE COMMISSION TO CARRY OUT ITS FUNCTIONS.
  9.  THE  COMMISSION,  AFTER  ADOPTION OF THE STANDARD AND PRIOR TO ITS
EXPIRATION, SHALL CONSULT THE STATE POLICE IN REVIEWING  AND  EVALUATING
THE IMPLEMENTATION OF THE SAFETY STANDARD.
  10.  THE  COMMISSION  SHALL  ISSUE  AN INTERIM REPORT TO THE GOVERNOR,
ATTORNEY GENERAL, TEMPORARY PRESIDENT OF THE SENATE, AND SPEAKER OF  THE
ASSEMBLY  ON  OR ABOUT ONE YEAR AFTER THE CREATION OF THE COMMISSION AND
SHALL ISSUE A FINAL REPORT ON OR ABOUT TWO YEARS AFTER THE  CREATION  OF
THE  COMMISSION; BOTH REPORTS SHALL BE IN ACCORDANCE WITH THE PROVISIONS
OF THIS SECTION.
S 401.10 SAFETY STANDARD TESTING.
  1. IN ACCORDANCE WITH THE  STANDARD  ISSUED  BY  THE  COMMISSION,  ANY
GUNSMITH, AS DEFINED IN SECTION 265.00 OF THIS CHAPTER, WISHING TO MANU-
FACTURE,  OFFER  FOR SALE, SELL OR TRANSFER A FIREARM IN THIS STATE MUST
SUBMIT A PROTOTYPE OF THE FIREARM MODEL FOR TESTING, AT THE COST OF  THE
GUNSMITH,  TO  ONE  OF  THE  INDEPENDENT  LABORATORIES DESIGNATED BY THE
COMMISSION.
  2. THE LABORATORY SHALL ISSUE A WRITTEN REPORT DIRECTLY TO THE  SUPER-
INTENDENT  OF STATE POLICE AND A COPY THEREOF TO THE GUNSMITH INDICATING
WHETHER OR NOT THE SUBMITTED FIREARM MET THE SAFETY STANDARD. SHOULD THE
FIREARM FAIL TO MEET  SUCH  STANDARD,  THE  REPORT  SHALL  DESCRIBE  THE
REASONS THEREFOR.
  3.  IF A FIREARM MODEL FAILS TO MEET THE SAFETY STANDARD, SUCH FIREARM
SHALL NOT BE MANUFACTURED, ASSEMBLED, ALTERED, OFFERED FOR  SALE,  SOLD,
TRADED,   TRANSFERRED,   SHIPPED,   LEASED,  DISTRIBUTED,  ACQUIRED,  OR
POSSESSED BY ANY PERSON IN THIS STATE UNTIL SUCH FIREARM HAS BEEN  MODI-
FIED  TO  MEET  THE COMMISSION'S STANDARD AND HAS PASSED THE INDEPENDENT
LABORATORY'S TEST ON RESUBMISSION.
  4. IF THE FIREARM MODEL MEETS  THE  STANDARD,  THE  SUPERINTENDENT  OF
STATE  POLICE  SHALL  ISSUE A CERTIFICATE STATING THAT THE FIREARM MODEL
MEETS THE COMMISSION'S STANDARD, AND THE WORDS, "CERTIFIED  PERSONALIZED
FIREARM" OR AN EQUIVALENT LABEL, AS ESTABLISHED BY THE COMMISSION, SHALL
BE  IMPRINTED ON THE APPROVED FIREARM AT THE EXPENSE OF THE GUNSMITH, AS
DEFINED IN SECTION 265.00 OF THIS CHAPTER.
  5. ONCE THE FIREARM MODEL IS DEEMED TO MEET THE STANDARD, THE GUNSMITH
OR DEALER, AS DEFINED IN SECTION 265.00 OF THIS CHAPTER, OR THE  AUTHOR-
IZED USER, AS DEFINED IN THIS ARTICLE, SHALL NOT ALTER THE DESIGN OF THE
FIREARM IN ANY MANNER AFFECTING SUCH SAFETY STANDARD.
S 401.15 ENFORCEMENT.
  1. ON OR AFTER FOUR YEARS FROM THE DATE OF THE ADOPTION OF THE COMMIS-
SION'S  STANDARD,  FIREARMS  THAT DO NOT MEET THE STANDARD PRESCRIBED BY
THE COMMISSION PURSUANT TO  THIS  ARTICLE  SHALL  NOT  BE  MANUFACTURED,
ASSEMBLED,   ALTERED,  OFFERED  FOR  SALE,  SOLD,  TRADED,  TRANSFERRED,
SHIPPED, LEASED, DISTRIBUTED, ACQUIRED, OR POSSESSED IN THIS STATE.
  2. IF ANY LAW ENFORCEMENT  OFFICER,  DURING  THE  COURSE  OF  OFFICIAL
DUTIES  AND  OPERATING  WITHIN  THE  CONFINES  OF THE LAW, DISCOVERS ANY
FIREARM WHICH, UNDER THE PROVISIONS OF THIS ARTICLE, DOES NOT  MEET  THE
COMMISSION'S  STANDARD,  THAT  OFFICER  SHALL  TAKE  POSSESSION  OF SUCH
FIREARM, AND THE DISPOSITION OF ANY SUCH FIREARM SHALL BE IN  ACCORDANCE
WITH THE PROVISIONS OF SECTION 400.05 OF THIS CHAPTER.
  3. WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, AN APPLICATION
MAY  BE  MADE  BY  THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF THE
STATE OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION BY A SPECIAL
PROCEEDING TO ISSUE AN INJUNCTION, AND UPON NOTICE TO THE  DEFENDANT  OF
NOT  LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE OF SUCH

A. 4441                             4

VIOLATION; AND IF IT SHALL APPEAR TO THE SATISFACTION OF  THE  COURT  OR
JUSTICE  THAT  THE  DEFENDANT  HAS,  IN  FACT, VIOLATED THIS SECTION, AN
INJUNCTION MAY  BE  ISSUED  BY  THE  COURT  OR  JUSTICE,  ENJOINING  AND
RESTRAINING  ANY  FURTHER  VIOLATIONS  WITHOUT  REQUIRING PROOF THAT ANY
PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY. IN CONNECTION WITH
ANY SUCH PROPOSED APPLICATION, THE ATTORNEY  GENERAL  IS  AUTHORIZED  TO
TAKE  PROOF  AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE
SUBPOENAS.
S 401.20 EXEMPTIONS.
  THE FOLLOWING FIREARMS ARE EXEMPT FROM THIS ARTICLE:
  1. ANTIQUE FIREARMS, AS DEFINED IN SECTION 265.00 OF THIS CHAPTER;
  2. FIREARMS MANUFACTURED PRIOR TO FOUR YEARS  FROM  THE  DATE  OF  THE
ADOPTION  OF THE COMMISSION'S ORIGINAL STANDARD; PROVIDED, HOWEVER, THAT
SUCH FIREARMS MAY NOT BE SOLD, OFFERED FOR  SALE,  TRADED,  TRANSFERRED,
SHIPPED, LEASED, OR DISTRIBUTED BY DEALERS, AS DEFINED IN SECTION 265.00
OF  THIS  CHAPTER, AFTER FOUR YEARS FROM THE DATE OF THE ADOPTION OF THE
COMMISSION'S ORIGINAL STANDARD; AND
  3. FIREARMS PURCHASED BY LAW ENFORCEMENT OFFICERS  OR  DEPARTMENTS  OR
AGENCIES AND MEMBERS OF THE ARMED FORCES.
S 401.25 PENALTIES.
  1.    ON  OR  AFTER  FOUR  YEARS  FROM THE DATE OF THE ADOPTION OF THE
COMMISSION'S STANDARD, ANY PERSON WHO MANUFACTURES OR CAUSES TO BE MANU-
FACTURED ANY FIREARM THAT HAS NOT BEEN CERTIFIED BY AN INDEPENDENT TEST-
ING LABORATORY AS MEETING THE COMMISSION'S  STANDARD  AND  THAT  IS  NOT
EXEMPT PURSUANT TO SECTION 401.20 OF THIS ARTICLE IS GUILTY OF A CLASS D
FELONY.
  2.    ON  OR  AFTER  FOUR  YEARS  FROM THE DATE OF THE ADOPTION OF THE
COMMISSION'S STANDARD, ANY PERSON WHO TRANSPORTS OR  SHIPS  ANY  FIREARM
THAT  HAS  NOT  BEEN  CERTIFIED  BY AN INDEPENDENT TESTING LABORATORY AS
MEETING THE COMMISSION'S STANDARD AND THAT IS  NOT  EXEMPT  PURSUANT  TO
SECTION 401.20 OF THIS ARTICLE IS GUILTY OF A CLASS D FELONY.
  3.    ON  OR  AFTER  FOUR  YEARS  FROM THE DATE OF THE ADOPTION OF THE
COMMISSION'S STANDARD, ANY PERSON WHO DISPOSES OF ANY FIREARM  THAT  HAS
NOT  BEEN  CERTIFIED BY AN INDEPENDENT TESTING LABORATORY AS MEETING THE
COMMISSION'S STANDARD AND THAT IS NOT EXEMPT PURSUANT TO SECTION  401.20
OF THIS ARTICLE IS GUILTY OF A CLASS D FELONY.
  4.    ON  OR  AFTER  FOUR  YEARS  FROM THE DATE OF THE ADOPTION OF THE
COMMISSION'S STANDARD, ANY PERSON WHO WILLFULLY DEFACES ANY  FIREARM  BY
ALTERING  THE  PERSONALIZED  CHARACTERISTICS  OF A FIREARM MANUFACTURED,
ASSEMBLED,  ALTERED,  OFFERED  FOR  SALE,  SOLD,  TRADED,   TRANSFERRED,
SHIPPED,  LEASED,  DISTRIBUTED,  ACQUIRED, OR POSSESSED AFTER FOUR YEARS
FROM THE DATE OF THE ADOPTION OF THE COMMISSION'S ORIGINAL  STANDARD  IS
GUILTY OF A CLASS D FELONY.
S 401.30 LIABILITY.
  1.    ON  OR  AFTER  FOUR  YEARS  FROM THE DATE OF THE ADOPTION OF THE
COMMISSION'S STANDARD, ANY PERSON WHO DISCHARGES A FIREARM THAT DOES NOT
MEET THE COMMISSION'S STANDARD AND THAT THIS IS NOT EXEMPT  PURSUANT  TO
SECTION  401.20  OF THIS ARTICLE IS LIABLE FOR ALL DIRECT AND CONSEQUEN-
TIAL DAMAGES TO ANY PERSON INJURED IN  PERSON,  PROPERTY,  OR  MEANS  OF
SUPPORT.
  2.    ON  OR  AFTER  FOUR  YEARS  FROM THE DATE OF THE ADOPTION OF THE
COMMISSION'S STANDARD, ANY PERSON WHO OWNS A FIREARM THAT DOES NOT  MEET
THE COMMISSION'S STANDARD, THAT IS NOT EXEMPT PURSUANT TO SECTION 401.20
OF  THIS  ARTICLE,  AND WHICH IS DISCHARGED BY AN UNAUTHORIZED PERSON IS
LIABLE FOR ALL DIRECT AND CONSEQUENTIAL DAMAGES TO ANY PERSON INJURED IN
PERSON, PROPERTY, OR MEANS OF SUPPORT.

A. 4441                             5

  3. THE PROVISIONS OF SUBDIVISIONS ONE AND TWO OF  THIS  SECTION  SHALL
NOT  APPLY  WHEN  THE  DISCHARGE WAS BY A LAW ENFORCEMENT OFFICER IN THE
LINE OF DUTY OR WHEN THE  DISCHARGE  WAS  MADE  WITH  JUSTIFICATION,  AS
DEFINED IN ARTICLE THIRTY-FIVE OF THIS CHAPTER.
  4.  COMPLIANCE  WITH  ANY  STANDARD ISSUED UNDER THIS ARTICLE DOES NOT
EXEMPT ANY PERSON FROM LIABILITY UNDER THE COMMON LAW.
S 401.35 SEVERABILITY.
  IF ANY PROVISION OF THIS ARTICLE OR THE APPLICATION OF SUCH  PROVISION
IN  CERTAIN CIRCUMSTANCES IS HELD INVALID, THE VALIDITY OF THE REMAINDER
OF THIS ARTICLE AND ITS APPLICABILITY TO OTHER CIRCUMSTANCES  SHALL  NOT
BE AFFECTED.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.