S T A T E O F N E W Y O R K
________________________________________________________________________
5237
2009-2010 Regular Sessions
I N A S S E M B L Y
February 11, 2009
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Introduced by M. of A. ESPAILLAT, PEOPLES -- Multi-Sponsored by -- M. of
A. ALFANO, BARRA, BENJAMIN, CLARK, TOWNS -- read once and referred to
the Committee on Judiciary
AN ACT to amend the general obligations law, in relation to authorizing
a cause of action against the manufacturers of certain weapons ille-
gally used to injure or kill persons in New York state
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The general obligations law is amended by adding a new
section 11-108 to read as follows:
S 11-108. CIVIL PENALTY FOR INJURY OR DEATH TO PERSONS IN NEW YORK
STATE; MANUFACTURERS OF WEAPONS. 1. A PERSON, CORPORATION, FIRM, PART-
NERSHIP, OR OTHER ENTITY THAT MANUFACTURES ANY WEAPON SHALL BE LIABLE
FOR DAMAGES, INCLUDING PUNITIVE DAMAGES, IF SUCH WEAPON IS USED BY A
PERSON WHO IS NOT LAWFULLY AUTHORIZED TO POSSESS SUCH WEAPON IN THE
STATE TO INJURE OR KILL ANOTHER PERSON WITHIN THE STATE. "WEAPON", FOR
PURPOSES OF THIS SECTION, MEANS A FIREARM, RIFLE, SHOTGUN, MACHINE-GUN
OR ASSAULT WEAPON, AS SUCH TERMS ARE DEFINED IN SECTION 265.00 OF THE
PENAL LAW.
2. THE LIABILITY ESTABLISHED UNDER THIS SECTION DOES NOT APPLY TO
PERSONS, CORPORATIONS, FIRMS, PARTNERSHIPS, OR OTHER ENTITIES THAT
COMPLY WITH THE FOLLOWING PROVISIONS:
(A) DOES NOT SELL WEAPONS TO DEALERS WHO HAVE MORE THAN TWENTY WEAPONS
SOLD WITHIN ANY CONTINUOUS TWELVE MONTH PERIOD IN THE PRECEDING FIVE
YEARS TRACED TO USE IN A CRIME OR ILLEGAL POSSESSION, AS DETERMINED BY
THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, OR WHO HAVE
NOT, ON THEIR OWN, SOLD WEAPONS, TWENTY OR MORE OF WHICH ARE TRACED TO
USE IN A CRIME OR ILLEGAL POSSESSION, AS DETERMINED BY THE BUREAU OF
ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES;
(B) MAKES NO SALES AT GUN SHOWS OR ALTERNATIVE VENUES UNLESS SUCH
SALES AT THE GUN SHOW OR ALTERNATIVE VENUE ARE CONDUCTED ONLY UPON
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02811-01-9
A. 5237 2
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;
(C) ONLY SELL WEAPONS TO DEALERS WHO OPERATE A RETAIL SHOP LOCATED AT
A FIXED ADDRESS WHERE:
(1) THE DEALER MAINTAINS AN ELECTRONIC DATABASE OF MAKE, MODEL, CALI-
BER OR GAUGE, AND SERIAL NUMBER OF ALL WEAPONS HELD IN INVENTORY OR
OFFERED FOR SALE;
(2) THE DEALER MAINTAINS AN ELECTRONIC DATABASE OF MAKE, MODEL, CALI-
BER OR GAUGE, AND SERIAL NUMBER OF ALL WEAPONS SOLD AND THE NAME AND
LICENSE NUMBER OF ALL PURCHASERS; AND
(3) THE DEALER MAKES VISIBLE ALL PERMITS AND LEGALLY REQUIRED SIGNAGE;
(D) PROVIDES FULL ACCESS TO THE RECORDS SPECIFIED IN PARAGRAPH (C) OF
THIS SUBDIVISION TO LAW ENFORCEMENT PERSONNEL AND GOVERNMENT REGULATORS
CONDUCTING COMPLIANCE INSPECTIONS;
(E) LIMITS PURCHASES BY ANY INDIVIDUAL IN ANY GIVEN THIRTY DAY PERIOD
TO ONE WEAPON; AND
(F) IMPLEMENTS A SECURITY PLAN FOR SECURING WEAPONS IN TRANSIT.
3. (A) NO ACTION MAY BE COMMENCED PURSUANT TO THIS SECTION BY ANY
PERSON WHO IS INJURED OR KILLED BY THE DISCHARGE OF A WEAPON WHILE SUCH
PERSON IS COMMITTING OR ATTEMPTING TO COMMIT A CRIME (WHETHER OR NOT
SUCH CRIME IS ACTUALLY CHARGED), OR WHILE SUCH PERSON IS ATTEMPTING TO
EVADE ARREST BY A LAW ENFORCEMENT OFFICIAL. THIS EXEMPTION SHALL BE IN
THE NATURE OF AN AFFIRMATIVE DEFENSE, AND SHALL BE PROVEN BY A PREPON-
DERANCE OF THE EVIDENCE.
(B) NO ACTION MAY BE COMMENCED PURSUANT TO THIS SECTION BY ANY PERSON
INJURED OR KILLED BY THE DISCHARGE OF A WEAPON BY A LAW ENFORCEMENT
OFFICIAL.
(C) THIS SECTION SHALL NOT LIMIT IN SCOPE ANY CAUSE OF ACTION, OTHER
THAN THAT PROVIDED BY THIS SECTION, AVAILABLE TO A PERSON INJURED BY OR
KILLED BY A WEAPON.
(D) NOTHING IN THIS SECTION SHALL PREVENT A MANUFACTURER, IMPORTER, OR
DEALER FROM SEEKING WHOLE OR PARTIAL INDEMNITY OR CONTRIBUTION FOR ANY
LIABILITY INCURRED UNDER THIS SECTION FROM ANY THIRD PARTY WHOLLY OR
PARTIALLY RESPONSIBLE FOR THE INJURY OR DEATH.
(E) NO ACTION MAY BE COMMENCED PURSUANT TO THIS SECTION BY ANY PERSON
FOR A SELF-INFLICTED INJURY.
4. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION,
THERE SHALL BE NO BASIS FOR LIABILITY UNDER THIS SECTION IF THE MANUFAC-
TURER PROVES BY A PREPONDERANCE OF THE EVIDENCE THAT:
(A) THE MANUFACTURER DISPOSED OF THE WEAPON TO THE ARMED FORCES OF THE
UNITED STATES, OR A FEDERAL, STATE, OR LOCAL LAW ENFORCEMENT AGENCY; OR
(B) PRIOR TO THE SEIZURE OF THE WEAPON, A LAWFUL POSSESSOR OF THE
WEAPON HAS REPORTED ITS THEFT TO A FEDERAL, STATE, OR LOCAL LAW ENFORCE-
MENT AGENCY.
S 2. This act shall take effect on the ninetieth day after it shall
have become a law.