BILL NUMBER:  S5917

 TITLE OF BILL :

An act to amend the general business law, the penal law and the
judiciary law, in relation to licensing of gun dealer employees,
recertification of gun licensees and reporting of misdemeanor crimes
of domestic violence


 PURPOSE OF THE BILL :

This bill would enhance New York's ability to ensure that individuals
in possession of firearms licenses and who sell guns at gun stores are
legally entitled to possess these weapons. The bill would require
that: (1) employees of gunsmiths and gun dealers undergo a National
Instant Criminal Background Check System (NICS) check; (2) any person
holding a New York firearm, gunsmith or firearm dealer license undergo
a NICS check every three or five years; and (3) the administrator of
the courts establish a procedure for transmission of information about
persons convicted of misdemeanor crimes of domestic violence to the
NICS index. In order to help prevent thefts of weapons, it also would
remove the street addresses of firearm licensees from the category of
public records.

 SUMMARY OF PROVISIONS :
              

Section 1 of the bill would re-number the existing Article 40 of the
General Business Law and add a new Article 40 entitled "Employees of
Gunsmiths and Dealers in Firearms, Rifles and Shotguns." Under this
article, it would be unlawful for a gun dealer - defined as a person
or entity licensed as a dealer in firearms under Penal Law § 400 or
pursuant to 18 U.S.C. § 923 - to employ a person who would in any way
handle firearms, rifles or shotguns, unless the dealer had conducted a
NICS check which demonstrated that the employee's possession of such
weapons would not violate federal law. Upon receipt of a favorable
NICS result, the dealer would complete and file a certificate of
employment with the State Police, and retain a copy of the certificate
on the dealer's premises. A dealer who employed someone without
obtaining a favorable NICS check would be guilty of a misdemeanor.

Section 2 of the bill would add a new Penal Law § 400.00(10-a) to
require that any person holding a license issued pursuant to section
400.00 must be "recertified" by the licensing official upon renewal of
the license or every five years, by having a NICS check conducted
which demonstrates that possession of a firearm by the licensee would
not violate federal law. Licensing officials would have until December
1, 2014 to conduct these checks on all persons who hold licenses on
the effective date of this act, pursuant to a schedule promulgated by
the Superintendent of State police, who would also have the authority
to promulgate rules to effectuate the implementation of this new
requirement.

Section 3 of the bill would require the Administrator of the Courts to
adopt rules to provide a procedure for transmission of information
about persons convicted of misdemeanor crimes of domestic violence to
the NICS index.

Section 4 of the bill would remove a provision that makes the address
of a gun licensee a public record.

Section 5 of the bill contains the effective date.

 EXISTING LAW :


The NICS index contains records concerning convictions, mental health
adjudications and other events that may disqualify a person from
purchasing a firearm, which under federal law is broadly defined to
include any type of weapon which will, is designed to, or may be
converted to expel a projectile by the action of an explosive.
Federal Firearms Licensees (FFLs) must check the NICS index before
transferring a firearm to a customer.

Under Chapter 491 of the laws of 2008, the Offices of Mental Health
(OMH) and Mental Retardation and Developmental Disabilities (OMRDD)
are authorized to transmit records of mental health disqualifying
events, such as involuntary commitments, to NICS. Since the effective
date of this legislation, OMH has transmitted to NICS approximately
150,000 records involving involuntary commitments of approximately
75,000 people to OMH facilities between 1989 and March 31, 2009.

Possession of a pistol or revolver is generally illegal in New York
unless the person has obtained a license under Penal Law § 400.00.
Except in Westchester, Nassau and Suffolk Counties, and in New York
City, licensing officials issue permanent licenses that remain valid
until revoked, Licenses must be renewed every five years in
Westchester, Nassau and Suffolk Counties, and every three years in New
York City.  Gunsmiths and dealers in firearms also must obtain
licenses, which must be renewed every three years.

A licensee's conviction of a felony or other serious offense operates
as a revocation of the license. The Division of Criminal Justice
Services (DCJS) alerts a licensing official when it receives
notification from a police agency or court that a licensee has been
fingerprinted for a criminal offense in New York State.

Under Penal Law § 400.00(5), the names and addresses of gun licensees
are public records.

 STATEMENT IN SUPPORT :

1. Use of NICS to Ensure that Licenses Issued to Persons Disqualified
from Possessing Handguns under Federal Law are Revoked.

In New York State, there are over 940,000 active pistol and revolver
licenses on file with the Division of State Police (DSP), not
including licenses issued by New York City. Except in those few
counties in which licenses are issued only for limited terms and must
be periodically renewed, there is no existing statutory mechanism for
a licensing official to know whether a holder of a license has become
disqualified from possessing a weapon as a result of a mental health
commitment or an out-of-state conviction. Moreover, some of the active
licenses in the DSP database were issued as "permanent" licenses as
early as 1936, and it is reasonable to assume that a number of the
license holders are no longer alive.

This bill would help to address these issues in a manner that will not
unduly burden law-abiding gun owners or local licensing officials, by
requiring gun licensees to have their licenses "recertified" every
five years by a NICS check. This approach is advantageous for several
reasons. First, it would not change existing law that permits
licensing officials in most jurisdictions to issue permanent licenses,
nor would it make existing permanent licenses subject to expiration.
Instead, it would allow a permanent license to remain valid unless a
NICS check demonstrates that the licensee's continued possession of a
pistol or revolver would violate federal law.

Second, a NICS check, rather than a full background check, can be
accomplished promptly and without imposing an undue burden on local
licensing officials. Indeed, in the vast majority of cases, it is
expected that the NICS check will be "clean," and the licensing
official will merely have to report that fact to DSP. In cases in
which the NICS check reveals a disqualification, the licensing
official will have to determine whether the NICS information is
accurate and may have to revoke a license and notify DSP of the
revocation, just as he or she is currently required to do when
notified that the license holder has been convicted of a felony
offense. The limited burden imposed by this process is greatly
outweighed by the benefits to public safety.

Third, under this bill, localities will have the ability to offset any
expense created by this legislation. The bill authorizes a county to
impose a small fee on licensees of no more than $20.00, to help defray
any new costs that may result from the recertification process. In
addition, licensing officials will have five years to complete
recertifications for existing license holders, pursuant to a schedule
promulgated by the Superintendent of State Police.

Fourth, a NICS check - rather than a more burdensome full background
check will be sufficient in the vast majority of cases to identify
licensees whose possession of a handgun is not longer lawful. The NICS
index has been significantly enhanced by the addition of over 150,000
disqualifying mental health records, and would be further enhanced by
provisions of this bill that will result in information being included
in the index concerning convictions for misdemeanor crimes of domestic
violence. A NICS check every five years will ensure that the official
is notified of two events that may affect the licensee's continued
eligibility to possess a handgun: (a) an involuntary commitment to a
mental health facility; and (b) a conviction, in any state, of a
disqualifying offense that has been reported to the NICS index.

Finally, an additional benefit of the NICS recertification process is
that it will allow county clerks and DSP to update their records of
active gun licensees. Any licensee who does not obtain a five-year
recertification will have his or her license revoked. This will purge
the existing state and local license databases of deceased gun
licensees, and provide a means by which law enforcement officials can
begin to investigate the whereabouts of any handguns that are
unaccounted for.

2.. Requiring NICS Checks for Gun Dealer Employees

The NICS index also can provide a valuable tool to enhance the safety
of gun dealerships. The majority of gun dealerships in New York are
run safely and responsibly.  Nonetheless, criminals seeking to obtain
weapons illegally will continue to fuel an underground market for
illegal weapons, some of which may be obtained through thefts of guns
from licensed gun dealers.

New York can take the simple step of requiring that employees who
handle, possess and sell handguns and rifles at a gun shop have a NICS
check in order to ensure that felons and others who are disqualified
from possessing weapons do not have access to these guns. Under the
bill, a state-licensed firearm dealer or a FFL would be required to
run a NICS background check on a prospective employee. The dealer
would be required to complete a certificate 0 f employment that
records the favorable result of that check, and to tile a copy of the
certificate with the DSP. Failure to comply with the statute, or
employing a person who did not pass the NICS check would be a
misdemeanor.

This system would help to fill a gap in existing law. Under current
law, a person who is disqualified from personally purchasing or
possessing these weapons nonetheless may handle, possess and sell them
as an employee of a gun dealer. Indeed, Wal-Mart, the nation's largest
gun dealer, recently voluntarily agreed to conduct background checks

on its employees who handle guns. This bill would remove this loophole
for all gun dealers.

3. Reporting Misdemeanor Crimes of Domestic Violence to the NICS index

New York can take another step to enhance its reporting of
disqualifying information to the NICS index. Under federal law, it is
illegal to sell a firearm to any person who has been convicted of a
misdemeanor crime of domestic violence. 18 U.S.C.  § 922(d)(9).
Pursuant to 18 U.S.C. § 921(33), a misdemeanor crime of domestic
violence includes any state law misdemeanor offense that has as an
element "the use or attempted use of physical force, or the threatened
use of a deadly weapon committed by a current or former spouse, parent
or guardian of the victim, by a person with whom the victim shares a
child in common, by a person who is cohabitating with or has
cohabitated with the victim as a spouse, parent, or guardian, or by a
person similarly situated to a spouse, parent, or guardian of the
victim."

In New York, there is no statute defining a misdemeanor offense that
includes both the "force" and "relationship" elements contained in the
federal definition. As a result, there is currently no meaningful way
for the State to identify particular convictions that meet the federal
definition and transmit that information to NICS.

This bill would require the Administrator of the Courts to develop
such a mechanism, which could include sending the conviction
information directly to NICS or to DCJS. Because there are only a
limited number of misdemeanor crimes that contain the required "force"
element, and only certain types of relationships that satisfy the
federal definition, judges should have no great difficulty identifying
reportable convictions at the time of sentencing, so that they could
be transmitted for inclusion in NICS.

4. Address Confidentiality

Finally, county and law enforcement officials have raised concerns
about Penal Law § 400.00(5), which now provides that names and
addresses of license holders are . public records. Making information
public about where would-be thieves could find firearms to steal, or
which houses they could safely target because no licensee resides at
that address, is inconsistent with public safety.

Under this bill, names of licensees would remain public records, but
their addresses would not. As a result, and as with other law
enforcement records, a licensee's address would only become public if
it did not fall within one of the exclusions set forth in Public
Officers Law § 87(2).

 BUDGET IMPLICATIONS :

This bill would have no State fiscal impact. Any costs to counties as
a result of requiring NICS checks for gun licensees would be offset by
their ability to charge a nominal fee to licensees.

 EFFECTIVE DATE :
This bill would take effect on November 1, 2009, except that the
requirement that gun dealers conduct NICS checks of their employees
would not become effective until 60 days after the Superintendent of
State Police approved a form for a certificate of employment to be
completed and filed by gun dealers.