Senate Bill S7605

2017-2018 Legislative Session

Relates to access to foreign state records concerning previous or present mental illness of applicants for firearms license

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 30, 2018	referred to codes

co-Sponsors

2017-S7605 (ACTIVE) - Details

See Assembly Version of this Bill:: A9978
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §400.00, Pen L
Versions Introduced in Other Legislative Sessions:: 2015-2016: A7463
2019-2020: S2438, A1213

2017-S7605 (ACTIVE) - Summary

Relates to access to foreign state records concerning previous or present mental illness of applicants for firearms licenses.

2017-S7605 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S7605

SPONSOR: KAVANAGH
 
TITLE OF BILL:  An act to amend the penal law, in relation to access
to foreign state records

 
PURPOSE:

Individuals who are domiciled in other states but reside in New York are
able to apply for firearm licenses - but due to confidentiality rules,
New York authorities may be prevented from investigating the mental
illness record of those individuals in their home states. This measure
addresses that flaw by requiring applicants to waive the confidentiality
of their foreign home state mental illness records to the extent a waiv-
er is necessary to permit the New York licensing authority to view those
records.

 
SUMMARY OF SPECIFIC PROVISIONS:

This measure would amend section 400.00(4) of the Penal Law to require
an applicant for a firearms license who is a New York resident but domi-

ciled in a foreign state to exercise a waiver of confidentiality that
would permit law enforcement officials to inquire of the foreign state
about the applicant's mental health records.

 
JUSTIFICATION:

The Court of Appeals recently held that a person can apply for a firearm
license in the county of his or her residence, regardless of the place
of the applicant's domicile (Osterweil v. Bartlett, 21 NY3d 580 (2013)).
The Osterweil decision has exposed a significant flaw in New York's
statutory scheme involving firearms licenses. Currently, before a
firearms license is issued, an investigation must be made of the appli-
cant's history of mental illness. To that end, the licensing statute
provides that "the records of the appropriate office of the department
of mental hygiene concerning previous or present mental illness of the
applicant shall be made available for inspection by the investigating
officer of the police authority" (PL § 400.00(4)).  This provision
adequately ensures that the licensing authority will be aware of the
mental health records of a New York State domiciliary because any such
records are likely to be maintained by an office under the control of
the department of mental hygiene. After Osterweil, however, foreign
state domiciliaries who maintain a New York residence have begun to
apply for firearm's licenses in New York without being subject to
adequate investigation of their home state record of mental illness.
Confidentiality rules prevent New York authorities from investigating
the mental illness record of foreign states. Moreover, it is unlikely
that New York residents who are domiciled elsewhere, many of whom only
have vacation homes and summer camps in New York, will have a mental
illness record in New York. Thus, there is little chance under current
law for a complete investigation of the mental illness history of a
foreign domiciliary.

This measure would close the loophole created by Osterweil by requiring
an investigation of the mental illness records of a foreign state where
the applicant is domiciled in a foreign state. In order to permit such
an investigation, the measure requires such an applicant to execute a
waiver of confidentiality in such form as may be required by their
foreign home state.
 
LEGISLATIVE HISTORY:

2015: A07463 (Kavanagh): Passed Assembly
2016: A07463 (Kavanagh): Passed Assembly

 
FISCAL IMPLICATIONS:

Minimal

 
EFFECTIVE DATE:
This measure shall take effect 90 days after becoming law.

2017-S7605 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7605
 
                             I N  S E N A T E
 
                             January 30, 2018
                                ___________
 
 Introduced  by Sen. KAVANAGH -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the penal law, in relation to access  to  foreign  state
   records
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 4 of  section  400.00  of  the  penal  law,  as
 amended by chapter 1 of the laws of 2013, is amended to read as follows:
   4.  Investigation.  Before a license is issued or renewed, there shall
 be an investigation of all statements required in the application by the
 duly constituted police authorities of the locality where such  applica-
 tion is made, including but not limited to such records as may be acces-
 sible  to  the  division of state police or division of criminal justice
 services pursuant to section 400.02 of this article. For  that  purpose,
 the  records  of  the  appropriate  office  of  the department of mental
 hygiene concerning previous or present mental illness of  the  applicant
 shall  be  available  for inspection by the investigating officer of the
 police authority. WHERE THE APPLICANT IS DOMICILED IN A  FOREIGN  STATE,
 THE INVESTIGATION SHALL INCLUDE INQUIRY OF THE FOREIGN STATE FOR RECORDS
 CONCERNING THE PREVIOUS OR PRESENT MENTAL ILLNESS OF THE APPLICANT, AND,
 TO THE EXTENT NECESSARY FOR INSPECTION BY THE INVESTIGATING OFFICER, THE
 APPLICANT  SHALL  EXECUTE  A WAIVER OF CONFIDENTIALITY OF SUCH RECORD IN
 SUCH FORM AS MAY BE REQUIRED BY THE FOREIGN STATE. In order to ascertain
 any previous criminal record, the investigating officer shall  take  the
 fingerprints  and  physical  descriptive  data  in quadruplicate of each
 individual by whom the application is signed and verified. Two copies of
 such fingerprints shall be taken on  standard  fingerprint  cards  eight
 inches  square,  and  one  copy may be taken on a card supplied for that
 purpose by the federal bureau of investigation; provided, however,  that
 in  the  case  of  a  corporate applicant that has already been issued a
 dealer in firearms license and seeks to operate a firearm dealership  at
 a  second  or subsequent location, the original fingerprints on file may
 be used to ascertain any criminal record in  the  second  or  subsequent
 application  unless any of the corporate officers have changed since the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD14477-01-8

 S. 7605                             2
 
 prior application, in which case the new corporate officer shall  comply
 with  procedures governing an initial application for such license. When
 completed, one standard card shall be forwarded to and retained  by  the
 division  of  criminal  justice services in the executive department, at
 Albany. A search of the files of such division and written  notification
 of  the results of the search to the investigating officer shall be made
 without unnecessary delay. Thereafter, such division  shall  notify  the
 licensing  officer  and  the  executive  department,  division  of state
 police, Albany, of any criminal record of the  applicant  filed  therein
 subsequent  to  the  search of its files. A second standard card, or the
 one supplied by the federal bureau of investigation, as the case may be,
 shall be forwarded to that bureau at Washington with a request that  the
 files  of  the bureau be searched and notification of the results of the
 search be made to the investigating police authority. Of  the  remaining
 two fingerprint cards, one shall be filed with the executive department,
 division  of state police, Albany, within ten days after issuance of the
 license, and the other remain on  file  with  the  investigating  police
 authority.  No  such  fingerprints  may be inspected by any person other
 than a peace officer, who is acting  pursuant  to  his  OR  HER  special
 duties,  or a police officer, except on order of a judge or justice of a
 court of record either upon notice to the licensee or without notice, as
 the judge or justice may deem appropriate. Upon completion of the inves-
 tigation, the police authority shall report the results to the licensing
 officer without unnecessary delay.
   § 2. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.

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Senate Bill S7605

Sponsored By

Archive: Last Bill Status - In Senate Committee Codes Committee

Actions

co-Sponsors

2017-S7605 (ACTIVE) - Details

2017-S7605 (ACTIVE) - Summary

2017-S7605 (ACTIVE) - Sponsor Memo

2017-S7605 (ACTIVE) - Bill Text download pdf

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Sponsored By

Brian Kavanagh

Archive: Last Bill Status - In Senate Committee Codes Committee

Actions

co-Sponsors

Tony Avella

Leroy Comrie

2017-S7605 (ACTIVE) - Details

2017-S7605 (ACTIVE) - Summary

2017-S7605 (ACTIVE) - Sponsor Memo

2017-S7605 (ACTIVE) - Bill Text download pdf

Comments