Assembly Bill A6762B

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6762
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 29, 2021
                                ___________
 
 Introduced  by  M.  of  A. FAHY, ANDERSON, BURDICK, DINOWITZ, SEAWRIGHT,
   SILLITTI, TAYLOR -- read once and referred to the Committee on Econom-
   ic Development
 
 AN ACT to amend the general business law, in relation to the dangers  to
   safety  and  health  and  creation  of a public nuisance caused by the
   sale, manufacturing, distribution, importing and marketing of firearms
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Legislative  findings  and intent. The legislature hereby
 finds that the illegal use of firearms not  only  constitutes  a  public
 nuisance  as  declared  in  article  400  of the penal law, but that the
 effects of such nuisance poses specific harm to New Yorkers based large-
 ly on their zip code and certain immutable characteristics such as  race
 and ethnicity.  Illegal firearm violence has disproportionately affected
 underserved  black  and brown neighborhoods in our cities and throughout
 the state despite stringent state and local  laws  against  the  illegal
 possession of firearms while, according to the Bureau of Alcohol, Tobac-
 co,  Firearms  and Explosives statistics, 74% of firearms used in crimes
 in New York are purchased outside of New  York.  Thus,  the  legislature
 further  finds that given the ease at which legal firearms flow into the
 illegal market, and given the specific  harm  illegal  firearm  violence
 causes  certain New Yorkers, those responsible for the illegal or unrea-
 sonable sale,  manufacture,  distribution,  importing  or  marketing  of
 firearms  may  be  held  liable  for  the public nuisance caused by such
 activities.
   § 2. The general business law is  amended  by  adding  a  new  article
 39-DDDD to read as follows:
                              ARTICLE 39-DDDD
         SALE, MANUFACTURING, IMPORTING AND MARKETING OF FIREARMS
 SECTION 898-A. DEFINITIONS.
         898-B. DANGERS TO SAFETY AND HEALTH.

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

                                                            LBD06691-01-1

 A. 6762                             2
 
         898-C. PUBLIC NUISANCE.
         898-D. ENFORCEMENT.
         898-E. PRIVATE RIGHT OF ACTION.
   §  898-A.  DEFINITIONS.  FOR  PURPOSES  OF THIS ARTICLE, THE FOLLOWING
 TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   1. "DECEPTIVE ACTS OR  PRACTICES"  SHALL  HAVE  THE  SAME  MEANING  AS
 DEFINED IN ARTICLE TWENTY-TWO-A OF THIS CHAPTER.
   2. "FALSE ADVERTISING" SHALL HAVE THE SAME MEANING AS DEFINED IN ARTI-
 CLE TWENTY-TWO-A OF THIS CHAPTER.
   3.  "GUN  INDUSTRY  MEMBER"  SHALL MEAN A PERSON, FIRM, CORPORATION OR
 ASSOCIATION ENGAGED IN THE SALE, MANUFACTURING, DISTRIBUTION,  IMPORTING
 OR MARKETING OF FIREARMS.
   4.  THE TERMS "KNOWINGLY" AND "RECKLESSLY" SHALL HAVE THE SAME MEANING
 AS DEFINED IN SECTION 15.05 OF THE PENAL LAW.
   5. "QUALIFIED PRODUCT" SHALL HAVE THE SAME MEANING AS  DEFINED  IN  15
 U.S.C. SECTION 7903(4).
   §  898-B.  DANGERS  TO  SAFETY  AND HEALTH. NO GUN INDUSTRY MEMBER, BY
 CONDUCT EITHER UNLAWFUL IN ITSELF OR UNREASONABLE UNDER ALL THE  CIRCUM-
 STANCES  SHALL  KNOWINGLY  OR  RECKLESSLY CREATE OR MAINTAIN A CONDITION
 THAT ENDANGERS THE SAFETY OR HEALTH OF  THE  PUBLIC  THROUGH  THE  SALE,
 MANUFACTURING, IMPORTING OR MARKETING OF A QUALIFIED PRODUCT.
   §  898-C.  PUBLIC  NUISANCE.  1.  A VIOLATION OF SECTION EIGHT HUNDRED
 NINETY-EIGHT-B OF THIS ARTICLE THAT RESULTS IN HARM TO THE PUBLIC  SHALL
 HEREBY BE DECLARED TO BE A PUBLIC NUISANCE.
   2.  THE EXISTENCE OF A PUBLIC NUISANCE SHALL NOT DEPEND ON WHETHER THE
 GUN INDUSTRY MEMBER ACTED FOR THE PURPOSE OF CAUSING HARM TO THE PUBLIC.
   3. THE ACTS OR OMISSIONS OF A GUN INDUSTRY MEMBER SHALL  CONSTITUTE  A
 PROXIMATE  CAUSE  OF THE PUBLIC NUISANCE IF THE HARM TO THE PUBLIC WAS A
 REASONABLY FORESEEABLE EFFECT OF SUCH ACTS OR OMISSIONS, NOTWITHSTANDING
 ANY INTERVENING ACTIONS, INCLUDING BUT NOT LIMITED TO  CRIMINAL  ACTIONS
 BY THIRD PARTIES.
   4.  IN  DETERMINING  WHETHER A NUISANCE EXISTS, A FINDER OF FACT SHALL
 CONSIDER THE TOTALITY OF THE EVIDENCE, WHICH MAY  INCLUDE,  BUT  IS  NOT
 LIMITED TO:
   (A) THE DISTRIBUTION, IMPORTATION, MARKETING OR SALES METHODS UTILIZED
 BY  THE  GUN  INDUSTRY MEMBER AND THEIR FORESEEABLE EFFECTS ON CRIMES IN
 NEW YORK;
   (B) THE NUMBER OF QUALIFIED PRODUCTS THAT HAVE BEEN  DIVERTED  TO  THE
 ILLEGAL  MARKET  THROUGH THE ALLEGED ILLEGAL, IRRESPONSIBLE OR UNREASON-
 ABLE CONDUCT OF THE GUN INDUSTRY MEMBER;
   (C) THE NUMBER OF CRIMES THAT HAVE BEEN COMMITTED  IN  NEW  YORK  WITH
 QUALIFIED PRODUCTS SOLD, MANUFACTURED, DISTRIBUTED, IMPORTED OR MARKETED
 BY  THE  GUN  INDUSTRY  MEMBER  IN THE ALLEGED ILLEGAL, IRRESPONSIBLE OR
 UNREASONABLE MANNER;
   (D) THE TOTAL NUMBER OF  QUALIFIED  PRODUCTS  THAT  THE  GUN  INDUSTRY
 MEMBER  MANUFACTURED,  DISTRIBUTED OR SOLD IN THE UNITED STATES, THROUGH
 THE ALLEGED ILLEGAL, IRRESPONSIBLE OR UNREASONABLE CONDUCT,  WHICH  WERE
 RECOVERED IN, OR DESTINED FOR, NEW YORK;
   (E) WHETHER THE ALLEGED ILLEGAL, IRRESPONSIBLE OR UNREASONABLE CONDUCT
 OF  THE  GUN  INDUSTRY MEMBER CONSTITUTES DECEPTIVE ACTS OR PRACTICES IN
 THE CONDUCT OF ANY BUSINESS, TRADE OR COMMERCE OR IN THE  FURNISHING  OF
 ANY SERVICE;
   (F) WHETHER THE ALLEGED ILLEGAL, IRRESPONSIBLE OR UNREASONABLE CONDUCT
 OF  THE GUN INDUSTRY MEMBER CONSTITUTES FALSE ADVERTISING IN THE CONDUCT
 OF ANY BUSINESS, TRADE, OR COMMERCE OR IN THE FURNISHING OF ANY SERVICE;
 AND

 A. 6762                             3
 
   (G) ANY OTHER ILLEGAL, IRRESPONSIBLE OR UNREASONABLE ACTS OR OMISSIONS
 BY THE GUN INDUSTRY MEMBER THAT CREATE, CONTRIBUTE TO OR MAINTAIN PUBLIC
 HARM.
   §  898-D.  ENFORCEMENT. THE PROVISIONS OF THIS ARTICLE MAY BE ENFORCED
 BY THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF THE  STATE  OF  NEW
 YORK,  OR  BY  THE  TOWN  ATTORNEY,  CITY  CORPORATION COUNSEL, OR OTHER
 LAWFULLY DESIGNATED ENFORCEMENT  OFFICER  OF  A  MUNICIPALITY  OR  LOCAL
 GOVERNMENT.
   §  898-E.  PRIVATE  RIGHT  OF ACTION. ANY PERSON, FIRM, CORPORATION OR
 ASSOCIATION THAT HAS BEEN DAMAGED AS A RESULT OF A GUN INDUSTRY MEMBER'S
 ACTS OR OMISSIONS IN VIOLATION OF THIS  ARTICLE  SHALL  BE  ENTITLED  TO
 BRING AN ACTION FOR RECOVERY OF DAMAGES OR TO ENFORCE THIS ARTICLE.
   § 3. This act shall take effect immediately.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6762--A
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 29, 2021
                                ___________
 
 Introduced  by  M.  of  A. FAHY, ANDERSON, BURDICK, DINOWITZ, SEAWRIGHT,
   SILLITTI, TAYLOR, L. ROSENTHAL  --  read  once  and  referred  to  the
   Committee  on  Economic  Development  --  committee  discharged,  bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee

 AN  ACT to amend the general business law, in relation to the dangers to
   safety and health and creation of a  public  nuisance  caused  by  the
   sale, manufacturing, distribution, importing and marketing of firearms
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Legislative findings and  intent.  The  legislature  hereby
 finds  that  the  illegal  use of firearms not only constitutes a public
 nuisance as declared in article 400 of  the  penal  law,  but  that  the
 effects  of  such nuisance contribute to the public health crisis of gun
 violence in this state as declared by the legislature in  the  2021-2022
 legislative  session.  This  nuisance poses specific harm to New Yorkers
 based largely on their zip code and  certain  immutable  characteristics
 such as race and ethnicity.  Illegal firearm violence has disproportion-
 ately  affected  underserved black and brown neighborhoods in our cities
 and throughout the state despite stringent state and local laws  against
 the  illegal  possession  of  firearms while, according to the Bureau of
 Alcohol, Tobacco, Firearms and Explosives statistics,  74%  of  firearms
 used  in crimes in New York are purchased outside of New York. Thus, the
 legislature further finds that given the ease at  which  legal  firearms
 flow  into  the  illegal  market,  and  given  the specific harm illegal
 firearm violence causes certain New Yorkers, those responsible  for  the
 illegal  or  unreasonable  sale, manufacture, distribution, importing or
 marketing of firearms may be held liable for the public nuisance  caused
 by  such  activities.    Additionally,  many New Yorkers, including many
 children, are gravely injured  or  killed  unintentionally  due  to  the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06691-03-1
              

 A. 6762--A                          2
 
 firearm  industry's  failure to implement reasonable safety measures and
 the legislature finds that this failure also warrants liability.
   §  2.  The  general  business  law  is amended by adding a new article
 39-DDDD to read as follows:
                              ARTICLE 39-DDDD
         SALE, MANUFACTURING, IMPORTING AND MARKETING OF FIREARMS
 SECTION 898-A. DEFINITIONS.
         898-B. PROHIBITED ACTIVITIES.
         898-C. PUBLIC NUISANCE.
         898-D. ENFORCEMENT.
         898-E. PRIVATE RIGHT OF ACTION.
   § 898-A. DEFINITIONS. FOR PURPOSES  OF  THIS  ARTICLE,  THE  FOLLOWING
 TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   1.  "DECEPTIVE  ACTS  OR  PRACTICES"  SHALL  HAVE  THE SAME MEANING AS
 DEFINED IN ARTICLE TWENTY-TWO-A OF THIS CHAPTER.
   2.   "REASONABLE CONTROLS AND PROCEDURES"  SHALL  MEAN  POLICIES  THAT
 INCLUDE,  BUT  ARE  NOT LIMITED TO: (A) INSTITUTING SCREENING, SECURITY,
 INVENTORY AND OTHER BUSINESS PRACTICES TO PREVENT  THEFTS  OF  QUALIFIED
 PRODUCTS  AS  WELL  AS  SALES OF QUALIFIED PRODUCTS TO STRAW PURCHASERS,
 TRAFFICKERS, PERSONS PROHIBITED FROM POSSESSING FIREARMS UNDER STATE  OR
 FEDERAL  LAW,  OR  PERSONS AT RISK OF INJURING THEMSELVES OR OTHERS; AND
 (B) PREVENTING DECEPTIVE ACTS AND PRACTICES AND  FALSE  ADVERTISING  AND
 OTHERWISE   ENSURING   COMPLIANCE   WITH   ALL   PROVISIONS  OF  ARTICLE
 TWENTY-TWO-A OF THIS CHAPTER.
   3. "FALSE ADVERTISING" SHALL HAVE THE SAME MEANING AS DEFINED IN ARTI-
 CLE TWENTY-TWO-A OF THIS CHAPTER.
   4. "GUN INDUSTRY MEMBER"  SHALL  MEAN  A  PERSON,  FIRM,  CORPORATION,
 COMPANY,  PARTNERSHIP,  SOCIETY, JOINT STOCK COMPANY OR ANY OTHER ENTITY
 OR ASSOCIATION ENGAGED IN THE SALE, MANUFACTURING, DISTRIBUTION, IMPORT-
 ING OR MARKETING OF  FIREARMS,  AMMUNITION,  AMMUNITION  MAGAZINES,  AND
 FIREARMS ACCESSORIES.
   5.  THE TERMS "KNOWINGLY" AND "RECKLESSLY" SHALL HAVE THE SAME MEANING
 AS DEFINED IN SECTION 15.05 OF THE PENAL LAW.
   6. "QUALIFIED PRODUCT" SHALL HAVE THE SAME MEANING AS  DEFINED  IN  15
 U.S.C. SECTION 7903(4).
   §  898-B. PROHIBITED ACTIVITIES. 1. NO GUN INDUSTRY MEMBER, BY CONDUCT
 EITHER UNLAWFUL IN ITSELF OR UNREASONABLE UNDER  ALL  THE  CIRCUMSTANCES
 SHALL KNOWINGLY OR RECKLESSLY CREATE, MAINTAIN OR CONTRIBUTE TO A CONDI-
 TION IN NEW YORK STATE THAT ENDANGERS THE SAFETY OR HEALTH OF THE PUBLIC
 THROUGH  THE  SALE, MANUFACTURING, IMPORTING OR MARKETING OF A QUALIFIED
 PRODUCT.
   2. ALL GUN INDUSTRY MEMBERS WHO, EITHER DIRECTLY OR INDIRECTLY,  MANU-
 FACTURE,  MARKET,  IMPORT OR OFFER FOR SALE ANY QUALIFIED PRODUCT IN NEW
 YORK STATE SHALL ESTABLISH AND UTILIZE REASONABLE  CONTROLS  AND  PROCE-
 DURES  TO  PREVENT  ITS  QUALIFIED  PRODUCTS FROM BEING POSSESSED, USED,
 MARKETED OR SOLD UNLAWFULLY IN NEW YORK STATE.  ALL  SUCH  GUN  INDUSTRY
 MEMBERS  SHALL ALSO REQUIRE DOWNSTREAM DISTRIBUTORS AND RETAILERS OF ITS
 QUALIFIED PRODUCTS TO INSTITUTE REASONABLE CONTROLS AND  PROCEDURES  AND
 TAKE REASONABLE STEPS TO ENSURE THEIR IMPLEMENTATION.
   §  898-C. PUBLIC NUISANCE. 1. A VIOLATION OF SUBDIVISION ONE OR TWO OF
 SECTION EIGHT HUNDRED NINETY-EIGHT-B OF THIS  ARTICLE  THAT  RESULTS  IN
 HARM TO THE PUBLIC SHALL HEREBY BE DECLARED TO BE A PUBLIC NUISANCE.
   2.  THE EXISTENCE OF A PUBLIC NUISANCE SHALL NOT DEPEND ON WHETHER THE
 GUN INDUSTRY MEMBER ACTED FOR THE PURPOSE OF CAUSING HARM TO THE PUBLIC.
   3. THE ACTS OR OMISSIONS OF A GUN INDUSTRY MEMBER SHALL  CONSTITUTE  A
 PROXIMATE  CAUSE  OF THE PUBLIC NUISANCE IF THE HARM TO THE PUBLIC WAS A

 A. 6762--A                          3
 
 REASONABLY FORESEEABLE EFFECT OF SUCH ACTS OR OMISSIONS, NOTWITHSTANDING
 ANY INTERVENING ACTIONS, INCLUDING BUT NOT LIMITED TO  CRIMINAL  ACTIONS
 BY THIRD PARTIES.
   §  898-D.  ENFORCEMENT.    WHENEVER THERE SHALL BE A VIOLATION OF THIS
 ARTICLE, THE ATTORNEY GENERAL, IN THE NAME OF THE PEOPLE OF THE STATE OF
 NEW YORK, OR THE TOWN  ATTORNEY,  CITY  CORPORATION  COUNSEL,  OR  OTHER
 LAWFULLY  DESIGNATED  ENFORCEMENT  OFFICER  OF  A  MUNICIPALITY OR LOCAL
 GOVERNMENT, ON BEHALF OF THE LOCALITY, MAY BRING AN ACTION IN A COURT OF
 COMPETENT JURISDICTION TO ENJOIN AND RESTRAIN  SUCH  VIOLATIONS  AND  TO
 OBTAIN RESTITUTION AND DAMAGES.
   §  898-E.  PRIVATE  RIGHT  OF ACTION. ANY PERSON, FIRM, CORPORATION OR
 ASSOCIATION THAT HAS BEEN DAMAGED AS A RESULT OF A GUN INDUSTRY MEMBER'S
 ACTS OR OMISSIONS IN VIOLATION OF THIS  ARTICLE  SHALL  BE  ENTITLED  TO
 BRING AN ACTION FOR RECOVERY OF DAMAGES OR TO ENFORCE THIS ARTICLE.
   §  3.  Severability clause. If any clause, sentence, paragraph, subdi-
 vision, section or part of this act shall be adjudged by  any  court  of
 competent  jurisdiction  to  be invalid, such judgment shall not affect,
 impair, or invalidate the remainder thereof, but shall  be  confined  in
 its  operation  to the clause, sentence, paragraph, subdivision, section
 or part thereof directly involved in the controversy in which such judg-
 ment shall have been rendered. It is hereby declared to be the intent of
 the legislature that this act would  have  been  enacted  even  if  such
 invalid provisions had not been included herein.
   § 4. This act shall take effect immediately.