Senate Bill S4429

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4429
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 8, 2023
                                ___________
 
 Introduced by Sen. FERNANDEZ -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN  ACT to amend the general business law and the civil practice law and
   rules, in relation to establishing  a  private  cause  of  action  for
   certain violations regarding semiautomatic rifles

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The general business law is amended by adding a new article
 39-DDDDD to read as follows:
                             ARTICLE 39-DDDDD
                           SEMIAUTOMATIC RIFLES
 SECTION 898-J. DEFINITION.
         898-K. PROHIBITIONS.
         898-L. ENFORCEMENT.
         898-M. PRIVATE CAUSE OF ACTION.
         898-N. DEFENSES.
   § 898-J. DEFINITION. AS USED IN THIS  ARTICLE,  "SEMIAUTOMATIC  RIFLE"
 MEANS  ANY  REPEATING  RIFLE WHICH UTILIZES A PORTION OF THE ENERGY OF A
 FIRING CARTRIDGE OR SHELL TO EXTRACT THE FIRED CARTRIDGE CASE  OR  SPENT
 SHELL  AND CHAMBER THE NEXT ROUND, AND WHICH REQUIRES A SEPARATE PULL OF
 THE TRIGGER TO FIRE EACH CARTRIDGE OR SHELL.
   § 898-K. PROHIBITIONS. 1. NOTWITHSTANDING ANY PROVISION OF LAW TO  THE
 CONTRARY,  NO  PERSON  WITHIN THE STATE SHALL MANUFACTURE OR CAUSE TO BE
 MANUFACTURED, DISTRIBUTE, TRANSPORT, OR IMPORT INTO THE STATE, OR  CAUSE
 TO  BE  DISTRIBUTED,  TRANSPORTED,  OR IMPORTED INTO THE STATE, KEEP FOR
 SALE, OFFER OR EXPOSE FOR SALE, OR GIVE OR LEND, A SEMIAUTOMATIC  RIFLE,
 EXCEPT AS PROVIDED IN SUBDIVISION FOUR OF THIS SECTION.
   2.  THE  PROHIBITIONS  DESCRIBED  IN  SUBDIVISION  ONE OF THIS SECTION
 APPLIES WHETHER OR NOT THE SEMIAUTOMATIC RIFLE IS MISUSED OR IS INTENDED
 TO BE MISUSED IN A CRIMINAL OR UNLAWFUL MANNER.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD08838-01-3
 S. 4429                             2
              

 
   3. EACH INSTANCE OF CARRYING, DISTRIBUTING, OR  SELLING  A  PARTICULAR
 SEMIAUTOMATIC  RIFLE,  OR AIDING AND ABETTING THEREOF, SHALL BE AN INDE-
 PENDENT, FREE-STANDING VIOLATION OF THIS SECTION.
   4.  SUBDIVISION  ONE  OF  THIS SECTION DOES NOT APPLY TO THE SALE OF A
 SEMIAUTOMATIC RIFLE TO, OR THE PURCHASE, TRANSPORT, IMPORTATION, SALE OR
 OTHER TRANSFER, OR MANUFACTURE OF, A SEMIAUTOMATIC  RIFLE  BY,  ANY  LAW
 ENFORCEMENT  AGENCY,  PUBLIC  ENTITY THAT EMPLOYS PEACE OFFICERS, OR ANY
 AUTHORIZED LAW ENFORCEMENT REPRESENTATIVE THEREOF,  IF  THAT  PERSON  OR
 ENTITY  IS  NOT PROHIBITED BY LAW FROM POSSESSING A SEMIAUTOMATIC RIFLE,
 INCLUDING, WITHOUT LIMITATION, ANY STATE OR LOCAL LAW ENFORCEMENT  AGEN-
 CY, THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, THE DEPART-
 MENT OF CORRECTIONS OF ANY MUNICIPALITY, THE MILITARY OR NAVAL FORCES OF
 THIS STATE OR OF THE UNITED STATES, A LAW ENFORCEMENT OR MILITARY AGENCY
 OF  ANOTHER  STATE,  ANY  FEDERAL LAW ENFORCEMENT AGENCY, OR ANY FOREIGN
 GOVERNMENT OR AGENCY APPROVED BY THE UNITED STATES DEPARTMENT OF  STATE,
 FOR USE IN THE DISCHARGE OF THE OFFICIAL DUTIES OF SUCH ENTITIES.
   5.  THIS  LAW  IS  INTENDED  TO BE REMEDIAL, AND THEREFORE IT SHALL BE
 RETROACTIVE.
   § 898-L. ENFORCEMENT. NOTWITHSTANDING ANY  PROVISION  OF  LAW  TO  THE
 CONTRARY, THE REQUIREMENTS OF THIS ARTICLE SHALL BE ENFORCED EXCLUSIVELY
 THROUGH  THE  PRIVATE  CIVIL  ACTIONS DESCRIBED IN SECTION EIGHT HUNDRED
 NINETY-EIGHT-M OF THIS ARTICLE. NO ENFORCEMENT OF THIS  ARTICLE  MAY  BE
 TAKEN  OR  THREATENED BY THE STATE, A POLITICAL SUBDIVISION, A DISTRICT,
 COUNTY OR CITY ATTORNEY, OR AN EXECUTIVE OR  ADMINISTRATIVE  OFFICER  OR
 EMPLOYEE  OF  THE  STATE  OR A POLITICAL SUBDIVISION AGAINST ANY PERSON,
 EXCEPT AS PROVIDED IN SECTION EIGHT HUNDRED NINETY-EIGHT-M OF THIS ARTI-
 CLE.
   § 898-M. PRIVATE CAUSE OF ACTION. 1. ANY PERSON, OTHER THAN AN OFFICER
 OR EMPLOYEE OF A STATE OR LOCAL GOVERNMENTAL ENTITY IN THE STATE,  SHALL
 HAVE  A  PRIVATE  CAUSE OF ACTION AGAINST ANY PERSON WHO DOES ANY OF THE
 FOLLOWING:
   (A) KNOWINGLY VIOLATES SECTION EIGHT HUNDRED  NINETY-EIGHT-K  OF  THIS
 ARTICLE.
   (B)  KNOWINGLY  ENGAGES  IN  CONDUCT THAT AIDS OR ABETS A VIOLATION OF
 SECTION EIGHT HUNDRED NINETY-EIGHT-K  OF  THIS  ARTICLE,  REGARDLESS  OF
 WHETHER  THE  PERSON  KNEW OR SHOULD HAVE KNOWN THAT THE PERSON AIDED OR
 ABETTED WOULD BE VIOLATING SUCH SECTION.
   (C) KNOWINGLY COMMITS AN ACT WITH THE INTENT TO ENGAGE IN THE  CONDUCT
 DESCRIBED BY PARAGRAPH (A) OR (B) OF THIS SUBDIVISION.
   2.  AN  ACTION PURSUANT TO THIS SECTION SHALL NOT BE BROUGHT AGAINST A
 FEDERAL GOVERNMENT, STATE, POLITICAL SUBDIVISION, OR AN  EMPLOYEE  OF  A
 FEDERAL GOVERNMENT, STATE, OR POLITICAL SUBDIVISION ON THE BASIS OF ACTS
 OR OMISSIONS IN THE COURSE OF DISCHARGE OF OFFICIAL DUTIES.
   3.  ALL ACTIONS BROUGHT UNDER THIS SECTION SHALL NOT BE SUBJECT TO THE
 SPECIAL PROCEDURAL AND SUBSTANTIVE REQUIREMENTS DESCRIBED IN SUBDIVISION
 (G) OF RULE THIRTY-TWO HUNDRED ELEVEN OR SUBDIVISION (H) OF  RULE  THIR-
 TY-TWO  HUNDRED  TWELVE OF THE CIVIL PRACTICE LAW AND RULES, OR SECTIONS
 SEVENTY-A AND SEVENTY-SIX-A OF THE CIVIL RIGHTS LAW.
   4. FILING FEES AND MOTION FEES SHALL BE WAIVED IN ALL COURTS  OF  THIS
 STATE FOR ANY PERSON OR PERSONS AFFIRMATIVELY BRINGING CLAIMS UNDER THIS
 SECTION.
   5. ANY PERSON DEFENDING AN ACTION UNDER THIS SECTION SHALL BE REQUIRED
 TO PAY TRIPLE THE APPLICABLE ORDINARY FILING AND MOTION FEES.
   6. IF A CLAIMANT PREVAILS IN AN ACTION BROUGHT UNDER THIS SECTION, THE
 COURT SHALL AWARD ALL OF THE FOLLOWING:
 S. 4429                             3
 
   (A) INJUNCTIVE RELIEF SUFFICIENT TO PREVENT THE DEFENDANT FROM VIOLAT-
 ING THIS ARTICLE OR ENGAGING IN ACTS THAT AID OR ABET VIOLATIONS OF THIS
 ARTICLE.
   (B)  STATUTORY  DAMAGES  IN  AN  AMOUNT  OF NOT LESS THAN TEN THOUSAND
 DOLLARS FOR EACH SEPARATE  VIOLATION  OF  THIS  ARTICLE,  AND  FOR  EACH
 VIOLATION  OF  THIS ARTICLE TO WHICH THE DEFENDANT AIDED OR ABETTED SUCH
 VIOLATION.
   (C) ATTORNEYS' FEES AND COSTS, INCLUDING FEES UPON FEES, AT THE  HIGH-
 EST FORUM RATES AVAILABLE IN THE STATE.
   7.  NOTWITHSTANDING SUBDIVISION SIX OF THIS SECTION, A COURT SHALL NOT
 AWARD RELIEF UNDER THIS SECTION IN RESPONSE TO A VIOLATION OF THIS ARTI-
 CLE IF THE DEFENDANT DEMONSTRATES THAT SUCH  DEFENDANT  PREVIOUSLY  PAID
 THE  FULL  AMOUNT  OF  ANY  MONETARY AWARD UNDER SUBDIVISION SIX OF THIS
 SECTION IN A PREVIOUS ACTION FOR EACH VIOLATION OF THIS ARTICLE, OR  FOR
 EACH  VIOLATION  OF THIS ARTICLE TO WHICH THE DEFENDANT AIDED OR ABETTED
 SUCH VIOLATION.
   8. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, NONE OF
 THE FOLLOWING IS A DEFENSE TO AN ACTION BROUGHT UNDER THIS SECTION:
   (A) A DEFENDANT'S IGNORANCE OR MISTAKE OF LAW.
   (B) A DEFENDANT'S BELIEF THAT THE REQUIREMENTS  OF  THIS  ARTICLE  ARE
 UNCONSTITUTIONAL OR WERE UNCONSTITUTIONAL.
   (C)  A  DEFENDANT'S RELIANCE ON ANY COURT DECISION THAT HAS BEEN OVER-
 RULED ON APPEAL OR BY A SUBSEQUENT COURT, EVEN IF  THAT  COURT  DECISION
 HAD  NOT  BEEN  OVERRULED  WHEN  THE  DEFENDANT  ENGAGED IN CONDUCT THAT
 VIOLATES THIS ARTICLE.
   (D) A DEFENDANT'S RELIANCE ON ANY STATE OR FEDERAL COURT DECISION THAT
 IS NOT BINDING ON THE COURT IN WHICH THE ACTION HAS BEEN BROUGHT.
   (E) NONMUTUAL ISSUE PRECLUSION OR NONMUTUAL CLAIM PRECLUSION.
   (F) ANY CLAIM THAT THE ENFORCEMENT OF THIS ARTICLE OR  THE  IMPOSITION
 OF  CIVIL  LIABILITY AGAINST THE DEFENDANT WILL VIOLATE A CONSTITUTIONAL
 RIGHT OF A THIRD-PARTY.
   9. NOTWITHSTANDING ANY OTHER PROVISION OF LAW  TO  THE  CONTRARY,  THE
 STATE,  A  STATE OFFICIAL, OR A DISTRICT, COUNTY, OR CITY ATTORNEY SHALL
 NOT INTERVENE IN AN ACTION BROUGHT UNDER  THIS  SECTION.  HOWEVER,  THIS
 SUBDIVISION  DOES  NOT  PROHIBIT  A PERSON DESCRIBED BY THIS SUBDIVISION
 FROM FILING AN AMICUS CURIAE BRIEF IN THE ACTION.
   § 898-N. DEFENSES. 1. A DEFENDANT AGAINST WHOM AN  ACTION  IS  BROUGHT
 UNDER SECTION EIGHT HUNDRED NINETY-EIGHT-M OF THIS ARTICLE DOES NOT HAVE
 STANDING  TO  ASSERT  THE  RIGHT  TO KEEP AND BEAR ARMS UNDER THE SECOND
 AMENDMENT TO THE UNITED STATES CONSTITUTION AS A  DEFENSE  TO  LIABILITY
 UNDER SUCH SECTION UNLESS EITHER OF THE FOLLOWING IS TRUE:
   (A)  THE  UNITED  STATES  SUPREME  COURT HOLDS THAT THE COURTS OF THIS
 STATE MUST CONFER STANDING ON THAT DEFENDANT TO ASSERT  THE  THIRD-PARTY
 RIGHTS  OF  OTHER  INDIVIDUALS  IN  STATE  COURT  AS A MATTER OF FEDERAL
 CONSTITUTIONAL LAW; OR
   (B) THE DEFENDANT HAS STANDING TO ASSERT THE RIGHTS OF OTHER  INDIVID-
 UALS  UNDER THE TESTS FOR THIRD-PARTY STANDING ESTABLISHED BY THE UNITED
 STATES SUPREME COURT.
   2. A DEFENDANT IN AN ACTION BROUGHT UNDER SECTION 3 MAY ONLY ASSERT AN
 AFFIRMATIVE DEFENSE TO LIABILITY UNDER THIS SECTION IF:
   (A) A PERSON SUED UNDER PARAGRAPH (A) OF SUBDIVISION  ONE  OF  SECTION
 EIGHT  HUNDRED NINETY-EIGHT-M OF THIS ARTICLE REASONABLY BELIEVED, AFTER
 CONDUCTING A REASONABLE INVESTIGATION, THAT THE PERSON AIDED OR  ABETTED
 WAS COMPLYING WITH THIS ARTICLE.
   (B)  A  PERSON  SUED UNDER PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION
 EIGHT HUNDRED NINETY-EIGHT-M OF THIS ARTICLE REASONABLY BELIEVED,  AFTER
 S. 4429                             4
 
 CONDUCTING  A  REASONABLE  INVESTIGATION,  THAT THE PERSON WAS COMPLYING
 WITH THIS ARTICLE OR WAS AIDING OR ABETTING ANOTHER  WHO  WAS  COMPLYING
 WITH THIS ARTICLE.
   §  2.  Section  213  of the civil practice law and rules is amended by
 adding a new subdivision 10 to read as follows:
   10. AN ACTION PURSUANT TO SECTION EIGHT HUNDRED NINETY-EIGHT-M OF  THE
 GENERAL BUSINESS LAW; THE TIME WITHIN WHICH THE ACTION MUST BE COMMENCED
 SHALL  BE  THE  GREATER  OF  SIX YEARS FROM THE DATE THE CAUSE OF ACTION
 ACCRUED OR FIVE YEARS FROM THE TIME THE PLAINTIFF OR  THE  PERSON  UNDER
 WHOM  THE PLAINTIFF CLAIMS DISCOVERED THE CAUSE OF ACTION, OR COULD WITH
 REASONABLE DILIGENCE HAVE DISCOVERED IT.
   § 3. Severability. If any clause, sentence, paragraph, section or part
 of this act shall be adjudged by any court of competent jurisdiction  to
 be  invalid  and  after  exhaustion  of all further judicial review, the
 judgment shall not affect, impair or invalidate the  remainder  thereof,
 but  shall  be  confined in its operation to the clause, sentence, para-
 graph, section or part of this act directly involved in the  controversy
 in which the judgment shall have been rendered.
   §  4.  This  act shall take effect on the thirtieth day after it shall
 have become a law.