Relates to licensing of gun dealer employees, recertification of gun licensees and reporting of misdemeanor crimes of domestic violence

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 of 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, 2013, 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.