Bill S895A-2011

Enacts the "children's weapon accident prevention act"

Enacts the "children's weapon accident prevention act"; creates crimes of failure to store a weapon safely in the first and second degrees, aggravated failure to store a weapon, and criminally negligent storage of a weapon in the first and second degrees; provides affirmative defenses; directs the commissioner of education to develop a weapons safety program.

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  • Mar 12, 2012: COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • Feb 27, 2012: NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
  • Jan 13, 2012: PRINT NUMBER 895A
  • Jan 13, 2012: AMEND AND RECOMMIT TO CODES
  • Jan 4, 2012: REFERRED TO CODES
  • Jan 5, 2011: REFERRED TO CODES

Memo

BILL NUMBER:S895A

TITLE OF BILL: An act to amend the penal law, the general business law and the education law, in relation to criminally negligent storage of a weapon and weapons safety programs for children

PURPOSE: Establishes the "Children's Weapon Accident Prevention Act." Creates crimes related to the unsafe storage of a weapon and criminally negligent storage of a weapon to protect children, and others, from injury and death due to unauthorized access, discharge and use of weapons.

SUMMARY OF PROVISIONS: Section 1 contains the short title of the bill.

Section 2 contains legislative findings.

Section 3 creates 5 new definitions within penal law § 265.00.

Section 4 creates 5 new crimes within article 265 of the penal law, and one provision related to the applicability of those crimes. Specifically:

§265.45 defines failure to store a weapon safely in the second degree as a violation;

§265.50 defines failure to store a weapon safely in the first degree as a class B misdemeanor;

§265.55 defines aggravated failure to store a weapon safely in the second degree, resulting in the removal or discharge of the weapon by a child, as a class A misdemeanor;

§265.60 defines criminally negligent storage of a weapon in the second degree, resulting in a child causing serious physical injury to himself/herself or any other person, as a class E felony;

§265.65 defines criminally negligent storage of a weapon in the first degree, resulting in a child causing the death of himself/herself or any other person, as a class D felony. With respect to the crimes defined in sections 265.60 and 265.65 of the penal law, it shall be an affirmative defense that the defendant reasonably attempted to retrieve or regain possession of the firearm, rifle or shotgun prior to discharge. Exceptions are provided when persons under eighteen gain access to a weapon by unlawful means; when a weapon is securely stored in a locked

box and where ammunition is separately and securely stored in a locked container; when a firearm, rifle or shotgun is securely locked with a gun locking device; when persons under eighteen possessed a loaded rifle or shotgun pursuant to a valid hunting license; when the firearm is in the possession of a police officer engaged in official business; or for the lawful purpose of self-defense.

§265.70 gives the district attorney discretion whether or not to prosecute a parent or guardian when death or injury of a child results from a violation of penal law 265.60 or 265.65.

Section 5 amends subdivision 2 of section 396-ee of the general business law to require gun dealers to post a conspicuous notice that it is a crime in New York to leave guns accessible to children.

Section 6 adds subdivision 43 to section 305 of the education law to require the commissioner to develop a weapon safety program designed to teach children how to prevent gun-related injuries.

JUSTIFICATION: In 40 states, firearms, rifles and semiautomatic weapons are sold to parents without requirements to store the weapons safely. "In 1988, some 1,501 people were killed in the united States by accidental discharge of firearms and many more were injured. Among those killed were 277 children under the age of 15. In fact, firearms are the fourth leading cause of accidental deaths among children 5 to 14 years of age and the third leading cause of accidental deaths among 15 to 24 year olds." (United States General Accounting Office: "Accidental Shootings", 1991.)

Between 1990 and 1994 in New York state alone, there were a total of 6,627 hospitalizations of children age 19 and under due to firearm injury, an average of 1,325 per year. One thousand four hundred nineteen of these were accidental, an average of 284 per year. At the same time, there were 1,734 deaths of children age 19 and under, an average of 347 per year. Tragically, 48 of these deaths were accidental, averaging 10 per year. And in 1997, the last year for which reliable figures are available for New York state, 5 children under 18 were killed in firearm accidents and 72 were injured seriously enough to be hospitalized.

It is estimated that about one of every three deaths from accidental firearm discharge could have been prevented if proper weapon safety procedures had been followed. (United States General Accounting Office). In 2000, legislation was enacted in New York to require the purchase of a safety locking device with the purchase or transfer of a gun. However, there was no requirement to use the device or safely store a gun. It is the intent of this legislation to encourage safe firearm storage and to prevent negligent conduct before accidents occur.

The states of California, Connecticut, Florida, Hawaii, Iowa, Maine, Maryland, New Jersey, Massachusetts, Virginia and wisconsin have already passed similar legislation. Accidental gun deaths of children were reduced 23% in states with Child Access Prevention/Safe Gun storage(CAP) laws, according to a study published in the Journal of the American Medical Association on October 1, 1997.

LEGISLATIVE HISTORY: 2000: A.1407-B - Passed Assembly 2001-2002: A.5363-B - Passed Assembly 2003-2004: A.4615-C - Passed Assembly 2005-2006: A.673 - Passed Assembly 2007-2008: A.76A - Passed Assembly 2009-2010: S.3098-A - Schneiderman) A.5844-B (Weisenberg)

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect on the first of November next succeeding the date on which it shall have become a law provided, however, that sections three and four of this act shall take effect May 1, 2014, provided, further, that section five of this act shall take effect March 1, 2014 except that any rule or regulation necessary for the timely implementation of section five of this act shall be promulgated on or before such date.


Text

STATE OF NEW YORK ________________________________________________________________________ 895--A 2011-2012 Regular Sessions IN SENATE (PREFILED) January 5, 2011 ___________
Introduced by Sen. KRUEGER -- read twice and ordered printed, and when printed to be committed to the Committee on Codes -- recommitted to the Committee on Codes in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the penal law, the general business law and the educa- tion law, in relation to criminally negligent storage of a weapon and weapons safety programs for children THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Short title; construction. 1. This act shall be known and may be cited as the "children's weapon accident prevention act." 2. The provisions of this act shall not be construed to preempt or supersede any local law the provisions of which are no less stringent or restrictive than the provisions of this act. S 2. Legislative findings and intent. The legislature finds that a tragically large number of children have been accidentally killed or seriously injured by negligently stored weapons; that placing weapons within reach or easy access of children is irresponsible, encourages such accidents, and should be prohibited, and that legislative action is necessary to protect the safety of our children. S 3. Section 265.00 of the penal law is amended by adding five new subdivisions 24, 25, 26, 27 and 28 to read as follows: 24. "WEAPON" MEANS A "RIFLE", "SHOTGUN", OR "FIREARM" AS OTHERWISE DEFINED IN SUBDIVISION THREE OF THIS SECTION. 25. "LOCKED BOX" MEANS A SAFE, CASE OR CONTAINER WHICH, WHEN LOCKED, IS INCAPABLE OF BEING OPENED WITHOUT THE KEY, COMBINATION, OR OTHER UNLOCKING MECHANISM AND IS RESISTANT TO TAMPERING BY AN UNAUTHORIZED PERSON ATTEMPTING TO OBTAIN ACCESS TO AND POSSESSION OF THE WEAPON OR AMMUNITION CONTAINED THEREIN. THE DIVISION OF STATE POLICE SHALL DEVELOP
AND PROMULGATE RULES AND REGULATIONS SETTING FORTH THE SPECIFIC DEVICES OR THE MINIMUM STANDARDS AND CRITERIA THEREFOR WHICH CONSTITUTE AN EFFECTIVE LOCKED BOX. 26. "GUN LOCKING DEVICE" MEANS AN INTEGRATED DESIGN FEATURE OR AN ATTACHABLE ACCESSORY THAT IS RESISTANT TO TAMPERING AND IS EFFECTIVE IN PREVENTING THE DISCHARGE OF A WEAPON BY A PERSON WHO DOES NOT HAVE ACCESS TO THE KEY, COMBINATION OR OTHER MECHANISM USED TO DISENGAGE THE DEVICE. 27. "LOADED RIFLE" MEANS ANY RIFLE LOADED WITH AMMUNITION OR ANY RIFLE WHICH IS POSSESSED BY ONE WHO, AT THE SAME TIME, POSSESSES A QUANTITY OF AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH RIFLE. 28. "LOADED SHOTGUN" MEANS ANY SHOTGUN LOADED WITH AMMUNITION OR ANY SHOTGUN WHICH IS POSSESSED BY ONE WHO, AT THE SAME TIME, POSSESSES A QUANTITY OF AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH SHOTGUN. S 4. The penal law is amended by adding six new sections 265.45, 265.50, 265.55, 265.60, 265.65 and 265.70 to read as follows: S 265.45 FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE. A PERSON IS GUILTY OF FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE WHEN HE OR SHE STORES OR OTHERWISE LEAVES A WEAPON OUT OF HIS OR HER IMMEDIATE POSSESSION OR CONTROL WITHOUT HAVING FIRST SECURELY LOCKED SUCH WEAPON IN AN APPROPRIATE LOCKED BOX OR RENDERED IT INCAPABLE OF BEING FIRED BY THE USE OF A GUN LOCKING DEVICE APPROPRIATE TO THAT WEAP- ON. FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE IS A VIOLATION. S 265.50 FAILURE TO STORE A WEAPON SAFELY IN THE FIRST DEGREE. A PERSON IS GUILTY OF FAILURE TO STORE A WEAPON SAFELY IN THE FIRST DEGREE WHEN HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.45 OF THIS ARTICLE AND HAS BEEN PREVIOUSLY CONVICTED OF THE OFFENSE OF FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.45 OF THIS ARTICLE WITHIN THE PRECEDING FIVE YEARS. FAILURE TO STORE A WEAPON SAFELY IN THE FIRST DEGREE IS A CLASS B MISDEMEANOR. S 265.55 AGGRAVATED FAILURE TO STORE A WEAPON SAFELY. A PERSON IS GUILTY OF AGGRAVATED FAILURE TO STORE A WEAPON SAFELY WHEN HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.45 OF THIS ARTICLE AND SUCH WEAPON IS REMOVED FROM THE PREMISES OR DISCHARGED BY ANOTHER PERSON UNDER THE AGE OF EIGHTEEN. AGGRAVATED FAILURE TO STORE A WEAPON SAFELY IS A CLASS A MISDEMEANOR. S 265.60 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE SECOND DEGREE. 1. A PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE SECOND DEGREE WHEN WITH CRIMINAL NEGLIGENCE, HE OR SHE STORES OR LEAVES A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY LOCATION WHERE SUCH WEAPON IS ACCESSIBLE TO A PERSON UNDER THE AGE OF EIGHTEEN AND SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF EIGHTEEN, WHICH CAUSES SERIOUS PHYSICAL INJURY TO SUCH PERSON UNDER THE AGE OF EIGHTEEN OR ANY OTHER PERSON. 2. IN ANY PROSECUTION UNDER THIS SECTION IT SHALL BE AN AFFIRMATIVE DEFENSE THAT THE DEFENDANT ACTIVELY PURSUED ALL REASONABLE EFFORTS TO RETRIEVE OR OTHERWISE REGAIN POSSESSION OF SUCH WEAPON PRIOR TO ITS DISCHARGE. 3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF: (A) SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH WEAPON AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON;
(B) SUCH WEAPON IS STORED IN A SECURELY LOCKED BOX WHICH PREVENTS ACCESS TO THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH PREVENTS ACCESS TO SUCH AMMUNITION; (C) SUCH WEAPON IS SECURED WITH A GUN LOCKING DEVICE WHICH PREVENTS THE WEAPON FROM DISCHARGING; (D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU- ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW; (E) SUCH WEAPON IS IN THE POSSESSION OR CONTROL OF A POLICE OFFICER WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES; OR (F) SUCH WEAPON IS NEEDED FOR THE LAWFUL PURPOSE OF SELF DEFENSE. CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE SECOND DEGREE IS A CLASS E FELONY. S 265.65 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST DEGREE. 1. A PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST DEGREE WHEN WITH CRIMINAL NEGLIGENCE, HE OR SHE STORES OR LEAVES A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY LOCATION WHERE SUCH WEAPON IS ACCESSIBLE TO A PERSON UNDER THE AGE OF EIGHTEEN AND SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF EIGHTEEN, WHICH CAUSES THE DEATH OF SUCH PERSON UNDER THE AGE OF EIGHTEEN OR ANY OTHER PERSON. 2. IN ANY PROSECUTION UNDER THIS SECTION IT SHALL BE AN AFFIRMATIVE DEFENSE THAT THE DEFENDANT ACTIVELY PURSUED ALL REASONABLE EFFORTS TO RETRIEVE OR OTHERWISE REGAIN POSSESSION OF SUCH WEAPON PRIOR TO ITS DISCHARGE. 3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF: (A) SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH WEAPON AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON; (B) SUCH WEAPON IS STORED IN A SECURELY LOCKED BOX WHICH PREVENTS ACCESS TO THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH PREVENTS ACCESS TO THE WEAPON; (C) THE WEAPON IS SECURED WITH A GUN LOCKING DEVICE WHICH PREVENTS THE WEAPON FROM DISCHARGING; (D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU- ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW; (E) SUCH WEAPON IS IN THE POSSESSION OR CONTROL OF A POLICE OFFICER WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES; OR (F) SUCH WEAPON IS NEEDED FOR THE LAWFUL PURPOSE OF SELF DEFENSE. CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST DEGREE IS A CLASS D FELONY. S 265.70 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST AND SECOND DEGREE; APPLICATION. IF A PERSON WHO IS SUSPECTED OF VIOLATING SECTION 265.60 OR 265.65 OF THIS ARTICLE IS THE PARENT OR GUARDIAN OF A CHILD WHO IS INJURED OR WHO DIES AS THE RESULT OF SUCH VIOLATION, THE DISTRICT ATTORNEY SHALL CONSIDER, AMONG OTHER FACTORS, THE IMPACT OF THE INJURY OR DEATH ON THE PERSON WHO IS SUSPECTED OF VIOLATING SECTION 265.60 OR 265.65 OF THIS ARTICLE WHEN DECIDING WHETHER OR NOT TO PROSECUTE SUCH PERSON FOR SUCH CRIME. S 5. The section heading and subdivision 2 of section 396-ee of the general business law, as added by chapter 189 of the laws of 2000, are amended to read as follows: Sale of certain weapons; locking devices AND LOCKED BOXES therefor.
(2) Every person, firm or corporation engaged in the retail business of selling rifles, shotguns or firearms, as such terms are defined in section 265.00 of the penal law, shall, in the place where such rifles, shotguns or firearms are displayed or transferred to the purchaser, post a notice conspicuously stating in bold print that: "The use of a GUN locking device or [safety lock] A LOCKED BOX is only one aspect of responsible firearm storage. For increased safety firearms should be stored unloaded and locked in a location that is both separate from their ammunition and inaccessible to children and any other unauthorized person. LEAVING RIFLES, SHOTGUNS, AND FIREARMS ACCESSIBLE TO A PERSON UNDER EIGHTEEN IS A CRIME IN NEW YORK STATE." S 6. Section 305 of the education law is amended by adding a new subdivision 43 to read as follows: 43. THE COMMISSIONER SHALL IN COOPERATION WITH THE DIVISION OF CRIMI- NAL JUSTICE SERVICES DEVELOP A WEAPONS SAFETY PROGRAM DESIGNED TO PROTECT CHILDREN FROM THE RISK OF GUN-RELATED DEATH AND INJURY. SUCH PROGRAM SHALL BE DESIGNED TO TEACH CHILDREN TO FOLLOW AN EFFECTIVE SAFE- TY PROCEDURE WHEN THEY ARE EXPOSED TO A GUN, SHALL SPECIFICALLY WARN CHILDREN THAT CONTACT WITH GUNS CAN RESULT IN SERIOUS INJURY OR DEATH AND SHALL HAVE BEEN PROVEN TO BE EFFECTIVE TO PREVENT INJURY THROUGH FORMAL EVALUATION BY OBJECTIVE PUBLIC HEALTH AND EDUCATION PROFES- SIONALS. SUCH PROGRAM MAY BE USED IN PUBLIC AND NONPUBLIC SCHOOLS AT THE DISCRETION OF THE LOCAL SCHOOL BOARD OF EDUCATION OR BOARD OF TRUSTEES, WHICHEVER IS APPLICABLE. THE COMMISSIONER SHALL SUBMIT AN EVALUATION REPORT ON THIS PROGRAM TO THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY, THE TEMPORARY PRESIDENT OF THE SENATE, THE CHAIR OF THE ASSEMBLY CODES COMMITTEE AND THE CHAIR OF THE SENATE CODES COMMITTEE NO LATER THAN JANUARY FIRST, TWO THOUSAND FIFTEEN. S 7. If any word, phrase, clause, sentence, paragraph, section, or part of this act shall be adjudged by any court of competent jurisdic- tion to be invalid, such judgment shall not affect, impair, or invali- date the remainder thereof, but shall be confined in its operation to the words, phrase, clause, sentence, paragraph, section, or part thereof directly involved in the controversy in which such judgment shall have been rendered. S 8. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law, provided, however, that sections three and four of this act shall take effect May 1, 2014; provided, further, that section five of this act shall take effect March 1, 2014 except that any rule or regulation necessary for the timely implementation of section five of this act may be promulgated on or before such date.

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