S895A-2011 - NY Senate Open Legislation - 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.

Sponsor: KRUEGER

Co-sponsor(s): AVELLA, GIANARIS

Committee: RULES
Law Section: Penal Law
Law: Amd S265.00, add SS265.45, 265.50, 265.55, 265.60, 265.65 & 265.70, Pen L; amd S396-ee, Gen Bus L; amd S305, Ed L

S895A-2011 Actions

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

S895A-2011 Meetings

Codes: Mar 13, 2012

S895A-2011 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.

S895A-2011 Text


                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                   895--A

                         2011-2012 Regular Sessions

                              I N  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

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD03875-04-2

 S. 895--A                           2

  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;

 S. 895--A                           3

    (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.

 S. 895--A                           4

    (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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S895A-2011: Enacts the "children's weapon accident prevention act"

S895A-2011 Actions

S895A-2011 Meetings

S895A-2011 Memo

S895A-2011 Text

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