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New York’s New Gun Laws Part III – Expanded Red Flag Laws and Requirement of Microstamping

EXPANSION OF RED FLAG LAWS

On June 6, 2022 Governor Kathy Hochul signed an expansion of New York’s already problematic red flag laws giving the right to file Extreme Risk Protection Petitions to a wide range of health care workers.  The list of healthcare workers includes doctors, nurses, social workers, psychiatrists, marriage and family therapists, and licensed mental health counselors who have treated the person who they wish to red flag within the 6 months preceding the red flag petition.  The new law went on the require that police officers and district attorneys file red flag petitions under certain circumstances.  Previously, it was discretionary with the police officer or district attorney whether or not to file a red flag case.  The new law makes it mandatory under certain circumstances.

One issue that has not been reported is that this amendment to the extreme risk protection law creates a major new exception to the doctor-patient privilege.  The doctor-patient privilege is codified in New York under CPLR 4504 and prohibits the disclosure of information obtained while attending the patient.  The new law specifically authorizes a medical professional to disclose protected health information.  In addition, it gives the Judges hearing the petition for an extreme risk protection order the authority to order the disclosure of protected medical records from other medical providers.  This is perhaps one of the largest exceptions ever created to doctor-patient privilege and is likely to discourage many from getting treatment because of the potential for disclosure of their personal medical records.

Lastly, the new law requires the State Police to issue written guidance, procedures and educational materials on the availability and procedures for filing Petitions seeking extreme risk protection orders.

This law takes effect 30 days after it was signed on June 6, 2022.

New York’s New Requirement for Microstamping Technology on Semiautomatic Pistols

To be clear this technology doesn’t exist.  The concept is to use lasers to etch a unique alpha numeric serial number onto the firing pin or breach face of a semiautomatic pistol so that when it is fired the empty shell casing ejected from the gun will bear the number and be traceable to a specific gun.  The hope is tat this will lead to more crimes being solved.  However, as noted above this technology does not currently exist.  Therefore, New York wants to create a timetable for requiring microstamping technology on pistols when it becomes available.

Initially under the new law, the Division of Criminal Justice Services is required within 180 days of June 6, 2022 tp engage in a study and determine whether the technology is viable.  Then within 365 days of certification that the technology is viable, the Division of Criminal Justice Services is required to establish performance criteria, qualifying standards and testing regiments.  Then within 2 years after certification that the technology is viable, the Division is required to implement and establish verification processes to make sure the technology is working correctly, establish training for people to learn how to service these new firearms and ensure that they are working correctly, and designate an organization responsible for ensuring that guns are complying with smart gun technology.

The new law, ultimately, within 4 years of certification that the technology is viable or within one year of a body or organization being licensed to service microstamping guns, whichever is sooner will make it illegal to sell non-microstamping semiautomatic pistols in New York.  It will also be a crime to modify a microstamping pistol with the intent to stop it from microstamping.

All of this only begins from when the New York State Division of Criminal Justice Services certifies that the technology is viable.

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