Two-Tier Child Access Prevention Framework
New York addresses the risk of children gaining access to firearms through two separate criminal provisions, each targeting a different age threshold and level of culpability. Together, Penal Law Sections 265.45 and 265.46 create one of the more comprehensive child access prevention frameworks in the country.[1]
Safe Storage When Residing with a Minor Under 18 (PL 265.45)
Penal Law Section 265.45 provides that no person who owns or is custodian of a rifle, shotgun, or firearm and who resides with an individual under eighteen years of age may store or otherwise leave such weapon out of his or her immediate possession or control without first securing it. The firearm must be either locked in an appropriate safe storage depository or rendered incapable of being fired by use of a gun locking device.[2]
This provision applies regardless of whether the minor actually gains access to the firearm. The mere act of living with a person under 18 and failing to store the weapon properly constitutes the offense. Conviction is a class A misdemeanor, carrying a potential sentence of up to one year in jail and/or a fine of up to $1,000.[3]
Note: PL 265.45 also applies when the owner resides with a person who is prohibited from possessing firearms under federal law (18 U.S.C.), not only when a minor under 18 is present. The safe storage obligation therefore extends to households containing any federally prohibited person, not just households with children.
Safe Storage When Children Under 16 May Gain Access (PL 265.46)
Penal Law Section 265.46 addresses a broader scenario: any person who owns or is custodian of a rifle, shotgun, or firearm and knows, or has reason to know, that a person less than sixteen years of age is likely to gain access to such weapon. Under this provision, the owner must store or secure the weapon using the same methods required under Section 265.45: locked in a safe storage depository or rendered inoperable by a gun locking device.[4]
Unlike Section 265.45, this provision does not require that the owner reside with the minor. It applies whenever the owner knows or has reason to know that a child under 16 is likely to gain access. The penalty is a violation under New York law — a non-criminal infraction below the level of a misdemeanor — punishable only by a fine of not more than $250. No incarceration is authorized. PL 265.46 does not use the label "Second Degree" and should not be described as a criminal degree offense.[5]
Comparison of the Two Tiers
The two provisions differ in several important respects:
- Age threshold: Section 265.45 covers minors under 18; Section 265.46 covers children under 16.
- Relationship requirement: Section 265.45 requires that the owner reside with the minor; Section 265.46 requires only knowledge or reason to know that a child is likely to gain access.
- Mental state: Section 265.45 is a strict liability provision based on residing with a minor; Section 265.46 requires knowledge or reason to know of the likelihood of access.
- Penalty: Section 265.45 is a class A misdemeanor (up to one year incarceration); Section 265.46 is a violation — a non-criminal infraction — carrying only a fine of up to $250. Neither statute uses "First Degree" or "Second Degree" terminology.[1]
What Constitutes Compliant Storage
Both provisions require the same storage standard. A firearm must be placed in a "safe storage depository," which the statute defines as a safe or other secure container that, when locked, is incapable of being opened without the key, keypad, combination, or other unlocking mechanism and is capable of preventing an unauthorized person from obtaining access. The depository must be fire, impact, and tamper resistant.[2]
Alternatively, the firearm may be rendered incapable of being fired by use of a gun locking device appropriate to that weapon. Common examples include trigger locks, cable locks, and chamber lock indicators.[6]
Exceptions for Supervised Youth Activities
Neither provision prohibits allowing a minor access to firearms for lawful activities. Section 265.45 explicitly states that it is not a violation to allow a person under eighteen access to a firearm for lawful use as authorized under PL 265.20(a)(7) or (7-e), which cover supervised target shooting and hunting. Minors who hold hunting licenses may also use rifles or shotguns in accordance with Article 11 of the Environmental Conservation Law.[2]
Interaction with Prohibited Persons
Section 265.45 also applies when the owner resides with a person who is prohibited from possessing a firearm under a temporary or final extreme risk protection order (commonly known as a "red flag order") issued under Article 63-A of the CPLR, or under 18 U.S.C. (federal prohibitions). This means the safe storage obligation extends beyond child access prevention to encompass cohabitants subject to firearms prohibitions.[3]
Local Law Preservation
Section 265.46 includes a savings clause providing that nothing in the section shall be deemed to affect, impair, or supersede any special or local act relating to the safe storage of rifles, shotguns, or firearms that imposes additional requirements. New York City and other municipalities may impose stricter storage requirements beyond those in state law.[4]