Body Armor

On June 6, 2022, as part of a landmark legislative package to strengthen gun laws and protect New Yorkers in the wake of several mass shootings in the U.S., including in Buffalo, NY, Governor Hochul signed into law new restrictions on the purchase, sale, exchange, and transfer of bullet-proof vests (then defined as “body vests”).  On July 1, 2022, Governor Hochul signed into law legislation to further strengthen gun laws, which also made technical revisions to the restrictions on body vests and which included body armor in such restrictions.  Effective July 6, 2022, when not being engaged or employed in an eligible profession, the purchase, taking possession of, sale, exchange, giving or disposing of body armor is prohibited.  People engaged or employed in eligible professions include:  

1. Police officers; 
2. Peace officers; 
3. Persons in military service in NYS or military or other service for the United States; and 
4. Such other professions designated by the Department of State in accordance with section 144-a of the Executive Law.  

The Department of State has been charged with developing rules and regulations to establish: 

• criteria for eligible professions requiring the use of body armor; 
• a process by which an individual or entity may request that the profession in which they engage be added to the list of eligible professions;  
• a process for the Department of State to determine such requests; and 
• a process by which individuals and entities may present proof of engagement in an eligible profession when purchasing body armor. 

New York State Executive Law Section 144-a:

§ 144-a.  Eligible professions for the purchase, sale, and use of body armor.

The secretary of state in consultation with the division of criminal justice services, the division of homeland security and emergency services, the department of corrections and community supervision, the division of the state police, and the office of general services shall promulgate rules and regulations to establish criteria for eligible professions requiring the use of body armor, as such term is defined in subdivision two of section 270.20 of the penal law. Such professions shall include those in which the duties may expose the individual to serious physical injury that may be prevented or mitigated by the wearing of body armor. Such rules and regulations shall also include a process by which an individual or entity may request that the profession in which they engage be added to the list of eligible professions, a process by which the department shall approve such professions, and a process by which individuals and entities may present proof of engagement in eligible professions when purchasing body armor.

New York State General Business Law Section 396-eee:

§396-eee. Unlawful sale or delivery of body armor.

1. No person, firm or corporation shall sell or deliver body armor to any individual or entity not engaged or employed in an eligible profession, and except as provided in subdivision two of this section, no such sale or delivery shall be permitted unless the transferee meets in person with the transferor to accomplish such sale or delivery. 

2. The provisions of subdivision one of this section regarding in person sale or delivery shall not apply to purchases made by federal, state, or local government agencies for the purpose of furnishing such body armor to employees in eligible professions. 

3. For the purposes of this section, "body armor" shall have the same meaning as defined in subdivision two of section 270.20 of the penal law. 

4. Any person, firm or corporation that violate the provisions of this section shall be guilty of a violation punishable by a fine in an amount not to exceed five thousand dollars for the first offense and in an amount not to exceed ten thousand dollars for any subsequent offense.

New York State Penal Law Section 270.20:

§ 270.20 Unlawful wearing of body armor.

1. A person is guilty of the unlawful wearing of body armor when acting either alone or with one or more other persons he commits any violent felony offense defined in section 70.02 while possessing a firearm, rifle or shotgun and in the course of and in furtherance of such crime he or she wears body armor. 

2. For the purposes of this section "body armor" means any product that is a personal protective body covering intended to protect against gunfire, regardless of whether such product is to be worn alone or is sold as a complement to another product or garment.  The unlawful wearing of body armor is a class E felony.

New York State Penal Law Section 270.21:

§ 270.21 Unlawful purchase of body armor.

A person is guilty of the unlawful purchase of body armor when, not being engaged or employed in an eligible profession, they knowingly purchase or take possession of body armor, as such term is defined in subdivision two of section 270.20 of this article.  This section shall not apply to individuals or entities engaged or employed in eligible professions, which shall include police officers as defined in section 1.20 of the criminal procedure law, peace officers as defined in section 2.10 of the criminal procedure law, persons in military service in the state of New York or military or other service for the United States, and such other professions designated by the department of state in accordance with section one hundred forty-four-a of the executive law. Unlawful purchase of body armor is a class A misdemeanor for a first offense and a class E felony for any subsequent offense.

New York State Penal Law Section 270.22:

§ 270.22 Unlawful sale of body armor.

A person is guilty of the unlawful sale of body armor when they sell, exchange, give or dispose of body armor, as such term is defined in subdivision two of section 270.20 of this article, to an individual whom they know or reasonably should have known is not engaged or employed in an eligible profession, as such term is defined in section 270.21 of this article. Unlawful sale of body armor is a class A misdemeanor for the first offense and a class E felony for any subsequent offense.

19 NYCRR Chapter XIX, Part 905

Eligible professions for the purchase, sale, and use of body armor.

Statutory Authority: Chapters 210 and 371 of the Laws of 2022; Executive Law, section 144-a

905.1 Definitions.

905.2 List of eligible professions.

905.3 Criteria for eligible professions requiring the use of body armor.

905.4 Process for requesting the addition of a profession to the list of eligible professions.

905.5 Process for the Department of State to approve eligible professions.

905.6 Process for presenting proof of engagement in an eligible profession.

905.7 Severability.
 

905.1    Definitions.

(a)   “Body armor” has the same meaning as set forth in Article 270 of the Penal Law.

(b)   “Department” means the Department of State.

(c)   “Duties” means any obligation or responsibility associated with a profession upon which employment or engagement in such profession is contingent.

(d)   “Eligible profession” means police officers, as defined in section 1.20 of the Criminal Procedure Law, peace officers as defined in section 2.10 of the Criminal Procedure Law, persons in military service of the state of New York as defined in subdivision 5 of section 1 of the Military Law, or military or other service for the United States, and such other professions as designated and described on a list published by the department of state pursuant to the rules established by this Part. “Eligible profession” does not include members of the “unorganized militia” as defined in subdivision 2 of section 2 of the Military Law.

(e)   “License” has the same meaning as set forth in section 102 of the State Administrative Procedure Act.

(f)    “Profession” means any occupation or line of work referenced or included within a category in the 2018 Standard Occupation Classification Manual published by the federal Office of Management and Budget, or as otherwise described in a federal, state, or local statute or regulation.  The 2018 Standard Occupation Classification Manual published by the federal Office of Management and Budget is hereby incorporated by reference. This publication is readily available without charge from the website of the U.S. Bureau of Labor Statistics at: https://www.bls.gov/soc/2018/soc_2018_manual.pdf

Copies of said publication may be obtained from the publisher at the following address:

Office of Employment and Unemployment Statistics, Occupational Employment Statistics, Suite 2135, 2 Massachusetts Avenue, NE, Washington DC 20212-0001.

Copies of said publication are also available for public inspection and copying at the Office of the New York State Department of State located at One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001.

(g)   “Secretary” means Secretary of State.

(h)   “Serious physical injury” has the same meaning as set forth in section 10.00 of the Penal Law.

905.2 List of eligible professions.

(a) The Department of State shall establish and may revise a list of eligible professions itemizing the professions that meet the criteria established by this Part by adding or removing professions as necessary.  The list shall consist of any eligible profession itemized by the department pursuant to section 144-a of the Executive Law, and any profession approved by the department pursuant to the rules established by this Part.

(b) Such list shall be deemed established upon filing in the Office of the Secretary, State Records Unit.  After such filing, the list of eligible professions shall be published and maintained on the website of the department.

(c) Revisions.  Any revision to the list of eligible professions shall be valid upon filing in the Office of the Secretary, State Records Unit. After such filing, the revised list of eligible professions shall be published and maintained on the website of the department.

905.3    Criteria for eligible professions requiring the use of body armor.

A profession shall be deemed eligible by the department if the duties of the profession may expose an individual engaged in such profession to serious physical injury that may be prevented or mitigated by the wearing of body armor, or if the duties of the profession are necessary to facilitate the lawful purchase, sale, or use of body armor.

905.4    Process for requesting the addition of a profession to the list of eligible professions.

(a) An individual or entity engaged in a profession in New York State that is not on the list of eligible professions may request that the department add such profession to the list of eligible professions by filing a request with the secretary in a form and method approved by the department.

(b) Requests may not be submitted by any means other than those specified in this Part and must comply with the form and content requirements as published by the department.

905.5    Process for the Department of State to determine eligible professions.

(a) In accordance with the authority provided pursuant to section 144-a of the Executive Law, and notwithstanding subdivision (b) of this section, the department may at any time in its discretion review a profession for the purpose of determining eligibility pursuant to this Part. Upon determining that a profession satisfies the criteria set forth in section 905.3 of this Part, the department may add the profession to the list of eligible professions in accordance with section 905.2 of this Part.

(b) Upon receipt of a request that complies with section 905.4 of this Part, the department shall:

(1) prepare a notice to be published on the department’s website alerting the public of the opportunity to submit additional requests relating to that profession within the next 30 days. Such notice shall provide information about where and how requests from other individuals or entities may be submitted;

(2) allow thirty (30) days from the date of publication for additional requests to be received; and

(3) apply the criteria in section 905.3 of this Part to the request within a reasonable period of time after the close of the thirty (30) day additional request period. The department may, at any time and in its sole discretion, contact the requestor or any other individual or entity to request additional information regarding the submitted request.

(c) The department may consolidate pending requests that relate to the same profession for the purpose of reviewing and determining the eligibility of that profession.

(d) If the department determines that a requested profession meets all criteria of this Part, the department shall add the profession to the list of eligible professions in accordance with section 905.2 of this Part.

(e) A review of a requested profession pending under the jurisdiction of the Secretary of State shall be brought to completion within 90 days of the date of the closing of the public comment period provided pursuant to the department’s published notice regarding said profession. An additional request for information issued by the department will extend the period of days in which the Secretary of State shall bring a review to completion by the number of days applicable to the additional request for information.

(f) The department may, prior to the expiration period, extend the time period established by subdivision (e) of this section by issuing a statement in writing that the pending review of the subject profession cannot be reasonably completed within the applicable timeframe, and thereby extend the review period for an additional 60 days.

(g) Notwithstanding Part 400 of this Title, any final decision made pursuant to this section shall be appealable pursuant to Article 78 of the Civil Practice Law and Rules.

(h)  If a request to add a profession to the list of eligible professions relates to a profession that the department has previously determined does not meet the criteria, the department may decline to consider the request if such request fails to present facts and circumstances that differ from those presented to the department in any prior request relating to that profession, whether or not such request was made by the same individual or entity that made the prior request.

905.6    Process for presenting proof of engagement in an eligible profession.

(a) All individuals and entities must present proof of engagement in an eligible profession when purchasing or taking possession of body armor.

(b) Proof of engagement in an eligible profession may be satisfied by submission to the seller of a professional license issued by a federal, state or local government; employment card or other credential issued by an employer, or in the absence of the foregoing, submission to the seller of a form approved by the Department of State that is notarized, verifying that the purchaser is engaged in an eligible profession.

(c) No sale or delivery of body armor shall be permitted unless the transferee meets in person with the transferor to accomplish such sale or delivery, except for federal, state or local government agencies purchasing body armor to furnish them to employees in eligible professions.

905.7    Severability.

The provisions of this Part are severable.  If any provision of this Part, or any application thereof to any entity or circumstance, is found to be invalid, such invalidity shall not affect any other provisions or applications of this Part that may be given effect without the invalid provisions or applications.

*Indicates a profession identified in Penal Law Section 270.21 as a profession eligible to purchase body armor.

As described in part 905.5 of the Department Regulations above, once the Department of State receives a request to add a profession to the list of eligible professions, the Department will publish a notice on the Department’s website alerting the public of the opportunity to submit additional requests relating to that profession within 30 days of the publishing of such notice. Any such additional requests should be submitted by email to [email protected]. When submitting your request, please enter the information from the “SOC Code or Unique Identification Number” field into the specified question in the Consolidated Funding Application (CFA) portal, a tool the Department has adapted to collect requests, to ensure that requests pertaining to that specific profession are reviewed and considered together.

As described in the body armor regulations, individuals or entities seeking to add a profession to the List of Eligible Professions must submit a request to the Department of State.  Requests must be submitted via the CFA portal, a tool the Department has adapted to receive and compile requests.  Only requests submitted through this system will be reviewed by the Department.  If you would like the Department to consider more than one profession, a separate request must be made for each profession. The CFA portal can be found here: https://apps.cio.ny.gov/apps/cfa/

Please be advised that certain professions are already eligible by statute. Members of sub-categories in those professions will not be specifically listed on the Department’s List of Eligible Professions. Such professions are: “police officers as defined in section 1.20 of the criminal procedure law, peace officers as defined in section 2.10 of the criminal procedure law, persons in military service in the state of New York or military or other service for the United States.” For convenience, a list of police officers as defined in section 1.20 of the criminal procedure law, and peace officers as defined in section 2.10 of the criminal procedure law, are accessible via link in the eligible professions table. Please note that filing a request does not constitute approval. A profession is not considered an Eligible Profession until it is added to the List of Eligible Professions. The timeframes for the Department’s review are set forth in Part 905.5 of the Departments regulations (see "Regulations" above).

NEW LAWS REGARDING THE SALE, TRANSFER, PURCHASE AND ACQUISITION

OF BODY ARMOR IN NEW YORK STATE

The following frequently asked questions (“FAQs”) should not be used in lieu of seeking appropriate legal advice and are not intended to answer general questions regarding the New York State Penal Law. These FAQs are subject to change and professionals should frequently visit this page for important updates. 

Q1: What is the “body armor law”?  

A1: The “body armor law” is a series of laws enacted in 2022 designed to protect New Yorkers. The laws generally restrict how and to whom “body armor” can be bought, sold, or transferred within the state. The laws are codified in both the New York General Business Law and the New York Penal Law. The full text of the laws is available here. 

Q2: What is the Department of State’s role in the “body armor law?” 

A2: The Department of State’s role in New York State’s body armor law is limited to publishing a list of eligible professions requiring the use of body armor and processing eligible profession requests.  The Department has also established a process and forms that purchasers may use when purchasing body armor, as applicable, to prove that they are engaged in an eligible profession. Questions that relate to enforcement of the Penal Law should be directed to the appropriate local district attorney’s office. Questions about the marketplace prohibition relating to body armor sales that is codified in § 396-eee of the General Business Law should be directed to the New York State Attorney General’s Office. 

Q3: What is considered body armor?  

A3: Body armor means: “any product that is a personal protective body covering intended to protect against gunfire, regardless of whether such product is to be worn alone or is sold as a complement to another product or garment.” NY Penal Law § 270.20(2).  

Q4: Do I need a license to sell body armor?  

A4: No, a license is not required to sell body armor, but the laws restrict how body armor can be bought, sold, or transferred.  

Q5: Do I need a license to buy body armor?  

A5: No, a specific license is not required to purchase body armor, but to lawfully purchase body armor you must demonstrate to the seller that you are engaged or employed in an eligible profession.  Eligible professions include police officers as defined in section 1.20 of the criminal procedure law, peace officers as defined in section 2.10 of the criminal procedure law, persons in military service in the state of New York or military or other service for the United States, and any profession determined by the New York State Department of State to be eligible and published on a list by the Department of State. Some of the eligible professions listed may require a license but a separate license to purchase body armor is not required. A full list of eligible professions is available here.  

Q6: How can I submit a request to add my job to the list of eligible professions?  

A6: It depends. Professions can be added to the list upon request if the duties of the profession expose the person to serious physical injury that may be prevented or mitigated by the wearing of body armor. Please see A10, below, for an explanation of how to submit such a request. 

Q7: What does “serious physical injury” mean? 

A7: “Serious physical injury” means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ. NY Penal Law § 10.00(10). “Physical injury” means impairment of physical condition or substantial pain. NY Penal Law § 10.00(9).  

Q8: My job is not on the list of eligible professions, but it does expose me (and others doing the same job) to serious physical injury; how can it be added to the list?  

A8: You can submit a request to the Department of State online to add your profession to the list of eligible professions by using the application accessible here.  

Q9: How long will it take for the Department to review my request to add a profession to the list?  

A9: During the first 30 days the Department will provide notice to the public, on our website, that a new profession is being considered so that other members of that profession have the opportunity to provide additional information. After that first 30-day period, the Department will review the information received and make a determination. Generally, that review is expected to be completed within 90 days. If the application is incomplete or additional details are needed the Department may add more time to the review process. 

Q10: What professions are currently under consideration for addition to the list of eligible professions?  

A10: A current list is published on the Department’s website and is available here.  

Q11: After submitting a request, will the Department ask me for more information?  

A11: The Department may contact a requestor to seek clarification, specificity, or additional information in regard to the submitted request. Generally, those seeking to add professions to the list have the burden of providing sufficient information to demonstrate the merits of the request under the regulatory framework. If an application requires clarification, the Department may contact the applicant for additional information but generally those applying should provide as much detail as possible.  

Q12: I submitted a request but the profession was not added to the list; can it be reconsidered?  

A12: Generally, the Department will not reconsider the same request from the same person or entity relating to a particular profession, unless there are new facts and circumstances presented that can be considered.  

Q13: I submitted a request and my profession was added to the eligible professions list as filed and published on the Department’s website; will I get something from the Department proving I am allowed to purchase body armor?  

A13: No. The Department does not provide proof that someone is allowed to purchase body armor. Under the law, sellers are required to confirm someone is employed or engaged in an eligible profession.

Individuals and entities intending to purchase body armor must present proof of engagement in an eligible profession when purchasing or taking possession of body armor. As provided in the Department of State’s body armor regulations, proof of engagement in an eligible profession may be satisfied by submission, to the seller, of a professional license issued by a federal, state or local government, an employment card or other credential issued by an employer, or in the absence of the foregoing, a form approved by the Department of State that is notarized, verifying that the purchaser is engaged in an eligible profession (the form can be found here). It is strongly recommended that purchasers and sellers retain a copy of the completed form for their records post-purchase/sale. 

Q14: I sell body armor; how do I confirm someone is engaged or employed in an eligible profession?  

A14: Proof of engagement or employment in an eligible profession may be satisfied by submission to the seller of a professional license issued by a federal, state or local government; employment card or other credential issued by an employer. In the absence of such proof, body armor sellers are required to use specific forms, available on the Department’s website, to confirm that body armor is purchased by someone engaged or employed in an eligible profession. Forms for individual or organizational purchasers are available here.  It is recommended that sellers retain a copy of the proof received from a buyer for their records.

Q15: If I have a question about interpretation and enforcement of the Penal Law provisions in the body armor laws, who should I ask?  

A15:  The Department of State’s role in New York State’s body armor laws is limited to publishing a list of eligible professions and processing eligible profession requests.  Questions that relate to interpretation and enforcement of the Penal Law should be directed to the district attorney’s office for the county where the subject police department is situated. Questions relating to keeping or wearing body armor (which includes bullet proof vests) acquired prior to the change in law on July 6, 2022, should be directed to your local police department or district attorney’s office. Questions about the marketplace prohibition relating to body armor sales that is codified in § 396-eee of the General Business Law should be directed to the New York State Attorney General’s Office. 

Requests for the inclusion of specific professions to the list of eligible professions must be submitted to the Department of State using the online request process available at the state CFA portal, here: https://apps.cio.ny.gov/apps/cfa/

Please submit press inquiries to [email protected]. Freedom of Information Law requests may be submitted through: https://dos.ny.gov/foil.  

 Please submit all other questions and comments to: [email protected]