New York Gun Law Update

Most of my gun cases are relatively straightforward: They say my guy had a gun, we say you can’t prove that. I have been very successful in this area. In my experience, when there is an illegal gun around, there are usually a number of “characters” that it might belong to and the police are often times taking their best guess at who really had the gun.

Recently, I have had a couple of strange gun issues. A while ago, I handled a minor drug case where the defendant had about ten bucks worth of marijuana in the center console of his vehicle when he was stopped for speeding. The cop took him out of the car and searched him. The search resulted in the seizure of a lawfully possessed handgun. The officer wrote the man a ticket for Unlawful Possession of Marijuana and took his gun. Unlawful Possession of Marijuana is not a crime, and carries a maximum fine of $100, for a first offense ‑ substantially lower than most speeding tickets. The bigger concern was whether the police can take a lawfully possessed gun, and what is the legal process to get it back.

More recently, I handled a case where my client was the victim of a theft from his home. The police arrived and took a report. For some reason they asked whether or not the victim had any guns, which he did, and they asked what and where they were. He showed them several guns, along with a lawful pistol permit. One of the guns could not be located. The police therefore took all of his guns and the process for suspending his pistol permit was begun.

Every criminal lawyer has stories about crazy gun cases. My opinion is that is because the gun laws have become so complicated and divergent from state to state that the police and regular people don’t know what the law actually is. I remember a CLE (continuing legal education) course with Paul Irving a few years ago, when he was the head of the Gun Bureau at the District Attorney’s Office. His big message was, “You don’t know whether or not something that looks like a gun is actually a gun, much less an assault rifle, until the firearms lab tells you that it is.” When the highest ranking gun lawyer in Monroe County says “confirm with a scientist” I think the odds of honest mistakes are very high.

Recently, I was looking into some of the legal developments following the recent passage of the New York SAFE Act. You have probably seen the law signs supporting the repeal of the law. The law has significantly increased gun control in New York. I happened across the website of Mr. Sheldon Boyce, www.gunattorney.us.

Mr. Boyce is a former Monroe County Assistant District Attorney, owns several guns himself, and is a partner at Brenna, Brenna and Boyce in Rochester, NY. His gun practice is limited to the permitting and ownership rights under the U.S. Constitution. He has recently filed a brief on behalf of the New York State Sheriff’s Association in NYSRPA v. Cuomo, claiming the NY SAFE Act is illegal.

Since coming across Mr. Boyce’s site, I have had multiple conversations with him, to further my understanding of the overlap between civil gun cases, the Constitution, and criminal gun prosecutions. With his permission, the following are some of the highlights that have helped me more fully understand gun litigation:

Q: What are the most significant changes since you began taking civil gun cases?
A: The Supreme Court has continued to clarify the rights of citizens to possess guns under the Second Amendment.

Q: What is the biggest misconception about gun laws?
A: “Gun laws reduce violent crime.” In fact, the locations with the most restrictive guns laws have the highest violent crime rates, e.g. New York, Chicago, Los Angeles, etc.

Q: What is the biggest practical effect of the new SAFE Act, in New York?
A: First, it defines most modern sporting rifles as “assault rifles,” which is a felony under the law. Next, it significantly changes the number of bullets a gun can hold, which is very significant because there are millions of guns that become illegal or non-functional under the law.

Q: What are the most unfair gun possession cases you have seen?
A: A Florida gun collector who moved to New York and had a permit, pending application, called an ambulance, and when the cops came into his home along with the paramedic they saw a gun safe, which the man opened. Shortly thereafter, he was arrested on felony gun possession charges

Q: What type of permit-revocation cases seem unfair?
A: An ex parte (one party files with no knowledge by the other) order of protection issued in family court requires the other side to turn over all guns immediately.

In conclusion, the gun laws are very confusing. If you have questions about the subject, you should contact a Rochester criminal defense lawyer before purchasing a gun. There are people who mistakenly commit felonies every day in this area of law. Contact us now to discuss the topic and learn about your rights.