Friday, January 18, 2013

New York's SAFE Act Needs Fine Tuning

Despite the swift bipartisan action in New York to amend the state's firearms laws to address high capacity ammunition holders, types of illegal firearms, and providing mental health services and exclusions from firearms ownership as well as periodic licensing for lawful owners, the state legislature did goof on one aspect of the law.

As written, it would appear to make firearms owned and operated by law enforcement and even military forces in New York illegal and subject to criminal penalties.
A troubling oversight has been found within New York State's sweeping new gun laws.

The ban on having high-capacity magazines, as it's written, would also include law enforcement officers.

Magazines with more than seven rounds will be illegal under the new law when that part takes effect in March.

As the statute is currently written, it does not exempt law enforcement officers.
Nearly every law enforcement agency in the state carries hand guns that have a 15 round capacity.

A spokesman for the governor's office called Eyewitness News to say, "We are still working out some details of the law and the exemption will be included, currently no police officer is in violation."

The Patrolman's Benevolent Association President released a statement saying, "The PBA is actively working to enact changes to this law that will provide the appropriate exemptions from the law for active and retired law enforcement officers."
This isn't a fatal defect though, as the state law already has exemptions in place for law enforcement on several fronts, and the New York State Penal Code is not to be strictly construed. The proposed changes will clarify things, but the NYS Penal Code also has rules of construction that would have carved out a law enforcement exemption by application:

S 5.00 Penal law not strictly construed.
The general rule that a penal statute is to be strictly construed does
not apply to this chapter, but the provisions herein must be construed
according to the fair import of their terms to promote justice and
effect the objects of the law.

In other words, a court could have construed the application of the limitations as not applying to law enforcement but only to criminals.

Then, there's specific exemptions:

S 265.20 Exemptions.
a. Sections 265.01, 265.02, 265.03, 265.04, 265.05, 265.10, 265.11,
265.12, 265.13, 265.15 and 270.05 shall not apply to:
1. Possession of any of the weapons, instruments, appliances or
substances specified in sections 265.01, 265.02, 265.03, 265.04, 265.05
and 270.05 by the following:
(a) Persons in the military service of the state of New York when duly
authorized by regulations issued by the adjutant general to possess the
(b) Police officers as defined in subdivision thirty-four of section
1.20 of the criminal procedure law.
(c) Peace officers as defined by section 2.10 of the criminal
procedure law.
(d) Persons in the military or other service of the United States, in
pursuit of official duty or when duly authorized by federal law,
regulation or order to possess the same.

Seeing that 265.01 is the base charge (misdemeanor) and exemption applies to law enforcement, one could extrapolate that it too applies to the other more serious charges - since the penal code isn't to be strictly construed.

The correct thing would have been to specifically amend NYS Penal §265.20 to include the references to the ammo amendments and other newly created felony counts. That's probably what the amendments will offer up.

Further, there are calls to amend the state's laws to address privacy issues of owners.

Here's a FAQ on how the new law applies to existing firearms, owners, and various registration and licensing requirements.


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