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
same.
(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.

New York Set To Adopt Stronger Gun and Mental Health Regulations: UPDATE: Gov. Cuomo Signing Tonight

The NYS State Senate passed their gun control/mental health comprehensive bill yesterday, and the Assembly is set to pass it today. Gov. Cuomo will probably sign before the end of the week (there's a 3-day waiting period unless a message of necessity is attached).

So, what does the bill include? The bill summary holds the key.

Ammunition limits:
The bill will cap magazine/clip size at 10 - anything more is illegal regardless of date of manufacture. Going forward, max clip/magazine size is 7. A mechanism is going to be put in place to identify high volume purchasers of ammo and these buyers will have to be run through the NICS database. The bill requires that any seller--whether located in New York or out of state-ship the ammunition to a dealer within New York for in-person
pick-up.

Licensing:
While the existing law granted non-expiring licenses, the new law will require relicensing every five years. Failure to recertify means revocation of the license.

Kendra's Law:
Well, it extends Kendra's Law through 2017 (granting judges the authority to issue orders that require people who meet certain criteria to regularly undergo psychiatric treatment and that failure to comply could result in commitment for up to 72 hours - such persons are not forced to take meds though).

Gun sales/transfers:
Background checks must be completed for all gun sales, except for immediate family. Private sellers may transfer a gun only if the buyer has obtained a federal "NICS" check. Further, dealers must maintain records of private sale background checks, and private sellers may charge a fee of up to $10 on a transaction. Transfers between immediate family members will be exempt from the requirements of this section.

Storage:
For persons who live with those who are not allowed to own firearms, there's a new requirement for the lawful owner to safely secure those weapons (gun lock/safe).

Mental health:

Persons who are mentally ill and dangerous cannot retain or obtain a firearm. First, mental health records that are currently sent to NIDCS for a federal background check will also be housed in a New York State database. The law will require mental health professionals, in the exercise of reasonable professional judgment, to report if an individual they are treating is likely to engage in conduct that will cause serious harm to him- or herself or others. A good faith decision about whether to report will not be a basis for any criminal or civil liability. When a Section 9.46 report is made, the Division of Criminal Justice Services will determine whether the person possesses a firearms license and, if so, will notify the appropriate local licensing official, who must suspend the license. The person's firearms will then be removed.

Criminal penalties:
Criminal penalties are added or increased across a range of crimes, including straw purchases, increased penalties for firearms on school buses and school properties.

School safety:
The state will increase reimbursement to school districts seeking building safety upgrades (think bullet resistant glass, secured entry areas, etc.)

Most of these changes are reasonable, though there's reason to expect the NRA or others to challenge the mental health provisions, particularly when someone who is declared mentally incompetent to possess firearms has to have those firearms seized by local law enforcement. The NRA might also challenge the ammunition hold (clip/magazine) limits, but that's likely to pass Constitutional muster.

One of the reasons that these provisions passed the State Senate so easily is that these are really common-sense enhancements to existing law and eliminates loopholes in the existing law. It also addresses the mental health law and need to strengthen criminal penalties for straw purchases.

Upon passage, this will be among the strongest gun regulations in the nation, and it could also form the basis for provisions that the Obama Administration might take up to deal with the issue on a national basis.

UPDATE:
Gov. Cuomo will be signing the SAFE act into law at a signing event in the Capitol Building at 4:45PM in Albany. It is the first major legislation taken up by any legislature in the country in the wake of the Sandy Hook massacre and represents a significant tightening of registration and ownership rules for firearms. It will not be without controversy.