Introduction
As experienced New York Second Amendment Lawyers we often think that we have seen it all but recently we handled a gun case using the Law Enforcement Officers Safety Act (LEOSA) also commonly called HR218 as a defense to New York State gun charges under some unusual circumstances. Just as a primer, the Law Enforcement Officers Safety Act (LEOSA) is a federal law that provides a defense to State weapons charges for both active law enforcement officers and “qualified retired law enforcement officers.” Essentially it gives Law Enforcement Officers and Retired Law Enforcement Officers the right to carry a firearm in all 50 states. Despite this well established Federal Law a gentleman who was both a Special Police Officer for the Sheriff’s Department and a retired Police Officer was arrested and charged with Criminal Possession of a Weapon in New York for having three unregistered handguns in his home.
Two questions that I immediately raised when I became the client’s third attorney were firstly, how can a law enforcement officer, a peace officer, a special police officer under New York law who according to the New York State Penal Law (PL §265.20) is exempt from prosecution be prosecuted in a New York State Court and secondly, how could the police, the prosecutor and the two prior criminal defense attorneys have missed these obvious defenses. Sadly, despite the successful conclusion of the case and the successful conclusion of the County’s futile attempt to revoke his pistol license, I still do not know the answers to my question.
The Client
Besides the fact that the client was one of the finest individuals I have represented, he had a truly incredible military and law enforcement background starting with 33 years in the United States Air Force and Air National Guard including involvement while in the National Guard with a Counter Drug Detachment and numerous awards and decorations for his service, he also had a distinguished and lengthy career in law enforcement. The client’s law enforcement career started with seasonal work as a New York State Park Police Officer which led to 20 years in a Town police Department in New York State after retiring from the Town Police Department with the rank of Sergeant the client spent 7 years as a Sheriff’s deputy in a New York State Sheriff’s Office and the 1 year as a part-time Town police officer and then went on to work 8 years as a Special Police officer for the same Sheriff’s office. Clearly, the client’s law enforcement background was impressive and included supervisory and training responsibilities within his departments.
Probable Cause to Obtain A Search Warrant
The case against the client arose after he was contacted by a buddy of his who he served with in Vietnam and who had confessed that he illegally smuggled back several machine guns from Vietnam. He told the client that he was dying of cancer and that he didn’t want his family to have to deal with them so he asked the client to turn them in at the Sheriff’s Office where he worked. The client complied. After receiving these illegal machineguns someone from the Sheriff’s office decided to notify the Federal Bureau of Alcohol Tobacco and Firearms and Explosives who interviewed the sister of the dying friend. The sister believed that more machine guns were taken by the client than were turned in. This led the BATFE to obtain a Federal Search Warrant for the home of the client and execute it and the client’s home.
The Arrest
Firstly, during the search NO MACHINE GUNS WERE FOUND. However, during the search it was discovered that about 1 year earlier the client obtained three handguns from his father after he died. None of these handguns were added to the client’s license to possess handguns so he was arrested and charged with three counts of Criminal Possession of a Weapon in the Fourth Degree. Each Count was for a class “A” misdemeanor punishable by up to 1 year in jail.
Two Prior Lawyers
When this firm was retained to represent the client, the case was quite old and two prior lawyers had totally botched the case. No motion to dismiss was made. In fact, almost nothing had happened on the case other than two lawyers begging and pleading, orally and in writing for a plea deal. Sadly, the begging and pleading fell on deaf ears and a plea offer to a deal which would leave the client with a permanent criminal record. In fact, the pleading only seem to embolden the prosecutors and by the time our firm was retained there were threats to indict the client for possessing three or more illegal firearms, a felony under New York Law. Certainly, neither of these lawyers raised the Law Enforcement Officers Safety Act with either the Court or the prosecutors. Nor did they raise the exemptions pursuant to Penal Law §265.20 which under subsection 1(c) grants peace officers an exemption from weapons charges and under subsection (3) which grants individuals who possess firearms licenses an exemption.
The Resolution of the Case
Ultimately, the legal issues matter. After the firm was retained I happened to run into the prosecutor in the hallway of the County Courthouse. We of course knew each other well. When I told the prosecutor that I was retained he told me about how fair he had been with the client and that if the client didn’t take the plea offer he was going to indict him for a felony. I think my reaction woke the prosecutor up. What I told him in the Courthouse was that if he indicted my client I would beat him in the County Court and if he decided not to indict him then I would beat him in the local Court. I explained that all an indictment meant was a bigger and more high profile win for me. He could tell I was excited and he asked me to calm down and outline my defenses in a letter.
A short time after I outlined my defenses which essentially boiled down to four :
1. That as the holder of a New York State Pistol Permit issued under Article 400 of the Penal Law the client was exempt from prosecution for weapons possession under New York Law;
2. That as a current law enforcement officer the client was protected under LEOSA;
3. That as a qualified retired law enforcement officer the client was protected under LEOSA
4. Penal Law §265.20 provided an exemption for peace officers to Weapons Charges.
Ultimately, as a result of his legal defenses being laid out for the prosecutor, the client was allowed to pay a fine for a non-criminal violation and have the record of arrest sealed.
The Aftermath of the Case
Not surprisingly after the criminal case ended the County brought an action to revoke the client’s pistol license despite the fact that the arrest was sealed. This required the County to undertake a two step process. First they sought and obtained an unsealing order so that they could obtain the records of arrest from the police and the Court records. The County then used those records to seek revocation of the pistol license that the client has had without incident for decades. Ultimately, a County Court Judge was persuaded that the original arrest was improper and agreed with our arguments concerning LEOSA and New York State Law. The Judge not only reinstated the client’s license but also required that the police return all of his many guns.
Justice was served in this case. But the zeal of prosecutors in certain states to go after law abiding citizens who may have made a minor error in paperwork or some other miniscule error is scary. If you are an honest citizen that has firearms and you find that you are a target of law enforcement, remember that you have rights and options. Find a lawyer who knows gun laws. The life you save me be your own.