Articles Posted in IN THE NEWS

A New York State Supreme Court Justice ruled last week that New York’s Extreme Risk Protection Order laws, often called Red Flag laws are unconstitutional and declined to issue an Extreme Risk Protection Order (ERPO).  As we have written in the past, extreme risk protections have become very popular in anti-gun states and are a way for government officials to take away the Second Amendment rights of individuals who have not committed any crime.  Yet, New York’s Red Flag laws were expanded in July of 2022.  Justice Thomas E. Moran, of the Rochester based Monroe County Supreme Court struck down these laws in a 10 page decision, in a case entitled G.W. v. C.N., 2022 NY Slip Op 22392 (Monroe County Sup. Ct. 2022).

This particular case highlights everything wrong with Red Flag laws.  The Petitioner who filed for the Extreme Risk Protection Order was the estranged boy friend of the Respondent who was a licensed gun owner in New York State.  He alleged that his ex-girlfriend was a danger to herself and others and obtained a Temporary Extreme Risk Protection Order.  Justice Moran pointed out that the Petition cited a variety of statements that the Respondent allegedly made threatening to harm herself with a gun which the Petition falsely claimed were made within 6 months before the Petition was filed but in fact dated back to 2020 and 2021.  The Court also pointed out that there was a Family Court case also going on in which The Petitioner had an Order of Protection against him which among other things barred him from the home that they had shared.

Turning to the Constitutionality of the Article 63-A, which lays out New York’s Red Flag laws and procedures, the Court cited the United States Supreme Court decisions in Heller, McDonald and most recently Bruen and applied the Bruen Standard that when the 2nd Amendment’s text covers a person’s conduct, a law which regulates that conduct is presumptively unconstitutional unless the State can demonstrate that the regulation is consistent with the country’s historical tradition of firearms regulations.

Just about one week after the United States Supreme Court delivered its ground breaking decision in Bruen affirming the Constitutionally protected right to carry a gun in public and addressing the sanctity of the Second Amendment, Governor Hochul and the New York State Legislature convened an extraordinary legislative session and passed the “Concealed Carry Improvement Act.  The purpose of the CCIA was to make the lawful carry of a firearm so difficult, so constrained and so limited that no one would choose to carry their firearm for fear of being charged with a felony.  The thrust of the law was to create numerous sensitive and restricted locations where a licensed citizen could not carry firearms and to make the application process unduly burdensome.

The law was almost immediately after passage challenged in numerous Court proceedings.  New York State rather than defending the law on the merits chose to defend the law mostly with the procedural argument that because the Plaintiffs challenging the law had not been arrested or suffered any harm they did not have standing to challenge the law.  Now after several decisions, here is a partial list of what is still enforceable under the CCIA.

In the Western District of New York, on November 3, 2022, Judge Sinatra stayed the enforcement of the provisions of the CCIA which prohibited carrying a firearm in places of worship.

ANY OTHER WEAPONS

We have written in the past extensively about the Mossberg Shockwave, Remington Tac-14 and AR-15 others.  The basic principle involves a weapon that is not designed to be fired from the shoulder so that it cannot be legally considered to be a rifle or shotgun and is defined to be fired with two hands so does not meet the legal definition of a pistol.  Therefore, the restrictions on barrel length of shotguns and rifles did not apply as long as the overall length of the weapon was greater than 26 inches.  In addition, since these guns were neither pistols, shotguns nor rifles they could have collapsible stocks, flash suppressors and/or bayonet lugs and not fall into the definition of “assault weapons”.  Despite the fact that these “others” don’t seem to be the source of any significant crime this upset the gun grabbers.  Now under the new law they are regulated and probably need to be added to a pistol license to be kept.

The new law signed by Governor Kathy Hochul on June 6, 2022, redefines the term firearm in New York.  Under New York Law, a firearm requires a license to be issued in order to legally possess the firearm just like any handgun.  The new law amends Penal law sec. 265.00 (3) to include in the definition of firearm: any other weapon which is not otherwise defined in Penal law 265.00 and which is designed or can be converted to fire a projectile by the force of an explosive.

EXPANSION OF RED FLAG LAWS

On June 6, 2022 Governor Kathy Hochul signed an expansion of New York’s already problematic red flag laws giving the right to file Extreme Risk Protection Petitions to a wide range of health care workers.  The list of healthcare workers includes doctors, nurses, social workers, psychiatrists, marriage and family therapists, and licensed mental health counselors who have treated the person who they wish to red flag within the 6 months preceding the red flag petition.  The new law went on the require that police officers and district attorneys file red flag petitions under certain circumstances.  Previously, it was discretionary with the police officer or district attorney whether or not to file a red flag case.  The new law makes it mandatory under certain circumstances.

One issue that has not been reported is that this amendment to the extreme risk protection law creates a major new exception to the doctor-patient privilege.  The doctor-patient privilege is codified in New York under CPLR 4504 and prohibits the disclosure of information obtained while attending the patient.  The new law specifically authorizes a medical professional to disclose protected health information.  In addition, it gives the Judges hearing the petition for an extreme risk protection order the authority to order the disclosure of protected medical records from other medical providers.  This is perhaps one of the largest exceptions ever created to doctor-patient privilege and is likely to discourage many from getting treatment because of the potential for disclosure of their personal medical records.

On June 6, 2022, New York Governor Kathy Hochul signed 10 new gun control measures into law.  These laws were hurriedly written and passed and appear to be a knee jerk reaction to the tragedies in Uvalde and Buffalo but will have a heavy impact on the New York Second amendment community.  As New York Second Amendment lawyers we have been contacted by a large number of concerned citizens, firearms trainers and gun store owners about the impact of these laws.  Taken as a whole these may be the stupidest gun laws ever written.  Here is a brief summary of what passed and what it means with links to get more information about each one.  .

S.9458/A.10503 makes it a felony to either purchase a semiautomatic rifle without a license or sell a semiautomatic rifle to someone who does not have a license. The new law also raises the minimum age to buy a semiautomatic rifle to 21 years of age.  To read more about the law click here.

S.9407-B/A.10497 makes it a crime to purchase body armor except for individuals in “eligible professions”.  It makes it a felony to sell body armor to someone who is not in an “eligible profession”. To read more about this law click here.

As New York firearms attorneys we reported in our December 28, 2021 blog about the new law regulating 80 percent lower receivers in New York, the law allows for a six month grace period.  However as has been reported in the news lately, the term “Ghost Gun” is the new boogie man for gun control supporting politicians and raids have been taking place before the new law even takes effect.  Please read this article and this one.

The problem for many gun owners begins when they unlawfully finish what started out as an 80 percent lower in one of two ways.  First, it is a serious felony under New York law to possess any handgun, even in one’s own home without a handgun license.  Once you complete the 80 percent lower into a handgun a person who doesn’t have a pistol license possesses an unregistered and unlicensed firearm, referred to by many politicians as a “ghost gun”.   The fact is that getting a handgun license in many New York counties, especially during the pandemic could take a year or more.  In addition, fully manufactured guns were hard to come by.  Some people took matters into their own hands and completed 80% lowers into functioning handguns.

Possession of a handgun without a license in your home or place of business is a class “E” felony punishable by up to 4 years in prison.  Possession of a loaded unlicensed and unregistered handgun outside your home or place of business is a class “C: violent felony and carries a mandatory minimum sentence of 3.5 years in State prison with a maximum sentence of 15 years.  Possession of 3 or more firearms makes it a “D” felony and possession of 5 or more firearms makes it a “C” felony.