NY SAFE Act

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NY SAFE Act
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New York State Legislation
 
Full name New York Secure Ammunition and Firearms Enforcement Act
Status In force
Signed into law January 15, 2013
Governor Andrew Cuomo
Associated bills Gun Legislation Bill

The New York Secure Ammunition and Firearms Enforcement Act of 2013 commonly known as the NY SAFE Act is a gun control law in the state of New York. The law was passed by the New York State Legislature on January 15, 2013, and was signed into law by Governor of New York Andrew Cuomo on the same day.[1]

The legislation was written in response to the Sandy Hook Elementary School shooting in Newtown, Connecticut.[2] It was sponsored by State Senator Martin Golden. It passed the New York State Senate on Monday, January 14, and the State Assembly on Tuesday, January 15.[3] Governor Andrew Cuomo signed the bill into law half an hour after it passed the legislature.[4] Cuomo described the law as the "toughest" gun control law in the United States.[2][5]

The NY SAFE Act contains a number of firearms regulations, and a severability provision, in case the broad prohibitions against weapons are invalidated by the courts.

Provisions[edit]

The SAFE Act includes the following provisions:[6][7]

  • Bans possession of any "high-capacity magazines" regardless of when they were made or sold. The maximum capacity for all magazines is 10 rounds. .22 caliber tubular magazines are exempt from this limit. Previously legal "pre-1994-ban" magazines with a capacity of 30 rounds are not exempt, and must be sold within one year to an out-of-state resident or turned in to local authorities. The magazine limit took effect April 15, 2013.[8][9] Originally the law allowed only seven rounds to be loaded into a magazine, but this provision was struck down by a federal judge on December 21, 2013.[10]
  • Ammunition dealers are required to do background checks, similar to those for gun buyers. Dealers are required to report all sales, including amounts, to the state. Internet sales of ammunition are allowed, but the ammunition will have to be shipped to a licensed dealer in New York state for pickup. Ammunition background checks were scheduled to begin January 15, 2014,[11] but were put on hold indefinitely because the required "seamless" technology that would not inconvenience vendors or customers could not be put in place. The superintendent of state police, charged with creating such technology, is working on development, but a release date is still unknown.[12] So while out-of-state vendors are required to ship ammunition to a NYS licensed dealer, the buyer can still pick it up with no check of any kind required, or walk into any registered ammunition dealer (now required under the act to sell ammunition) and buy ammunition providing he/she is over 18.
  • Requires creation of a registry of assault weapons. Those New Yorkers who already own such weapons would be required to register their guns with the state. Registration began on April 15, 2013 and must be completed before April 15, 2014.[9]
  • Requires designated mental health professionals who believe a mental health patient made a credible threat of harming others to report the threat to a mental health director, who would then have to report serious threats to the state Department of Criminal Justice Services. A patient's gun could be taken from him or her.
  • Stolen guns are required to be reported within 24 hours. Failure to report can result in a misdemeanor.
  • Broadens definition of "assault weapon" from two identified features to one. The sale and/or transfer of newly defined assault weapons is banned within the state, although sales out of state are permitted. Possession of the newly defined assault weapons is allowed only if they were possessed at the time that the law was passed, and must be registered with the state within one year.
  • Requires background checks for all gun sales, including by private sellers - except for sales to members of the seller's immediate family. Private sale background checks began March 15, 2013.[11]
  • Guns must be "safely stored" from any household member who has been convicted of a felony or domestic violence crime, has been involuntarily committed, or is currently under an order of protection.[11] Unsafe storage of assault weapons is a misdemeanor.
  • Bans the Internet sale of assault weapons.
  • Increases sentences for gun crimes, including upgrading the offense for taking a gun on school property from a misdemeanor to a felony.[13]
  • Increases penalties for murdering a first responder (Webster provision) to life in prison without parole.
  • Limits the state records law to protect handgun owners from being identified publicly. However, existing permit holders have to opt into this provision by filing a form within 120 days of the law's enactment.[14] There also may exist issues with respect to "registered" owners in the new regulations vs "permit" holders under previous law.
  • Requires pistol permit holders or owners of registered assault weapons to have them renewed at least every five years.
  • Allows law enforcement officials to pre-emptively seize one's firearms without a warrant or court order when there is probable cause the individual is mentally unstable or intends to use the weapons to commit a crime.[15][16]

Support[edit]

Despite strong opposition from gun rights advocates and conservative Republicans, including GOP gubernatorial candidate Rob Astorino, an overwhelming number of New York voters seem to support Gov. Andrew Cuomo's controversial SAFE Act, according to a new poll.

Fourteen months after its passage, 63 percent of registered New York state voters say they support the SAFE Act, compared to just 32 percent who oppose it, according to a Siena College poll released March 24.

Upstate New York Voters : 52 percent of Upstate Voters Oppose NY SAFE ACT, while only 45 percent are in support. 3 percent were undecided.

Nine municipalities in the state (out of 1,607 [17])have passed resolutions supporting the SAFE Act.[18]

In contrast, two hundred seventy-one municipalities in the state (out of 1,607 [17])have passed resolutions calling for repeal of the SAFE Act.[19]

Criticisms[edit]

The act came under criticism immediately after it was signed into law by those who argued it restricted civil liberties. In addition to opposition from elected officials and organizations, a ground swell of public protest encompassed the state capitol Albany, New York, on January 19, 2013, attended by several thousand protesters.[20]

The law was criticized as "rushed through" by the state legislature without consideration of whether it would criminalize police and other law enforcement officers who carry firearms with magazines with a larger capacity than those allowed for civilians.[21] Police officers are not explicitly exempted from some of the law's provisions, such as carrying weapons on school grounds or the seven round limit, and the governor's office is planning on working with the state legislature to amend the legislation. Technically, the pre-existing exemption from the previous 10 round limit may cover law enforcement.[13] On January 18, 2013, Governor Cuomo's spokesman said police officers possessing magazines with more than seven bullets would not be deemed to be in violation of the law.[22]

Shortly after the SAFE Act was signed into law, State Senator Kathleen A. Marchione brought forth a petition to repeal and replace the restrictive portions of the law. By early March 2013, more than 127,000 signatures had been added to the petition.[23]

Retired police officers were not exempted, but were exempted in July 2013. Retired police officers must register all police firearms with the state, and will no longer be penalized for possessing magazines over 7 rounds.[24][25]

The New York State Sheriffs' Association issued a statement criticizing several aspects of the legislation. Included among them is their belief that "the new definition of assault weapons is too broad, and prevents the possession of many weapons that are legitimately used for hunting, target shooting and self defense." The new seven round magazine limit was also criticized, but the statement did express support on the issue of tougher penalties for illegal use of firearms.[26]

Some mental health experts have expressed concerns that the law might interfere with their treatment of potentially dangerous individuals, or discourage such people from seeking treatment.[27] The United States Veterans Health Administration (VA) has already said they will not comply with the provision requiring release of certain mental health records as it violates federal patient confidentiality laws.[28]

Others have claimed that this is a back door ban on handgun sales, noting that seven round magazines simply do not exist for many popular models.[29] After realizing seven-round magazines do not exist for most firearms, New York governor Andrew Cuomo reversed his position on the seven-round limit, stating, "There is no such thing as a seven-bullet magazine [sic]. That doesn't exist, so you really have no practical option." He went on to say the state needs to allow the sale of handguns and rifles with ten-round magazines, but requires the people of New York only load seven rounds in them, except at shooting ranges and competitions. He claimed the law is still enforceable.[30] Cuomo and New York State Senate leaders planned an indefinite suspension of the seven-round magazine limit until they could rewrite the measure.[31] In March 2013 during budget negotiations, Cuomo and lawmakers agreed to continue to allow 10-round magazines to be sold, but could still only be loaded with 7 cartridges.[9]

As of May 11, 2013, 52 of New York's 62 counties have passed official resolutions in direct opposition of the NY SAFE Act; some of these counties have directed their law enforcement officials to not enforce the SAFE Act within their jurisdictions. More than 325 local municipalities throughout upstate New York have also voiced public opposition to the law through village, town and city resolutions calling for repeal. In fact, the public county and municipal opposition to the SAFE Act is historic in nature. Not since Governor George Clinton took office as New York's first Governor in 1777 has any other law in the state's history garnered the sheer magnitude of official opposition and condemnation as Governor Cuomo's SAFE Act.[citation needed] Even in the state capital of Albany, the Albany County minority legislature issued a proclamation opposing the SAFE Act. Nassau, Suffolk and Westchester counties have yet to act in any official manner.[32] While no official proclamation has been made, New York City is not expected to offer any opposition given Mayor Michael Bloomberg's public support of the bill and help in drafting the legislation.[33] Further, dozens of organizations, including sportsman's clubs within the state, the American Legion, the New York State Association of County Clerks, the New York State Association of Psychiatric Rehabilitation Services, the New York State Conservation Council, the US Department of Veterans Affairs, and others, have all publicly denounced the law, and called for its repeal or amendment.

Legal challenges[edit]

Article 2, Section 4 of the New York Civil Rights Law states: Right to keep and bear arms. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed.

On Tuesday, January 29, 2013, attorney James D. Tresmond, Esq. of Hamburg, NY filed a lawsuit in New York State Supreme Court before the Honorable Diane Devlin, making this the first legal challenge to the NY SAFE Act to be heard in any court. Further proceedings are scheduled for April 25, 2013 at 9:30 a.m.[34] Also on the same day The New York State Rifle and Pistol Association filed a notice of legal claim.[35]

On February 28, 2013, the New York State Supreme Court issued an order saying that the state must show that the law does not violate the constitution. If the state is unable to do so, the court will issue an injunction against its implementation on April 29, 2013.[36][37]

On March 11, 2013, the United States Department of Veterans Affairs announced that it would not follow the provision of the NY SAFE Act requiring mental health professionals to report patients who seem more likely to hurt themselves or others. A Department spokesman stated that federal laws protecting the privacy of veterans take precedence over state laws. Advocates for military veterans had expressed concern that the reporting requirement would deter some people from seeking needed treatment.[38]

Robert L. Schulz from "We the People of New York" filed a lawsuit asking for an injunction against the law, saying that the law was passed in violation of the New York constitution. The suit alleges that Governor Cuomo's use of a "message of necessity" to waive the 3-day waiting period for passing legislation was improper. State supreme court judge Thomas McNamara denied the injunction saying "Concerns raised should be issues raised in elective process. This is not a judicial issue" and "The Court of Appeals has been clear, is clear, that judicial intervention or judicial review of a message of necessity is not allowed." [39] Another judge has ordered both sides to argue their case in the Appellate Division of the State Supreme Court.[40][41]

On September 27, 2013, the Second Amendment Foundation filed suit in federal court seeking to enjoin the State of New York from enforcing provisions of the SAFE Act that limit the use of gun magazines containing more than seven cartridges. SAF was joined in the lawsuit by the Shooters Committee for Political Education (SCOPE) and Long Island Firearms LLC. They are represented by New York attorneys David Jensen and Robert P. Firriolo. Named as defendants in the lawsuit are New York Gov. Andrew Cuomo and Joseph D'Amico, superintendent of the Division of State Police.

The lawsuit, filed in U.S. District Court for the Northern District of New York, asserts that the seven-round loading restriction violates the Second Amendment because it "substantially interferes with the right of law abiding citizens to defend themselves and is not sufficiently related to any compelling or otherwise adequate government interest."

"The cartridge limit is arbitrary and serves no useful purpose other than to frustrate, and perhaps entrap, law abiding citizens who own firearms with standard capacity magazines that were designed to hold more than seven rounds," said SAF founder and Executive Vice President Alan M. Gottlieb. "Several top law enforcement officials have already publicly stated they will not enforce provisions of this law, yet Gov. Cuomo and Supt. D'Amico are pushing ahead. "The law is contradictory, in that it is legal in New York to possess magazines that hold up to ten cartridges," he added. "But the SAFE Act limits people to seven rounds, with some narrow exceptions. This amounts to virtual entrapment for anyone who loads more than seven rounds in a magazine for self-defense purposes. "Magazines that hold ten or more rounds are in common use all over the country," Gottlieb concluded. "This arbitrary limit essentially penalizes law abiding citizens for exercising their right of self-defense, and that cannot be allowed to stand."

On December 31, 2013, Chief U.S. District Judge William M. Skretny, of the Federal District Court in Buffalo, upheld most of the New York SAFE Act, saying that its provisions "further the state's important interest in public safety.... it does not totally disarm New York's citizens; and it does not meaningfully jeopardize their right to self-defense".[10] However he struck down the provision that only seven rounds of ammunition could be loaded into a ten-round magazine, calling it "an arbitrary restriction" that violated the Second Amendment, and saying that it could result in "pitting the criminal with a fully-loaded magazine against the law-abiding citizen limited to seven rounds."[10]

Impact[edit]

  • Kahr Arms has stated that they are moving their headquarters as well as a manufacturing facility from New York to Pennsylvania after the passing of the NY SAFE Act.
  • In February 2014, it was announced that Remington Arms, which also scouted locations in Tennessee,[45] will do a planned expansion of its operations in Alabama, rather than at its Ilion location in Upstate New York.[46] Local union officials blamed Remington's decision on New York's SAFE Act restrictions on assault weapons.[47]
  • On May 15, 2014, Remington announced it will be moving its production lines of its popular Bushmaster semi-automatic rifles and R1 pistols (Model 1911) from Ilion, NY to Huntsville, AL.[48]
  • Online weapons retailer Cheaper Than Dirt has refused to ship even NYS compliant 10 round magazines in fear that customers may load more than 7 rounds.
  • Many online ammunition retailers no longer sell ammunition to NYS even in compliance with the NYSAFE Act provision requiring shipment to FFL holders only. The added complexity of verifying an FFL on purchases which are often less than $50 is simply not worth the hassle.
  • In May 2014 Defenshield, an upstate NY defense contractor, publicly announced their move to Florida; citing the SAFE Act as a main motivation.

See also[edit]

References[edit]

  1. ^ Glaser, Howard (January 15, 2013). "Cuomo Gun Safety Legislation Passes NY State Senate With Bipartisan Support, Assembly Action Today". The Huffington Post. Retrieved 25 January 2013. 
  2. ^ a b "New York passes first U.S. gun control bill since Newtown massacre". CBS News. 15 January 2013. Retrieved 16 January 2013. 
  3. ^ Campbell, John (15 January 2013). "N.Y. first state to tighten gun laws after Newtown". USA Today. Retrieved 16 January 2013. 
  4. ^ Virtanen, Michael (15 January 2013). "NY passes first US gun control law since massacre". Philadelphia Media Network. Retrieved 16 January 2013. 
  5. ^ Walshie, Shushannah (15 January 2013). "New York Passes Nation's Toughest Gun-Control Law". ABC News. Retrieved 16 January 2013. 
  6. ^ New York passes major gun control law -- first since Newtown massacre - NBCNews.com, January 15, 2013
  7. ^ Cuomo Signs NY SAFE Act: 13 Provisions Of The New Gun Control Law - Huffingtonpost.com, January 16, 2013
  8. ^ Confusion sets in for gun dealers after NY SAFE Act is enacted - Poststar.com, January 19, 2013
  9. ^ a b c Magazine limit, gun registration period to begin Monday - Democratandchronicle.com, April 13, 2013
  10. ^ a b c Kaplan, Thomas (December 31, 2013). "Federal Judge Upholds Majority of New York Gun Law", New York Times. Retrieved December 31, 2013.
  11. ^ a b c "NYSAFE Act Gun Reform | Governor Andrew M. Cuomo". Governor.ny.gov. 2013-10-03. Retrieved 2013-11-08. 
  12. ^ http://bearingarms.com/ny-safe-act-ammo-purchase-background-check-indefinitely-delayed-to-avoid-pulling-an-obamacare/
  13. ^ a b Berger, Judson (January 18, 2013). "NY Guv Looks to Clarify Gun Law After Concern About Exemption for Police". Fox News. Retrieved January 19, 2013. 
  14. ^ "Bills". Assembly.state.ny.us. Retrieved 2013-11-08. 
  15. ^ "Enacts the NY Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013". New York State ASSEMBLY. S. 2230 21 A. 2388. p. 6. Retrieved 2 August 2014. "Whenever a person is certified not suitable to possess a rifle or shotgun, a member of the police department to which such certification is made, or of the state police, shall forthwith seize any rifle or shotgun possessed by such person." 
  16. ^ "N.Y. PEN. LAW § 265.00 : NY Code - Section 265.00: Definitions". FindLaw FOR LEGAL PROFESSIONALS. 16. Retrieved 2 August 2014. "Certified not suitable to possess a self-defense spray device, a rifle or shotgun" means that the director or physician in charge of any hospital or institution for mental illness, public or private, has certified to the superintendent of state police or to any organized police department of a county, city, town or village of this state, that a person who has been judicially adjudicated incompetent, or who has been confined to such institution for mental illness pursuant to judicial authority, is not suitable to possess a self-defense spray device, as defined in section 265.20 of this article, or a rifle or shotgun." 
  17. ^ a b http://www.nyslocalgov.org/pdf/Local_Government_Count.pdf.  Missing or empty |title= (help)
  18. ^ http://www.nysaferesolutions.com/resolutions/#support.  Missing or empty |title= (help)
  19. ^ http://www.nysaferesolutions.com/resolutions/#municipalities.  Missing or empty |title= (help)
  20. ^ "Thousands protest NY SAFE Act at Capitol". WRGB-TV. 20 January 2013. Retrieved 25 January 2013. 
  21. ^ Elzufon, Rachel (January 23, 2013). "NY SAFE Act Faces Changes". WWKB. Retrieved 25 January 2013. 
  22. ^ New York Law Enforcement Exempt From Safe Act - Wetmtv.com, January 18, 2013
  23. ^ "Stand Up For The Second Amendment By Standing With New York State Senator Kathleen Marchione | New York State Senate". Nysenate.gov. Retrieved 2013-11-08. 
  24. ^ "NY Gov. Cuomo Signs SAFE Act Exemption For Retired Cops | New York Daily News". Nydailynews.com. 2013-07-08. Retrieved 2013-11-08. 
  25. ^ NY
  26. ^ "Sheriffs’ Response to NY SAFE Act | New York State - Sheriffs Association". Nysheriffs.org. Retrieved 2013-11-08. 
  27. ^ "Experts Fear Proposed N.Y. Gun Law Might Hinder Therapy". USA Today. Associated Press. January 15, 2013. Retrieved January 19, 2013. 
  28. ^ http://www.thenewyorkworld.com/2013/03/11/veterans-safe-act/
  29. ^ [1][dead link]
  30. ^ [2][dead link]
  31. ^ KRISS, ERIK (March 22, 2013). "State’s new limit on gun magazines put on hold because 7-bullet magazines don’t exist". New York Post. Retrieved March 22, 2013. 
  32. ^ "Resolution quick list". NY SAFE Resolutions. 2013-02-15. Retrieved 2013-11-08. 
  33. ^ Leghorn, Nick. "Cuomo Blames Bloomberg, Brady Campaign for SAFE Act". The Truth About Guns. Retrieved 2013-11-08. 
  34. ^ "Lawsuit Filed Challenging New York Gun Control". wgrz.com. 2013-01-29. Retrieved 2013-11-08. 
  35. ^ Joseph Spector, Gannett Albany (N.Y.) Bureau (January 29, 2013). "Opponents take N.Y. gun law to court". USA Today. Retrieved January 29, 2013. 
  36. ^ "State Supreme Court Wants NYS to Show Good Cause that Gun Law is Constitutional", WKTV, February 27, 2013. Retrieved March 2, 2013.
  37. ^ "Court to Consider Whether Speedy Approval of NY Gun Controls Violated Constitution", Fox News, March 2, 2013. Retrieved March 2, 2013.
  38. ^ Virtanen, Michael (March 11, 2013). "VA Says It Won't Follow New York Gun Law", Huffington Post. Retrieved March 11, 2013.
  39. ^ "Judge denies injunction of NY SAFE Act, saying not a 'judicial i - NEWS10 ABC: Albany, New York News, Weather, Sports". News10.com. Retrieved 2013-11-08. 
  40. ^ "NY Safe Act heads back to court". WNYT.com. 2013-03-18. Retrieved 2013-11-08. 
  41. ^ "WestlawNext Current Awareness - Practitioner Insights : WestlawNext Legal Research System: Thomson Reuters". Newsandinsight.thomsonreuters.com. Retrieved 2013-11-08. 
  42. ^ Berman, Jillian (2013-04-03). "Larry Thomas, 'Soup Nazi' Actor, Pushes Serbu Firearms To Pull Pro-Gun T-Shirt Featuring His Face". The Huffington Post. Retrieved 2013-04-25. 
  43. ^ Higginbotham, David (2013-04-09). "No Serbu For You, Soup Nazi Wants His Image Back". guns.com. Retrieved 2013-04-25. 
  44. ^ Lestch, Corrine (2013-10-28). "Upstate gunmaker American Tactical Imports moving to South Carolina". NY Daily News. Retrieved 2013-10-29. 
  45. ^ Mary Lou Byrd. "Three Gun Companies Leave NY Following Gun Law | Washington Free Beacon". Freebeacon.com. Retrieved 2013-11-08. 
  46. ^ Juteau, Robert & Donna Thompson, "It's Official: Remington to Expand to Alabama", The Telegram, Herkimer, NY - Feb. 17, 2014.[3] Retrieved 2014-02-19.
  47. ^ Moriarty, Rick. "Union official blames Remington Arms expansion in Alabama on NY SAFE Act". syracuse.com - The Post-Standard. Retrieved 2014-02-19.
  48. ^ http://www.wktv.com/news/local/Remington-to-relocate-two-Ilion-lines-to-Huntsville-259543811.html#IDComment831455940