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Articles Posted in GUN CRIMES

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As a New York Second Amendment lawyer I get asked all kinds of questions everyday about where and when people may carry their lawfully possessed firearm.  Most of these questions pertain to New York and Federal Law.  However, this week I was contacted with an interesting question.  Can a New Yorker who has a license to possess a firearm take his lawfully owned handgun on vacation with him in Puerto Rico.  After doing the research I learned that surprisingly, the answer was, yes.

Puerto Rico had some of the most restrictive gun laws in the United States prior to 2015.  In June 2015, a local Court ruled that Puerto Rico’s restrictive gun laws were unconstitutional.  For a brief time, Puerto Rico had no enforceable gun laws.  That decision was soon overturned and local and Federal Judges later found that the Puerto Rico’s gun laws were constitutional.  However, in recent years Puerto Rico had become increasingly dangerous especially after the hurricane wreaked havoc on the territory’s infrastructure.

In 2016, Puerto Rico had one of the lowest rates of gun ownership in the U.S. with only 225,000 firearms owned.  A rate of just 6.6 guns per 100 people.  At the same time, Puerto Rico had a murder rate of almost 4 times the national average and almost twice the murder rate in Louisiana which had the highest murder rate of any State.

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In October 2019 we published an article about inventory searches and how the Court are reviewing such searches more carefully.  However, earlier this month, a state appellate court issued a written opinion in a New York credit card fraud case involving a search of the defendant’s belongings that occurred after he was arrested for an unrelated crime. The case is useful in that it illustrates the concept of an inventory search, which frequently is cited as a valid basis for searches that may otherwise be unsupported by probable cause.

The U.S. and New York constitutions provide citizens with certain rights. Among those rights are those contained in the Fourth Amendment, which states that citizens are to be free from unreasonable searches and seizures. Over time, courts have fleshed out the protections of the Fourth Amendment to mean that a police officer cannot conduct a search without a warrant.

Of course, over the years, courts have allowed several exceptions to the warrant requirement. Depending on the situation, there may be a lower burden that police officers must meet or, in some cases, police officers may not need any additional facts to support a search. For example, police do not need a warrant (or even probable cause) to seize an item that is in plain view. The concept behind the plain-view doctrine is that an officer is not conducting a “search” under the terms of the Fourth Amendment if he recovers something that readily observable and in plain view. Another example is the warrant exception involving vehicles. Courts have held that vehicles pose a unique concern for officers in that they are mobile, limiting officers’ ability to go retrieve a warrant. Thus, there is a relaxed standard for searching an automobile.

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In October 2019 we published a Blog which posed the question, “Is the NFA dead?  In the article we discussed several types of short barreled weapons which had been reviewed by the ATF and other law enforcement agencies and had been found to not be covered by the National Firearms Act.  In September 2017 we reported in an article about the Mossberg Shockwave and related firearms that such weapons were legal to purchase and own in New York despite the fourteen inch barrel.  However, in our article in October 2019, we discussed the Franklin Armory Reformation line of firearms which at that time were considered to be legal to own and purchase based upon an ATF determination that the firearms were not considered short barreled rifles or shotguns under the National Firearms Act.  However, today, the ATF issued new guidance.

In an “Open Letter” dated December 19, 2019, the Acting Assistant Director of the BATFE for Enforcement, Programs and Services, the ATF determined that Reformation firearms with barrels less than 18 inches are “Short-Barreled Shotguns” under the Gun Control Act, not the National Firearms Act.  It therefore appears that it is difficult to transport or transfer any Reformation firearm with a barrel length less than 18 inches.  According to the BATFE letter, this is the first firearm ever produced that the BATFE has classified as a Gun Control Act Short Barreled Shotgun.  This is notwithstanding the fact that the Reformation does not accept or shoot shotgun shells.

To refresh everyone’s recollection, the Franklin Armory Reformation line includes firearms with a full stock and short barrels but unlike traditional rifles have the lands and grooves cut straight, front to back.  A traditional rifle has the lands and grooves cut in a twisted pattern to impart a spin on the bullet as it travels through and leaves the barrel.  Since the Reformation does not have “rifling” it could not be considered a rifle and therefore was not subject to the provisions of the NFA that pertain to rifles.  In addition, because the barrel of the Reformation is not smooth and since it does not accept shotgun shells, it similarly cannot be considered a shotgun and therefore the provisions of the NFA pertaining to short-barreled shotguns also do not apply.

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In what is likely to be a blockbuster case the U.S. Supreme Court recently,  heard arguments in  a case involving New York gun laws. While the parties in this case were not criminally charged for possession of a gun, they prospectively challenged the New York City law banning the transportation of a licensed, locked, and unloaded handgun to a home or shooting range outside city limits. The case is important to New York gun crime law because the U.S. Supreme Court may determine that this specific gun law is unconstitutional.  The case may also define the extent of the rights guaranteed under the Second Amendment and the Firearms Owners Protection Act nationwide.

New York City has two types of gun licenses. The first is known as a concealed carry permit, which allows a permit holder to carry a concealed firearm on their person. The second type of license is an “on-premises” license, which allows a permit holder to “have and possess in his dwelling” a pistol or revolver. An on-premises license is specific to a particular residence, and permit holders cannot freely transport a gun. Instead, a limited number of situations are allowed by statute.

One exception allows the permit holder to transport a handgun directly to and from an authorized range or shooting club if it is unloaded and in a locked container. The ammunition must be carried separately. All approved ranges and shooting clubs are located in New York City. Thus, a permit holder cannot transport a gun to a range outside New York City.

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Earlier this month, a state appellate court issued a written opinion in a New York firearms case discussing whether the police officer’s search of the defendant’s car was constitutionally sound. Ultimately, the court concluded that because the officers lacked probable cause to search the vehicle, anything they recovered as a result of the impermissible search must be suppressed.

According to the court’s written opinion, police responded to a call from the complaining witness that the defendant was threatening him. When police arrived, the defendant was in his parked car, which was out in front of the complaining witness’s home. The complaining witness told police that the defendant had threatened to kill him, and that he believed the threat was a real one because he’d seen the defendant with a gun on a previous occasion. The defendant admitted to the police that he told the complaining witness he would kill him if he came onto his property. The defendant also admitted to having a rifle back at home and being licensed to carry a firearm in Virginia, but not New York.

The officers searched the defendant, finding nothing. The officers then searched the defendant’s car and found a gun near the driver’s seat. The defendant argued that the weapon must be suppressed because the police lacked justification for the search of his truck. The trial court agreed, and the prosecution appealed.

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Recently, a state appellate court issued an opinion in a New York gun crime case discussing the defendant’s motion to suppress a firearm that was recovered near where he was arrested. The case allowed the court to discuss whether the police officers’ conduct in stopping the defendant was permissible under state and federal law. Ultimately, the court concluded that the officers attempted to stop the defendant without probable cause, and thus the defendant’s motion was properly granted.

According to the court’s opinion, police received a call reporting a gunshot at a specific intersection. After arriving, police found an unidentified witness about a block away, who reported that he heard the gunshot and had noticed two men walking near the area where the shot originated from. The witness described the men and what they were wearing, but did not indicate that either man had a gun – only that he had seen them at the intersection.

Police continued to the intersection and located the defendant and another man who matched the description given by the witness. Officers asked the defendant to stop. At this point, the defendant’s hands were in his pockets. The defendant turned and ran. The other officer apprehended the defendant a short time later, and recovered a gun nearby after hearing a metal object hit the ground immediately before arresting the defendant.

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Earlier this month, a state appellate court issued an opinion in a New York gun case holding that police were not justified in searching the defendant’s backpack without a warrant. The case presents an informative and important discussion of the exigent-circumstances doctrine, which allows police to bypass the warrant requirement in certain limited situations.

According to the court’s opinion, police officers went to the defendant’s home based on a tip that a man was selling drugs out of the home. The tip also mentioned that the man selling drugs kept a gun in a distinctive backpack. Upon arriving at the scene, officers saw the defendant smoking a joint on the front porch. The defendant allegedly stood up, cursed, grabbed a distinctive looking backpack, and ran inside.

Officers followed the defendant into the home, and observed the defendant toss the backpack on the floor in the home. Police handcuffed the defendant on the second floor. After police secured the defendant, they opened the backpack. Inside the backpack was a gun and some marijuana. The defendant was charged with criminal possession of a weapon and possession of marijuana.

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As New York gun rights attorneys we are starting to see cases involving New York Extreme Risk Protections Orders 490x280-redflag-landing(ERPOS) sometimes referred to as Red Flag Laws.  New York’s Civil Practice Law and Rules was amended to add a new Article 63-A which gives a Supreme Court Justice, sitting in the County where a person resides, the authority to take away firearms, rifles and shotguns from an individual without that person having been convicted of, arrested for charged with or even having committed any crime.  As a result, these laws, which seem to be sweeping the Country, and are now law in approximately 17 states are extremely controversial since a person can lose their constitutional right without committing a crime.

New York’s Extreme Risk Protection law gives the authority to file Petitions to remove guns to three different classes of people.  A police Officer, a family or household member and a school administrator are all eligible to file Petitions seeking an Extreme Risk Protection Order.

The procedure that is laid out by New York Law, CPLR sec 6341 permits one of the lawful Petitioners to file a Petition. Once a Petition is filed, if the Court finds that there is “Probable Cause” to believe the person is a danger to others or themselves, the Court can grant a temporary extreme risk protection order, ex-parte.  Meaning that the Court can grant the order without the accused knowing about it or without the accused being able to defend themselves.  Probable Cause is a very low standard just meaning that something is more like than not as opposed to proof beyond a reasonable doubt or proof by clear and convincing evidence.

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Earlier this month, a state appellate court issued a written opinion in a New York gun case discussing the concept of forced abandonment. Generally, when a defendant discards an item – such as narcotics or a gun – they lose any ability to argue for the item’s suppression. However, when a defendant’s choice to discard an object is the product of forced abandonment, the object must be suppressed. Forced abandonment occurs when the defendant’s discarding of an item was “spontaneous and precipitated by the unlawful pursuit by the police.”

According to the court’s opinion, police received a report of gunshots near an apartment complex. The report indicated that the suspect was a black male in a group of about eight other men. As officers arrived, they saw two black men, one of whom was the defendant. The officers could not initially see anything in either man’s hand. When the men noticed the officers, the men turned around and ran.

The officers followed the men, giving a description over police radio. The officers lost sight of the men for a few moments, but then regained sight of the second male. As officers were arresting this man, one of the officers involved in the chase looked at a nearby apartment building and saw the defendant with a gun in his hand. The defendant threw the gun and ran. Police caught up to the defendant, arrested him, and charged him with possession of a firearm.

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The National Firearm Act of 1934 (commonly known as the “NFA”) was the first federal gun control act and for the first time created a national registry of purchasers of “Machine guns”, “sawed-off shotguns” and “silencers”.  In addition, a $200 tax is imposed on each transfer of any NFA item and waiting periods can be long.

However, with the recent introduction of innovative new guns and technology that seem to have effectively circumvented the NFA, is the NFA still a useful law?

More than two years ago, we wrote about a new and innovative “shotgun” that has since taken the forearms world by storm.  Originally introduced as the Mossberg Shockwave and then the Remington Tac-14, these shotguns came with a standard 14 inch barrel and an overall length of just over 26 inches.  The Bureau of Alcohol Tobacco and Firearms (BATF) had examined samples of these firearms and determined that these were legal under the NFA for reasons discussed at greater length in our article about these firearms.