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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 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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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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As gun rights lawyers we try to keep the public updated on significant changes to New York gun laws.  Several new laws are going into effect in New York and gun owners need to be aware.

First, a new gun storage law was passed which makes it a misdemeanor for a gun owner that lives with children under 16 to leave the gun unlocked.  The measure amends penal law section 265.45 and leaving a gun unlocked when children live in the home is a class “A” misdemeanor punishable by up to 1 year in jail.  In addition, a new penal law section was added 265.50 which makes it a violation, punishable by 15 days in jail to leave a gun unlocked even if there are no children in the home.

Both of these safe storage laws are likely to be challenged and struck down because the United States Supreme Court has made it clear that the Second Amendment protects the right of a person to have a gun for self-defense.   By requiring that guns in your home be locked, the government is specifically preventing you from having an accessible gun for self defense.

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Guns, ammunition and magazines that were suppressed by the Judge

New York, Second Amendment attorney and NRA  Firearms instructor Peter Tilem scored a major victory in Rockland County Court earlier today, when the Judge holding a suppression hearing ruled that there was no probable cause for the arrest of his client and ordered 13 guns, hundreds of rounds of ammunition, and high capacity magazines, called “high capacity ammunition feeding devices” suppressed, meaning that they could not be used as evidence at trial because of the fact that they were illegally seized.  The decision came after an intense suppression hearing in Rockland County Court where two senior police officers testified about the circumstances surrounding the arrest and interrogation of both individuals charged in a 12 count indictment.

Following reports of shots fired on July 8, 2018, in the area of the New York – New Jersey border in Rockland County, police from both New Jersey and New York police departments located three individuals firing weapons which were lawfully purchased and possessed in New Jersey.  The handguns were unlicensed in New York and the individuals were found less than a 1/4 mile over the border in New York.  In addition, some of the weapons which were lawful in New Jersey violated New York’s “Safe Act” and magazines that were legal in New Jersey violated New York’s ban on magazines capable of accepting more than 10 rounds of ammunition.

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New York has one of the most draconian and burdensome knife laws in the Country and as we have reported over almost a decade in this blog many innocent people have been caught up in New York’s knife law maze.  Last week, however, after several prior attempts at changing the law, Governor Cuomo finally signed a law that will change New York’s knife laws.1142076_knife_1

The Problem

As we wrote as early as 2010, the Manhattan District Attorney’s Office made a deal with several retailers in Manhattan, including Home Depot and other major retailers for them to pay a financial penalty and stop selling gravity knives in New York.  The problem was that these knives were being sold by companies who paid only a relatively small financial penalty while citizens, many african-american and latino youths were being arrested and given criminal records for buying these knives which were readily available.  In 2016, we wrote another blog about this problem after the Village Voice wrote an extensive article about it.  According to the Village Voice article, there had been as many as 60,000 arrests for gravity knives in the preceding 10 years which put gravity knives in the top 10 most prosecuted cases.  Village Voice analysis also seemed to indicate that a disproportionate number of African-Americans and Latinos were prosecuted for gravity knives.

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As Second Amendment attorney Peter H. Tilem reported in a blog on April 24, 2016, New York and New Jersey’s outright ban on stun guns and tasers were unconstitutional.  stungunNow today, a Federal District Judge in upstate New York confirmed that opinion and enjoined the New York State Police from enforcing New York Penal Law sec 265.01 (1) as it applies to “Electronic Dart Guns” and “Electronic Stun Guns.”  The case entitled Avitabile v. Beach was decided earlier today by US District Judge David N. Hurd of the United States District Court for the Northern District in New York.  While the case is not necessarily binding in New York City, the case applies the U.S. Supreme Court ruling in Caetano v. Massachusetts, which struck down the Massachusetts state ban on stun guns.

The issue actually began with the famous Second Amendment Case of Heller which was decided in 2008.  In knocking out a ban on handguns in Washington DC, the US Supreme Court in Heller ruled that the Second Amendment applied to “bearable” arms.  The Caetano decision, in knocking down a stun gun conviction in Massachusetts, made it very clear that a stun gun was a bearable arm as that term was used in Heller.

Besides being illegal, bans on stun guns and tasers are inherently illogical.  All states permit the possession of handguns to a degree.  Even New Jersey and New York City which effectively ban the possession of handguns outside the home, permit handgun possession in the home, with the appropriate license (in New York).  However, prior to today’s ruling, New York and New Jersey have a complete and total ban on the civilian possession of stun guns and tasers which are non-lethal.  This complete and total ban includes both possession inside the home and outside the home and does not even permit possession with a license.

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New York Firearms Law and Second Amendment Firm, Tilem & Associates has filed three legal actions, two in New York State Supreme Court and one in Federal Court in Manhattan alleging that the New York City Police Department Licensing Division uses factors in licensing decisions that disproportionately deny African-Americans gun licenses.  In one outrageous case, the NYPD admitted to using false arrests, two arrests for which the NYPD was sued and ultimately settled, as part of the  basis for revoking pistol licenses from an African-American.

The NYPD Licensing division is the division within the NYPD that is responsible for issuing and renewing pistol licenses in the City of New York, and has the authority to limit, suspend or revoke a handgun license subject to review by the New York State Supreme Court.

In February 2017, during a hearing at the NYPD License Division offices before an NYPD hearing officer, a Detective assigned to the investigation section of the License Division testified under oath about using dismissed arrests as a basis to recommend revocation of an African-American license holder’s license.  In fact, and to the apparent surprise of the hearing officer, the Detective testified that anything reported to the NYPD License Division was considered an “incident” and that the Police Department did not necessarily consider the quality of the incidents but rather the sheer number and that included dismissed arrests.  The Detective also admitted to considering dismissed arrests for which New York City settled 2 false arrests claims in his decision to revoke.

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White Plains law firm Tilem & Associates won a major Court victory yesterday when a Supreme Court Justice granted the firm’s application and  issued a Temporary Restraining Order (TRO) against the Town of Greenburgh’s enforcement of its local law regulating massage establishments.   In 2015 the Town of Greenburgh, New York in Westchester County passed an ordinance which required massage establishments to obtain special permits from the Town in order to operate within the unincorporated part of the Town.  During consideration of the ordinance by the Town Board, the proposed legislation was not without controversy.  In fact the Town Board received a letter from the New York State Department of Education letting the Board know that licensed massage therapists were wholly regulated by the State of New York and were licensed by the State Department of Education and that the regulation by the State preempted any such regulation by the Town and unfairly burdened professionals licensed by the State.

Notably, the Greenburgh ordinance regulates licensed massage therapists not unlicensed massage therapists and requires those that are already licensed to obtain a Greenburgh License.  Also notably, the Greenburgh ordinance defines Massage, a term already defined in sec 7801 of the New York State Education Law.

Based upon the clear preemption of these regulations by New York State Law, the American Massage Therapy Association brought a lawsuit to invalidate the Greenburgh Law in 2016.   However, after a significant amount of litigation that lawsuit was dismissed on a technicality.  On September 29, 2016, Acting Supreme Court Justice Helen Blackwood ruled that “what appears to be a meritorious claim fails due to petitioners’ lack of standing.”  Standing is a legal principle that requires a litigant to demonstrate some injury before they can bring a lawsuit. Since neither the  American Massage Therapy Association nor an individual petitioner had been directly affected or harmed by the new law Judge Blackwood ruled that they could not maintain the original action.

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Refusing to take a chemical test in New York can come with very serious consequences.  For example, a motorist who refuses a properly requested breath test can have his or her license revoked for a minimum period of one year even if they beat the DWI case.  If a person has prior alcohol related incidents, the period of revocation can be much longer, even life.  Fortunately, before revoking a license because of an alleged refusal, the motorist is entitled to some level of due process.  In New York this requires that the Department of Motor Vehicles hold a hearing to determine whether the motorists’ license will be revoked.  In New York the criminal case, the DWI, and the refusal follow two different tracks.  The DWI is handled in Court while the refusal goes to a hearing before an administrative law judge that works for DMV.  In addition, the burden of proof is lower in refusal hearings.

Last week, Tilem & Associates Partner Peter Tilem conducted  a “refusal hearing” in the New York and beat the refusal. That means that the police did not sustain their burden of proving the elements necessary to revoke the license and the matter was dismissed by the DMV administrative law judge. This particular motorist was charged with both DWI and had the refusal.  He had two prior convictions for Driving While Ability Impaired by Alcohol (DWAI) and either a conviction in the DWI case (including a conviction for a reduced DWAI) or a finding that he refused could have resulted in a lifetime revocation of his New York driving privileges. Thankfully, after an almost one hour cross-examination of the police officer the DMV judge dismissed the refusal.

At a New York DWI Refusal hearing the police must establish 4 separate elements in order to win the refusal hearing.