NY SAFE Act

This article is about the New York gun control legislation. For the 2015 refugee legislation, see American SAFE Act of 2015.
NY SAFE Act

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 regulation law in the state of New York. The law passed by the New York State Legislature on January 15, 2013, in the middle of the night under a "message of necessity", bypassing the state's 3 day required review period [1] and was signed into law by Governor of New York Andrew Cuomo on the next day.[2]

The legislation was written in response to the Sandy Hook Elementary School shooting in Newtown, Connecticut.[3] It was sponsored by State Senator Jeffrey Klein. It passed the New York State Senate on Monday, January 14, and the State Assembly on Tuesday, January 15.[4] Governor Andrew Cuomo signed the bill into law half an hour after it passed the legislature.[5] Cuomo described the law as the "toughest" gun control law in the United States.[3][6]

The NY SAFE Act contains a number of firearms regulations. It also contains a severability provision that allows other measures to remain in place in case the broad prohibitions against weapons are invalidated by the courts.

Provisions

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

Support

Despite strong opposition from Second Amendment Supporters, including GOP gubernatorial candidate Rob Astorino, most New York voters appear to support the 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, 2014. However, Upstate New York voters opposed it by 52 percent, while only 45 percent are in support (3 percent were undecided).[18][19]

Nine municipalities in the state (out of 1,607 [20]) have passed resolutions supporting the SAFE Act.[21]

In contrast, two hundred seventy-one municipalities in the state have passed resolutions calling for repeal of the SAFE Act.[22]

Additionally, Forty-four (44) counties have passed resolutions prohibiting the use of their individual county seals in association with the state's actions for enforcing the SAFE Act. [23] A total of fifty-two (52) counties have also passed resolutions voicing their objection to the SAFE Act and their disapproval as to how it was passed. [24]

Following the passage of the SAFE Act, the New York State Sheriff's Association (NYSSA) wrote a letter offering a mixed opinion on the SAFE Act. They were in favor of parts of the law that issued harsher punishments for violent offenders who committed crimes with a gun, harsher punishments for those who killed first-responders as well as supporting the sections in favor of background checks and safe storage of guns in residences that also contained residents that were mentally ill or were convicted felons.

In contrast to this, the NYSSA voiced a strong opposition to parts of the law including the new parameters which defined "assault weapons", the magazine capacity reduction (stating that in their experience this will not reduce gun violence), the lack of clarity in parts of the law related to magazine capacity for the police (which was eventually amended by the state to exempt police from the magazine limitation of 7 rounds) and the sale of ammunition via the internet, which they felt might negatively impact interstate commerce. Their final objection was to the nature of how the bill was passed and to the overall construct of the law by stating the following: ″While many of the provisions of the new law have surface appeal, it is far from certain that all, or even many, of them will have any significant effect in reducing gun violence...″ [25]

Criticisms

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 state capitol Albany on January 19, 2013, attended by several thousand protesters.[26]

County-Opposition-to-SAFE-Act

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.[27]

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.[28] 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.[29]

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.[30]

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.[31][32]

Some mental health experts expressed concerns that the law might interfere with their treatment of potentially dangerous individuals, or discourage such people from seeking treatment.[33] 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.[34]

Others claimed that this is a backdoor ban on handgun sales, noting that seven-round magazines simply do not exist for many popular models.[35][36] 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.[37][38] Cuomo and New York State Senate leaders planned an indefinite suspension of the seven-round magazine limit until they could rewrite the measure.[39] 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]

52 of New York's 62 counties passed official resolutions in direct opposition of the NY SAFE Act and some counties directed their law enforcement officials to not enforce the SAFE Act within their jurisdictions. More than 325 local municipalities throughout New York have also passed resolutions calling for repeal of the law.[40] 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.[41]

Legal challenges

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.[42] Also on the same day The New York State Rifle and Pistol Association filed a notice of legal claim.[43]

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.[44][45]

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.[46]

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." [47] Another judge has ordered both sides to argue their case in the Appellate Division of the State Supreme Court.[48][49]

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]

The New York State Rifle and Pistol Association dropped its suit in March 2016. Following the death of Justice Antonin Scalia, it decided it was unlikely to win a favorable Supreme Court opinion.[50]

Impact

See also

References

  1. NYS Senate "How A Bill Becomes Law". NYS Senate http://www.nysenate.gov/How_a-Bill_Becomes_a_Law. Retrieved 25 June 2015. Missing or empty |title= (help)
  2. 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.
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  6. Walshie, Shushannah (15 January 2013). "New York Passes Nation's Toughest Gun-Control Law". ABC News. Retrieved 16 January 2013.
  7. New York passes major gun control law -- first since Newtown massacre - NBCNews.com, January 15, 2013
  8. Confusion sets in for gun dealers after NY SAFE Act is enacted - Poststar.com, January 19, 2013
  9. 1 2 3 Magazine limit, gun registration period to begin Monday - Democratandchronicle.com, April 13, 2013
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  14. N.Y. Penal Law § 125.26 (1) (ii-a), found at New York State government website, retrieved September 17, 2014.
  15. "Bills". Assembly.state.ny.us. Retrieved 2013-11-08.
  16. "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.
  17. "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.
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  20. (PDF) http://www.nyslocalgov.org/pdf/Local_Government_Count.pdf. Missing or empty |title= (help)
  21. http://www.nysaferesolutions.com/resolutions/#support. Missing or empty |title= (help)
  22. http://www.nysaferesolutions.com/resolutions/#municipalities. Missing or empty |title= (help)
  23. http://www.nysaferesolutions.com/resolutions/county-seal-logo-name-resolutions. Missing or empty |title= (help)
  24. http://www.nysaferesolutions.com/resolutions/#counties. Missing or empty |title= (help)
  25. http://www.nysheriffs.org/articles/sheriffs%E2%80%99-response-ny-safe-act. Missing or empty |title= (help)
  26. "Thousands protest NY SAFE Act at Capitol". WRGB-TV. 20 January 2013. Retrieved 25 January 2013.
  27. "Sheriff's response to NY SAFE Act". New York State Sheriff's Association.
  28. Elzufon, Rachel (January 23, 2013). "NY SAFE Act Faces Changes". WWKB. Retrieved 25 January 2013.
  29. New York Law Enforcement Exempt From Safe Act - Wetmtv.com, January 18, 2013
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  31. "NY Gov. Cuomo Signs SAFE Act Exemption For Retired Cops | New York Daily News". Nydailynews.com. 2013-07-08. Retrieved 2013-11-08.
  32. NY
  33. "Experts Fear Proposed N.Y. Gun Law Might Hinder Therapy". USA Today. Associated Press. January 15, 2013. Retrieved January 19, 2013.
  34. http://www.thenewyorkworld.com/2013/03/11/veterans-safe-act/
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  36. 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.
  37. "Resolution quick list". NY SAFE Resolutions. 2013-02-15. Retrieved 2014-10-02.
  38. "Resolution quick list". NY SAFE Resolutions. 2013-02-15. Retrieved 2014-10-02.
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  50. Fox News, August 8, 2013
  51. Lestch, Corrine (2013-10-28). "Upstate gunmaker American Tactical Imports moving to South Carolina". NY Daily News. Retrieved 2013-10-29.
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  55. http://www.wktv.com/news/local/Remington-to-relocate-two-Ilion-lines-to-Huntsville-259543811.html#IDComment831455940

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