NY SAFE Act

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

U.S. firearms legal topics
Assault weapon Assault weapons legislation ATF Bureau Brady Handgun Violence Prevention Act Concealed carry in the U.S. Connecticut Children's Safety Act Constitutional Carry Domestic Violence Offender Gun Ban Federal Assault Weapons Ban Federal Firearms Act of 1938 Federal Firearms License Firearm case law Firearm Owners Protection Act Gun Control Act of 1968 Gun-Free School Zones Act (GFSZA) Gun laws in the U.S.—by state Gun laws in the U.S.—federal Gun politics in the U.S. High-capacity magazine ban International treaties for arms control National Instant Criminal Background Check System National Firearms Act (NFA) NY SAFE Act Open carry in the U.S. Second Amendment to the Constitution Straw purchase Sullivan Act (New York) Tiahrt Amendment Violent Crime Control Act

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 passed without a required debate period by the New York State Legislature on January 15, 2013, in the middle of the night under a "message of necessity", 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 Jeffrey Klein. 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

The NY 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 have been 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.
• Mandates that all purchases of firearms go through a licensed firearm dealer(FFL), unless it is an exempted transfer between family members
• Increases sentences for gun crimes, including upgrading the offense for taking a gun on school property from a misdemeanor to a felony.^[13]
• The state Penal Law section on aggravated murder was amended to increase penalties for murdering a first responder (the "Webster" provision) to life in prison without parole.^[14]
• 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.^[15] 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.^[16][17]

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 (out of 1,607^[20] )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]

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] 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.^[36] Cuomo and New York State Senate leaders planned an indefinite suspension of the seven-round magazine limit until they could rewrite the measure.^[37] 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.^[38] 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.^[39]

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.^[40] Also on the same day The New York State Rifle and Pistol Association filed a notice of legal claim.^[41]

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.^[42][43]

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.^[44]

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." ^[45] Another judge has ordered both sides to argue their case in the Appellate Division of the State Supreme Court.^[46][47]

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

• In 2013, Serbu Firearms, despite the fact that NY City Police never placed a purchase order, refused to sell their model BFG-50A semi-automatic .50 rifles to the New York City Police Department after the passage of the NY SAFE Act that classified their weapon as an assault rifle.^[48][49]

• 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.

• American Tactical Imports (ATI) is moving their headquarters from Rochester to Summerville, South Carolina.^[50]

• In February 2014, Remington Arms, which also scouted locations in Tennessee,^[51] will do a planned expansion of its operations in Alabama, rather than at its Ilion location in Upstate New York.^[52] Remington has not given any public indications that it is planning to move out of Ilion. In fact, it has spent more than $20 million on new equipment for its factory in Ilion and added 560 jobs at the plant in the past few years. Local union officials blamed Remington's decision on New York's SAFE Act restrictions on assault weapons.^[53] 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.^[54]

See also

• Gun laws in New York
• State hunting licenses

References

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