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February 1, 2018 at 7:27 am #1441DAVID COLBURNKeymaster12/19/2017 • (1) Comment
The SAFE Act, the acronym for the Secure Ammunition and Firearms Enforcement Act – New York State’s January, 2013 omnibus gun control law – provides an excellent opportunity to assess the potential impact of maximally politically feasible gun control, an exercise all the more relevant in the wake of the mass shooting in Las Vegas. The SAFE Act did not have to be negotiated or compromised. The New York legislature passed it without hearings, debate, or input from gun owners and their advocates. The Act included several of the top priorities of gun control proponents. While the SAFE Act was a political triumph, its implementation has been problematic and its enforcement practically non-existent.
The SAFE Act was a direct response to the December 14, 2012 massacre of 20 six- and seven-year-old children and six adults at the Sandy Hook Elementary School in Newtown, Connecticut. The slaughter of innocent children provoked an outpouring of grief, rage and demands for political action. Ironically, but not surprisingly, demand for more gun controls was strongest in states which already had the strongest gun controls. Governor Andrew Cuomo immediately announced his commitment to sponsoring a gun control law that would demonstrate New York State’s and his own leadership to a national audience.
The SAFE Act’s drafters brought together a potpourri of gun control strategies aimed, if aimed at all, at gun crime, gun suicide and gun accidents as well as at mass shootings. Proponents praised it as “the toughest gun control law in the nation;” critics excoriated it as unconnected to public safety and an unconstitutional assault on the Second Amendment right to keep and bear arms. In upstate New York counties, even five years after its enactment, the SAFE Act continues to excite anger and protest.
Building on the Sullivan Law
New York’s 1911 Sullivan Law established a restrictive licensing system for handgun possession by making it a crime to possess a handgun, even at home, without a license. As amended over the years, the Sullivan Law established the criteria for handgun license eligibility and delegated to county officials the licensing authority. In each county one or more than one judge is the designated firearms licensing officer, except in New York City and two other counties where the police chief or commissioner plays that role. There is considerable variation in how strictly county officials vet applicants. A license issued in one county is valid in all counties, except in New York City where both handgun and long gun owners must have a New York City license.
Applicants for a firearm license, who must be at least 21 years old, submit a set of fingerprints that are run against the criminal records database. They must also submit character references that persuade the licensing officer that the applicant is a person of good character. An applicant for a license to carry a concealed gun must, in addition, demonstrate a special need to carry a concealed weapon in public. There is no license to authorize a person to carry a gun openly, but police officers and a few other occupations have special dispensation. Until the SAFE Act, a State license was valid for life unless revoked on account of a criminal conviction, civil commitment to a mental institution or other disqualification.
Counties can pass supplementary, but not conflicting, gun control laws. New York City is by far the State’s strictest gun control jurisdiction. The City requires a license to possess long guns as well as handguns. The City’s licensing fee ($340) is much higher than any other county’s fee, and a New York City license must be renewed and paid again every three years. Historically, NYPD’s gun licensing division has been very stingy in granting licenses, especially concealed carry licenses. NYPD’s vetting of license applicants is thorough and not uncommonly takes up to three months.
The 2000 Omnibus Gun Control Law
New York State supplemented its already strong gun control regime in 2000 in the wake of the Columbine High School massacre in Littleton, Colorado. The legislature, with bipartisan support, prohibited assault weapons and large (greater than 10 round) capacity magazines; required ballistic fingerprinting for new handguns; mandated background checks for all guns purchased at gun shows; required that trigger locks be included with sales of new guns; obliged gun owners to report lost or stolen guns; and imposed criminal liability for knowingly purchasing a gun for a firearms-ineligible person (“straw purchasing”). A federal court later struck down on vagueness grounds the provision that had extended purchaser background checking to purchasers of guns at gun shows. Republican Governor George Pataki called the 2000 law a “national model.”
The SAFE Act
In December 2012, having passed an omnibus gun control law as recently as 2000, New York was not an obvious candidate for another “toughest gun control law in the nation.” Moreover, gun crime in New York State had been declining for two decades and the State had experienced only two random mass shootings in the previous twenty years; the 1993 Long Island Railroad shooting (6 dead, 19 wounded) and the 2009 shooting at the American Civic Association Immigration Center in Binghamton (13 dead, 4 wounded).
Nevertheless, the Sandy Hook massacre created demand and opportunity. Governor Andrew Cuomo assigned his Counsel, Mylan Denerstein, responsibility for assembling a legislative drafting team comprised of high-level staff, including Secretary for Public Safety Elizabeth Glazer. Their challenge was to draft a gun control law that would be ready for submission to the legislature in 30 days, just days before President Barack Obama’s Task Force (headed by Vice President Joe Biden) was scheduled to make its recommendations for federal gun legislation. Speed was clearly a political imperative.
Drafting took place in relative secrecy over Christmas and New Year’s Day, 2012. Gun control organizations (e.g., New Yorkers Against Gun Violence) were consulted, but gun owners and Second Amendment advocacy organizations (e.g., NYS Rifle and Pistol Association) were not; nor were other interested groups and agencies such as advocates for the mentally ill and county and local government officials who would bear responsibility for implementing and enforcing the Act (e.g., county clerks, county sheriffs and county directors of mental hygiene services). The drafters incorporated many proposals that Assembly Democrats had introduced in prior legislative sessions. Dean Skelos, leader of the Senate Republicans, agreed to support the bill over the opposition of his upstate Republican colleagues. The bill, which filled some 80 single-spaced pages, was introduced into both chambers under a message of necessity on the night of January 14, 2013 and signed into law the next day.
Assault Weapons. The SAFE Act expanded the definition of prohibited assault weapons. Whereas the 2000 law prohibited semi-automatic center-fire weapons that accommodate detachable magazines and have two or more specified military-like features (e.g., folding stock, second grip, bayonet mount, flash suppressor), the SAFE Act prohibited semi-automatics with one or more military-like feature. Moreover, whereas the 2000 law (like the 1994 federal assault weapon ban which expired in 2004) grandfathered assault weapons manufactured prior to 1994, the SAFE Act grandfathered current assault weapon owners, but only if they registered their guns with the State Police by April 15, 2014. A registered owner could then keep the gun for life, but could not sell, bequeath or otherwise transfer it to a New York State resident. In theory, when the current generation of assault weapon owners passes on, there will be no assault weapon owners in New York State.
Assault weapons, which manufacturers and enthusiasts call “sporting rifles,” are the best-selling rifles in the U.S. Their prohibition, particularly under the SAFE Act’s expanded definition, excited more protest than any other SAFE Act provision. At rallies, gun owners symbolically burned registration forms. Manufacturers soon began marketing new models that were functionally identical to the banned models, but with their appearance altered so as to fall outside the ban. Some retailers began selling devices to convert detachable magazines to fixed magazines, thereby making a banned gun compliant with the SAFE Act.
There is no basis for concluding that the number of assault weapons has decreased under the SAFE Act or that the public is safer. Even if there are fewer assault weapons, the semi-automatic weapons that do not resemble military weapons are functionally no different, and therefore just as dangerous as the prohibited semi-automatic military-type weapons. Only a small fraction (perhaps 10 percent) of assault weapon owners have registered their weapons. The registration requirement has gone essentially unenforced. A number of county sheriffs have stated opposition to the ban and unwillingness to enforce it against otherwise law-abiding individuals.
Large Capacity Magazines: The SAFE Act originally prohibited magazines with capacity to hold more than seven rounds. Gun owners vociferously and mockingly protested on the ground that there are few, if any, seven-round or smaller capacity magazines. Most semi-automatics accept a ten-round magazine. The governor and the legislature quickly agreed to amend the legal maximum magazine capacity to ten rounds, with the proviso that a ten-round magazine cannot be loaded with more than seven cartridges. A federal court struck down that proviso as irrational. So far there has been little to no effort to apprehend gun owners who illegally possess greater than ten-round capacity magazines.
Universal Background Checking. The federal 1993 Brady Law required federally licensed firearms dealers to initiate an FBI background check on gun purchasers. The retail purchaser could, however, subsequently resell the same gun without a background check on his purchaser. Indeed, a gun owner who is not “in the business of selling firearms” is not even eligible for a federal firearms license and would therefore lack any authority to initiate an FBI background check on the person to whom he transfers his gun.
The SAFE Act closed the “private gun seller loophole” by making FBI background checking mandatory for persons who acquire guns from private (unlicensed) sellers at a gun show or anywhere else. (After Sandy Hook, President Obama and the Democratic Party leadership had tried unsuccessfully to get a similar bill through the U.S. Senate.) The SAFE Act provided that a New Yorker who wanted to sell or give his gun to another New Yorker must process the transfer through a New York-based, federally-licensed firearms dealer who must initiate the FBI background check. Substantial compliance with this required background check would keep guns out of the hands of firearms-ineligible individuals. A would-be gun purchaser who cannot pass a background check, however, can circumvent the background check requirement by purchasing a gun for a federally licensed firearms dealer willing to ignore the law, a black market seller who specializes in selling guns to ineligible persons, or through a straw purchaser.
Ammunition. The SAFE Act extended the requirement for background check to purchasers of ammunition, heretofore unregulated. All persons and entities that sell any quantity of ammunition must register with the State Police. The seller, before making an ammunition sale, must send the purchaser’s identification information to the State Police and await approval before consummating the sale. They must also send to the State Police information about every completed ammunition purchase so that large quantity purchasers can be identified, monitored and, if necessary, investigated. This provision has never been implemented for reasons of cost and technical difficulty. All work on it was suspended via a Memorandum of Understanding between the Governor and the State Senate.
Disarming the Mentally Ill. The SAFE Act included a very ambitious strategy for keeping guns out of the hands of persons suffering from mental illness. Mental health care providers (doctors, psychologists, social workers and nurses) must report to their county’s director of community services the name of any person whom, in the exercise of reasonable professional judgement, they believe likely to engage in conduct that would result in serious harm to self or others. The report should be accompanied by a brief explanation of their diagnosis and prediction. If the director of community services concurs with the assessment (which is almost always the case since that county official does not interview either the patient or the reporting clinician), the director of community services forwards the name of the person to the Department of Criminal Justice Services, where agency personnel check to see if the reported person has a gun license. If so, the case will be referred to the county firearms licensing official for revocation consideration and mandatory gun surrender. The person’s name will also be forwarded to the Office of Mental Health, where it will be kept for five years in a database of firearms-ineligible persons. No notification need be given to the person reported.
Mental health care clinicians, advocates for persons suffering from mental illness and civil liberties groups strenuously criticized this provision. They cited a large body of empirical research finding that persons diagnosed with mental illness are no more dangerous than members of the general population. They also charged that the SAFE Act stigmatized persons suffering from mental illness and undermined the therapeutic relationship. The New York Civil Liberties Union criticized the provision for lack of notice to the person reported, lack of procedural protections, and lack of involvement of a court or neutral fact finder. So far, more than 80,000 persons have been reported. While many of these reported persons are not current or prospective gun owners, some of those who are or want to be gun owners will sooner or later challenge the provision’s constitutionality.
License Renewal. Before the SAFE Act’s passage in 2013, a handgun license was valid for life, unless revoked on account of a disqualifying event like a felony or domestic violence misdemeanor conviction. The SAFE Act required that handgun licensees file for license “recertification” every five years. All those who held licenses at the time of the Act’s enactment must apply by February 2018. Those who acquired a firearms license after the SAFE Act became effective must apply for recertification five years from the date their license was issued.
No one knows how many living New Yorkers hold handgun licenses. The State Police anticipate at least half a million recertification applications. Every applicant will have to be checked against several databases of disqualified persons. Even if each application is processed quickly, it could take years to process half a million applications. When all of the pre-2013 applications are processed, the State Police will have to create a list of persons whom its records show as licensees, but who have not applied for renewal. That list is likely to include several hundred thousand names. Matching non-applicants to state death records should eliminate many names, but tens of thousands of non-applicant licensees will require follow up investigation; maybe they have moved out of the State or lost interest in possessing a firearm, but maybe they are deliberately not complying because they know they are firearms-ineligible.
The State Police has taken the position that the responsibility to investigate non-applicants belongs to the county clerks who are in a much better position to determine whether the non-applicant is still living in the county. The county clerks have objected to being burdened by an unfunded mandate. They argue that the SAFE Act is a State initiative about which they were never consulted, and that the State therefore should shoulder implementation costs. Regardless of who does the investigating, it will be the county firearms licensing officials’ job to initiate revocation proceedings against non-applicants; this will also require a great deal of time and effort.
Criminal Provisions. The SAFE Act added more than a dozen new criminal offenses and sentence enhancements. These included possession of a “community gun” (usually hidden in a place where it is accessible to a number of gang members or other associates), sale of a weapon without processing the sale through a federally licensed firearms dealer, possession of a weapon on a school bus, and life without possibility of parole for murdering a first responder. The responsibility for enforcing these firearms offenses and sentence enhancements falls on local police departments, county prosecutors and sentencing judges. In the almost five years that the SAFE Act has been in effect, there have been very few arrests for Safe Act offenses. Arrests that have taken place overwhelmingly occurred in New York City.
The SAFE Act succeeded in making a big political splash. It generated widespread and intense protest by gun owners and mobilized Second Amendment advocates and advocacy groups. In 2014, Governor Andrew Cuomo was reelected by a much diminished majority and Republicans regained control of the State Senate. This demonstrated that even in a very blue state like New York, gun owners are a significant constituency, one that punches above its weight because it includes so many one-issue voters. In the legislature, Democrats continue to introduce new gun control bills at the rate of about 50 per year, while Republicans regularly introduce bills to repeal or at least scale back the SAFE Act. Neither side currently has any chance of actually passing new legislation.
The SAFE Act’s impact on gun crime, suicides and accidents has never been seriously assessed, although both gun control proponents and gun rights advocates make extravagant claims. In truth, there seems little likelihood that the SAFE Act has had much, if any, effect since it has been only partially implemented, almost completely unenforced, and widely ignored. Its various provisions are easily circumvented.
JAMES B. JACOBS is the Chief Justice Warren E. Burger Professor of Law at NYU School of Law. He is author of CAN GUN CONTROL WORK? (2002) and is currently, with Zoe Fuhr, completing a book about the SAFE Act, tentatively titled AFTER SANDY HOOK: NYS’ TOUGHEST-IN-THE NATION GUN CONTROL.
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