Posted November 27th, 2013

(Letter from King to NYSRPA members)

Ladies and Gentlemen,

As a method of providing an update on our fight to overturn New York’s SAFE Act (“the Act”), we are providing this letter, in “Q and A” form, with the answers to questions you might have concerning the case.

Q: What is the current status of the proceedings in the New York action?

As you are aware, in the beginning of the case, we moved for a preliminary injunction. In this motion, we ask the Court to stop the provisions of the SAFE Act from taking effect while the lawsuit is ongoing. In particular, we are seeking the court to enjoin the enforcement of the following provisions of the law:

1. The section making it unlawful to possess an ammunition feeding device containing more than seven rounds of ammunition.

2. The sections making it unlawful to possess, transport, ship, or dispose of, a large capacity ammunition feeding device (we are alternatively seeking to enjoin these provisions as applied to any such device manufactured before September 13, 1994).

3. Certain unintelligible portions of the section making it unlawful to possess a large capacity ammunition feeding device (if the court does not enjoin the entire section).

4. The sections which make it unlawful to possess a device that can be readily restored or converted to accept more than ten rounds of ammunition.”

5. The sections which make it unlawful to possess a device that can be readily restored or converted to accept more than ten rounds of ammunition, or a device that holds more than ten rounds as applied to tubular magazines.

6. The sections which define an “assault weapon” in part as certain rifles and shotguns as having a folding or telescoping stock, a pistol grip that protrudes conspicuously beneath the action of the weapon, or a thumbhole stock.

7. The sections which define an “assault weapon” as a semiautomatic shotgun with a fixed magazine capacity in excess of seven rounds or an ability to accept a detachable magazine. The Defendants have opposed our Motion for Preliminary Injunction and have filed their own Motion to Dismiss and for Summary Judgment, which asks the Court to enter judgment determining that the SAFE Act is valid. In response to the State’s Motion for Summary Judgment, we have filed our own Motion for Summary Judgment. The briefing on these motions (which has been extensive) is complete.

Q: What will happen next?

Since briefing is complete, we believe the Court will schedule an oral argument on the motions. Normally, for cases involving these controversial of issues, courts will hold an oral argument, although the Court is not required to do so; as the issues involved in the motions are purely legal, no testimony is required and the Court may just rule on the papers that have been filed. We do not know, however, if the Court will have a hearing and when it will happen. The procedural rules do not require the Court either to set a hearing or to decide the motion within a specified amount of time. The time in which a court sets a motion for hearing and issues a decision on a matter is impacted by several factors, such as the judge’s schedule, pressing criminal trials, and the complexity of the issues involved. Every judge handles his or her caseload differently.

Q: Will we get relief before January 15, 2014, the effective date of the requirement that all previously grandfathered magazines of more than 10 rounds must be discarded or sold out of state?

Possibly, but unlikely. While we understand that this portion of the law is a source of particular anger with members, the chance of the Court ruling to strike down or otherwise enjoin the law before that date really depends on how quickly the Court decides to either hold a hearing on our motion for preliminary injunction or issue a decision. As mentioned earlier, the Court has almost complete control over its schedule. As described above, there are three motions pending: our Motion for Preliminary Injunction, Defendants Motion to Dismiss and for Summary Judgment, and our own Motion for Summary Judgment. The Court may rule on these motions at the same time, or it may rule on them separately. It is unlikely (but not impossible) that the Court will rule on our motion for preliminary injunction before January 15.

Q: How is this lawsuit affected by other lawsuits challenging the NY law?

Many times when a law is enacted that infringes core rights, like the Act, there are multiple lawsuits filed seeking to stop the law from taking effect or otherwise being enforced. Sometimes, these actions proceed in harmony with each other; most times, they do not. For example, there have been other lawsuits filed which challenge the SAFE Act on various grounds that we may or may not have raised in our lawsuit. One suit has challenged the emergency manner in which the SAFE Act was adopted. This was a potential basis for challenging the law that we considered, but rejected, at the onset of this litigation: our analysis and experience showed that courts do not get involved with the merits of “emergency” determinations, and have historically taken a completely permissive attitude towards legislative circumvention of these aging requirements. We therefore believe that a challenge on this basis would be quickly rejected (as the one brought by Robert Schulz on this same basis has been), would detract from the strong arguments we have prepared, and could cause us to lose credibility with the court.

Thank you,
Tom King

Times Union

Published Thursday, November 14, 2013

THE ISSUE:

New Yorkers can’t know how many assault weapons have been registered through the NY SAFE Act.

THE STAKES:

Secrecy of this sort in government thwarts credible policymaking and public understanding.

Want to know how many horses have died at New York racetracks this year? One hundred and seven, according to the state Gaming Commission. Want to know how many wind projects have been withdrawn of the 43 existing or proposed since 2004? Eleven, according to the Public Service Commission.

Want to know how many assault weapons have been registered in advance of the April deadline set by the NY SAFE Act? Too bad. Can’t tell you, say the State Police, citing a secrecy clause scripted into the law hastily passed earlier this year.

The law requires assault weapon owners to register their firearms to make it easier for law enforcement to keep tabs on such weaponry. But, in granting a wholesale exemption from the Freedom of Information Law, the Legislature and Gov. Andrew Cuomo have made it nearly impossible for anyone to gauge whether the SAFE Act is working.

Not that anyone should be surprised, given the overall shroud of secrecy that clouds the ultimate good that could be achieved through this law — like reducing the numbers of semiautomatic weapons and high-capacity magazines, strengthening background checks and increasing efforts to keep weapons out of the wrong people’s hands.

But if citizens can’t know even how many assault weapons exist in the state, how can either gun control advocates or opponents effectively participate in the policy conversation going forward? We recognize the concern some have that giving out detailed information on permit holders could give criminals a road map showing where to find assault weapons. But there is simply no excuse for secrecy when it comes to basic statistics, such as the total number of weapons in various towns and counties.

Withholding this kind of information wouldn’t pass muster under the exemptions in the state’s Freedom of Information Act, such as violating privacy or interfering with an active law enforcement probe. In fact, this type of information helps the public.

Earlier this year, for example, the New York Racing Association announced creation of an equine veterinary medical director and took other steps aimed at preventing breakdowns — all spurred by disclosure of horse death totals. Knowing how many wind projects have made it, or not, clearly informed the conversation last month when Richard Kauffman, Gov. Andrew Cuomo’s energy czar, told attendees at the Center for Economic Growth’s high-tech infrastructure summit in Colonie that we must change our thinking and strategies if we expect renewable energy to grow.

It’s quite likely the SAFE Act will come up for tweaking in the 2014 session. If lawmakers and the public are to know what they’re talking about, they need access to this information. We’ve seen quite enough legislation produced by ignorance, thank you.

Provision in law says state isn’t required to disclose how many assault weapons are registered

By Rick Karlin

Published 9:53 pm, Friday, November 8, 2013

A major component of Gov.

Andrew Cuomo‘s NY SAFE Act gun control law is a state secret.

Almost a year after the Secure Ammunition and Firearms Enforcement Act was passed by lawmakers and signed by the governor, state officials say they aren’t required to reveal how many people have registered assault weapons with the state. The law appears to have been written with such secrecy in mind — but it’s become apparent only as requests for that information are being denied.

The law bans owning and selling assault-style weapons. Those who already owned such guns before the measure was signed can keep them if they register with the State Police by April 15, 2014.

The Times Union recently asked how many assault-weapon owners have registered their weapons to date. The answer came in the form of a little-known clause tucked into the law that says the information is confidential: “State Police cannot release information related to the registration of assault weapons including the number of assault weapons registered.”

“Those records you seek are derived from information collected for the State Police database and are, therefore, exempt from disclosure,” State Police spokeswoman Darcy Wells said in a written statement. The State Police are charged with creating and maintaining a database of the registered guns.

Cuomo spokesman Richard Azzopardi referred questions to the State Police. Officials pointed to a section in the SAFE Act that says, “Records assembled or collected for purposes of inclusion in such (a) database shall not be subject to disclosure.”

Advocacy groups — including those that supported the gun control measure and those that took no stance — said they disagree keeping SAFE Act data secret. New York Public Interest Research Group has neither supported nor opposed the SAFE Act. But its legislative director, Blair Horner, said he believes the number of registrants shouldn’t be a secret.

“I can’t think of a policy reason why that shouldn’t be public information,” he said. “It is absolutely appalling,” said Barbara Bartoletti, legislative director for the state League of Women Voters, which supported the SAFE Act. “There is no question that the public should know how many weapons are being registered,” she said.

Robert Freeman, executive director for the State Committee on Open Government, said he agrees that the total number of registrations should be made public if that information exists. “It should be public, in my opinion,” he said.

The secrecy has also upset SAFE Act opponents, some of whom had earlier sought a registration total and had been denied.

“We don’t care about names or addresses (of registrants). We just want totals,” said George Rogero, who heads the Orange County NY Shooters group and runs a blog on Second Amendment issues. He tried getting the number earlier this year under the state’s Freedom of Information Law, but was turned down.

Rogero said the law makes a provision for getting the number with a court order but said, “I don’t have $15,000 or $20,000 to take (a legal fight) any further.”

Gun rights advocates say they are interested in tallying registrations, in part, because with many local sheriffs opposed to the SAFE Act, they believe that only a handful of those with the grandfathered weapons will bother to register.

No one knows how many assault-style weapons are in New York state. Shortly after the law was passed, State Police Superintendent Joseph D’Amico estimated that there could be hundreds of thousands. Others have said 1 million isn’t an unrealistic number.  “There is no way to know,” said Rogero.

The newly banned weapons have certain military or combat-style features, such as a bayonet lug or a pistol grip.

rkarlin@timesunion.com • 518-454-5758 • @RickKarlinTU

To learn more about which weapons must be registered by April 15, visit

http://www.governor.ny.gov/nysafeact/gun-reform

NRA-ILA  11/7/13

Though he didn’t get everything right in his article about the AR-15 for Business Insider on Friday, Brian Jones included a number of facts that are beyond dispute. He noted, for example, that the AR-15 is “America’s most popular rifle,” which is certainly the case, based upon recent firearm manufacturer reports showing that between 300,000 and 500,000 AR-15s are made annually for sale to the public. Jones also mentioned that “Much of what makes the AR‑15 so popular is its adaptability. Modern AR‑15s feature a rail system that allows for custom sights, scopes, and accessories to be placed on the gun.”

But since Jones made clear that the occasion for his article was the misuse of an AR-15 in the Los Angeles airport last week, fairness would dictate that he should have also mentioned the ways in which AR-15s are used by good people for perfectly good reasons.

For starters, Americans own about five million AR-15s and it should go without saying that virtually all AR-15s are never misused.

Many are kept for home protection, particularly now that carbine versions are available in many configurations suited for defense in the close spaces of a home, often in low light conditions. AR-15s are also the rifle most commonly used for marksmanship competitions in the United States, such as the NRA’s National Service Rifle Championship, the Civilian Marksmanship Program’s National Trophy Matches, and various action-oriented shooting sports, such as “Three Gun.” It was also used by virtually all of the participants in the NRA National Defense Match weekend at Peacemaker National Training Center in October, which included a basic-level match, as well as an advanced-level match in bays, and a championship match on an open-terrain range with targets as far as 600 yards, all of which will be covered in an American Rifleman TV episode on the Outdoor Channel early next year.

AR-15s are also the rifle most commonly used in rifle training courses, taught by literally dozens of professional schools around the country. And they are increasingly popular for hunting. Their standard 5.56 mm or .223 Rem. cartridge is effective on varmints, and with certain projectiles can be effective on larger game, such as deer. Not all states allow .22-caliber bullets for deer hunting, but there are also AR-15s available in larger calibers, such as 6.8mm Remington SPC, 6.5mm Grendel, and .300 Blackout.

The AR-15 is a modern equivalent of the Mauser Model 98 action, from which the best defensive, hunting, and match rifles were derived a century ago. It’s unfortunate that most in the media overlook that fact, in their coverage of the rifle.

The following article was originally posted on the NY Firearms Forum. The author “Shooter” is an attorney and consented to have the post included here.

Shooter’s Advice: Hold On to All Magazines and Weapons Banned by the Safe Act

Alright everyone, this is my formal legal advice.  I advise every citizen of the State of New York to hold onto all pre-ban magazines, handguns, rifles and other weapons banned by the Safe Act and required to be surrendered or sold out of state by January 15, 2014, or required to otherwise be registered by April 15, 2014.  Please do not sell or transfer these items at this time.  I am speaking for myself here at this time, but I am in talks with Tresmond Law to file this jointly.

This is why.  Under the Takings Clause of the United States Constitution, the state cannot deprive us of property without just compensation.  As many of you know, I am an attorney.  It is my intention to file a class action lawsuit on behalf of all citizens the Safe Act effects prior to January 15, 2014 compelling the state to pay fair value for all of these items.  This will break the state and that is my exact intention.

All banned items will be reported to the court in a filing and stored wherever the court allows while the case proceeds.  It is my presumption the state will just let everyone hold them at home during the lawsuit, otherwise they would have to pay for large, secure facilities to store them for the duration of the litigation.  It is estimated that the costs the state will have to bear may be as much as four billion dollars.  The state wants to avoid this cost so that is why they are trying to convince you to get rid of these items at no cost to the state.  The state may be forced to capitulate.

Now please do not be concerned about the other lawsuits or my continued full confidence we will win.  However any smart general has a backup plan.  It is my intention to beat the state, Andrew Cuomo, and the Safe Act no matter what it takes.  This lawsuit will bring them to their knees.  Therefore, just in case the other lawsuits are unsuccessful or an injunction is not granted, this is my best back up plan.

Now this will be a massive lawsuit.  Who is with me?

Article Link:

http://www.nyfirearms.com/forums/laws-politics/59117-shooters-advice-hold-all-magazines-weapons-banned-safe-act.html