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

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 was passed by the New York State Legislature and was signed into law by Governor of New York Andrew Cuomo in January 2013. The legislation was written in response to the Sandy Hook Elementary School shooting in Newtown, Connecticut. Cuomo described the law as the toughest gun control law in the United States.

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.

Legislative history

The New York State Senate approved the act on a 43-18 vote on January 14, 2013.^[1] The vote was bipartisan,^[2] with nine Senate Republicans voting in favor.^[3] State Senator Jeffrey D. Klein sponsored the legislation.^[4]

The following day (the second full day of the 2013 legislative session), the New York State Assembly approved the legislation by a 104-43 vote, and Governor Andrew Cuomo signed the bill into law less than one hour later.^[1] The passage of the law made New York the first to pass restrictions on gun laws since the Sandy Hook massacre.^[5][6] Cuomo described the law as the toughest gun control law in the United States.^[6][7]

The bill passed under the "message of necessity" procedure, a device in the New York State Constitution by which the governor may expedite a vote on a bill, bypassing a usual three-day waiting period. Although nominally for emergencies, the "message of necessity" procedure has been frequently used in New York for many pieces of legislation (at least 415 times since 1938).^[8]

Provisions

The NY SAFE Act includes the following provisions:^[9]

• The Act broadened the legal definition of assault weapon to include those semi-automatic rifles, semi-automatic pistols (handguns), and semi-automatic shotguns with one or more "military-style features, such as a telescoping stock, bayonet mount, flash suppressor, grenade launcher and others."^[10][11] This "one-feature test" was a change from the previous "two-feature test," enacted in New York in 2000, which barred such weapons if they had two or more of the enumerated features.^[12] The bill provided a "grandfathering" provision allowing those with an assault weapon (under the newer, broader definition), to keep the weapon, but required that it be registered with the New York State Police (with a thirteen-month period to register and a deadline of April 15, 2014).^[11][12] There is no fee to register.^[11] Alternatively, owners of such weapons could avoid registration by selling the weapon to a New York State dealer or to someone out-of-state by January 15, 2014, or by permanently removing the design characteristics that make the weapon an assault weapon under the Act.^[11] Under the Act, the registry of assault weapons is confidential and not subject to public disclosure.^[11] The constitutionality of the assault-weapon prohibition was upheld by Chief U.S. District Judge William M. Skretny in 2013,^[10][13] and this ruling was affirmed by the U.S. Court of Appeals for the Second Circuit in 2015.^[10]
• The Act included a high-capacity magazine provision, provided that beginning on April 15, 2013, only magazines with a capacity of seven rounds could legally be sold in New York.^[11] The Act allowed ten-round magazines purchased before that date, but made it illegal to load more than seven rounds of ammunition into a ten-round magazine, except "at an incorporated firing range or competition recognized by the National Rifle Association or International Handgun Metallic Silhouette Association."^[11] Historic or antique guns (defined as those manufactured more than fifty years ago) were exempt from this requirement.^[11] The magazine provisions were struck down by Judge Skretny in 2013,^[13] and this ruling was upheld by the U.S. Court of Appeals for the Second Circuit in 2015, making it so "gun owners can legally load 10 rounds in a 10-round magazine."^[10] Neither the Act nor the subsequent court cases affected New York's pre-existing ten-round magazine limit.^[11] The Act does not place a limit on the number of magazines that individuals could purchase at any one time.^[11]
• The Act requires ammunition dealers to conduct background checks (similar to those for gun buyers) for purchases, and bans on direct Internet sales of ammunition.^[14][15] (Under the Act, online sales to New Yorkers are still legal, but the buyer must go through a licensed dealer in the state and pick up the ammunition in person).^[16] In 2015, Governor Cuomo and Senate entered into an unusual "memorandum of understanding" suspending the ammunition portions of the Act, citing "the lack of adequate technology." The memo states that the database "cannot be established and/or function in the manner originally intended at this time." While the memo does not formally amend the Act or have legal effect, but according to the governor's office the it "provides assurances to all that the database will not be implemented until it is ready and tested."^[14][15]
• The Act amended the New York Mental Hygiene Law to add a new reporting requirement for mental health professionals (including physicians, psychologists, registered nurses and licensed clinical social workers).^[17] Under this provision, which went into effect on March 16, 2013, mental health professionals currently providing treatment services to an individual must make a report to authorities, "if they conclude, using reasonable professional judgment, that the individual is likely to engage in conduct that would result in serious harm to self or others."^[17] The reports are sent first sent to county officials, and "if they agree with the assessments, the officials then input the names into the state database. The information is retained for five years. If the authorities find a person in the database has a gun permit — necessary to purchase a handgun in New York — they are required to revoke the license and seize any guns. The people in the database are barred from obtaining a permit until their names are purged."^[18]
• The Act requires owners to report lost or stolen guns and ammunition to authorities, and makes it a misdemeanor to fail to report the theft such a loss or theft within 24 hours.^[19]
• The Act created a universal background check provision, requiring all sellers or other transferors of firearms and ammunition to conduct background checks (through the National Instant Criminal Background Check System, or NICS^[11]) of the prospective purchaser or other transferees, in "all sales, exchanges or disposals of firearms, rifles or shotguns" or ammunition, except those between immediate family members, provided that the transferring family member does not know that the transferee "is prohibited by law from possessing a firearm."^[20] The Act requires that a prospective firearm transferor and transferee process the sale via an federally licensed dealer (FFL), but "does not mandate that FFLs play this processing role."^[20] "An FFL, who does elect to provide the service, may not charge the parties more than $10 per transaction. The seller may leave the gun with the licensed dealer, but the purchaser must appear in person to show identification and fill out an ATF Form 4473," which is retained by the FFL.^[20]
• The Act requires those who live with a 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" to "safely store" any guns, using "an appropriate locking device including a trigger lock, a gun safe, or a secure gun cabinet."^[11] Failure to do so is made a misdemeanor.^[21]
• The Act amended New York Penal Law to establish "tougher penalties for those who use illegal guns as well as measures to help combat gang violence."^[11]
  • The murder of a first responder engaged in official duties was made a Class A-1 felony, with a mandatory life-without-parole sentence.^[11] This was the "Webster provision," named for the 2012 Webster, New York shooting, in which two firefighters were fatally shot by an arsonist.^[22][23]
  • The Act increases illegal possession of an unloaded gun and possession of a firearm on school grounds or a school from misdemeanors to a Class E felonies.^[11]
  • The Act provided that recklessly injuring a child by a firearm, as well as selling or transferring a gun to an individual known to be prohibited from possessing a gun, was a Class D felony.^[11]
  • The Act provided that "sharing a gun with an individual who is not authorized to possess a gun and commits a crime" was criminal facilitation.^[11]
  • The Act increased straw purchasing (buying a gun "for someone the buyer knows to be disqualified because of a conviction of a crime, an involuntary commitment or other disqualifier") from a misdemeanor to a Class D felony.^[11]
  • The Act created a mandatory minimum sentence of for using or carrying a firearm in drug trafficking or in committing a violent felony – a minimum of five years if loaded, and three if unloaded, with some discretion for the court to impose lower sentences in drug trafficking cases if mitigating factors are present.^[11]
  • The Act allows prosecutors to seek a sentence of 25 years in prison to life imprisonment (an increase from the previous 15 years) in prosecuting gang members when the gang is involved in murder.
• The Act requires the holders of handgun permits to be re-certified every five years with the local county clerk or sheriff.^[24]
• The Act permits the holders of handgun permit "to request that their application information be made exempt from disclosure under state Freedom of Information Law."^[24] This was in response to a controversial website set up in 2010 that published the names of permit holders.^[24]

Support

Support for the SAFE Act was strongly polarized by region, with strong support in New York City and its suburbs, but opposition in upstate New York.^[25] Fourteen months after its passage, a Siena College poll showed that 63% of registered New York voters statewide said that they support the SAFE Act, but only 45% Upstate voters did.^[26] The New York Times reported that in Upstate New York, "Counties, towns and villages have passed resolutions denouncing the laws, and some counties have even demanded that their official seals not be used on any paperwork relating to them. In response to an open records request, the governor's office shared hundreds of pages of such resolutions, from far-flung places like the Adirondack town of North Hudson, with 238 residents, to more populous areas like Erie County."^[25] By contrast, Manhattan District Attorney Cyrus R. Vance, Jr. strongly supported the law, saying that would "provide law enforcement with stronger tools to protect our communities from gun violence, including provisions that better enable us to combat gun trafficking and violent gangs, and others that close the state gun show loophole and regulate large-quantity sales of ammunition and firearms."^[27]

Following the passage of the Act, the New York State Sheriff's Association (NYSSA) wrote a letter offering a mixed opinion on the SAFE Act. The NYSSA favored the parts of the law that enhanced sentences for violent offenses committed with a gun, expanded background checks, and mandated safe storage of guns in households that included a member ineligible to legally use guns. The NYSSA opposed the parts of the law that expanded the definition of assault weapons, limited magazine usage, and limited ammunition sales via the Internet.^[28]

Criticisms

A number of anti-SAFE Act rallies have been held at the New York State Capitol in Albany; one in 2014 featured Donald Trump, Rob Astorino, and Carl Paladino, and drew some 3,000 gun enthusiasts.^[29][30] Pro-NY SAFE Act rallies have also occurred in Albany.^[31]

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.^[32]

Republicans in the New York Legislature have made a number of unsuccessful efforts over a series of years to repeal the Act; these efforts have been led by State Senator Kathleen A. Marchione^[33][34][35] and State Assemblyman Marc Butler.^[36][37][38]

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.^[39] 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.^[40]

Others claimed that this is a backdoor ban on handgun sales, noting that seven-round magazines simply do not exist for many popular models.^[41][42] 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.^[43][44] Cuomo and New York State Senate leaders planned an indefinite suspension of the seven-round magazine limit until they could rewrite the measure.^[45] 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.^[46]

Legal challenges

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.^[47]

Robert L. Schulz and several hundred other gun-rights activists pursued a legal challenge against the NY SAFE Act in New York state court, arguing that the act was unconstitutional that Governor Cuomo's use of a "message of necessity" to waive the usual three-day waiting period violated the New York State Constitution. Judge Thomas J. McNamara of the New York Supreme Court denied the plaintiffs' request for an injunction and later dismissed the challenge, finding no constitutional violation.^[48]

A separate challenge took place in federal court. In December 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".^[13] 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."^[13]

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.^[49]

Subsequent amendments

The NY SAFE Act as originally passed did not explicitly exempt police officers from some of the law's provisions, such as the seven-round limit, although older law (not repealed by the NY SAFE Act) did provide such an exemption. This prompted some initial confusion, but the office of Governor Andrew Cuomo said soon after passage that "Police officers possessing ammunition clip with more than seven bullets are not in violation of this law and they never will be, period."^[50] In July 2013, Cuomo signed into law a measure that expressly exempted qualified retired law enforcement officers from some of the provisions of the Act. The exemption allows retired officers (who served for at least ten years and left in good standing) to retain guns and magazines purchased as part of official duty, so long as registered with the state within 60 days of retiring.^[51][52][53]

Impact on gun manufacturers

In 2013, Moon Kook-jin's Kahr Firearms Group of Pearl River, a gun manufacturer, announced that it would be moving its headquarters from New York to Pennsylvania after the passing of the NY SAFE Act. The company also announced that it would be building a manufacturing facility in Pennsylvania, rather than Orange County, New York, as it had looked into.^[54]

In 2014, the Remington Arms Co. decided to open a manufacturing plant in Huntsville, Alabama. The president of United Mine Workers Local 717, which represents workers at Remington's existing plant in Ilion, New York expressed fears about the future of the New York facility and blaming the NY SAFE Act for the company's decision to expand in Alabama rather than New York. However, "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 few years before 2014.^[55] Subsequently, about 100 Remington jobs were shifted from New York to Alabama; a Remington Outdoor Company CEO said that the SAFE Act (alongside other factors such as "workforce quality, business environment, tax and economic incentives, and existing infrastructure") to the shift.^[56]

See also

• Gun laws in New York
• State hunting licenses

References

1. Thomas Kaplan, Sweeping Limits on Guns Become Law in New York, New York Times (January 15, 2013).
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.
3. Jimmy Vielkind, Senate set to vote on SAFE Act tweaks, Politico (July 8, 2015).
4. Teri Weaver, NY senator pushes to ban gun sales, possession for those on U.S. terrorist watch lists, Syracuse.com (December 11, 2015).
5. Campbell, John (15 January 2013). "N.Y. first state to tighten gun laws after Newtown". USA Today. Retrieved 16 January 2013.
6. "New York passes first U.S. gun control bill since Newtown massacre". CBS News. 15 January 2013. Retrieved 16 January 2013.
7. Walshie, Shushannah (15 January 2013). "New York Passes Nation's Toughest Gun-Control Law". ABC News. Retrieved 16 January 2013.
8. Michelle Breidenbach, The Safe Act "emergency": How Cuomo, past governors bypassed public to make laws, Syracuse.com (March 13, 2013).
9. New York passes major gun control law – first since Newtown massacre - NBCNews.com, January 15, 2013
10. Tom Precious, Appeals court upholds SAFE Act but rules against seven-bullet limit, Buffalo News (October 19, 2015).
11. SAFE Act FAQ, Office of the Governor of New York.
12. James B. Jacobs & Zoe Fuhr, The SAFE Act: New York's Ban on Assault Weapons and Large Capacity Magazines Criminal Law Bulletin (forthcoming, 2017).
13. Thomas Kaplan, Federal Judge Upholds Majority of New York Gun Law, New York Times (December 31, 2013).
14. Thomas Kaplan, Plan to Require Background Checks for Ammunition Sales Is Suspended in New York, New York Times (July 10, 2015).
15. Teri Weaver, Cuomo agrees to changes to NY Safe Act regarding ammunition sales, Syracuse.com (July 10, 2015).
16. Questions whether Safe Act deal changes anything, Associated Press (July 13, 2015).
17. The SAFE Act: Guidelines for Complying With the New Mental Health Reporting Requirement, New York State Psychiatric Association.
18. Anemona Hartocollis, Mental Health Issues Put 34,500 on New York’s No-Guns List, New York Times (October 19, 2014).
19. A closer look at New York State’s gun laws, Obama’s directives, Buffalo News (January 9, 2016).
20. James B. Jacobs & Zoe Fuhr, Universal Background Checking – New York State's SAFE Act, 79 Albany Law Review (forthcoming 2016).
21. Teri Weaver, New York's new gun law: Answers to some questions, Syracuse.com (January 16, 2013).
22. Jon Campbell, Webster Gun Provision, WENY (January 15, 2013).
23. New York Senate passes tough gun law, Gannett Company (January 1, 2013).
24. Rick Karlin, County clerks: State delays handgun permit updates under NY SAFE Act, Times Union (April 16, 2014).
25. Thomas Kaplan, Cuomo's Gun Law Plays Well Downstate but Alienates Upstate, New York Times (October 24, 2014).
26. New Yorkers Favor SAFE Act 2-1, Poll Says, WWNY-TV (March 24, 2014) (see raw polling numbers).
27. New York passes major gun control law – first since Newtown massacre, NBC News (January 15, 2013).
28. Sheriffs' Response to NY SAFE Act, New York State Sheriff's Association.
29. Rick Karlin, Voter bloc hears stars Trump, Paladino; Astorino shows up, Albany Times Union (April 2, 2014).
30. Gino Geruntino, Critics speak out against SAFE Act during Albany rally, WRVO (April 2, 2014).
31. Jenna Flanagan, SAFE Act supporters were also out in numbers in Albany this week, WMHT (April 3, 2014).
32. Elzufon, Rachel (January 23, 2013). "NY SAFE Act Faces Changes". WWKB. Retrieved 25 January 2013.
33. Jordan Carleo-Evangelist, S.C.O.P.E. lauds Marchione for anti-SAFE Act work, Albany Times Union (June 20, 2014).
34. Michael Goot, http://poststar.com/news/local/safe-act-big-on-marchione-s-agenda/article_2266df8d-681f-5b9a-a7f9-196457f7c1ef.html, Post-Star (July 12, 2015).
35. Marchione Introduces Bill To Overturn SAFE Act, NY State of Politics (Time Warner Cable News Capital Region) (February 28, 2013).
36. Mike McAndrew, After Orlando shooting, Assemblyman cancels news conference on repealing NY SAFE Act, Syracuse.com (June 13, 2016).
37. Butler presses for repeal of SAFE ACT legislation, Rome Sentinel (June 20, 2015).
38. St. Lawrence County GOP Assemblyman Butler working on legislation to repeal SAFE Act, votes against funding, North Country Now (May 11, 2015).
39. "Experts Fear Proposed N.Y. Gun Law Might Hinder Therapy". USA Today. Associated Press. January 15, 2013. Retrieved January 19, 2013.
40. "VA refuses to follow Cuomo gun-registry law". 11 March 2013.
42. "N.Y. gun law mandates magazines that don't exist".
43. https://web.archive.org/web/20130324052804/http://newyork.newsday.com/news/region-state/ny-gun-control-gov-cuomo-opts-to-reverse-decision-on-magazine-size-1.4852695. Archived from the original on March 24, 2013. Retrieved March 25, 2013. Missing or empty |title= (help)
44. Pavlich, Katie. "Katie Pavlich - Oops: New York Governor Wants to Repeal Own Gun Control Law".
45. 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.
46. Magazine limit, gun registration period to begin Monday - Democratandchronicle.com, April 13, 2013
47. Virtanen, Michael (March 11, 2013). "VA Says It Won't Follow New York Gun Law", Huffington Post. Retrieved March 11, 2013.
48. Teri Weaver, NY judge dismisses lawsuit challenging Safe Act, Syracuse.com (April 16, 2016).
49. "Gun rights group drops SAFE Act challenge".
50. Berger, Judson (January 18, 2013). "NY Guv Looks to Clarify Gun Law After Concern About Exemption for Police". Fox News.
51. Teri Weaver, Gov. Andrew Cuomo signs amendment to NY Safe Act allowing exceptions for retired police, Syracuse.com (July 8, 2013).
52. Nick Reismanm Cuomo Approves Law Enforcement Exemption In SAFE Act, Capital Tonight, Time Warner Cable News Capital Region, (July 8, 2013).
53. Glenn Blain, NY Gov. Cuomo Signs SAFE Act Exemption For Retired Cops, New York Daily News (July 8, 2013).
54. Firearms maker blames New York gun law for move to Pennsylvania, Associated Press (August 8, 2013).
55. Rick Moriarty, Union official blames Remington Arms expansion in Alabama on NY SAFE Act, Syracuse.com (February 15, 2015).
56. Ken Lovett, Remington CEO: SAFE Act impacted decision to expand—in Alabama, New York Daily News (November 17, 2014).