OSD 127: How gun laws work on the ground

Notes on an amicus brief from NYSRPA v. Corlett.

A group of public defenders filed an amicus brief this week in NYSRPA v. Corlett, the upcoming Supreme Court case challenging New York’s carry permit law. Public defenders aren’t a constituency you see speaking up for gun rights too often, but as the brief makes clear, this is a case about how gun laws work in real life. And nobody knows that better than public defenders.

First, the brief explains how the construction of New York’s handgun possession law (established in the Sullivan Act, which New York passed in 1911) allows nearly all illegal gun possession, no matter how innocuous, to be charged as a violent felony.

When someone in New York City is prosecuted for exercising their right to keep and bear arms—either at home or outside—they are almost always charged with second-degree criminal possession of a weapon, a “violent felony” punishable by 3.5 to 15 years in prison. N.Y. Penal Law §§ 265.03; 70.02(1)(b). That statute criminalizes possessing a loaded firearm outside of the home or possessing a loaded firearm anywhere with the intent to use it unlawfully. N.Y. Penal Law §§ 265.03(3), 265.03(1)(b). It is a more severe charge than possession of an unloaded firearm, which is a lower level, “non-violent” felony. N.Y. Penal Law § 265.01-B(1).

Second-degree criminal possession of a weapon applies to virtually all firearm possession cases—both at home and outside—because of broad provisions within the Penal Law. First, the Penal Law considers a firearm “loaded” if a person possesses it “at the same time” they possess ammunition, regardless of whether the firearm is, in fact, loaded. N.Y. Penal Law § 265.00(15); People v. Gordian, 952 N.Y.S.2d 46, 47 (N.Y. App. Div. 2012) (finding it “legally irrelevant” whether cartridges were in a firearm at the time of the arrest). As a result, New York prosecutors rarely charge firearm-possession cases as a lower-level offense alleging an “unloaded” firearm. Second, the Penal Law dictates that unlicensed “possession” of a firearm is, on its own, “presumptive evidence of intent to use the same unlawfully against another.” N.Y. Penal Law § 265.15(4). As a result, unlicensed possession, on its own, is legally sufficient evidence to establish the heightened violent felony of second-degree criminal possession of a weapon. People v. Galindo, 17 N.E.3d 1121, 1124 (N.Y. 2014). Together, these two provisions allow New York prosecutors to charge almost every firearm possession case as the violent felony of second-degree criminal possession of a weapon.

The brief discusses how even though handgun possession in the home was explicitly protected by Heller, it remains practically extinguished as a right for poor New Yorkers because the permit application requires several hundred dollars in fees, several trips to the police station, and over a year of onerous back-and-forth paperwork. One very simple example from our own experience:

Where the brief hits home is when it gets to a litany of actual prosecutions that have happened under the Sullivan Act. What makes them jarring isn’t how jarring they are, it’s how utterly common they are.

A few excerpts (edited for brevity and clarity):

Ms. Sophia Johnson, a survivor of domestic violence and sexual assault, was prosecuted for possessing a firearm in her home.

When Ms. Sophia Johnson lived in the Midwest, she legally purchased a firearm for her and her daughter’s safety. As a single parent and a survivor of domestic violence and sexual assault, she found that possessing a gun in her home, even unloaded and in a lockbox, gave her peace of mind.

She eventually moved to New York, and she brought her gun with her. Unaware of New York’s stringent laws, Ms. Johnson thought it was enough that her gun was legally purchased and registered in the state of purchase.

A few years later, she found herself in an abusive relationship. When she tried to leave, her abuser stole some of her belongings, including the gun. Ms. Johnson had never interacted with the police before, and she trusted them, so she did what she thought was right: she immediately reported the gun missing to the police. She cooperated with the police and even signed a search warrant.

Police found the gun—and then arrested her. The prosecution charged her with a felony for owning the gun. They prosecuted her using her own statement to the police, where she affirmed that the gun was hers and that she had bought it out-of-state for her own protection.

Mr. Gary Smith was prosecuted for possessing a “loaded gun” in his home because he had a gun and ammunition under his bed.

Mr. Gary Smith is an elderly man who worked his whole life as a city employee. He retired after he was diagnosed with cancer. After several rounds of chemotherapy, his cancer was finally in remission.

A few weeks after his last treatment, while his friend was staying at his house, police barged through Mr. Smith’s front gate. They demanded that the friend “consent” to a search of Mr. Smith’s apartment or they would “bust the door down.” His friend—more terrified than she had ever been in her life—acquiesced. When Mr. Smith returned to the apartment, the officers arrested him. They had found a small handgun inside a closed pouch under his bed. They alleged they found ammunition in a separate pouch, also under the bed.

The police processed Mr. Smith for court. He awaited arraignment for over twenty-four hours. He remembers sitting in the arraignment cell, worried about his health, anxious that it would not be able to withstand the obviously filthy conditions.

At his arraignment, Mr. Smith was charged with violating both N.Y. Penal Law § 265.03(1)(b) and N.Y. Penal Law § 265.03(3)—each a violent felony. As a result, he faced a mandatory sentence of 3.5 to 15 years in prison. The prosecutors accused him of possessing a loaded firearm with intent to use it unlawfully because New York presumes that intent from unlicensed possession alone. New York’s law considered the firearm “loaded” because the ammunition was in the same area as the firearm. And the “home” exception in N.Y. Penal Law § 265.03(3)—which is virtually always rendered academic because the law presumes that any unlicensed possession is already legally sufficient to establish a violation of § 265.03(1)(b)—did not apply to him because he had previously been convicted of a class A misdemeanor for jumping a subway turnstile.

After extensive negotiation and the defense’s investigation of the unlawful police entry into the home, the prosecution agreed it could not sustain its burden at the suppression hearing and dismissed the case. Still, the psychological effects of the case have lasted. Regarding his friend, Mr. Smith says, “She’s just not the same anymore.”

Mr. Andre Thomas was charged with possessing his roommate’s gun after police found it in their shared kitchen.

New York’s Penal Law provisions are so broad that they even affect people who are merely proximate to those who exercise their Second Amendment rights. Mr. Andre Thomas is one such example.

Mr. Thomas had recently moved to a new home to be closer to his mother, for whom he was caring after she had a stroke. At the break of dawn, Mr. Thomas awoke to the sound of his door being violently smashed in. At first, he thought he was being attacked. Then he realized his attackers were the police. The police charged into his kitchen, tearing his home apart along the way. They found a safe in the kitchen, broke it open, and discovered a firearm inside. This was not Mr. Thomas’ gun, but his roommate’s—an old friend he was trying to help by renting him a room at an affordable price.

Police arrested Mr. Thomas for the gun and prosecutors charged him with N.Y. Penal Law § 265.03, a violent felony. At arraignment, the judge set monetary bail. In New York, monetary bail is usually synonymous with extended pretrial detention: like thousands of people in New York City, neither Mr. Thomas nor his ill mother could afford the amount set. He was sent to Rikers Island.

Eventually, a friend bailed Mr. Thomas out, but escaping the trauma of Rikers was only the beginning. Because of the gun possession charge, Mr. Thomas lost his security guard license and his job of over four years as a security guard supervisor.

There are lots of other examples. A mother whose kids were taken by the state and who lost her job and her rented apartment because of her “violent felony” charge for possessing a gun in New York. Several people who’ve lost their careers and their freedom for these sorts of charges. The natural response for some might be, “Well just get the permit.” But the problem is that the permit process systematically deters most of the people who’d go through it. The brief ends by addressing exactly this issue:

Our experience illustrates that New York effectively deprives its people of the Second Amendment right by requiring that they successfully obtain a license from the police before exercising it. As a result, we urge this Court to enforce the Second Amendment by issuing a clear and durable rule. The Court should hold that Petitioners’ denials violated the Second Amendment because New York cannot condition Second Amendment rights on a person first obtaining a license.

In asking that the Court resolve the question presented in this way, we are mindful that the right to keep and bear arms has “controversial public safety implications.” McDonald, 561 U.S. at 783. “As surely as water is wet, as where there is smoke there is fire,” there are those who will “take[] for granted” that criminalizing gun possession “is the antidote to killing.” See Leaders of a Beautiful Struggle v. Baltimore Police Dep’t, No. 20-1495, 2021 WL 2584408, at *14 (4th Cir. June 24, 2021) (Gregory, C.J., concurring) (criticizing the logic of policing and prosecution as the only tool for preventing violence). It is tempting, “if the only tool you have is a hammer, to treat everything as if it were a nail.”

But what these stories and our experience illustrate is that New York’s licensing requirements—which cause criminal penalties for unlicensed possession—themselves have controversial public safety implications. It is not safe to be approached by police on suspicion that you possess a gun without a license. See, e.g., Michael Cooper, Officers in the Bronx Fire 41 Shots, And An Unarmed Man Is Killed, N.Y. Times (Feb. 5, 1999) (reporting the murder of Amadou Diallo). It is not safe to have a search warrant executed on your home. See, e.g., Richard A. Oppel et al., What to Know About Breonna Taylor’s Death, N.Y. Times (Apr. 26, 2021). It is not safe to be caged pretrial at Rikers Island. See, e.g., Michael Schwirtz et al., Rikers Deemed Too Dangerous for Transferred Inmates, N.Y. Times (May 5, 2017). It is not safe to lose your job. Margaret W. Linn et al., Effects of Unemployment on Mental and Physical Health, 75 Am. J. Pub. Health 502 (1985). It is not safe to lose your children. Bruce Golding, Lawsuit Says NYC Has One of the Worst Foster Care Systems in US, N.Y. Post (July 8, 2015). It is not safe to be sentenced to prison. Jean Casella et al., New York’s State Prisons Are Brutal and Deadly. That’s Something We Can Change, Gothamist (Feb. 21, 2019). And it is not safe to forever be branded as a “criminal,” or worse, as a “violent felon.” See Strieff, 136 S. Ct. at 2069-70 (Sotomayor, J., dissenting) (describing the “civil death” that accompanies criminal convictions). In sum, New York’s licensing requirements are not safe.

The good news here is that nobody would look at these outcomes and be ok with them. Most people would consider it deeply embarrassing to be associated with them. So the reason it hasn’t yet been embarrassing is that the association hasn’t been clear — groups have been able to promote these laws without talking about what the laws empirically do. Exposés like this are like putting a body camera on the law itself. And when people see what’s on the video, they recoil.

Gun control groups have a tough challenge. It’s really hard to promote something when its popularity depends on people not knowing about it.

When people learn about how gun rights and gun laws actually work on the ground, they tend to land in a good spot. So let’s keep showing them the facts.

This week’s links

The collected writings of u/tablinum

One of the best sets of gun rights writing out there. You could throw a dart in there and hit a great writeup, but one of the lesser-known ones is tab’s writeup of the coordinated effort before the PLCAA to eliminate sales of firearms through a relentless barrage of lawsuits.

“Mission trip to firearms industry: how witnessing a mass shooting changed my life”

A story from the Jim’s Goon Life channel.

Stephen Gutowski on the surprising effectiveness of Heller for a weapon people don’t talk much about: stun guns

The piece is behind a paywall at Stephen’s site, but it’s worth a subscription if you like this stuff. An excerpt:

While it didn’t rule on the merits of the Massachusetts stun-gun ban in 2016’s Caetano v. Massachusetts, the Court did unanimously find a lower-court ruling upholding the ban was wrong. It said neither the fact that stun guns are new technology nor the fact that they aren’t useful in military service places them outside the Second Amendment. And that small bit of insight from a five-paragraph opinion fueled the extremely successful effort to invalidate stun-gun bans nationwide.

This month, Hawaii repealed its ban on stun guns. That didn’t happen because legislators had a change of heart. Instead, they were forced to by a court case relying on the Heller precedent.

“This article, written by one of [OSD’s] writers, has been responsible for convincing at least 12 people to buy a gun (that personally told me this article is what made them go buy it)”

To spread gun rights, just make more gun owners 💪. The piece in question is BJ Campbell’s “The Surprisingly Solid Mathematical Case of the Tin Foil Hat Gun Prepper”.

Musa belt building hub

Neat UI for building a gun belt. The complexity of gear choices is daunting for a lot of people. It’s cool to see companies starting to explore better ways to present options.

OSD office hours

If you’re a new gun owner, thinking about becoming one, or know someone who is, come to OSD office hours. It’s a free 30-minute video call with an OSD team member to ask any and all your questions.

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