2nd Amendment Law
New York State and the 2nd Amendment
In New York State, eligible residents have the opportunity to possess handguns, subject to approval by an authorized licensing officer. The specific guidelines for purchasing a pistol permit are outlined in Article 400 of New York Penal Law. Pistol permits encompass various categories, including business pistol permits, premises permits, concealed carry permits, and sportsman permits.
In many cases, it is highly advantageous for pistol permit applicants to enlist the assistance of an attorney during the application process. One of the primary reasons an applicant might face disqualification from obtaining a pistol permit is the failure to disclose prior arrests, convictions, or interactions with law enforcement. This omission can result from memory lapses, confusion over the question, or a lack of understanding regarding the necessity of reporting such incidents. Irrespective of the reason, a licensing officer may assume that the failure to disclose these incidents was a deliberate attempt to mislead the court. By retaining legal counsel, you can prevent this issue from arising and ensure the strength of your application.
The initial step in securing a firearm permit in New York State involves filling out the Pistol/Revolver Application form, a document that assesses an applicant’s background for potential disqualifying factors. It’s important to note that these applications can vary from one county to another across the state.
New York State law typically mandates individuals to meet specific criteria before being approved for a pistol permit. The qualifying factors include:
- Being a citizen of the United States.
- Being at least 21 years old, with exceptions for honorably discharged individuals from the New York National Guard or the United States Military.
- Demonstrating good moral character.
- Never having a guardian appointed due to incapacity, mental illness, subnormal intelligence, or other similar conditions.
- Having no history of prior pistol permit revocation.
- Having no prior civil confinement in a secure treatment facility.
- Having no previous felony or ‘serious offense’ convictions in New York State or elsewhere. ‘Serious offense’ encompasses a range of crimes, including but not limited to aiding in an escape from prison, child endangerment, disorderly conduct, illegal use of a dangerous weapon, making burglar instruments, rape, receiving stolen property, sodomy, and unlawfully entering a building.
- Never having been discharged from the military under dishonorable conditions.
- Never having been involuntarily committed to a facility under the jurisdiction of the Department of Mental Hygiene.
- Not being a fugitive from justice.
- Not being an addicted or unlawful user of any controlled substance.
- Having no active domestic violence restraining order against you.
- Not being in the United States illegally or admitted on a non-immigrant visa.
- Not presenting any other ‘good cause’ for denial of the license.
You will be required to complete an instructor led firearm training before submitting your application, or in some counties before you obtain the application. It is important to understand that if your firearm license is revoked by a court in another state, or if you are deemed ineligible for such a permit, New York courts will be obligated to follow the actions taken in that state, even if you have relocated to New York.
When it comes to safeguarding your Second Amendment Rights, various issues may arise, but the assistance of an experienced attorney can make a significant difference in preserving these rights. At Passalacqua & Associates, our legal team is well-prepared to address and protect your Second Amendment Rights in the following common scenarios:
- Applying for a Pistol Permit—The process of applying for a pistol permit in New York is a critical step in acquiring a pistol. Having an attorney involved at this early stage can help ensure a smooth application process.
- Denial of Pistol Permit—If you’ve faced a denial of a pistol permit, it doesn’t mean the end of the road for your Second Amendment Rights. Our attorneys can explore various solutions to help protect your rights and guide you through the process.
- Trouble Purchasing a Firearm—If you encounter difficulties when trying to purchase a firearm, there can be a range of underlying causes. While many issues can be resolved at the state level, some may have federal implications. Our attorneys can provide the best guidance to resolve these problems.
- Prior Convictions or Psychiatric Commitments—Previous convictions or involuntary psychiatric commitments can, in many cases, hinder not only the acquisition of a pistol permit but also the purchase of firearms altogether. Depending on your circumstances, our attorneys can assist you in addressing and potentially overturning prior convictions or psychiatric commitments, allowing you to legally exercise your Second Amendment rights.
- Firearm Seizure without Your Input—New York State has implemented ‘Red Flag’ laws that authorize courts to seize firearms when someone alleges a safety concern. These seizures can occur without your input or a hearing. If you find yourself in a similar situation, consulting with an attorney at Passalacqua & Associates can help ensure that a hearing is granted and that your perspective is heard.
The process of obtaining an Extreme Risk Protection Order (ERPO) typically initiates with a petitioner, often a family member, law enforcement officer, or school official, expressing concerns about an individual’s potential threat to themselves or others due to their firearm possession. Subsequently, the court reviews the presented evidence and may issue a temporary ERPO if it deems it appropriate. Following this, a final hearing is conducted to determine whether the order should be extended.
At Passalacqua & Associates, our legal team specializes in addressing the complex challenges and predicaments faced in ERPO proceedings. We stand ready to assist you throughout the process in an attempt to retain your 2nd Amendment rights.
Your Rights Under the ERPO Law
Individuals who become subjects of an Extreme Risk Protection Order (ERPO) are entitled to a hearing, providing them with the opportunity to present evidence and call witnesses to contest the order. Furthermore, you retain the right to appeal the court’s decision. Having legal representation throughout this process is essential to safeguarding your rights and interests.
When an Extreme Risk Protection Order (ERPO) is issued, the requirement to surrender firearms is imposed. However, the law also outlines procedures for the safe storage of your firearms during this period. Our team can assist you in understanding these procedures to ensure that your property is appropriately safeguarded and can be returned promptly when the order is lifted.
Article 78 Proceedings
When a government agency, such as a gun licensing officer, planning board, or the New York State Department of Motor Vehicles, makes a decision that you believe to be unjust, the legal framework grants you the right to contest that decision in a court of law. You have the legal entitlement to request a judge to compel the government or the specific agency to fulfill their lawful obligations or cease actions that contravene the law.
Furthermore, the law mandates that government entities and agencies must not act in a whimsical or arbitrary manner when rendering decisions.
Article 78 within the New York State Civil Practice Law and Rules (CPLR) establishes a procedural avenue for addressing the actions or inactions of government agencies or officials through legal challenges in court. Our experienced New York litigation attorneys can clarify that there are three fundamental types of remedies available for individuals to pursue.
Writ of Mandamus
A Writ of Mandamus can be employed to compel a government agency or official to fulfill a legal obligation. For instance, individuals may initiate an Article 78 proceeding in the form of a Writ of Mandamus to compel a government agency to render a decision on a pending application. Similarly, one can use an Article 78 in the form of a Writ of Mandamus to prompt a court to make a timely decision in a case or motion when undue delays occur. Our skilled Article 78 attorneys at our New York firm are well-versed in assisting you with pursuing this specific type of remedy.
Writ of Probation
A Writ of Prohibition is a legal tool designed to compel a government agency or official to abstain from actions they are not authorized to perform. For instance, individuals may initiate an Article 78 proceeding in the form of a Writ of Prohibition to prevent an agency, court, or judge from exceeding their legal authority. As an illustrative scenario, if a judge were to unilaterally nullify a defendant’s previously accepted plea agreement involving a guilty plea, that defendant could pursue an Article 78 in the form of a Writ of Prohibition to address the situation.
Mandamus of Review
A Mandamus of Review is a legal recourse employed by Article 78 or government litigation lawyers in New York when the objective is to challenge and overturn a decision made by a public agency or official. Instances where an Article 78 in the form of a Mandamus to Review might be applied include scenarios such as the rejection of a rent increase request in a rent-stabilized housing unit, the denial of pistol permit applications, a guilty verdict in a DMV Traffic Violations Bureau hearing, and a determination of child abuse or neglect by an agency like Child Protective Services (CPS).
However, it’s crucial to note that before individuals can pursue Article 78 actions, they are typically required to exhaust all available administrative procedures and reviews. This means that if there is an established administrative appeals process for challenging an unfavorable decision, one must first navigate and complete that process before proceeding to file an Article 78 petition in court.
Beware! There are strict timelines!
Typically, the statute of limitations for initiating an Article 78 proceeding is limited to a maximum of four months, and in certain cases, this period can be even shorter. Therefore, it is of utmost importance to promptly engage an attorney well-versed in Article 78 proceedings as soon as you receive an adverse decision in order to address the statute of limitations.
It’s crucial to understand that courts will only intervene and overturn government decisions when they are determined to be illegal or when government officials have clearly abused their discretion. The court does not substitute its own judgment for that of the government agency or official and does not conduct a comprehensive review ‘de novo’ from scratch.