by The Law Office of Frank Ciardi | Sep 30, 2022 | Criminal Defense
Gun violence statistics are a bit cloudy. In 2020, the gun crime rate dropped, but the fatality rate hit a record high. The high gun suicide rate may have something to do with that discrepancy. Only 4 percent of the world’s people live in America. But the United States accounts for 35 percent of the world’s firearm suicides. Understandably, therefore, a lot of people want to restrict gun ownership rights. State laws vary significantly, but there’s only one set of federal gun possession laws. So, it makes sense for these advocates to focus on federal gun laws and weapons charges.
However, there’s a little thing called the Second Amendment that guarantees the right to keep (own) and bear (possess) firearms. Congress may place reasonable time, place, and manner restrictions on Constitutional rights. Especially in this area, one person’s definition of a “reasonable” restriction is usually very different from another.
An effective Rochester gun possession lawyer makes a big difference in this changing environment. Almost literally, what’s illegal one month may be legal the next month, and vice versa. Therefore, some of the specific laws we talk about in this post might be obsolete very soon. However, the general principles, and the underlying defenses, usually remain the same. A Rochester gun possession lawyer can leverage these defenses during the trial or during plea negotiations and secure the best possible result.
Domestic Violence, Protective Orders, and Gun Ownership
Frequently, federal weapons charges have little or nothing to do with current firearm laws. Protective orders routinely strip away gun ownership rights. In other words, a gun that was perfectly legal suddenly becomes as illegal as a kilo of cocaine.
As a preliminary matter, to obtain a protective order in New York, an alleged victim must show the two people have an intimate relationship (usually two people related by blood or marriage, or who have a child together) and the alleged abuser committed a family offense (usually stalking, assault, or harassment).
Even in a temporary protective order, which doesn’t require a hearing, a judge may confiscate the alleged abuser’s guns and revoke his/her license if:
- The judge concludes, based on the alleged victim’s affidavit, there is a “substantial risk” the alleged abuser may use, or threaten to use, a firearm against the applicant or anyone the protective order covers, such as the applicant’s children, or
- During the misconduct, the alleged abuser caused a serious physical injury, used or threatened to use a deadly weapon, or committed a violent felony.
A Rochester gun possession lawyer cannot temporarily stop the judge from issuing such an order. However, at the full hearing, which usually occurs about two weeks after the application is filed, the judge most definitely hears both sides of the story.
Establishing Possession in Deadly Weapons Cases
Federal authorities rarely prosecute individuals for owning illegal firearms unless these firearms are automatic weapons, destructive weapons, or other weapons that violate the National Firearms Act. Illegal gun possession is a different story.
Possession is a term of art that has a specific meaning in state and federal courts. In any illegal possession case, prosecutors must establish three elements beyond a reasonable doubt:
- Proximity: Vehicle cases illustrate the proximity rule. Usually, anything in the passenger area, which includes a car’s trunk and a pickup’s bed, satisfied the proximity requirement.
- Knowledge: If the defendant knew that “something illegal” was under a seat, that’s not enough. The defendant must know that something was a firearm. Since ignorance of the law is no excuse, the defendant doesn’t need to know the firearm was illegal
- Control: Once again, vehicle possession claims are a good example. If Tony was in the back driver’s side seat and an illegal firearm was under the front passenger side seat, prosecutors would be hard pressed to establish control. That’s especially true if someone was in the front passenger side seat.
Many people ask a Rochester gun possession lawyer to create a gun trust to avoid illegal possession issues and avoid any potential weapons charges. The trust, as opposed to the settlor (an individual who created the trust), legally owns the firearm. It’s pretty easy for the trustee, who is usually the same person as the settlor, to add co-trustees.
In plain English, if Tony accidentally leaves his licensed Glock in the car and his wife gets pulled over, if his wife is a co-trustee in a gun trust, gun possession charges against her won’t hold up in court. Roughly the same thing is true if Tony’s hunting buddy comes over for the weekend and needs to borrow one of Tony’s guns.
Contact an Experienced Attorney for Gun Possession Criminal Defense
There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester gun possession attorney. Convenient payment plans are available.
by The Law Office of Frank Ciardi | Sep 15, 2022 | Criminal Defense
In response to a “reckless” Supreme Court decision, Governor Kathy Hochul approved a spate of new gun control laws, which take effect September 1, 2022.
Gov. Hochul called legislators into a special session, where they quickly approved all proposed gun control laws on a party-line vote. Leading Democrats expect opponents to challenge the gun control laws in court, but these leaders are confident the new laws will pass legal muster.
“I am proud to sign this landmark legislative package that will strengthen our gun laws and bolster restrictions on concealed carry weapons,” Gov. Hochul remarked. “I will continue to do everything in my power to combat the gun violence epidemic,” she added.
Gun Control Laws in NY: Carrying a Concealed Weapon
New York State Rifle & Pistol Association, Inc. v. Bruen is the Supreme Court case that got so many people in Albany worked up. In a 6-3 decision, the Supremes basically ruled that may-issue CCW laws, like the one in New York, are unconstitutional.
New York’s law stated that applicants could receive a CCW license if they met the minimum qualifications and they showed “proper cause” or a special need for such a license. In other words, officials could block CCW license applications if they had bad feelings about them. Under Bruen, any additional qualifications are now illegal.
Since local law enforcement officials lost their veto power, New York lawmakers did what was, in their opinion, the next best thing. They raised the bar as follows:
- Adding requirements like character references, a more extensive background check, and live fire testing to basic CCW qualifications,
- Requiring more extensive firearms training,
- Standardizing the CCW licensing process statewide, and
- Creating a “no-carry” default (it’s illegal to carry a concealed weapon on private property unless the property owner expressly authorizes such action).
New restrictions also include a broader “body armor” definition and pre-ammunition purchase background checks. Additionally, lawmakers changed the safe storage provision in homes and motor vehicles. More on that below.
Other provisions remain largely intact. State-issued licenses are usually only valid in upstate New York. Concealed weapons are only legal in the New York City metro area if a qualified local law enforcement official validates the license. A state license is valid in all contiguous and nearby states, except Vermont and New Hampshire.
On a related note, New York’s self-defense law includes a duty to retreat. If an individual could safely run away, that individual cannot use deadly force in self-defense.
Gun Control Provisions: Prohibited Places
Lawmakers also expanded the list of sensitive places where concealed weapons are illegal, whether the defendant has a license or not, and whether the owner posts a sign or not. Some sensitive places, like Times Square in New York City, are rather straightforward. Others are quite vague. Examples include:
- Airports: Most airports have secure areas, which cover most of the airport, and unsecured areas, where people pick up or drop off passengers. Frequently, the line between secure and unsecured areas is a little blurry, especially in municipal and private airports.
- Government Buildings: Frequently, tax offices, school district offices, satellite courthouses, and other such government buildings are in mini-malls. The new law is unclear as to where the sensitive place starts. Does it start at the government building itself, the frogurt stand next door, or the parking lot outside?
- Places of Worship: Not all churches have steeples, not all mosques have domes, and so on. In other words, just like not all government buildings look like government buildings, not all churches look like churches.
Additional new entries on the list of the prohibited places include schools, restaurants which serve alcohol, homeless and other shelters, libraries, and public demonstrations.
Illegal Weapons Possession
We mentioned the changes to safe storage provisions above. The motor vehicle requirement is probably the biggest change. Before, gun owners could basically throw their rifles in the back seat and take off down the road. Now, it’s illegal to have a rifle, shotgun, or other long gun in a motor vehicle unless the weapon is locked in a gun case or other container.
Legally, any contraband in the passenger area satisfies the proximity requirement in an illegal possession case. A car’s trunk and a pickup truck’s bed usually count as the passenger area.
If proximity were the only requirement in these cases, if five people are in a car with an illegal firearm, all five could be guilty of illegal weapons possession. However, proximity alone isn’t enough. Prosecutors must also establish knowledge and control. Furthermore, they must establish these elements beyond any reasonable doubt.
Let’s expand on the five-people-in-a-car example. If Tony is in the back seat and the illegal firearm is under the front passenger seat, the state would be hard-pressed to establish knowledge and control. That’s especially true if Tony didn’t know the other people in the car very well and someone was sitting in the front passenger seat.
If the evidence in a possession case is weak, a Rochester criminal defense lawyer may be able to get the case thrown out of court.
Contact an Experienced Criminal Attorney in Rochester re: Gun Control Laws
There’s a big difference between a criminal arrest and a criminal conviction. For a free consultation with an experienced Rochester criminal attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.