Gun control

Federal Appeals Court Upholds SAFE Act (Updated)

safeactsignThe gun-control law known as the SAFE Act was upheld in federal court on Monday after it was determined by a three-judge panel the measure does not infringe on the Second Amendment.

The ruling, issue by the U.S. Court of Appeals for the Second Circuit, also upheld a Connecticut gun control law that, along with New York’s SAFE Act, had been approved in the wake of an elementary school shooting in December 2012.

“We hold that the core provisions of the New York and Connecticut laws prohibiting possession of semiautomatic assault weapons and large-capacity magazines do not violate the Second Amendment, and that the challenged individual provisions are not void for vagueness,” the ruling found.

Still, the ruling is only a partial victory for gun-control advocates. A key and controversial provision of the SAFE Act, which limits magazines capable of holding 10 rounds to seven bullets, was found to be unconstitutional, a finding that upholds a lower court’s determination. More >

Seward And Flanagan Tout ‘Common-Sense’ Changes To SAFE Act

safeactsignThe memorandum of understanding reached by Senate Republicans and Gov. Andrew Cuomo to not enact an ammunition purchasing database was a common-sense reform to the controversial SAFE Act gun control law.

That’s according to Sen. James Seward and Majority Leader John Flanagan, who met earlier this morning at the Otesaga Resort and Hotel, part of the downstate leader’s re-introduction to upstate New York.

“Until anything changes in the future, that section of the law under agreement is suspended,” Seward said of the two-way agreement.

The MOU has done little to assuage the concerns of some gun-rights advocates, who have pushed for a full repeal of the law — a prospect that is unlikely given the Democratic control of the Assembly as well as the governorship.

But given the political realities, Seward said the MOU was at the moment the best the GOP conference could achieve. More >

Is The SAFE Act MOU Even Legal?

The controversy continuing to swirl over the memorandum of understanding between the Senate GOP and the Cuomo administration that appears to halt (at least for the moment) development of the SAFE Act’s ammunition database really hinges on one central question: Does the document have any legal standing?

Zack Fink touched on this question in his blog post/memo item earlier today, noting that the MOU appears to try to subvert a law passed by two houses of the Legislature and signed by the governor through a non-legally binding agreement between one house of the Legislature and a top Cuomo aide – something that, at least to my memory, has never been done before.

The Cuomo administration has repeatedly insisted that this MOU does not other than codify an already existing situation. The database doesn’t yet exist due to the fact that the State Police, which is charged with creating it, has said it is incapable at this time of bringing it to fruition.

According to the governor’s office, the database project is still ongoing – although when, exactly, it will be up and running remains a mystery, and how it can get up and running without the say-so of the Senate GOP – which isn’t likely to approve as long as it controls the chamber – is also under.

The Assembly and Senate Democrats say they’re investigating their options for a potential legal challenge to the MOU. Over the weekend, I made some calls, looking for someone who would be able to opine on whether this thing has a legal leg to stand on, and the response I encountered (as so often occurs in these cases) was: Ask your Dad. (That would be Dr. Gerald Benjamin, a SUNY New Paltz political science professor and expert on all things state government related).

So, I did. And here’s what he said:

The executive has discretion in enforcement of the law. By analogy, if a budgeted program is demonstrated to be ineffective or suspect, he or she may not spend the money pending revision or investigation. No MOU is constitutionally required with either house or both houses for such an action to be taken, though it may be sought for political purposes. In fact, entering into an MOU may provide a troublesome precedent for the executive branch at a later time.”

“(State Operations Director Jim Malatras’) signature suggests that this is an administrative matter, and may be a hedge against precedent. The governor did not sign.”

“Conditioning resumption of administration of a law on one house approval is suspect. If approval is withheld by the Senate, that portion of the law is effectively rendered void. This constitutes a de-facto one house legislative repeal. It also gives away executive authority; precedent again. Repealing the law requires the conventional process: action by both houses and gubernatorial approval.”

Keeping the Senate SAFE

When changes to the SAFE Act first came to light, it looked an awful lot like the Senate Republicans and the Cuomo administration were repealing part of the governor’s signature gun safety law without a three-way agreement to do so.

To actually roll back parts of the SAFE Act, originally passed with much haste in January 2013, both houses must pass legislation and Cuomo must sign it. Otherwise the law remains, well, the law.

When laws are written, words such as “will” and “shall” are used to wipe away any ambiguity. If words like “may” or “should” come into play, there is a lot more latitude and discretion.

The 78-page gun and ammunition safety bill known as the SAFE Act, pushed through the Legislature by Cuomo in the wake of the Newtown, Conn. massacre, contains the following passage:

“No commercial transfer of ammunition shall take place unless a licensed dealer in firearms or registered seller of ammunition acts as an intermediary between the transferor and the ultimate transferee of the ammunition for the purposes of contacting the statewide license and record database pursuant to this section.

There seems little room in that passage for interpretation.

So, when news surfaced Friday night that Senate Majority Leader John Flanagan and a top Cuomo aide had signed a Memorandum of Understanding making changes to the SAFE Act, it caused quite a bit of confusion, and also prompted a blistering statement from the third man in the room, Assembly Speaker Carl Heastie.

It’s one thing for administration and the Senate GOP to drag their feet on implementing a certain provision within the law. It’s quite another to put it in writing. That’s what was done here. In essence, Cuomo and the Senate Republicans are saying they have no intention of funding the database spelled out in the law to keep track of ammunition sales.

And that is precisely what may subject them to a legal challenge from both the Senate and Assembly Democrats, who are currently investigating their options.

Here’s the bizarre set of circumstances for how it all unfolded:

The MOU was agreed to by the administration and Flanagan. The majority leader put his signature to the final draft first, according to a source familiar with the timeline. Then Cuomo’s director of state operations, Jim Malatras, followed suit.

The MOU was then sent to members of the Senate Republican conference. Late in the day Friday, Sen. James Seward of Oneonta issued a press release taking credit for compelling the “first ever changes to governor’s gun control law.” He also mistakenly claimed the moratorium on Internet sales of ammunition would end.

Seward’s statement appeared to catch everyone off guard – the Assembly speaker, the Cuomo administration and even Flanagan’s office, which apparently did not get a heads up on the rank-and-file lawmaker’s press release plans.

This was not how what something viewed by Flanagan’s people as a major accomplishment was supposed to get announced – later afternoon in what looked for all the world like a Friday news dump. The rollout of this shiny new MOU was officially botched.

There was no opportunity for the Cuomo team to mitigate the effects of what was coming ahead of time. And the MOU itself sounds a bit jarring if one is a SAFE Act supporter. The final paragraph states:

“RESOLVED, that no expenditures of state monies shall be allocated for the purposes of purchasing and installing software, programming and interface required to transmit any record for the purpose of performing an eligibility check…until such time as a plan for the cost of such has been approved by the undersigned.”

The read on this from a number of insiders and veteran Capitol watchers is that as long as Flanagan and the Republicans remain in control of the Senate, the database will never exist – no matter what the Cuomo administration now claims.

Naturally, Democrats and gun control advocates went a little berserk. And that led to a complete walk back Saturday afternoon from Cuomo’s chief counsel, Alphonso David, who issued a statement insisting:

“The memorandum reiterates the administration’s intention to implement a functional database when it is ready and reinforces that the system cannot be launched prematurely.”

One Republican described the Saturday explanation as making the governor “look weak,” since you never want to be in a position of justifying what you’ve done – especially not on a beautiful Saturday afternoon in July when barely anyone is paying much attention.

On Sunday, New Yorkers Against Gun Violence issued a statement calling the suspension of work on background checks “unnecessary and disappointing.” The anti-gun group went on to say that David’s subsequent statement had provided some “comfort,” but they are now calling on the governor to provide a date for when this database will be up and running.

That, of course, is something he cannot do under the terms of the MOU, because it would require Flanagan’s approval. And that is not something the new majority leader – still under fire from conservatives (who, by the way, would have preferred to see Syracuse Sen. John DeFrancisco as leader) for his “yes” vote on the SAFE Act – is likely to give any time soon.

So, what exactly is going on here?

It seems like Cuomo is trying to have it both ways – telling Democrats and those on the left with whom he has been rather unpopular lately that nothing has changed, while also doing a solid for Flanagan in advance of what’s shaping up to be a difficult election year for the Senate GOP.

The database already had technological challenges, as the State Police admitted long ago, and therefore the MOU is virtually meaningless, since monies were withheld for its implementation in the budget back in March – a budget, by the way, that was agreed to by both houses.

Democrats point out that this isn’t about the money, since the Cuomo administration can find money to get the database up and running if the governor had the desire and the will to do so. One Democrat called the non-binding MOU “window dressing for the Republicans.”

Then why do it?

Many people now believe that this was about in internal politics more than anything else. It’s been no secret that Cuomo likely played a role in helping select Flanagan as leader earlier this year after his former Senate Majority Leader Dean Skelos was forced by a corruption scandal to step down.

If Flanagan is going to keep that post, he needed to bring something home for the upstate members who didn’t want him to lead the chamber in the first place. Being able to say that a part of the SAFE Act is now officially dead might be a good way to do that.

One Republican called this a “big win” for Flanagan, and both the NYS Rifle and Pistol Association and the NRA issued statements hailing this as a good first step toward their ultimate (and likely unattainable, as long as Cuomo and Heastie are around) goal of full repeal.

But some of the most staunch Second Amendment advocates aren’t quite convinced.

Assemblyman Bill Nojay, an outspoken Rochester-area Republican, dismissed the MOU as merely conforming “what we’ve all known – the ammunition database provision in the SAFE Act is not workable and has not been implemented.”

“The MOU therefore has all the significance of the Governor and Mr. Flanagan announcing that tomorrow the sun will rise in the East,” Nojay continued. “We all knew that, it was going to happen anyhow, and taking credit for it is political grandstanding.”

“If the Governor and Mr. Flanagan were serious about undoing the many disastrous provisions of the SAFE Act, they had their chance to prove it during the Budget and end-of-session negotiations this year. They didn’t. For them to now tell us what we’ve all known about the failures of the database provisions, and to describe it as a concession or gift to the Second Amendment community, won’t work.”

“We will continue to use every judicial, legislative and political means at our disposal to repeal the SAFE Act or, at a minimum, remove its offensive provisions from the laws of New York.”

So, ultimately, Flanagan – and maybe the governor, if he means to uphold his end of this deal – need to prove the MOU wasn’t just lip service. That might be easier said then done – especially if a legal challenge from the Democrats materializes.

It’s now spelled out in writing – though in a legally questionable manner – that there is an intention to withhold funding agreed to by just two of the three parties it generally takes to make decisions in Albany.

A judge might yet determine that the director of State Operations and the Senate majority leader have no real authority to do that, and the law must be followed as written. If not, a significant and potentially problematic precedent has been set here.

As every good lawyer will tell you – it’s dangerous to put anything in writing.

Cuomo Admin Clarifies SAFE Act Changes

Gov. Andrew Cuomo is taking a beating from fellow Democrats and left-leaning entities like the Working Families Party for agreeing to suspend the creation of a database to be used for ammunition sale background checks – a provision of the controversial gun control law known as the SAFE Act.

An memorandum of understanding between the Cuomo administration and the Senate Republicans outlining the change was released late Friday afternoon by Sen. Jim Seward. The MOU was signed by Senate Majority Leader John Flanagan and Cuomo’s state Director of Operations Jim Malatras, who, technically speaking, has no statutory powers, leading some to question the document’s legality.

The move quickly sparked a firestorm of criticism from Assembly Speaker Carl Heastie, who said he didn’t sign off on any SAFE Act changes during the end-of-session talks, and Senate Democratic Leader Andrea Stewart-Cousins, whose spokesman called the two-way deal “outrageous.”

While some gun rights advocates hailed the MOU as a step in the right direction toward their ultimate goal of full repeal, something to which the governor would never agree, others derided it as meaningless lip service, and an effort by Cuomo to help Flanagan placate those on the right who are still seething over his “yes” vote on the SAFE Act in January 2013.

Cuomo spokesman Rich Azzopardi quickly jumped into the fray, insisting that “no provision of the SAFE Act…has been rolled back or altered due to this memorandum,” and that it merely codified what the State Police have long been saying – the technology for the ammunition-sale database is not yet ready, and won’t be for the foreseeable future.

But despite Azzopardi’s best effort, the MOU was widely characterized as a weakening of the SAFE Act in media reports, and also a giveaway by Cuomo to the Senate GOP.

In response, the Cuomo administration stepped up its pushback effort, releasing a lengthy statement yesterday from the governor’s counsel, Alphonso David, seeking to “clarify” what he deemed the mischaracterization of the MOU.

Basically, David insisted the database has not been formally derailed, but isn’t ready and “cannot be launched prematurely.”

He said the administration remains committed to creating the database, but gave no timeline for the project to be completed. (Also, the MOU clearly states that no additional state money will be spent on this effort unless the Senate GOP signs off on its expenditure, so that sort of complicates things).

Here’s David’s full statement:

“The SAFE Act provides that the State will establish its own database to conduct background checks prior to purchase of ammunition,” David said. “Recent events and killings have reinforced how vital functional and accurate background checks are.”

“The law dictates that the State Police is solely responsible for determining the manner of registration and certification of the database. The database will be accessed by gun shops and sporting goods stores prior to ammunition sales to private parties. It is a complex undertaking and has never been done before. New York State will be the first in the nation, a fact we are proud of.”

“There have been concerns raised that the State should not implement the database prematurely as it could cause unmanageable disruption in retail establishments and could cause undue delays. We agree. In fact, over the last two years the Superintendent of State Police has repeatedly and clearly said no system would be implemented until it is ready.”

“Members of the Republican Senate have indicated that, despite those prior statements, they continue to be questioned by the public and want to answer definitively that we are aware of the concerns and will act responsibly. The memo issued by the Director of Operations simply restates that point.”

“The administration continues to work to enact the database and intends to brief its legislative partners when the system is ready, but the legal responsibility for the implementation decision lies solely with the Superintendent of State Police.”

“To be clear, the memorandum reiterates the administration’s intention to implement a functional database when it is ready and reinforces that the system cannot be launched prematurely. The memorandum can in no way supercede the law as passed by the legislature and further, there is nothing in the memorandum that is inconsistent with the letter, spirit or intent of the law.”

“We need an operational database, but it must also be effective and functional. It will promote public safety and save lives. Responsible government requires nothing less.”

SAFE Act Changes Unlikely This Year

Sorry SAFE Act opponents – this year’s legislative session is expected to end without any final changes to the controversial gun control law.

Senate Majority Leader John Flanagan told reporters Thursday that discussions over amendments to the law are ongoing.

“We continue to have discussions on that,” Flanagan said. “I’ve raised what we believe to be common-sense reforms to both the Governor and the Speaker and that’s an ongoing discussion. It’s obviously a highly sensitive issue but it’s also something that’s extraordinarily important to a significant number of members of our conference.”

The Senate had already passed a bill earlier this month that would enact several major changes to the law. It would have nixed background checks while buying ammunition, and would allow gun owners to pass on their firearms to family members upon dead.

A gun registration would also no longer be made public without a request for a waiver under the law that had little chance of passing the Democratic-led Assembly to begin with.

The controversial law first passed both chambers back in 2013 following a deadly shooting at an elementary school in Newtown, Connecticut.

Poll: New Yorkers Support Gun Control Measures

From the Morning Memo:

New Yorkers Against Gun Violence is poised to release a new poll that shows widespread support among Empire State voters – including gun owners – for what the organization deems “common sense” firearms control measures.

The poll, conducted by the Boston-based firm Kiley & Co., (which, incidentally, is the same outfit the DCCC has been using for years), shows strong support for seven proposed gun safety bills.

The measures range from a safe storage requirement to a proposal that would require anyone convicted of domestic violence to have a firearm removed from his or her possession.

According to the poll, support was strong for a number of those measures in gun-owning households, though they did not much like the idea of the .50-caliber ban (which was juster voted down in a Senate committee) or limiting New Yorkers to just one gun purchase.

Also, 53 percent of poll respondents said they would be more inclined to vote for their own state legislator if he or she voted in favor of stronger gun laws. Fifty percent said they would be less inclined to vote for that individual if he or she were opposed to those measures.

These are particularly interesting findings given the ongoing upset – especially upstate – over the SAFE Act, which the governor signed into law in January 2013.

That was the last significant piece of gun control legislation passed in Albany, and some lawmakers have been working (without much hope of success while Cuomo is in office) to get it repealed ever since.

Recognizing that Albany presents something of a challenge, NYAGV has been focusing on local gun control initiatives, according to the organization’s executive director, Leah Gunn Barrett.

“We’ve been making progress at the local level in cities across the state,” she said. “Just like state laws will precede federal laws, local laws often precede state laws.”

“The lower down you can get in building grassroots support, the more success you’re going to have…The SAFE Act was made up of measures that were introduced year after year after year. We know it takes time to build support.”

NYAGV will hold its annual lobby day in Albany next Monday, which will be attended by students from across the state whose communities have been impacted by gun violence.

New Yorkers Against Gun Violence Poll by liz_benjamin6490

Effort To Scale Back SAFE Act Backed By Assembly Democrat

Democratic Assemblyman Anthony Brindisi announced on Monday he had signed on to a legislative package that would alter and scale back some provisions of the SAFE Act, a omnibus gun control bill approved in 2013.

The measures, which are also backed by Sen. James Seward of Oneida, would address major aspects of the gun control law championed by Gov. Andrew Cuomo, which he counts among his most significant accomplishments as governor over the last four years.

The proposals would end the ban on giving long guns as gifts to relatives and pistol permit holders, repeal a provision in the law that limits 10-round magazines to seven rounds and end the requirement for ammunition retailers to register with the state and provide background checks on customers.

At the same time, county judges would be banned from “imposing extraneous restrictions” in issuing pistol and handgun licenses.

It’s not unusual for Republicans to seek amendments or outright repeals of the law, which has become a lightning rod for gun-rights advocates around the state and country.

But it is eyebrow-raising for a Democrat to back such a sweeping repeal.

In a statement, Brindisi pointed to concerns being raised by gun owners over the years.

“Over the past two years, I’ve received numerous letters and phone calls from constituents who are responsible gun owners, and who have some very valid objections to some of the most burdensome aspects of this law,” said Brindisi, a Utica Democrat. “The four bills I am introducing in the assembly would roll back some requirements of the NY-SAFE Act that are an unnecessary burden on responsible gun owners.”

Seward, a Republican who did not support the law’s passage in 2013, took a pointed view of the existing law.

“The reactionary, hastily drafted and passed NY-SAFE Act was meant for headlines and has done nothing to stop criminals from getting guns and using them for illegal purposes,” he said. “We need to take action now to correct the many technical issues the law created for responsible gun owners who shoot for sport, collect firearms, and carry guns to protect themselves and their families.”

Tenney: NY Economy to Blame for Remington Layoffs, Not Just SAFE Act

From the morning memo:

Assemlywoman Claudia Tenney is expanding her thoughts on the 126 workers laid off at Remington Arms in Ilion earlier this week.

In a Capital Tonight interview Wednesday, Tenney criticized the Cuomo administration for “picking winners and losers and deciding which business are more meritorious than others.”

Tuesday, the Assemblywoman tweeted, verbatim, “Thanks Cuomo for killing NY manufacturing. 126 layoffs at Remington today.” Those layoffs add to the 105 workers who lost their jobs at the Herkimer County plant in August. This all came after Remington moved production of a few of its products to a site in Alabama.

At the time, many blamed Governor Cuomo’s gun control law for the layoffs, but Tenney says differently. While the SAFE Act may have played a role, she says it was the state’s economic policies that ultimately drove Remington to drop the workers.

“It’s the unfriendly workplace we have in New York, being ranked so low and having high taxes, a high regulatory burden,” Tenney said.

Tenney also said she’s been in contact with managers at the Ilion plant, who she says don’t expect any more layoffs through the end of this year.

Regardless of that bittersweet news, Tenney also said the layoffs may have been avoided if the state provided more economic incentives to the gun industry, like they have with solar power in Western New York.

“The governor is happy to spend billions and all the other incentives he put through this year,” Tenney said, “But yet this business has been around almost 200 years and is a wonderful business with great benefits, great opportunities for our community and has tradition here.”

Tenney went on to contrast the state’s investment in nanotechnology to the gun manufacturer’s layoffs.

“We’re hoping and praying that a company does come to the Utica area or Utica Nano and brings jobs with it,” Tenney said, “but right now we’ve put hundreds of millions into that center and we don’t have a job. But literally twenty minutes down the road is Remington Arms which has now laid off 126 people.”

As for a potential pay raise for state lawmakers, Tenney says she’s against the measure. In fact, she says she’d rather see the legislature take a pay cut and convene for only three months out of the year, citing how much money it would save the state.

“We don’t need to have full time career politicians working in the state Assembly.”

More Layoffs at Remington Ilion Site

Gun manufacturer Remington Arms is laying off more than 100 workers at its Ilion, NY plant according to multiple news reports and one Assemblywoman Tuesday.

According to a tweet from Assemblywoman Claudia Tenney (see below), the plant laid off 126 workers from the Herkimer County location Tuesday. This follows another round of layoffs from August that left 105 employees without a job.

Gun control opponents, including Tenney herself, have blamed the recent layoffs on Governor Cuomo’s 2013 gun control law known as the SAFE Act.

It wasn’t until earlier this year, in May, that Remington decided to move production of two of its firearms out of New York to Alabama. Both products face stricter regulation under the SAFE Act.

At the time, Senator Jim Seward estimated as much as 100 jobs could be lost in Ilion because of the move. The actual number has since doubled.

At the time of the first round of layoffs in August, Governor Cuomo had told reporters the gun control law had nothing to do with the downsize.