The Erie County District Attorney’s Office will no longer prosecute a provision of the SAFE Act which makes having more than seven rounds of ammunition in a magazine illegal.

District Attorney John Flynn, D, said he recently became aware of a 2015 United States Court of Appeals Second Circuit opinion the provision is unconstitutional. The Second Circuit heard the lawsuit after a federal district court judge in Buffalo made the same ruling in 2012, several months after the New York gun control law was passed.

“I am not doing this because I believe the SAFE Act is good or bad,” Flynn said. “That’s not my role.”

The DA said as a state officer, he is only technically, legally bound by U.S. Supreme Court decisions but he pointed out the nation’s highest court declined to hear the lawsuit. Flynn said it is up to individual DAs to decide whether federal court decisions are “useful and persuasive” and in this case, he decided it was both.

“When it gets to the circuit courts, again one step below the Supreme Court, in layman’s terms, that is very useful and very persuasive,” he said. “So I am very much persuaded by the Second Circuit opinion and as such, I am going to follow their ruling.”

Flynn said right now there are 23 pending cases in which defendants are being prosecuted in connection with the provision and those charges will be dropped.

“Those 23 open cases, they’re not going to have their entire cases dismissed because the overwhelming majority of those 23 cases, they have other gun charges with them,” he said.

The prosecutor admitted, people have pleaded or been found guilty of carrying too many rounds, since 2012. While they can not appeal those verdicts, as they were not technically wrong, Flynn said they could file a 440 motion to present additional facts, and he would consider them on a case-by-case basis.

The ruling does not effect another provision of the SAFE Act which doesn’t allow for a magazine to hold more than ten rounds.

Flynn took office in January 2017.