A GUN AT RISK: THE CRIMINAL’S ADVANTAGE

INTRODUCTORY THESIS

We begin this article with three statements.

ONE: The life, safety, and well-being of every law-abiding American citizen are sacrosanct and inviolate.

TWO: The best means of securing one’s life, safety and well-being against assault is by having immediate access to a firearm.

THREE: Since a firearm provides a law-abiding American citizen with the best means available to protect his or her life, safety, and well-being, that person ought to be able to have immediate access to his or her personal, lawfully owned firearm at all times and in all places for the stated purpose of securing that person’s life, safety, and well-being, consistent with the inalienable right to keep and bear arms as codified in the Second Amendment to the U.S. Constitution and consistent with the holdings of United States Supreme Court in the 2008 Heller case and the 2010 McDonald case.

The first statement is a subjective assessment, grounded on the notion of the sanctity of each and every law-abiding American citizen as a unique, rational, discerning, and responsible individual in his or her own right. This assessment is taken as self-evident, true, sans need of justification, vindication, or independent proof. Antigun proponents would not likely deny the import of it, but, their “hive” mentality and “swarm behavior” ethos invariably betray their clear aversion to it. The second statement is a testable hypothesis. Antigun proponents may deny the truth of it or otherwise deny the singular importance of it, but, time after time, it has been shown to be demonstrably true. The third statement is a normative prescription, a statement asserting appropriate, correct moral conduct. It is a statement that no antigun proponent will ascribe to because antigun proponents denigrate firearms and, as well, denigrate those members of the law-abiding American public that wish to exercise their inalienable right as clearly and cogently expressed in the Second Amendment to the United States Constitution. The notion that only small, select, special groups of people within the Country, such as police officers, ought to be allowed access to the best means available to secure their own life, safety, and well-being is unconscionable. We ask that you keep these three statements in mind as we run through the following four scenarios.

SCENARIO ONE

A female New York City police officer “. . . who is 41 and has been on the force for 10 years, was taking an elevator down to a parking garage at Bronx Boulevard and 226th Street around 5 a.m., preparing to drive to her command, which is in northern Manhattan. She was carrying her gun in her purse. . . . As soon as she stepped out of the elevator, a man thought to be in his late teens or early 20s ripped a gold chain from around her neck and grabbed at her purse. He demanded her wallet. ‘She fought him, and they were going back and forth in a tug-of-war type of situation. . . .’” “The officer reached into her purse to try to get the firearm, a 9-millimeter semiautomatic handgun . . . . But the man punched her in the face two or three times, causing her to lose control of the gun [but, actually] She never did have control of the gun [because it was in her purse, not on her person]. He stole it and fled on foot. . . .”

For those of you who have kept abreast of the news, the above scenario, as quoted, describes an actual situation that occurred on Wednesday, July 15, 2015, as reported in The New York Times newspaper, under the title, “Off-Duty Police Officer Robbed of Gun After Attack.”

The police officer, as reported, was physically injured and suffered the disgrace of having lost her handgun because she did not follow police protocol. That is to say, she did not have the handgun “on her person.” “The Patrol Guide, the Police Department’s voluminous policy manual, spells out the rules for how officers should ‘safeguard weapons at all times.’ Do not carry firearms in briefcases, handbags, fanny packs, hip packs, tote bags, knapsacks, paper bags or similar devices.’” The guide sets forth that a police officer is to “‘carry firearms, on the person, in an appropriate holster specifically designed to afford maximum protection against loss of weapon.’” The reason for this is clear: “Never losing your gun is among the most basic obligations of police work. . . .” NY Times, “Off-Duty Police Officer Robbed of Gun After Attack.”

The scenario played out for you here as a real-life drama aptly illustrates the reason for the New York Police Department’s “Patrol Guide” policy and places the rationale for it in high relief. Had the police officer, in the above scenario, complied with Police Department patrol guide policy, by keeping her weapon in an appropriate holster on her person, she likely would not have been injured by her assailant. Moreover, she would have been in the best position to retain possession of her weapon.

SCENARIO TWO

In this scenario, the police officer complies with New York City Police Department policy. The officer wears her weapon on her person in an appropriate holster. As before, once the police officer walks from the elevator out into the parking garage, the assailant is waiting for her. The assailant rips the gold chain from around the officer’s neck and grabs at the officer’s purse. But this time the officer does not fight to retain control over it. She doesn’t have to because her weapon isn’t in her purse; it’s in an appropriate holster on her person, where it belongs. So, once the assailant grabs her purse, the officer immediately lets go of it and reaches for her weapon that is in her holster – the weapon that is where it’s supposed to be; the weapon that is immediately accessible to her; and a weapon that is in a place that offers maximum protection for retention against the possibility of theft, for the weapon is in the officer’s exclusive control.

Now the assailant has a choice. He may comply with the officer’s order to cease his attack and submit to arrest or he can continue to attack the officer. If he continues his assault on the officer, the officer will have every right to shoot him, in self-defense if she feels, one, that her life is in danger and, two, that she can do nothing to alleviate that danger to her life, safety, and well-being other than to shoot her assailant. And, if the officer does shoot her assailant, the assailant may very well die. Whether the assailant dies or not, however, he will be incapacitated. The officer is likely to be commended for her action. She may very well receive a medal. Perhaps she will be promoted.

But, in the previous scenario – the situation that actually occurred – the officer failed to adhere to Police Department policy. She did not protect her weapon. For her troubles, she received serious injury that landed her in a hospital. She suffered the loss of her weapon. Worse, she suffered the disgrace of loss of her weapon to a criminal, her assailant. And, to add to her woes she now faces the prospect of possible disciplinary action.

Consider, now, two more scenarios. In these last two scenarios we will assume the sequence of events is essentially the same as set forth in Scenarios One and Two but with an important wrinkle. The party who is assaulted isn’t an active duty female police officer, but an average, law-abiding American female citizen, and resident of New York City.

SCENARIO THREE

We will assume, further, that this female American citizen and resident of New York City, holds a valid New York City handgun license. The license she has been issued is a restricted “Premises License.” She is on her way to a gun range for shooting practice, and her semiautomatic handgun is tucked away in a locked handgun container, unloaded. She carries two ammunition magazines in a separate container – her purse. Her purse is slung over her left shoulder. She carries the handgun container in her right hand. She wears a gold chain around her neck. She gets off the elevator, walks into the parking garage, and is immediately accosted by a male assailant. He tears the gold chain from around her neck and then demands the wallet that is in her purse. She gives the assailant her purse. The assailant notices the small case that she holds in her right hand and he demands that she give up the case to him as well.

The assailant may or may not know that the case holds a real handgun although the case is a typical small gun case that the party in this scenario purchased from a licensed dealer at the time she had purchased her handgun; and the case is specifically designed to hold a handgun. Our citizen does not wish to part with the gun case for obvious reasons. And she refuses to do so. The assailant thereupon grabs the case. Our citizen and the assailant both grapple for possession of it. The assailant punches our citizen in the face. She cannot hold onto the case. The assailant runs away with a gun case carrying a semiautomatic handgun, along with a purse holding two ammunition magazines that contain cartridges. At the hospital, where our citizen and New York City resident is being treated for her injuries, she informs the police that her assailant has stolen more than a purse, containing her cosmetics and a wallet filled with cash. The assailant has stolen much more. He has stolen her handgun, along with two ammunition magazines. Once our New York City resident is sufficiently able to communicate with the License Division’s Incident Section, she informs the Incident Section of the loss of her handgun and ammunition magazines. She subsequently suffers the suspension of her handgun license, pending the outcome of an investigation into the incident. She wants to obtain reinstatement of her Premises License quickly so that she may purchase a new handgun for the purpose of personal protection on her premises. But, the License Division’s investigation of the incident move’s ahead at a snail’s pace. It may take the License Division six months or one year to conclude its investigation of the incident. It may take even longer. The New York Police Department’s License Division is not bound by time constraints. Our American citizen and New York City resident may never see reinstatement of her Premises License. And, if that is the case, she will not be able, lawfully, to purchase another handgun from a licensed dealer of firearms because she requires a valid New York City handgun license to do so. The License Division has complete discretion in this matter.

SCENARIO FOUR

In this scenario our citizen and New York City resident, who holds a valid “Premises License” leaves her apartment suite, carrying her handgun, loaded, in a holster, concealed on her person. The holster isdesigned for the semiautomatic handgun she owns and possesses. She walks out of the elevator into the parking garage. She is accosted by an assailant. He tears the gold chain from around her neck and demands her wallet. She refuses to relinquish her purse that contains her wallet. The assailant thereupon grabs her purse. She fights to protect her purse. The assailant punches her in the face. She releases her purse. The assailant continues to assault her. She feels at this very moment that her life is in imminent danger. She sees no one around her in the parking garage that might run to her assistance, and she sees no way to retreat from the physical assault. She firmly believes the assailant intends to kill her. She thereupon removes her handgun from the holster and fires two rounds into the assailant’s chest, killing him. At the hospital, where our citizen and New York City resident is being treated for serious injuries as a result of the assault, she is unable to promptly notify the License Division’s Incident Section of the discharging of her handgun and the circumstances related to the discharging of the handgun. But, she does relate the circumstances of the discharging of her handgun to the police officer whom she first comes into contact with at the hospital. That police officer, on her behalf, due to the inability to immediately notify the License Division’s Incident Section of the incident, herself, relays the incident to the License Division’s Incident Section. Upon her release from the hospital later in the day our citizen, in this scenario, surrenders her handgun and all other firearms she happens to own and possess, as directed, to the License Division. Our citizen and New York City resident is arrested and charged with the crimes of unlicensed concealed carry of a firearm and unjustified use of deadly force because, in accordance with the limitations imposed on her handgun license, she was unjustified to have a handgun on her person. She is arraigned and fingerprinted. Her “Premise License” is revoked.

The ultimate disposition of the case will be determined by the City Prosecutor. One thing, however, is certain. The prospect of reinstatement of this citizen’s “Premises License” is, at best, dim. If she ever does undertake reinstatement of the handgun license, she should know that the process of reinstatement will take substantial time, will require no little effort on her part, and will come at substantial financial cost in terms of legal fees.

ANALYSIS

Obviously, what is good for the goose is not also good for the gander. For, while the New York City Police Department “Patrol Guide” sets forth clearly and concisely the manner in which New York City police officers should carry their handguns – namely, on the person and in an appropriate holster specifically designed to afford maximum protection against loss of weapon” – the Rules of the City of New York, that apply to virtually everyone else, set forth quite different requirements.

38 RCNY §5-01 sets forth several categories of handgun licenses for civilians. One category is the “Premises License,” for residence or business. This is considered a “restricted” license. For an American citizen and resident of New York City who holds a restricted “Premises License,” 38 RCNY §5-01 says “This license permits the transporting of an unloaded handgun directly to and from an authorized small arms range/shooting club, secured unloaded in a locked container. Ammunition shall be carried separately.” That licensee cannot lawfully carry a handgun, concealed in a holster. What this means is that New York City does not permit the holder of a “Premises License” to utilize his or her handgun for self-defense. That person must not carry the firearm outside of the licensee’s residence or business at all. Again, the firearm must be transported, unloaded in a locked container. But, as we have just seen, if a New York City police officer carried a handgun in such a manner, that officer would be doing so contrary to Departmental policy. For, to carry a handgun in such a manner does not provide maximum protection against theft, apart from being absolutely useless to the officer in the event of assault on officer’s person.

Why, then, would New York Rules absolutely prohibit the carrying of a firearm in a holster on one’s person for most civilians who are issued handgun licenses when they are out in public? Does the carrying of a handgun in a locked container provide the licensee with any more protection against theft? Hardly! If a criminal is able to grab hold of the locked case, he will find a way to open it, and he will gain unlawful access to the gun that rests inside it. Indeed, why should the City of New York promulgate rules establishing a confusing, irrational set of distinctive requirements and restrictions for a plethora of handgun license types, anyway?

Consider, too, the carrying of a handgun – on the streets of New York City or in a subway – in a case specifically designed for transportation of a handgun alerts a would-be thief to the fact that the container does contain a real handgun. The licensee who carries a firearm in such a manner might just as well carry a plaque as well, proclaiming to the world that the licensee is transporting a firearm. Who would disagree with the soundness of that assertion? Does not use of a handgun container, to stow a handgun while out in public, invite the theft of that handgun? The NYPD thinks so! The NYPD has said so, in its “Patrol Guide.” Moreover, why should a firearm’s licensee’s natural right of self-defense be compromised through constraints placed on the use of the best means available to secure it – a firearm? Why must the law-abiding American citizen and New York City resident suffer the imposition of limitations on the right to secure his or her life, safety, and well-being within the confines of his or her particular residence or place of business?

Understand, the New York City License Division will not issue any kind of firearm’s license to a person unless that person meets stringent standards as established by the State of New York. Those standards are set forth in NY CLS Penal Code §400.00. Yet, the City of New York establishes a ludicrous hierarchy of licenses, notwithstanding that a person meets the requirements for issuance of a handgun license at all. And, while a holder of a so-called “Premises License” can, transport a handgun in public, on occasion – namely and particularly when going to and from a target range – and, then, only unloaded in a locked container, thereby positively inviting theft of the handgun and, at one and same time, denying one the use of the handgun for self-defense.

The New York Police Department would agree – indeed, must agree – that the probability of loss or theft of a gun transported in public in a container of any sort – especially a “locked container” – increases exponentially for anyone – police officer or civilian. Clearly, it is not the preferred way to safeguard the weapon for a police officer. Why, then, would transportation of a handgun in a locked container be the preferred way – in fact, the only lawful way – for most other law-abiding American citizens and New York City residents to tote a handgun in public – that is to say – for most other law-abiding citizens and residents of New York City who happen not to be New York police officers or New York peace officers, or federal agents or who, otherwise, do not belong to another special class, such as courtroom judges, to whom unrestricted licenses are routinely issued? Why would the average law-abiding American citizen and New York resident be required to transport a gun in a locked container, when in public, that – as the NYPD has reasonably concluded – practically begs to be stolen when it is the case that police officers, for their part, would face a disciplinary hearing for doing the very same thing?

The drafters of New York City’s firearms’ Rules, either through design or oversight, invite the loss or theft of a firearm. They deny a law-abiding citizen and resident of the City of New York the best means available both to secure the firearm from theft and to protect that person’s life with it.

AND WHAT HAPPENS IF LOSS OR THEFT OF A FIREARM DOES OCCUR?

Suppose loss or theft of a firearm does occur. Under 38 RCNY §5-22(b)(1), “the licensee shall make an immediate report to the License Division-Incident Section, telephone #(212) 374-5538, 5539, and to the precinct where the incident occurred.” Failure to do so will, in accordance with 38 RCNY §5-22(a)(15), result in suspension or revocation of the license.

NEW YORK FIREARMS’ LAWS ARE ILLUSTRATIVE OF DUPLICITY, HYPOCRISY, AND IRRATIONALITY

So, where does that leave us? We are left with a double-standard in the matter of firearms ownership and possession. There is a standard that exists for some law-abiding American citizens such as police officers and there is a standard that exists for average law-abiding American citizens – the hoi polloi – those members of society who are not police officers or who are not members of any other special class. There is clearly a double standard at work here in New York City, and, by extension, in much of the State. And a peculiar schizophrenia exists in the manner in which firearm ownership and possession are perceived and handled by this or that class of society. We see evidence of a police officer facing possible disciplinary charges for loss of a handgun to a criminal assailant because she failed to keep the handgun in a holster on her person – where she would have immediate access to it – maximizing both the protection of the weapon and that of herself. Contrariwise, we see a probable situation where a law-abiding American citizen and resident of the City of New York faces possible criminal charges precisely because that person kept a handgun in an appropriate holster on that person, thus maximizing both the protection of the weapon and that of self. But, because the nature of that person’s license does not permit the carrying of a weapon on the person, that person faces revocation of his or her handgun license, the loss of all firearms in that party’s possession, and likely imposition of criminal charges, as well.

In a “Police State,” where all civilians are looked upon as potential adversaries and “potential problems,” it makes sense that possession of firearms would be strictly controlled. In a “Free Republic,” though, no such schism exists between the police and other special classes on the one hand and the “proles” – that is to say – everyone else on the other hand. In a Free Republic that distinction should not be tenable at all. That it has become so, this says much about the direction this Country has taken.

CONCLUSION

Recall our three opening statements:

ONE: The life, safety, and well-being of every law-abiding American citizen are sacrosanct and inviolate.

TWO: The best means of securing one’s life, safety and well-being against assault is by having immediate access to a firearm.

THREE: Since a firearm provides a law-abiding American citizen with the best means available to protect his or her life, safety, and well-being, that person ought to be able to have immediate access to his or her personal, lawfully owned firearm at all times and in all places for the stated purpose of securing that person’s life, safety, and well-being, consistent with the inalienable right to keep and bear arms as codified in the Second Amendment to the U.S. Constitution and consistent with the holdings of United States Supreme Court in the 2008 Heller case and the 2010 McDonald case. New York’s disregard for the sanctity of individuals is reflected in New York’s convoluted firearms’ laws. And that disregard for the sanctity of individuals is on the grandest display in New York City. When New York City Rules are compared to New York Police Department patrol policy, the duplicity, hypocrisy, irrationality, and inconsistency are on grand display.

A handgun can effectively protect an individual’s life. And the best way to safeguard a handgun from theft and, at one and the same time, secure one’s life, safety, and well-being with it, is for one to wear it in an appropriate holster, on one’s person. The NYPD certainly knows this. Indeed, the NYPD clearly asserted this in The New York Times July 15, 2015 article.

Unfortunately, except for a small select group of individuals, namely police officers and a few – very few – law-abiding American citizens who are issued unrestricted “Business Carry” licenses, or who otherwise belong to another select, special class, such as New York judges, New York does not recognize the sanctity of the law-abiding American citizen. Thus, New York firearms’ laws reflect the notion that not every law-abiding American citizen life is sacrosanct and inviolate. This follows from the proposition that the vast majority of law-abiding New York residents and American citizens are denied the inalienable right to defend their lives with the best means available for doing so: a firearm. This doesn’t seem to be a concern for some people. The question is: Does it concern you?