Transfers of Assault Weapons by Sale, Gift, Trade or Bequest to New York Police Officers, New York Peace Officers, and to Federal Law Enforcement Officers

THE MATTER OF LAWFUL ACQUISITION OF, LAWFUL OWNERSHIP OF, AND LAWFUL POSSESSION OF FIREARMS, DEFINED AS ‘ASSAULT WEAPONS’ UNDER THE NY SAFE ACT, AS ACQUIRED BY NEW YORK POLICE OFFICERS, NEW YORK PEACE OFFICERS, AND TO FEDERAL LAW ENFORCEMENT OFFICERS

PART 5: TRANSFERRING AMMUNITION FEEDING DEVICES; TRANSFERRING AMMUNITION; BEQUESTS OF ASSAULT WEAPONS TO NEW YORK POLICE OFFICERS, NEW YORK PEACE OFFICERS, AND TO FEDERAL LAW ENFORCEMENT OFFICERS

SUBPART 3: Transfers of Assault Weapons by Sale, Gift, Trade or Bequest to New York Police Officers, New York Peace Officers, and to Federal Law Enforcement Officers

SUB-SUBPART 1 Transfers of Assault Weapons by Sale, Gift, Trade or Bequest to New York Police Officers and New York Peace Officers

RECAP

We have discussed in some detail the transfer of guns and ammunition. In the matter of ammunition transfers, we have mentioned that New York law concentrates on those transfers that are in the nature of commercial transactions – better understood as commercial sales. And, we have shown that transfers of ammunition that do not properly involve commercial sales are not dealt with clearly in New York law. Since we cannot resolve, categorically and, therefore, absolutely, for you all of the issues pertaining to the transfers of ammunition, we have, at least, laid out, for you, where it is that the problems in ammunition transfers rest and where amendments to the New York Penal Code ought, in the future, to be made.

What we can say, categorically, about at least one of the issues involving transfers of handgun ammunition is that, if two law-abiding gun owners and holders of New York handgun licenses wish to transfer handgun ammunition from one to the other person and, if such transaction is in the nature of a sale, rather than, say, simply, in the nature of a gift or bequest, then that transaction is deemed to be a commercial sale or transaction under the law, and the transfer of ammunition from one person to another is unlawful in the event that neither one of the two individuals who wish to consummate the transfer is a licensed dealer in firearms or a registered seller of ammunition. This means that, if two holders of valid New York handgun licenses – or where required, holders of valid New York shotgun or rifle permits, as well – wish to undertake the purchase and sale of ammunition from one person to the other – that is to say, if the parties wish to engage in a commercial transaction – then the parties must employ the services of either a licensed dealer in firearms or a registered seller of ammunition, who acts as an intermediary for the transaction. Either one of those persons, as intermediary, may allow the transfer of ammunition to be undertaken, lawfully. This mechanism of lawful transfer is set forth in Section 50 of the New York Safe Act. But – and this is an important, but – in New York City, transfers of ammunition must be undertaken through a licensed dealer in firearms and not through a person who is simply a registered seller of ammunition if the transaction is to be deemed lawful. Under the Home Rule Provision of New York’s Constitution, NY CLS Const Art IX, § 2, which provides “for the creation and organization of local governments,” and under the Home Rule Statute, CLS Mun HR § 10, “General powers of local governments to adopt and amend local laws,” the New York State Legislature has given Cities wide latitude to enact ordinances that, in their implementation, seemingly contradict State Statute on the subject. So, while State Statute clearly sets forth that registered dealers in firearms and registered sellers of ammunition can both operate as intermediaries for transfers of ammunition, New York City itself does not allow for a lawful transfer of ammunition to be completed through a registered seller of ammunition. In order for the transfer of ammunition between two parties to be lawful in New York City, the transfer must be made only through a licensed dealer in firearms. We discuss this issue at some length and point to the relevant laws in our Article on transfers of ammunition. The Article is titled: Transferring Ammunition Magazines in New York: What You Need To Know.

Now, weapons that are defined as ‘assault weapons’ are banned weapons under the New York Safe Act as codified in the Penal Code of New York. We have argued at length in a previous Article of the Arbalest Quarrel that the notion of an ‘assault weapon’ is a legal fiction. The Article is: NY Safe: Looking at the Assault Weapon.  The expression, ‘assault weapon,’ is not a trade term and the expression is not utilized by the firearms’ industry; nor is the expression a specifically defined military term of art. The military does, however, use the expression, ‘assault rifle,’ and that expression is defined with particularity in literature of the Defense Department. But the expression ‘assault weapon’ is not and should not be considered an “assault rifle;” nor should it be considered a derivative of the “assault rifle.” It is not and never had been. Nonetheless the expression, ‘assault weapon,’ is defined in New York law, and, since a legal definition exists for it – actually several definitions for the expression exist – in the New York Safe Act, the notion of ‘assault weapon,’ as a creature of New York State Statute, is given an artificial life. The notion of an “assault weapon” is a Frankenstein’s monster that proponents of the New York Safe Act created in order to place restrictions on the weapons the average, law-abiding New York resident may lawfully possess. So, the expression, as it refers to some firearms, does have life – clearly an artificial life, to be sure, but a life, of sorts, nonetheless. One might reasonably expect that, as time goes on, antigun New York Legislators will add to the list of “assault weapons” many more firearms that, at present, are not banned firearms.

HOW DOES NEW YORK DEFINE THE EXPRESSION ‘ASSAULT WEAPON’?

The New York Safe Act of 2013 redefines earlier Penal Code versions of the expression ‘assault weapon.’ And, there is no one unique definition for the expression. There are several. Those definitions all appear in Section 37 of the New York Safe Act. Section 37 of the New York Safe Act is codified in subdivision 22 of the New York State Penal Code Section 265.00, specifically NY CLS Penal § 265.00(22). In a previous Article we provided you with the complete ‘assault weapon’ definitional scheme. You may take a look at that definitional scheme in our Article titled: NY Safe: ‘Assault Weapon Definitions.

WHAT ARE THE LIMITATIONS ON TRANSFERS OF ASSAULT WEAPONS, IN NEW YORK, TO LAW ENFORCEMENT OFFICERS, IN THEIR PERSONAL CAPACITY, THAT IS TO SAY, OUTSIDE OF THEIR OFFICIAL DUTIES?

The New York Safe Act Section 37, as codified in NY CLS Penal § 265.00(22), and, specifically as codified in NY CLS Penal § 265.00(22)(h) says, in pertinent part, that any firearm defined as an ‘assault weapon’ that was lawfully possessed prior to the enactment of the New York Safe Act, namely prior to January 15, 2013, “may only be sold to, exchanged with or disposed of to a purchaser authorized to possess such weapons or to an individual or entity outside of the state provided that any such transfer to an individual or entity outside of the state must be reported to the entity wherein the weapon is registered within seventy-two hours of such transfer.” This means that, if a person happened to be lawfully in possession of an “assault weapon,” prior to the date of enactment of the New York Safe Act, January 15, 2013, and that person (the transferor) wishes to transfer the weapon to another person (the transferee) residing in New York, that original, lawful owner (“first generation” owner) of the “assault weapon” cannot, under the New York Safe Act, lawfully transfer his or her weapon to that other person (the transferee) unless the transferee is authorized to possess an “assault weapon” – a banned firearm – after the date of enactment of the Safe Act. And, there are very few persons in New York who can lawfully possess a weapon defined as an ‘assault weapon’ after the date of enactment of the NY Safe Act, January 15, 2013.

Now we know – and can say with absolute certainty – that a licensed dealer in firearms is authorized to possess such banned weapons. We know this because licensed firearms’ dealers are exempted from the general prohibition of possession of firearms. And, we also know – and can also say with absolute certainty – that your average, law-abiding New York resident and holder of a valid New York handgun license – or, where required – the holder of a valid New York rifle or shotgun permit – is not authorized to take lawful possession of any firearm classified, categorized, defined as an “assault weapon.” How do we know this, and why do we feel confident about our assertion? We know this and feel confident in so asserting this as fact because the NY Safe Act was especially created for those average, law-abiding New York residents who just happen to believe in the Second Amendment guarantee – establishing the right of the people to keep and bear arms – and who choose to exercise their right under the Second Amendment, much to the chagrin of the drafters of and proponents of the NY Safe Act. And, those Americans who wish to — indeed demand to be able to — exercise their Second Amendment right to keep and bear arms may, very well, wish to possess such “banned weapons” for personal self-defense and for other lawful purposes; and, so, the NY Safe Act was created with a particular aim in mind: to prohibit that person from possessing those firearms and to further restrict that person from exercising his inalienable right to keep and bear arms under the Second Amendment to the U.S. Constitution. Thus, it is that, for the average, law-abiding New York resident, there is, at present, under New York law, only one exception to lawful possession of banned weapons – namely and specifically — one exception to possession of those weapons designated as “assault weapons.” And, it is this: unless the average law-abiding New York resident is, one, the original, first generation owner of a firearm defined as an ‘assault weapon’ under the NY Safe Act, and, two, has come into lawful possession of that weapon prior to enactment of the Safe Act, namely, prior to January 15, 2013, the date that New York Governor, Andrew M. Cuomo signed the NY Safe Act into law, and, three, has timely registered the “assault weapon” or “assault weapons” in accordance with the NY Safe Act — unless all three requirements are met — such person cannot, lawfully, continue to possess an “assault weapon” in New York. For the average, law-abiding New York resident o be able to lawfully continue to possess an “assault weapon” in New York after the date of enactment of the NY Safe Act, the New York resident must fall within narrow exceptions – very narrow exceptions – to the “assault weapon” ban – which include, for example, licensed dealers in firearms. So, very few individuals can lawfully possess firearms, defined as ‘assault weapons,’ at this point in time, anywhere in the State of New York.

The central issue here, and the purport of this article, is to determine who, apart from licensed dealers in firearms, namely, who, among the broad category of law enforcement officers, fall within the exception – referred to in New York law as an “exemption” – to what otherwise amounts to the unlawful possession of banned weapons, namely and particularly, unlawful possession of “assault weapons” and, more particularly, whether a New York police officer or New York peace officer – like a licensed dealer in firearms – may lawfully acquire and continue to lawfully possess assault weapons, after the date of enactment of the New York Safe Act — January 15, 2013 – the date that New York Governor Andrew M. Cuomo signed the New York Safe Act into law.

Always, keep in mind that, under the NY Safe Act, the average law-abiding New York resident does not fall within an exception to possession of a banned firearm, such as, and particularly, those firearms defined as ‘assault weapons,’ under Section 37 of the NY Safe Act, as codified in NY CLS Penal § 265.00(22)(h). The question for us here is whether individuals, defined as ‘police officers,’ or ‘peace officers,’ or ‘federal law enforcement officers,’ do, and, if so, to what extent. In other words, we are asking how does the general ban on the acquisition of, ownership of, and possession of firearms defined as ‘assault weapons’ for special groups of people specifically defined as law enforcement, in New York, work, after the date of enactment of the NY Safe Act, on January 15, 2013. And, in looking at and in resolving this central, salient question, we point out three important aspects of it: one, how are the expressions, ‘police officer,’ and ‘peace officer,’ and ‘federal law enforcement officer’ defined in New York law: in other words, who, under New York law, is considered to be a ‘New York police officer, a New York peace officer (assuming New York law draws a tenable difference between the two), and who is considered to be a federal law enforcement officer; and, two — and, as we shall see — most, critically, in respect to the lawful acquisition of, ownership of, and possession of firearms defined as ‘assault weapons’ under New York law, how does New York law distinguish between current, active-duty, sworn New York police officers and current, active-duty, sworn New York peace officers, and current,  active-duty, sworn, federal law enforcement officers, on the one hand, and retired, qualified New York police officers, and retired, qualified New York peace officers, and retired, qualified federal law enforcement officers on the other hand; and, three, what are the obligations of current, active-duty, sworn New York police officers, and current, active-duty, sworn, New York peace officers, and current, active-duty federal law enforcement officers on the one hand, and retired, qualified New York police officers, and retired, qualified New York peace officers, and retired, qualified federal law enforcement officers, on the other hand, when it comes to the registration of firearms defined as ‘assault weapons’ under the New York Safe act, and, too, in that regard, whether a tenable distinction can be drawn apropos of the registration of those “assault weapons” where those weapons were lawfully acquired, in New York, by the New York police officer or by a New York peace officer or by the federal law enforcement officer, prior to enactment of the New York Safe Act — and, perhaps, where those weapons were acquired before the individual became a New York police officer or New York peace officer, or federal law enforcement officer — and those “assault weapons” that were acquired after enactment of the Safe Act, on January 15, 2013, when the individual who acquired those weapons was, at the time of acquisition of those weapons, a current, active-duty sworn police officer, or a current, active-duty sworn peace officer, or a current, active-duty sworn federal law-enforcement officer. So, these, then, are the issues and matters that we will be addressing for you here.

As to the third matter, we will taking a look at whether the “New York sworn police officer” or “New York sworn peace officer,” or “sworn federal law enforcement officer,” who had not otherwise been in possession of a firearm defined as an ‘assault weapon,’ prior to the enactment of the NY Safe Act – that is to say, had not been a first generation original owner of that weapon – is permitted, after enactment of the NY Safe Act — and the word, ‘permitted’ means, ‘is lawfully permitted to acquire, lawfully permitted to own, and lawfully permitted to possess’ (namely, lawfully permitted to hold) — a firearm specifically defined as an ‘assault weapon’ under the NY Safe Act — after the date of enactment of the Act. Note: we are not looking at the manner in which the Officer might happen to, or have happened to, take possession of that “assault weapon” because, if the Officer can take lawful possession of an “assault weapon,” it matters not one whit whether that Officer took possession of the weapon through gift, sale, trade, or testamentary bequest. So, these, then, are the issues and matters that we will be addressing for you here.

Now, before we begin to delve further into this matter, we wish to point out what, specifically, we are not dealing with here. From the outset we wish to make clear that this study has nothing to do with – is not in any way concerned with – weapons a police officer may happen to possess and utilize in the normal course of his official duties as a law enforcement officer. Each New York police department or agency has its own rules, regulations, and/or policies in that regard. We will say, though, in passing, that, as most everyone knows, police SWAT teams routinely are armed with weapons that the New York Safe Act places into the category of banned weapons – namely ‘assault weapons,’ – and these SWAT team members also utilize, often enough, selective fire ‘assault rifles,’ and fully automatic weapons, such as submachine guns and, possibly, too, revolving shotguns. And, by the way, revolving shotguns, are not semi-automatic weapons but operate, essentially, like common revolver handgun, through a rotating cylinder. Revolver handguns are not — presently, at least — defined as ‘assault weapons’ under the NY Safe Act. Even so, revolving cylinder shotguns, that operate through a rotating cylinder, are, in fact, curiously, defined in the NY Safe Act as ‘assault weapons’ even as every other firearm that operates, mechanically, through operation of a rotating cylinder is not defined, in the NY Safe Act, and in the Penal Code of New York, as an ‘assault weapon.’ Further — and we need to point this out — New York Governor Andrew M. Cuomo, sets forth, on his NY Safe website, at least he did so at the time we last checked the site several months ago, that revolving cylinder shotguns are, in fact, assault weapons precisely because of certain aesthetic features they generally happen to have. But, if that were the case, then, under the usual definition, for shotguns that are also assault weapons, as a necessary condition, those shotguns would have to be semiautomatic in operation. But, revolving cylinder shotguns do not fall under the definition of semiautomatic shotguns that are ‘assault weapons’ precisely because they are not semiautomatic in operation. So, the Governor’s website misleadingly ascribes to these weapons that they are ‘assault weapons’ under a wrong definition. That is not to say that, under the NY Safe Act, revolving cylinder shotguns are not ‘assault weapons.’ By definition, such weapons are “assault weapons,” but they are ‘assault weapons,’ as defined in the NY Safe Act, precisely because such shotguns operate through the mechanism of a revolving cylinder. The aesthetic appearance of revolving cylinder shotguns is absolutely irrelevant to their treatment in the NY Safe Act and to their categorization as ‘assault weapons’ under the NY Safe Act. In other words, under the NY Safe Act, there is a specific definition for revolving cylinder shotguns that thrusts them into the category of ‘assault weapons.’ The point of this exposition is that, if the Governor is going to talk about the NY Safe Act, he ought to cite to the language of the NY Safe Act as it is actually, precisely written and not, as he thinks, wrongly, as it turns out, what he would like for the NY Safe Act to say or what he believes the NY Safe Act says. We discuss this issue in depth, in a previous Article of the Arbalest Quarrel: NYSAFE: Cuomo’s Website Misleads the Public.

Now, police department SWAT team members may also be authorized by their department or agency to carry, as their typical duty arm, a .45 caliber semiautomatic handgun, even when most other officers in the same department or agency, in accordance with departmental or agency policy, might only be permitted to carry, as their normal duty arm, a 9mm semiautomatic handgun or .38 caliber revolver.

Lastly, and, as suggested by the remarks concerning firearms used by law enforcement personnel in their official capacity, it is important to keep in mind that when we look at the matter of lawful acquisition of, ownership of, and possession of weapons, defined, under the NY Safe Act as ‘assault weapons, we are looking at application of New York law to the issue of whether current sworn, active-duty New York police Officers, and New York peace officers, in their personal capacity, namely, off-duty, may lawfully, acquire, own and possess firearms defined as ‘assault weapons.’ As to the matter of off-duty versus on-duty, we will be considering this issue only in relation to current, sworn active-duty New York police officers, and to current, sworn, active-duty peace officers, and to current, sworn, active-duty federal law enforcement officers, as it will be presumed, here, that no tenable distinction exists between being on-duty as opposed to off-duty or that one happens to wish to acquire, own, and possess firearms in one’s personal capacity as opposed to one’s official capacity because, for retired, qualified New York police officers, and for retired, qualified New York peace officers, and for retired, qualified federal law enforcement officers the distinction between “on-duty versus off-duty” or “personal capacity  versus official capacity” is obviously moot.

In providing you with answers to these questions, our primary focus will be on those individuals who, under New York law fall into the category of ‘New York police officer’ or ‘New York peace officer’ and ‘federal law enforcement officer’ and we will attempt to discern whether a tenable distinction really exists between current, sworn active-duty New York police officers, and current, sworn active-duty New York peace officers, and current, sworn active-duty federal law enforcement officers on the one hand, and retired, qualified, New York police officers, and retired qualified New York peace officers, and required federal law enforcement officers, on the other hand. 

We also note, at the outset that, as we have drawn a distinction between the expressions ‘police officer’ and ‘peace officer,’ we will ascertain for you whether the expressions are simply synonymous under New York law or whether a tenable distinction exists between the two expressions under New York law and, if a tenable distinction does exist, we will ascertain whether one designation or the other has a decided and decisive impact on the issue of the  lawful acquisition, ownership and possession of weapons defined as ‘assault weapons.’ And, too, we will consider whether other governmental officials that engage in police-like duties, such as constables, are legally definable under New York law and, if so, whether “constables” fall within an exception to the near, all-encompassing New York ban on acquisition of, ownership of, and  possession of firearms defined as “assault weapons,” after the date of enactment of the New York Safe Act, on January 15, 2013.

BRIEF NOTE CONCERNING “SWORN ACTIVE-DUTY FEDERAL LAW ENFORCEMENT OFFICERS” AND “QUALIFED RETIRED FEDERAL LAW ENFORCEMENT OFFICERS”

Since federal law is certainly relevant to and definitely impacts application of the New York Safe Act apropos of federal law enforcement officers, we have decided to leave discussion of that impact to the next Article, in a “sub-sub section” of this present Article. We will, in that Article, point, especially, to some vagueness between federal law and New York law, specifically as it concerns qualified retired federal law enforcement officers who reside in New York, on their retirement from federal law enforcement.

SO, CAN A NEW YORK RESIDENT WHO HAPPENS ALSO TO BE A NEW YORK POLICE OFFICER, OR WHO HAPPENS TO BE A NEW YORK PEACE OFFICER, LAWFULLY TAKE POSSESSION OF A FIREARM DEFINED AS AN ASSAULT WEAPON, IN HIS PERSONAL CAPACITY, THAT IS TO SAY, FOR NON-OFFICIAL PURPOSES, WHETHER BY GIFT, SALE, TRADE OR BEQUEST, ALTOGETHER APART FROM AND IRRESPECTIVE OF THAT PERSON’S STATUS AS EITHER A CURRENT, ACTIVE-DUTY, SWORN NEW YORK POLICE OFFICER OR CURRENT, ACTIVE-DUTY, SWORN NEW YORK PEACE OFFICER, AFTER THE DATE OF ENACTMENT OF THE NEW YORK SAFE ACT?

The New York Safe Act does not provide us with guidance in this, so we have to dig deeper into the New York Penal Code to find an answer. We look first to NY CLS Penal § 265.20, titled, aptly enough, “Exemptions.” NY CLS Penal § 265.20, sets forth, in pertinent part: “Paragraph (h) of subdivision twenty-two of section 265.00 and sections 265.01, 265.01-a, subdivision one of section 265.01-b, 265.02, 265.03, 265.04, 265.05, 265.10, 265.11, 265.12, 265.13, 265.15, 265.36, 265.37 and 270.05 shall not apply to (among others), Police officers as defined in subdivision thirty-four of section 1.20 of the criminal procedure law and Peace Officers as defined by section 2.10 of the criminal procedure law.”

From the get-go, we see that a person who is a New York police officer or New York peace officer falls into one of two exemptions, as set forth in NY CLS Penal § 265.20. But, while it may seem abundantly clear, from a commonsense standpoint who falls into the category of ‘police officer’ and, perhaps, who falls into the category of ‘peace officer,’ as well, we know, from experience, that it is best not to assume what Government officials tell us what the firearms’ laws of New York mean as they may, deliberately or inadvertently, leave out critical details in their telling. Therefore, we must, as a better practice, go to the source and look very carefully at what New York State Statutes actually say. We have also found to be true in several cases, and this is particularly true of the various Statutes that we are analyzing here, that it is necessary, often enough,to look at more than one Statute for a definitive answer to a question. There may very well be several Statutes that touch on a particular subject, and, given inherent ambiguity and vagueness, careful scrutiny of the language of New York State Statutes — especially those involving firearms — is absolutely essential if one is to obtain a clear — or at least, clearer — understanding of the meaning of particular laws. So it is here. In this case we must take a very close look at the expressions, ‘police officer,’ ‘peace officer,’ and ‘constable,’ when attempting, first of all, to decipher whom it is who really is a “New York police officer” or “New York peace officer” or “constable.” And, we will take a look at each of these each in turn.

WHO IS A ‘POLICE OFFICER?’ HOW IS THE EXPRESSION ‘POLICE OFFICER’ DEFINED IN NEW YORK LAW?

As set forth above, the Statute, NY CLS Penal § 265.20(a)(1)(b), that is titled “Exemptions,” refers us to NY CLS CPL § 1.20. And, that Statutory Section is titled, “Definitions of terms of general use in this chapter.” We find that NY CLS CPL § 1.20(34) provides us with a detailed list of and exposition of the meaning of ‘police officer’ under New York law. In fact, there are close to two dozen definitions for the expression, ‘police officer.’ So, if you are wondering whether or not you, as a reader of this article, fall within the statutory definition of ‘police officer’ under New York law, you must look to the statutory schema. We provide you with pertinent language from the actual Statute at a later point in this Article. We will say this, now: if you fall within one of the nearly two dozen definitions of the expression, ‘police officer,’ you are a “police officer” under New York law. If you do not fall, clearly and categorically, within one of those nearly two dozen definitions, you are not a “police officer” under New York law. There is no instance for legitimately concluding that you might be a “police officer” under New York law. You either are a “police officer” or you are not. It is that simple and, when it comes to the matter of whether you can, lawfully, in your personal capacity — apart from your official duties as a police officer — possess banned weapons, such as, and particularly, those defined as ‘assault weapons’ — it makes all the difference in the world. Presumptively, if you work for a well-known and well-regarded department or agency of New York, such as the NYPD, you may rest-assured that you are, indeed, a “police officer.” “For those members of the NYPD, The State Statute, NY CLS CPL § 1.20(34)(d) says this, as it specifically defines a ‘police officer’ as: “A sworn officer of an authorized police department or force of a city, town, village or police district.” And, it is safe to assume, in this instance, that the NYPD is, in fact, an authorized police Department for the City of New York. To do further research on what the word, ‘authorized,’ while possible, is superfluous in this instance. If you are not a police officer of “an authorized police Department for a city, town, village or police district,” and you are unsure of your status as a ‘police officer,’ it is always best to consult New York law, and the answer to that question certainly begins with the definitions set forth in NY CLS CPL § 1.20(34), titled, “Definitions of use of general terms in this chapter.

SO, THEN, IS A ‘PEACE OFFICER’ REALLY, OR, AT LEAST, ESSENTIALLY A ‘POLICE OFFICER’ UNDER NEW YORK LAW? IN OTHER WORDS, IS THE EXPRESSION, ‘PEACE OFFICER’ TRULY OR FOR, ALL INTENTS AND PURPOSES, SYNONYMOUS WITH THE EXPRESSION, ‘POLICE OFFICER’ OR IS THAT NOT THE CASE? AND, IF THAT IS NOT THE CASE, THEN, IF BOTH POLICE OFFICERS AND PEACE OFFICERS ARE ULTIMATELY ESSENTIALLY BOTH “LAW ENFORCEMENT OFFICERS,” WHAT CRITICAL DIFFERENCES EXIST BETWEEN “POLICE OFFICERS” AND “PEACE OFFICERS” THAT MIGHT AMOUNT TO ANYTHING SIGNIFICANT IN TERMS OF THE ACQUISITION, AND OWNERSHIP, AND POSSESSION OF FIREARMS DEFINED AS ‘ASSAULT WEAPONS’ BY ONE LAW ENFORCEMENT OFFICER WHO HAPPENS TO BE A NEW YORK POLICE OFFICER THE OTHER LAW ENFORCEMENT OFFICER WHO HAPPENS TO BE A NEW YORK PEACE OFFICER, WHEN ONE IS CONSIDERING THE INFLUENCE OF THE NEW YORK SAFE ACT?

Well, under New York law, a ‘peace officer’ is not a ‘police officer.’ How do we know this? We know this because New York law has a specific definition for ‘peace officer’ as we indicated above. But, true, a person who is a “peace officer” does fall within the statutory exemption to banned weapons, such as, and particularly, firearms defined as ‘assault weapons.’ We refer you to NY CLS Penal § 265.20(a)(1)(c). So, even though the definitional scheme for the current, active duty “peace officer” is distinct from and is not to be confused with the definitional scheme for “police officer,” under the New York penal code and under New York criminal procedure law, and, since both kinds of law enforcement officers fall under the Exemption Statute, we would say that the power of the exemption for a “peace officer” is considerably less than that for a law enforcement officer who is defined, in New York law, as a ‘police officer. So, for peace officers, it is, in effect, more accurate to say that they fall, seemingly, within the statutory exemption of NY CLS Penal § 265.20, specifically, NY CLS Penal § 265.20(a)(1)(c). And, we use the word, ‘seemingly,’ here for good reason, which we will get into, a little later because, the issue whether “peace officers” as opposed to “police officers,” are permitted, lawfully, to acquire and possess firearms defined as ‘assault weapons,’ after enactment of the NY Safe Act is not at all clear-cut, and this fact is representative of what we said earlier, namely, that, where firearms are concerned, it is often necessary to look beyond just one New York Statute to find a definitive answer to a specific, perplexing question; and, even then, one might be compelled, at best, to take an educated guess unless one wishes to obtain a definitive ruling on a vague matter, in a court of competent jurisdiction.

The definition of ‘peace officer’ is found in its own statutory section of New York law, as is the case, as well, for the expression, ‘federal law enforcement officer,’ the latter of which we will deal with more in depth in an upcoming Article. But, for now, in the matter of New York peace officers, the expression ‘peace officer’ is found in NY CLS CPL § 2.10. There are an extraordinary number of definitions for the expression – 82, presently, to be precise – even more, if one counts sub-categories of ‘peace officer.’ And that Statutory Section of the Penal Code is much too lengthy to set forth here. We may post it later, in full, on our “White Paper” webpage. Moreover, the definitions for ‘peace officer,’ are, as the New York Statute states, only effective until November 1, 2015. So, the definitional scheme for ‘peace officer,’ unlike the definitional scheme for ‘police officer’ is routinely subject to change. Therefore, be advised that, a person presently defined as a ‘peace officer’ today, may not be considered a ‘peace officer’ after November 1, 2015.

WHAT ABOUT A CONSTABLE? IS A CONSTABLE A POLICE OFFICER OR PEACE OFFICER OR DOES THE TERM, ‘CONSTABLE’ FALL OUTSIDE THE SCOPE OF EITHER A ‘POLICE OFFICER’ OR ‘PEACE OFFICER?’

Constables are not police officers as the expression, ‘police officer’ is defined in and pursuant to NY CLS CPL 1.20(34), as referred to in Civil Rights Law § 50-a. Rather, constables are considered to be peace officers as specifically defined in NY CLS CPL 2.10(1). New York case law also says that constables are peace officers, citing to Statute. But, there is a notable qualification in NY CLS CPL 2.10(1). The definition of ‘constable’ as a ‘peace officer’ is this: “Constables or police constables of a town or village, provided such designation is not inconsistent with local law.” The phrase, “. . . provided such designation is not inconsistent with local law,” informs us that local governmental bodies may restrict the State exemption status of “constables.” So, even though State Statute provides an exemption to possession of banned weapons, such as “assault weapons” for constables, State Statute does not preempt the field, and local governments can, in their discretion, deny to those individuals, defined as ‘constables,’ the exemption to possession of banned weapons that NY CLS Penal § 265.20 otherwise provides to them.

SO, THEN, WHAT IS THE BOTTOM LINE HERE? CAN A PEACE OFFICER TAKE LAWFUL POSSESSION OF FIREARMS DEFINED AS ‘ASSAULT WEAPONS’ UNDER THE NEW YORK SAFE ACT, OR NOT? AND, CAN A PEACE OFFICER, WHO IS A CONSTABLE, TAKE LAWFUL POSSESSION OF FIREARMS DEFINED AS ‘ASSAULT WEAPONS’ UNDER THE NEW YORK SAFE ACT, OR NOT?

Even though we pointed out that “peace officers,” as with “police officers,” as defined under New York law, are exempted from the “assault weapon” ban, pursuant to NY CLS Penal § 265.20, there is a discrepancy between NY CLS Penal § 265.20 (the general exemption section of the Penal Code) and NY CLS CPL § 2.10. So, although both peace officers and police officers fall under a specific exemption to the “assault weapon” ban of the New York Safe Act, still, under NY CLS CPL § 2.10 (which sets forth the lengthy definitional scheme for ‘peace officer’ – 80+ definitions for the expression) there is a qualifier in all or virtually all definitions of ‘peace officer.’ And, it is a qualifier that we do not see under the definitional schema for ‘police officer’ as set forth in NY CLS CPL § 1.20 or, for that matter, as set forth in the definition of ‘constable’ as set forth in NY CLS CPL § 2.10 (1). This suggests that ‘constables’ may very well possess weapons defined as “assault weapons” when other “peace officers” cannot do so. We explain the reason for this below:

The qualifying language of NY CLS CPL § 2.10 is this: “Provided, however, that nothing in this subdivision shall be deemed to authorize any such employee designated as a peace officer after November first, nineteen hundred eighty-five to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.” The addition of this paragraph to each definition of ‘peace officer’ means that, regardless of the exemption provision of the New York Criminal Procedure Law, NY CLS Penal § 265.20 — which says that persons designated as “peace officers” specifically do not fall under the purview of the “assault weapon” ban that impacts virtually every other New York resident who isn’t also a police officer — those individuals, defined as ‘peace officers’ under NY CLS CPL § 2.10, are nonetheless subject to the limitations of firearms ownership and possession imposed by NY CLS Penal §400.00 (“Licenses to carry, possess, repair and dispose of firearms”). This obvious ambiguity in New York law poses a singular problem for New York officers designated as “peace officers,” rather than “police officers,” (other than peace officers who are “constables”) because NY CLS Penal §400.00 is designed, in effect, as a limitation on firearms’ ownership and possession precisely because the Statute exemplifies a firearms’ licensing scheme at all. That is to say, no one who falls under the purview of NY CLS Penal § 400.00 can obtain a firearm – specifically a handgun that is also defined as an “assault weapon” under Section 37 of the New York Safe Act as codified in subdivision 22 of the New York State Penal Code Section 265.00 – because NY CLS Penal § 400.00 prescribes the requirements for securing a handgun lawfully in New York – and sets forth those requirements in detail and that licensing scheme proscribes the licensing of any handgun that is also, by definition, an ‘assault weapon.’ And, unfortunately, for New York residents, that very licensing, scheme – which is, in our estimate, inconsistent with the Second Amendment to the U.S. Constitution – is, in its very inception, an assertion that firearms’ possession is a privilege, granted by government, not a right preexistent in the individual. The qualifying language in the definitional schema of ‘peace officer’ that makes virtually all “peace officers” subject to the limitation on ownership of assault weapons manifested in NY CLS Penal § 400.00, is language that is not included in the definition of ‘constable’ as ‘peace officer.’ So, paradoxically, unless a local governmental body enacts an ordinance that specifically denies to constables their right under NY CLS Penal § 265.20  to possess “assault weapons,” constables, nevertheless, stand on a much stronger footing than do all or virtually all other individuals who hold the ‘peace officer’ designation, which is probably not what the drafters of the Penal Code had in mind.

WHAT IS THE REAL NATURE OF THE INCONSISTENCY IN THE NEW YORK PENAL CODE?

To illustrate the inconsistency between NY CLS Penal § 265.20  and NY CLS Penal § 400.00 let’s consider the language of a pertinent section of NY CLS Penal § 400.00, namely, NY CLS Penal §400.00(2), titled (“Types of Licenses”). NY CLS Penal §400.00(2) says this: “A license for gunsmith or dealer in firearms shall be issued to engage in such business. A license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued to (a) have and possess in his dwelling by a householder; (b) have and possess in his place of business by a merchant or storekeeper; (c) have and carry concealed while so employed by a messenger employed by a banking institution or express company; (d) have and carry concealed by a justice of the supreme court in the first or second judicial departments, or by a judge of the New York city civil court or the New York city criminal court; (e) have and carry concealed while so employed by a regular employee of an institution of the state, or of any county, city, town or village, under control of a commissioner of correction of the city or any warden, superintendent or head keeper of any state prison, penitentiary, workhouse, county jail or other institution for the detention of persons convicted or accused of crime or held as witnesses in criminal cases, provided that application is made therefor by such commissioner, warden, superintendent or head keeper; (f) have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof. . . .”

Now, apart from the special licensing of gunsmiths or dealers in firearms, we note, first of all, that any license issued pursuant to NY CLS Penal § 400.00 is limited to licensing of handguns only – as rifles and shotguns do not require licensing except in certain jurisdictions within New York, such as New York City. We see, second, and more importantly, for purposes of this Article, that NY CLS Penal § 400.00 specifically proscribes licensing of any handgun that is also defined as an ‘assault weapon.’ So, anyone who, other than a gunsmith or firearms dealer, who is licensed pursuant to NY CLS Penal § 400.00(2), cannot lawfully possess an “assault weapon” unless an exemption exists in NY CLS Penal § 400.00 for, once again, the “Exemption” Statute of NY CLS Penal § 265.20  is not, ipso facto, sufficient to preclude application of NY CLS Penal §400.00 unless NY CLS Penal §400.00 further establishes exemption status. In fact a specific section of NY CLS Penal § 400.00, does provide and clarify the meaning and application of exemption status for those individuals that fall within the purview of NY CLS Penal § 400.00, pertaining to assault weapons, but the applicant must jump through several hoops to secure such exemption status for himself or herself. NY CLS Penal §400.00(3)(b) says this:

“Each applicant desiring to obtain the exemption set forth in paragraph seven-b of subdivision a of section 265.20 of this chapter shall make such request in writing of the licensing officer with whom his application for a license is filed, at the time of filing such application. Such request shall include a signed and verified statement by the person authorized to instruct and supervise the applicant, that has met with the applicant and that he has determined that, in his judgment, said applicant does not appear to be or poses a threat to be, a danger to himself or to others. He shall include a copy of his certificate as an instructor in small arms, if he is required to be certified, and state his address and telephone number. He shall specify the exact location by name, address and telephone number where such instruction will take place. Such licensing officer shall, no later than ten business days after such filing, request the duly constituted police authorities of the locality where such application is made to investigate and ascertain any previous criminal record of the applicant pursuant to subdivision four of this section. Upon completion of this investigation, the police authority shall report the results to the licensing officer without unnecessary delay. The licensing officer shall no later than ten business days after the receipt of such investigation, determine if the applicant has been previously denied a license, been convicted of a felony, or been convicted of a serious offense, and either approve or disapprove the applicant for exemption purposes based upon such determinations. If the applicant is approved for the exemption, the licensing officer shall notify the appropriate duly constituted police authorities and the applicant. Such exemption shall terminate if the application for the license is denied, or at any earlier time based upon any information obtained by the licensing officer or the appropriate police authorities which would cause the license to be denied. The applicant and appropriate police authorities shall be notified of any such terminations.”

So, if a peace officer desires to lawfully possess a firearm defined as an “assault weapon,” the exemption provided him under NY CLS Penal § 265.20 is in and of itself not enough to enable that peace officer to obtain an assault weapon. The reason for this is that the peace officer must obtain a handgun license under NY CLS Penal § 400.00 – something a current, active-duty New York police officer doesn’t need to do as a police officer has a “badge” – and since NY CLS Penal § 400.00 says clearly and categorically that anyone desiring to exercise the exemption status provided for in NY CLS Penal § 265.20 that NY CLS Penal § 265.20, that person must apply for an exemption under NY CLS Penal §400.00(3)(b). The exemption provided for an individual under NY CLS Penal §400.00(3)(b) only operates for an individual who seeks to use the assault weapon at a target range. Why is that the case? That is so because NY CLS Penal § 265.20 (7-b), that NY CLS Penal §400.00(3)(b) refers to, says this:

“Possession and use, at an indoor or outdoor pistol range located in or on premises owned or occupied by a duly incorporated organization organized for conservation purposes or to foster proficiency in small arms or at a target pistol shooting competition under the auspices of or approved by the national rifle association for the purpose of loading and firing the same, by a person who has applied for a license to possess a pistol or revolver and pre-license possession of same pursuant to section 400.00 or 400.01 of this chapter, who has not been previously denied a license, been previously convicted of a felony or serious offense, and who does not appear to be, or pose a threat to be, a danger to himself or to others, and who has been approved for possession and use herein in accordance with section 400.00 or 400.01 of this chapter; provided however, that such possession shall be of a pistol or revolver duly licensed to and shall be used under the supervision, guidance and instruction of, a person specified in paragraph seven of this subdivision and provided further that such possession and use be within the jurisdiction of the licensing officer with whom the person has made application therefor or within the jurisdiction of the superintendent of state police in the case of a retired sworn member of the division of state police who has made an application pursuant to section 400.01 of this chapter.”

The bottom line, then, is this: New York residents who fall within the definition of ‘peace officer’ (rather than ‘police officer’) are not automatically entitled to possess banned weapons, defined as ‘assault weapons’ apart from – oddly enough – “constables.” And, this brings us now to the issue of whether retired qualified sworn police officers come under the general exemption of NY CLS Penal § 265.20 as do current, active-duty, sworn,

ARE RETIRED, QUALIFIED, SWORN POLICE OFFICERS SUBJECT TO THE SAME LIMITATIONS ON ACQUISITION OF, OWNERSHIP OF, AND POSSESSION OF ASSAULT WEAPONS AFTER THE DATE OF ENACTMENT OF THE NY SAFE ACT AS IS THE CASE WITH CURRENT ACTIVE-DUTY  OR RETIRED, QUALIFIED “PEACE OFFICERS,” OR ARE RETIRED, QUALIFIED SWORN POLICE OFFICERS TREATED, UNDER NEW YORK LAW THE SAME AS CURRENT, ACTIVE-DUTY, SWORN POLICE OFFICERS,” WHO ARE NOT SUBJECT TO THE LIMITATIONS ON ACQUISITION OF, OWNERSHIP OF, AND POSSESSION OF BANNED WEAPONS, NAMELY AND PARTICULARLY, THOSE WEAPONS DEFINED AS ‘ASSAULT WEAPONS,’ AFTER THE DATE OF ENACTMENT OF THE NEW YORK SAFE ACT?”

What does New York law say about the status of retired, qualified, sworn New York police officers? Can they take possession of firearms defined as ‘assault weapons,’ – whether by sale, trade, gift, or bequest – upon retirement, just as they could have done when they had been current, active-duty, sworn New York police officers? The answer to that question is somewhat nebulous as one reads through the many  definitions of ‘police officer’ as set forth in NY CLS CPL § 1.20. Yet, on analysis, the language of that Section strictly implies that the Officer is current or active-duty. Curiously, early Legislation, going back to the 1990s did include language that specifically permitted retired, qualified, sworn police officers to own and possess weapons defined as ‘assault weapons.’ The fact that such language was never finalized into law should tell New York police officers – whether current or retired – that the drafters of NY Safe had no desire to extend the prerogative of assault weapon possession to retired officers, unless of course such language isn’t needed. And this raises the question whether there is any specific language in the consolidated laws of New York that place retired, qualified police officers on the same legal footing as current active-duty police officers in terms of a right to acquire, own, and possess firearms defined as ‘assault weapons’ after the date of enactment of the NY Safe Act, on January 15, 2013. So, Let’s take a closer look at present New York law, beyond the language of the New York Safe Act. And, to get a better handle on this, let us, for the moment, go back to a consideration as to whether “peace officers” — whether current or retired — can now, after enactment of the NY Safe Act, lawfully acquire weapons defined as ‘assault weapons.’ It might seem from the language of NY CLS Penal § 265.20 titled, “Exemptions,” that “peace officers,” like “police officers” can possess firearms defined as ‘assault weapons,’ whether procured through gift, sale, trade, or bequest, subsequent to enactment of the NY Safe Act; and, in fact, peace officers, like police officers are exempted from the ban on certain categories of weapons — including, importantly, those weapons defined as ‘assault weapons’ in The New York Safe Act Section 37, as codified in NY CLS Penal § 265.00(22) — by operation of NY CLS Penal § 265.20. But, that doesn’t end the matter for us because, notwithstanding the language of the Exemption Statute, NY CLS Penal § 265.20, we have to go to another Statute, NY CLS CPL § 2.10, to see whether there is any qualification there to the otherwise straightforward exemption assertions set forth in NY CLS Penal § 265.20; and, indeed, there is a qualification to what otherwise seems to be a clear-cut exemption for peace officers in respect to the general “assault weapon” ban. 

The problem for individuals who fall within one of over six dozen definitions for ‘peace officer’ is that each of these definitions include the qualification. So, once again, we see the qualification to the broad exemption Statute: NY CLS Penal § 265.20. The Statute, NY CLS CPL § 2.10, says over and over again for virtually every definition of ‘peace officer:’ “Provided, however, that nothing in this subdivision shall be deemed to authorize any such employee designated as a peace officer after November first, nineteen hundred eighty-five to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400 of the penal law.” So, now we are directed to NY CLS Penal § 400.00.

Now let us take a close look at the language of NY CLS Penal § 400.00. This is the New York Penal Code’s salient Section on the licensing of firearms. So, then, what does this Penal Code Section say particularly about “assault weapons?” Well, paragraph 2 of NY CLS Penal § 400.00 makes clear that, apart from the licensing of a gunsmith or dealer in firearms, “A license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued to (a) have and possess in his dwelling by a householder; (b) have and possess in his place of business by a merchant or storekeeper; (c) have and carry concealed while so employed by a messenger employed by a banking institution or express company; (d) have and carry concealed by a justice of the supreme court in the first or second judicial departments, or by a judge of the New York city civil court or the New York city criminal court; (e) have and carry concealed while so employed by a regular employee of an institution of the state, or of any county, city, town or village, under control of a commissioner of correction of the city or any warden, superintendent or head keeper of any state prison, penitentiary, workhouse, county jail or other institution for the detention of persons convicted or accused of crime or held as witnesses in criminal cases, provided that application is made therefor by such commissioner, warden, superintendent or head keeper; (f) have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof.” Note the words, “other than an assault weapon.”

The inference to be drawn from NY CLS Penal § 400.00 for “peace officers” is plain. Peace officers cannot lawfully possess any handgun that is defined as an ‘assault weapon’ because any license to carry a handgun does not, under State law, permit for the licensing of those handguns that are defined as ‘assault weapons’ under Section 37 of the NY Safe Act, as codified in NY CLS Penal § 265.00(22)(h). Their carry license does not allow for that. And, it follows by logical implication, then, that a person who is defined as a ‘peace officer’ under NY CLS CPL § 2.10 cannot acquire, own, and possess, an “assault weapon” — whether by gift, sale, trade, or bequest — after the enactment of the NY Safe Act, namely on January 15, 2013.

Such assault weapons that “peace officers” do lawfully possess, after enactment of the NY Safe Act, must have been duly, and lawfully, acquired, prior to the effective date of the NY Safe Act. Note also that NY CLS Penal § 400.00 regulates licensing of handguns, not long arms, namely, rifles and shotguns. The acquisition of assault weapons by those individuals defined as ‘peace officers,’ under NY CLS CPL § 2.10, are no more permitted, lawfully, to acquire rifles and shotguns defined as ‘assault weapons’ than can average, law-abiding residents of New York, who are not engaged in law-enforcement, because of the proscription of New York Safe Act Section 37, as codified in NY CLS Penal § 265.00(22), and, specifically as codified in NY CLS Penal § 265.00(22)(h). So, apart from the proscription against the licensing of handguns that are defined as ‘assault weapons’ under NY CLS Penal § 400.00, it also follows that rifles and shotguns that are defined as ‘assault weapons,’ under the New York Safe Act Section 37, as codified in NY CLS Penal § 265.00(22), as codified in NY CLS Penal § 265.00(22) are, as well, banned. And, that ban against possession of “assault weapons” applies with equal force to peace officers as well as to any other law-abiding New York resident who is not a peace officer or who is not in any manner involved with or connected to law enforcement.

But, we know that persons who clearly fall within the definition of ‘police officer,’ namely current, active-duty, sworn police officers —  who, then, are not relegated merely to the status of  ‘peace officer’ – can, in fact lawfully acquire, own, and possess a banned weapon, such as, and particularly, a firearm defined as an ‘assault weapon,’ after the effective date of the NY Safe Act, the question arises whether the expression ‘police officer’ extends to and means ‘current, sworn, Police Officer,’ only or whether the definition of ‘police officer’ extends to a ‘retired, qualified police officer. To resolve this issue, we must return to the definitions of ‘police officer’ as catalogued and enumerated in  NY CLS CPL § 1.20(34), and you will see that not one of the definitions makes specific mention of the notion of ‘police officer’ who is a ‘retired, qualified police officer.’ The expression, ‘police officer’ means:

“Police officer. The following persons are police officers:

(a) A sworn member of the division of state police;

(b) Sheriffs, under-sheriffs and deputy sheriffs of counties outside of New York City;

(c) A sworn officer of an authorized county or county parkway police department;

(d) A sworn officer of an authorized police department or force of a city, town, village or police district;

(e) A sworn officer of an authorized police department of an authority or a sworn officer of the state regional park police in the office of parks and recreation;

(f) A sworn officer of the capital police force of the office of general services;

(g) An investigator employed in the office of a district attorney;

(h) An investigator employed by a commission created by an interstate compact who is, to a substantial extent, engaged in the enforcement of the criminal laws of this state;

(i) The chief and deputy fire marshals, the supervising fire marshals and the fire marshals of the bureau of fire investigation of the New York City fire department;

(j) A sworn officer of the division of law enforcement in the department of environmental conservation;

(k) A sworn officer of a police force of a public authority created by an interstate compact;

(l) Long Island railroad police.

(m) A special investigator employed in the statewide organized crime task force, while performing his assigned duties pursuant to section seventy-a of the executive law.

(n) A sworn officer of the Westchester county department of public safety services who, on or prior to June thirtieth, nineteen hundred seventy-nine was appointed as a sworn officer of the division of Westchester county parkway police or who was appointed on or after July first, nineteen hundred seventy-nine to the title of police officer, sergeant, lieutenant, captain or inspector or who, on or prior to January thirty-first, nineteen hundred eighty-three, was appointed as a Westchester county deputy sheriff.

(o) A sworn officer of the water-supply police employed by the city of New York appointed to protect the sources, works, and transmission of water supplied to the city of New York, and to protect persons on or in the vicinity of such water sources, works, and transmission.

(p) Persons appointed as railroad policemen pursuant to section eighty-eight of the railroad law.

(q) An employee of the department of taxation and finance. . . .

(r) Any employee of the Suffolk county department of parks who is appointed as a Suffolk county park police officer.

(s) A university police officer appointed by the state university pursuant to paragraph 1 of subdivision two of section three hundred fifty-five of the education law.

(t) A sworn officer of the department of public safety of the Buffalo municipal housing authority who has achieved or been granted the status of sworn police officer and has been certified by the division of criminal justice services as successfully completing an approved basic course for police officers.

(u) Persons appointed as Indian police officers pursuant to section one hundred fourteen of the Indian law.

(v) Supervisor of forest ranger services; assistant supervisor of forest ranger services; forest ranger 3; forest ranger 2; forest ranger employed by the state department of environmental conservation or sworn officer of the division of forest protection and fire management in the department of environmental conservation responsible for wild land search and rescue, wild land fire management in the state as prescribed in subdivision eighteen of section 9-0105 and title eleven of article nine of the environmental conservation law, exercising care, custody and control of state lands administered by the department of environmental conservation.”

So, must we assume from this extensive list of definitions – and, from the definitions of ‘peace officer’ which is a magnitude larger than those definitions of ‘police officer’ – that the drafters of this list of definitions of the expression ‘police officer’ as set forth with specificity in NY CLS CPL § 1.20(34) intend to reference only “current, active-duty sworn police officers,” and not “retired, qualified, police officers?”  Or did the drafters of NY CLS CPL § 1.20(34) intend, if tacitly, to include “retired, qualified, sworn police officers?” If one takes the position that NY CLS CPL § 1.20(34) does include “retired, qualified, police officers,” then retired, qualified, police officers,” are permitted to acquire, own, and possess firearms defined as “assault weapons” since NY CLS CPL § 1.20(34) does, then, fully embraces the exemption to the “assault weapon” ban of NY CLS Penal § 265.20. If not, however, and, in the absence of clear explication of the definitions of ‘police officer’ insofar as the question whether those definitions logically entail all “retired, qualified, police officers,” doubt certainly exists as to the drafters of NY CLS CPL § 1.20(34), we must delve further into the Consolidated laws of New York to obtain an answer. For, if the notion of ‘retired, qualified, sworn police officer,’ is not subsumed in the category of ‘current, active-duty police officer,’ then the “retired, qualified, police officer” is on weak ground should that officer attempt to acquire, own, and possess “assault weapons” after the date of enactment of the NY Safe Act, because such acquisition, ownership and possession of “assault weapons” would be unlawful. 

There is a Statute we need to look at that may resolve this issue and it is this: NY CLS Penal § 265.00, titled, simply, “Definitions,” sets forth in a subsection, NY CLS Penal § 265.00(25), the following:

“ ‘Qualified retired New York’ or ‘federal law enforcement officer’ means an individual who is a retired police officer as police officer is defined in subdivision thirty-four of section 1.20 of the criminal procedure law, a retired peace officer as peace officer is defined in section 2.10 of the criminal procedure law or a retired federal law enforcement officer as federal law enforcement officer is defined in section 2.15 of the criminal procedure law, who: (a) separated from service in good standing from a public agency located in New York state in which such person served as either a police officer, peace officer or federal law enforcement officer; and (b) before such separation, was authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and had statutory powers of arrest, pursuant to their official duties, under the criminal procedure law; and (c) (i) before such separation, served as either a police officer, peace officer or federal law enforcement officer for five years or more and at the time of separation, is such an officer; or (ii) separated from service with such agency, after completing any applicable probationary period of such service, due to a service-connected disability, as determined by such agency at or before the time of separation; and (d) (i) has not been found by a qualified medical professional employed by such agency to be unqualified for reasons relating to mental health; or (ii) has not entered into an agreement with such agency from which the individual is separating from service in which that individual acknowledges he or she is not qualified for reasons relating to mental health; and (e) is not otherwise prohibited by New York or federal law from possessing any firearm.”

So, in understanding the meaning of ‘retired, qualified police officer’ or ‘retired, qualified federal law enforcement officer,’ the best approach is to read NY CLS CPL § 1.20(34) concurrently with NY CLS Penal § 265.00(25). We now know that the expressions, ‘retired, qualified police officer’ and ‘retired, qualified federal law enforcement officer,’  have their own express meanings in New York Statute, as set forth with particularity in New York’s Criminal Procedure Law. And, since the expressions, ‘retired, qualified police officer’ and ‘retired, qualified federal law enforcement officer’ are defined with particularity in the law, and, as those definitions are specifically absent from the list of definitions of ‘police officer’ set forth in NY CLS CPL § 1.20(34), the Exemption Statute, NY CLS Penal § 265.2o – that would otherwise exempt “retired, qualified police officers” or “retired qualified federal law enforcement officers” — is not available to them does and, so, those provisions of the law banning the possession of certain weapons, including and especially those weapons defined as ‘assault weapons’ – on the basis of the Statutes discussed herein — places retired, qualified police officers” and “retired qualified federal law enforcement officers” on the same legal footing as any ordinary, law-abiding New York resident.

SO, IF A POLICE OFFICER OR FEDERAL LAW ENFORCEMENT OFFICER CANNOT LAWFULLY ACQUIRE FIREARMS DEFINED AS ‘ASSAULT WEAPONS’ UPON THEIR RETIREMENT BASED ON THE EXEMPTION SECTION OF THE PENAL CODE AND UPON THE DEFININITIONS SECTION OF THE CRIMINAL PROCEDURE LAW, WHAT OTHER STATUTE MIGHT THE RETIRED QUALIFIED POLICE OFFICER AND RETIRED QUALIFIED FEDERAL LAW ENFORCEMENT OFFICER FEASIBLY RELY UPON, IF ANY SUCH LAW EXISTS, THAT MIGHT YET ALLOW RETIRED, QUALIFIED   OFFICERS TO CONTINUE TO ACQUIRE, OWN AND POSSESS FIREARMS DEFINED AS ‘ASSAULT WEAPONS,’ UPON THEIR RETIREMENT FROM A BONA FIDE POLICE DEPARTMENT OR AGENCY?

We have combed New York law, and have found no Statute that permits retired, qualified, police officers or retired, qualified law enforcement officers from acquiring, owning and possessing, lawfully, weapons designated as ‘assault weapons,’ after they retire from law enforcement, given the impact of the NY SAFE Act. And, so, in the absence of any other New York State Statute that might otherwise allow into New York qualified retired police officers or retired federal law enforcement officers to lawfully acquire, own, and possess firearms defined as ‘assault weapons’ under the New York Safe Act, upon or after the date of formal retirement, we are left with the “Licensing Statute” of NY CLS Penal § 400.00. NY CLS Penal § 400.00, titled, “Licenses to carry, possess, repair and dispose of firearms” alone informs us. That Statute alone provides the manner in which New York qualified retired police officers or retired federal law enforcement officers may lawfully acquire, own, and possess firearms that fall into the category of handguns and the parameters for the possibility of acquiring, owning, and possessing those handguns defined as ‘assault weapons’ under Section 37 of the NY Safe Act, as codified in NY CLS Penal § 265.00(22).

First, CLS Penal § 400.00(6) sets forth this, in pertinent part:

“License: validity. Any license issued pursuant to this section shall be valid notwithstanding the provisions of any local law or ordinance. No license shall be transferable to any other person or premises. A license to carry or possess a pistol or revolver, not otherwise limited as to place or time of possession, shall be effective throughout the state, except that the same shall not be valid within the city of New York unless a special permit granting validity is issued by the police commissioner of that city. Such license to carry or possess shall be valid within the city of New York in the absence of a permit issued by the police commissioner of that city, provided that (d) the licensee is a retired police officer as police officer is defined pursuant to subdivision thirty-four of section 1.20 of the criminal procedure law or a retired federal law enforcement officer, as defined in section 2.15 of the criminal procedure law, who has been issued a license by an authorized licensing officer as defined in subdivision ten of section 265.00 of this chapter; provided, further, however, that if such license was not issued in the city of New York it must be marked “Retired Police Officer” or “Retired Federal Law Enforcement Officer”, as the case may be, and, in the case of a retired officer the license shall be deemed to permit only police or federal law enforcement regulations weapons.”

What does this Section actually say? And, what does this Section mean? This Section says that the handguns that “retired, qualified police officers” and “retired, qualified federal law enforcement officers” can acquire are those for — and that means, only those for —  the license to carry is issued. And those weapons “shall be deemed to permit only police or federal law enforcement regulations weapons.” Now, NY CLS Penal § 400.00(2) refers, very importantly, to the licensing of weapons “other than an assault weapon or disguised gun,” but note: NY CLS Penal § 400.00(2) does not refer to the issuance of licenses to retired, qualified police officers or retired, qualified federal law enforcement officers. So, does that mean that “retired, qualified police officers” and “retired, qualified federal law enforcement officers” can acquire, own, and possess handguns defined as ‘assault weapons,’ after the date of enactment of the NY Safe Act, when no other class of holder of an unrestricted concealed handgun carry permit — other than a licensed gun dealer or licensed gunsmith — can now, under the New York Safe Act, lawfully, acquire, own, and possess firearms defined as ‘assault weapons?’

So, if NY CLS Penal § 400.00(2) doesn’t apply to the licensing of retired, qualified police officers and retired, qualified federal law enforcement officers, what provision of NY CLS Penal § 400.00 does apply to the licensing of retired, qualified police officers and retired federal law enforcement officers. We see that the only Section of NY CLS Penal § 400.00 that refers to the licensing of handguns to retired, qualified police officers and retired qualified federal law enforcement officers is NY CLS Penal § 400.00(6). And, always keep in mind that that NY CLS Penal § 400.00 deals with the licensing of handguns. Rifles and shotguns are not within the purview of State licensing Statutes. And, in fact, most jurisdictions in New York do not require the licensing of long arms, namely, rifles and shotguns. But, a few jurisdictions, such as New York City, do, and these jurisdictions have enacted their own rules and regulations concerning the licensing of rifles and shotguns. But, regardless, since retired, qualified police officers and retired, qualified, federal law enforcement officers do not fall within the purview of NY CLS Penal § 265.20, the Exemption Statute, retired, qualified police officers and retired, qualified federal law enforcement officers are not permitted to acquire, own, or possess, under the NY Safe Act, any rifles or shotguns defined as “assault weapons,” and this fact holds true whether a jurisdiction within in New York requires a license or permit to possess a rifle or shotgun, or not. 

Now, then, what does, NY CLS Penal § 400.00(6) (titled, “License. validity) say, concerning the licensing of particular handguns to retired, qualified police officers and retired, qualified federal law enforcement officers? In full, NY CLS Penal § 400.00(6) says this:

“License: validity. Any license issued pursuant to this section shall be valid notwithstanding the provisions of any local law or ordinance. No license shall be transferable to any other person or premises. A license to carry or possess a pistol or revolver, not otherwise limited as to place or time of possession, shall be effective throughout the state, except that the same shall not be valid within the city of New York unless a special permit granting validity is issued by the police commissioner of that city. Such license to carry or possess shall be valid within the city of New York in the absence of a permit issued by the police commissioner of that city, provided that (a) the firearms covered by such license have been purchased from a licensed dealer within the city of New York and are being transported out of said city forthwith and immediately from said dealer by the licensee in a locked container during a continuous and uninterrupted trip; or provided that (b) the firearms covered by such license are being transported by the licensee in a locked container and the trip through the city of New York is continuous and uninterrupted; or provided that (c) the firearms covered by such license are carried by armored car security guards transporting money or other valuables, in, to, or from motor vehicles commonly known as armored cars, during the course of their employment; or provided that (d) the licensee is a retired police officer as police officer is defined pursuant to subdivision thirty-four of section 1.20 of the criminal procedure law or a retired federal law enforcement officer, as defined in section 2.15 of the criminal procedure law, who has been issued a license by an authorized licensing officer as defined in subdivision ten of section 265.00 of this chapter; provided, further, however, that if such license was not issued in the city of New York it must be marked “Retired Police Officer” or “Retired Federal Law Enforcement Officer”, as the case may be, and, in the case of a retired officer the license shall be deemed to permit only police or federal law enforcement regulations weapons; or provided that (e) the licensee is a peace officer described in subdivision four of and the license, if issued by other than the city of New York, is marked “New York State Tax Department Peace Officer” and in such case the exemption shall apply only to the firearm issued to such licensee by the department of taxation and finance. A license as gunsmith or dealer in firearms shall not be valid outside the city or county, as the case may be, where issued. A license as gunsmith or dealer in firearms shall not be valid outside the city or county, as the case may be, where issued.”

A critical clause in NY CLS Penal § 400.00(6) is the underlined portion of the above quoted section of the Penal Code that reads: “. . . and, in the case of a retired officer the license shall be deemed to permit only police or federal law enforcement regulations weapons.” Now, if the law enforcement regulation handgun happens to be one that is defined as an ‘assault weapon’ under Section 37 of the NY Safe Act, as codified in NY CLS Penal § 265.00(22) or otherwise conflicts with the limitation on ammunition capacity of the magazine under Section 37 of the NY Safe Act, as codified in NY CLS Penal § 265.00(22) and Section 38 of the NY Safe Act, as codified in NY CLS Penal § 265.00(23) — if the regulation firearm happens to be a semiautomatic — that constitutes a lawful, if tacit, exception to what otherwise would amount to unlawful possession of a firearm defined as an ‘assault weapon’ or unlawful possession of a “large capacity ammunition feeding device.” And, that regulation firearm that otherwise butts up against the NY Safe Act, accounts for and allows for the only firearm that a retired, qualified police officer or retired, qualified federal law enforcement officer may continue to possess, lawfully, upon retirement, after enactment of the NY Safe Act.

DO RETIRED POLICE OFFICERS AND RETIRED FEDERAL LAW ENFORCEMENT OFFICERS HAVE TO REGISTER THOSE ASSAULT WEAPONS THEY ACQUIRED PRIOR TO RETIREMENT, IN THE SAME MANNER AS DO THOSE NEW YORK RESIDENTS, CIVILIANS, WHO LAWFULLY ACQUIRED THEIR OWN “ASSAULT WEAPONS” PRIOR TO ENACTMENT OF THE NY SAFE ACT?

One further question remains to be resolved here. And, that question has to do with whether an current, active duty police officer or current, active duty federal law enforcement officer, who happens to acquire, own, and possess, lawfully, one or more firearms that are defined as ‘assault weapons’ under Section 37 of the NY Safe Act, as codified in NY CLS Penal § 265.00(22), must register those “assault weapons” in the same manner and pursuant to the same requirements as any ordinary, law-abiding New York resident, once that current, active duty police officer or current, active duty federal law enforcement officer retires from law enforcement.

NY CLS Penal § 400.00(16-a) is the “Registration” section of the Statute. NY CLS Penal § 400.00(16-a)(a) sets forth the requirements for registration of assault weapons that New York residents lawfully possessed, prior to the date of enactment of the NY Safe Act, on January 15, 2013. That statutory section says, in pertinent part:

“An owner of a weapon defined in paragraph (e) or (f) of subdivision twenty-two of section 265.00 of this chapter, possessed before the date of the effective date of the chapter of the laws of two thousand thirteen which added this paragraph, must make an application to register such weapon with the superintendent of state police, in the manner provided by the superintendent, or by amending a license issued pursuant to this section within one year of the effective date of this subdivision except any weapon defined under subparagraph (vi) of paragraph (g) of subdivision twenty-two of section 265.00 of this chapter transferred into the state may be registered at any time, provided such weapons are registered within thirty days of their transfer into the state.”

NY CLS Penal § 400.00(16-a)(a) sets forth the general registration requirements of “assault weapons” for those original, first-generation owners of firearms defined as “assault weapons” who acquired them, lawfully, prior to the effective date of the NY Safe Act that banned further lawful acquisition of “assault weapons” except for those individuals, such as current, active duty police officers and current, active duty federal law enforcement officers who may continue to acquire, own, and possess such “banned” weapons after the effective date of operation of the NY Safe Act, on January 15, 2013, because current, active duty police officers and current, active duty federal law enforcement officers fall under the exemption Statute exclusion of NY CLS Penal § 265.20.

So, do retired qualified New York police officers and retired qualified federal law enforcement officers, like current, active duty police officers and current, active duty federal law enforcement officers come under the purview of NY CLS Penal § 400.00(16-a)? Actually, “no.” But this is a qualified, “no.” Although retired, qualified  police officers and retired, qualified federal law enforcement officers are required to register their assault weapons, those retired, qualified police officers and retired, qualified federal law enforcement officers — unlike the average, law-abiding New York resident, who is required to register and re-register the assault weapons periodically through the years, retired, qualified police officers and retired, qualified federal law enforcement officers are, as well, required to register certain assault weapons they possess, but they must do so only once and after which they are allowed to continue to possess those assault weapons they happened to acquire prior to the date of their formal retirement from law enforcement, indefinitely, without need for re-registration. But, this requirement for one-time registration of “assault weapons” only applies to certain “assault weapons,” namely that weapon or those weapons that the officer happened to acquire when that officer was a current, active duty police officer or current, active duty federal law enforcement officer, and those weapons that the Statute refers to are weapons that the officer was issued or weapons that the officer had purchased for use in the performance of his official duties. And, the operative statutory section that supports this assertion is NY CLS Penal § 400.00(16-a)(a-1), and that statutory section says this:

“Notwithstanding any inconsistent provisions of paragraph (a) of this subdivision, an owner of an assault weapon as defined in subdivision twenty-two of section 265.00 of this chapter, who is a qualified retired New York or federal law enforcement officer as defined in subdivision twenty-five of section 265.00 of this chapter, where such weapon was issued to or purchased by such officer prior to retirement and in the course of his or her official duties, and for which such officer was qualified by the agency that employed such officer within twelve months prior to his or her retirement, must register such weapon within sixty days of retirement.”

So, qualified, retired New York police officers and qualified, retired federal law enforcement officers who reside in the State of New York may continue to possess the assault weapon – or assault weapons – that the Officer had purchased prior to retirement that was used during the Officer’s official duties and for which that Officer had obtained qualification for, but so long as the Officer registers that weapon within sixty days of retirement.

We must point out, though, that the operative words of NY CLS Penal § 400.00(16-a)(a-1) here refers to the purchase of or issuance of a ‘weapon,’ singular, and not ‘weapons,’ plural. On a strict reading of the Statute, the language of the Statute means that the Officer may continue to keep one “weapon,” and not “weapons” if that Officer was issued or purchased more than one weapon for use in the performance of that Officer’s official duties during that Officer’s tenure in law enforcement. Of course, we are talking, here, about a weapon that is, or weapons that are, otherwise “banned” under the NY Safe Act, namely, “assault weapons.” And the Statute is, tacitly, at least, taking into account, weapons that, although not defined as ‘assault weapons,’ under the Safe Act, nonetheless happen to utilize, a banned component such as, and particularly, a “large capacity ammunition feeding device.” Such a device is banned under the NY Safe Act. Otherwise, if a weapon does not fall within the category of ‘assault weapon’ or does not utilize a “large capacity ammunition feeding device” or have some other banned feature, the qualified retired police officer or qualified retired federal law enforcement officer is allowed, in New York, to lawfully possess more than one weapon.

NOW, AS ALLUDED TO ABOVE, SUPPOSE A RETIRED, QUALIFIED POLICE OFFICER OR RETIRED, QUALIFIED FEDERAL LAW ENFORCEMENT OFFICER HAPPENS TO OWN SEVERAL WEAPONS DEFINED AS ASSAULT WEAPONS UNDER NEW YORK LAW, WHICH THAT OFFICER LAWFULLY ACQUIRED DURING HIS TENURE AS A CURRENT, ACTIVE-DUTY, SWORN POLICE OFFICER OR CURRENT, ACTIVE-DUTY, SWORN FEDERAL LAW ENFORCEMENT OFFICER AND WHICH WERE NOT THAT OFFICER’S OFFICIAL DUTY FIREARM OR OTHERWISE WERE NOT PURCHASED AND UTILIZIED IN THE NORMAL COURSE OF THAT OFFICER’S OFFICIAL DUTIES WHILE HE WAS EMPLOYED BY AN AUTHORIZED LAW ENFORCEMENT AGENCY OR AUTHORIZED LAW ENFORCEMENT DEPARTMENT. NEED THOSE WEAPONS BE REGISTERED ONLY ONCE, NAMELY WITHIN SIXTY DAYS OF THAT OFFICER’S RETIREMENT FROM ACTIVE-DUTY, OR MUST THEY BE RE-REGISTERED PERIODICALLY?

Basically, the retired, qualified New York police officer and retired, qualified federal law enforcement officer is placed on the same footing as an ordinary law-abiding New York resident who happened to acquire, lawfully, his or her own firearms – now defined as ‘assault weapons’ – prior to enactment of the New York Safe Act. Those non-departmental or non-agency weapons come under the purview of NY CLS Penal § 400.00(16-a), and not under the purview of NY CLS Penal § 400.00(16-a)(a-1). Furthermore, retired, qualified New York Police Officers and retired, qualified federal law enforcement Officers who reside in New York are not entitled – any more  so than is the case for the average, law-abiding New York resident, who is not a retired, qualified New York Police Officer or retired, qualified  federal law enforcement Officer – to continue to acquire “assault weapons,” upon the effective date of retirement. So, our advice to those current, active duty New York police officers and current, active duty federal law enforcement officers who wish to acquire one or more weapons defined as ‘assault weapons’ under Section 37 of the New York Safe Act, as codified in Subdivision 22 of Section 265.00 of the Penal Code, is that you acquire those weapons while you are still current, active-duty police officers or current, active duty federal law enforcement officers. For, once you enter retirement you will not be able to continue to acquire, own, and possess those new “assault weapon” acquisitions, lawfully.

CONCLUSION

The New York Legislature gives individuals who are defined as ‘police officers’ or as ‘federal law enforcement officers’ substantially more leeway to acquire, own, and possess firearms defined as ‘assault weapons,’ at least while their status is current, active-duty police officer or current, active-duty federal law-enforcement officer. However, for those individuals who fall into the category of ‘peace officer,’ whether current, active-duty or retired, the lawful acquisition, ownership, and possession of firearms defined as “assault weapons,” under Section 37 of the New York Safe Act, as codified in Subdivision 22 of Section 265.00 of the Penal Code, is restricted. Furthermore, once an officer – whether that officer is a New York peace officer, or New York police officer, or federal law enforcement officer – enters retirement, the lawful acquisition of banned weapons, namely and particularly, “assault weapons,” is essentially foreclosed to every officer, no less so than is the case for the average, law-abiding New York resident who had never been in law enforcement — unless and to the extent that one particular weapon or, perhaps, more than one weapon, as the case may be, that the officer happened to use in the normal course of his  or her duties when he or she was employed as a police officer or federal law enforcement officer for which that officer obtained qualification in, happens to be a handgun or handguns that falls into the category of ‘assault weapon.’ That weapon, or those weapons, the officer may continue to possess, lawfully, and that weapon or those weapons will be listed on the officer’s handgun license, in accordance with NY CLS Penal § 400.00(6).

So, if you are a current active-duty New York police officer or current active-duty federal law-enforcement officer and you are contemplating retirement in the near future, and you wish to acquire firearms that the New York Safe Act defines as “assault weapons,” whether these weapons are to be acquired by gift, sale, trade, or bequest, we strongly urge you to obtain those weapons now – well before you sign your retirement papers and retire your badge. For, once, you enter upon retirement, you will no longer be able, lawfully, to acquire those weapons, that, at the moment, you may acquire relatively easily without butting up against restrictive New York firearms’ laws.

If you have a question concerning any aspect of this article, please feel free to contact us at: rjk@arbalestquarrel.com, or sld@arbalestquarrel.com.