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?[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

DWAYNE FERGUSON PLEADS GUILTY ON WEAPONS CHARGE. BUT WILL HE LOSE HIS "CARRY" LICENSE? WILL HE LOSE HIS HANDGUNS?

You may recall the Dwayne Ferguson case. But, for those of you who might have forgotten, we give you the following facts, as posted first in the Arbalest Quarrel on February 23, 2014: “Officials at Harvey Austin Elementary School, located in Buffalo, New York, received an anonymous tip. A person had entered the school with a gun. The police were alerted; a SWAT team responded, and the school was ‘locked down.’ Scouring the school, the police eventually traced the weapon to a dubious source: Dewayne Ferguson. Ferguson, 52 years old, father of three, operator of a printing press, who worked as a security guard for community events, was caught. He had carried a gun into a school building. At no time, during the police sweep of the building, did Ferguson inform the police he had a gun on him. What was Ferguson doing in the school? He isn’t a teacher. Still, Ferguson had a legitimate purpose for being at the School, but that purpose did not extend to his having a gun on him.The Buffalo News said that ‘Ferguson is not employed by the Buffalo School District but was working in the 21st Century Community Learning Program, an after-school academic enrichment initiative that tutors disadvantaged students.’ The police arrested Ferguson and he was charged under the same law he fought to pass – the NYSAFE Act. According to WGRZ-TV, a Buffalo news station, Ferguson pleaded not guilty to two weapons charges. WGRZ-TV also reported that prosecutors asked the Court to set bail at $10,000.00, but “City Court Judge Jeanette Ogden released the activist on his own recognizance, citing his community involvement and the fact that Ferguson has no prior run-ins with the law.Ferguson, a proponent of NYSAFE, is a friend of ‘antigun’ zealots who promoted it. As reported by The Buffalo News, ‘he was among local activists who stood with Assemblywoman Crystal Peoples-Stokes last year lobbying for a law that would make possessing a gun on school property a felony.’ Ironically, Ferguson was charged under the same law he advocated for.”In a follow-up to our February 23, 2014 Article, posted on April 25, 2014, we gave you an in depth review of the laws affecting Ferguson as an attorney would view the matter: first, citing the charges brought against Ferguson together with the Court docket numbers and, second, we explained precisely what those two charges mean.There were two weapons’ charges brought against Dwayne Ferguson and there are two docket numbers as the two charges were initially filed in the Buffalo City Court; one charge was dropped and the case was waived to Erie County Supreme Court because of the severity of both charges, as both charges amounted to felonies, and either weapons’ count was beyond the jurisdiction of City Court:“The police brought Ferguson to Buffalo City Court. The Prosecutor arraigned Ferguson on two weapons charges: Penal Code Sections 265.03 and 265.01-a. The case is: People vs. Dwayne Ferguson. The case was initially brought in Buffalo City Court.  The criminal docket number in the Buffalo City Court is: #ER 002043F. The case was subsequently transferred to the Erie County Supreme Court. The criminal docket number in the Erie County Court is: #00235-2014.”Here is a detailed account of the two weapons charges as filed against Ferguson:Let’s look at New York Penal Code Section 265.03 first. ‘A person is guilty of criminal possession of a weapon in the second degree when: (1) with intent to use the same unlawfully against another, such person: (a) possesses a machine-gun; or (b) possesses a loaded firearm; or (c) possesses a disguised gun; or (2) such person possesses five or more firearms; or (3) such person possesses any loaded firearm. . . . Criminal possession of a weapon in the second degree is a class C felony.’We look at Penal Code Section 265.01-a next. ‘A person is guilty of criminal possession of a weapon on school grounds when he or she knowingly has in his or her possession a rifle, shotgun, or firearm in or upon a building or grounds, used for educational purposes, of any school, college, or university, . . . . Criminal possession of a weapon on school grounds is a class E felony.’Now let’s take a closer look at these Statutes for the Ferguson case.We will look at New York Penal Code Section 265.03 first. We know Ferguson did not intend to use his handgun against another person. So, condition “1” of Section 265.03 is irrelevant. That leaves Penal Code Sections 265.03(2) or (3). Neither applies. I explain. We must look to Penal Code Section 265.20. This is an exemption provision Section in the New York Penal Code. Let’s take a look at Penal Code Section 265.20(a)(3). “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: Possession of a pistol or revolver by a person to whom a license therefor has been issued as provided under section 400.00 or 400.01 of this chapter or possession of a weapon as defined in paragraph [e] or [f] of subdivision twenty-two of section 265.00 of this article which is registered pursuant to paragraph [a] of subdivision sixteen-a of section 400.00 of this chapter or is included on an amended license issued pursuant to section 400.00 of this chapter.” What does this mean?Dwayne Ferguson has a license to carry a handgun. So, even though Ferguson had a firearm on him – and presumably a loaded firearm – Penal Code Section 265.03 doesn’t apply to him. Ferguson’s handgun license allows for him to carry a loaded firearm. The City Prosecutor properly dismissed the Section 265.03 charge. That left Penal Code Section 265.01-a. Again, let’s take a look at Section 265.01-a.‘A person is guilty of criminal possession of a weapon on school grounds when he or she knowingly has in his or her possession a rifle, shotgun, or firearm in or upon a building or grounds, used for educational purposes. . . .’ ‘Criminal possession of a weapon on school grounds is a class E felony.’In the April 25 Article we left off, speculating what might happen to Dwayne Ferguson on the Section 265.01-a charge. We don’t need to speculate about this any longer. We now know. The Grand Jury was never convened. The First Assistant District Attorney didn’t need to convene a Grand Jury because Ferguson pleaded guilty to the Section 265.01-a weapons’ charge last week, Tuesday, May 27, 2014, in Erie County Supreme Court where he stood before Judge John Michalski. Now, you may rightly ask, why did Dwayne Ferguson plead guilty to the Section 265.01-a charge, rather than fighting the charge in Court?Well, we know the best case scenario for Ferguson would have been for the Erie Country First Assistant District Attorney, who prosecuted the case, to dismiss the charge against Ferguson. But that wasn’t going to happen. What then were Ferguson’s options? Actually, there was only one. Had he not pleaded out, the First Assistant District Attorney would have brought the matter before the Grand Jury. There was always the possibility the Grand Jury, when presented with the District Attorney’s evidence against Dwayne Ferguson, might have decided against indicting him. Granted, that possibility existed – slim though it was, virtually non-existent, really. But Ferguson might have taken a chance just the same, hoping the Grand Jury wouldn’t indict him: that would have ended the matter; the School gun charge against him would have been dropped; and, likely, Ferguson’s two handguns would have been returned him and it would be as if the matter had never had happened. But, if the Grand Jury did indict, then Ferguson would have had to face a trial – more likely a trial by jury, assuming Ferguson didn’t seek a bench trial instead, which would be foolhardy. But, Ferguson clearly had to ask himself, did he wish to go through a trial? If he decided to exercise his right to trial by jury, what, then? Well, it is likely a jury would find Ferguson guilty since the police found a gun on him in a school and would testify to that fact. So, it would be extremely difficult for Dwayne Ferguson to deny the facts at trial. Could Ferguson convince a jury otherwise? That's unlikely. Honestly, would a jury believe the police were either lying about finding a gun on Ferguson, or that the police were mistaken about the object that was found on him – a handgun? Still, the District Attorney had to prove one critical element of the Section 265.01-a charge – namely that Ferguson knew he had a gun on him when he entered the school building. But, since it is presumed that a person knows what he or she has on them, it would be difficult for Ferguson to deny he had knowledge that he had a gun on him. If he sought to do so, giving his own testimony, under oath, swearing he honestly didn’t know he had a gun on him, then that would certainly raise an issue involving Ferguson’s mental and emotional competency, namely, should Dwayne Ferguson be trusted with a firearm at all? Still, speculation concerning what might or mightn’t have transpired had the case gone to trial – while of some academic interest – if such were to happen again – is, in the instant case, all but moot. For, as we now know, Ferguson pleaded guilty. And, he decided to plead out for a very important reason – critical to his wish to eventually acquire his guns again. And, obviously, the reason Dwayne Ferguson decided to plead guilty was to gain the certainty that he wouldn’t have a felony conviction on his record. For, as you see, Ferguson pleaded guilty not to a Class E felony, but, rather, to a Class A Misdemeanor. As we had mentioned in an earlier post on the Arbalest Quarrel, prior to passage of NY SAFE, criminal possession of a weapon on school grounds was a Class A misdemeanor. With the enactment of SAFE, criminal possession of a weapon on school grounds was increased to a Class E felony. Curiously and oddly and ironically, Ferguson was a strong supporter and advocate for the SAFE Act. Yet, he was spared the harshest penalty if convicted under it. As a condition of agreeing to plead guilty to the Section 265.01-a charge of possessing a weapon on school grounds, the Defense and the People agreed that Ferguson would receive the Class A misdemeanor penalty rather than the Class E felony penalty. Now, some readers may believe that Ferguson got off easy. But, keep in mind a few important points here: (1) Dwayne Ferguson had never been convicted of a serious crime before this odd mishap and first time offenders, generally, factoring in, of course, the nature of the crime, are often treated leniently by a Court; (2) the cost of a jury trial is expensive and the cost of prosecuting Ferguson must be borne by the tax payer although of course he must pay for his own defense; and a District Attorney must expend considerable time and resources to prepare for and prosecute a case that goes to trial; (3) Dwayne Ferguson is a hypocrite – no argument there – but hypocrisy – albeit reprehensible behavior to a good many of us – isn’t a crime in America, and, were it otherwise, our prisons would certainly be inundated – not least of all with politicians; and (4) for anyone who is treated like a V.I.P., such as Ferguson, the loss of his guns must vex Dwayne Ferguson to no end assuming, of course, Ferguson does in fact, lose possession of his firearms. But is that true? Will he suffer revocation of his ‘full carry’ handgun license and will Ferguson lose his handguns and forego their return to him indefinitely? If so, then why? And if not, then, why not? What, truly, does this all mean? Well, the Ferguson’s case isn’t over – only the conviction phase of it is. Dwayne Ferguson is scheduled to appear before Judge Michalski for sentencing on August 19^th. One of three things can transpire for Ferguson: one, Ferguson can be sentenced to prison, up to one year. That’s unlikely to happen since, once again, Ferguson hasn’t, to the best of our knowledge and belief, apart from the present matter – possessing a weapon on school grounds – ever been convicted of a serious crime; two, Ferguson can get probation for a specified period of time and that would spare him a stay in prison, but he would have to appear periodically before a probation officer, and that, too would not be particularly appealing to Ferguson; and three, the Judge can order a conditional discharge. This last judicial option would be the most favorable to Ferguson. For, in that event, Ferguson falls under the auspices of and control of the sentencing Court, not the probation office. Ferguson would probably be ordered to complete community service for a specified time, and the Court would be kept apprised of Ferguson’s conduct to assure itself that Ferguson is staying out of trouble. But, keep in mind, a conditional discharge doesn’t negate the crime for Ferguson. In order for Ferguson to be truly relieved of his criminal record, he would need to claim relief from disability; and he could do so at the sentencing, or he could do so at a later date, as a separate matter, before a different Judge in the Erie County Supreme Court.Now what does all this mean for the status of Ferguson’s guns and his ability to reclaim them from the police? Well, we first look to the Court itself to see what is required of it under Section 2 of the SAFE Act, as codified in Section of 380.96 of the N.Y. Criminal Procedure law, in respect to Ferguson’s license. The NY SAFE Act sets forth clearly, concisely and unmistakably: “Upon judgment of conviction of any offense which would require the seizure of firearms, shotguns or rifles from an individual so convicted, and the revocation of any license or registration issued pursuant to Article Four Hundred of the Penal Law, the Judge pronouncing sentence shall demand surrender of any such license or registration and all firearms, shotguns and rifles. The failure to so demand surrender shall not effect the validity of any revocation pursuant to Article Four Hundred of the Penal Law.” So, since Ferguson has previously surrendered his firearms to the police, must the sentencing Judge order surrender of Ferguson’s pistol license under Section 380.96 of the Criminal Procedure law? Now this is a sticky wicket. A key phrase of Section 2 of the SAFE Act rests on the first clause, “upon judgment of conviction of any offense which would require the seizure of firearms, shotguns or rifles from an individual so convicted.” Well, Ferguson’s guns were seized at the scene of the crime, but that isn’t what Section 2 of the NY SAFE Act means by “upon judgment of conviction of any offense which would require the seizure of firearms, shotguns or rifles from an individual so convicted.” For, the taking of Dwayne Ferguson’s guns by the police, on school grounds doesn’t, ipso facto, constitute conviction of any offense. Yes, Dwayne Ferguson was arrested at the scene, and, yes, police seized his handgun. And, yes, a second handgun was later turned over to the police. But, arrest doesn’t equal conviction. Conviction under Section 265.01-a of the Penal Law occurred after, on Tuesday, May 27, 2014, in the Erie County Supreme Court, when Dwayne Ferguson pleaded guilty to a Class A misdemeanor charge of knowingly possessing a weapon on school grounds. The question is whether judgment of conviction of that offense requires the seizure of firearms, shotguns or rifles from an individual so convicted. Well, let’s see. We must now turn to Subsection 11 of Section 400.00 of the New York Penal law. And Subsection 11 of Section 400.00 of the N.Y. Penal law deals with both revocation and suspension of gun licenses. That Subsection sets forth in principal part: “The conviction of a licensee anywhere of a felony or serious offense shall operate as a revocation of the license. A license may be revoked or suspended as provided in Section 530.14 of the Criminal Procedure Law or Section Eight Hundred Forty-two-a of the Family Court Act.” Section 530.14 doesn’t apply to the instant case since it involves orders of protection. So, if the Court is required to revoke Dwayne Ferguson’s license, that is so if Ferguson is convicted of a felony or serious misdemeanor.Now, it’s clear that, if Dwayne Ferguson were convicted of a Class E felony, Judge Michalski would in fact have no choice in the matter as conviction under Section 265.01-a of the Penal Law would mandate revocation of all pistol licenses and long arm permits. But, although the SAFE Act has amended Section 265.01-a of the New York Penal Law so that conviction under that Section is now a Class E felony, Ferguson was allowed to plead guilty to a Class A misdemeanor, the penalty for carrying a weapon onto school grounds prior to SAFE. So the question is whether a Class A misdemeanor constitutes a serious offense within the meaning of Section 400.00 of the New York Penal Law. The title of Section 400.00 of the Penal Law is, “Licenses to Carry, possess, repair and dispose of firearms.” Now, it so happens that the words ‘serious offense,’ are defined with particularity in the Section 265.00 of the New York Penal Law. That means that we need not guess whether a Class A misdemeanor is a ‘serious offense,’ for the expression is a legal term of art. Subsection 17 of Section 265.00 of the New York Penal Law says in pertinent part: “Serious offense means any of the following offenses defined in the penal law: illegally using, carrying or possessing a pistol or other dangerous weapon.” The question now is whether Ferguson had illegally carried a gun at the time of his arrest on school grounds. Well, he did illegally carry a gun onto school grounds. There's no question about that, and that was the basis for his arrest and for his ultimate conviction under Section 265.01-a of the Penal Law in the first instance. But the question is whether Ferguson had illegally possessed a gun at all. Well, Ferguson did not illegally possess or carry a firearm since he had a valid permit for it. The Permit was lawfully issued to him under Section 400.00 of the Penal Law. And the nature of the license allowed Ferguson both to possess a gun and to carry it on him. And that is why the Section 265.03 charge against Ferguson was dropped. So, we may now reasonably conclude that, under Subsection 17 of Section 265.00 of the Penal Law, Dwayne Ferguson did not plead guilty to and was not convicted of a serious offense under the Penal Code of New York. A Class A misdemeanor is not, in this instance at least, a 'serious offense' under the Penal Code of New York. So, clearly, it was for this reason that Ferguson was in fact willing to plead guilty to a Class A misdemeanor charge under Section 265.01-a for having possession of a weapon on school grounds. Had he not been able to do so, it is unlikely that he would've readily agreed to plead out. He certainly would not have willingly pleaded guilty to a Class E felony under Section 265.01-a. The Class A misdemeanor conviction provides Ferguson his best chance of keeping his “full carry” handgun license and for reclaiming his firearms from the police.So, where does that leave us and Ferguson? Well, the police still have Ferguson’s two handguns. So, as it appears the Erie County Supreme Court isn’t required to revoke Ferguson’s pistol license, and, too, as the matter of the disposition of Ferguson’s pistol license is out of the hands of the First District Attorney of Erie County, the question is, then, who does have authority – if anyone at all – to revoke or allow Ferguson to keep his pistol carry license? That, we’ve learned, falls upon Wilmer Fowler. Who is Wilmer Fowler? Wilmer Fowler is the Erie County Pistol Permit Hearing Officer. And it’s up to Mr. Fowler whether to allow Dwayne Ferguson to retain his pistol license. If Mr. Fowler does allow Dwayne Ferguson to keep his pistol license – and it isn’t clear the Hearing Officer will allow Ferguson to keep his pistol carry license in light of the conviction, notwithstanding that Ferguson pleaded guilty to a Class A misdemeanor charge rather than a Class E felony charge – the matter doesn’t end there. For the Hearing Officer’s decision to allow Dwayne Ferguson to retain his pistol permit ultimately rests with the Erie County Supreme Court, although Judge Michalski who presides over the criminal proceeding won’t decide that matter. The decision – whether Ferguson is allowed to retain his pistol license – isn’t a criminal matter. It’s a civil matter. So, who decides the issue? Judge Martin Boller of the Erie County Supreme Court, who handles civil cases, does. Judge Boller, you see, also handles pistol permit cases. And the suspension or revocation of pistol licenses is a civil matter, not a criminal matter. Judge Boller is the Pistol Permit Hearing Judge. Thus the fate of Dwayne Ferguson’s pistol license rests in the hands of Judge Boller, assuming the Pistol Permit Hearing Officer does not revoke Ferguson’s pistol license and allows the return of his handguns to him in the first instance, and the Pistol Permit Hearing Officer has full discretion unless he abuses his discretion. If the Erie County Pistol Permit Hearing Officer decides to revoke or to suspend Ferguson’s pistol license, Ferguson can only request the Court to determine whether the Erie County Pistol Permit Hearing Officer’s decision amounts to an abuse of discretion.The Arbalest Quarrel will keep you abreast of the Ferguson matter as it continues to play out. For, there is much more we need to know; for at the present time we don’t know whether the Pistol Hearing Officer has, as yet, acted upon Ferguson’s pistol license. Dwayne Ferguson’s pistol license may already have been suspended or revoked. We just don’t know, but we aim to find out because that, certainly, is on your mind. We know this matter weighs on Ferguson’s mind.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2014 Roger J Katz (Towne Criour) and Stephen L. D’Andrilli (Publius) All Rights Reserved.