UPDATE ON THE DWAYNE FERGUSON ANTIGUN ACTIVIST CASE

You may recall police arrested gun control activist Dwayne Ferguson last February for carrying a gun into a school building. The police confiscated the handgun at the scene. We discuss the background of the case in our posts of February 15 and 23. This updates those posts.

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.

Some news accounts argue the Section 265.03 charge is the more serious one. But they’re both serious. A conviction on 265.01-a charge is dire. But, what do they say? Let’s take a look at the two charges.

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 second. “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 loaded firearm on him, New York Penal Code Section 265.03 doesn’t apply to him. Ferguson’s handgun license allows him to carry a loaded firearm. The City Prosecutor properly dismissed that charge. That leaves 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.”

Well, can Ferguson defeat this charge as a matter of law because he has a license to carry a firearm? The answer is, “no.” New York Penal Code Section 265.20(a)(3) exempts Ferguson from Penal Code Section 265.03 but it doesn’t exempt Ferguson from Penal Code Section 265.01-a. And no other provision of Penal Code Section 265.20 exempts Ferguson from Penal Code Section 265.01-a.

Penal Code Section 265.01-a limits where a person, who otherwise has  a valid unrestricted New York handgun license, may carry a loaded firearm.

Still, this doesn’t mean Ferguson has violated Section 265.01-a. A charge of violating a criminal Statute isn’t equivalent to a conviction. But, Section 265.01-a may have application if the underlying facts support the charge. On the other hand, Penal Code Section 265.03 does not apply because under no set of facts can Ferguson’s guilt rest. Since Ferguson has a valid New York handgun license, he can possess a firearm in New York.

The New York Legislature originally classified criminal possession of a weapon on school grounds as a Class A Misdemeanor. With passage of NY SAFE, the Legislature upgraded the crime to a Class E felony. Ferguson supported NY SAFE. He may rue doing so.

As the Section 265.01-a felony charge remains, the Buffalo City Court does not have jurisdiction to hear the case and had to transfer it to the Erie County Supreme Court. The Erie Country Court gave the case a new docket number: #00235-2014. The case name remains the same. What happens? The First Assistant District Attorney of Erie County is representing the “people.” He may take one of two steps. He can wait for a response from Ferguson’s attorney. Ferguson may offer to plead guilty to a lesser offense if the District Attorney is agreeable to the offer. If the Defense doesn’t make an offer, the District Attorney will bring the matter to the Grand Jury. And, if the Defense makes an offer but the District Attorney refuses it, the case goes to the Grand Jury. We are watching a chess game. Ideally, for Ferguson the District Attorney will drop the Section 265.01-a. That won’t happen. So, will Ferguson plead guilty to a lesser charge? If the First Assistant District Attorney accepts Ferguson’s plea to a lesser charge, what might that mean? He likely won’t serve time for a first offense in any event. But, Ferguson doesn’t want to lose his handgun license. That’s Ferguson’s greatest concern. So, if Ferguson pleads guilty to a lesser charge, he wants assurances from the District Attorney he can keep his guns. If he doesn’t have that assurance, he may take his chances at trial. So, if a plea deal fails, the District Attorney will first bring the matter to the Erie County Grand Jury. If the Grand Jury indicts on the charge – and probably would – the case goes forward. If convicted, Ferguson will lose his firearm’s license and his guns – probably forever.

Where’s Ferguson now? He’s free on bail. He posted $2,500.00. As a condition of bail, he had to sequester his guns. He had two. The police confiscated both: one during his arrest, the second, later, at his home.

So, if the case goes forward, what must the District Attorney prove? There are two elements. One goes to possession. Did Ferguson bring a gun to a school? Clearly he did. The Police will testify Ferguson had a gun on him. The second element goes to Ferguson’s state of mind. Did Ferguson know he had a gun? Well, a person is presumed to know what he has on him. If Ferguson denies such knowledge, his rationality is questionable. So, Rev. Giles remark that Ferguson “went into the school not thinking he had a gun on him” — if true — hardly helps Ferguson. The District Attorney will likely have little problem getting a conviction on the Section 265.01-a charge if the case advances.

No doubt Ferguson regrets the episode. He’s a hypocrite to be sure. And he would certainly regret the loss of his handgun license and his guns. But, then, he would be true to his cause. He could then truthfully say, if only bitterly: “no guns on me!” There’s justice to be sure. And there’s “poetic justice” too.