New York Court of Appeals to review controversial gun control cases

August 16, 2023 Rob Abruzzese

Chief Judge Rowan Wilson of the New York State Court of Appeals
Photo: Mario Belluomo/Brooklyn Eagle

Controversial laws under review in five cases

Four of the cases under review — People v. Pastrana, People v. Rivera, People v. Cabrera, and People v. Garcia — challenge Penal Law section 265.03(3), which criminalizes gun possession in public places. The fifth case, People v. David, targets Penal Law section 265.05, which criminalizes possession of a loaded firearm outside one’s home or business.

Defendants’ arguments

The defendants in these cases are making a variety of arguments, ranging from claims that the state laws violate the U.S. Constitution to more specific procedural objections.

For instance, Jose Rivera, represented by Guy A. Talia of Reeve Brown in Rochester, was sentenced as an adult to 10 years in prison for possessing a loaded, unlicensed handgun at age 17. He displayed the gun during an argument over a parking space. Rivera’s lawyers argue that New York’s criminal laws violate the Constitution by punishing all unlicensed public firearm possession as a Class C violent felony, regardless of the reason for the lack of licensure.

Carlos L. David, also represented by Talia, is challenging the validity of the police search that led to his 10-year sentence for possessing two loaded, unlicensed handguns in his girlfriend’s car. He was pulled over for allegedly driving without headlights and only possessed a learner’s permit. Talia argues that the law is unconstitutional “because it is an outright prohibition of the constitutionally protected conduct of carrying a loaded firearm in public.”

George Garcia, represented by Katharine Skolnick of the Center for Appellate Litigation, is asking for his convictions for possession of a loaded, unlicensed firearm outside his home or place of business and possession of a loaded firearm with intent to use it unlawfully to be reversed and the indictment dismissed. Garcia had retrieved the gun from his parked car after being thrown out of a Manhattan nightclub. Skolnick argues that Garcia’s acquisition of a Utah permit shows he could meet the requirements of a “shall issue” licensing regime.

State’s counterarguments

In response, Assistant Deputy New York Solicitor General Andrew Amend argues that the Supreme Court’s decision in Bruen “did not magically de-criminalize” unlicensed public firearm possession. Amid a national epidemic of mass shootings, he argued that Rivera’s lawyer’s reading of the Second Amendment “would turn New York into the Wild West.”

Background on the Supreme Court ruling

Decided on June 23, 2022, New York State Rifle & Pistol Association, Inc. v. Bruen (2022) is a landmark decision of the United States Supreme Court concerning the Second Amendment to the United States Constitution. The case involved the constitutionality of the 1911 Sullivan Act, a New York State law that required applicants for a pistol concealed carry license to show “proper cause,” or a special need distinguishable from that of the general public.

The Supreme Court, in a 6-3 decision, ruled that New York’s law was unconstitutional, stating that the ability to carry a pistol in public is a constitutional right under the Second Amendment. The majority decision allowed states to enforce “shall-issue” permitting, where applicants must satisfy certain objective criteria, such as passing a background check, but ruled that “may-issue” systems using “arbitrary” evaluations of need by local authorities are unconstitutional.

The decision led to several lawsuits challenging federal and state gun regulations, which emphasized evaluating those regulations based on the “historical tradition of firearm regulation”, a phrase coined by majority opinion author Justice Clarence Thomas. Some of these cases successfully overturned longstanding regulations due to their lack of historic tradition.

The Supreme Court’s decision was seen as a significant expansion of its gun jurisprudence, with some lower court judges criticizing it as unworkable. On June 30, 2023, the Supreme Court granted certiorari in United States v. Rahimi, a case that could potentially scale back Bruen.

New York’s response to the Supreme Court ruling

The Supreme Court ruling in NYSRPA v. Bruen had lifted limitations on who is allowed to carry concealed weapons in New York, prompting concerns among gun control advocates and prompting state lawmakers to act. According to the Governor’s office, research has shown that violent crime involving firearms increases by 29% when people are given the right to carry handguns.

The new laws signed by Gov. Kathy Hochul in reaction to Bruen established a series of provisions that tighten gun regulations and make it more difficult for individuals to carry concealed weapons in sensitive locations, including airports, bars, and restaurants that serve alcohol, courthouses, and schools, among other places.

The laws also create a default rule that private property and businesses are “no carry” zones unless the property owners expressly allow it. Property owners who permit concealed carry must disclose it with signage indicating that concealed carry is allowed on the premises.

Additionally, the legislation expands eligibility requirements and disqualifying criteria for individuals seeking concealed carry permits. Applicants will now be required to provide character references, complete firearm safety training courses, undergo live fire testing, and submit to background checks. Disqualifying criteria for permits now include documented instances of violent behavior, misdemeanor convictions for weapons possession and menacing, recent treatment for drug-related reasons, and alcohol-related misdemeanor convictions.

The new laws also enhance safe storage requirements for firearms and extend these requirements to vehicles. Gun owners are prohibited from leaving a gun in their car unless it is stored in a lockbox. The legislation further requires that guns be stored safely in a home if someone under 18 resides there, raising the age limit from the previous requirement of 16.

The legislation allows the state to conduct and oversee background checks for firearms and ammunition sales, going beyond the federal background check system, which the Governor’s Office noted lacks access to crucial state and local records. The law also requires background checks for ammunition sales and creates a statewide license and ammunition database.

In response to the Buffalo shooting where the suspect wore steel-plated body armor, the laws also amended the body armor purchase ban to include hard body armor.

National implications and potential consequences

The U.S. Supreme Court’s forthcoming decision on a federal statute prohibiting anyone actively subject to a domestic violence restraining order from having firearms will have significant implications for the interpretation of Second Amendment rights. This case, expected to be decided in late spring 2024, comes after a Fifth U.S. Circuit Court of Appeals panel threw out the conviction of Texas man Zackey Rahimi, who was convicted of possessing firearms while under such a restraining order.

The Court of Appeals’ decision could have significant implications for New York’s gun control laws and might set a precedent for other states. If the court strikes down the laws, numerous gun possession convictions could be overturned. However, if it upholds the laws, the cases are likely to be appealed to the U.S. appellate courts.