23 January 2013

SAFE Act Common Ground (Mark's Law)

Despite the controversy, there are many provisions of the SAFE Act that make sense no matter what side of the "gun control" divide you fall. Given the rancor prevalent in the discussions of this law, maybe it's time to join hands, hum a few bars of "Imagine," and pause for a minute to discuss the parts of the SAFE Act that everybody can agree on, starting with:


The crime of Murder in the First Degree is a leftover of New York's now-defunct death penalty scheme. When New York brought the death penalty back on the books in the Patacki administration, the Murder 1st statute was written to separate "normal" intentional murders from the class of aggravated murders that would trigger the application of the death penalty. Included in the "death eligible" category were murders with multiple victims, contract killings, murders committed during the course of certain felonies, and the murder of police officers.

After the death penalty was ruled unconstitutional, the Murder 1st scheme was (for the most part) kept in the penal law, with the top penalty for Murder 1st now life without the possibility of parole instead of death, the unconstitutional death sentencing scheme pruned away by the Court of Appeals.*2

In 2005, the legislature created the crime of "aggravated murder," and again the defining characteristic was it punished cop-killers more severely than plain vanilla murderers. In fact, the operative language is identical to the Murder 1st statute, except that the "life without parole" sentence is mandatory (as opposed to optional at the discretion of the judge for Murder 1st convictions). It was largely a symbolic law, passed to give the impression that the legislature was getting tough on crime, without actually adding anything much of substance to the penal law.

After the Christmas Eve shootings in Webster--where a gunmen started a fire and then set up an ambush for the first responders, killing two volunteer firefighters and wounding two others before killing himself*2--the SAFE Act takes the extremely reasonable step of adding firefighters and other first responders to the class of murder victims that may trigger a prosecution for aggravated murder, with the enhanced mandatory punishment upon conviction to life without the possibility of parole.

As a symbolic measure, I think this provision is reasonable, and probably should have been in the law from the beginning. The rationale for enhanced deterrence against killing police officers--whether you agree with it or not--applies with at least as much force to first responders like fire fighters and EMTs. If we are going to protect cops, we should have the same protections in place for folks who put themselves into harm's way without the benefit of a side-arm.

Will the new provision of the SAFE Act actually protect firefighters and other first responders in any meaningful way? No; probably not. First, the shooter in the Webster shootings would have been facing Murder 1st charges if he had not killed himself, based on the fact that he killed more than one person during the same criminal transaction. Any judge hearing his case would have undoubtedly sentenced him to life without parole, though technically not required to do so--the same enhanced sentence for aggravated murder that the SAFE Act adds to the book.

And even if, in some decidedly non-judge-like cheek turning, the judge had merely sentenced him to 25-years to life, the parole board would have made sure he died in prison. The Webster shooter, had he lived and been brought to trial and convicted, would have spent the rest of his life in prison, under the old law or the new. It is hard to imagine a scenario where any person convicted of killing a responding firefighter would receive anything other than the equivalent of a true life sentence, under the old law or the new.

But, this is how it works: something unspeakably awful happens, and the laws are changed because . . . well, you have to do something, right? The alternative is to accept that our system of laws is powerless to prevent tragedy.

*1 The law is named after Mike Chiapperini, one of the volunteer firefighters killed by the Webster gunman. The other victim was 19-year-old Tomasz Kaczowka.

*2 The maximum penalty for straight intentional murder (Murder in the 2d degree) is 25 years to life. This sentence technically leaves the option of parole on the table, but practically speaking, for an intentional murder conviction, parole is almost never granted and life really does mean life.

20 January 2013

Handguns and non-assault weapons

There are many changes to the existing gun control scheme in the SAFE Act that deal with non-assault weapons, but the one that has been generating the most controversy is the so-called seven-bullet limit on clips and magazines.*1 Like the new assault weapon provisions, the legislature imposed the new requirements largely by amending existing limits. In this case, the definition of "Large capacity ammunition feeding device" does the heavy lifting. Before the SAFE Act, clips and magazines were limited to a ten-bullet capacity. The new law keeps that capacity limit for clips and magazines obtained prior to the effective date of the SAFE Act, but limits the amount of bullets that can actually be contained in the clip/magazine at any one time to seven. Clips and magazines obtained after the effective date of the SAFE Act must have a capacity of seven bullets or less.

So, gun owners with existing 10-round clips/magazines can keep them and not run afoul of the new law, so long as the clips are never loaded with more than 7 bullets.*2 Any clip/magazine obtained after the effective date of the law is limited to 7 bullet capacity. Possession of a "large capacity ammunition feeding device"--i.e a clip obtained post-Safe Act with more than 7 bullet capacity, or a 10-round capacity grandfathered in actually containing more than seven bullets, is a class A misdemeanor.*3

The other big non-assault weapon change is that simple possession of an unlicensed "firearm" is now a felony (upgraded from a misdemeanor under the old law). It is also a felony to knowingly fail to register a previously licensed "firearm" under the new SAFE Act. The definition of a "firearm" has not changed, and includes "any pistol or revolver " and a shotgun or rifle with a barrel less than 16" in length.

As noted, the licensing requirements have changed, and I'll wade into that mess in due time. Next, though, I'll highlight the non-controversial provisions of the SAFE Act; that is, changes that I can't imagine any constituency taking issue with.

UP NEXT: can't we all just get along?

*1 Or as my friend Matt noted after the law was passed: in New York, you get one bullet for each deadly sin, and that's it.

*2 This is the kind of clunky, silly distinction that you get when you ram through comprehensive gun control reform on the double-quick.

*3 There is no limit on the number of 7-round clips that a person can carry at one time, at least so far as I can tell. If you want to carry 100 rounds, you'll have to carry 15 clips instead of 10.

17 January 2013

NY's gun control Franken-law, explained (Part One)

As you all probably know by now, Governor Andy is coming for your guns and the great state of New York, as we know and love it, is about to unravel. Or, New York is leading the way to bringing a measure of sanity to the unwashed redneck masses. It's gotta be one or the other, based on what I gather from my Facebook feed.*1

But what does the recently enacted SAFE Act actually do? To find out, I took the drastic step of, you know, reading the actual law. All 36 pages of it. And if you are thinking this is some unified legislative proposal, cut from whole cloth to (choose one) 1) strip New Yorkers of their sacred right to bear arms or 2) lead us to the promised land where no child is ever injured by a firearm, think again. The SAFE Act is a collection of amendments, a smattering of tweaks that covers the waterfront, from the penal law to the surrogate's court practice act.

There are so many amendments, in fact, that I am breaking down the break-down into sections. In the first, I'll answer the question that seems to be first and fore-most in the minds of my highly scientific sample of Facebook friends:

So are they coming for my guns, or what?

The answer: it depends on how bad-ass your guns are. We'll take it category by category over the next few days, starting with . . .


First, some context. If you only read the news coverage of the SAFE Act, you would think that New York just enacted a brand new "assaults weapon" ban. And you'd be wrong. The old law included a ban on "assault" weapons, penalizing the possession of any weapon that met the definition of an "assault weapon" as a felony. The SAFE Act leaves the ban on the books, but tightens up the definition of an "assault weapon."

Under the old law, a weapon qualified as an assault weapon if is a was semi-auto, capable of accepting a detachable magazine, and had any two of the following characteristics: a folding or telescopic stock; a pistol grip; a thumbhole stock; a second handgrip for non-trigger hand; a bayonet mount; a flash suppressor, muzzle break, muzzle compensator, or threaded barrel to accommodate flash suppressor / silencer; or a grenade launcher.*2

Yes, I know what you're thinking, and yes: under the old law, you could have an Ak-47 with attached grenade launcher, so long as it had none of the other verboten characteristics. Maybe a little pointless given grenades are illegal to possess under both the old law and new, but I can think of worse ways to launch a potato.

Sadly, under the SAFE Act, a weapon qualifies as an "assault weapon" if it includes just one of the listed characteristics. Meaning that, yes, for those people who currently legally own a semi-automatic rifle with just a pistol grip, or a measly threaded barrel, or just one of any of the other characteristics, then yeah: it is now a felony to possess that gun in New York.


*1 If you want your political vitriol, I'm afraid you will need to go elsewhere. I'm sticking to the facts of the new law, and the potential criminal implications for gun owners in New York.

*2 There are similar lists for semi-auto handguns and semi-auto shotguns. These are not even the coolest lists of banned weapons in the Penal Law. That would be Penal Law 265.01[1], that makes it a misdemeanor to possess an "electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot*3 or slungshot, shirken or 'Kung Fu star." This is clearly why New York is currently experiencing such an extreme shortage of trained ninjas.

*3 I totally had a "wrist-brace type slingshot" when I was a kid. I still count the fact that my brother and I made it to adulthood with all eyes accounted for and functioning as an act of largely undeserved divine intervention.