Watchdog Report: Has the SAFE Act Made Us Safer?

ALBANY, NY - This week marks one year since the Secure Ammunition and Firearms Enforcement Act, or SAFE Act, was quickly passed by the state Legislature and signed by Cuomo on Jan. 15, becoming the first new law of 2013.

The wide-ranging legislative package made national headlines and gave New York the strictest gun laws in the country just weeks after the school massacre in Newtown, Conn. But it also sparked a statewide battle with gun-rights activists and conservatives that has spilled into the courtroom and is poised to help shape the critical 2014 election cycle, particularly upstate.

Since the major provisions of the law took effect in March, a total of 1,291 charges had been issued under the SAFE Act through Dec. 17, according to the state Division of Criminal Justice Services. Of those, 1,155 were for felony possession of an illegal firearm, which had been a misdemeanor prior to the new gun laws.

Cuomo on Monday said the charges levied thus far speak to the positive impact of the law.

The SAFE Act "made the penalty for illegal guns much, much higher, which is something that the gun owners were arguing for for a long time," Cuomo said. "The gun owners' argument is that it's not the legal owners, it's the illegal gun owners. This law did that also. It raised the penalty on illegal gun ownership."

The SAFE Act statistics show the vast majority of charges -- a total of 1,078 -- came in New York City.

A total of 89 percent of the charges statewide came at the time of arraignment, not at the arrest, according to DCJS.

Outside of New York City, Monroe County had the most charges under the gun-control law with 28. Of those, 21 were for illegal firearm possession and a total of 24 charges came at the time of arraignment.

In the Hudson Valley, Dutchess County had a total of five SAFE Act charges. Westchester showed 13, while Rockland had just one, according to the state data.

"Obviously, my view -- and I know I share the view of most of the sheriffs out there -- is the law is on the books," said Monroe County Sheriff Patrick O'Flynn, who is president of the state Sheriffs Association. "It's not like you can pick and choose the laws that you're going to enforce and not going to enforce. Obviously, if it's on the books, we're going to work within the guidelines of the law and enforce it as we see appropriate."

Cuomo and all 213 state lawmakers are up for election, and the issue is expected to be a hotly contested one among candidates.

In his State of the State address on Wednesday, Cuomo said the gun-control law helped fulfill a promise. "We said we would make New York safer and we did," he said.

Crimes then and now

Gun-rights groups say the statistics show a different story. The Capitol has been the scene of large protests since the law passed.

The vast majority of the SAFE Act charges in 2013 "were crimes last year and they're crimes now," said Tom King, president of the New York State Rifle and Pistol Association.

Various other portions of the law -- including a ban on purchasing rifles with certain assault-weapon features and a limit on the number of bullets loaded in a magazine -- have been arbitrary and difficult to enforce, King said.

"You can look it whatever way you want, but the fact remains that the people of New York state are not any safer because of the SAFE Act," King said.

Comparing gun crimes between 2013 and 2012 in New York can be difficult, since the SAFE Act carved out the new felony crime for illegal firearm possession. Prior to the new law, firearms were lumped in with other weapons like knives, daggers and stun guns for a misdemeanor charge -- fourth-degree criminal possession of a weapon.

In 2012, 19,089 misdemeanor weapons charges were filed, though it's not clear how many of those were for firearms, according to DCJS. Last year, a total of 18,906 misdemeanor weapons and felony firearms charges had been filed through Dec. 17.

King's organization is the lead plaintiff in a lawsuit challenging the constitutionality of the SAFE Act, which charges that portions of the act -- including a stricter ban on rifles with certain assault-weapon features -- violate the Second Amendment.

A federal judge in Buffalo on Dec. 31 struck down the magazine limit, which prohibited New Yorkers from loading more than seven rounds in a magazine, regardless of whether it has a higher capacity. But the vast majority of the law was upheld as constitutional.

The court battle is likely to continue into the coming months, if not years. The state and the firearms group both intend to appeal U.S. District Court William Skretny's decision, and King says his group is willing to take the battle to the U.S. Supreme Court.

Enforcement questions

Critics of the SAFE Act haven't been limited to firearms organizations and Second Amendment boosters, however.

The state Sheriffs Association has raised numerous concerns with the law and say it's difficult to enforce, signing on to a "friend of the court" brief supporting the Rifle and Pistol Association lawsuit.

"We enforce the law, I want to make that clear," said Putnam County Sheriff Don Smith. "However, I think it's also important to say the SAFE act was one of those laws that they wanted it bad, and I think they got it bad. The law is something that we took exception with when it was passed in the dead of night because a lot of the provisions in the law did not make sense."

The state Association of County Clerks has also flagged several issues, particularly when it comes to a portion of the law that allowed pistol-permit holders to opt out of having their permit information made public.

The provision, which came after The Journal News, a Gannett Co. Inc, publication, published a map of pistol-permit holders in Westchester and Rockland counties, brought on a flood of paperwork for county clerks, who were tasked with collecting the opt-out forms and filing them away. The forms came in by the thousands, with clerks then required to send them to a judge for approval.

Some counties, including Putnam and Rockland, have refused to turn over the names of those permit holders that didn't opt out, citing safety and privacy concerns. Putnam County has been sued by The Journal News for the records, while Rockland County Clerk Paul Piperato was warned by the state Committee on Open Government that he could be held personally liable if he didn't comply.

The County Clerks Association is asking lawmakers to make all pistol-permit information confidential, arguing that the current law makes filing duties unclear and puts clerks in an uncomfortable position.

"How exactly do you file (the opt-out forms) appropriately? Because, as with many things in the SAFE Act, that was unclear as well," said Elizabeth Larkin, Cortland County clerk and president of the County Clerks Association. "It says it must be filed apart from other filings. What does that mean? Apart from your deeds and mortgages? Apart from the rest of the pistol permit application or the pistol permit file? It's very unclear in the law."

State Police have also refused to release statistical information about the number of new pistol permits in New York or how many assault weapons have been registered under the gun-control law. The agency claims the information is not public because it is being used in a gun-registration database.

Pros and cons

Leah Gunn Barrett, executive director of New Yorkers Against Gun Violence, said there is "ample evidence" that strong laws reduce death and injury from guns. New York has the fourth-lowest rate of gun deaths in the country, she said.

"The New York SAFE Act is full of common-sense measures to keep guns out of the wrong hands," Barrett said. "It doesn't infringe, as the Judge Skretney affirmed, on anyone's Second Amendment rights. Most New Yorkers are going to be safer and much better off as a result of the SAFE Act."

Owners of gun shops have been cool to the new laws, which required some to remove more assault weapons from their shelves. Also, State Police have indicated that a system of background checks for ammunition buyers won't be up and running by mid-January.

Hans Farnung, CEO and president of Beikirch Ammunition in Rochester, chose to expand his business in Pennsylvania last March in the wake of the SAFE Act. Beikirch's had been eying stores in the Syracuse area before reversing course and choosing to buy out a gun store in Tioga County, Pa.

"They love the business and they love us down there," Farnung said of Pennsylvania. "It's a little different than in New York, where we're made to be the bad guy because we sell firearms. Any future expansion, which will be coming, will be out of state from now on."

In October, American Tactical Imports said it was Rochester for South Carolina, blaming the move in part on the law. Rockland County-based Kahr Arms said last July it was leaving for Pennsylvania.

Remington Arms, based in the Mohawk Valley, has also dealt with questions about whether it would move and has been wooed by other states. But the company hasn't said it would leave.

Barrett and other SAFE Act supporters say the law is all about one thing -- saving lives.

"These are all things that are very, very common sense and will end up protecting New Yorkers and saving lives," she said.

Ithaca Journal staff writer Andrew Casler and Albany Bureau Chief Joseph Spector contributed to this report.


- Since much of the SAFE Act went into effect in March, a total of 1,291 new charges have been levied under the law, according to the Division of Criminal Justice Services.

- Of those, 1,078 were in New York City

- Monroe County had the highest number of SAFE Act charges outside of New York City with 28.

- The vast majority of the charges -- 89 percent statewide -- are being levied at the time of arraignment, not at arrest.

Q and A

Q: What types of guns are banned?

A: The state's bolstered assault-weapons ban includes all semiautomatic rifles, shotguns and pistols that contain a "military-style feature" that's defined in the law.

Under the SAFE Act, semiautomatic rifles, shotguns and pistols are illegal if they have a folding, telescoping or thumbhole stock. They are also banned if they have a pistol grip that extends beneath the action of the weapon, a second grip for the non-trigger hand, a bayonet mount, a grenade launcher or the ability to hold a flash suppressor.

Shotguns are illegal if they are semiautomatic and contain a second grip, a fixed magazine that can hold more than seven rounds or the ability to hold a detachable magazine.

Semiautomatic pistols are prohibited if they have the ability to hold a detachable magazine and have a second grip, the capacity for a magazine attached to the pistol outside of the grip, a threaded barrel for a flash suppressor, a shroud for the non-trigger hand or a weight of 50 ounces or more.

Any gun that requires a permit will need to be re-licensed every five years.

Q: What happens with assault weapons that are now banned?

A: Any semiautomatic guns that are now banned but were legal before January 15, 2013, were grandfathered in. Those guns, however, must be registered with State Police by April 15. Any grandfathered guns can be sold out of state, but cannot be sold or transferred within New York.

If the owner of a grandfathered-in gun knowingly does not register with the state by April 15, that person faces a misdemeanor charge. If they unknowingly do not register, they face a warning from local police and would then have 30 days to register or surrender their weapon.

Q: What about ammunition?

A: As of Wednesday, all ammunition sellers must be registered with State Police and all sales must be done person to person. Online ammunition purchases must be facilitated by a registered ammo shop, and shooting ranges will continue to be able to receive direct shipments.

The SAFE Act requires all ammunition sales to be subjected to a background check. But a statewide database for the checks is not yet up and running, according to State Police. In a letter to ammo sellers, State Police Chief Joseph D'Amico said "prior notice will be given to all sellers on a timely basis before the database is completed and any requirements are relevant."

Q: Which magazines are now outlawed?

A: The SAFE Act's magazine limit has changed over time.

After the bill was signed, New Yorkers were no longer allowed to purchase a magazine with a capacity of more than seven rounds. New York's previous capacity limit was 10 rounds.

That changed in March, when lawmakers and Cuomo agreed to allow the sale of 10-capacity magazines, but only allow seven bullets to be loaded at any one time.

But last week, U.S. District Court Judge William Skretny ruled against the magazine limit, arguing that it was arbitrary and should be thrown out. Since then, both the state Sheriffs Association and Gov. Andrew Cuomo have recognized Skretny's ruling as the law of the land, though the state has vowed to appeal.

Q: Are private gun sales allowed?

A: The private sale of firearms -- meaning any gun sold from an individual to an individual -- remains legal. But for the first time, the SAFE Act required buyers in those sales to go through a background check.

In order to purchase a gun privately, the buyer must go to a registered gun dealer and have his or her name put through the National Instant Check System. The gun dealer can charge up to $10 to perform the check.

If the buyer is approved, the gun dealer must provide him or her with a form certifying the results. The buyer then has to present the form to the person selling the gun.


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