William Jacobson of the Legal Insurrection blog is a law professor at Cornell University Law School. As a class project in one of his courses, they are trying to unravel the new 39 page gun law that Gov. Andrew Cuomo rammed through the NY State legislature.
Jacobson was interviewed by Cam Edwards of NRA News about the new law on Friday. The key point made by Jacobson in discussing this new law is that it is so complicated and full of pitfalls for the law abiding that the intent seems to be to discourage gun ownership entirely. He notes that there are all sorts of ways to run afoul of the new law. For example, Jacobson said that a previously legal “assault weapon” under New York law must now for the first time be registered. He could see someone not realizing this and being stopped with a non-registered rifle on the way to the shooting range. That person would now be a felon if convicted and lose all gun rights.
In support of our customers in the state of New York, effective today we are cancelling all orders to any state or municipal government agency customers in the New York and will accept no more. While we can’t stop the trampling of rights that is occurring there, we certainly can make sure we don’t assist in it in any way going forward.
They do a substantial mail order business and are one of the only places to find some items. I’m proud of their stand and I hope the majority of firearms manufacturers will emulate Tim’s approach – or as others have called it, the Barrett approach in honor of Ronnie Barrett’s stand against California and their .50 BMG ban.
In a decision last Friday in New York State, the Appellate Division, Fourth Judicial Department reversed the dismissal of a case, Williams et al v. Beemiller, Inc., et al, involving the manufacturer of Hi-Point firearms, its distributor, and a licensed dealer under the Protection of Lawful Commerce in Arms Act. They remanded the case back to Superior Court for trial. The firm representing Hi-Point (Beemiller, Inc.), the Renzulli Law Firm, had won the dismissal of a similar case in Connecticut last year. Williams was represented in the suit by the Brady Center.
Attorneys for the distributor, MKS Supply, are undecided about whether to appeal or not but do believe the case will ultimately be dismissed.
Jeffrey Malsch, a lawyer for MKS, said he is reviewing the decision.
“We believe (the lower court’s ruling) was a courageous and legally
correct decision, but the Fourth Department was unwilling to follow his
well reasoned opinion,” he said. “Whether we appeal or not, we are
confident that ultimately the facts will contradict the baseless
allegations in the complaint and the case will be dismissed.”
This case involved a Buffalo, New York teen, Donald Williams, who was misidentified as a member of a rival gang and shot. The weapon used was a 9mm Hi-Point pistol which was purchased at a gun show in Ohio from a licensed dealer. It appears that it was a straw purchase even though the court documents allege the sale of the pistol to a New York State resident. However, under the Gun Control Act of 1968, an out of state resident cannot purchase and take direct delivery of a handgun. The handgun must be shipped to FFL in the purchaser’s home state who will then run the NICS check along with complying with local and state laws governing the purchase of a handgun.
While the court said it was undisputed that this matter falls within the PLCAA’s general definition of a “qualified civil liability action”, they said in this case one of the six permitted exceptions to a “qualified civil liability action” did apply.
Of particular relevance here, a “qualified civil liability action” does not include “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought” (15 USC § 7903 [5] [A] [iii] [emphasis added]).
The court went on to say that when reviewing a motion to dismiss, they must accept the facts as stated in the complaint and accord the plaintiffs the benefit of the doubt.
Applying that standard, we agree with plaintiffs that the court erred in dismissing the complaint inasmuch as they sufficiently alleged that defendants knowingly violated various federal and state statutes applicable to the sale or marketing of firearms within the meaning of the PLCAA’s predicate exception.
The statutes that the defendants are alleged to have violated are those involving straw purchases and trafficking of firearms illegally. They especially allege this with regard to the dealer Charles Brown who operated out of his home.
In October 2000, Brown allegedly sold Bostic and/or Upshaw handguns, including the gun used to shoot plaintiff, at a gun show in Ohio. According to plaintiffs, Brown knew or should have known that Upshaw and/or Bostic were purchasing the 87 handguns for trafficking in the criminal market rather than for their personal use because (1)they had purchased multiple guns on prior occasions; (2) they paid for the guns in cash; and (3) they selected Hi-Point 9mm handguns, which are “disproportionately used in crime” and have “no collector value or interest.”
To conclude, the court in general accepted all the allegations of the Brady Center on behalf of the plaintiff Donald Williams. They also are going to allow the Brady Center to go on a fishing expedition into Brown’s relationship with MKS Distributors.
Ultimately, I think this case will be dismissed against all the defendants but especially Beemiller, Inc. dba Hi-Point Firearms. Since they sold to an intermediary distributor, it will be hard to argue that they should be held responsible for the actions of a dealer over whom they had no control nor direct relationship.
This case was the topic of a recent segment of NRA News with Cam Edwards interviewing Steve Halbrook regarding the court’s decision. He thinks it will be ultimately dismissed whether on appeal from this court or in the Superior Court for Erie County.
The court’s decision can be found here. The Brady Center’s breathless press release can be found here.
The New York State Assembly passed A.1157-B – the microstamping law – today by a vote of 79 to 52. If passed by the State Senate it will go into effect in 2014. While they contend the cost to firearms manufacturers of the implementing microstamping will be minimal, industry sources disagree strongly.
Assembly Speaker Sheldon Silver (D) released this statement on its passage.
Assembly Speaker Sheldon Silver, Assemblywoman Michelle Schimel, and Codes Committee Chair Joseph Lentol today announced passage of the Crime Gun Identification Act of 2012 that would require all new semiautomatic handguns sold in New York State, by 2014, to be microstamped with a unique code which is transferred to shell casings when the gun is fired.
“Microstamping is a technological advancement that will not only help law enforcement officials investigate gun-related crimes, but will also act as a prevention tool to combat gun trafficking and reduce gun violence across New York,” said Silver. “Gun violence has caused great harm to many in our communities. This legislation would help law enforcement to bring the perpetrators of these violent crimes to justice and offer some measure of closure to the victims of these heinous acts. I commend Assemblywoman Schimel for championing this effort and all my colleagues for supporting this important public safety measure.”
Microstamping ensures that when a gun is fired, information identifying the make, model and serial number of the gun is stamped onto the cartridge as numbers and letters. This technology allows law enforcement to trace firearms through shell casings found at crime scenes, even if the gun is never found. This crime-fighting tool will provide law enforcement with rapid leads at crime scenes and will provide evidence to help investigate, arrest, and convict more criminals of gun-related offenses.
Assemblywoman Michelle Schimel, sponsor of the measure (A.1157-B), said, “This is the fifth year that I have sponsored and debated microstamping legislation, which has passed our house each year. In this session, the Assembly included a microstamping measure in our budget proposal, but regretfully, it was not included in the final state budget. As we wait for the state Senate to act on this bill, brave law enforcement officers are being struck down by gun fire and innocent victims continue to be wantonly murdered. We can’t catch their killers because they fire anonymous bullets. I urge the state Senate to put the public’s safety above the interests of extremists in the gun lobby and pass this important crime-fighting measure.”
“This legislation will prove invaluable,” said Lentol. “Not only will this bill help to bring closure to victims and survivors of gun violence, it will also deter illegal gun traffickers from supplying violent criminals with weapons. I strongly urge the state Senate to take action on this important measure.”
Silver and Schimel noted that this bill will not place any restrictions on lawful gun ownership or impair access to the lawful purchase of weapons. The certification process called for in the bill is entirely industry based. The manufacturers of semiautomatic handguns will incur minimal costs to adopt this technology.
The technology is unproven, it will be expensive for manufacturers to implement, and it can be easily defeated by either filing the firing pin or by scattering other cartridges at crime scenes. In other words, gun control advocates in the State Assembly have just passed a feel-good measure that will not have an impact on crime, will not track criminals, and will increase the cost of gun ownership. As to the last item, that is if firearms manufacturers even bother to sell semi-auto pistols in New York. This is probably the true goal – though unspoken – of the bill’s sponsors.
The New York State Assembly just passed the micro-stamping bill and sent it to the State Senate according to the NRA.
Micro-Stamping Legislation Passes New York Assembly
Thursday, May 26, 2011
On Tuesday, May 24, Assembly Bill 1157 passed in the New York Assembly by a 84 to 55 vote. The bill has been delivered to the state Senate and will be considered in the Senate Codes Committee.
Introduced by state Assemblyman Michelle Schimel (D-16), A1157 would require all current semi-automatic pistols in production and all newly designed semi-automatic pistols delivered to any licensed firearms dealer in New York to mechanically stamp an alpha-numeric or geometric code that would imprint the make, model and serial number onto the cartridge case when the gun is discharged. This bill would vastly increase the cost of these firearms and will likely result in firearms manufacturers not selling new handguns in New York. Of course, that is the ultimate goal of this legislation.
A1157 would also require micro-stamping on all new semi-automatic pistols sold in New York after January 1, 2013 or whenever the State Police receive notification from one or more “micro-stamp job shops” that they can produce micro-stamp structures on two internal surfaces of a semi-automatic pistol for $12 or less, whichever occurs later.
Gun control advocates know that micro-stamping is unproven technology, is easily circumvented, and will be very costly to gun owners. Desperate to pass a bill and create a loophole, this legislation would do nothing to safeguard gun owners from the costly, unproven gimmick we know as micro-stamping. Enemies of the Second Amendment are determined to pass New York City Mayor Michael Bloomberg’s pet project at any cost.
If you live in New York, please contact your state Senator and respectfully urge him or her to OPPOSE A1157. Contact information can be found here. Perhaps they can be the voice of reason.
New York State Senator Eric Adams (D-Brooklyn)wanted to show how easy it was to buy “high-capacity gun clips” in New York State. He visited two gun stores in the Albany area where they were sold. However, these were pre-ban AK-47 magazines which are legal to sell in New York State. So, in his “undercover” investigation, he buys a legal product and based upon this he is proposing to ban all standard capacity magazines.
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