By Roger Katz & Stephen D’Andrilli
New York, N.Y. –-(Ammoland.com)- The New York public, as with police officers themselves, holds lovingly, perhaps, or, perhaps, not so lovingly, to the adage: “once a ‘cop’ always a ‘cop.’”
The adage suggests, among other things, that no one – even a virulent antigun zealot – takes serious exception, if at all, to a police officer having access to and possession of firearms that the NY Safe Act bans outright, calling such weapons, pejoratively, ‘assault weapons.’
So, most folk, including, and especially, police officers themselves, would maintain that the most restrictive and revolting sections of the Safe Act ought not apply to them even though, for most everyone else, those sections do. But does the normative prescription coincide with actual fact?
What does the NY Safe Act actually say about possession of so-called “assault weapons” by New York police officers?
The New York Safe Act Section 37, as codified in NY CLS Penal § 265.00(22), and, specifically as codified in NY CLS Penal § 265.00(22)(h) says, in pertinent part, that any firearm defined as an ‘assault weapon’ that was lawfully possessed prior to the enactment of the New York Safe Act, namely prior to January 15, 2013, “may only be sold to, exchanged with or disposed of to a purchaser authorized to possess such weapons or to an individual or entity outside of the state. . . .”
So, we ask: Are New York police officers “authorized to possess such weapons?” Well, fortunately, for current, active duty sworn New York police officers, the ban on the acquisition of and possession of firearms defined under the NY Safe Act simply doesn’t apply to them. How do we know this?
The New York Safe Act does not, itself, provide us with guidance, so we have to dig deeper into the New York Penal Code to find an answer. We look to NY CLS Penal § 265.20, titled, aptly enough, “Exemptions.” NY CLS Penal § 265.20, talks about banned weapons that no one can lawfully possess unless that person falls within the exemption. Among those banned weapons are those defined as ‘assault weapons’ under the NY Safe Act, and NY CLS Penal § 265.20 lists exceptions to weapons’ bans. One such exception exists for New York police officers. But, how is the expression, ‘police officer,’ defined? NY CLS Penal § 265.20, itself, does not say but that Statute refers us to another Statute that does.
NY CLS Penal § 265.20(a) (1) (b), refers us to NY CLS CPL § 1.20. We find that NY CLS CPL § 1.20(34) provides us with a detailed list of and exposition of the definition of ‘police officer’ under New York law. In fact, there are close to two dozen definitions for the expression, ‘police officer.’ So, if a person falls within the definition of ‘New York police officer,’ that officer is legally permitted, in his personal capacity – that is to say, outside of his professional duties as a “police officer” – to acquire and possess firearms defined as ‘assault weapons’ even while the average, law-abiding New York resident cannot.
But, the $1 million question is this: can a qualified, retired police officer acquire, own and possess firearms defined as ‘assault weapons?
In other words, does New York law draw a distinction – a bright line – between “current, active-duty sworn police officers” and “retired qualified police officers?” Well, we remark that retired, qualified police officers can certainly continue to possess, lawfully, those weapons they acquired lawfully before enactment of the NY Safe Act on January 15, 2o13. And that, of course, is true, as well, for the average, law-abiding New York resident who has never worked in law enforcement. But, what about “assault weapons” that the New York officer acquired after the Safe Act took effect? Can a New York police officer – now that he is retired – continue to possess, lawfully, those “assault weapons,” he or she acquired while actively employed as an officer but which were acquired after the Safe Act took effect, or must the officer surrender those “assault weapons?” Curiously, New York law is silent on that question.
We know this much: once a police officer retires, that officer is placed on the same legal footing as any other law-abiding New York resident, who never worked in law enforcement.
Simply stated, the retired, qualified police officer cannot lawfully continue to acquire and possess firearms defined as ‘assault weapons’ under the NY Safe Act.
And, why is that? Once again, we turn to the operative Section of New York law: NY CLS CPL § 1.20. The language of that Section strictly implies that the police officer is current or active-duty. Curiously, early New York Legislation, going back to the 1990s did include language that permitted retired, qualified police officers to lawfully own and possess weapons defined as ‘assault weapons’ as the definition for such weapons existed at that time. Yet, the fact that such language was never finalized into law should tell New York police officers – whether current, active-duty or retired – that the drafters of NY Safe had no desire to revisit the issue and clearly did not wish to extend the prerogative of “assault weapon” possession to retired police officers. Moreover, we have come across no other law in the Consolidated Laws of New York that might otherwise allow a retired, qualified police officer to continue to acquire and possess such “assault weapons” or, for that matter, to continue, lawfully, to possess such “assault weapons” the officer did acquire, lawfully, while in law enforcement but subsequent to enactment of the NY Safe Act.
The Bottom line is this:
if you are a current, active-duty sworn police officer and you are contemplating retirement in the near future and you wish to acquire one or more “assault weapons” for your personal collection, we strongly urge you to acquire those firearms now, because, once you retire, you will not be able, lawfully, to do so.
That said, whether you are permitted to retain such weapons, after retirement from law enforcement, is, at this point in time, an open question.
Read the complete long form article here at Arbalest Quarrel : https://tiny.cc/s31n3x
About The Arbalest Quarrel
Arbalest Group created `The Arbalest Quarrel’ website for a special purpose. That purpose is to educate the American public about recent Federal and State firearms control legislation. No other website, to our knowledge, provides as deep an analysis or as thorough an analysis. Arbalest Group offers this information free.
Under Leosa or formally called HR 218..retired Leo can own and carry so called asualt weapons. As long as they qualify on them.
I am a retired law enforcement officer and carry all the laws in my car with me just in case.
Thank you
Sal Waters
They collaborated in enforcing this tyranny, so they should ahve to live under it too!
Traitors!
Fantastic blog post ! I was fascinated by the analysis . Does anyone know if my assistant might be able to acquire a sample NY DTF CT-34-SH version to work with ?
Hi Charlsie Handel . my work colleague got ahold of a sample NY DTF CT-34-SH form at this site https://goo.gl/17euoW
So glad I escaped from NY State LI Metro area back in 1989 to North Carolina.
You all come on down and bring all your firearms.
We don’t have any stinking commie bastard magazine capacity limits and you can own suppressors too.
I live in NY metro area. Ready to retire from the Courts soon. Where’s a good place to move in NC? I hate this Communist shithole!!!
@Kurt, I almost forgot. retirementliving.com
In reference to New Jersey arresting LEOs and retired LEOs from out of state who carry in N.J., it is my understanding that N.J. does this based on the fact they restrict the type of ammo carried, you are not allowed hollow points as an example, otherwise you may carry concealed. Don’t get caught with hollow points, even not loaded in a firearm, but in your possession if you’re armed, I’m told the fine in addition to the costs associated with arrest are $1000 a round! Aside from that is the question is how can N.J. apply such restrictions to… Read more »
Wayne, I have done some preliminary research on LEOSA. What strikes me immediately is the paucity of case law on the Act and academic literature about the Act. But, I can say this: the applicable Statutes are 18 USCS §§ 926(B) and (C). One Statute covers current active duty police officers and the other qualified retired police officers. The language in the two U.S. Code Sections is essentially identical. There are, in each of the Statutes, only two limitations on the right of a current qualified active duty police officer and a qualified retired police officer to carry a firearm… Read more »
Legally owned personal property (i.e. ‘so called assault weapons’) that was owned prior to January 15th, 2013 is now illegal via government fiat? Did the citizens of New York vote for this? Do Democrats want to make felons out of law abiding people who have a penchant for semi-automatic firearms?
Janek, in response to your question, the majority of New York residents and voters apparently voted for many Legislators who take exception to civilian citizen ownership of firearms, which entails that these Legislators do not respect the import and purport of the Second Amendment. So, until such Legislators are voted out of Office and replaced with individuals who respect the Bill of Rights — all Ten of them — then, legislation like the New York Safe Act is what you can reasonably expect. Now, as to the language of the Act, be advised that, in accordance with Sub-division 16-a of… Read more »
Paul H Starck, we will be doing our own analysis of the import of and impact of LEOSA in an upcoming article, to be posted in the Arbalest Quarrel. And, I will take a look at the Court opinion you refer me to on the LEAA link you kindly provided me. Thank you. I can’t help, though, but reflect on something a bit strange here, in respect to the very need for LEOSA; for it is the States, through the Tenth Amendment, certainly, that wield broad police powers, and the federal government will generally defer to the States on police… Read more »
I am a retired NYS Trooper living in North Carolina – pls comment on the following: “Retired cops federal law withstands test to carry anywhere in the USA” in favors; when you see that men get rich more easily by graft than by work, and your laws no longer protect you against them, but protect them against you… you may know that your society is doomed.” … Ayn Rand On Sep 18, 2015 PRESS RELEASE Court Rules Cops Can Carry Guns … Nationwide! SPRINGFIELD, Va., Nov 18, 2008 /PRNewswire-USNewswire via COMTEX/ — Good Guys Can Fight Back – Criminals Beware!… Read more »
People still in NY need to do the boot scoot boogie !….LEAVE ! I mean we’re not talking about a paradise here,it’s a sh*thole ! I can’t believe that grown adults,law abiding citizens, are allowing these parasites to dictate to them what they can and can not have !
Tex, you are assuming of course that New Yorkers care enough to act against the Legislators that create these draconian gun laws. Keep in mind, that many New Yorkers — not all, by any means, but certainly all too many — don’t want to possess firearms and they don’t want their neighbors to possess firearms either. Too many New Yorkers and, for that matter, too many Americans across this Country, buy into the myth that guns are “evil” and that a person is more likely to shoot himself or herself in the foot than it is that the person is… Read more »
Now does thoughs protections and exceptions to the safe act extend to Peace Officers in NYS? or only those law enforcement officers who hold Police officers status ?
Obione, the following, in a very large “nutshell,” is responsive to your question: Those officers, categorized as “peace officers,” in New York, do fall under the general exemption to the “assault weapon” ban, as is true for “police officers.” The basic Exemption Statute is NY CLS Penal § 265.20. However, one has to dig deeper into the morass of the Consolidated laws of New York to ascertain whether that exemption to the ban on possession of “assault weapons,” and to possession of other illegal weapons for that matter, means exactly what it says. For, as it turns out the Exemption… Read more »
So in NYC as a retired Federal LEO I lose my FEDERAL right to own and carry a weapon if I move to NY? How is this possible? I have carried a weapon daily for over 30 years and still to this day carry my Federal Credentials that meet the Federal requirements for daily carry and now you are saying that because I “retired” and want to live in NY I have to give up my FEDERAL rights offered to me by LEOSA?? I “might” be able to understand not buying in NY but if I buy it will I… Read more »
Yup welcome to the SAFE act and Sullivan act that the courts refuse to overturn because of public safety.
Eric, I’m NOT so sure you are correct. Case law re: LEOSA does allow proper
retired LEO’s to carry in all 50 states (plus). That includes NY State.
Dr Dave, NY CLS Penal Section 400.00 provides an exception for retired qualified police officers and retired qualified federal law enforcement officers. So, the Officer who decides to live, in his or her retirement, in New York, can keep a weapon and that officer is provided with an unrestricted full carry license under New York law, apart from possible application of the federal LEOSA. And NY CLS Penal Section 265.00 sets forth that a current active-duty sworn police officer or current active-duty sworn federal law enforcement officer who was issued or purchased a weapon in the performance of his “official… Read more »
Can an active duty police officer still purchase “assault weapons” legally? And can they keep them after they retire? Also, does the state require that they be registered? Which of course I wouldn’t do.
Rob, “yes.” A current, active-duty New York police officer can lawfully continue to acquire for himself or herself, in his or her personal capacity, for his or her personal collection, banned weapons including those banned weapons, defined as ‘assault weapons’ under the Safe Act, even as most other New York residents cannot. As for your question, whether a retired, qualified police officer can retain possession of those firearms that the officer acquired lawfully during his or her tenure as an active-duty police officer, that is an open question. We have found no New York law that addresses that situation. And,… Read more »
So buy what you can now and take your chances after retiring? I’ve gotten different answers from everyone. One gun shop said I could buy now but had to get rid of it the day I retire.
Rob, You said: “So buy what you can now and take your chances after retiring? I’ve gotten different answers from everyone. One gun shop said I could buy now but had to get rid of it the day I retire.” The difficulty is, as I said, previously, that New York law doesn’t address the issue. That is why you are getting, seemingly, conflicting answers. Still, consistent, with what New York firearms’ laws exist, the party you spoke with at the gun shop is taking a conservative approach to an issue that is a conundrum. And, he isn’t incorrect. This is… Read more »
The Laws of New York State do not ‘Trump” Federal law. “Qualified” active and retired officers from NYS can have their cake and eat it too, when it comes to ownership of assault style firearms. The Law Enforcement Officers Safety Act (LEOSA) of 2004 and its amendments provide those active and retired officers qualified to the LEOSA standard to posses and carry any firearm anywhere in the USA, including territories and possessions (PR & Guam), except those weapons prohibited by Federal Law. So, those active and retired officers who qualify to the LEOSA standard, including those in NYS would be… Read more »
J Altavia, New York law doesn’t trump the U.S. Constitution either; and the U.S. Constitution stands above both State law and federal statute. But, as I explained in my response to Tim’s comment, above, the import of the Second Amendment doesn’t prevent the drafters of restrictive firearms’ laws from enacting laws that, in our opinion, are inconsistent with the language of the Second Amendment. Now, concerning the import of the “Law Enforcement Officers Safety Act,” the Arbalest Quarrel will be writing about the impact of that Act, in an upcoming article. We believe that the salient issue goes to the… Read more »
Roger, I believe the federal government’s intent is to preempt the states completely. As it stands now, the law is ambiguous, but in our (Law Enforcements) favor. I look forward to your detailed analysis on the issue.
As a retired LEO no one likes perks more than me, I also despise this business of police being the “chosen few”, whether they are current or retired, regarding being able to carry where ever they go or for anything else. This is nothing more than class warfare.
Behind enemy lines in Ct. We have the same problem here.Democratic collectivists are the majority in the house and senate. Collectivist, Rino’s sided with them. Sold out ‘We the People” on the phony alter of public safety. In reality both parties hate what the Constitution, Bill of Right’s, and the Founder’s Republic ,stands for. Generations ago my family left Italy, Great Britain and Germany. To get away from tyrant’s and tyrannical governments. Plus the right of yeoman to own land . And control our own destiny’s. Law abiding, vetted ,gun owner’s are labeled the lunatic fringe. And have become newly… Read more »
Are you sure about the following?
We know this much: once a police officer retires, that officer is placed on the same legal footing as any other law-abiding New York resident, who never worked in law enforcement.
DRuta, in the context of the Article, the answer to your question is, “yes.” Retired, qualified police officers are placed on the same legal footing as any average, law-abiding New York resident. Retired, qualified police officers are not permitted to continue to acquire firearms defined as “assault weapons” to add to their personal collection. That prohibition does not extend to “assault weapons” they may happen to have acquired lawfully, prior to enactment of the Safe Act, and prior to the time they became “police officers” as that expression is defined in New York law. But that, of course, is true… Read more »
As it should be… No exceptions for cops, retired or otherwise. The only way to do away with these tyrants & their draconian laws is not to create different classes of people. Either cops can’t have them or we all can have them… We can’t let politicians chip away at our rights just because some people think some things are scary or should only belong to the elite class.
The Sullivan Act is proof that NYC and many parts of NY don’t acknowledge the Constitutional rights. That was passed in 1911 and courts would not hear cases related to it. The SAFE Act just adds to it. We need to pass laws to punish those that infringe on rights . Those that claim public safety and national security would be the first jailed.
If its legally posessed at any time, one could make an argument that the constitution of the us prohibits seizure of property and under that, a police officer can not be forced to give up his or her property upon retirement. If it was leagly purchased
Tim, the sad truth is that all too many New York Legislators do not allow the U.S. Constitution to get in the way of their desire to hamper the law-abiding American’s ability to acquire, own, and possess firearms. And such disdain as these Legislators have for the Second Amendment and for one’s property rights in his or her firearms is reflected in the laws they pass. The Arbalest Quarrel has written quite extensively on the issue of the notion of a personal, definable property interest in one’s firearms.
I am curious as to what constitutes an “assault weapon” under the Safe Act. The definition of an “assault rifle” is a select – fire rifle capable of fully automatic fire. If this is the case then these rifles will also fall under NFA regulations as well. Just my 2 pennies. . .
Thank you for your question, Dan. In the Arbalest Quarrel we have written extensively on what constitutes an “assault weapon” under the NY Safe Act. If you have an opportunity, we encourage you to take a look at our site and read our articles. We have, as well, explained, very clearly, the distinction between an “assault rifle,” which is a military term of art, and the “assault weapon,” which is nothing more than a fiction created by antigun groups to whittle away at the types of firearms available to honest, law-abiding Americans. We feel, that one goal of these groups… Read more »
So, basically, an “assault weapon” is whatever the current fascist in charge wants to call an “assault weapon”
New York, you get what you vote for. That’s why I left.
So you are saying, that while you lived here, you voted for the fascists? I hate the argument that you live in NY so you elected the idiots in office. No I didn’t, the liberal cesspool of NY City elects these fools that give them the free stuff they want, not the rest of the state.