Another way to Infringe
By Bohdan Rabarsky and Tom Reynolds
Governor Hochul recently signed into law bill S1985A / A544B sponsored by Democrat Senator Peter Harckham and passed along party line votes in both houses. Similar bills had been sponsored in previous sessions: in 2021/2022 (S5026 / A5455); and 2023/2024 (S2102 / A2413). Neither time did it make it out of committee, but this year was their magic number.
The new law states that, in some cases, the police “may” take possession of the weapon but in other cases the police “shall” take custody of firearms when responding to reports of family or domestic violence. Before the law was enacted, police officers under the ‘Safe Homes Act of 2020’ had the option of removing firearms that are in plain sight or are discovered during a consensual or lawful search.
(Note: The dictionary defines shall as: “used in laws, regulations, or directives to express what is mandatory.” It defines may as “used to indicate possibility or probability.” The 2nd Amendment says “…shall not be infringed” it does not say “may not be infringed.”)
Under this new law, there is no need for an ERPO (extreme risk protection order) or a judge’s court order, as long as the weapon is in plain sight or is discovered pursuant to a consensual or other lawful search for the police to take the weapon.
Firearms that can be taken include: “rifle, electronic dart gun, electronic stun gun, disguised gun, imitation weapon, shotgun, antique firearm, black powder rifle, black powder shotgun, or muzzle-loading firearm.” (Note: Imitation weapon? A toy can be seized?)
The law also states: An officer who takes custody of any weapon pursuant to this paragraph shall also take custody of any license to carry, possess, repair, and dispose of such weapon issued to the person arrested or suspected of such family offense.
Is all this unconstitutional seizure?
The 4th Amendment to our Constitution says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Constitution.laws.com says: The Fourth Amendment guards against the government’s ability to conduct unreasonable search and seizures when the individual party being searched has a “reasonable exception of privacy.”
The Fourth Amendment specifically requires a law enforcement agency to possess judicially sanctioned search and arrest warrants, which are supported by probable clause, to be administered before a person’s property can be inspected.
The individual’s property may be searched and seized without a warrant given the presence of certain circumstances, if: The individual is on parole or in a tax hearing; faces deportation; the evidence is seized from a common carrier; the evidence is collected by U.S. customs agents; the evidence is seized by probation officers; the evidence is seized outside of the United States; or probable cause is evident. (Note: none of these circumstances seem to apply to this new law.)
Far left Cornell’s Legal Information Institute opens a door to seizure when it writes the following about the 4th Amendment:
In general, most warrantless searches of private premises are prohibited under the Fourth Amendment, unless…there is probable cause to search, and there is exigent circumstance calling for the warrantless search.
Exigent circumstances exist in a situation where people are in imminent danger...
…warrantless search and seizure of properties are not illegal, if the objects being searched are in plain view.
SCOPE and other 2nd Amendment defenders are on constant alert for proposed or new laws that threaten 2A. A favorite tactic for gun grabbers is to hide their work behind a safety concern -when it suits their purposes. Potential domestic violence is a safety concern but the left uses it to open the door for future constitutional infringements under the façade of safety. The pressure in these situations is to err on the side of the accuser and if the 2nd Amendment is infringed in the process…the attitude is ‘bummer’.
The law also states that after one hundred twenty hours have passed (5 days) and if none of the following are in place (an order of protection; an extreme risk protection order; other court order prohibiting the owner from possessing such weapons; no court order is involved), “…the court or, if no court is involved, licensing authority or custodian of the weapon shall direct return of a weapon…and/or such license taken into custody pursuant to this section.”
This would seem to give the gun owner a path to have their guns returned. But this is New York State where many public officials feel free to work around or ignore even U. S. Supreme Court orders. What if the custodian of the weapon delays / refuses to return the weapon, even though there was no legal reason to seize the weapons? The gun owner could be looking at months or years instead of 120 hours to get their guns back. And count on thousands of dollars of legal costs to recover the weapons (and don’t forget the license - you won’t be able to buy a replacement). The ‘custodian’ uses taxpayer dollars to keep citizens from their weapons and feels free to do this since they are almost certainly free from personal repercussions.
Link to the actual bill: NY State Assembly Bill 2025-A544B
