Will Gun Owners Be Arrested if They’ve Been Convicted of Making Too Much Noise?
A new field guide released just last month for members of the New York State Police contains some very vague verbiage, especially when it comes to application of the law in regards to arrests and possible seizure of weapons.
The guide contains a section labeled, Effect on Police (Assault Weapons), in which it is explained that assault weapons can be properly registered only by persons meeting eligibility to possess a rifle or shotgun. If that person does not qualify, their ‘assault weapon’ will be seized by their local law enforcement agency.
Disqualifiers include orders of protection involving that person, or a “mental health disqualifier.”
A mental health disqualifier as we have seen in the past can include prescriptions to antidepressants. Worse, this guide for Mental Health Providers shows that these disqualifiers can be reported by “unlicensed” psychologists (see below).
In the new State Police guide, in a section dubbed, Assault Weapon Denial Procedures –Law Enforcement Responsibilities, one interesting paragraph discusses confiscation methods for individuals due either to the mental disqualifier, or who may be “ineligible due to a criminal conviction.”
If the person is determined to be ineligible due to a criminal conviction, the local law enforcement agency assigned will recover the weapon using whatever procedures are currently in place for members of that agency upon discovering that a convicted felon is unlawfully possessing a weapon. In such case, the weapon is automatically classified as a nuisance weapon and the weapon will be destroyed. Unlike the other situations, possession of any rifle or shotgun by a person who has been convicted of a felony or serious offense is a crime for which an arrest may be made. As such, there is no opportunity for the person to arrange for a lawful sale or transfer of the weapon.
While not a legal manual and simply a guide, the fact that State Police are receiving instruction that a person who has legally obtained a weapon, may have that weapon confiscated if they are reported by unlicensed workers, or if they have been convicted of a serious offense has to be concerning.
Why? The phrase “serious offense” on its own leaves a vague interpretation for what the police officers can do in such scenarios, but the legal definition of “serious offense” in New York Penal Law should be even more alarming.
The legal definition of a “serious offense” when it pertains to firearms and other dangerous weapons can be found in Section 17 of Article 265 in the NY Penal Law:
17. “Serious offense” means (a) any of the following offenses defined
in the former penal law as in force and effect immediately prior to
September first, nineteen hundred sixty-seven: illegally using, carrying
or possessing a pistol or other dangerous weapon; making or possessing
burglar’s instruments; buying or receiving stolen property; unlawful
entry of a building; aiding escape from prison; that kind of disorderly
conduct defined in subdivisions six and eight of section seven hundred
twenty-two of such former penal law; violations of sections four hundred
eighty-three, four hundred eighty-three-b, four hundred eighty-four-h
and article one hundred six of such former penal law; that kind of
criminal sexual act or rape which was designated as a misdemeanor;
violation of section seventeen hundred forty-seven-d and seventeen
hundred forty-seven-e of such former penal law; any violation of any
provision of article thirty-three of the public health law relating to
narcotic drugs which was defined as a misdemeanor by section seventeen
hundred fifty-one-a of such former penal law, and any violation of any
provision of article thirty-three-A of the public health law relating to
depressant and stimulant drugs which was defined as a misdemeanor by
section seventeen hundred forty-seven-b of such former penal law.
Disorderly conduct is considered a serious offense. Some charges in the New York Penal Law for disorderly conduct include making unreasonable noise, using obscene gestures in public places, or obstructing traffic. Here is a link with reference to Section 722 of the formal penal law mentioned above. Under the previously linked court ruling, “disturbing” or “annoying” others can be considered disorderly conduct.
The term ‘annoying’ may sound familiar, as the Senate recently passed a law making use of the same terminology, and essentially making it a felony to “annoy” a police officer.
Does this mean that State Police officers now have the ability to confiscate weapons based on ill-defined terminology? A disorderly conduct violation from your past, which may simply equate to the use of obscene language or annoying a police officer, can give law enforcement the ability to infringe upon your Second Amendment granted right to bear arms?
The complete field guide can be seen below: