“Start Spreading the News!” New York to finally allow part time residents to get pistol permits.

By Ian K. Friedman, Esq. 

It is rare to find something gun related in the news coming out of New York State that could be considered positive. However, October 15, 2013 will go down as a day that was a marked exception to the rule. For nearly 20 years, New York State and New York City (which for purposes of firearm laws should always be treated as a separate entity) have denied part time residents of the state the ability to apply for and be granted a New York or New York City Pistol Permit. This is now no longer the case thanks to the great work of Attorney Daniel L. Schmutter who is lead counsel for Alfred Osterweil in the matter of Osterweil v. Bartlett.

Mr. Osterweil was denied a New York State Pistol Permit because the State contended he was no longer a resident, since he was changing his primary residence to Louisiana, while still maintaining strong ties to the community, including secondary home in New York. The reason for this denial is the previous interpretation of NY Penal Law § 400 (3)(a), which covers firearms licensing, held that domicile (effective banning anyone who owned a part time residence, but made their permanent domicile elsewhere) in New York State was required to be able to be granted a New York State (or New York City) Pistol Permit. Osterwil sued claiming violation of both his Second and Fourteenth Amendment rights under a 42 USC § 1983 claim. This claim was initially dismissed by the District Judge.

However, on appeal to the Second Circuit Court of Appeal, the New York State Attorney General, suddenly changed his position and argued that the law did not actually contain a domicile requirement, in an attempt to prevent the matter from being decided on constitutional grounds. The Second Circuit sent a certified question to New York Court of Appeals asking:

Is an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere eligible for a New York handgun license in the city or county where his part-time residence is located? (Osterweil v Bartlett, 706 F3d 139, 145 [2d Cir 2013])

The New York Court of Appeals decided to overrule “an Appellate Division decision, Mahoney v Lewis (199 AD2d 734 [3d Dept 1993]),” which held that “as used in this statute the term residence is equivalent to domicile” (id. at 735).” This was one of the reasons given by Judge Bartlett, along with 400 (3)(a), and finally as a lawful regulatory measure under District of Columbia v. Heller (554 U.S. 570 [2008]). It is clear that the New York State Attorney General was fearful of losing a case on Second and Fourteenth Amendment grounds and decided to concede that domicile was not the same as residence and concede a loss by technicality.

The New York State Pistol Permit is a process that can vary greatly from county to city to village (in short any and all political subdivisions in the state) in terms of what a person is asked on the application and how they can apply. In counties outside of the five Boroughs of New York City, a New York State Pistol Permit is valid in the entire state and can be range from a Restricted one limited to Target Shooting to Unrestricted Concealed Carry (this is not the case in New York City). In the vast majority of Counties, the approval process is headed by a Judge (the Defendant in this case was “George R. Bartlett III, the Schoarie County Court Judge and also the county’s licensing officer”); in a few areas a Sheriff or Chief of Police, and in NYC, the NYPD, handle the requests.

The process is also extremely expensive and invasive when compared to Pennsylvania’s more modern and liberal rules for obtaining a License to Carry Firearms (and of course an LTCF is not required to purchase a firearms). It is a process that for some will take more than a year to do and may require legal action to overturn a denial. It may also only result in a person being given a restricted license vs an unrestricted one (similar to the various gradings Massachusetts has in their firearms licensing system).

We at Prince Law Offices, P.C. can help residents of other states, who wish to obtain a New York State or New York City Pistol Permit, and who are part time residents of New York State and New York City. Now, it is possible to be a resident of Pennsylvania, New Jersey, Delaware, and every other state in the Union and no longer be denied your right to own (and carry) handguns in New York State (and own handguns in New York City).

As a licensed member of the New York (along with Pennsylvania) State Bar, I am prepared to assist in all matters related to New York Firearms Law: including improper searches for firearms “loaded with 8 rounds,” Questions about NY SAFE Act Compliance for both consumers and industry, trusts to ensure that grandfathered “Assault Weapons” can be safely transferred out of state and not confiscated by the State of New York, upon your death, and any other Firearms Law related matter.

Advertisements

3 Comments

Filed under Firearms Law, Gun Trusts, Pennsylvania Firearms Law

3 responses to ““Start Spreading the News!” New York to finally allow part time residents to get pistol permits.

  1. Pingback: Legal Greetings!

  2. PTN

    The recent court ruling relative to part-time New York State residents being able to obtain pistol permits sounds great – in theory. However, recent calls to pistol permit office in a Western New York county got no positive response – they were not aware of the ruling and I was informed that t in nhey were only accepting pistol permit applications from permanent NYS residents – part time residents need not apply. They said I should contact NY State Police HQ’s in Albany if I wanted more detail.

    Given this less-than-helpful exchange with the permitting agency I would need to deal with, do you have any idea when the court ruling will actually be codified and be implemented on a county-by-county basis in New York State?

    Like

    • Ian K Friedman, Esq.

      It is entirely possible that the Pistol Permit Office is unaware of the changes or doesn’t want to deal with it (which by the way is not an option). The ruling itself is valid New York State Law. It is possible they need to be given a copy of the ruling, along with a letter explaining the significance of it, to help give them “further guidance.” We do offer services related to New York Pistol Permits. If you’re interested please contact our office at 610-845-3803.

      Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s