New York Passed a Law Defining No-Guns Zones. Where Exactly? That’s Complicated.
“There’s going to be challenges” admits an NYPD lawyer who’s among those puzzling out how to apply hazy new rules passed after the Supreme Court’s gun decision.
A week after the Supreme Court ruled New York’s laws requiring “proper cause” to obtain a gun carry permit violated the U.S. Constitution, Albany lawmakers quickly crafted the Concealed Carry Improvement Act — 21 pages of new law to effectively restrict the number of legally permitted guns in public.
“Proper cause” is no longer in the equation. Instead, the new law tightened up the permit application process going forward and declared much of the state to consist of “sensitive locations” where legally permitted guns will still be prohibited.
But the devil is in the details, as the authorities who will be tasked with enforcing these new rules are finding out.
Take the case of Times Square. The new law specifies that “the area commonly known as Times Square” will be gun-free.
What exactly that means remains to be seen. The law leaves the definition of Times Square up to the “city of New York” and requires that, however it’s defined, the “area shall be clearly and conspicuously identified with signage.”
The job falls on the NYPD to do the defining and, ultimately, the enforcing, which includes filing criminal charges against anyone with a carry permit who happens to wander into gun-free “Times Square.”
Then there’s Central Park. The new law declares all public parks in the state of New York to be “sensitive locations” where carrying a firearm will be forbidden. Central Park covers 843 acres of Manhattan, has more than 60 entrances and hosts 25 million visitors annually.
“There’s going to be challenges,” said Oleg Chernyavsky, the NYPD’s assistant deputy commissioner of legal matters. “The existing law for ‘proper cause’ was over 100 years old. Any change to a law that predates all of us is going to be a challenge. I think we can do that.”
As for Times Square, he noted, “They left it to the locality to define the boundaries. That’s something that we’re going to be working through.”
Chernyavsky emphasized that the new law leaves most of the details up to the agencies that will be charged with making it work, creating “a floor and not a ceiling. If we see any gaps in the city, we can address those gaps through local law or agency rules.”
One of the bill’s key sponsors, Assemblymember Jeffrey Dinowitz (D-The Bronx), described the list of “sensitive locations” created in Albany as “a comprehensive list, but I think it’s a reasonable list of places where people who have concealed carry permits can’t bring their guns.”
He emphasized that a crucial aspect of the law is to provide permit applicants during newly required training sessions clear information about where they can and can’t carry their legally permitted guns — including whatever is defined as Times Square.
The challenges that lie ahead were predicted even before Justice Clarence Thomas issued the 6-3 majority opinion June 23 throwing out New York’s 111-year-old carry permit laws. During arguments last fall, for example, Chief Justice John Roberts asked if college campuses could be declared gun-free, and the plaintiffs’ lawyer conceded they could.
Justice Elena Kagan immediately pointed out how complicated that would be with a campus like New York University, where the buildings are scattered across a wide swath of the Village. “You know, anybody can walk around the NYU campus,” she observed.
The new law, it should be noted, declares as a “sensitive location” any “grounds, owned or leased, of any educational institutions, colleges and universities.”
In that same hearing, Barbara Underwood, the state’s solicitor general who argued to keep New York’s laws in place, warned that creating lots of “sensitive locations” could get complicated really fast.
“You end up having a very big difficulty in specifying what all the places are that have the characteristics that should make them sensitive,” Underwood said. “It has an attractive quality to it, but in implementation, I think it would be unsuccessful.”
The law itself goes into effect in just seven weeks, on Sept 1. Already an upstate Republican congressional candidate has filed suit seeking to block some provisions of the new law, and pro-gun attorneys are predicting more litigation, labeling the measure over-broad and vulnerable to court challenge.
“Almost every one of these things will be challenged,” Jerold Levine, a gun rights lawyer who for years has navigated the carry permit application process for clients, told THE CITY. “On ‘sensitive places’, they’re shooting for the moon. They know that they’re going to get challenged on this.”
Levine concedes the new law includes some reasonable restrictions. He supports its deeper background checks, required firearms training and a supervised live shoot, as well as prohibiting firearms in bars where alcohol can turn patrons into amateur gunslingers.
But he has real concerns about a key aspect of the law: that all private-sector locations are now presumptively gun-free “restrictive locations,” where permitted guns are not allowed unless the property owner specifically declares the premises to be gun-friendly.
“Presumptively making all private establishments off limits to guns and forcing the owner to put a sign in the window and making him a pariah in their neighborhood ?” Levine posited. “This is all going to be challenged.”
The law declares that property owners who want to allow guns must either post “clear and conspicuous signage” or “otherwise give express consent” allowing for permitted guns on their premises.
Dinowitz acknowledged that the permission to bring a gun on to a property could be given verbally, but the owner would have to apply that permission consistently.
“If somebody gives verbal consent to people, they have to do it to everybody. They just can’t pick and choose, because then you get into issues of discrimination,” he said.
Gov. Kathy Hochul herself introduced erroneous information when signing the bill into law July 1. Here’s how she described the ability of proprietors and landholders to opt into allowing firearms: “This gives power to business and property owners to decide whether or not they want guns in their establishments, which could include bars, restaurants, shops or grocery stores. Property owners who decide to allow concealed carry will have to disclose with signage saying concealed carry is allowed on the premises.”
But the law itself specifies that any establishment with an on-premises liquor license — such as bars and restaurants — is automatically considered gun free with no exceptions. Asked about the apparent contradiction, Hazel Comptron-Hayes, a spokesperson for Hochul conceded that bars and restaurants are not eligible for opt-in.
And how will NYPD patrol officers answering calls know whether a building they’re entering in response to a 911 call is gun-free or gun-friendly?
“Are we going to have a map of every business or every location that decided to allow guns versus not?” the NYPD’s Chernyavsky asked.
“I think it’s pretty hard to manage in a city this large with such a scheme, especially when you have a change in tenancy. I think the reliability of that is hard to imagine. If we’re called to a location and we find an individual who’s licensed to carry a gun with a gun and the question is, is this a location where you’re allowed to carry a gun? It’s like anything else — it’s an investigation.”
Social Media Review
The new law also toughens up that application process, requiring applicants to provide the State Police with a list of all their current and former social media for the prior three years, which law enforcement can scour for indications of threatening language to assess the applicant’s “character and conduct.”
Those with a history of violence will be disqualified, along with applicants convicted of weapons possession or alcohol-related misdemeanors. Applicants must provide character references, and the State Police will do deep criminal history and background checks, as well as check permit holders on a monthly basis going forward for records of criminal charges.
The state Division of Criminal Justice Services (DCJS) will also be required to perform these monthly checks for what the law describes as the “mental health” records of permit holders and applicants.
State officials said that will likely include records of involuntary commitments to mental health facilities by judges or individuals who have been red-flagged by mental health professionals as a danger to themselves or others under the state’s 2013 gun control law, the SAFE Act.
Janine Kava, a spokesperson for DCJS, said the agency is “reviewing the legislation and we really need to take a close look at this to figure out what it is we need to do that allows us to create a system that meets the obligations of the law.”
In announcing that she’d signed the law July 1, Hochul said she believed it will withstand expected legal challenges, stating, “I want to make sure that we’ve done everything we can to protect the citizens of this state. So I will go right up to the line (and) will not cross the line.”
Chervyavsky of the NYPD believes the Concealed Carry Improvement Act, as currently written, will survive intact, but will also likely wind up in court.
“I think it will be manageable and like any other law, the state’s already acted and created a law we think is in conformance with the SCOTUS decision,” he said. “And like everything else, every law is subject to challenge.”
Assemblymember Kenny Burgos (D-The Bronx), another co-sponsor, predicted the law will ultimately provide New Yorkers with a sense of security without running afoul of the Supreme Court ruling.
“Much like everything else, there will be a learning curve,” he said. “Will we have small hiccups here and there? I think that happens with all new laws.”