April 2013 / The New York County Lawyer 15
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Gun Control ( Continued from Page 14)
support the proposition that a significant number of mass shooters had previously been convicted of a violent or gun-related misdemeanor. But since the available data is incomplete, the Report suggests that, should the CDC be re-funded to study gun violence and/or should the restrictions on ATF’s ability to collect and disseminate data be lifted, further inquiry into shooters’ prior misdemeanor convictions is warranted to determine whether Congress should consider an expansion of prohibited owners. Jacqueline C. Wolff, Esq., a partner and Co-Chair of the Corporate Investigations and White Collar Defense Group at Manatt, Phelps & Phillips, LLP, is a member of the Board of Directors of the New York County Lawyers’ Association.
References: 1 A “mass shooting” is defined by the FBI as involving four or more victims, excluding the shooter, with no “cooling off period” between victims.” The Report used this definition but excluded killings of multiple family members by another family member and committed in the home as well as gang or drug related shootings. 2 These shootings resulted in 642 victims; over half of which were fatalities. At least eight-seven percent (87%) of these mass shootings involved semiautomatic weapons or assault weapons and at least fifty-one percent (51%) involved extended or high capacity magazines. In at least seventy percent (70%) of the mass shootings the weapons had been purchased legally, approximately half of those purchases from licensed dealers which should have entailed background checks. Of the remaining shooters most would not have passed effective background checks, had they been required. For more information as to how the Report arrived at these numbers, please see Report. 3 554 US 570 (2008) 4 18 USC §§ 922(b), (d). 5 Regulations governing the operation of the NICS are issued by the Department of Alcohol, Tobacco and Firearms (“ATF”), and contemplate that most records in the index will come from federal agencies, with some limited number being provided by state and local law enforcement agencies on a voluntary basis. Since 2007, the federal government has sought to incentivize states to provide thorough and complete records to the NICS by tying “Justice Assistance Grant” funding to states’ compliance with record completeness goals and authorizing new grant programs to reward improved provision of information to the NICS. 28 CFR § 25.4. The Supreme Court struck down an attempt by the federal government to compel state law enforcement personnel to assist the background checks in Printz v. United States, 521 U.S. 898 (1997). 6 18 USC § 922(t). 7 18 USC § 922(z). 8 See e.g., http://smartgunlaws.org/ammunition-regulation-policy-summary/; Laurie Ure, “Democrats propose limits on online ammo sales,” CNN.com (Jul. 30, 2012) available at http://www.cnn.com/2012/07/30/politics/democrats-
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ammo-sales. 9 18 U.S.C. § 921(a)(21)(D) 10 Assault Weapons Ban of 2013, S. 150, 113th Cong. (2013). 11 “Large capacity ammunition feeding device” is defined in the bill to mean “a magazine, belt drum, feed strip, or similar device, including any such device joined or coupled with another in any matter, that has an overall capacity of, or that can be readily restored, changed or converted to accept, more than 10 rounds of ammunition,” excluding “an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition.” Assault Weapons Ban of 2013, S. 150, 113th Cong. (2013) § 2. 12 Stop Online Ammunition Sales Act of 2013, S. 35, 113th Cong. (2013) 13 Ammunition Background Check Act of 2013, S. 174, 113th Cong. (2013). 14 Gun Show Background Check Act of 2013, S.22, 113th Cong. (2013). 15 “Columbine gun-buyer unaware of motives,” United Press International, (Jan. 27, 2000). 16 See Department of Justice Bureau of Justice Statistics, “Background Checks for Firearm Transfers, 2009 - Statistical Tables,” (Oct. 20, 2010) at Table 1. 17 Stop Illegal Trafficking in Firearms Act of 2013, S. 54, 113th Cong. (2013). 18 Gun Trafficking Prevention Act of 2013, S. 179, 113th Cong. (2013). 19 Gun Trafficking Prevention Act of 2013, H.R. 452, 113th Cong. (2013). 20 15 U.S.C. §§ 7901-7903. 21 PLCAA was recently successfully challenged in Williams v. Beemiller, Inc.,22 wherein the N.Y. Appellate Division, 4th Department, ruled the law cannot immunize a manufacturer supplying a gun trafficking ring with 181 Saturday Night Specials. 23 See, e.g., United States v. Cruikshank, 92 U.S. 542 (1876); United States v. Miller, 307 U.S. 174 (1939). 24 District of Columbia v. Heller, 554 U.S. 570 (2008). 25 McDonald v. Chicago, 561 U.S. 3025 (2010). 26 See, e.g., United States v. Rene E., 583 F.3d 8 (1st Cir. 2009) (rejecting argument that ban on juveniles possessing handguns violates Second Amendment); Kachalsky v. County of Westchester, 708 F.3d 81 (2d Cir. 2012) (upholding prohibition on concealed carry); United States v. Bledsoe, 334 Fed. Appx. 771 (5th Cir. 2009) (prohibition on straw purchases); United States v. Scroggins, 551 F.3d 257 (5th Cir. 2010) (prohibition on possession by felons); United States v. Skoien, 587 F.3d 803 (7th Cir. 2009) (prohibition on possession by individual with domestic violence misdemeanors); United States v. Henry, 688 F.3d 637 (9th Cir. 2012) (prohibition on machine guns). 27 Heller, 554 U.S. at 627. 28 People v. James, 174 Cal. App. 4th 622, 674-77 (Cal. App. 3rd Dist. 2009). 29 Id. at 676. 30 Heller v. District of Columbia, 680 F.3d 1244,1262-64 (D.C. Cir. 2011). 31 Id. at 1263. 32 Id. at 1263-64. 33 27 CFR § 478.11 (including in definition of “mental defective” individuals determined by a court to be a danger to themselves or others). Michael Luo, “U.S. Rules Made Killer Ineligible to Purchase Gun,” New York Times (Apr. 21, 2007) at A1. 34 Printz v. United States, 521 U.S. 898 (1997). 35 Nat’l Fed. of Independent Business v. Sebelius, 132 S.Ct. 2566, 2607 (2011). 36 Presidential Memorandum of Jan. 16, 2013 at p. 10.
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Marijuana Reform ( Continued from Page 13)
year. Cuomo reaffirmed his commitment to decriminalization in his 2013 State of the State address. He stated that arrests for possession of marijuana in open view account for 15 percent of all arrests in New York City, with 82 percent of those arrested being African American and Hispanic, and 69 percent being under age 30. According to Cuomo, a reform is needed because these arrests stigmatize young people with a criminal record for the rest of their lives, which makes it harder to get into school or find a job. In January 2013, a bill (S3105) was introduced in the Senate that eliminates the “open to public view” offense, while maintaining that portion of section 221.10(1)
Immigration Reform ( Continued from Page 1)
In other words, a select group of southwestern appointees will determine, for the rest of the country, if and when new border security measures are effective. Until such a determination is made (and there is no built-in time frame for doing so),these “probationary immigrants” will be held hostage and not be permitted to apply for lawful permanent residence.
To add yet one more impediment, these same “probationary immigrants” would be sent to the “back of the line” for a green card and, after that, U.S. citizenship. While the proposal acknowledges that current backlogs for immigrants applying for family and employment-based visas can cause delays upwards of twenty years or more, neither the need to reduce these existing backlogs nor a plan to do so are addressed in the proposal. Separate (and somewhat less arduous) pathways to citizenship would be created for unauthorized immigrants who came to this country as children (the “DREAM”ers) and for unauthorized agricultural workers. What constitutes the “back of the line” is not dealt with meaningfully at all.
that classifies smoking marijuana in public as a misdemeanor. Another bill (S3315) proposes that public possession of small amounts of marijuana be a violation punishable by a fine whether the substance is in plain view or “burning.” Both bills are geared toward preventing improper enforcement and overcharging under the penal law, in line with the decriminalization scheme for possession of small quantities of marijuana for personal use created by the reform of 1977. Clara Flebus, Esq., a NYCLA member, is an Appellate Court Attorney in New York State Supreme Court, and holds an LL.M. degree in International Business Regulation, Litigation and Arbitration. She is a member of NYCLA’s Appellate Courts, Arbitration and ADR, and Foreign & International Law Committees, and Young Lawyers’ Section.
Thus, “the fullness of time” has been achieved.
This is the equivalent of a defendant in a criminal action being found guilty and ordered to jail with his/her period of incarceration to be completed “when crime was eliminated.” I doubt that any criminal defense attorney would accept such a sentence, or that such a sentence would be lawful.
Unless and until this first part of the plan contains firm and defined deadlines for its implementation, the Senators’ proposal is just one more example of Sir Humphrey’s response to wait for “the fullness of time.” The sad part is that the character of Sir Humphrey was meant to be mocked and laughed at, while these Senators appear to be serious in their proposal. One can only hope that a more reasoned approach will be found which can be adopted quickly, rather than “in the fullness of time.”
Eugene Glicksman, Esq., Co-Chair of NYCLA’s Immigration and Nationality Committee, is a partner at Glicksman & Cardoso practicing immigration and nationality law.
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