By Don Murray, Partner at Shalley and Murray
The House of Representatives in Washington yesterday passed new legislation, that if it becomes law, would all but end the persistent JFK and LGA airport weapon cases that are brought by the Queens DA's Office every year. (Here is a link to the new legislation.)
The new law related to "conceal carry reciprocity" appears to protect people who have legitimate conceal carry permits from their home states from being prosecuted for taking their weapons with them to other states. Currently, gun owners must be careful to make sure that they are in compliance with local weapon possession rules when they travel to other states, or they risk prosecution for in some cases, serious felony crimes.
In the past, for example, visitors to NYC from out of state who have valid concealed carry permits, have been routinely arrested for criminal possession of a weapon in the second degree, a C violent felony carrying a 3 1/2 year mandatory minimum. (See my article about the jfk and lga weapons cases,) Of course the Queens DA's Office has historically been willing to settle these cases far more reasonably over the years, but not until after the person has been arrested, charged with a violent felony, subject to substantial bail, and required to obtain counsel to appear multiple times in Court.
Should this legislation become law, these arrests at JFK and LGA will all but come to a stop, since the bulk of these arrests (or at least the ones that have come to me for help) involve people who have legitimate conceal carry permits in their home states.
The law contains a number of remarkable provisions that speak to the power of what I suspect is the gun lobby. For example, one thought that I had upon reading about the law was that NY could continue to prosecute these cases if the law only required that NY allow possession of the weapon itself...but not ammunition. Criminal Possession of a Weapon in the Second Degree prohibits possession of a loaded firearm, which is more than simply the firearm itself. Since NY defines "loaded" extremely broadly, as in ammunition capable of being fired from the weapon in the same general area of the weapon essentially, then I thought that NY might still have some ability to regulate the weapons. The weapons aren't really the problem themselves if they are not loaded.
But no. Tucked into the legislation is a definition of "handgun" that reads:
includes any magazine for use in a handgun and any ammunition loaded into the handgun or its magazine.
The key here is that ammunition is included in the definition of handgun for the federal law. This neatly addresses the problem by setting a ludicrous definition of handgun against a ludicrous definition of "loaded".
Another shocking provision is that the federal legislation specifically allows for a defendant who successfully defends a criminal case with a defense based in this new law to obtain attorney fees to reimburse him for the expense of having to hire a lawyer to defend the criminal case. I have never heard of such a law that allows for the recovery of attorney fees upon a not guilty verdict in a criminal case. I wonder from whom those attorney fees are expected, because the law does not specifically say. Is it the State in general? Is it the Court system? Or is it the District Attorney's Office specifically?
Historically, criminal defendants, at least in state court in New York, don't get to get attorney's fees simply because they are found not guilty in a criminal court. Maybe that should change, and I am certainly not necessarily opposed to it, but it is amazing that someone thought about this and cared enough to legislate it. Personally, I think it is an indication of the power of the gun lobbyist who wrote this legislation more than anything else, because I can't imagine too many politicians getting behind a more general concept that someone who is found not guilty at a criminal trial on say, an armed robbery charge, should automatically be entitled to a reimbursement for attorney's fees.
A finding of not guilty is not a finding of innocence. A finding of not guilty simply means that the Government failed to meet the burden of beyond a reasonable doubt, a very high burden established for important political reasons as a check against the abuse of Government power. This is why people who are found not guilty can be sued civilly for the same thing (civil court has a far lower burden of proof - think OJ being acquitted in the criminal trial but being found responsible at the civil trial).
This matters because by mandating attorney's fees for a finding of not guilty, as the new legislation appears to do, people who were found not guilty simply because the Government failed to prosecute the case well, or simply because the jury decided that a very high burden wasn't met, means that people will get attorney's fees even if they could be factually guilty, and there will be no way to know because criminal jurors are entitled to be anonymous and need not explain their verdicts.
Again, I am not complaining about this state of affairs. It's nice to know that lawmakers are concerned about the impact of criminal prosecutions upon people enough to guaranty attorney fees if they are found not guilty. I simply point it out as a remarkable deviation from the norm of not worrying too much about the criminally accused. I suspect that lawmakers' concern for the criminally accused will end where those criminally accused are not gun owners, because this concern is really simply the concern of gun lobbyists, who appear to wield such sway over our lawmakers.
I suspect that NY at least will contest the validity of this legislation on the grounds that it interferes with States' rights. The Federal Authorities will likely counter that it is more in the nature of say, a driver license, that must be given credit in other states. Perhaps it will develop into a Constitutional showdown in the Supreme Court with the Second Amendment up against the Tenth Amendment (States' rights) or whatever other arguments that the states will make. Given the current makeup of the Court and the political power of those who rally behind the Second Amendment, I would tend to guess that this law, or some close version of it, will find its way into the books.