Man allegedly arrested for defending his land in NY

[Marine Cpl]

Basically whatever excuse you used to get one, after it is issued, the excuse is no longer relevant.

For example. My wife used the security employment excuse to get a have and carry concealed license since she works security and is about to take the 47 hr armed guard course. She got it. Whether she continues in the security field or not is irrelevant. If she changes careers and now becomes a nurse, her unrestricted license to have and carry concealed doesn’t become invalidated.

 

[Chevusa]

Not arguing either. Just disputing your point.

Your argument is that you applied for a handgun license for target shooting for example so if a restricted one was issued to you and you carried anyway, you violated the license given to you because the just cause isn’t what you initially applied for. Correct?

However, you did not because you were issued a carry license after all is said and done. The reason on what you used to demonstrate proper cause is irrelevant. Proper cause is just a reasoning to get the license under Penal law 400. After you get the license, you have it. That’s it. Full stop. That is what the penal law says the license is for. To have and carry concealed.

Restrictions added to the have and carry concealed are secondary and have no basis in the penal law. Violating those are just violating the wishes of the judge and since no actual law is broken, all that can happen is a full revocation.

There is no violation of Penal law 400 itself. Had Penal law 400 had restrictions put into carry licenses, than it would be a violation. For example. There is one category of concealed carry license for employment only. If you carry outside of employment, then it’s a violation.

But the license given to you is just one. To have and carry concealed concealed without regard to employment or place of possession.

The reason is irrelevant to you but the highest court in the state has released an official opinion that says the opposite. They said you are to carry based of the cause that generated the issuance of the permit in the first place and to carry anywhere or anytime when restrictions have been applied would be “absurd”. I don’t have time to find the exact case disposition now but I have posted it previously here in another thread about permits.
In other words, they said if you could only show cause for target and hunting that is the only time you are to carry as you do not meet the burden of unrestricted carry.

 

[Marine Cpl]

Haha, "penises license", hah.

But yea, the point here is that statutes are the word of law.

From NYPL 400.2 "A license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued to... (f) have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof; "

However, I think there is a possible argument for restrictions carrying the weight of law coming from NYPL 400.6 "Any license issued pursuant to this section shall be valid notwithstanding the provisions of any local law or ordinance. No license shall be transferable to any other person or premises. A license to carry or possess a pistol or revolver, not otherwise limited as to place or time of possession, shall be effective throughout the state, except that the same shall not be valid within the city of New York unless a special permit granting validity is issued by the police commissioner of that city."

That line emphasized in bold can strictly be read to mean that the statement does not apply to premesis and employment carry licenses. It could also broadly be interpreted to give the force of law to the administrative restrictions put on by judges. I think we can fairly assume that if that argument is raised by a prosecutor, a NY judge and jury are more likely than not to smack you in the pee-pee with it in court.

Damned auto correct. It was premises. I fixed it above. Lol

 

[Marine Cpl]

The reason is irrelevant to you but the highest court in the state has released an official opinion that says the opposite. They said you are to carry based of the cause that generated the issuance of the permit in the first place and to carry anywhere or anytime when restrictions have been applied would be “absurd”. I don’t have time to find the exact case disposition now but I have posted it previously here in another thread about permits.
In other words, they said if you could only show cause for target and hunting that is the only time you are to carry as you do not meet the burden of unrestricted carry.

The penal law itself has to be amended for a criminal charge to be placed on you. A judge can rule that you were wrong for using the license in a manner that goes against the reasoning for you to get it but in order to prosecute you, the penal law has to be changed. It hasn’t. That’s why all they can do is revoke.

 

[Marine Cpl]

Haha, "penises license", hah.

But yea, the point here is that statutes are the word of law.

From NYPL 400.2 "A license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued to... (f) have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof; "

However, I think there is a possible argument for restrictions carrying the weight of law coming from NYPL 400.6 "Any license issued pursuant to this section shall be valid notwithstanding the provisions of any local law or ordinance. No license shall be transferable to any other person or premises. A license to carry or possess a pistol or revolver, not otherwise limited as to place or time of possession, shall be effective throughout the state, except that the same shall not be valid within the city of New York unless a special permit granting validity is issued by the police commissioner of that city."

That line emphasized in bold can strictly be read to mean that the statement does not apply to premesis and employment carry licenses. It could also broadly be interpreted to give the force of law to the administrative restrictions put on by judges. I think we can fairly assume that if that argument is raised by a prosecutor, a NY judge and jury are more likely than not to smack you in the pee-pee with it in court.

Notwithstanding means in spite of.

 

[Chevusa]

Haha, "penises license", hah.

But yea, the point here is that statutes are the word of law.

From NYPL 400.2 "A license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued to... (f) have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof; "

However, I think there is a possible argument for restrictions carrying the weight of law coming from NYPL 400.6 "Any license issued pursuant to this section shall be valid notwithstanding the provisions of any local law or ordinance. No license shall be transferable to any other person or premises. A license to carry or possess a pistol or revolver, not otherwise limited as to place or time of possession, shall be effective throughout the state, except that the same shall not be valid within the city of New York unless a special permit granting validity is issued by the police commissioner of that city."

That line emphasized in bold can strictly be read to mean that the statement does not apply to premesis and employment carry licenses. It could also broadly be interpreted to give the force of law to the administrative restrictions put on by judges. I think we can fairly assume that if that argument is raised by a prosecutor, a NY judge and jury are more likely than not to smack you in the pee-pee with it in court.

Exactly. I have the same take on it. Like I said one side cannot price their point correct. You are at the mercy of the police and DA and jury of NY’ers who are generally anti gun and when they are told in court that you were carrying a FULLY semi automatic handgun in wal mart and you only have a permit to target shoot at a range, they aren’t going to share the same view at others here do. They are going to think you are nuts and shouldn’t have been doing that. It will not go over well with them. The jury members will not think to themselves that the judge doesn’t have the power to restrict you. It’s gonna be a bad day for whoever that person is that finds themselves in that situation. If it’s not a jury trial the judge at the bench trial will find the same conclusion. The judge isn’t going to hear your argument that judges don’t have the power to do so. They got ya hook line and sinker.

 

[Chevusa]

The penal law itself has to be amended for a criminal charge to be placed on you. A judge can rule that you were wrong for using the license in a manner that goes against the reasoning for you to get it but in order to prosecute you, the penal law has to be changed. It hasn’t. That’s why all they can do is revoke.

It broadly says any violation of 400 is a misdemeanor. The restrictions are part of the judges authority under 400. That is not up for debate. That is a fact. I have posted high court rulings that say exactly that before. So if 400 allowed for restrictions and you violate them you have violated something that falls under 400. It is worded that ANY violation is a misdemeanor.

 

[Xae289]

Basically whatever excuse you used to get one, after it is issued, the excuse is no longer relevant.

For example. My wife used the security employment excuse to get a have and carry concealed license since she works security and is about to take the 47 hr armed guard course. She got it. Whether she continues in the security field or not is irrelevant. If she changes careers and now becomes a nurse, her license to have and carry concealed doesn’t become invalidated.

Sure, that's 100% true. The law, does not require you to notify anyone if the reasons for which they originally issued the license have changed. As for now, I believe based on my interpretation that the restrictions don't carry the force of law and you can't be charged under NYPL400 for violating a restriction.

I think you misunderstand my point about 400.6. I know what "notwithstanding" means. My issue is specifically to do with the sentence where I emphasized the bold and my thought that it might be possible to claim that the line lends the force of law to the admin restrictions if a court construes that to mean that "limited to time and place of possession" extends to the admin restrictions and doesn't strictly mean to differentiate a concealed carry license from a premesis or employment license. I interpret it in the strict sense of "limited to time and place" only means to differentiate against premesis and employment and doesnt extend to admin restrictions. Still something I think an educated NY carrier should be aware of to draw their own conclusions.

 

[Xae289]

It broadly says any violation of 400 is a misdemeanor. The restrictions are part of the judges authority under 400. That is not up for debate. That is a fact. I have posted high court rulings that say exactly that before. So if 400 allowed for restrictions and you violate them you have violated something that falls under 400. It is worded that ANY violation is a misdemeanor.

Did you post the cases in this thread? I'd like to read them and I'll go looking if you posted them somewhere.

 

[Chevusa]

Did you post the cases in this thread? I'd like to read them and I'll go looking if you posted them somewhere.

No it was another thread here under pistol permits. Not sure which one.

 

[Marine Cpl]

Exactly. I have the same take on it. Like I said one side cannot price their point correct. You are at the mercy of the police and DA and jury of NY’ers who are generally anti gun and when they are told in court that you were carrying a FULLY semi automatic handgun in wal mart and you only have a permit to target shoot at a range, they aren’t going to share the same view at others here do. They are going to think you are nuts and shouldn’t have been doing that. It will not go over well with them. The jury members will not think to themselves that the judge doesn’t have the power to restrict you. It’s gonna be a bad day for whoever that person is that finds themselves in that situation. If it’s not a jury trial the judge at the bench trial will find the same conclusion. The judge isn’t going to hear your argument that judges don’t have the power to do so. They got ya hook line and sinker.

No they don’t have you hook, line, and sinker. In order for a conviction, a specific provision in a penal law has to be broken.

Have you ever served as a juror? In order for a conviction to occur, certain aspects of a penal law have to be broken. If just one of those aspects aren’t met, the law isn’t broken.

 

[Marine Cpl]

It broadly says any violation of 400 is a misdemeanor. The restrictions are part of the judges authority under 400. That is not up for debate. That is a fact. I have posted high court rulings that say exactly that before. So if 400 allowed for restrictions and you violate them you have violated something that falls under 400. It is worded that ANY violation is a misdemeanor.

Incorrect. The penal law has to say that.

 

[Chevusa]

No they don’t have you hook, line, and sinker. In order for a conviction, a specific provision in a penal law has to be broken.

Have you ever served as a juror? In order for a conviction to occur, certain aspects of a penal law have to be broken. If just one of those aspects aren’t met, the law isn’t broken.

ANY VIOLATION are the words used. That is a pretty low bar to prove. All that is needed is the high court findings saying 400 gives authority for restrictions and you have violated restrictions under 400. The people of the jury who know nothing about guns let alone permits are not going to see it your way. Neither is the judge when you tell him that he doesn’t have any power.

 

[Marine Cpl]

Sure, that's 100% true. The law, does not require you to notify anyone if the reasons for which they originally issued the license have changed. As for now, I believe based on my interpretation that the restrictions don't carry the force of law and you can't be charged under NYPL400 for violating a restriction.

I think you misunderstand my point about 400.6. I know what "notwithstanding" means. My issue is specifically to do with the sentence where I emphasized the bold and my thought that it might be possible to claim that the line lends the force of law to the admin restrictions if a court construes that to mean that "limited to time and place of possession" extends to the admin restrictions and doesn't strictly mean to differentiate a concealed carry license from a premesis or employment license. I interpret it in the strict sense of "limited to time and place" only means to differentiate against premesis and employment and doesnt extend to admin restrictions. Still something I think an educated NY carrier should be aware of to draw their own conclusions.

Limited to time and place of possession applies to the other licenses. If a premise license is issued, that license is limited to the place of possession. If a license to carry concealed while under the authority of a jail warden is issued for the execution of warrants (there is such a license), then that is a license that is limited to time. Your license is only valid while executing warrants under the jail warden.

The license issued to us is the one that says without regard to employment (time) and place of possession.

 

[Marine Cpl]

ANY VIOLATION are the words used. That is a pretty low bar to prove. All that is needed is the high court findings saying 400 gives authority for restrictions and you have violated restrictions under 400. The people of the jury who know nothing about guns let alone permits are not going to see it your way. Neither is the judge when you tell him that he doesn’t have any power.

But you aren’t violating anything. You have a license to have and carry concealed without regard to employment and place of possession.

The restrictions added afterwards doesn’t change the type of license you have as per the penal law. Those are just judge’s wishes. And if you violate them, you are violating his wishes. Not the penal law.

 

[Marine Cpl]

All they can do is revoke it for violating his wishes. You did not violate the penal law itself.

 

[Chevusa]

The problem is these are just interpretations by us pro gun people. Others may look at it very differently. When the 65 year old granny who has never seen a gun before is told you had a permit for the range only and she is told you were out at the store with this loaded scary gun sh is going to truly believe you are totally wrong and you went against the judges order. They aren’t going to buy your argument. You are the scary guy with guns. Only the police (maybe) and military should have guns. You will be viewed as a lunatic.

 

[Chevusa]

But you aren’t violating anything. You have a license to have and carry concealed without regard to employment and place of possession.

The restrictions added afterwards doesn’t change the type of license you have as per the penal law. Those are just judge’s wishes. And if you violate them, you are violating his wishes. Not the penal law.

I understand your opinion. It might not say it specifically but they don’t need to look at your case in a vacuum. They can introduce evidence that the highest court in the state said the restrictions are legal under the duties of the licensing officer as prescribed under 400. They can say 2+2=4 and you are going to have an uphill battle trying to prove that those don’t apply to you.

 

[Xae289]

All they can do is revoke it for violating his wishes. You did not violate the penal law itself.

I'm with you in the mentality that the statute says what it says and that's it. Unfortunately, after looking at a case Chevusa cited in an earlier post, the memorandum makes it clear that NY courts just don't care about the letter of the law when they can reach abstract justifications by doing mental gymnastics to make the law mean what they want it to mean instead of what it says.

It's a depressing read for people who might think that laws are supposed to meam something: IN THE MATTER OF MICHAEL O'CONNOR v. ANTHONY A. SCARPINO, JR. IN THE MATTER OF BELINDA G. EDDY v. HON. PATRICK L. KIRK, HERKIMER COUNTY COURT JUDGE

 

[Chevusa]

All they can do is revoke it for violating his wishes. You did not violate the penal law itself.

You don’t know that for certain. It is your opinion. If you were a high court judge that would carry weight. However you aren’t and it doesn’t. I wouldn’t want to be the guy getting into a pissing match with a judge in a courtroom telling him what he can and can’t do. Then tell him he has no authority and his orders for restrictions don’t matter. Tell him you read the law and he is wrong. You’ll never win that battle.

 

[Xae289]

Now, I don't think that it settles the matter of whether you can successfully be charged for violating PL400 for carrying beyond your restrictions. I think it would certainly be brought into court as evidence that the restrictions implicitly carry weight of law despite not being explicitly written into the law. That's where convincing a jury comes into play.

 

[Marine Cpl]

I understand your opinion. It might not say it specifically but they don’t need to look at your case in a vacuum. They can introduce evidence that the highest court in the state said the restrictions are legal under the duties of the licensing officer as prescribed under 400. They can say 2+2=4 and you are going to have an uphill battle trying to prove that those don’t apply to you.

They can introduce whatever they want, but at the end of the day, you have to be charged for a penal law that you broke. There is no such charge for going against a court ruling.

The way it works is that if a court rules on something, the penal law has to be amended to reflect that ruling. If it isn’t, then you cannot be charged with anything.

 

[Chevusa]

Now, I don't think that it settles the matter of whether you can successfully be charged for violating PL400 for carrying beyond your restrictions. I think it would certainly be brought into court as evidence that the restrictions implicitly carry weight of law despite not being explicitly written into the law. That's where convincing a jury comes into play.

I have the exact same opinion. The problem is the jury is not going to take our side. If it’s a bench trial the judge isn’t either. You will not convince the public who knows nothing about this, or the judge, that the judicial restrictions don’t apply to you and you can disobey them at your leisure.

 

[Marine Cpl]

I have the exact same opinion. The problem is the jury is not going to take our side. If it’s a bench trial the judge isn’t either. You will not convince the public who knows nothing about this, or the judge, that the judicial restrictions don’t apply to you and you can disobey them at your leisure.

What specific penal law violation will a jury charge you with if they don’t take your side?

 

[Chevusa]

They can introduce whatever they want, but at the end of the day, you have to be charged for a penal law that you broke. There is no such charge for going against a court ruling.

The way it works is that if a court rules on something, the penal law has to be amended to reflect that ruling. If it isn’t, then you cannot be charged with anything.

The judges have “broad authority” under 400 and can apply restrictions. Did the defendant violate those restrictions? If so he violated something that falls under 400 and is guilty of a misdemeanor. This would be incredibly easy to prove in court.

 

[Chevusa]

What specific penal law violation will a jury charge you with if they don’t take your side?

Violation of “any part of 400”. 400 includes the authority for restrictions per the highest court in the land.

 

[Marine Cpl]

That case quoted above is just for monetary compensation for the challenging of restrictions removal of the license.

 

[Chevusa]

That case quoted above is just for monetary compensation for the challenging of restrictions removal of the license.

There are many many more

 

[Marine Cpl]

There are many many more

And yet none of those rulings caused an amendment to penal law 400. Which means that you cannot get convicted for a violation of a law that specifically has not been amended.

 

[Chevusa]

And yet none of those rulings caused an amendment to penal law 400. Which means that you cannot get convicted for a violation of a law that specifically has not been amended.

That is your opinion. By not putting it into 400 but instead saying they have “broad authority” under 400, allows them lots of room to operate. Why would they restrict themselves? It’s set up exactly how they want it to be.