I OPEN CARRY

[emsjeep]

Well Mr Attorney of 20 years, here is the NYS law books that state "concealed":

CARRYING-- HANDGUNS

The license to possess a handgun is a license to carry unless restricted, but almost all licenses are restricted. If there are no restrictions the licensee may carry the handgun concealed on or about his person, loaded or unloaded.

Handgun licenses issued elsewhere in New York State are not valid in New York City. New York City licenses are valid throughout New York State. However, a New York State license to carry or possess will be valid in New York City in the absence of a New York City license provided that the handguns are transported by the licensee in a locked container and the trip through New York City is continuous and uninterrupted.

A license to possess a handgun in one's household or place of business or to possess a target handgun does not authorize the licensee to carry a handgun on or about his person except in the very limited circumstances outlined above (under POSSESSION). Similarly, a target handgun license does not grant the holder the right to keep a loaded handgun in his home or place of business. To do so one must have a license to have and possess either in one's dwelling or one's place of business.

A "target" license authorizes the holder to transport his unloaded handgun to and from a shooting range or hunting field in a locked container.

An "on premises" license permits the holder to possess a handgun in his home or place of business. The holder may obtain 2 authorizations a year to transport his handgun(s); unloaded and in a locked container, to and from an authorized shooting range.

To obtain a license to carry a concealed handgun the applicant is required to show that "proper cause" exists for the issuance of the license. The decision to issue or deny this license is within the discretion of the commissioner and his decision will only be overturned by a court if it can be shown that he abused his discretion.

A license may not be transferred. The license holder must have the license in his possession while carrying a handgun, and each person licensed to possess a handgun on his premises is required to have a license on such premises. On demand of any peace officer a license must be exhibited.

Administrative Code sec.10-131, sec.10301, ET.SEQ.

I don't know what you think the "NYS Law Books" are, but it appears that you have cited an interpretation of a portion of the New York CITY administrative code which is completely irrelevant to any discussion of what goes on in the rest of NYS. New York City operates in a few very questionable ways that work by basically exclusively issuing premise licenses and "overlooking" certain types of actions. A NYC "Target" license is really a "Premise" license issued under 400.00(2)(b) that comes with a set of instructions that allows you to take it to the range. Everywhere else in the state, including Nassau/Suffolk, the issuing authorities restrict 400.00(2)(f) licenses to "Target/Hunting" etc. Licenses issued under 400.00(2)(f) may come with instructions that say, "you should transport it this way" or "you may not do this or that," but those instructions are not enforceable under the penal code because you have been issued, in the eyes of the court, a "Full Carry" 400.00(2)(f) license. What happens between you and your issuing authority is largely arbitrary and will result in no criminal charges.

 

[emsjeep]

Danny-L wrote:
Are you being notified by the judge of the new restrictions? I don't believe they can unilaterally do this. If the conditions of the permit are changed, the issuing authority - i.e. judge, must notify you why this occured. Your original permit application, which the judge signs, must reflect the restriction or it's not legal.If the current judge has instructed the sheriff dept. to do this, then request a copy of the policy and publish it in the local paper warning permit holders.

The issuing authority has the right to review the "proper cause" of any applicant more or less as they please. I don't recall if their power of review was completely sua sponte or if some administrative action was necessary to trigger it (ie. amendment) but they certainly can do whatever they desire on an ongoing basis and there is case law to back this up.

 

[ronmanci]

As a LEO, if I witness a non-LEO carrying in the open, I must inquire as to his/her LEO status. If he/she is not a LEO, my next question would be is he/she working in any way related to the weapon? If not, and the act is not justified in my opinion, I am required by my agency to make an arrest for brandishing a weapon. My Captain would then petition the Supreme Court Judge to revoke the permit. And believe me, it will be granted and you will lose your permit. I've seen it happen. It's not worth trying to prove a point. I too would rather see the guns then guess if someone has one, but I am bound by the laws of the state that i have been trained to uphold. This was taught in the Academy, and the officers in my department have been instructed to enforce it.

 

[emsjeep]

As a LEO, if I witness a non-LEO carrying in the open, I must inquire as to his/her LEO status. If he/she is not a LEO, my next question would be is he/she working in any way related to the weapon? If not, and the act is not justified in my opinion, I am required by my agency to make an arrest for brandishing a weapon. My Captain would then petition the Supreme Court Judge to revoke the permit. And believe me, it will be granted and you will lose your permit. I've seen it happen. It's not worth trying to prove a point. I too would rather see the guns then guess if someone has one, but I am bound by the laws of the state that i have been trained to uphold. This was taught in the Academy, and the officers in my department have been instructed to enforce it.

And you would charge them with what, exactly, since there is no law that even uses the word brandish?

 

[ronmanci]

Dis Con at a minimum, but the DA could bump it. The one case that is in my mind; he was charged with reckless endangerment and took a plea for dis con. ACD'ed and he had his permit revoked.

 

[emsjeep]

Dis Con at a minimum, but the DA could bump it. The one case that is in my mind; he was charged with reckless endangerment and took a plea for dis con. ACD'ed and he had his permit revoked.

I wouldn't consider that a plea, I would characterize that as an inappropriate charge that they had, if the situation is as you imply, absolutely zero chance of proving.

§ 120.20 Reckless endangerment in the second degree.
A person is guilty of reckless endangerment in the second degree when
he recklessly engages in conduct which creates a substantial risk of
serious physical injury to another person.
Reckless endangerment in the second degree is a class A misdemeanor.

Even in NY, given the prevalence of the activity in dozens of other states, I think it would be nearly impossible to characterize a gun in a holster as a substantial risk of serious physical injury when a piece of fabric hiding it from sight would mitigate the supposed risk.

The other popular options are:

§ 120.15 Menacing in the third degree.
A person is guilty of menacing in the third degree when, by physical
menace, he or she intentionally places or attempts to place another
person in fear of death, imminent serious physical injury or physical
injury.
Menacing in the third degree is a class B misdemeanor.

Menacing has a the huge issue of a mental element (intent) that is not likely to fall in favor of the state. Reckless endangerment is preferable because the mental element is not intent, but reckless conduct, however, as a tradeoff, the physical elements are substantially more difficult to prove.

§ 240.26 Harassment in the second degreeCurrentness
A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:
1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or
2. He or she follows a person in or about a public place or places; or
3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.
Subdivisions two and three of this section shall not apply to activities regulated by the national labor relations act,1 as amended, the railway labor act,2 as amended, or the federal employment labor management act,3 as amended.Harassment in the second degree is a violation.

Harassment is another popular option but has the intent barrier again. Given today's environment, again, even in New York, the action is or could be easily characterized as both commonplace, legitimate and completed for purposes other than intending to cause alarm.

§ 240.20 Disorderly conduct.
A person is guilty of disorderly conduct when, with intent to cause
public inconvenience, annoyance or alarm, or recklessly creating a risk
thereof:
1. He engages in fighting or in violent, tumultuous or threatening behavior; or
2. He makes unreasonable noise; or
3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or
4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or
5. He obstructs vehicular or pedestrian traffic; or
6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or
7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.
Disorderly conduct is a violation.

With intent absent, and in most cases absent any actual public alarm, the DC charge relies on the "reckless risk" of either 4 or 7, but again you need to overcome the characterization of an activity that thousands of people, in addition to thousands of police officers, engage in every day without incident as "hazardous."

Any way you analyze this, you are taking advantage of people who are within their rights and who cannot afford adequate or competent defense and are utilizing a liberal licensing system to enforce your department's own oppressive agenda.

 

[ronmanci]

I think more #1, considered threatening behavior.

Also, in this County, when you sign for your original permit, you agree to only carry concealed, and agree to be subject to revocation if not obeyed. Its granted as a CCW, and you must agree to those terms upon issue. Even if the permit was issued in another county, open carry is still not permitted in my county.

Believe me, I wish OC was allowed. I'm not an advocate, just sharing what I deal with on a daily basis.

 

[ronmanci]

This is from NYS Penal Law 400.00 -

11. License: revocation and suspension. Except for a license issued
pursuant to section 400.01 of this article, a license may be revoked and
cancelled at any time in the city of New York, and in the counties of
Nassau and Suffolk, by the licensing officer, and elsewhere than in the
city of New York by any judge or justice of a court of record; "

The exception applies to LEO's. In the application for a permit, they must have "just cause" to deny it. Once the permit has been issued - it can be recinded at any time for any reason - it says so right on the permit. There is nothing about appeals. Judges have wide latitude concerning permits. If you have a valid permit, you would not be charged under NYS Penal Law 265 which covers illegal possession of firearms, but 400.00, which covers pistol permits, states in the law that carry restrictions can be applied by the issuing authority - i.e. judge. If you violate those restrictions - you can lose your permit. FYI - sherriffs UPHOLD the laws, they don't make them.

Redlegagent gets it.......Amen!

 

[emsjeep]

Redlegagent gets it.......Amen!

Except he is sort of not correct.

In regards to issuance:
400.00 (1) (g)
No license shall be issued or renewed except for
an applicant concerning whom no good cause
exists for the denial of the license.

Revocation is as stated.

HOWEVER, there is an appeals process, contrary to what was stated. It comes in the form of a CPLR Article 78 proceeding challenging the determination of the issuing authority. If you can show that the determination was either arbitrary and capricious or an abuse of the discretion granted them, the courts can reverse the administrative determination.
Fromson v. Nelson, 178 A.D.2d 479 (N.Y. App. Div. 1991)

 

[ronmanci]

Except he is sort of not correct.

In regards to issuance:
400.00 (1) (g)
No license shall be issued or renewed except for
an applicant concerning whom no good cause
exists for the denial of the license.

Revocation is as stated.

HOWEVER, there is an appeals process, contrary to what was stated. It comes in the form of a CPLR Article 78 proceeding challenging the determination of the issuing authority. If you can show that the determination was either arbitrary and capricious or an abuse of the discretion granted them, the courts can reverse the administrative determination.
Fromson v. Nelson, 178 A.D.2d 479 (N.Y. App. Div. 1991)

He only said the appeal process was not mentioned, he didn't say it doesn't exist.

And good luck with that appeal, it probably hasn't happened again since that 1991 decision. If you talk your client into going that route, your not giving him good advise, you just making more money. If you know going in, that you don't have a chance of winning that appeal, why would you even recommend it? You will never prove that the determination was either arbitrary and capricious or an abuse of the discretion granted to "them", "them" being a Supreme Court Judge, and you know it.

 

[emsjeep]

He only said the appeal process was not mentioned, he didn't say it doesn't exist.

And good luck with that appeal, it probably hasn't happened again since that 1991 decision. If you talk your client into going that route, your not giving him good advise, you just making more money. If you know going in, that you don't have a chance of winning that appeal, why would you even recommend it? You will never prove that the determination was either arbitrary and capricious or an abuse of the discretion granted to "them", "them" being a Supreme Court Judge, and you know it.

Well that would depend on the nature of the decision...just because lots of people appeal clearly legitimate denials and issuing authorities refrain from blatantly illegal conduct doesn't mean that a legitimate appeal is doomed to fail.

 

[ronmanci]

this is article 400.00.

every different type of permit in section 2 states "carry concealed".

even for the judges....

2. Types of licenses. A license for gunsmith or dealer in firearms
shall be issued to engage in such business. A license for a pistol or
revolver, other than an assault weapon or a disguised gun, shall be
issued to (a) have and possess in his dwelling by a householder; (b)
have and possess in his place of business by a merchant or storekeeper;
(c) have and carry concealed while so employed by a messenger employed
by a banking institution or express company; (d) have and carry
concealed by a justice of the supreme court in the first or second
judicial departments, or by a judge of the New York city civil court or
the New York city criminal court; (e) have and carry concealed while so
employed by a regular employee of an institution of the state, or of any
county, city, town or village, under control of a commissioner of
correction of the city or any warden, superintendent or head keeper of
any state prison, penitentiary, workhouse, county jail or other
institution for the detention of persons convicted or accused of crime
or held as witnesses in criminal cases, provided that application is
made therefor by such commissioner, warden, superintendent or head
keeper; (f) have and carry concealed, without regard to employment or
place of possession, by any person when proper cause exists for the
issuance thereof; and (g) have, possess, collect and carry antique
pistols which are defined as follows: (i) any single shot, muzzle
loading pistol with a matchlock, flintlock, percussion cap, or similar
type of ignition system manufactured in or before l898, which is not
designed for using rimfire or conventional centerfire fixed ammunition;
and (ii) any replica of any pistol described in clause (i) hereof if
such replica--


(1) is not designed or redesigned for using rimfire or conventional
centerfire fixed ammunition, or
(2) uses rimfire or conventional centerfire fixed ammunition which is
no longer manufactured in the United States and which is not readily
available in the ordinary channels of commercial trade.

 

[emsjeep]

this is article 400.00.

every different type of permit in section 2 states "carry concealed".

even for the judges....

2. Types of licenses. A license for gunsmith or dealer in firearms
shall be issued to engage in such business. A license for a pistol or
revolver, other than an assault weapon or a disguised gun, shall be
issued to (a) have and possess in his dwelling by a householder; (b)
have and possess in his place of business by a merchant or storekeeper;
(c) have and carry concealed while so employed by a messenger employed
by a banking institution or express company; (d) have and carry
concealed by a justice of the supreme court in the first or second
judicial departments, or by a judge of the New York city civil court or
the New York city criminal court; (e) have and carry concealed while so
employed by a regular employee of an institution of the state, or of any
county, city, town or village, under control of a commissioner of
correction of the city or any warden, superintendent or head keeper of
any state prison, penitentiary, workhouse, county jail or other
institution for the detention of persons convicted or accused of crime
or held as witnesses in criminal cases, provided that application is
made therefor by such commissioner, warden, superintendent or head
keeper; (f) have and carry concealed, without regard to employment or
place of possession, by any person when proper cause exists for the
issuance thereof; and (g) have, possess, collect and carry antique
pistols which are defined as follows: (i) any single shot, muzzle
loading pistol with a matchlock, flintlock, percussion cap, or similar
type of ignition system manufactured in or before l898, which is not
designed for using rimfire or conventional centerfire fixed ammunition;
and (ii) any replica of any pistol described in clause (i) hereof if
such replica--


(1) is not designed or redesigned for using rimfire or conventional
centerfire fixed ammunition, or
(2) uses rimfire or conventional centerfire fixed ammunition which is
no longer manufactured in the United States and which is not readily
available in the ordinary channels of commercial trade.

...and what else does it say?

If I tell you that you can eat Doritos and Ruffles wherever you want, does it mean that you have to eat Ruffles?

 

[ronmanci]

All I can suggest is that you walk around with your gun out in the open for a few weeks and see how you make out. Please, let me know how it works for ya. You may not get arrested, but then again there is a good chance you will. You will have your permit revoked and you will never own a handgun in NY again. That I would bet my life on. Call my bluff and give it a shot. Hell, you can rep yourself.

 

[emsjeep]

All I can suggest is that you walk around with your gun out in the open for a few weeks and see how you make out. Please, let me know how it works for ya. You may not get arrested, but then again there is a good chance you will. You will have your permit revoked and you will never own a handgun in NY again. That I would bet my life on. Call my bluff and give it a shot. Hell, you can rep yourself.

I don't disagree with you...I know what would happen because of the politically motivated policies of the various police agencies within the state. The point is that open carry is MADE illegal by the police and various issuing authorities who circumvent the will of the legislature to promote their own biased agendas.

 

[ronmanci]

I don't disagree with you...I know what would happen because of the politically motivated policies of the various police agencies within the state. The point is that open carry is MADE illegal by the police and various issuing authorities who circumvent the will of the legislature to promote their own biased agendas.

And to that, I agree with you.

 

[Golden Eagle]

If I tell you that you can eat Doritos and Ruffles wherever you want, does it mean that you have to eat Ruffles?

+1
I like your attitude emsjeep.

Hopefully Michigan will inspire NY. For about eighty years here in MI we have had to have a license to conceal and we ALL assumed that we couldn't open carry.

Then about nine years ago the conversations started between gun owners lawyers and prosecutors on the history, the meanings of words in the laws and whether or not the law had to say we could OC.

Now without any new law for OC we (I) carry all over MI.

I think NY is at the discussion point where Michigan was about nine years ago.

Stop saying "it's illegal, end of discussion". Yes if you OC today you will be stopped but if you get your prosecutors to start viewing the law differently I believe you have an excellent chance to become an OC state.

 

[emsjeep]

+1
I like your attitude emsjeep.

Hopefully Michigan will inspire NY. For about eighty years here in MI we have had to have a license to conceal and we ALL assumed that we couldn't open carry.

Then about nine years ago the conversations started between gun owners layers and prosecutors on the history, the meanings of words in the laws and whether or not the law had to say we could OC.

Now without any new law for OC we (I) carry all over MI.

I think NY is at the discussion point where Michigan was about nine years ago.

Stop saying "it's illegal, end of discussion". Yes if you OC today you will be stopped but if you get your prosecutors to start viewing the law differently I believe you have an excellent chance to become an OC state.

This is the court opinion I cite to in regards to the legislative history and intent. It is not mandatory authority in this state, it comes out of a county court, but it is persuasive:

The purpose of the concealed weapons statutes was to prevent men in sudden quarrel or in the commission of crime from drawing concealed weapons and using them without prior notice to their victims that they were armed. The person assailed to attacked would behave one way if he knew his assailant was armed and perhaps another way if he could safely presume that he was unarmed.

People v. Raso, 9 Misc. 2d 739, 744, 170 N.Y.S.2d 245, 251 (N.Y. Co. Ct. 1958)

Some of the language and the premise is difficult because of the subsequent reformulation of the penal law that we are used to and familiar with.

It is a crime to have in possession ‘any pistol, revolver or other firearm of a size which may be concealed upon the person’. Subd. 4. This provision was added by Ch. 195, L.1911. It was the first time the Legislature had prohibited mere possession of weapons. Contemporaneous interpretation of the new statute by the courts (People ex. rel. Darling v. Warden of City Prison, 1913, 154 App.Div. 413, 139 N.Y.S. 277) indicates that all possession, in a drawer at home or on the person, openly or concealed, was prohibited.

Possession is still criminalized, but is allowed, currently, by license...so, why do we draw the line at open carry in public if what was first prohibited and then licensed was "possession in a drawer at home or on the person, openly or concealed."

The first thing to observe is that the prohibition against carrying concealed weapons is the oldest dangerous weapon enactment. It long precedes the Penal Code of 1881. Thus *741 the carrying of concealed weapons was prohibited more than 50 years before possession of dangerous weapons was prohibited for the first time in 1911. (Subd. 4 added by ch. 195, L.1911.) Thus for many years open possession of pistols and revolvers **248 and all other firearms was permissible. The law only prohibited concealment of weapons.
But after 1911, the ‘concealed’ weapon provision (subd. 5) became to a large extent academic. Since subdivision 4 prohibited mere possession a conviction could be obtained under that subdivision without the necessity of proving concealment. Since, after 1911, possession of weapons ‘of a size which may be concealed upon the person’ was a crime whether the weapon was possessed at home or carried concealed upon the person, a prosecution under subdivision 5 would ordinarily be brought only if the weapon was of a larger type which could not be concealed upon the person.

Also:

As opposed to some other States, New York requires a specific carry license for both the open and concealed carrying of firearms.

Revocation of Pistol License of Beach v. Kelly, 16 Misc. 3d 807, 811, 837 N.Y.S.2d 534, 537 (N.Y. Sup. Ct. 2007) rev'd sub nom. Beach v. Kelly, 52 A.D.3d 436, 860 N.Y.S.2d 112 (N.Y. App. Div. 2008)

Finally, the footnote text from the above cited case that outlines how OC is restricted to 400.00 license holders:

New York requires a carry license for the concealed and open carrying of firearms. See N.Y. Penal Law §§ 265.01, 265.02, 400.00(2)(d)-(f). This general approach to the concealed and open carrying of firearms is distinct from that of some other States, which have laws specifically addressing the carrying of concealed firearms. See, e.g., Cal.Penal Code § 12025 (defining crime of “carrying a concealed firearm” and explaining that “[f]irearms carried openly in belt holsters are not concealed”); Va.Code Ann. § 18.2-308(A) (defining crime of “carr[ying] about [one's] person, hidden from common observation, ... any pistol”); see also N.Y. Joint Legislative Comm. on Firearms & Ammunition, N.Y. Legislative Doc. No. 29 at 13 (N.Y.1962) (“[T]he historic factor of whether the firearm is carried openly or concealed has frequently been decisive. Apparently in only nine (Conn.D.C., Hawaii, Ind., Mass., N.M., N.Y., Tex., W.Va.) of the forty-five prohibiting jurisdictions does the prohibition extend to openly carried firearms.”).

Bach v. Pataki, 408 F.3d 75, 95 (2d Cir. 2005)

 

[emsjeep]

This is from NYS Penal Law 400.00 -

11. License: revocation and suspension. Except for a license issued
pursuant to section 400.01 of this article, a license may be revoked and
cancelled at any time in the city of New York, and in the counties of
Nassau and Suffolk, by the licensing officer, and elsewhere than in the
city of New York by any judge or justice of a court of record; "

The exception applies to LEO's. In the application for a permit, they must have "just cause" to deny it. Once the permit has been issued - it can be recinded at any time for any reason - it says so right on the permit. There is nothing about appeals. Judges have wide latitude concerning permits. If you have a valid permit, you would not be charged under NYS Penal Law 265 which covers illegal possession of firearms, but 400.00, which covers pistol permits, states in the law that carry restrictions can be applied by the issuing authority - i.e. judge. If you violate those restrictions - you can lose your permit. FYI - sherriffs UPHOLD the laws, they don't make them.

As to "just cause to deny it," just cause can be a lack of "proper cause:"

The officer may deny an application for any “good cause,” see N.Y. Penal Law § 400.00(1)(g); Bando v. Sullivan, 290 A.D.2d 691, 691-92, 735 N.Y.S.2d 660 (3d Dep't 2002), may deny a carry license for an absence of what the officer deems “proper cause,” see *80 N.Y. Penal Law § 400.00(2)(f),8 and may restrict a carry license “to the purposes that justified the issuance,” O'Connor, 83 N.Y.2d at 921, 615 N.Y.S.2d 305, 638 N.E.2d 950. Licensing officers can deny applications where they find an applicant's personal background troubling. See, e.g., Vale, 290 A.D.2d at 613, 735 N.Y.S.2d 650; Fromson, 178 A.D.2d at 479, 577 N.Y.S.2d 417. A licensing officer may also deny a carry license for lack of “proper cause” if, inter alia, the applicant does not “sufficiently demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” Williams v. Bratton, 238 A.D.2d 269, 270, 656 N.Y.S.2d 626 (1st Dep't 1997) (quoting Klenosky v. New York City Police Dep't, 75 A.D.2d 793, 428 N.Y.S.2d 256 (1st Dep't 1980), aff'd 53 N.Y.2d 685, 439 N.Y.S.2d 108, 421 N.E.2d 503 (1981))

Bach v. Pataki, 408 F.3d 75, 80 (2d Cir. 2005)


This, of course, is all just my best opinion....so if anyone has input, please share.

 

[Makarov]

Actually There is a Federal Permit

Its called the Second Amendment. It is federal law!

Does anyone actually believe this guy?

There is no such thing as an "open carry permit" in New York first of all, and no such thing as federal permit, ever.

I think this is a fake person posting things on the board to cause issues. All caps, spelling errors?