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State of New York. 2012 ‘New York Constitution Art. IX, § 2(c), etc..’ Firearms Law Database - Local Authority to Regulate Firearms in New York. San Francisco, CA: Giffords Law Center to Prevent Gun Violence. 3 January

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Local Authority to Regulate Firearms in New York

New York Constitution Art. IX, § 2(c) and New York Municipal Home Rule Law § 10(1)(ii)(a)(12) (containing substantially the same language) confer broad power upon local governments to adopt laws that relate to, among other things, the "protection, order, conduct, safety, health and well-being of persons or property." However, local laws may not conflict with the state constitution or general laws. State courts have found the regulation of weapons to be a legitimate exercise of local police power.

In DJL Restaurant Corp. v. City of New York, 749 N.E.2d 186, 190 (2001), a non-firearms case, the Court of Appeals of New York explained the two ways in which state law preempts local law:

1) when a local law directly conflicts with a state statute; and
2) when a local government legislates in a field which the state occupies, either expressly or by implication. Conflict occurs when local law prohibits conduct which the state allows, or does not proscribe, or imposes additional restrictions on rights granted by state law. State occupation of a field can be found from an express declaration by the state or impliedly from "the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area.'"

New York has not expressly preempted local firearms or ammunition ordinances, nor has the legislature universally been found to have impliedly preempted the broad field of firearms regulation. For example, in People v. Stagnitto, supra, the court rejected defendant's contention that Rochester's assault weapon law was preempted by section 265.00 et seq. (New York's Penal Code provisions regulating firearms and other dangerous weapons), stating, "[t]he mere fact that a local ordinance has some connection with a subject upon which a State statute exists does not automatically vitiate it."

Similarly, in Richmond Boro Gun Club, Inc. v. City of New York, No. CV-92-0151(RR), *9, Report and Recommendation (E.D.N.Y. Apr. 16, 1992), the United States District Court for the Eastern District rejected plaintiff's motion for a preliminary injunction regarding New York City's assault weapons ban, finding "no intent, either express or through 'occupying the field', on behalf of the state legislature to preempt the field of firearm regulation."

The Richmond Boro court observed that "even if the local law is inconsistent with the state law, there may not be a preemption if it can be shown that there is a specific local problem justifying the enactment." "To the extent that any such intent may reasonably be gleaned from [N.Y. Penal Law §§ 265.00 et seq. and 400.00 et seq.], it appears that there is an overriding specific local safety problem justifying New York City's ban on assault weapons." The court went on to note that the recent and sudden proliferation of assault weapons had prompted the city council to act.

In Citizens for a Safer Community v. City of Rochester, 627 N.Y.S.2d 193, 201-02 (N.Y. Sup. Ct. 1994), the court held that state law did not preempt a city from regulating the possession and sale of assault weapons with large capacity ammunition magazines or certain accessories. "Clearly, the State has not, either directly or indirectly, regulated all aspects of gun possession and use as to time, place and circumstance."

In Grimm v. City of New York, 289 N.Y.S.2d 358, 363 (N.Y. Sup. Ct. Queens Co. 1968), the court determined that New York City's licensing and registration law regarding rifles and shotguns was not preempted by state law. The court stated that while state law addressed the possession of rifles or shotguns by persons under age 16, aliens, convicted felons and adjudicated incompetents (see § 265.00 et seq.), it did not deal "so extensively with the subject of the control of such weapons as to evidence any design or intention by the State to pre-empt the entire field."

In De Illy v. Kelly, 775 N.Y.S.2d 256 (N.Y. App. Div. 2004), the court upheld a local regulation that allows firearm possession restricted by state law. The De Illy court rejected a preemption challenge to New York City's creation of a "premise" license that allows a permittee to possess a firearm on his or her premises and to transport the firearm to authorized target ranges and hunting areas. The court found that although state law regulating premise licenses, N.Y. Penal Law § 400.00(2)(a), does not permit licensees to transport weapons, the law has not preempted the field and the local law is merely an acceptable supplement to state law in this area.

Other judicial decisions have found firearm ordinances preempted by state law. Most significantly, in Matter of Chwick v Mulvey, 915 N.Y.S.2d 578 (N.Y. App. Div. 2010), the court held that New York state law implicitly preempted a Nassau County ordinance prohibiting the possession of "deceptively colored" handguns. The court held that the ordinance interfered with the licensing provisions of New York law by making it illegal for an individual to possess a deceptively colored handgun in Nassau County even though such individual held a valid firearms license under state law. Further, the appellate court held that the comprehensive and detailed regulatory language and scheme of state law demonstrated the legislature's intent to preempt the field of firearm regulation.

In Citizens for a Safer Community v. City of Rochester, supra, the court found that federal and state law (15 U.S.C. § 5001(g), and N.Y. Gen. Bus. Law §§ 870 and 871, respectively) established an intent to fully regulate "the manufacture, sale and possession of air guns, spring guns, and imitation arms," thereby preempting the portion of the City's ordinance defining "air guns" (which was also found to be vague and overbroad).

Some courts have overturned firearm ordinances due to a conflict with state law. In People v. Kearse, 289 N.Y.S.2d 346, 350-51 (N.Y. City Ct., Syracuse 1968), defendants challenged part of a Syracuse law allowing the mayor to prohibit persons from carrying or possessing firearms during "special emergencies," arguing that the ordinance made no exception for state license holders. The trial court agreed, noting that N.Y. Penal Law § 400.00(6) specifically provides that "[a]ny license issued pursuant to this section shall be valid notwithstanding the provisions of any local law or ordinance." (Emphasis added by the court.)

Finally, the court in People v. Del Gardo, 146 N.Y.S.2d 350, 354 (City Magis. Ct. Manhattan 1955), invalidated a New York City ordinance banning any toy or imitation handgun which "substantially duplicates" an actual handgun (unless certain requirements were met), because the ordinance did not exempt cap guns, which state law permits the sale and use of "at all times." (Emphasis added by the court.)…

ID: Q7728

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