NEW YORK PISTOL LICENSES - UPDATE
On June 23, 2022, New York’s system of denying carry licenses based on “insufficient need” or lack of “proper cause” was struck down by the U.S. Supreme Court. This means that if a person can pass the background check and moral character review, and if there is no other good cause to deny the license, the applicant cannot be denied a carry license based on “need.”
This is the end of discretionary need-based carry license denials which began over a century ago under the 1911 Sullivan Act, and this significantly restores the Second Amendment to its original meaning.
Unfortunately, New York is a very anti-gun State, as is New York City and the NYPD. You should expect that all levels of New York government will try any way possible to obstruct the Supreme Court ruling.
Governor Hochul has said that the Court’s ruling was “reprehensible,” “shocking,” and that, “this is New York, we don’t back down, we fight back.” She has signed new laws expanding the discretionary "moral character" background investigation, and laws that require mandatory shooting range training, searching the online social history of gun license applicants, making most retail establishments off-limits to people with guns, making public transportation a gun-free zone, and many other oppressive laws.
Thus, it is obvious that, while other states appear to be accepting the Supreme Court's decision, New York has created a full blockade, and licensees and applicants still must fight for their rights.
There will be much more court action, as each new law and regulation are thrown in the way. But now, the Supreme Court has said that the Constitution of the United States is on your side, and so if you are ready to apply for a carry license you have a much better chance of succeeding than ever before.
NYPD PSYCHOLOGICAL
DISQUALIFICATION APPEAL
Government job applicants can be disqualified from employment for various reasons, including character (honesty and trustworthiness), medical (physical) and psychological (mental). Of all these, psychological disqualifications are the most challenging, and unfortunately, they also can be the most damaging to your future employment if not handled correctly. A psychological disqualification has the real potential to ruin your job opportunities.
Also unfortunate is the rate of psychological disqualification. As example, one New York law enforcement agency has reported that over a 14 year period it psychologically disqualified 27% of all job candidates who were evaluated. So for every 1,000 candidates, 270 were psychologically rejected. But that only is the average rate over 14 years; for 7 of those years the disqualification rate was 30%-34%.
Appealing a psychological disqualification involves a psychological or psychiatric expert witness who provides an opinion about your mental suitability for employment. Commonly, the opinion also highlights any disagreement that the expert has with the agency disqualification.
It is very important that the psychological expert have sufficient experience in the field of related disqualifications. As example, if you are a police candidate then you should obtain the services of a psychologist who has experience with police psychological disqualification appeals.
You also should consult with an attorney who is knowledgeable about your kind of case. Many legal issues arise in the preparation of appeals, and it is very unlikely that you or your psychologist will be able to deal with these properly. The best representation for you will occur when an experienced lawyer and psychologist work together.
NEW YORK CITY HUMAN RIGHTS COMMISSION
In practice, all that has changed is that most of what you previously had to do when appealing a Notice of Disqualification, now is done when you receive an NOPD. Instead of appealing a disqualification to the Civil Service Commission, now a reconsideration appeal is sent to the agency first, and after final disqualification you appeal to the Civil Service Commission.
Nevertheless, while only a minor change in procedure has occurred, there is an important consequence: If you wait until the NOPD process is over before getting good legal counsel, you may have hurt your appeal. This is because all supporting papers and other evidence must be presented to the agency during the NOPD process. After that, when the agency issues a final disqualification, the "administrative record" is closed, and any new evidence you try to submit to the Civil Service Commission can be "inadmissible." So if you do not put your best foot forward during the NOPD process—using all evidence and legal resources available—then the case may be defective when it goes to the Commission. Many people learn this lesson late and hard.
In almost all instances, good attorneys can make a case better and stronger than the client could have done on their own. You may understand some of the good evidence in your case, and medical experts should be able to identify relevant medical issues. But almost always, you will overlook helpful legal points, or worse, you will use evidence that actually hurts your case. Also, you might assume that your case is "good enough" to win, and decide that you will call a lawyer only if you lose the NOPD appeal. But by then, the damage has been done. The best course is to contact counsel immediately upon receiving a Notice of Proposed Disqualification, or any other negative notice from an agency.
PSYCHOLOGICAL FILE
If you are a New York government employment candidate who was disqualified for medical reasons, the New York Public Health Law provides that you have the right to obtain a copy of your medical file from the government agency. As example, a Police Officer candidate denied employment for psychological reasons has the right to get a copy of his psychological file.
Unfortunately, most agencies violate this law and refuse to release file copies to candidates. Usually the file is released only to a doctor who is assisting the candidate with a disqualification appeal, and the government directs the appeal doctor not to give the file to anyone else. That direction is wrong, but many doctors are scared by the warning and will not release the file to the candidate or even the candidate’s lawyer.
Nonetheless, the law is clear and it has been upheld in court. Disqualified candidates have the right to obtain a copy of their medical file, and they can enforce that right by going to court.
PSYCHOLOGICAL INTERVIEW PREPARATION &
PSYCHOLOGICAL EVALUATION PREPARATION
Almost all police and public safety agencies will screen you for psychological suitability, and usually this involves three steps. First, questionnaires about personal history. Second, psychometric tests, including the MMPI-2-RF and Cornell Index. And third, a psychological interview; sometimes more than one.
You can make serious mistakes at all levels. With psychometric testing, the usual mistake is answering questions in a way that you believe will make you look better. But since the tests are geared to measure such "faking good," the result is a test score which hurts you. So the best advice regarding these tests simply is to answer all questions honestly.
However, far more important than test scores is your performance during the psychological interview. The interview is the culmination of the entire psychological evaluation process, and if you do poorly, then your fate is sealed. No amount of good personal history or test scores will compensate for a bad interview. Unfortunately, few candidates know how to present themselves well, and very often make significant errors that lead to disqualification.
Since candidates usually have no experience with psychological interviews, the failure rate is not surprising. And in New York City, the failure rate is higher than the national average. This means that the chance of psychological disqualification is greater than most other places, and many candidates who never imagine that they will be disqualified receive a nasty surprise in the mailbox.
Keep in mind, you do not need to have a mental illness to be disqualified, and disqualified candidates usually have no mental condition at all. What they almost always have in common is that they did badly during the interview.
The good news is that you can be well prepared for a psychological interview, but only if you are counseled by someone who understands the process---such as an attorney with many years experience in psychological disqualification cases. Just like taking an S.A.T. prep course, or a class that teaches job interview skills, you can learn how to handle a psychological interview also. Some candidates who received counseling later remarked about how easy the psychological interview seemed, but how difficult it would have been without preparation.
Do not "cast your fate to the wind" and pray for a good outcome. Maximize your chances of success by being prepared for the psychological evaluation.
ARTICLE 78 PROCEEDING
The New York Civil Practice Law and Rules (CPLR) gives you the right to sue a government agency for various reasons, and many cases involve Article 78 of the CPLR.
An Article 78 proceeding is used, among other reasons, when you want to challenge a government agency decision, or force an agency to do something. As example, when an agency issues a bad decision about you, usually it can be challenged in court under Article 78. Or, the agency might be refusing to issue a decision at all. To force the agency to act, you can use an Article 78 proceeding.
However, you must use all available agency procedures before filing an Article 78. This means that any internal agency appeals, or other available appeals, must be used before going to court. If those procedures are not used, then you lose the right to file an Article 78.
Also, you must usually file the Article 78 proceeding within four months of the final agency determination. This means that once the agency has made its final decision about you, an Article 78 must be filed within four months of the date of that decision.
The four month period is not 120 days, as many attorneys (and even some judges) mistakenly believe. Four months means the same day in the month four months later. As example, if the government notice is dated June 5th, then the four month Article 78 filing deadline is October 5th, not 120 days later on October 3rd. If the deadline month does not have the same numbered last day as the date of the government notice, then the deadline is the last day of the deadline month. As example, if the government notice is dated the last day of December, December 31st, then the Article 78 deadline is April 30th, because April does not have 31 days.
Additionally, if the deadline date falls on a weekend or legal holiday, the deadline is extended to the next business day. As example, if the deadline falls on a Saturday or Sunday, the deadline becomes Monday, unless Monday is a legal holiday, in which case the deadline becomes Tuesday.
Whatever the deadline date, as you can see, the Article 78 filing period only is a few months, and if your case is not filed by the deadline then usually you lose the right to go to court. This is called being "time barred." So it is very important that you contact an attorney as soon as you receive any unfavorable decision from an agency, or as soon as you realize that the agency is refusing to give you a decision. This is so you can find out if any agency appeals must be used, and also to make sure that your Article 78 time deadline is not missed.
PORT AUTHORITY DISQUALIFICATION
Employment disqualifications from city and state agencies in New York routinely are appealed to various civil service commissions. However, disqualifications from public authorities, like the Port Authority of New York & New Jersey, are not covered by the Civil Service Law, and so cannot be appealed. This is because the Port Authority is not an agency of either New York or New Jersey, but an entirely separate entity created by agreement between both states.
The Port Authority acts, essentially, like an independent government, and has vast powers normally exercised only by a state. It is for this reason that such public authorities commonly are referred to as "shadow governments," and the laws which apply to city and state agencies often do not apply to authorities. The result is that job disqualifications from the Port Authority ordinarily cannot be successfully challenged. The only exception is perhaps a rare case of civil rights violation, where a Federal lawsuit might be filed.
However, while Port Authority employment disqualifications usually cannot be challenged, the candidate still has a right to obtain the reasons for the disqualification, which are contained in the Authority’s employment investigation file. As example, a candidate disqualified for psychological reasons has a right to obtain a copy of the psychological file. A demand for the file must be made, and if the Authority refuses to release the file, an Article 78 court proceeding can be used to compel release.
Candidates interested in obtaining such files should contact an attorney as soon as the candidate receives a notice of a Port Authority disqualification.
NEW YORK GUN ARREST
HANDGUN ARREST
ASSAULT WEAPON ARREST
KNIFE ARREST
AIRPORT ARREST
New York weapon laws are different from most other places, and the gun laws truly are terrifying. Your mere possession of a loaded handgun, with no criminal intent at all, results in a mandatory 5-15 year prison sentence upon conviction. Further, almost every case of unlicensed handgun possession now is a felony offense, including possession in the home which formerly only was a misdemeanor.
This is true also for rifle and shotgun possession, particularly if your gun meets the definition of an "assault weapon." Many rifles and shotguns which are legal most everywhere else are considered assault weapons in New York, and the same mandatory sentence applies as with handguns. Additionally, gun magazines are included in the felony category if they can hold more than 10 rounds of ammunition.
Knives too are criminalized in New York, and the knife statute is so vague that carrying almost any knife is chargeable as a crime. In New York City, your carrying even a simple pocket knife can result in arrest.
If you are unaware, you unknowingly can be ensnared by these laws, and many people traveling with guns at airports and by car are arrested regularly. You would be shocked by the severe penalties, and become even more shocked when facing a prosecutor determined to obtain a jail sentence, even though you were not aware of the law.
Your case will require representation by counsel experienced with New York gun and weapon laws, and who understands every argument that can be raised for you against the government. In many cases, not only can police and prosecution errors be used as a defense, but also technical issues regarding weapon specification. A defense attorney must be skilled in all these areas to give you the greatest advantage. If you are charged with violating the firearm, pistol, rifle, shotgun, assault weapon or knife laws, please contact our office immediately.
NEW YORK SAFE ACT APPEAL,
NICS APPEAL & CERTIFICATE OF RELIEF
In 2013, the New York Secure Ammunition and Firearms Enforcement Act (SAFE Act) was created, and one part of that law changed the New York Mental Hygiene Law (MHL) to require that certain people be reported to the State. If a mental health professional believes that you are “likely to engage in conduct that would result in serious harm to self or others,” then you must be reported to the State, and once reported you lose your right to own firearms.
Also, when New York puts you into the State MHL reporting system, you will not be able to buy a gun legally, and if you go to a gun store and try to purchase a firearm, the FBI National Instant Check System (NICS) will deny the purchase.
The reporting system has been severely criticized, and rightfully, because mental health providers and hospitals routinely report people who are not a threat to anyone. Doctors and hospitals are frightened that if a person they treat later harms themself or another person, then the doctor or hospital will be blamed for not reporting. And so, people are being reported, and are losing their gun rights, even when they are not dangerous.
The only way to restore your rights is by getting a Certificate of Relief from Disabilities. When that Certificate is issued by New York, FBI NICS then no longer should deny gun purchases. However, the Certificate of Relief process has many steps, and must be completed carefully so that you can have the greatest chance of getting back your rights.
NEW YORK ASSAULT WEAPON LAW BOOK
Mr. Levine's latest book, New York Assault Weapon Laws, has been published by LawTech Publications Company and now is available for purchase. The book contains detailed analysis of the New York assault weapon law, various local assault weapon codes, gun-related terminology, and is heavily illustrated with many photographs. It is a must-have resource for persons interested in this very complex and confusing legal subject.
The book can be purchased by using the order form below, or by telephoning LawTech Publications at 212-482-8830. The cost is $49.95 which includes tax and shipping.
An online review of the book by TheGunMag.com can be viewed at:
http://www.thegunmag.com/real-skinny-new-yorks-vaunted-assault-weapons-laws/
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MEDICAL LICENSE DEFENSE
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PROFESSIONAL LICENSE RESTORATION