Heading to NYC? Keep That Gun at Home

Posted January 24, 2012 in Criminal Law by Richard Dahl

Three recent news accounts involving arrests of gun-toting visitors to New York City serve as cautionary advice to anyone thinking they might need to pack heat when visiting Gotham—even when it’s legal heat.

A former Marine from Indiana and a medical student from Tennessee were arrested by New York Police when they tried to check their handguns at the Empire State Building and 9/11 Memorial, respectively, while Tea Party co-founder Mark Meckler met a similar fate trying to check his handgun at LaGuardia Airport. All three guns were legal in their owners’ home states—but not in New York, where any firearm lacking a New York license is illegal and its owner is a suspected felon facing a mandatory minimum sentence of 3 ½ years.

To New Yorkers and people in other locales with tough gun laws, these incidents might appear as little more than an indication that gun owners from rural states aren’t too bright. But the arrests have pushed New York’s tough stance on legally-owned outside guns into the news at the same time that the NRA has been pushing passage of a law that would require states to recognize all out-of-state gun permits—no matter how lax those states’ laws may be. H.R. 822, a bill to create such a law actually passed the House in November, although its chances in the Democrat-controlled Senate are not great.

Martin D. Kane

Martin D. Kane

But as Kew Gardens (N.Y.) criminal-defense lawyer Martin D. Kane points out, “What New York does is not helping matters. It’s pretty unreasonable and it’s great fuel.”

Kane offers his pronouncement from a certain degree of expertise. His office is across the street from the Queens Criminal Courthouse, which is midway between LaGuardia and John F. Kennedy International Airport—and it turns out that cases involving visitors who think they can carry their legal guns while visiting New York are actually quite common. Kane estimates he does about a dozen per year.

And he says they’re almost always the same.

First, he says, gun owners almost invariably check with the airlines and ask if they can bring their firearm. Almost invariably, he says, the airline will say yes as long as they follow certain procedures, including the placing of the gun in a secure lockbox that the airline and TSA can open and the filling out of a form.

But he says they rarely tell passengers about the law—and the penalties—that may be awaiting them on the other end.

“So you fly into New York City, you de-plane, and you get your luggage. No problem. Nobody’s checking anything when you arrive in New York. So now you go about your business and head back to the airport, be it LaGuardia or Kennedy, and you do exactly the same thing. You go over to the airline counter with your nice, official, TSA-approved lockbox and you tell the agent, ‘I have a handgun that I want to declare,’” the same as you did coming into New York, and they say, ‘Wait right here.’ Two minutes later there are six Port Authority police descending on you. You are arrested, you are held, usually overnight, before you get to see a judge. When you go in front of the judge, the DA will ask for some outrageous bail—usually around $50,000—and the judges, who know better, will generally release people without any bail.”

People who are arrested for gun possession in this manner are charged with a class C violent felony, which carries a maximum sentence of 15 years and, perhaps more importantly, a minimum sentence of 3 ½ years.

This is the stuff of nightmares for unwitting visitors, but Kane says it’s seldom as bad as it sounds. In fact, he says, he almost always succeeds in getting the charge dropped without so much as a criminal mark on his clients’ records.

“You should never try to ‘defend’ these cases,” he says, because the law is clear and there’s no room for negotiation. The mistake some defendants and defense lawyers make is in fighting the charge and taking it to the point of indictment—“and once they’re indicted, it’s impossible to work out a type of disposition that will have no consequence.”

The secret to success? Being reasonable.

“Basically, I prepare a whole report for the DA—and there’s only one DA who handles all the gun cases—that includes all their licenses and their wonderful community service they may have done. Just something to show that they’re upstanding citizens. In every case I’ve had, I’ve kept people from even getting a criminal record.”

His advice?

“It’s not advice; it’s a mandate. Do not bring your gun to New York. You are going to have a very unpleasant time.”

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