Yesterday we posted a story about an Empire State state probation officer at the center of a swirling controversy about New York state firearms law. Officer Kelly Miazga got into hot water for instructing her two pre-teen sons on gun safety with a hands-on demo. We pointed out that the Empire State prohibits its citizens from touching—yes touching—a firearm without a license to do so. Some of our readers figured it couldn’t really be as bad as all that. So we asked noted New York criminal defense attorney and firearms law wiz Peter Tilem [above] to give us the full scoop on the crazy train of rights abrogation surrounding this storm in a teacup . . .
As a New York Firearms lawyer, former firearms prosecutor and NRA certified firearms instructor, when I see an article like the one in timesunion.com it’s hard to know where to start. Do I begin by highlighting an important State Assemblyman who clearly doesn’t know anything about the laws he’s passing? Or do I begin with the laws themselves, regulations that are so complex and absurd that no one, certainly not a lay person, can understand them?
Let’s go with this . . .
New York State Penal Law prohibits possession of an unloaded firearm. Even at a gun range. If ammunition is present, it may be a felony. Penal Law § 265.20 lists a number of limited exceptions to this general rule—none of which would apply to a case of a probation officer giving her child an unloaded gun to handle as part of a safety demonstration.
The only exceptions that are even potentially relevant to our discussion are in New York Penal Law 265.20 subsections 7 and 7-e. Both of these exceptions apply to possession “at an indoor or outdoor shooting range.” Subsection 7 requires that it be “for the purpose of loading and firing, of a rifle or shotgun. . .” Which is obviously not the case here since the firearm in question was a pistol, not a shotgun or rifle.
In addition for subsection 7 to apply it must be . . .
. . . by a person under sixteen years of age but not under twelve [and] under the immediate supervision, guidance and instruction of (a) a duly commissioned officer of the United States army, navy, air force, marine corps or coast guard, or of the national guard of the state of New York; or (b) a duly qualified adult citizen of the United States who has been granted a certificate as an instructor in small arms practice issued by the United States army, navy, air force or marine corps, or by the adjutant general of this state, or by the national rifle association of America, a not-for-profit corporation duly organized under the laws of this state; or (c) a parent, guardian, or a person over the age of eighteen designated in writing by such parent or guardian who shall have a certificate of qualification in responsible hunting, including safety, ethics, and landowner relations-hunter relations, issued or honored by the department of environmental conservation; or (d) an agent of the department of environmental conservation appointed to conduct courses in responsible hunting practices pursuant to article eleven of the environmental conservation law.
Unless the probation officer/mother is a certified firearms instructor, has a certificate in responsible hunting or fits into another category, he will not qualify. Subsection 7-e similarly authorizes the possession of a pistol or revolver at a range . . .
. . . for the purpose of loading and firing the same by a person at least fourteen years of age but under the age of twenty-one who has not been previously convicted of a felony or serious offense, and who does not appear to be, or pose a threat to be, a danger to himself or to others; provided however, that such possession shall be of a pistol or revolver duly licensed to and shall be used under the immediate supervision, guidance and instruction of, a person specified in paragraph seven of this subdivision.
Again: this only applies at a gun range, for the purpose of loading and firing (not for the purpose of cleaning or learning safe operation). The exemption is limited to individuals ranging in age from 14 to 21 years old. It is noteworthy, but not necessarily relevant to this article, that no such exemption exists for adults over 21.
The second issue—whether the officer’s children would be considered to be in possession of the firearm—-is obvious to everyone—except the Assemblyman.
Firearms possession in New York can be actual or constructive. They are not mutually exclusive. Because the mother may have been in constructive possession of the firearm (my take) it does not in any way negate the fact that the child was in actual possession of the firearm. That’s a crime under the laws of the State of New York; the mother can be construed as having aided and abetted in the child committing this crime.
Lastly, there’s the question of whether or not the mother used bad judgment in handing her sons an unloaded handgun. The idea that a trained law enforcement officer (LEO) cannot give a 10-year-old a firearms safety lesson with an unloaded firearm is truly absurd.
Peter Tilem is a senior partner at Tilem and Campbell