Judge Tosses First SAFE Act Charge

 Paul A. Wojdan (courtesy mychampionvalley.com)

“Lockport [NY] police violated Paul A. Wojdan’s [fourth amendment] constitutional rights by counting the bullets in his gun and charging him with violating New York’s SAFE Act, Lockport City Judge William J. Watson ruled Wednesday,” buffalonews.com reports. “Watson dismissed a misdemeanor charge against Wojdan, filed because the magazine of his 9 mm Ruger handgun contained 10 bullets, more than the limit of seven bullets per magazine under the Secure Ammunition and Firearms Enforcement Act.” Again, the SAFE Act ammo limit law was not at issue. It was the judge’s opinion that the cops counting rounds was an unreasonable search and seizure. Here’s how it went down . . .

Wojdan was a passenger in a car driven by his wife at about 2 a.m. Oct. 12, when Lt. Adam Piedmont of the Lockport Police Department clocked it going 44 mph in a 30-mph zone on South Transit Street.

The car didn’t stop until Piedmont had followed it for about a mile and a half.

Piedmont was joined by Officer Daniel Barrancotta, who testified that he joined the chase when he heard the siren while waiting in the drive-thru lane at Mighty Taco.

Piedmont said he asked if there were any weapons in the car. Wojdan said there was one in a holster in the glove compartment, and his pistol permit was in the center console.

After ordering Wojdan and his wife out of the car, Piedmont said he directed Barrancotta to find the permit and the gun, which the patrolman quickly did. Piedmont then told Barrancotta to “make the gun safe.”

“My experience is, the best way to make a gun safe is to remove the magazine,” Piedmont testified.

Barrancotta said it was also the only way to check the serial number to match it against the list on the pistol permit, and to make sure there was no round in the firing chamber. There was not.

There is a row of what Piedmont called “observation holes” in the magazine, each numbered, with bullets visible through the holes.

“In observing the magazine, I did notice there were at least 10 rounds in the magazine,” Barrancotta testified. He then emptied the magazine.

“I did count rounds just to confirm our reasonable suspicion that there were more than 10,” Piedmont said.

Tresmond said, “Once the magazine is removed from the firearm, the firearm cannot fire. At that point in time, the search of the firearm should have ceased. But the officers went further. … It was a search without a warrant.”

Assistant District Attorney David A. Hoffman thought the officers’ action was permissible. He argued, “I think it’s reasonable for them to check the firearm and the magazine. They didn’t seek the number of rounds in it. They did it for officer safety.”

Watson ruled from the bench that the officers had a right to ask about weapons, given the prolonged pursuit of the car. “I think the officers had a lawful right to make the weapon safe,” Watson added. But when they started counting rounds, they went too far, the judge concluded.

Lockport Police Chief Lawrence M. Eggert said his department’s policies on checking guns will be altered where necessary.

What does that mean? Watch this space. Meanwhile, check out the angry comments underneath the source article. Wow.

comments

  1. avatar Nathanredbeard says:

    Well…it’s a win, I think? Seriously glad I’m not a lawyer, if that’s how you have to think.

    1. avatar Michael in GA says:

      You don’t have to consent to a search. The question “do you have a weapon?” is a verbal search. If you are afraid to say no then your response should be “I’m not going to answer questions that may lead to a violation of my rights”.

      1. avatar Jim Owen says:

        In some States the law requires you to tell the officer that you have a CCW and that you are armed (if you are) Any other response is unacceptable and may land your butt in the slammer. Be sure you know the rules for the State you’re in.

      2. avatar PavePusher says:

        Check your assumptions…. Or have a really good legal team on-call.

        http://www.handgunlaw.us

    2. avatar Hannibal says:

      It’s a win but in a way I wish it would have been ruled a good search and then been thrown out based on the 7-round limit having been found to be unconstitutionally arbitrary.

      1. avatar Alex Peters says:

        What’s laughable is that this guy, in the mile and a half the cop was following him, didn’t think to take 5 seconds and remove three rounds from the magazine?

    3. avatar don says:

      The President and his Attorney General have recently said it’s ok to follow the laws you like and don’t follow the laws you don’t like. I guess the judge and the defendant didn’t like this law. So what?

  2. avatar DD says:

    Not angry, unless you include anger at the “Safe Act” being law. His rights were clearly violated but only under the 2nd not 4th amendment. I would argue that once the magazine was removed the number of rounds was in plain view and the plain view doctrine should apply, just as if they had observed some contraband while conducting a legal search. But the case should be dismissed because of the second amendment violation and he should file civil suit against the State, County, and police department involved. Not to mention the bivins he should file against the officer. (source article didn’t populate)

    1. avatar Rokurota says:

      Could’ve been snap caps or dummies. Reasonable doubt.

      1. avatar John Sager says:

        Eh. Reasonable doubt is for convictions in a trial. Not for search and seizure. Doesn’t apply here.

      2. avatar Hannibal says:

        And OJ was innocent.

        1. avatar Cliff H says:

          Your /sarc is obvious, sir, but in reality OJ was “not guilty,” not “innocent.”

        2. avatar William Burke says:

          Until he found himself in a Las Vegas hotel room, anyway. ;D

      3. avatar Jonathan - Houston says:

        Or, could have been live rounds. Reasonable suspicion, which is the relevant standard at that point in the investigation.

    2. avatar John says:

      Plain view doctrine came to mind for me as well. I won’t fight the decision though.

      1. avatar William Burke says:

        I fail to understand what is “plain view” about a magazine inside a gun, inside a holster, inside a glove compartment.

        Please enlighten me.

        1. avatar Ralph says:

          It’s plain view because cops have X-ray vision. And superpowers.

        2. avatar ML says:

          chirp, chirp, chirp . . .

          I swear – gun owners are their own worse enemies a lot of the time. Can’t see the forest through the trees.

        3. avatar William Burke says:

          Thanks for answering my question so lucidly!

        4. avatar Hannibal says:

          If you are not reasonably suspected of a crime, you don’t have to worry about Terry. If you are reasonably suspected, you do.

          Not that difficult to understand unless you’re struggling not to do so.

        5. avatar Jonathan - Houston says:

          The judge found that since the suspects took so long to stop, a mile and half, that the police were justified in making the firearm safe during the stop. Now, they wouldn’t have even known about the firearm had the driver not answered the question about weapons, but that’s separate.

          Once they knew about it and since, per the judge, they had authority to make it safe, then removing the magazine would result in the round count coming into plain view via the “observation holes” (never heard that term before, myself) in the magazine.

          That officer is a dolt, though. Removing the magazine is a necessary, but not sufficient, condition for making the firearm safe. Remove the magazine, lock back the slide, then visually and physically inspect the chamber to ensure it’s empty. That’s how you make safe and show clear.

          Some firearms cannot fire if the magazine is removed, but never rely on that feature or any other mechanical safety. I don’t know the exact model of Ruger in this case. However, the popular Ruger LC9 can fire a chambered round even if the magazine is removed. He shouldn’t take shortcuts and make assumptions about the operation of an unfamiliar firearm.

        6. avatar bgreenea3 says:

          the 4th Ammendment has exceptions to when a warrant is needed for a Search and or Seizure. As interpeted by the SCOTUS…

          Open View- Anything that anyone can see i.e. you plant your Marijuana plant in your front yard next to your mail box, anybody can see it.

          Plain view- anything that can be seen by a police officer in the course of his duties but not in open view. i.e. Your Marijuana plant is on the back seat of your car and is visible when the officer stops you for a busted tail light. (plain feel or smell goes with these. plain feel=during a pat down an officer can immediately identify an object as contraband due to feel. pain smell is the same but with the nose not the fingers)

          Boarder Crossings- international boarders only.

          Search incident to arrest- generally allwed after a lawful arrest of the person and Wingspan Like your pockets, purse or, tactical man purse, (but not the vehicle or contents that was overruled a couple years back)

          inventory- generally of a vehicle before an impound to itemize the contents incase of theft at the impound yard.

          Consent- “go ahead and search me”

          Fresh pursuit/ hot pursuit- you run from the police (lawful arest) into a building the cops can chase you inside w/o a warrant or chase across state or jurisdictional lines.

          emergency circumstances- officer see person laying in pool of blood through a window of a house, may enter w/o a warrant to check status of the victim, if other items are found a warrant may be needed.

          I think I hit all of them….

        7. avatar AaronW says:

          Back of the magazine has witness holes?

        8. avatar DD says:

          He told the officer where the weapon and permit therefore were at the time of the stop and consented that the officer examin same (at least there’s nothing stating the contrary). So the officer, examined the weapon and permit and at the time of the examination while rendering the weapon safe, could see ten rounds of ammunition in the magazine. At that point, since the officer was within legal boundries the rounds exposed in the back of the magazine were in plain view. A reasonable person would expect that one would not load a firearm for personal protection with snap caps.

          If on the other hand the defendant had placed black electrical tape over the holes in the back of the magazine the officer would need a search warant for rurther examination. Same would apply if there were no holes at all.

        9. avatar Jonathan -- Houston says:

          There are a few more exceptions to mention, while we’re at it. First, there’s consent. People forget that, because they’re always looking at the cops as sneaks, cheats and crooks trying to weasel their way around the Constitution. Without getting into that……..the police can simply ask a suspect a question. If the suspect admits to a crime, then the police don’t need a warrant to investigate that crime at that location.

          “Do you have any drugs on you?”
          “No, not really, just a dime bag of weed in my coat pocket, a handful of ecstasy pills in my pants
          pockets, oh, and this chunk of mescaline I keep in my shirt pocket, you know, just for an
          occasional bump to take the edge off.”
          “Right. I’m going to search you now without a warrant.”
          “Doh!”

          There’s also what’s sometimes called the “automobile rule” that allows police to search a vehicle, or really any highly mobile vehicle/structure, if they have probable cause of a crime. During a routine traffic stop, in the middle of the night, if you’re a middle aged white guy with a teenaged black girl in the car with you and no explanation of what your relationship is, then expect to be searched without a warrant. Same if there’s a strong odor of marijuana wafting from the passenger cabin.

          My favorite, which is to say my most loathed, is the so-called “inevitable discovery” exception. Basically, the police violated your rights in the precise way they searched and obtained the evidence, but they would have found it through legal means eventually, anyway, so it’s allowed. The hat trick is when they combine exceptions to build on each other. Let’s say they have no damn right to search you whatsoever for the crime they suspect you of, and they know it or else they would’ve obtained a warrant. So they stop you, provoke an arrest on something impromptu, then search you and your car for what they were really seeking all along.

          “Well, your Honor, true, that was unconstitutional, but……it was a search pursuant to an arrest and we had to inventory his vehicle prior to impound, for his own good, so the evidence we found of this other unrelated crime we would have inevitably discovered, anyway. So we’re good?”

        10. avatar tommyr says:

          The best thing to do is to NEVER talk to a cop. Ever. Any lawyer will (or at least should) tell you that. Don’t answer one single question. NOT ONE.

          Keep your mouth SHUT TIGHT.

        11. avatar JR says:

          tommyr, as stated above, some jurisdictions require, in statute, that you notify a LEO that are a CCW holder and that you have a gun. You could lose your permit or even be charged (arrested) on that basis alone.

          Is that “right?” Separate question. But telling folks to not tell a cop they have a permit and are armed could be the equivalent of telling them to commit a crime.

        12. avatar tommyr says:

          Well yes, obviously if required in those areas they should tell the cop but other than that, KEEP YOUR MOUTH SHUT.

    3. avatar Andy says:

      As for the search , it did not have to be committed , as the subject advised officers where the weapon was located , all that needed to be done was check the serial number of the weapon , with the number on the permit , as for removing the magazine from the weapon this is probably where the Judge based his decision on the act , because since the weapon was already in a safe place and not to be disturbed , plus the fact that police officers do go through training to handle loaded firearms , this in itself is considered a search , since the magazine is in the weapon and any rounds in said magazine are not visible to anyone . A lot of citizens nationwide do not realize that it is an illegal search if an officer does take a magazine out of a citizens weapon unless there is probable cause , or said citizen has been placed under arrest prior to the search , as in most Jurisdictions an inventory of a vehicle that a subject had been arrested in is standard procedure . Be prepared and ready. Keep your powder dry.

      1. avatar DD says:

        Not exactly, According to the article the judge found that the removal of the rounds from the magazine was a search, not the magazine from the weapon. Any officer, or anyone who has been trained to handle firearms knows that the first thing you do when handling a weapon for the first time, after pointing it in a safe direction, is to ensure that its unloaded. By removing the magazine the officer was just following a common firearms handling protocol that is standard and universal.

      2. avatar William Burke says:

        ” because since the weapon was already in a safe place and not to be disturbed ”

        And yet he went and disturbed it. Oy vey!

    4. avatar Cliff H says:

      So the lesson learned hear, for all the POTG living in the slave state of New York – find some way to plug the holes in the back of your damn magazines! It would appear from this ruling that in most cases even if they drop the mag from the pistol they have no authority to strip the rounds from it and with no observation holes – no probable cause.

      It would be a legal stretch for the cop to claim the difference in weight between 7 rounds and 10 was reasonable cause to check your ammo load.

      1. avatar DD says:

        You nailed it. Now manufacturers can make money producing NY magazines until the law is rescinded and Andy Cuomo voted out.

    5. avatar Ardent says:

      As much as I hate to, I have to agree with you DD, with one caveat; Given the observation holes the ammunition in the mag would meet ‘plain sight’ to my mind, but these would only have come into plain sight once the magazine was removed from the pistol. Thus (for me) the question revolves around whether or not removing the magazine was a permissible ‘search’. I get the officer safety bit though it’s so heavily overplayed and so based in emotional appeal that it’s use ought really to be curtailed where possible. I’m only on coffee number one so bear with me if I’m not terribly concise in my thoughts, but I can think of a great number of ways in which the pistol could be made ‘safe’ without removing the magazine: The occupants could be asked to step out and lock the car, thus no one has access to the pistol, the officers could take physical control of the weapon and either maintain positive control or store it in their locked vehicle for the duration of the interview, it could have been placed in the subjects trunk by an officer while the subjects remained in their vehicle, I’m sure other permutations are possible, all of which ensure ‘safety’. Not to put to fine a point on it but attempting to unload an unfamiliar weapon could very well be more hazardous that leaving it be or handling it at little as possible and so better choices than removing the magazine existed. As for running the serial number, I have never seen a pistol that required it’s magazine to be removed in order to read the serial number and in fact believe that such a pistol would be an unlawful device if it’s serial number were so concealed except in rare circumstances.

      Further, the ‘officer safety’ argument could just as well extend to a rectal probe since it is possible for a suspect to have secreted a weapon there and others have been known to do it. There has to be a limitation somewhere on the argument for officer safety and it has to be balanced against the suspects rights. Generally, lacking imminent danger the law has and should come down on the side of the suspect.

      I submit that while the argument could be made that the officer acted reasonably from a safety perspective in unloading the gun (while that is no means certain), it doesn’t necessarily follow that evidence obtained subsequent to that act is permissible at trial and isn’t fruit of the poison tree. Precedent works against my arguments to a degree but I think it’s possible to have a situation in which the search was ‘reasonable’ but the evidence obtain still inadmissible. The concept is that since the officer claims it wasn’t his intent to ‘search’ but rather ensure safety, that the action was permissible but the evidence isn’t.

      There are also questions of plain sight, where the ammo is in plain sight through the inspection holes but these are not in anyone’s sight until the magazine is removed. If you allowed the officers interpretation everything in your pockets is in plain sight once he has emptied them on the hood of a car, but that would hardly meet plain sight in anyone’s mind. The magazine was in a place where it naturally would be, the magazine well of the pistol and thus shielded from sight by same. I can’t think it through clearly enough just now but there has to be something to latch onto in these facts that invalidates the search and I think it’s meatier and occurs sooner in the chain of events that when the officer actually starts consciously counting rounds.

      The final question to my mind is good faith. If the officer is really just attempting to make the weapon safe in the best way he knows how, then I’m hesitant to fault his actions, on the other hand, proceeding to remove the ammunition for them magazine and count it is clearly a search, with specific intent of finding evidence of a crime. Is it reasonable suspicion once the ammunition is visible in the observation holes? Maybe, but does the subsequent unloading and counting cast doubt on the officers intent in removing the magazine? It does to me.
      I think the escape from endless ratiocination would be this, though it’s unwieldy, it does but the ball squarely back on the side of protecting the civil rights of the suspect and can’t help but to insulate the officer from accusations of illegal search: Once the officer observed what he believed to be more than the allowable number of rounds in the magazine he should have requested a warrant to conduct a search of that ‘parcel’. His reasonable cause was the appearance of more than 7 rounds through the observation port but since he couldn’t confirm that suspicion without conducting a search of the magazine that could not be explained by any appeal to safety (you’re not ‘safer’ with the ammunition removed from the magazine that with the magazine separated from the pistol).

      There is plenty of precedent to suggest that this is exactly the sort of case in which it would have been appropriate to attempt to secure a warrant for the search. While it may seem onerous to the officers, the civil rights of suspects are supposed to outweigh any investigatory needs of the police except where these protections are removed after due process.

      If that seems ridiculous it’s because this obsessive concern with the possessions of citizens is ridiculous. How many bullets in your magazine? How much money in your car? Any secret hiding places even if they are empty? What sorts of plants do you have in your pockets?

      It is this unwholesome concern about the victimless and private possessions of citizens that leads us inexorably into legal questions that on the one hand would seem to overly restrict police while on the other would seem to overly restrict the rights of citizens. If there are screams coming from the trunk of the car then by all means lets have it open, but if what we are worried about are the number of rounds in a magazine or the types of substances one might have in ones pockets I’d rather that everyone in possession of drugs or ‘excess’ ammunition escape unmolested to continue their ‘crimes’ that every innocent citizen among us lose security of our persons, papers and possessions. I know I certainly don’t feel as if I have any such security as it is, and in fact I don’t except that I may be able to get evidence so obtained bared from admission at trial, but that wasn’t the intent of the 4A at all. It was that the authorities would never find the things in my pockets in the first place and that I could walk about secure in the knowledge that baring some serious misdeed on my part (theft, robbery and the like) no one would put their hands on me, or into my pockets and certainly not to begin opening the containers I carry to seek evidence of some ‘crime’ that I may be committing.

      The whole of it is a sticky wicket, predicated on a law that appears blatantly unconstitutional on it’s face and deals in the minutia of things that are and should be well beyond the scope of legitimate government interest.
      This situation largely began with drug prohibition and the erosion of 4th amendment rights that attended it. Pretty much any legal theory that gets the governments hands and eyes out of our pockets works for me.

      1. avatar William Burke says:

        “If you allowed the officers interpretation everything in your pockets is in plain sight once he has emptied them on the hood of a car,”

        This is the NYC Stop and Frisk writ large for the entire state, a policy which has already run into legal and Constitutional duress in the courts.

    6. avatar JR says:

      Two words: “Officer Discretion.”

      All the searching and making it safe and matching serial numbers does not HAVE to mean charges.

  3. avatar Marcus Aurelius says:

    Almost seems like the judge doesn’t like the SAFE act and found the only way he could thwart it is based on the search. If it was fine to remove the magazine to clear the gun then I can understand the reasoning behind verifying the round count indicators. However, the blatant lie about it being the only way to check the serial number is infuriating. It’s almost like the cop and the judge are playing games in pursuit of their opposing agendas.

    Well, let me be fair, does anyone here know of a ruger 9mm that requires the magazine be removed to check the serial number?

    1. avatar Gene says:

      The serial number on Rugers that I am aware of are not in a magwell. Kinda hard to stamp them as well as read them there.

    2. avatar fiun dagner says:

      doesnt the safe act require magazines to be serialized? so perhaps the officer was referring to the magazine serial number. still its nice to see at least one ny judge has some sense.

      1. avatar BillF says:

        He said he removed the mag to check the serial number against the number on the permit. The permit doesn’t have mag serial numbers on it.

      2. avatar Hannibal says:

        No, 10 round magazines need not have serial numbers under the Safe Act.

    3. avatar William Burke says:

      Seems to me as if the judge doesn’t like the Second OR the SAFE Act. So he invoked the Fourth.

      1. avatar Cliff H says:

        It’s possible that the judge likes the Second Amendment just fine, but he also likes his job and fat paycheck and NO judge likes to get beat up by his peers or on appeals which is probably what would have happened if he ruled a 2A violation rather than 4A.

        He’s in New York. He’s in a minority position. Get the defendant released, make the problem go away, don’t make waves. Let some other judge take the heat on a 2A ruling.

    4. avatar Darnon says:

      The unreasonable search was the first tactic to get the case dropped, but if that had failed the charges would likely have been challenged under the more recent ruling that the 7 round limit was unconstitutional. Lockport is in the NY Western Federal Court district which falls under the Skretny ruling. Some DAs in the other NY districts are holding the line that they aren’t bound by that judgement, however.

    5. avatar Marcus Aurelius says:

      It’s just weirdness all around

  4. avatar Jus Bill says:

    But… but… but… “They did it for officer safety.”

    1. avatar BLAMMO says:

      … and for the children. Let’s not forget the children. I mean, there musta been some children … around … somewhere … within range of an high-powered automatic assault clip.

    2. avatar DJ says:

      Ah, yes “officer safety” – the new justification for trampling on civil rights.

      I’m all for officers going home safely at the end of their shift – but the best way for that to happen is the judicious application of common sense and the minimal use of force, not “warrantless searches for everyone”.

      They had no need to secure the weapon if they had removed the citizen from the vehicle (that may be their SOP, but it doesn’t seem necessary) – it seems to me that they heard him say he had a firearm wanted to go fishing. By the same token, if he’d bolted for the vehicle I wouldn’t have a problem with them using the minimum force necessary to stop him, whatever that might be under the circumstances. But that would be the case even if he hadn’t told them there was a firearm in the vehicle.

      On a side note, based on the ruling they could have observed the round count through the indicators on the magazine, called a judge and gotten a warrant, having established probably cause to believe there were more than 7 in the mag.

      If I were in NY, I would be looking for mags with no indicator holes, or filling the ones in my existing mags in.

      1. avatar Another Robert says:

        Actually that “officer safety” biz has been around for a long time–nothing new about it. But as far as that goes, the judge was right once they took out the mad and cleared the chamber, the “officer safety” rationale expired. In fact, I would argue that “officer safety” would be satisfied by leaving the pistol locked in the glove box.

        1. avatar Delmarva Chip says:

          I agree. This case definitely bothers me a bit.

          If the driver and passenger are outside of the vehicle, and the weapon is in the glove box, there’s no obvious need to get the weapon. It’s not as if it’s going to fire itself.

          The apparent justification, other than “officer safety,” appears to be to make sure that the gun is “legal” by matching it against the permit. IMO, that means they are allowed to presume that the gun is illegal until proven otherwise – in other words, assume guilty until proven innocent.

          I would assume that the behavior is standard procedure. But it still bothers me that there is apparently a presumption of guilt, and that one must prove that one is innocent, vs. the officer having enough suspicion to investigate and prove that one is guilty (especially for something that shouldn’t even be a crime, simply possessing a weapon).

        2. avatar Cliff H says:

          Yes, Robert. How much was officer safety a concern when the officer instructed the owner of the weapon to reach into the glove box and hand him the pistol? Once the pistol was out of the gun-owner’s hands and in the control of the officer I should think the officer safety requirement is fulfilled. If the LEO is insufficiently trained in handling unfamiliar firearms such that a loaded pistol on safe is still unsafe in his possession, how is fumbling with the same unfamiliar firearm to unload it safe for the LEO or anyone else in the area?

    3. avatar Hannibal says:

      Removing a magazine from a gun and unchambering the weapon is perfectly fine for officer safety purposes if you’re dealing with a suspect… but then using that ‘officer safety’ purpose to search for additional violations can’t go anywhere in court.

  5. avatar Ralph says:

    The dude is lucky! Most of the time that cops are looking for something, they give their victim a colonoscopy.

    1. avatar William Burke says:

      Only in southern NM.

      Riddle me this, O haters of Democrats (and I count myself): the southern half of NM is staunchly red, while the north is pretty staunchly blue. Yet no such horrors have occurred in the Blue North, only and manifold in the Red South.

      1. avatar Michael in GA says:

        ? This was in NY

        1. avatar William Burke says:

          Okay. Let’s go back. Ralph’s quote talked about “colonoscopies”. These, as far as I know, occurred in a short period of time in southern New Mexico. There were three or four of them. Look up “NM forced colonoscopies” and you will see what was referred to.

          I fully realize they didn’t happen in NY.

        2. avatar Ralph says:

          William, in the New Mexico case, the anally-raped man sued and settled for $1.6 million.

          The cops were Hispanic. The victim was white. According to the victims’s lawyer, that was the reason they shoved it up his @ss.

        3. avatar William Burke says:

          Thanks, Ralph. I already knew. Hispanic-on-white racism is the way they do things in NM. This “The Race” thing gets really tiresome there.

          They also are convinced of their superiority over the Indians and whoever isn’t one of them.

          The sh*t has got to stop. But I’m not there anymore, so someone else will have to set things right.

        4. avatar RockOnHellChild says:

          So, the question of day, $1.6M, worth it or not?

        5. avatar Stinkeye says:

          Since his lawyers probably got to keep most of that money, I’d say not worth it.

      2. avatar Daily Beatings says:

        The democrat and republican party are two sides of the same corrupt coin. Both use social issues to divide the population into thinking there’s some type of difference while retaining power for the ruling classes.

        1. avatar William Burke says:

          And the sooner everyone figures that out, the better.

      3. avatar Cliff H says:

        “Staunchly red” only means that the majority of voters are smarter than those in the north and tend to elect conservatives to office. It does not mean that some few extreme conservatives, who can be just as dangerously fascist in their outlook as extreme liberals, do not exist within the power structure.

        It would do us all good to disavow the extremists at either end of the political spectrum. To attempt to discredit every conservative because some conservatives are extremist, fascist, bullies and thugs is the same as attempting to discredit all gun owners because some people with guns shoot up movie theaters and schools.

    2. avatar Randy Drescher says:

      We had officer “finger” in Beloit Wi I believe. Last I heard he was one foot in jail other on a banana peel.

  6. avatar cubby123 says:

    Yaah one for our side!

  7. avatar Jack in MT says:

    Barrancotta said [removing the magazine] was also the only way to check the serial number to match it against the list on the pistol permit, and to make sure there was no round in the firing chamber. There was not.

    What a bunch of B.S.

    1. avatar Tom in Oregon says:

      Yup. Unless I’m missing something, (like mags being serial numbered), that was a false statement.
      Perjury at that point.

      1. avatar William Burke says:

        “Perjury”? It would seem that perjury by cops is allowable, since it seems to be charged way more infrequently than 1% of the time.

        1. avatar Ralph says:

          When cops do it, it’s not perjury. It’s called “testilying.”

    2. avatar Hannibal says:

      I’d be interested in reading the testimony itself rather than a reporter’s account to figure out what happened there. Reporters are not always the best relaters of gun information, as it turns out.

  8. avatar Burnout says:

    But… the children! What about “The Children”™ ?

  9. avatar Dev says:

    The judge made an excellent ruling in this case. He didn’t change law, he enforced and clarified existing law.

  10. avatar Grumpy in Kali says:

    Magazines with holes in them for round indicators should be fair game for the officers to check as they make the weapon safe. If the markers for rounds 10, 12, etc. show a casing….then it should be perfectly reasonable for the officer then to remove the rounds from the mag and count them. If the at a glance view of the mag after removing it displays a number close to the legally permitted New York amount (7) then the officer shouldn’t count each individual round.

    But the bigger question is did Officer Barrancotta get his food from the Mighty Taco afterwards?

    1. avatar Ralph says:

      Yes, it’s all about officer safety. I’m sure that the rounds made a furtive movement and the cops would have been justified in shooting them.

    2. avatar Jack in MT says:

      It seems to me that the weapon was perfectly safe in its holster, in the glove box, with no one inside of the vehicle.

    3. avatar Mark Lloyd says:

      Sure, that makes as much sense as a cop peeking in your window to see if you’re sodomizing your wife during loud sex. Sodomy used to be against the law in many states including Montana.
      When does fair game quit being fair game? Probably after some cop arrests your ass, then suddenly you’ll rethink it.

    4. avatar Hannibal says:

      I agree about the witness holes and think it was a good search… mostly because if it was found good, it would still have to be thrown out since this was in the district where recently a federal court ruled that the 7-round limit is arbitrary and capricious! Tossing the arrest based on that would have been sweeter than 4th Amendment grounds.

    5. avatar Cliff H says:

      “Magazines with holes in them for round indicators should be fair game for the officers to check as they make the weapon safe.”

      Except, since the Second Amendment states specifically, “…the right of the people to keep and bear arms, shall not be infringed.” how was the officer confiscating, handling and unloading this man’s weapon not prima facie unconstitutional?

      This would NEVER be an issue if some court somewhere would get the balls to say simply that the officer had a right to know if the man was armed but had absolutely no authority under the Constitution to touch that weapon without the owner’s permission.

      The New York SAFE act is an unconstitutional joke and any arrest or prosecution under that law is a blatant violation of the man’s civil rights.

  11. avatar BTinAfghan says:

    At 2:00 a.m. the only children out are the gang bangers and thugs. The defendant would have been the one requiring protection from the children.

    1. avatar William Burke says:

      True; the newspaper delivery children are asleep for nearly three more hours, when most bang-gangers have gone home, fearing the coming of the light.

      1. avatar Ralph says:

        Your use of a semicolon was inappropriate.

        You’re the grammar and spelling Nazi. I’m the punctuation Nazi.

        1. avatar William Burke says:

          The semicolon stands, Ralph. Your street corner, or mine?

        2. avatar koolaidedude says:

          Rumble, rumble, rumble!

    2. avatar bontai Joe says:

      The 2:00 AM thing caught my eye as well. The wife was driving with out a license, which makes me think maybe the husband had a couple of drinks and felt he shouldn’t drive? None of the linked or related articles say what the wife was charged with, if anything. I’m glad his case was thrown out, and I hope he does get his firearms back. It also wasn’t clear as to why all his firearms were confiscated. If I libel someone in NY, does that mean the police will come to my house and confiscate my computer, typewriter, and all my pens and pencils?

      1. avatar William Burke says:

        I dunno either. My brain refuses to compute that one.

    1. avatar Bernard says:

      “F U Andrew Cuomo”

      1. avatar RockOnHellChild says:

        Holy crap! Are you an acronym savant?

        1. avatar Bernard says:

          No, I just googled it.

        2. avatar Matt in FL says:

          It’s a common refrain among gun-owning New Yorkers and those that frequent their message boards and forums.

        3. avatar RockOnHellChild says:

          I don’t google things, things google me.

  12. avatar Hay Yu says:

    This just goes to show that the 2nd Amendment is not about just the 2nd Amendment. All of the Amendments are equally important…and supportive of each other.

  13. avatar CoolBreeze72 says:

    Well, its a win but it is razor thin. Doubt if it is a precedent.

    1. avatar Another Robert says:

      Trial court rulings are never precedent, only appeals court rulings.

  14. avatar Excedrine says:

    Not only a lot of angry comments, but a lot of armchair lawyers, back-seat district attorneys, and ignorant gun smiths getting everything consistently wrong. From what the 4th Amendment says and means, to what the SAFE act specifically says, and even proper police procedure.

    The judge was absolutely correct and all you hear from the Left is pissing and moaning.

    To include all of the usual “all gun owners = gun nuts = criminals” drivel.

  15. avatar Mark Lloyd says:

    Tell you what, I’d be getting mags that have no holes in them. How many rounds are in it? Hell if I know, but you ain’t unloading my mag to check!

  16. avatar William Burke says:

    Although the Second failed him, the Fourth came shining through!

    Any questions?

    1. avatar fuque says:

      Yeah, you think its going to go down that way every single time?…. Cops are just back in the boiler room figuring a different angle to the same old problem. How to shake you down and get away with it

  17. avatar jwm says:

    Once it was established that the man had a valid permit there was no further need for the officers to inspect the gun. He wasn’t even driving the car and he did not impede or resist the officers in any way.

    1. avatar William Burke says:

      None whatsoever.

    2. avatar Curtis in IL says:

      I’m with jwm here, but maybe I’m just an armchair lawyer (watch me roll my eyes).

      How is a pistol in a glove compartment a threat to officer safety if the occupants have already been removed from the vehicle?

      1. avatar Tom in Oregon says:

        Bingo!

      2. avatar Barstow Cowboy says:

        The fact that there are guns anywhere in the entire world is an ongoing and persistent threat to police officers everywhere. Therefore, we should all be forced to crawl about the Earth on our faces wearing nothing but paper garments to cover our most personal parts, and then dig a hole and bury ourselves up to our necks whenever police are within 1000′ feet of us. It’s the only way to really insure officer safety, and if you don’t have anything to hide it really shouldn’t be a problem.

      3. avatar RockOnHellChild says:

        He was shaking the dude down, plan and simple.

  18. avatar Theodore Piasecki says:

    Do we have to have a permit for my first amendment right to type on this wall, why should we have to have a permit for his gun.

    1. avatar Hannibal says:

      Not to be picky but you have no such right…

  19. avatar CoolBreeze72 says:

    Drop the mag,cycle the slide, pick up the ejected round and the gun is safe. Period. No need to examine the mag.

  20. avatar FoRealz? says:

    The Constitution. You cannot has it. Cuz Offficer Safety!

    Is NY a must inform state? If not, I’d say don’t inform.

    1. avatar DaveL says:

      It seems this Officer Safety character has a lot of trouble playing by the rules. I think it’s time he became plain ol’ Mr. Safety.

      1. avatar FoRealz? says:

        Yup. Maybe he should switch to a safer line of work like construction.

        Oh never mind. According to OSHA , 775 guys died on the job in construction in 2012. The FBI says 47 police died as a result of criminal action in 2012. 45 others died from accidents in 2012.

        I dunno. Looks like being a construction worker is more dangerous than being a police officer. Matter of fact so is mining, farming, oil drilling and forestry. As is truck driving.

        Business and financial services industries racked up 81 fatalities in 2012. Almost up to police levels of danger.

        I’m not saying anyone wakes up in the morning and wants to get hurt on the job, (unless looking for the disability check retirement plan) or that anyone remotely should. I’m just saying that I’m a little weary of officer safety being trotted out and used to justify all kinds of silly shit. Like MRAPs and ignoring the Constitution.

        It’s the police equivalent of playing the race card. Use it too much and those who were once sympathetic to your position no longer want to hear it.

        I guess if the job is too dangerous a guy can always quit or request a desk assignment.

        1. avatar William Burke says:

          You forgot deep-sea fishing. Got any figures on that?

      2. avatar ForRealz? says:

        Why yes I do.

        According to the PDF charts here: http://www.bls.gov/iif/oshcfoi1.htm#2012

        34 listed as fishing in 2012.

  21. avatar Sc says:

    I’m confused as to why this case wasn’t dismissed at the onset. While I wasn’t happy with the entire decision, we won here (pending appeal) in NYS on the 7 round limit being arbitrary and 10 rounds being good to go. Specifically in that district, if I’m not mistaken. The State Police have even made a statement saying they aren’t enforcing the 7 round limit.

  22. avatar TheSleeperHasAwakened says:

    “These are great days we’re living bros…we’re jolly green giants walking the Earth, with guns!”

  23. avatar Bruce says:

    So if magazine has no holes to check the number in it, this judge has just set the standard. They have to have a warrant to check the total.

    1. avatar William Burke says:

      There is no precedent in this case. Precedents are for appellate courts. This has already been hashed to death here.

      Although I do realize that “nobody knows what hash is”.

      1. avatar Ralph says:

        Hash is an illegal drug. No?

        1. avatar Gyufygy says:

          #hash

        2. avatar William Burke says:

          I don’t feel like hashing it out. It was a DEVIL’S DICTIONARY quote. Which you probably knew, you sly dog.

        3. avatar Another Robert says:

          Hash is what Abdul Abulbul Amir invented when he met Ivan Petrovsky Skovar.

  24. avatar Marshall R says:

    FUAC = F*ck U Andrew Cuomo , the gov of NY

  25. avatar Frank P says:

    The Buffalo News – and its readership – deserve each other

  26. avatar Mark Lloyd says:

    Another point comes to mind. NY is NOT a shall inform state. The cops can ask about a gun, but you are under no duty to inform them. Don’t keep your vehicle registration and proof of insurance where you keep your firearm so a cops prying eyes don’t see your firearm when you have to retrieve the normal BS for a traffic stop.
    If a person is going to disregard the SAFE act, as far as the mag count, do it smart, not stupidly, don’t tell the cop you have your gun or let them see it or make suspicious moves in the car, like hiding your gun. Cops are trained to look for that. Personally, I wouldn’t obey that law, but I wouldn’t be stupid about it.
    I’m not following a law I feel is unconstitutional and wrong. That’s NOT what being an American is about and most of us are smart enough to make that choice.

  27. avatar Tom Greeney says:

    Keep your hands away from my second amendment.

    1. avatar Cliff H says:

      Nobody really NEEDS 28 words in their Second Amendment.

      “A well regulated militia being necessary to the security of.” Those ten should be more than adequate. Only criminals, terrorists and spree killers want the other 18 words.

  28. avatar well says:

    On December 31, 2013, Chief U.S. District Judge William M. Skretny, of the Federal District Court in Buffalo
    struck down the provision that only seven rounds of ammunition could be loaded into a ten-round magazine, calling it “an arbitrary restriction” that violated the Second Amendment, and saying that it could result in “pitting the criminal with a fully-loaded magazine against the law-abiding citizen limited to seven rounds.

    1. avatar skeptical1 says:

      This is correct. I remember when this info hit the local news. So, what does it matter if this guy had 10 rounds in the magazine?

  29. avatar Randy Drescher says:

    They are flameing away RF, it’s really brutal over there. Most will be lucky to come out as good as the “tiger” folks./// This is a good win.

  30. avatar Gov. William J. Le Petomane says:

    Just a suggestion for any New Yorkers out there; when you’re riding in the passenger seat at 2:00am with your Ruger in the glove box loaded with 10 rounds in the magazine and the cops turn there lights on but your wife doesn’t stop for 2 minutes, pop open the glove box, pull your magazine, flick 3 cartridges out and stick the magazine back in. Just a suggestion.

    1. avatar Hannibal says:

      Yeah there’s that… or tell your wife to pull over because when you don’t pull over they think you’re loading rounds in a gun or hiding the drugs.

  31. avatar Jay Hanig says:

    The driver stated that he had a gun and a permit, both secured in closed containers within the vehicle. The police ordered the driver and his wife out of the car. I fail to see where searching the car was any concern of the police at that point, particularly since they were directed to the specific location of the permit. It wasn’t a matter of police safety, as the police had already separated the driver from his weapon. The weapon was safe in its holster and even more out of the picture behind the door of the glove box.

    The cops went beyond what is reasonable considering there was no suspicion of any crime involving the gun. The car was pulled over for speeding; not robbing a 7-11. I’ve been pulled over more than once for speeding and I am required by NC law to report my concealed weapon’s presence immediately (if it is in fact present). I have never had an officer do more than ask me where it was. Nobody has ever asked to see it, much less “render it safe”.

    1. avatar Gyufygy says:

      Be aware, though, that in NC, you have to inform the cop that you possess a CHP, even if you’re not actually carrying. I don’t know why, but that’s what I was told by people whose job it was to tell me these things.

      1. avatar Cliff H says:

        Be sure to get additional authoritative opinions.

        As Safety & Risk Manager of a small trucking company I have on many occasions been given opinions by Washington State Patrol inspectors that are directly in conflict with published DOT regulations, and they WILL NOT back down.

        Just as too many officers on Open Carry calls will make up legal opinion as they go to get the results they want, not the justice they are supposed to be serving. These guys are not always right. Be sure of the law and be assertive of your rights, within reason, because these people can and will hurt you if you push it too far.

      2. avatar Jay Hanig says:

        Not true. I only have to inform the officer on 1st contact if I’m carrying concealed. We are allowed open carry in North Carolina as well, though I don’t… as I feel it would make me stand out as a target.

        http://www.ncsheriffs.org/documents/2013%20NC%20Firearms%20Laws.pdf

        See the pertinent sections on pages 22 and 45. If a gun is present, I have to declare. If I’m not armed, I don’t have to say a word, even though I have a permit.

        Your friends told you wrong.

        1. avatar skeptical1 says:

          In Niagara County, New York (where Lockport is), you DO NOT need to inform a police officer that you have a permit and are carrying unless you are asked. NY is only concealed carry. When I took my course to get my Niagara County permit, it was even suggested that you do not inform unless asked, as some police panic at the word ‘gun’.

        2. avatar Jay Hanig says:

          That’s true and that’s why the first words out of my mouth are “I have a concealed carry permit”. I don’t say the word “gun”. I let him ask me. It gives him a second to think instead of instantly react to “gun”.

          It also helps if both of your hands stay on the steering wheel.

  32. avatar Mike says:

    Not surprising.. During the open carry days (before it was outlawed) there were similar rulings in that the officer could inspect the weapon for officer safety, ie: drop the mag and chamber check, but looking at the serial number or obtaining the serial number (memorizing it) was crossing the line for illegal search and seizure in most lawful instances.

  33. avatar JohnO says:

    I heard the guy had “verbal permission” to own three extra rounds.

  34. avatar PavePusher says:

    Once the gun was in the custody of the police, there is no way to justify that it was any possible danger to them, and thus no justification to unload it.

    Unless the coppers are admitting to being totally incompetent……

  35. avatar Chris says:

    I’m sorry, but lock him up. He violated a rather stupid law but still broke it. Until there are examples of people going to jail for breaking these ridiculous laws they won’t change. You can’t rely on a judge who will look the other way like this case.

  36. avatar Don says:

    >7 rounds prohibited.

    Illegal for police to count your rounds.

    I see what you did there!

  37. avatar louis petrelia says:

    if he had a valid pistol lin. I think the it should have stopped right there & then.

  38. avatar AJ says:

    He argued, “I think it’s reasonable for them to check the firearm and the magazine. They didn’t seek the number of rounds in it. They did it for officer safety.”

    Really? Bullets in a magazine not inserted in a gun, and the gun is in the officers hand under his direct control constitutes an unsafe situation for the officer in question? This is perfect fodder for the anti-LEO folks. I’m all for officers being safe, but this argument is retarded in every respect. That or the officer in question is in some way not safe and shouldn’t be allowed near a gun OR bullets. “Officer safety” has become so overused and abused that’s it’s lost virtually all meaning.

    1. avatar Jay Hanig says:

      If the magazine has been removed from the weapon, the only possible place to look further in the name of “safety” is the chamber of the weapon, to make sure there’s not one up the spout. Looking at the magazine “for safety purposes” is disingenuous.

  39. avatar WI Patriot says:

    HA, burned by the Second Amendment as well as the Fourth Amendment…

  40. avatar Jethro says:

    I was told (by an instructor back in the ’80s) that in NY, carrying a LOADED handgun anywhere but ON YOUR PERSON in a vehicle is a violation of the NY ccw permit and firearm transportation statutes. A LOADED firearm of any type in a vehicle glove box, center console, or even in the trunk is against the law.

    The federal law that permits interstate transport of firearms (too lazy to look it up) further requires separate locked containers for unloaded guns and ammunition that are not accessable from the passenger compartment. Glove box and console do not qualify.

    I’m glad this guy skated but I think he had broken laws before the round count was even an issue.

  41. avatar MURRAY says:

    The Cops lied, traffic stop followed by a crude attempt to achieve a SAFE Act conviction. Their story is garbage, wouldn’t convince my dog.

  42. avatar Matt G says:

    [Officer] “Sir – for my safety I’m going to ask you to submit to this blood test in case I need to baton your face during this traffic stop and blood splatters on my skin”

    [Dolt] “Ah OK”

    [Officer] “Well lookie here – looks like you have traces of Pot in your system – we’ll have to take you in for this”

  43. avatar Ken F says:

    So many of you still are sheep. None of the cops business if the gun was not in sight or used in a crime.

  44. avatar Jim Bullock says:

    “Officer safety?”

    Once you have the people step out of the car, what threat is the gun in the glove box?

    I realize a great number of po-po side arms seem to go off by themselves, but for citizens, not so much. It must be the para-military training that makes the officer’s guns so aggressive. That would be the same training that casts people encountered by law enforcement as potentially murderous threats to be controlled, vs. by and large the people being served and protected. Or something.

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