Dont Shoot The Messenger

In the last couple of days since the lawsuit against Ackerman McQueen I've spoken to a former lobbyist for the NRA and two serving NRA Board Members. The conversations were off the record and not for attribution. Then I read this article in The New Yorker thanks to a link to it posted on Facebook by Prof. David Yamane.

The article is entitled "Secrecy, Self-Dealing, and Greed at the N.R.A." Mike Spies article has a subhead saying "The organization’s leadership is focussed on external threats, but the real crisis may be internal." I hate to say this given all the attacks on the NRA from every Democrat running for President, the State of New York, and the media but from what I've gathered Spies is correct. Just because we don't like the source doesn't mean they are wrong.

Last August, the N.R.A., in desperate need of funds, raised its dues for the second time in two years. To cut costs, it has eliminated free coffee and water coolers at its headquarters and has frozen its employees’ pension plan. Carry Guard, which was meant to save the organization, has proved disastrous. According to the memos, in 2017, the year that Carry Guard was introduced, Ackerman McQueen received some six million dollars for its work on the product, which included the creation of a Web site and media productions featuring celebrity firearms trainers. The lawsuit against New York State has created an additional burden. Sources familiar with the N.R.A.’s financial commitments say that it is paying Brewer’s firm an average of a million and a half dollars a month.

An official assessment performed by Cummins last summer dryly describes the N.R.A.’s decision-making during the previous year as “management’s shift in risk appetite.” The document analyzes the organization’s executive-liability exposures and discusses insurance policies that “protect NRA directors and officers from claims by third parties that they have breached their duties, such as by mismanagement of association assets.” From 2018 to 2019, it says, insurance costs increased by three hundred and forty-one per cent. “To say this is a major increase would be an understatement,” Peter Kochenburger, the deputy director of the Insurance Law Center at the University of Connecticut, told me. “This seems to be pretty direct evidence that the N.R.A.’s problems are not due to New York but rather to how the organization conducts itself.”

The memos urged the audit committee to “step up + fulfill its duties!,” but it’s not clear what the board has done to root out malfeasance. James Fishman, a co-author of “New York Nonprofit Law and Practice: With Tax Analysis,” a leading text on nonprofit law, told me, “There is no such thing as a director who doesn’t direct. You’re responsible to make yourself aware of what’s going on. If the board doesn’t know, they’ve breached their duty of care, which is against the law in New York,” where the N.R.A. is chartered. According to Owens, the former I.R.S. official, New York State “could sanction board members, remove board members, disband the board, or close down the organization entirely.”

Read that last line again. New York State could close down the NRA entirely by moving for dissolution. You have a governor and attorney general in New York that hate the National Rifle Association. You have a Board of Directors which is too large to be effective. You have Ackerman McQueen trying to preserve its position and an outside counsel trying to take their position for himself. And then you have internal civil war going on within the organization between loyalists to one executive and friends of another leader.

The bottom line is that there are tremendous troubles within the NRA just when you need it to be steadfast in the face of outside attacks.

How bad are these troubles? A reliable source told me that Marion Hammer who hasn't attended a Board of Directors meeting since hell froze over the last time will be in Indianapolis to attend the Board meeting. It's that bad.

UPDATE:  Jeff Knox, son of Neal Knox, and co-head of The Firearm Coalition published an opinion piece of the issue in response to The New Yorker's article. It is well worth a read. He makes some good points in it and calls for the resignation of Board members on the Audit, Finance, and Executive Committee for not doing their jobs.

People v Berrezueta - More Knife Law Lunacy From New York

The New York Court of Appeals is the highest appellate court in the state of New York. They decided a case last week that is very problematic to everyone who owns an assisted-opening knife in the state. In the case of People v. Berrezueta they declared in a 6-1 decision that a spring-assisted opening knife is a switchblade within the definition of the New York's penal code. The dissent by Judge Jenny Rivera disagreed strongly and pointed out the deficiencies in the majority's argument.

Doug Ritter has more in an alert he sent out this morning:

URGENT New York State WARNING
Are Assisted-Openers Now Illegal Switchblades ?

As if New York wasn't already a confusing legal and regulatory nightmare for honest, law-abiding knife owners, the highest court in the state just upheld, in a one paragraph opinion, the conviction of a person in possession of an assisted opening (spring-assisted) folding knife under the theory that it was an illegal switchblade knife under New York law.

The decision was overwhelming, 6 to 1, but it's worth noting the excellent dissent by Judge Jenny Rivera which is detailed, analytical, logical and very well-reasoned.

Click here to read the decision including her brilliant dissent.

Assisted opening folding knives are widely and routinely carried by millions of law abiding individuals, and given the momentous nature of this decision, certainly affecting hundreds of thousands of pocket knife owners in New York State, a review of the briefs suggests that the seriousness of the issues at stake was not presented to the court. The prosecution fundamentally mischaracterized the nature of the knife as being a switchblade. The significant and fundamental differences between a switchblade and the assisted-opening folder the defendant was carrying were not before the Court.

In addition to completely redefining what a knife's handle is, essentially eliminating the difference between the handle and the blade, the Court disregarded the fundamental difference in how the two types of knives operate - switchblades being automatic (an essential element of the definition) while assisted-openers are not.

Given that this confusion goes against clear historical precedent and that nobody in the real world is likely to interpret that statute in that manner, it creates a trap for all knife owners who would rationally never consider an assisted-opening folder to be a switchblade, especially if they were intimately familiar with plain wording of New York's switchblade statue.

265.00 Weapons Crimes - Firearms and Other Dangerous Weapons Definitions
...
4. "Switchblade Knife" means any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife. (emphasis ours)

Regardless of whether we win our current civil rights case against New York City and District Attorney Cyrus Vance, Jr. over their unconstitutionally vague gravity knife prosecutions of those carrying common folding knives, the hundreds of thousands of knife owners who possess an assisted-opening folding knife anywhere in New York state could now be liable to being prosecuted for simply possessing a per se (inherently) illegal switchblade under §265.01, which is a serious crime, a fourth degree misdemeanor with a potential penalty of a year in jail. And, as we have seen far too often in our Federal gravity knife case, anyone who has had a prior conviction, even decades ago, is likely to have the charge against them upgraded to a felony with potentially years of jail time and loss of civil rights.

Actually carrying an assisted-opener will certainly raise the likelihood of arrest and prosecution.

At this juncture we must warn anyone living in New York State, or who visits or travels through New York State, that you risk arrest and jail if you carry an assisted-opening folding knife. Retailers within New York State may want to consider their potential criminal liability in continuing to sell assisted-opening knives.

We'll certainly be looking to find a solution to this problematic decision, but for now, discretion is the better part of valor with regards to assisted-opening folders in New York State.

And, just to be clear, this assisted-opener issue that covers the entire state of New York is entirely separate from New York City's gravity knife arrests and prosecutions; as well as New York City's administrative code prohibiting open carry of a knife (including being clipped to a pocket or "printing") and its under 4-inch blade length limit. Details at: https://kniferights.org/legislative-update/new-york-city-administrative-code-knives/

NY SAFE And Jobs

It isn't only the large firearm manufacturers whose business is affected by the NY SAFE law. While I've talked about Remington in the past, the law also impacts small manufacturers who have less clout. A case in point was recently publicized by WHEC-TV of Rochester.

Just Right Carbines of  Canandaigua makes a modern version of the camp carbine in 9mm, .40 S&W, and .45 ACP. The design of the JR Carbine allows it to be made with some off-the-shelf parts from the AR including the stock, pistol grip, and trigger mechanism. Therein lies the problem - the pistol grip. Because the JR Carbine uses a pistol grip, it is illegal to sell in New York.




The response of Gov. Cuomo's office is illustrative of the disdain they have for the firearms industry.

“For years, gun manufacturers have modified their products for sale in New York State, and the new law does not change that. The SAFE Act is designed to keep military-style assault weapons that have the potential to cause the greatest harm out of our communities while still respecting New York's long tradition of hunting and sport shooting.”

Let's be clear about one thing. Cuomo and the rest of the gun prohibitionists respect nothing about hunting or sport shooting.  It is only something that they have to endure so as to get the votes from those "Upstate hicks". If it costs a few jobs in western New York, so be it. I would imagine that as soon as an industrial recruiter from South Dakota or Texas or Alabama sees this story, Messrs, Fargnoli and Cutri will be getting a call.

Oh, The Irony!

In the little Mohawk Valley village of Ilion (population 8,053) sits the nation's oldest continuously operated arms manufacturer Remington Arms. It employs over 1,300 well-paid and talented workers in a region that has seen over 11,000 manufacturing jobs lost since 1990.

The village had a town meeting in January before the vote on the NY-SAFE Act. As you can well imagine, their concern was over jobs and not gun control.




The NY-SAFE bill was enacted into law and the concerns over jobs was ignored.

So it should come as no surprise that a number of states have contacted the Freedom Group about moving their Remington Arms plant to a state that is more appreciative of gun rights and gun manufacturing jobs.

At least five states have contacted the parent company of Remington Arms to encourage the gun manufacturer to relocate in response to New York’s new, tougher gun control laws.

Lawmakers from Michigan, South Carolina, Arizona and Oklahoma have all sent letters to Remington’s owner, Freedom Group, since the state Legislature passed tougher gun control legislation two weeks ago. Texas first contacted the company in November 2012.

While North Carolina isn't mentioned in that list, I would be surprised if officials from the state's economic development office haven't already trekked to Madison, NC to speak with Freedom Group executives about relocation. If they haven't, they are being derelict in their duties.

Mohawk Valley economic development officials and politicians are taking these contacts very seriously. Assemblywoman Claudia Tenney (R-New Hartford) called fears that Remington might relocate "realistic" while Herkimer County IDA Executive Director Mark Feane said they are very concerned given the incentives that other states might offer.

No one knows at this time what the Freedom Group will do. However, if they do move the Remington Ilion plant, I would find it deliciously ironic if the trucks moving the plant's machinery just happened to detour around the Governor's Mansion and the New York Capitol Building on their way out of state. It might lengthen the journey by a few hours but it would be worth it to remind politicians about the law of unintended consequences.

"Who Are The Police At War With?"

If these gun owners of western New York attending an information meeting in Buffalo on the NY-SAFE gun law are any indication, Gov. Andrew Cuomo (D-NY) has opened a huge can of worms that will have all sorts of unintended consequences. Who would have ever thought there would be talk of armed militias in an overwhelmingly blue state like New York?








H/T Rob

What's Banned In New York

The office of Gov. Andrew Cuomo (D-NY) has provided a graphic summary of what rifle features are now banned under NYSafe. That is the draconian law pushed through so quickly that even law enforcement if prohibited from having more than 7 rounds in their magazines. NY(un)Safe stands for Secure Ammunition and Firearms Enforcement Act.

As you look through the pages of the graphic you need to ask yourself how the absence of a bayonet lug or a muzzle break will make the people of New York State any safer. The obvious answer is that it won't.

NY State - Banned Rifle Features by

"David Gregory" Clause In NY Gun Law?

William Jacobson of the Legal Insurrection blog is a law professor at Cornell University Law School. As a class project in one of his courses, they are trying to unravel the new 39 page gun law that Gov. Andrew Cuomo rammed through the NY State legislature.

Jacobson was interviewed by Cam Edwards of NRA News about the new law on Friday. The key point made by Jacobson in discussing this new law is that it is so complicated and full of pitfalls for the law abiding that the intent seems to be to discourage gun ownership entirely. He notes that there are all sorts of ways to run afoul of the new law. For example, Jacobson said that a previously legal "assault weapon" under New York law must now for the first time be registered. He could see someone not realizing this and being stopped with a non-registered rifle on the way to the shooting range. That person would now be a felon if convicted and lose all gun rights.

I'm Proud Of My Local Military Surplus Store

I've written in the past about Old Grouch Military Surplus. They are my local military surplus store and harken back to the days when surplus stores were just that. On Tuesday, they took a stand in support of the gun owners of New York who just had their Second Amendment rights trampled upon.

In support of our customers in the state of New York, effective today we are cancelling all orders to any state or municipal government agency customers in the New York and will accept no more. While we can't stop the trampling of rights that is occurring there, we certainly can make sure we don't assist in it in any way going forward.

They do a substantial mail order business and are one of the only places to find some items. I'm proud of their stand and I hope the majority of firearms manufacturers will emulate Tim's approach - or as others have called it, the Barrett approach in honor of Ronnie Barrett's stand against California and their .50 BMG ban.

Williams V. Beemiller, Inc. - NY Court Says PLCAA Doesn't Apply

In a decision last Friday in New York State, the Appellate Division, Fourth Judicial Department reversed the dismissal of a case, Williams et al v. Beemiller, Inc., et al, involving the manufacturer of Hi-Point firearms, its distributor, and a licensed dealer under the Protection of Lawful Commerce in Arms Act. They remanded the case back to Superior Court for trial. The firm representing Hi-Point (Beemiller, Inc.), the Renzulli Law Firm, had won the dismissal of a similar case in Connecticut last year. Williams was represented in the suit by the Brady Center.

This reversal has gotten a good deal with play in the non-firearms press with stories in the Wall Street Journal, ABC News, and industry publications like Insurance Journal.

Attorneys for the distributor, MKS Supply, are undecided about whether to appeal or not but do believe the case will ultimately be dismissed.

Jeffrey Malsch, a lawyer for MKS, said he is reviewing the decision.

“We believe (the lower court’s ruling) was a courageous and legally correct decision, but the Fourth Department was unwilling to follow his well reasoned opinion,” he said. “Whether we appeal or not, we are confident that ultimately the facts will contradict the baseless allegations in the complaint and the case will be dismissed.”

This case involved a Buffalo, New York teen, Donald Williams, who was misidentified as a member of a rival gang and shot. The weapon used was a 9mm Hi-Point pistol which was purchased at a gun show in Ohio from a licensed dealer. It appears that it was a straw purchase even though the court documents allege the sale of the pistol to a New York State resident.  However, under the Gun Control Act of 1968, an out of state resident cannot purchase and take direct delivery of a handgun. The handgun must be shipped to FFL in the purchaser's home state who will then run the NICS check along with complying with local and state laws governing the purchase of a handgun.

While the court said it was undisputed that this matter falls within the PLCAA's general definition of a "qualified civil liability action", they said in this case one of the six permitted exceptions to a "qualified civil liability action" did apply.

Of particular relevance here, a “qualified civil liability action” does not include “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought” (15 USC
§ 7903 [5] [A] [iii] [emphasis added]).

The court went on to say that when reviewing a motion to dismiss, they must accept the facts as stated in the complaint and accord the plaintiffs the benefit of the doubt.

Applying that standard, we agree with plaintiffs that the court erred in dismissing the complaint inasmuch as they sufficiently alleged that defendants knowingly violated various federal and state statutes applicable to the sale or marketing of firearms within the meaning of the PLCAA’s predicate exception.

The statutes that the defendants are alleged to have violated are those involving straw purchases and trafficking of firearms illegally. They especially allege this with regard to the dealer Charles Brown who operated out of his home.

In October 2000, Brown allegedly sold Bostic and/or Upshaw handguns, including the gun used to shoot plaintiff, at a gun show in Ohio. According to plaintiffs, Brown knew or should have known that Upshaw and/or Bostic were purchasing the 87 handguns for trafficking in the criminal market rather than for their personal use because (1)they had purchased multiple guns on prior occasions; (2) they paid for the guns in cash; and (3) they selected Hi-Point 9mm handguns, which are “disproportionately used in crime” and have “no collector value or interest.”

To conclude, the court in general accepted all the allegations of the Brady Center on behalf of the plaintiff Donald Williams. They also are going to allow the Brady Center to go on a fishing expedition into Brown's relationship with MKS Distributors.

 Ultimately, I think this case will be dismissed against all the defendants but especially Beemiller, Inc. dba Hi-Point Firearms. Since they sold to an intermediary distributor, it will be hard to argue that they should be held responsible for the actions of a dealer over whom they had no control nor direct relationship.

This case was the topic of a recent segment of NRA News with Cam Edwards interviewing Steve Halbrook regarding the court's decision. He thinks it will be ultimately dismissed whether on appeal from this court or in the Superior Court for Erie County.

The court's decision can be found here. The Brady Center's breathless press release can be found here.

New York State Assembly Passes B.S. Law

The New York State Assembly passed A.1157-B - the microstamping law - today by a vote of 79 to 52. If passed by the State Senate it will go into effect in 2014. While they contend the cost to firearms manufacturers of the implementing microstamping will be minimal, industry sources disagree strongly.

Assembly Speaker Sheldon Silver (D) released this statement on its passage.

Assembly Speaker Sheldon Silver, Assemblywoman Michelle Schimel, and Codes Committee Chair Joseph Lentol today announced passage of the Crime Gun Identification Act of 2012 that would require all new semiautomatic handguns sold in New York State, by 2014, to be microstamped with a unique code which is transferred to shell casings when the gun is fired.

"Microstamping is a technological advancement that will not only help law enforcement officials investigate gun-related crimes, but will also act as a prevention tool to combat gun trafficking and reduce gun violence across New York," said Silver. "Gun violence has caused great harm to many in our communities. This legislation would help law enforcement to bring the perpetrators of these violent crimes to justice and offer some measure of closure to the victims of these heinous acts. I commend Assemblywoman Schimel for championing this effort and all my colleagues for supporting this important public safety measure."

Microstamping ensures that when a gun is fired, information identifying the make, model and serial number of the gun is stamped onto the cartridge as numbers and letters. This technology allows law enforcement to trace firearms through shell casings found at crime scenes, even if the gun is never found. This crime-fighting tool will provide law enforcement with rapid leads at crime scenes and will provide evidence to help investigate, arrest, and convict more criminals of gun-related offenses.

Assemblywoman Michelle Schimel, sponsor of the measure (A.1157-B), said, "This is the fifth year that I have sponsored and debated microstamping legislation, which has passed our house each year. In this session, the Assembly included a microstamping measure in our budget proposal, but regretfully, it was not included in the final state budget. As we wait for the state Senate to act on this bill, brave law enforcement officers are being struck down by gun fire and innocent victims continue to be wantonly murdered. We can't catch their killers because they fire anonymous bullets. I urge the state Senate to put the public's safety above the interests of extremists in the gun lobby and pass this important crime-fighting measure."

"This legislation will prove invaluable," said Lentol. "Not only will this bill help to bring closure to victims and survivors of gun violence, it will also deter illegal gun traffickers from supplying violent criminals with weapons. I strongly urge the state Senate to take action on this important measure."

Silver and Schimel noted that this bill will not place any restrictions on lawful gun ownership or impair access to the lawful purchase of weapons. The certification process called for in the bill is entirely industry based. The manufacturers of semiautomatic handguns will incur minimal costs to adopt this technology.

The technology is unproven,  it will be expensive for manufacturers to implement, and it can be easily defeated by either filing the firing pin or by scattering other cartridges at crime scenes. In other words, gun control advocates in the State Assembly have just passed a feel-good measure that will not have an impact on crime, will not track criminals, and will increase the cost of gun ownership. As to the last item, that is if firearms manufacturers even bother to sell semi-auto pistols in New York. This is probably the true goal - though unspoken - of the bill's sponsors.

GunPoliticsNY has more here.

Legislating A Non-Existent Solution

The New York State Assembly just passed the micro-stamping bill and sent it to the State Senate according to the NRA.

Micro-Stamping Legislation Passes New York Assembly

Thursday, May 26, 2011


On Tuesday, May 24, Assembly Bill 1157 passed in the New York Assembly by a 84 to 55 vote. The bill has been delivered to the state Senate and will be considered in the Senate Codes Committee.

Introduced by state Assemblyman Michelle Schimel (D-16), A1157 would require all current semi-automatic pistols in production and all newly designed semi-automatic pistols delivered to any licensed firearms dealer in New York to mechanically stamp an alpha-numeric or geometric code that would imprint the make, model and serial number onto the cartridge case when the gun is discharged. This bill would vastly increase the cost of these firearms and will likely result in firearms manufacturers not selling new handguns in New York. Of course, that is the ultimate goal of this legislation.

A1157 would also require micro-stamping on all new semi-automatic pistols sold in New York after January 1, 2013 or whenever the State Police receive notification from one or more “micro-stamp job shops” that they can produce micro-stamp structures on two internal surfaces of a semi-automatic pistol for $12 or less, whichever occurs later.

Gun control advocates know that micro-stamping is unproven technology, is easily circumvented, and will be very costly to gun owners. Desperate to pass a bill and create a loophole, this legislation would do nothing to safeguard gun owners from the costly, unproven gimmick we know as micro-stamping. Enemies of the Second Amendment are determined to pass New York City Mayor Michael Bloomberg's pet project at any cost.

If you live in New York, please contact your state Senator and respectfully urge him or her to OPPOSE A1157. Contact information can be found here. Perhaps they can be the voice of reason.

Shocking Undercover Video Of A.......Legal Purchase

New York State Senator Eric Adams (D-Brooklyn)wanted to show how easy it was to buy "high-capacity gun clips" in New York State. He visited two gun stores in the Albany area where they were sold. However, these were pre-ban AK-47 magazines which are legal to sell in New York State. So, in his "undercover" investigation, he buys a legal product and based upon this he is proposing to ban all standard capacity magazines.

Somehow his logic just fails me.

Adams has introduced S. 3573-2011 for the purposes of making "all large capacity ammunition feeding devices, regardless of date of manufacture, subject to the provisions of the penal law." In other words, outlawing any magazines with a capacity of greater than 10. This is not the only gun control measure he has introduced this session of the New York State Senate. He has also introduced a bill requiring everyone outside of New York City to register their firearms on an annual basis with their respective county clerks.




Cam Edwards does a fine job of deconstructing Senator Adams and his shocking undercover video.