Hochul Power Grab is On
Rewind to summer 2022 and the 10-bill package shoved through the NYS legislature, which was contrived by Hochul with her “joined at the hip” attorneys from Everytown and Giffords.
Tucked inside that 10-bill package was authorization to convert New York from a NICS state to a “partial POC” state. “NICS” is, of course, our federal background check system for firearms purchases, which governs every federally-licensed dealer (FFL) in the U.S. and in all U.S. territories. “Brady states” are those states, like New York, since 1998, where FFLs directly communicate with the FBI/ATF to complete a background check. You see that as a customer when you fill out the ATF Form 4473, and work with your dealer in firearms to demonstrate that you are not a disqualified person under federal law from the ownership, possession, and use of a firearm. Here’s a nifty ATF webpage that illustrates the fifty states and their POC status.
In a “partial POC” state, state law enforcement becomes the middle man between the FFL and the FBI/ATF for background checks for handgun purchases. In a “partial POC” state, the FFL remains in direct connection with the FBI/ATF for long gun purchases. The “middle man” aspect of the state police handgun check is that the dealer contacts the state police for the handgun background check, the state police check state and local records and also submit the request for the FBI to check its NICS records. The state police aggregate those results into the approve/deny/delay for the handgun purchase.
In a “single POC” state, the state police are the middle man for every transaction. The dealers are connected to the state police, who are connected to state and local and to NICS.
I am the attorney representing NY-based, federally-licensed dealers in firearms. Our case, captioned Gazzola v. Hochul, among its many challenges, asks the federal court to stop the conversion of NY from being a “NICS” or a “Brady state” into being a POC state. Among the reasons the plaintiffs explained to the court, the NYS Police have no (zero) relationship with FFLs. Dealers have never received even one email or first class mailing from the NYS Police – and several of the plaintiffs have been federally-licensed dealers for more than fifty years.
For the first time in the history of NY dealer licenses, the NYS Police are trying to communicate with dealers and the revelation is not just ineptitude - it’s an unprecedented power grab.
The license(s) to be a dealer in firearms. Dealers in firearms in America are first and foremost federally-licensed. There’s a lot to that process, including background checks, and that federal ATF dealer license must be renewed every three years, including more background checks.
Not every state requires a duplicitous state license; New York is one of those states. In order for an FFL situated in New York to sell handguns, the FFL must also obtain a NY “dealer license.” The language gets pretty confusing. The federal FFL needs the license to sell all firearms. The NY dealer needs it only to sell handguns.
Benefits of being an FFL. On the federal level, an FFL Type-01 (dealer) and Type-02 (pawnbroker) enters into a marriage with the FBI and the ATF through everything from local field agents, who go in to the FFL in person, to the monster computer servers that silo the data on disqualified persons, such as convicted felons. This relationship costs the dealer nothing. It is there 24/7. It is there for background checks. It is there in the event of a lost or stolen firearm. It is there when the ATF requests a trace and a dealer provides information in less than the 24-hours required. There is a shared goal for FFLs to be the front line against sales to disqualified persons, so that law-abiding citizens can exercise their Second Amendment rights. By-and-large, it’s a pretty comforting marriage of highly experienced agents, employees, and dealers.
There is no parallel relationship between FFLs and the NYS Police. Until now, it was simply a statement of fact, by dealers. Not necessarily a negative, as the FBI/ATF have satisfied that role. A void, if you will.
Recap of events since July 25.
Now, however, the NYS Police are actively creating confusion and frustration in order to divert attention away from their power grab. Here’s highlights since the first on-site dealer inspection took place on July 25, 2023:
(1.) on-site inspections of dealers using officers from the “Joint Terrorism Task Force,”
(3.) sent an email from “Angie” to a few dealers asking them to keep a secret for the NYSP, and
(4.) put up a website on an unsecured server that allows some dealers to sign up and others no access.
A botched roll-out?
Intentional.
The Hochul-Nigrelli letter, first received in the mail by a dealer last Saturday, says:
“This means that starting on September 13, 2023, background check requests for firearm, rifle, shotgun, and ammunition purchases will be submitted to the New York State Police, and dealers will no longer submit requests directly to FBI NICS.”
Pay attention to the words “…firearm, rifle, shotgun…”
Hochul and Nigrelli are attempting to pull off a conversion of New York into a “single POC” state.
They don’t have statutory authorization to convert New York into a “single POC.” It’s a complete power grab. Direct interference between federally-licensed dealers and the FBI/ATF NICS. At best, the NYSP has statutory authority for a “partial POC” for handguns only.
How now Brown Cow – the letter says “…firearm, rifle, shotgun…” - ???
Ah, but that is where the Hochul-Nigrelli plot flies off the rails. The NYS definition of “firearms” and the federal definition of “firearms” are not the same thing. The NYS definition of “firearms” equates to the federal definition of “handguns.”
Look at it again. See how the Hochul-Nigrelli letter lists each type, in accordance with state classifications: “…firearm, rifle, shotgun….”
They can’t do it for all “firearms.”
Except that is exactly what Hochul and Nigrelli are attempting to do.
Hochul & Nigrelli causing even FBI confusion. Beginning this past Monday, dealers across the state started receiving an e-mail from Mr. Eric Moore of the FBI, announcing that as of Wednesday, September 13, 2023, federally-licensed dealers in New York would be disconnected from any direct contact with NICS/FBI/ATF. Mr. Moore attached a version of the Hochul-Nigrelli letter to his e-mail. Dealers continue to receive emails from Mr. Moore as of this morning.
Is the FBI/ATF even looking at the obvious? See, when you say to an FFL, even if he’s standing on New York soil, the word “firearms,” to us, it means all firearms, of the types handgun, rifle, shotgun, and antique firearms. We even quietly consider frames, receivers, and lowers (another blog, certainly, for these, but I’m simply giving you an insight into the complete thought).
So imagine Mr. Moore seeing whatever he’s seeing from New York. Again, the Hochul-Nigrelli letter says “…firearm, rifle, shotgun...” To Mr. Moore from the FBI, it looks like sloppy or redundant drafting. Heck, the overall letter is poorly drafted. This conversion is apparently so far downstream with the feds, that he’s not thinking about looking at NY PEN §400.06(1) and NY PEN §265.00(3) to check for state statutory authority. (And, I don’t want to overwhelm you with deficiencies in the Hochul-Nigrelli power grab, but there’s also no publicly-facing evidence to support the federal requirement that the NYSP have an administrative appeals process set up. You can see my separate blog on that.)
Hochul and Nigrelli are out to build a gun owners’ registry.
Hochul and Nigrelli are among the co-defendants in my lawsuit, Gazzola v. Hochul. They’re represented by the NYS attorney’s office. The state lawyers were kind enough to admit, in filings to the Second Circuit Court of Appeals on the pending motion for preliminary injunction, that their clients intend to use the background check system to build a gun owner’s registry.
What we didn’t know fact-certain until the Hochul-Nigrelli letter came out was whether they were going to limit themselves to the statutory authority or make a power grab. They walked straight into the pit trap. While it’s was hard to believe, it wasn’t difficult to imagine that this was their intention all along. Hochul & Nigrelli – the same duo who pledged “zero tolerance” for anyone breaking their laws – are now breaking the law, themselves.
What’s our recourse?
Two days ago, I submitted an uncharacteristically terse letter to my opposing counsel in Gazzola v. Hochul, calling this out, along with other bad behavior. I asked for a response by this afternoon. Well, it’s now 1:00 p.m. EST as I write this, and there’s been no response.
For all the dealers who are taking the time to send me copies of what-all you’re receiving and learning, please continue to be in touch. It’s a testament to our industry that you are working so hard to try to find a path forward while I try to do the same in court. We’re all being caught in the middle of a self-described “angry” governor, Democratic Party attacks on Hochul, James splitting from Hochul over the migrant crisis, the Schumer throne succession, and the endless big-money politics of those who would take the firearms out of the hands of “Mr. & Mrs. America” to make us beholden to politicians like Hochul who enjoy private security through the very NYS Police being turning out by Hochul against us.
Ammunition.
One more word. Yes, this, too, is pending to the Second Circuit in Gazzola v. Hochul. The ammunition background check is, without question, prohibited under NYSRPA v. Bruen. The state attorneys could not offer even one historic precedent or analogue – because there isn’t one. Outside of California in 2020, there has never been an ammunition background check. We’re doing everything we can to get the attention of the court to get a stay of the launch of this sytem.
I just need a judge willing to be the first. Hidden Figures. The scene in the courtroom. Those were the words I found myself saying during oral arguments at the Second Circuit, pulling inspiration from Ms. Mary Jackson in my hour of need. The Second Amendment truly is the modern civil rights movement.
What can you do? I’m glad you asked.
1. Everyone! Call the offices of Congressmen Stefanik (202-225-4611), Tenney (202-225-3665), Langworthy (202-225-3161), and Williams (202-225-3701). Get them a copy of this blog. They issued a joint letter to Hochul on Wednesday, and it was a missed opportunity. They seem to have no idea that Hochul is attempting to blatantly subvert the federal background check system.
2. Dealers only, please contact Mr. Eric Moore (nicsliason@fbi.gov). He’s the FBI NICS Liason for the Business Specialist Team. Get your arguments against a New York “single POC” to his attention.
3. Everyone! Please support your local FFLs in going out on STRIKE on Wednesday, September 13, 2023. Get this word to them that there’s a call for a statewide strike to raise public awareness and against the NYSP power party.
Please, no, do not flash mob dealers on that date in what some are calling an attempt to break the new system. You’re only going to be hurting dealers if you do. There’s considerable paperwork anticipated for each purchase of ammunition. You may be delayed up to 30 days from approval under a law put through under Cuomo. You may be denied and have no administrative right of appeal and have to pay court fees and lawyers to try to appeal in county court or federal district court. Please, yes, continue to patronize your local FFL, especially buying the shelves bare of ammunition through September 12. But, please, support the STRIKE on Wednesday, September 13.
4. Get to your local rod & gun clubs and ranges and participate in the “Shot Heard ‘Round the State, II” at high noon on Wednesday, September 13. Come together, again, as we first did in 2014 to protest the “SAFE Act.” Invite local, elected officials. Get them and everyone who shows up educated on the new laws, the abuse of power in Albany, and work to rebuild our sense of community as firearms owners and Second Amendment activists.
5. If you would, toss a few dollars in the hat. We’re headed back to court, probably as early as Monday, with a new filing.
6. Sign up for my e-blasts. There’s a lot happening quickly, and it’s the most efficient way I can transmit information.
