NY Judge Says Mossberg Shockwave Not A Firearm Under State Law

NY Judge Says Mossberg Shockwave Not A Firearm Under State Law

William Nolan is a retired New York Police Department detective who was arrested in December of 2018 for possession of unlicensed weapons; two Mossberg Shockwaves and a stun gun. Nolan was facing the prospect of 15 years in state prison, and prosecutors were intent on taking the case to trial (for reasons we’ll detail later).

A New York Supreme Court judge, however, has tossed out the charges against Nolan and ruled that under New York state law, the Shockwave isn’t actually a firearm.

As Nolan’s attorney Peter Tilem explains:

The Shockwave… is a legally interesting weapon that fires shotgun shells out of a 14-inch barrel, has an overall length of 26 inches and a special “bird’s head” grip. Because of its design, it is can’t be considered a shotgun, rifle nor a handgun under New York law, and no license is required to possess one in the state.  

A shotgun with a barrel length under 18 inches is generally illegal to own and possess in New York, at least without a license; however, the Shockwave (and similar weapons) cannot be legally considered a shotgun, which is defined in New York Penal Code §265.00 as a weapon which is “intended to be fired from the shoulder.”  Mossberg’s “bird’s head” grip, similar to a pistol grip, makes it impossible to fire from the shoulder.  In addition, the Shockwave cannot be legally considered a pistol because a pistol by definition was designed to be fired by one hand. The Shockwave features a strap on the foregrip designed for the support of the second hand. The prosecution’s own ballistics expert referred to each of Nolan’s Shockwaves as an “other weapon” in his report, meaning that it was not a “firearm” as was charged in the indictment.

When it comes to federal law, the ATF has designated the Shockwave a “firearm”, not “any other weapon,” which would require it to be registered under the National Firearms Act. So, it’s legal under federal law, and according to at least one judge on the New York Supreme Court, the Shockwave can be legally owned in that state without having to acquire a firearms license.

Tilem says that it’s his hope that prosecutors will now “think twice before charging law abiding individuals with simple possession of firearms,” adding that the Nolan case, “along with so many others, demonstrates the injustices caused by complex, opaque, and confusing gun control statutes that even law enforcement and prosecutors do not understand.”

I truly hope that he’s right, but I suspect that instead Andrew Cuomo and the Democrats in control of the New York legislature are going to try to “fix” the issue; either by rewriting the portion of state law defining a firearm or adding a provision that “any other weapon” that fires a projectile must also be registered with the state. They could also approach their restriction from an ammunition angle; requiring a separate license to purchase ammunition in New York.

Any new gun law means a chance to challenge in court, however, so even if Democrats target the Shockwave in the upcoming legislative session Second Amendment advocates will have legal recourse.

In the meantime, note that the judge’s decision in the Nolan case is not precedent for the entire state of New York. Nolan’s charges were tossed out, but overzealous law enforcement and prosecutors may still go after other New Yorkers that have a Shockwave that hasn’t been registered.

We should also talk a little about William Nolan and why police searched his home in the first place. According to the New York Post, which reported on Nolan’s 2018 arrest, the former police officer had his firearms license revoked for the incredibly vague reason of “failure to notify the division of numerous incidents.” What were those incidents?

The raid came after months of bizarre behavior in which Nolan, 55, who frequently wears a bodycam, would send creepy messages to anyone on his long “s–t list,” a source said.

“I’m glad they took the guns away from him,” said an ex-colleague who was on the receiving end of Nolan’s messages. “This guy is a ticking time bomb.”

Targets of his ire included dozens of cops, but also brass such as Internal Affairs Bureau Chief Joseph Reznick.

One chilling missive, sent under the name “toolbox63,” a handle sources said Nolan used in the past, was titled “Mass Fatality Human Remains Sealing Machine.” Attached was an 18-minute commercial video showing a simulated mass-casualty event in which responders use a new device to wrap corpses in body bags.

“You would think the next step is he was going to kill you,” said the source. “I would go home and make sure he wasn’t lurking somewhere.”

Now, it’s important to keep in mind that the Post story doesn’t include Nolan’s side of the story, but the search of his home wasn’t just some random circumstance.

Having said that, however, Nolan was never charged with a crime for his “creepy” messages. Instead, police used the broad discretion given to them under New York law to revoke Nolan’s license and then used the revocation as justification to search his home for weapons.

Well, now Nolan’s had those charges dismissed, and under New York law he can continue to own his Shockwaves. It seems to me that the issue here is Mr. Nolan, not any weapon he might own. Why was there no attempt to file charges against Nolan for harrassment? Were any orders of protection taken out by any of the individuals contacted by Nolan?

Did police and prosecutors decide to go for a more substantive (if less provable) felony charge rather than a simple misdemeanor? If so, that didn’t work out so well.

If they didn’t think they could get a misdemeanor conviction for harassment, on the other hand, they never should have tried to pursue a felony charge by going after his gun license. Remember, Nolan was facing fifteen years in prison. Why didn’t they attempt a civil commitment if they were so concerned about his dangerousness? There were other ways to address this problem, but they chose the one that highlights New York’s awful gun laws. I suppose in a way we should thank them for that.

The problem (beyond the state’s gun laws), is with the individual and not any one item he might own. Laws written to restrict the rights of legal gun owners, while failing to restrict dangerous or troubled individuals, are no way to protect the public safety. Let’s say that when police searched Nolan’s home they didn’t find anything. Would that “source” who said they would go home and make sure that Nolan wasn’t lurking somewhere really have felt any safer if he only had access to knives, ropes, swords, and of course whatever he could acquire on the illicit market?

The issue was Mr. Nolan’s alleged behavior. His ownership of the Shockwave was just the means by which prosecutors and police chose to address it. Rather than rewrite the New York Penal Code dealing with firearms, lawmakers in Albany should do some real work on ensuring consequences for cyberstalking and harassment as well as improving access to mental health facilities.