New York City Mayor Eric Adams, a former NYPD officer, says his administration is going after those carrying guns illegally in the city, and is bringing back a plainclothes unit focused on arresting offenders that was shut down by then-mayor Bill de Blasio in 2020. The move may prove to be politically popular among New York City residents (the vast majority of whom aren’t gun owners, either legally or illegally), but as public defenders in the city have recently argued, thanks to the city and state’s subjective “may issue” carry laws, many people arrested for illegally carrying a gun in the city aren’t exactly hardened and violent criminals.
Adams campaigned on returning plainclothes officers to the streets, and the idea has catapulted to the top of his priorities in recent days, with two NYPD officers shot on Friday night and violent crime seen as a top concern of voters. Still, as the city’s public defenders have argued, going after “illegal guns” while New York City makes it impossible for the average citizen to legally carry one means that a lot of folks with no history or predilection towards violent crime could end up being labeled “violent felons” simply for bearing arms without a government permission slip.
In firearm-possession cases, New York’s penal law sweeps broadly. If a firearm is not literally loaded, but ammunition is “possessed … at the same time,” the penal law defines the firearm as “loaded,” anyway. If a firearm is located anywhere in a car other than “upon [a] person,” the penal law presumes that “all persons” in the car possess it. And if a person possesses a firearm without a license, the penal law presumes they possessed it with the “intent to use [it] unlawfully against another.” These broad laws make every simple possession case a “violent felony,” even reaching people who did not actually intend to possess a loaded firearm at all.
New York’s system runs in the name of safety, but simply making firearm possession unlawful is not itself safe. The license requirement damages real people forever. Our clients are psychologically traumatized and physically threatened by police invading their homes executing search warrants. They are caged pretrial at Rikers in what is now acknowledged to be a humanitarian crisis. They lose their jobs, children, and immigration status, risking increased ICE enforcement. They are sent to prison. And they are forever branded as “criminals,” or worse, “violent felons.” The victims of this system include Victor Mercado, whom police arrested this summer after they allegedly found a handgun in his car. Unable to pay the $100,000 bail that a Bronx judge set, Mercado contracted COVID-19 at Rikers. Last week, he died.
The licensing system isn’t broken. It’s fundamentally flawed; designed to be arbitrary and capricious in order to prevent the average citizen from exercising their right to bear arms. As the public defenders point out:
the licensing structure allocates total and unilateral discretion to the NYPD to decide whose firearm possession is lawful and whose is a “violent felony.” It charges hefty fees, disproportionately burdening indigent people. And it results in a wildly disparate allocation of licenses, unsurprisingly favoring people who are associated with the police. No part of this gatekeeping structure is consonant with a fundamental constitutional right.
Eric Adams needs to get a handle on New York’s violent crime, but as long as people can be turned into violent felons simply for carrying a gun for self-protection, I’m concerned that his new and “improved” plainclothes units are still going to be prioritizing generating large numbers of arrests without giving much attention or thought to focusing on arresting the most violent and prolific offenders. The Supreme Court’s pending decision in New York State Rifle & Pistol Association v. Bruen should provide New Yorkers with some relief when it comes to exercising their Second Amendment rights, but for the time being Adams’ crime fighting plans are likely going to ensnare at least as many non-violent, possessory offenders as truly violent criminals. New York City needs a better strategy, but it also needs better laws in place that actually recognize the right of the people to both keep and bear arms in self-defense.