[Jim March]

Does anybody know if NYC (or state) has a citizenship requirement for gun permits?

This is time-sensitive.

[Graystar]

Yes, you must be a citizen. CCW is nearly impossible to get. It must be in connection with your employment, or you have be rich and well connected.

When you get a CCW for your job, you can only carry when you're working.

Otherwise, you can only get a premise license for handguns, and the premises must be, obviously, in NY.

[Jim March]

Oh man. Are you SURE about the citizenship thing? Does that include for a "premises permit"? Because that's what I'm interested in.

IF citizenship is required for a premises permit, BINGO! Alcosta is gonna get off scott free.

See also:

http://www.thehighroad.org/showthread.php?s=&threadid=24439

[armedbutnotdangerous]

Hold on Jim. On the phone with them now.
Will post back inna minute.
Steve.

[armedbutnotdangerous]

Jim, from the New York State Police Pistol Permit office, the lady
I spoke to said that you DO NOT have to be a citizen to have a
Pistol Permit in NYS.

They are difficult to get, they are not impossible. I've had mine
since I was 19.

The closer you get to the cities, the harder it gets to get a
permit. I am in a pretty rural area upstate.

I have an unrestricted permit. On the application, I believe I put
"for self-defense", and was given a "carry" permit with no questions.

Hope this helps.

Steve.

edited for grammar

[armedbutnotdangerous]

Working on NYC info, nobody answering phone number NYSP told
me to call.

Will keep trying.
Steve.

[Jim March]

DAMN. Should have looked myself; 3 minutes of google got me here:

http://www.nyc.gov/html/nypd/html/dclm/ldinfo.html

Bad info, Graystar. Citizenship ain't required. I just did a pile of research, too.

But that's OK. I think I found something else neato for California while doing it. Gotta make sure, but...y'all ain't gonna believe it :).

But anyways. As to the NYC fight for Alcosta, this makes it harder. Not impossible though.

[Graystar]

Bad info, Graystar. Citizenship ain't required. I just did a pile of research, too. I'm sorry. Would you please explain exactly what #5 under "INSTRUCTIONS TO ALL HANDGUN LICENSE APPLICANTS" means? Here it is:

"5.Proof of Residence. You must submit proof of your present address. Proof may consist of, but is not limited to, a real estate tax bill, ownership shares in a cooperative or condominium, or a lease. You may also be requested to supply further documentation i.e., a New York State Driver's License, a New York State Income Tax Return, or a current utility bill."

You are a citizen of the state you reside in. If you own property in several states then you must pick one state as your legal residence. That state is where you get your driver's license, and where you pay your state income taxes (if any.)

While it is administratively possible to get two or more driver's licenses, it is illegal. No state will knowingly allow you to possess its driver's license while continuing to hold a valid license from another state.

I stand by my post.

[armedbutnotdangerous]

Not to be a pain Graystar, but citizenship is generally construed (also in this instance) to be citizenship of a country.

It is perfectly legal, according to my conversation with the NYSP,
to be a legal alien RESIDING in New York State (as per Sec. 5
that you quote), and obtain your New York State Pistol Permit.

Always willing to argue anything,;) ,
Steve.

[Graystar]

I must make a clarification...NYS *does* license non-citizens, but from what I've heard only under extraordinary circumstances, such as the bodyguards of diplomats. However, even in this case primary residency must still be in NY.


Excerpt for section 7 of Penal Code 400
"If such license is issued to an alien, or to a person not a citizen of and usually a resident in the state, the licensing officer shall state in the license the particular reason for the issuance and the names of the persons certifying to the good character
of the applicant. "

[Jim March]

Whoa - OK, you've got my attention: are you saying that under NY *state* law, there's more "scrutiny" for legal alien residents?

And that if anything, the situation is even worse in NYC?

I need details. I need a link to that code cite :). And eventually, we'll have to get his lawyers to do discovery proving that there was effectively no way in hell he'd ever score the permit based on current patterns of issuance to Latinos, and legal alien residents.

Prove enough discrimination and 1), he walks and 2), it'll be a stunning blow to the whole idea of discretion.

[Graystar]

Not to be a pain Graystar, but citizenship is generally construed (also in this instance) to be citizenship of a country. 14th Amendment:
"Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

States *are* like countries. They are sovereign. That is why we are both citizens of the United States and citizens of the state in which we reside.

Stange system but it seems to be working well so far.

[Graystar]

Just FYI, if code is on the web you should be able to find a link to it at FindLaw www.findlaw.com

Here's the link to the NY Consolidated laws
http://assembly.state.ny.us/leg/?cl=0

It certainly does seem that aliens undergo greater scrutiny. However, that's not gonna get you anything.

As we have seen from the treatment of the "illegal combatants" from Afghanistan, non-citizens are not given the same rights as citizens.

Also, since in previous NYS rulings the courts have ruled firearm possession to be a privilege, there is no rights-based argument you can make. You will first have to argue firearm possession as a right, and win, before raising such an issue for someone's defense.

Finally, I haven't heard anything about this but do you know for certain that this person applied for a license and was denied? Without that, and without some evidence showing a disproportionate rejection rate, defending him on such grounds is impossible.

Just my opinions.

[armedbutnotdangerous]

Not to hi-jack the thread, but:
From Encarta's online dictionary-

cit·i·zen [ sÃ*ttiz’n ] (plural cit·i·zens)
noun

1. legal resident: somebody who has the right to live in a country because he or she was born there or because he or she has been legally accepted by that country


That was what I meant by generally construed.

And regardless of which definition you want to use, it is still legal
in NYS for a non-citizen to get a pistol permit.

Steve.

P.S. Here's an interesting quote....

"Arguing with an Irishman is like wrestling with a pig in the mud.
Sooner or later you realize the pig enjoys it."
:D

[Graystar]

BTW I'm latino, live in New York City, and I just got my license a couple months ago. The officer that handled my case was named Rosado. I just don't think such an argument has a chance.

[Graystar]

And regardless of which definition you want to use, it is still legal in NYS for a non-citizen to get a pistol permit. Yes, I made a post on that. Thanks.

[Jim March]

Quoting Graystar:

Also, since in previous NYS rulings the courts have ruled firearm possession to be a privilege, there is no rights-based argument you can make. You will first have to argue firearm possession as a right, and win, before raising such an issue for someone's defense.

Well the good news is, in this case I *know* you're handing out bad advice.

Sorry, but this has been extensively worked out in the Federal courts: equal protection rights apply even to "privileges".

You may not have a "right" to a gun, but you have rights to equal protection. If your rights (to equal protection) are stomped on, you can make claims on that basis.

Don't believe me? See also Guillory vs. Gates, a 1982 Federal 9th Circuit 3-judge unanimous decision on CCW in California:

http://www.equalccw.com/guillory.html

In this case, Guillory and his co-plaintiffs were denied CCW. They sued on equal protection grounds, and at trial tried to ask Sheriff Gates of Orange County about who he DOES issue to. (This was fertile ground, we now know he was corrupt as hell.) The trial judge blocked all such queries, saying that the case was about Guillory and his co-plaintiffs, not anybody else. They naturally lost at trial.

On appeal, the appelate court specifically said there was an equal protection right to a permit, and that Guillory should have been allowed to question the sheriff on current issuance practices. They sent it back for a re-trial on that basis.

Sheriff Gates didn't want to face those questions, caved in, and issued the three permits :D. But the precident had already been set.

Now granted, that's not itself "binding" in New York, but the US Supreme Court cases the 9th Circuit based their decision on WERE.

It gets better: in Arlington Heights vs. Metropolitan Housing (US Supremes, 1977) the court was clear that there were potential equal protection rights in real estate zoning issues, another discretionary thing - and if it could be proven that racial disparity was a design element in the law, the level of scrutiny would be raised.

I've gone into all of this in great detail here:

http://www.equalccw.com/expose.html (the first chapter is OK as background, but the second chapter on equal protection is the real meat.)

Graystar: sorry man, but I have to ask: do you have a habit of stating things as hard fact when you're guessing?

-------------------

Back to New York and the Alcosta case:

His lawyers should file discovery for the list of "premise license" permitholders, get the list of business license holders from that city department, and do a Hispanic-name analysis of both lists. That will tell you what percentage of the business licenses are held by Latinos, versus what percent are "granted" gun permits. THAT gives you powerful evidence of systematic discrimination.

True, Alcosta probably didn't apply. There's a way around that I can't go into on a public forum.

As a backup plan, his lawyers should file for discovery on all Internal Affairs investigation material for cops/brass working in the gun licensing division. The goal is to make an "unclean hands" case, show the jury that the agency is totally screwed up in this area of law and has lost the right to criticize anybody else because they're too dirty :scrutiny:. This is admittedly a longshot, BUT then again some of the stuff going on is incredibly ugly:

http://www.equalccw.com/aerosmith.html

The city might want to make the case go away pronto rather than even "go there" :evil:.

[Graystar]

Graystar: sorry man, but I have to ask: do you have a habit of stating things as hard fact when you're guessing? No I don't. The ruling is Sewell v City of New York and is indeed, hard fact.

I've studied up on the cases and law pertaining to this issue in NY. Here in NY the licensing authority can deny you for any reason. They can say something like "you live in a high crime neighborhood so any guns on the premise would be at a high risk of being stolen." The courts would accept that reason. Lots of people have appealed their rejections for carry licenses and they all lose. That's just the way it's setup. The licensing authority simply has that broad a power. This is not a shall-issue state.

But all this is moot. If Alcosta didn't apply for a license then you've got no standing because he was never treated unfairly in regards to licensing. It doesn't matter if you can prove that latinos are treated unfairly in the licensing process. The fact is the *HE* wasn't treated unfairly.

So your "equal protection" argument will most likely go nowhere. They will simply say that all people are evaluated equally and that the issuance of licenses is on a case by case basis. It's bull, but you'll have to prove it.

This has "Thrown out of court" written all over it.

Here are a few pertinant rulings and excerpt to mull over...

"The issuance of a license to carry a gun is a privilege, not a right." ( Sewell v City of New York, 182 AD2d 469, 472, lv denied 80 NY2d 756.)

"An applicant for such a license must show that " 'proper cause' " for its issuance has been established." ( Matter of Bernstein v Police Dept., 85 AD2d 574; see also, Penal Law § 400.00.)

To establish "proper cause," an applicant must, inter alia, "sufficiently demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." ( Matter of Klenosky v New York City Police Dept., 75 AD2d 793, affd 53 NY2d 685.)

[PATH]

You have no "right" to have a firearm in NYS. It is not in the state constitution. The Supreme court in the 1880's decided that the Bill of Rights only protects you from the Federal Government. Your rights are derived from your state constitution.

Please note that a lawsuit could incorporate Federal Protections into your State Constitution. You would have to use the 14th Amendment to do so as was done with Civil Rights Legislation.

New York State Licenses are revocable for any reason at all.
California and Maryland are also states where you have no "right" to a firearm. I believe there are three other states with this setup as well.

[Jim March]

Has anybody tried an equal protection attack on the NY permit system? *Especially* one based on race?

Have you read the Guillory case, and the US Supremes cites that it's based off of?

We have a firmly established right to equal protection, even when it's in accessing "privileges".

[Jim March]

Path, Graystar, let me try and clarify this:

You don't have a "right" to sell services to the city, if you're in a business like construction that the city regularly needs.

You can bid, and you might win, but ultimately it's a discretionary process as even with the low bid, the city might prefer some other vendor because of percieved quality issues or whatever.

BUT.

If you can prove that the bidding was rigged on the basis of corruption, or (worse) that your bid was denied because of your race, you've got major remedies available in court, both Federal and state.

Am I making any sense here?

Y'all can make statements like:

You have no "right" to have a firearm in NYS.

...and it's absolutely meaningless babble. It's correct as far as it goes, but it doesn't go anywhere NEAR far enough.

Most people challenge gun laws based on the 2nd Amendment. That's the obvious approach.

But it sure as hell ain't the only way to skin this cat!

Federal equal protection principles via the 14th Amendment DO apply to the states.

In California, I've studied every single claim against the California gun permit system *ever* made. Some were "pure RKBA attacks", some were based on equal protection, some were mixed. Not ONE involved minority plaintiffs. Or even a lady, that I can find - gender discrimination isn't quite as potent as racism, but it's useful ammo too.

Now, granted, Mr. Alcosta's lack of application is a problem. But it's not insurmountable and that's all I'll say about it.

[Graystar]

Jim,

I understand exactly what you're saying and I understand that your argument is correct. However, having a correct argument is not enough. The argument must be applicable to the case at hand. I don't think you can apply it. Equal protection means everyone gets treated the same way. Just because one person got a license, and another didn't, doesn't mean that they were treated differently.

The question is one of criteria. If everyone is put through the same set of criteria, and it comes out that, for whatever reason, lots of latinos get rejected, then the argument, however correct it may be, has no applicability. The criteria may need to be revised, but that's an administrative issue in NY.

So if people in bad neighborhoods get rejected simply because they live in bad neighborhoods, there's nothing to do about it as long as they've *all* been rejected, and for the same reason. You would have to find an anomoly in order to suggest that the criteria is not being applied fairly. What you really need is someone from the inside to testify that racial profiling is an unspoken part of the process.

Another problem is that in NY you have the right to appeal your denial of a pistol license. The licensing authority will have to go before the judges and explain why the license was denied. So Alcosta would have had to apply for license, get denied, appeal, and then lose his appeal for reasons that should have been applied to some white guy that lives down the block but got his license approved anyways.

Personally, I think his lack of an application *is* insurmountable. You can't claim he was treated unfairly when he was never treated in any fashion to begin with. No standing, no day in court.

[Gray Peterson]

They can say something like "you live in a high crime neighborhood so any guns on the premise would be at a high risk of being stolen."

This for a New York PREMISE permit? As Jim would say, "Oh no, hell no!".

Premise permits are SHALL-ISSUE in the state of New York, the entire state. If NYC is denying premise licenses due to likelyhood of theft, then they are violating the law. Check Penal Section 400 for that one.

Now, let's get some education on this issue:

Here's the specific statute to pay attention to:

Types of licenses. A license for gunsmith or dealer in firearms. A license for a pistol or
revolver, other than an assault weapon or a disguised gun, shall be issued to (a) have and possess in his dwelling by a householder; (b) have and possess in his place of business by a merchant or storekeeper; (c) have and carry concealed while so employed by a messenger employed by a banking institution or express company; (d) have and carry concealed by a justice of the supreme court in the first or second judi-cial departments, or by a judge of the New York city civil court or the New York city criminal court; (e) have and carry concealed while so employed by a regular employee of an institution of the state, or of any county, city, town or village, under control of a commissioner of correction of the city or any warden, superintendent or head keeper of any state prison, penitentiary, workhouse, county jail or other institu-tion for the detention of persons convicted or accused of crime or held as witnesses in criminal cases, provided that application is made there- for by such commissioner, warden, superintendent or head keeper; (f) have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof; and (g) have, possess, collect and carry antique pistols which are defined as follows: (i) any single shot, muzzle loading pistol with a matchlock, flintlock, percussion cap, or similar type of ignition system manufactured in or before l898, which is not designed for using rimfire or conventional centerfire fixed ammunition; and (ii) any repli-ca of any pistol described in clause (i) hereof if such replica--

The state law itself that says that premise licenses are SHALL-ISSUE. The only thing here that is for all intents and purposes may issue are licenses issued under subsection F, which requires good cause for issuance.

[Graystar]

Premise permits are SHALL-ISSUE in the state of New York You're reading part 2 of Section 1. That describes the types of licenses that shall be issued (hence the title, "Types of Licenses.") That does not mean that the licenses shall be issued. It means that no other type of licenses, other than the ones listed, shall be issued. There used to be other types that are no longer used.

You need to read part 1 of Section 1...Eligibility.

The pertinent sentence starts " No license shall be issued or renewed except for an applicant ..." then look at sub (g) which reads "concerning whom no good cause exists for the denial of the license."

That's the kicker. The law doesn't define what "good cause" is. That's left to the licensing authority. So if the particular investigator thinks that a high risk of theft is good cause, kiss that license goodbye. The arbitrary nature of eligibility has always been an issue in NY. The guys at New York State Rifle & Pistol Association can talk your ears off over it.

[Jim March]

What you really need is someone from the inside to testify that racial profiling is an unspoken part of the process.

You're missing something: according to a LOT of USSC cases, when there's a severe enough racial disparity on the issuance side, especially when the area of law was crafted originally with racist intent, even "accidental" statistical disparity is enough to force reform of the law in question.

I've posted my research....OH DANG, I posted the wrong friggin' URL! My apologies, dangit, THIS is what I meant:

http://www.equalccw.com/practicalrace.html (the first chapter is OK as background, but the second chapter on equal protection is the real meat.)

SIGH. Anyways. Read that. Pay particular attention to the Arlington Heights and Hunter cases.

[Graystar]

You're missing something: according to a LOT of USSC cases, when there's a severe enough racial disparity on the issuance side, especially when the area of law was crafted originally with racist intent, even "accidental" statistical disparity is enough to force reform of the law in question. Okay...that sounds good to me. Now the question is...do you have the evidence to prove it?

And, of course, there's the lack of an application. I'm sure that will be a major stumbling block.

[Jim March]

The evidence is actually all there: compare the racial demographics of the CCW permitholders, the premise permit holders and the list of business license holders. All three are either public record, or at worst are available under discovery.

As to Alcosta's lack of application: yes, that's a problem. But it's not beyond hope. Had the premise permits been limited to citizens, that would have beat the problem right there. Without that, there's still things we can do and again, I won't talk about that in a public forum.

[Graystar]

Why can't you talk about it in a public forum?

[Jim March]

Can't.

[Graystar]

Well okay. Good luck. Let us know how it goes.

I'm betting my quarter on a ruling of "no standing" to raise the issue.