arreseted in NY for possession of preban. D, felony

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xtriggerman

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I have a guy I know that was just arrested by the NY state police for a pre ban Daewoo side folder. The Trooper didnt care one wit that he could have produced a 1980's bill of sale. He was booked, printed, cuffed and leg shakled befor the judge and alowed to post his own bail after he was taken to the county jail in chains and re-booked, printed, photo-ed ect. He's papered for a class D felony, possession of an assault weapon.
Hes looking for an attorny who is familiar with the states gun law. It may not end well even in this upstate county ; Sullivan.
Any one know of any prior NY court ruleings on what we all thought was a "granfathered" ownership of these pre ban guns? there is nothing in the penal code of such a grandfather clause.
I hope he can beat the charge...... but this is NY.
 
No positive but I don't think there is "pre-ban" in NY. Did he possess the weapon in NY prior to the ban? As far as I know "assault weapons" and hi-cap mags are banned in NYS.

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there is nothing in the penal code of such a grandfather clause.
To the contrary:

New York Penal Code Article 265:

22. "Assault weapon" means (a) a semiautomatic rifle that has an
ability to accept a detachable magazine and has at least two of the
following characteristics:
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of
the weapon;
(iii) a bayonet mount;
(iv) a flash suppressor or threaded barrel designed to accommodate a
flash suppressor;
(v) a grenade launcher; or
(b) a semiautomatic shotgun that has at least two of the following
characteristics:
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of
the weapon;
(iii) a fixed magazine capacity in excess of five rounds;
(iv) an ability to accept a detachable magazine; or
(c) a semiautomatic pistol that has an ability to accept a detachable
magazine and has at least two of the following characteristics:
(i) an ammunition magazine that attaches to the pistol outside of the
pistol grip;
(ii) a threaded barrel capable of accepting a barrel extender, flash
suppressor, forward handgrip, or silencer;
(iii) a shroud that is attached to, or partially or completely
encircles, the barrel and that permits the shooter to hold the firearm
with the nontrigger hand without being burned;
(iv) a manufactured weight of fifty ounces or more when the pistol is
unloaded;
(v) a semiautomatic version of an automatic rifle, shotgun or firearm;
or
(d) any of the weapons, or functioning frames or receivers of such
weapons, or copies or duplicates of such weapons, in any caliber, known
as:
(i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all
models);
(ii) Action Arms Israeli Military Industries UZI and Galil;
(iii) Beretta Ar70 (SC-70);
(iv) Colt AR-15;
(v) Fabrique National FN/FAL, FN/LAR, and FNC;
(vi) SWD M-10, M-11, M-11/9, and M-12;
(vii) Steyr AUG;
(viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and
(ix) revolving cylinder shotguns, such as (or similar to) the Street
Sweeper and Striker 12;

(e) provided, however, that such term does not include: (i) any rifle,
shotgun or pistol that (A) is manually operated by bolt, pump, lever or
slide action; (B) has been rendered permanently inoperable; or (C) is an
antique firearm as defined in 18 U.S.C. 921(a)(16);
(ii) a semiautomatic rifle that cannot accept a detachable magazine
that holds more than five rounds of ammunition;
(iii) a semiautomatic shotgun that cannot hold more than five rounds
of ammunition in a fixed or detachable magazine;
(iv) a rifle, shotgun or pistol, or a replica or a duplicate thereof,
specified in Appendix A to section 922 of 18 U.S.C. as such weapon was
manufactured on October first, nineteen hundred ninety-three. The mere
fact that a weapon is not listed in Appendix A shall not be construed to
mean that such weapon is an assault weapon; or
(v) a semiautomatic rifle, a semiautomatic shotgun or a semiautomatic
pistol or any of the weapons defined in paragraph (d) of this
subdivision lawfully possessed prior to September fourteenth, nineteen
hundred ninety-four.

23. "Large capacity ammunition feeding device" means a magazine, belt,
drum, feed strip, or similar device, manufactured after September
thirteenth, nineteen hundred ninety-four, that has a capacity of, or
that can be readily restored or converted to accept, more than ten
rounds of ammunition; provided, however, that such term does not include
an attached tubular device designed to accept, and capable of operating
only with, .22 caliber rimfire ammunition.
 
Just like the Firearm Owners Protection Act, NY treats the grandfather clause as an affirmative defense, so in order to invoke it your friend must be adjudicated and the authenticity of the 1980s bill of sale determined by a court of law.
 
Just like the Firearm Owners Protection Act, NY treats the grandfather clause as an affirmative defense, so in order to invoke it your friend must be adjudicated and the authenticity of the 1980s bill of sale determined by a court of law.

Can one then sue for false arrest?

If the story is as the OP has related, then the person arrested broke no laws...

That would be like hauling my Mother off to the clink, and then forcing her to prove in court that she did not steal her reading glasses...
 
If they could the burden wouldn't be on the defence to prove the gun was purchased in the '80's. Sounds more like "guilty until proven innocent" than the other way around.
 
I don't live in New York, and no one could pay me enough money to do so. :banghead:

But if I did, and I had a "grandfathered" gun, I would be sure that I had on my person a photocopy of the bill-of-sale or other documentary proof any time I left my residence with it.

And the original would be in a safety deposit box.

Also it wouldn't hurt to also have a copy of the statute.

If both were presented to an arrersting officer, he (or his/her employer) might have a problem later. As it is, at the time of arrest the officer only had the gun owner's word about the firearm's history.
 
v) a semiautomatic rifle, a semiautomatic shotgun or a semiautomatic
pistol or any of the weapons defined in paragraph (d) of this
subdivision lawfully possessed prior to September fourteenth, nineteen
hundred ninety-four.
That phrase itself leads to much speculation. Does it mean that the gun had to be possessed by the current possessor or does it mean that it had to be possessed as in circulation?


I was not aware of any prohibition of transfer of pre ban weapons or magazines.
 
Yep, guilty until proven innocent. If ya cant prove your innocent, then your guilty.
 
WHOA... there's no need to have a sales receipt. The gun only needs to be verifyably pre-ban based on serial number.

Pre-ban guns are bought and sold in NY all the time, and there is no law restricting their possession or use.

Your buddy needs a lawyer and some research on the serial number.

Unless there's more to the story than you are telling us (and there usually is in these types of cases), the charges will end up getting dropped.
 
It is unfortunate people get placed in these situations, since law enforcement can do the query before acting. I expect there may be something we are not being told.

I doubt today's thermal paper receipts will be visible after a few years. Besides, anyone can make up a receipt. I pay with credit or debit cards and rarely use cash. There are records of the transactions that can be retrieved.

If there is an issue of whether this item is grandfathered, it should have been cleared up before a trial. Our judicial system should not spend the taxpayers money frivolously. I expect there must be something we are not being told here.
 
After he lawyers up, he will find himself able to sue for false arrest. That police officer will most likely be fired as well.
 
Thanks for all the great info so quickly. Ill call the would be felon tonight and have him pull ip this thread. I was the dealer that sold him the woo way back then. The only thing missing from this story is the guy's wife called the cops on him cause he had one of his many arguments with her. He knew he was to give the cops his 4 handguns and then pick them up after a coolong off period. When the trooper was handed the pistols, he saw 3 long guns in cases on the top of the closet and said he had to take them to. The trooper reached up and helped himself to the cased long guns and left. 2 weeks later the guy called the barraks to see if he could come get his guns and theu said sure, come on down. Once he got there to get his guns back. They told him he was under arrest for the aw that was in the one case. He has no prior arrests. That my friends is the story as told to me and hes probably truethfull about all this. Maybe he will chime in here.
 
don't think there is "pre-ban" in NY.
yeah there is. Upstate is way different than NYC.

WHOA... there's no need to have a sales receipt. The gun only needs to be verifyably pre-ban based on serial number.

drsfmd has it right.

I have only heard cases where the gun is confiscated and the serial # is researched.
 
If there is an award, the city/state will pay without addimitting guilt. And even if (they won't) fire the officer, binding arbitration with the police union will reinstate him. Seen this in Portland with EVERY police shooting that the city had been sucessfully sued and found at fault to the tune of $1+million judgements.
 
If the would be felon were allowed a do-over, would he do it all the same? IMO, "guilty until proven innocent" is not worth having such firearms.

Having said that, it's disheartening that it occurred in the USA.
 
That was my thread about the super vells. I had purchased them with a walther. Once the judge saw that he threw it out. It was just luck that I had that receipt and that it said "super Vell" ammo on it, and the gunstore owner had a pistol club that I was a member of.
This is a bit different, it sounds a lot more complicated, and there was no way of knowing these things back in the 70's and early 80's, there was really no place to do the kind of research there is today, Like the judge said, How is he supposed to know that something that he legally bought in a store one day was made illegal later on. They made no attempt to notify anyone who may have purchased these bullets. Now with the internet, you are expeted to know the laws. Although the same principals hold true, I had no idea the bullets were no longer legal. The judge knew that admonished the ada, and actually yelled at him for wasting the courts time. Good judge.
 
This may well be another example of how "affirmative defense" does not equal "prevents arrest."

It's my understanding that the current precedent is that, despite the loss of liberty and property resulting from arrest is based on the presumption that the on-scene LE had a good, public safety, reasons to so act. Meaning there is no redress, unless the injured party can prove that the injury was either deliberate or negligent.

And, somewhere down the road, our legal system is going to have to deal with the disparity that occurs in creating laws that define what you cannot be prosecuted for, but do not prevent your loss of liberty and property.
 
Who’s life liberty or property did he harm?

The "argument" referred to in the OP's follow up was more than an "argument" under NYS law if they took his guns. That's a domestic violence charge or a restraining order.

It doesn't excuse the phony felony assault weapons charge, but it's the only thing (well, one of few, and the only one likely in the scenario that's been laid out) that would get his guns taken away.
 
Hold on, He "claimed" there was no charges brought against him from the domestic dispute. He said this has happened before with the wife and after a "cooling off" period he has routeenly (2 or 3 other times) gone to the trooper barraks and retrieved his hand guns without any trouble at all. Personaly, if my wife called the cops on me for ANYTHING..... that wife would not carrey that title after the first time period. The moto "if it ain ruff, it aint right" has come back around to bite him in the wallet big time. I have to see how I can get an official build date on a Daewoo if it is at all possible.
I am planing to move to TN by the end of 2014. Iv been a NY'er all my life and the comments directed at the state are not far from the trueth. NYC 9 million pop, 64 percent minority population has come to rule the political spectrum. For years the upstate republican senate held off the leftists but now even the senate is on the edge. And the repuebicans that are here arnt much better than the dems. Rep. Gov Pataki gave us the AWB. Iv been to Cal n back and upstate NY is one of the very most beutiful states you will ever see. The libs have decimated the business base with regs n taxes. I had a full service gun shop for 14 years here and no way would I ever consider that again in NY. The NYS AWB goes as far as to make it a felony to own 20 or more firearms of any sort. I believe thats under AWB definitions somewhere. Its absolutely bizzare....

My good Lord, it looks like they changed it down to 10. You cant make this stuff up!!!


" § 265.04 Criminal possession of a weapon in the first degree.
A person is guilty of criminal possession of a weapon in the first
degree when such person:
(1) possesses any explosive substance with intent to use the same
unlawfully against the person or property of another; or
(2) possesses ten or more firearms.
Criminal possession of a weapon in the first degree is a class B
felony."

Heres the revision from 20 firearms to 3 in this new Penal code revision. I love how they change these laws at will with absolutely NO public input!!!

§ 265.02 Criminal possession of a weapon in the third degree.
A person is guilty of criminal possession of a weapon in the third
degree when:
(1) Such person commits the crime of criminal possession of a weapon
in the fourth degree as defined in subdivision one, two, three or five
of section 265.01, and has been previously convicted of any crime; or
(2) Such person possesses any explosive or incendiary bomb, bombshell,
firearm silencer, machine-gun or any other firearm or weapon simulating
a machine-gun and which is adaptable for such use; or
(3) Such person knowingly possesses a machine-gun, firearm, rifle or
shotgun which has been defaced for the purpose of concealment or
prevention of the detection of a crime or misrepresenting the identity
of such machine-gun, firearm, rifle or shotgun; or
(5) (i) Such person possesses three or more firearms; or (ii) such
person possesses a firearm and has been previously convicted of a felony
or a class A misdemeanor defined in this chapter within the five years
immediately preceding the commission of the offense and such possession
did not take place in the person's home or place of business;
 
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After he lawyers up, he will find himself able to sue for false arrest. That police officer will most likely be fired as well.

This is New York State, the judges are no better than the cops. He will be lucky to avoid felony charges and will have no recourse against the arresting officer. It really is a different country in NYS. Nothing will happen to the officer. The arrest will be a blemish on his his record, if he is lucky enough to avoid felony charges. Most likely it would be pleaded down to a misdemeanor. New York really is a fascist police state, and I'm so glad to say that I left there a decade ago.
 
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