The Volokh Conspiracy
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From Matter of Crane, decided Wednesday by Judge Michael L. Dollinger (Monroe County):
On March 25, 2020, the Court received notification from the New York State Division of Criminal Justice Services ("DCJS") that Douglas James Crane, a New York State pistol permit licensee, was convicted of the misdemeanor offense of Criminal Possession of Stolen Property in the [Fifth] Degree on May 26, 1982 in Walton Village Court. The notice from DCJS indicates that the "division has determined that the individual is ineligible to possess such a license or is no longer a valid license holder based upon their criminal conviction. This determination is being provided to you as the licensing authority for appropriate action (see Penal Law §§ 400.02 and 400.00)."
For the reasons set forth herein, this Court declines to revoke Mr. Crane's pistol permit, which was granted to him in 1991 with the issuing County Court Judge's full knowledge of the conviction now being reported to this Court, 38 years after its entry in Walton Town Court….
Mr. Crane obtained a Certificate of Relief from Disabilities dated October 17, 1991 signed by Justice Carl Gregory of Walton Town Court that "specifically includ[es] the right to apply for and receive a pistol permit." Mr. Crane submitted a copy of the Certificate of Relief from Disabilities to Judge Bristol. Judge Bristol then exercised his discretion and after full consideration of the factors in Penal Law § 400.00, granted Mr. Crane's pistol permit application on November 12, 1991. Mr. Crane has held his pistol permit, without issue, since then.
In January 2013, in the wake of mass shootings including at Sandy Hook Elementary School on December 12, 2012, and at the West Webster Fire Department on December 24, 2012, the New York State legislature enacted sweeping gun-safety reform legislation known as the NY SAFE Act.
This legislation included the creation of a statewide database to be maintained by DCJS (PL § 400.02). Pursuant to the statute, DCJS became responsible for periodic review of licensees to determine the continued accuracy of criminal convictions, mental health, and all other records and to determine whether an individual is "no longer a valid license holder." The Division also "upon determining that an individual is ineligible to possess a license, or is no longer a valid license holder shall notify the applicable licensing official of such determination and such licensing official shall not issue a license or revoke2 such license and any weapons owned or possessed by such individual shall be removed consistent with the provisions of subdivision eleven of section 400.00 of this article."
The DCJS now seeks to have this Court apply Penal Law Section 400.02 retroactively and revoke Mr. Crane's permit because that agency has determined that he is now, as a result of his 1982 conviction, "ineligible to possess such a license or is no longer a valid license holder." …
I find that it was not the legislature's intent to have Penal Law Section 400.02 apply retroactively to override a decision of the licensing official when that decision was made with full knowledge of the conviction that is the subject of the notification, absent a change in the disqualifying nature of the conviction.
Mr. Crane received a certificate of relief from disabilities from the Walton Town Court Justice back in 1991 for his 1982 conviction for criminal possession of stolen property in the [fifth] degree, the same conviction that is the subject of the current DCJS notice. The certificate "relieve[d] the holder of all disabilities and bars to employment" and in a typewritten addition to the document specifically included "the right to apply for and receive a pistol permit."
It is well settled that a certificate of relief from disabilities is sufficient to remove the statutory prohibition against holding a pistol permit…. This Court finds, and indeed Judge Bristol agreed, that the certificate of relief from disabilities overcame the statutory bar and vested the decision of whether to grant or deny a pistol permit in the broad discretion of the licensing official….
The right to bear arms if a fundamental Constitutional right. When enacting the SAFE ACT, the New York State legislature noted that the right to keep and bear arms is protected by the Second Amendment, but that right is "not unlimited."
A statute has retroactive effect if "it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed," thus impacting "substantive" rights. Where the retroactive application of a statute would impact "substantive rights" there is a well settled and "deeply rooted presumption against retroactivity that is based on elementary considerations of fairness that dictate that individuals should have an opportunity to know what the law is and to confirm their behavior accordingly." It therefore "takes a clear expression of the legislative purpose … to justify a retroactive application" of a statute to ensure that "the Legislature contemplated the retroactive impact on substantive rights and intended the extraordinary result."
There is no clear expression of legislative purpose which would justify a retroactive application of the statute under these circumstances.
Penal Law Section 400.00 supports this conclusion, "[t]he conviction of a licensee anywhere of a felony or serious offense or a licensee at any time becoming ineligible to obtain a license under this section shall operate as a revocation of the license" [emphasis added]. It appears that the legislature intended to have DCJS monitor convictions that occur both at the time of application and following license issuance or to notify the licensing official if an offense that was previously not a disqualifying offense becomes disqualifying then the conviction may alter the determination of the licensee's eligibility to hold a pistol license.
The New York State Senate's Statement of Support of the bill also supports this position…. The clear legislative intent was to create a process for DCJS to notify the licensing official of disqualifying events mandating revocation of the licensee's permit. It is therefore also clear that this law was not meant to override the discretionary authority of a licensing official who acts with full knowledge of a conviction when there is no statutory prohibition.
To apply CPL Section 400.02 retroactively in the manner requested by the DCJS would produce exactly the extraordinary result that the presumption against retroactivity is intended to prevent. It would deprive the licensee of his constitutional right to bear arms and the chance to know what the law is and conform his behavior accordingly. Licensee has held a pistol permit for the last 28 years. The fact that his permit has never been suspended or revoked shows that he has comported himself as a responsible permit holder….
Further, the Due Process Clause of both the state and federal constitutions require that an opportunity be provided to the licensee to address the disqualification determination by DCJS. The licensee in this case is exercising their Constitutional right to bear arms, therefore due process requires that an adequate opportunity be provided to the licensee to respond to DCJS's determination.