Suit Against SAFE Act Claims it Allows ‘Warrantless’ Police Searches

Under NY law guns can be seized without warrant or review

Gun rights advocates outside of the N.Y. Capitol building / AP
April 9, 2014

The registry process of New York’s SAFE Act allows for warrantless police searches into gun owners’ homes, a violation of the Fourth Amendment, according to plaintiffs of a lawsuit filed in U.S. District Court Eastern District.

The law firm representing plaintiff Gabriel Razzano argues the registry process is "essentially secret and results in a mandatory, warrantless Penal Law 400 gun removal visit from police."

"The entire purpose of the registry is a sham to permit intrusions into a person’s home on consent without a warrant for a ‘gun removal,’" La Reddola, Lester and Associates said in a release. "The entire registry and database seek to justify warrantless police searches, which my client and I now believe to be the real purpose of the SAFE Act."

The suit points to Fourth Amendment violations that could easily occur under the SAFE Act.

The attorneys argue under the Federal National Instant Check System a person who is declared ineligible for a firearm purchase faces some type of legal process. However, that is not the case with the SAFE Act, which was signed into law last year by Gov. Andrew Cuomo.

Under the SAFE Act, the New York Department of Criminal Justice (NYDCJ), the overseer of the database, may declare a person ineligible to own or possess a weapon without any type of judicial process.

Furthermore, the suit argues that if the NYDCJ declares a person ineligible, "such a determination makes the person vulnerable to imminent seizure of all weapons, without a hearing or even an arrest warrant."

The attorneys indicate the state is creating a separate database from the federal NICS database but does not have the NICS protections, such as an appeals process. Their website details all the differences between the state and federal database.

Pro-Second Amendment groups are supportive of the suit.

"SCOPE [the Shooters Committee on Political Education] is fully in support of the Razzano case. It rightly presents issues that we have been raising since the passage of the so called NY SAFE Act," said Stephen Aldstadt, president of SCOPE, in an email to the Washington Free Beacon.

"Not only does this law infringe on the Second Amendment protected right to keep and bear arms, it violates numerous rights that the Bill of Rights purports to protect. The NY SAFE Act violates the Fourth Amendment protection against unreasonable search and seizures, the Fifth Amendment protection against self-incrimination, and the Fourteenth Amendment’s due process and equal protection clause," said Aldstadt.

Aldstadt pointed out that the law has been opposed by 52 county legislatures.

SCOPE Chairman of the Board Budd Schroeder said the registry "should be delayed forever."

"My opinion is, in a free society guns should not be registered," Schroeder said. He indicated registered guns in New York City and California are now being confiscated. "History has proven that the registration of guns leads to the confiscation of guns."

This is Razzano’s second case involving the illegal removal of firearms by police. In his first case, Razzano v. Nassau County, Razzano lost his pistol license, but sued for the return of his rifles and shotguns after they were removed under Penal Law 400.

That case held that Razzano was entitled to a hearing. The county argued that since the police were not at the home to make an arrest, no search warrant was needed for the Penal Law 400 gun removal. The judge disagreed with the county and ruled that a law-abiding homeowner in a gun removal situation is entitled to protection under the Fourth Amendment.

Attorneys for Razzano say flaws exist in the registry and database and "easily could be abused to avoid a search warrant." In addition, they indicate that being declared "ineligible" under the NYDCJ system is "too vague" a standard.

The attorneys said a warrant should be instituted prior to any police being sent to a person’s home to remove guns. Some judicial oversight is also needed.

Several bills seeking to repeal the SAFE Act were squashed in committee two days ago. New York State Rifle and Pistol Association (NYSRPA) President Thomas King announced that all bills calling for the repeal of the SAFE Act were killed in the Democrat-dominated Codes Committee and would not be brought to the assembly floor for a vote.

King said there is ongoing NYSRPA litigation against the SAFE Act to overturn the law in the courts.