Is there a “David Gregory Clause” in the New York Gun Law?

Is there a “David Gregory Clause” in the New York Gun Law?

We have a Gun Class Project ongoing to try to unravel the 39-page gun law passed and signed into law this week.  It is a very complicated Bill, to put it mildly.

One thing I just noticed.

There is a provision in the law which sounds a lot like it was a reaction to David Gregory’s possession of a 30-round ammunition magazine after the D.C. police had told NBC News that such possession was against the law.  One of the defenses, rejected by the prosecutor as “feeble,” was that NBC did not intend to violate the law and was confused:

On the other hand, no specific intent is required for this violation, and ignorance of the law or even confusion about it is no defense. We therefore did not rely in making our judgment on the feeble and unsatisfactory efforts that NBC made to determine whether or not it was lawful to possess, display and broadcast this large capacity magazine as a means of fostering the public policy debate. Although there appears to have been some misinformation provided initially, NBC was clearly and timely advised by an MPD employee that its plans to exhibit on the broadcast a high capacity-magazine would violate D.C. law, and there was no contrary advice from any federal official.

Gregory and NBC News walked free because of prosecutorial discretion not to prosecute.

The NY law adds Section 265.36 to the Penal Law, outlawing possession of a magazine which accommodates more than 10 rounds regardless of when it was manufactured.  Previously, the law grandfathered magazines manufactured prior to September 13, 1994.  As explained in the legislative Memorandum accompanying the bill (h/t reader gs):

The state’s previous ban against high capacity magazines faltered because it was impossible to tell the difference between magazines manufactured before or after the effective date of the ban. This bill prohibits possession of all magazines with the capacity to contain more than ten rounds, regardless of the date of manufacture. Going forward, individuals will only be able to obtain magazines that can contain up to seven rounds. Those who currently possess magazines that can contain more than seven rounds will only be permitted to maintain up to seven rounds in such magazines.

The new law sets up a misdemeanor for people who possessed previously grandfathered magazines which could accomodate more than 10 rounds (e.g., those manufactured prior to September 13, 1994).  It remains a Class D felony under Section 265.02(8) to possess “a large capacity ammunition feeding device” with this narrow misdemeanor carve-out.

Nonetheless, there likely are a large number of these previously grandfatherd 10+ round magazines in the state, and the new law severely limites the ability of persons possessing such magazines from using alleged confusion as to the law as a defense.

I have highlighted the relevant language in red:

19    § 46-a. The penal law is amended by adding two new sections 265.36 and

20  265.37 to read as follows:

21  § 265.36 Unlawful possession of  a  large  capacity  ammunition  feeding

22             device.

23    It shall be unlawful for a person to knowingly possess a large capaci-

24  ty  ammunition  feeding device manufactured before September thirteenth,

25  nineteen hundred ninety-four, and if such person lawfully possessed such

26  large capacity feeding device before the effective date of  the  chapter

27  of  the laws of two thousand thirteen which added this section, that has

28  a capacity of, or that can be readily restored or converted  to  accept,

29  more than ten rounds of ammunition.

30    An  individual who has a reasonable belief that such device is of such

31  a character that it may lawfully be  possessed  and  who  surrenders  or

32  lawfully disposes of such device within thirty days of being notified by

33  law  enforcement  or  county licensing officials that such possession is

34  unlawful shall not be guilty of this offense. It shall be  a  rebuttable

35  presumption  that  such person knows that such large capacity ammunition

36  feeding device may not be lawfully possessed  if  he  or  she  has  been

37  contacted  by law enforcement or county licensing officials and informed

38  that such device may not be lawfully possessed.

39    Unlawful possession of a large capacity ammunition feeding device is a

40  class A misdemeanor.

What’s interesting is that the new section creates a “rebuttable presumption” that possession is knowing if law enforcement has previously informed the defendant that the magazine was illegal.  The person avoids criminal charges if he or she then turns it in.

It’s possible this language was added in for some other reason, but it does sound like it was meant to address the next David Gregory.

The language could serve to limit prosecutorial discretion in a case similar to David Gregory where someone claims confusion as to whether that the 30-round magazine could be lawfully possessed.

Once that presumption is violated by virtue of law enforcement advice, it’s harder for a prosecutor to give the defendant a David Gregory.

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