This is a good article on the recent hubbub over changes to the SAFE Act — essentially much ado about nothing. Legal gun owners were required to register for El Duce’s assault weapons registry “or else” by April 15th, but because the SAFE Act itself was unlawful on its face, New Yorkers refused to comply. Curious of course as to how many people actually registered, the State was asked for the numbers but refused. SCOPE then submitted a FOIL and NYS STILL refused to comply! So in the class-action lawsuit Robinson vs. Cuomo, the New York Supreme Court in Albany County, Judge Thomas J. McNamara presiding, determined the NYS State Police must comply.
The numbers were less than 5%! So the Fuhrer and his minions decided to rephrase it as though they were granting concessions to 2nd Amendment supporters, in not requiring gun owners to register with the database. Meanwhile, many millions of taxpayer dollars were spent creating this database, but it was a complete failure, because it appears no one had written a program to properly address, store or maintain such information.
Keeping the Senate SAFE
When changes to the SAFE Act first came to light, it looked an awful lot like the Senate Republicans and the Cuomo administration were repealing part of the governor’s signature gun safety law without a three-way agreement to do so.
To actually roll back parts of the SAFE Act, originally passed with much haste in January 2013, both houses must pass legislation and Cuomo must sign it. Otherwise the law remains, well, the law.
When laws are written, words such as “will” and “shall” are used to wipe away any ambiguity. If words like “may” or “should” come into play, there is a lot more latitude and discretion.
The 78-page gun and ammunition safety bill known as the SAFE Act, pushed through the Legislature by Cuomo in the wake of the Newtown, Conn. massacre, contains the following passage:
“No commercial transfer of ammunition shall take place unless a licensed dealer in firearms or registered seller of ammunition acts as an intermediary between the transferor and the ultimate transferee of the ammunition for the purposes of contacting the statewide license and record database pursuant to this section.
There seems little room in that passage for interpretation.
So, when news surfaced Friday night that Senate Majority Leader John Flanagan and a top Cuomo aide had signed a Memorandum of Understanding [MOU] making changes to the SAFE Act, it caused quite a bit of confusion, and also prompted a blistering statement from the third man in the room, Assembly Speaker Carl Heastie.
It’s one thing for administration and the Senate GOP to drag their feet on implementing a certain provision within the law. It’s quite another to put it in writing. That’s what was done here. In essence, Cuomo and the Senate Republicans are saying they have no intention of funding the database spelled out in the law to keep track of ammunition sales.
And that is precisely what may subject them to a legal challenge from both the Senate and Assembly Democrats, who are currently investigating their options.
Here’s the bizarre set of circumstances for how it all unfolded:
The MOU was agreed to by the administration and Flanagan. The majority leader put his signature to the final draft first, according to a source familiar with the timeline. Then Cuomo’s director of state operations, Jim Malatras, followed suit.
The MOU was then sent to members of the Senate Republican conference. Late in the day Friday, Sen. James Seward of Oneonta issued a press release taking credit for compelling the “first ever changes to governor’s gun control law.” He also mistakenly claimed the moratorium on Internet sales of ammunition would end.
Seward’s statement appeared to catch everyone off guard – the Assembly speaker, the Cuomo administration and even Flanagan’s office, which apparently did not get a heads up on the rank-and-file lawmaker’s press release plans.
This was not how what something viewed by Flanagan’s people as a major accomplishment was supposed to get announced – later afternoon in what looked for all the world like a Friday news dump. The rollout of this shiny new MOU was officially botched.
There was no opportunity for the Cuomo team to mitigate the effects of what was coming ahead of time. And the MOU itself sounds a bit jarring if one is a SAFE Act supporter. The final paragraph states:
“RESOLVED, that no expenditures of state monies shall be allocated for the purposes of purchasing and installing software, programming and interface required to transmit any record for the purpose of performing an eligibility check…until such time as a plan for the cost of such has been approved by the undersigned.”
The read on this from a number of insiders and veteran Capitol watchers is that as long as Flanagan and the Republicans remain in control of the Senate, the database will never exist – no matter what the Cuomo administration now claims.
Naturally, Democrats and gun control advocates went a little berserk. And that led to a complete walk back Saturday afternoon from Cuomo’s chief counsel, Alphonso David, who issued a statement insisting:
“The memorandum reiterates the administration’s intention to implement a functional database when it is ready and reinforces that the system cannot be launched prematurely.”
One Republican described the Saturday explanation as making the governor “look weak,” since you never want to be in a position of justifying what you’ve done – especially not on a beautiful Saturday afternoon in July when barely anyone is paying much attention.
On Sunday, New Yorkers Against Gun Violence issued a statement calling the suspension of work on background checks “unnecessary and disappointing.” The anti-gun group went on to say that David’s subsequent statement had provided some “comfort,” but they are now calling on the governor to provide a date for when this database will be up and running.
That, of course, is something he cannot do under the terms of the MOU, because it would require Flanagan’s approval. And that is not something the new majority leader – still under fire from conservatives (who, by the way, would have preferred to see Syracuse Sen. John DeFrancisco as leader) for his “yes” vote on the SAFE Act – is likely to give any time soon.
So, what exactly is going on here?
It seems like Cuomo is trying to have it both ways – telling Democrats and those on the left with whom he has been rather unpopular lately that nothing has changed, while also doing a solid for Flanagan in advance of what’s shaping up to be a difficult election year for the Senate GOP.
The database already had technological challenges, as the State Police admitted long ago, and therefore the MOU is virtually meaningless, since monies were withheld for its implementation in the budget back in March – a budget, by the way, that was agreed to by both houses.
Democrats point out that this isn’t about the money, since the Cuomo administration can find money to get the database up and running if the governor had the desire and the will to do so. One Democrat called the non-binding MOU “window dressing for the Republicans.”
Then why do it?
Many people now believe that this was about in internal politics more than anything else. It’s been no secret that Cuomo likely played a role in helping select Flanagan as leader earlier this year after his former Senate Majority Leader Dean Skelos was forced by a corruption scandal to step down.
If Flanagan is going to keep that post, he needed to bring something home for the upstate members who didn’t want him to lead the chamber in the first place. Being able to say that a part of the SAFE Act is now officially dead might be a good way to do that.
One Republican called this a “big win” for Flanagan, and both the NYS Rifle and Pistol Association and the NRA issued statements hailing this as a good first step toward their ultimate (and likely unattainable, as long as Cuomo and Heastie are around) goal of full repeal.
But some of the most staunch Second Amendment advocates aren’t quite convinced.
Assemblyman Bill Nojay, an outspoken Rochester-area Republican, dismissed the MOU as merely conforming “what we’ve all known – the ammunition database provision in the SAFE Act is not workable and has not been implemented.”
“The MOU therefore has all the significance of the Governor and Mr. Flanagan announcing that tomorrow the sun will rise in the East,” Nojay continued. “We all knew that, it was going to happen anyhow, and taking credit for it is political grandstanding.”
“If the Governor and Mr. Flanagan were serious about undoing the many disastrous provisions of the SAFE Act, they had their chance to prove it during the Budget and end-of-session negotiations this year. They didn’t. For them to now tell us what we’ve all known about the failures of the database provisions, and to describe it as a concession or gift to the Second Amendment community, won’t work.”
“We will continue to use every judicial, legislative and political means at our disposal to repeal the SAFE Act or, at a minimum, remove its offensive provisions from the laws of New York.”
So, ultimately, Flanagan – and maybe the governor, if he means to uphold his end of this deal – need to prove the MOU wasn’t just lip service. That might be easier said then done – especially if a legal challenge from the Democrats materializes.
It’s now spelled out in writing – though in a legally questionable manner – that there is an intention to withhold funding agreed to by just two of the three parties it generally takes to make decisions in Albany.
A judge might yet determine that the director of State Operations and the Senate majority leader have no real authority to do that, and the law must be followed as written. If not, a significant and potentially problematic precedent has been set here.
As every good lawyer will tell you – it’s dangerous to put anything in writing.