The SAFE Act itself is bad enough, as a judge partly agreed in striking down its arbitrary seven-round limit on magazines, and as rifle owners attested Tuesday by rallying against its mandate to register their guns on the state’s secret list.
But a gun-rights lawyer has encountered something even scarier since the law’s passage last year: Some police agencies are using traffic stops to ask about guns and then taking them from registered owners.
“Do you have anything in the car that can harm me?” is the question attorney James Tresmond says some cops are asking.
When someone licensed to carry a handgun answers truthfully, that’s when the trouble begins.
Tresmond said he’s handling a Chautauqua County case in which a truck driver dropped off his rig, got in his car to return home and was stopped by Westfield police for driving over the white line. They asked him “the question,” and things escalated from there as he answered truthfully and tried to explain he had a permit to carry the handgun that was holstered in a bag with his laundry.
The man still faces traffic and disorderly conduct charges, Tresmond said, along with having his gun seized. It was returned, but he then got a letter forcing him to surrender it again.
The man now has a hearing May 5 to try to get it back – three months, and many legal fees, later.
“The question” also led to the Lockport case last fall in which a passenger answered honestly and then had his handgun seized after a traffic stop, despite having a permit to carry it. Thousands of dollars in legal fees later, he got it back when a city judge ruled police violated his constitutional rights against illegal searches by counting the rounds in his magazine.
Tresmond said he has two other cases in which “the question” has led to guns being seized, though one involved a Texas long-haul trucker who had a permit from that state but crossed into New York with the loaded guns.
But the lawyer contends all of these cases constitute illegal searches following routine traffic stops, citing a 1968 Supreme Court ruling that tossed out a drug conviction on the same grounds.
Westfield police would not comment because their case is still open. Tresmond won the Lockport case when a judge sensibly applied the law. Hopefully, he’ll prevail in Chautauqua County, too.
But that’s of little comfort to gun owners who have their weapons wrongly seized and have to spend hundreds or thousands of dollars in legal costs to get them back.
So what’s a gun owner licensed to carry supposed to do when stopped for speeding and asked “the question”?
“That’s a good question. Do you have a Fifth Amendment right against self-incrimination or not?” Tresmond mused. He said he would hand over his driver’s license and registration and “pull out my pistol permit and give it to them at the same time.”
Once the permit matches the gun, that should be the end of it, given New York’s rigorous background checks that ensure only law-abiding citizens have permits.
But apparently, in some jurisdictions it’s not, which raises this question: What good is having laws governing guns if it’s the police who won’t follow them?