NYSP on the Numbers

Recently, the State filed a new NYS Police attorney affidavit in the federal civil rights case of Gazzola v. Hochul. I’ve uploaded it to this website “Publications” page for your FREE access and download. It contains numbers that will be of interest to you, particularly beginning at paragraph 32. For the period 09.13.2023 to 12.13.2025, it lists the total number of firearms and ammunition background checks run, the number that went to “proceed,” the number that were denied, the number that “expired or remained delayed,” the number of appeals, the number of denials that were reversed on appeal, and one sentence concerning appeals that were upheld.

What didn’t the NYSP affidavit cover?

• the number of transactions that changed status;

• the number of transactions that were inconsistent on their face, such as a “proceed” on a firearm but “deny” on the ammunition;

• the average time to process;

• the range of time to process through to a definitive answer of “proceed” or “deny” (which could be in terms of days, weeks, and months);

• whether the NYSP statisticians account for repeated transactions, such as those directed by the NYSP to be re-run at or after the 30-day mark;

• what databases are being used for state-only ammunition background checks;

• what convictions are being used for state-only ammunition background checks; and more.

In short, the NYSP Affidavit bears no resemblance to the ATF annual reports.

I will tell you that I did sent a list of 13 questions, some with sub-parts, to Counsel for the State, but - because of the juncture at which this is happening - there is no obligation for the State to respond. I have been asking some of these questions since fall 2022 and not receiving responses.

There is one detail that was not acknowledged in the NYSP Affidavit that I want to bring to your attention, as it is an issue we’ve continuously discussed since the NYSP system went into effect 09.13.2023: what happens to people who never get a definitive “proceed” or “deny?” On the raw numbers in the NYS Police affidavit, a whopping 5,621 persons don’t get a definitive response. That’s 904 persons undergoing an ammunition background check + 4,717 persons undergoing a firearms background check. Fully one-third (1/3) of persons who do not receive a “proceed” spin off into a black hole.

If a person does not receive a “deny,” there is no straight line to appeal. Basically, the person lacks legal standing to do much, other than try to file an appeal under a legal theory of “constructive denial.”

The State’s papers do say in a footnote in their Memorandum of Law that accompanies the NYSP Affidavit that if an appeal is denied by the NYSP and then the NY Attorney General that an individual may file further appeal under NY Civil Practice Law & Rules, Article 78. The statute does not say so, but now there is a written paper by the State that says so - it’s something. It would be logical and in keeping with the process when a concealed carry permit application is denied or a concealed carry permit is revoked or suspended.

There is a bigger black box still and that is what “databases” do the NYS Police use for their background check? And, even bigger black box: what convictions does the NYS Police use for disqualification of an ammunition purchase?

Please be welcomed to send me your thoughts and questions as you read through the NYSP Affidavit. Over two years and near 1.5 million transactions later, most of the questions we first raised through the Gazzola v. Hochul Complaint at the start of the lawsuit have not be answered. Whether through litigation or through FOIA, there is no alternative but to keep trying.