NYS Police Records in the Hands of the NY Attorney General

NYSP Records about Dealers in Firearms Are Being Accessed by the NY OAG

An affidavit was recently filed in my case of Blue Line Sports LLC, et al. v. Letitia James, NY Attorney General, in which an attorney working for the NYS OAG stated that she had “requested and then received” records from the NYS Police concerning dealers in firearms, had made a determination that dealers were not in compliance with NY General Business Law 875, and that was the reason she sent them subpoenas last summer.

It has taken nearly a year of interaction with the NYS OAG and of litigation in NYS Supreme Court to flush out this explanation.  The female attorney did not attach as exhibits any such records, nor did she name the NYSP employee to whom she made the records request, nor the NYSP employee from whom she received the records.  She did not explain her metric for evaluation of any NYSP records.  She did not include any “checklist” of the NYSP or other evaluation grid from her office in Manhattan.

In the Blue Line Sports LLC case, we are fighting to quash the subpoenas served upon the state-licensed “Dealers in Firearms” as having no legal basis.  My reading of NY General Business Law §875 is that if anyone has authority to perform an on-site inspection of operational compliance mandates, it is only the NYS Police.  The words “Attorney General” do not appear in the statute.  The NY OAG does have responsibilities under the new (2022) CCIA, but it is not via-à-vis ATF/NYS licensed Dealers in Firearms.  The NY General Business Law §875 says nothing about the NY OAG and it says nothing about a subpoena power.

Nor does it grant any kind of an exemption for the NYS OAG under NY Executive Law §63(3).

For more than one hundred years, the NYS Legislature has held the Executive Branch NY Attorney General on a tight leash.  There is no general prosecutorial power vested in the NY OAG.  Instead, there are legislative grants.  One at a time.  One piece at a time.  Edited over time.  Until in 1968, the NYS Legislature crafted NY Executive Law §63(3) with a requirement that the head of an agency, office, or division of state police would have to formally, in writing, request the NY OAG conduct a prosecution. In the instance of the Division of New York State Police, that authorized person is the Superintendent.

In 2019, the NYS Appellate Division, Fourth Department, in an appeal by Mr. Ben Wassell, against an “assault weapon” charge under the “SAFE Act,” affirmed a reversal of the conviction and the Grand Jury finding, fully vacating those results, because NY Attorney General Letitia James prosecuted him without the express invitation to do so by the Superintendent of the NYS Police. 

Remarkably, here we are – again – with the same NY Attorney General going after, now, state-licensed “Dealers in Firearms” through an unauthorized route.  First, back in 2013, Letitia James went after the individual citizen, Mr. Wassell.  Now, in 2024, she went after the licensed dealer in firearms who would be a source of lawful firearms transactions, such as Blue Line Sports.

In my big civil rights case in federal court, Gazzola v. Hochul, the Second Circuit Court of Appeals ruled in 2023:  what New York cannot do to the individual, it cannot do through a third party, such as a state-licensed dealer in firearms.  In fact, the Second Circuit granted my clients in Gazzola the standing to sue on behalf of their customers through something called a “derivative claim.”  This is the same standing extended to physicians on behalf of patients in the abortion cases and booksellers in censorship cases.

The Second Circuit 2023 ruling in Gazzola v. Hochul in favor of derivative claims for licensed dealers in firearms pursuing Second Amendment infringements on behalf of their customers has already been adopted in more than a dozen jurisdictions around the country.

Rewind also that the NYS Police started their site visits to Dealers in Firearms summer of 2023.  We documented it all, play-by-play, through our Gazzola v. Hochul lawsuit, at that time, pending before the Second Circuit, and pushed upwards to the U.S. Supreme Court through an emergency motion (that was, unfortunately, declined to be heard). Our court record reads like that of a war correspondent.

Many of you have kept faith in the officers of the NYS Police during this phase of the on-sites.  I have not.  I have a battle-weary viewpoint after more than thirty years of experience as a litigation attorney.  But, I will highlight for you that after my clients received the NY OAG subpoenas, back in June 2024, the NYS Police BCI officer who had been to both shops called one of my clients and expressed with shock that the NY OAG had issued subpoenas.  “We were told: go out to educate the dealers,” he said.  “I don’t get it; we’re supposed to be the one to do that.” And, “They didn’t tell us anything about Attorney General subpoenas.” That telephone call constituted admissible hearsay, and was earlier filed as part of the Blue Line Sports case through a Dealer affidavit.

The court submission from the NY OAG that included the Manhattan attorney’s affidavit where this blog started did not include any affidavit or other document either from that officer or another officer of the NYS Police.

So, perhaps, in general, as concerns individual officers interfacing with individual Dealers in Firearms, the officers have exercised their discretion against filing charges or inviting prosecution. The problem, of course being, that there is no system for the NYS Police to inform any Dealer about whether the site visit was a formal “inspection” and, if so, the results of that inspection, any opportunity for remediation, and anything about the metric for evaluation.

In the meantime of now awaiting the decision in Blue Line Sports from the NYS Supreme Court, I emphasize that if you receive or have received a subpoena from the office of the NY OAG that you contact an attorney, immediately.  Similarly, we are awaiting our second major decision in the Gazzola v. Hochul case, this from the Northern District Court.  Over the course of the next estimated 60-120 days, these two court decisions could have a significant impact upon how we manage our operations as an industry, statewide. Individual dealers will, of course, be making individual decisions, but the court rulings could help us to define the width of the range of legally-available options.

The NYS Police cannot advise you as to your legal rights, and the NY Office of the Attorney General most certainly cannot and should not.

What this means for you, if nothing else, is that if you have been visited by the NYS Police, those records may have already changed hands to the NY Office of the Attorney General. It is time for more attorneys to get involved on behalf of more dealers. It is a conversation that I invite.