The Big NY AG Picture

It is now about two years since the NY-AG power grab started unfolding before my eyes through her attack against three federal and state-licensed Dealers in Firearms in North Country. Basis various filings and rulings through last Friday, this blog gives you the laws at play and the game being played by the NY-AG. To date, two NYS Supreme Court Judges have ruled in favor of the NY-AG. One through a ruling last year that is on appeal. Another through a decision without an opinion issued last Friday morning during oral arguments. The first such decision is already fully briefed and before the Third Department, Appellate Division for oral arguments this October. The recent decision will have to start its appellate ascent.

The New Laws (2022).

In June 2022, NYS S.4970-A was passed and signed into law.  It created the new compliance mandates under NY General Business Law, Article 39-BB, codified at GBL §875.

That Bill contained two enforcement mechanisms.  The first is NY GBL §875-i, which is the criminal A misdemeanor.  The other is the NY PEN §400.00(11) amendment (“A license to engage in the business of a dealer may be revoked or suspended for any violation of the provisions of article thirty-nine-BB of the general business law.”

Let’s characterize this as “criminal enforcement” of a violation of GBL §875 through a criminal charge under GBL §875-i and “civil enforcement” of a violation of GBL §875 through a license proceeding through PEN §400.00(11).

To date, no Dealer in Firearms has been criminally charged under GBL §875-i, nor has any Dealer in Firearms been brought up in a license case under PEN §400.00(11).

The new compliance mandates under GBL §875 went into effect December 5, 2022.

The New Routes of Enforcement.

The NY Attorney General did not bring a case under either GBL §875-i or PEN §400.00(11).

Let’s take one moment to identify why either of the NYS Legislature designed remedies might not appeal to the NY Attorney General.

In order for a criminal prosecution to proceed under GBL §875-i, the NYS Police Superintendent would either refer a suspected violation to the District Attorney under NY County Law §700, or, would issue a written invitation to the NY Attorney General under NY Executive Law §63(3).  The NY Attorney General has limited prosecutorial authority under the NY Constitution and under NY Executive Law.  She cannot initiate on her own volition a prosecution under GBL §875-i of a Dealer in Firearms for a suspected violation of GBL §875.

The alternative route, the license proceeding, takes place in County Court.  It may be a “state” or a “statewide” or a license originating from state law, but the Dealer in Firearms license is issued and administered at the County level.  As with the concealed carry permit hearing, this would be a matter for a County Attorney.

In technical terms, all that I am doing right now is discussing preliminary issues of “standing” to bring a case against a Dealer in Firearms and of “jurisdiction” of which court should house the proceeding.

The NY Attorney General Game Play.

Instead, the NY Attorney General is opening clandestine investigations, issuing extrajudicial subpoenas, and then suing using NY EXC §63(12) and trying to tie GBL §875 to GBL §898-d.

For the moment, I’m withholding comment within this blog.  What I want the industry in New York to grasp, writ large, is the “how” the NY Attorney General is going after Dealers in Firearms.  If I start to give you the analysis, I’m going to lose you.

Let’s recap.

• In 2022, the NYS Legislature with Governor Hochul brought us more than thirty new operational compliance mandates, impacting day-to-day operations as a federal and state licensed Dealer in Firearms with a business premises in New York.

•  The new (2022) mandates that went into effect December 5, 2022 is found at GBL §875.

• A suspected violation of GBL §875 can be criminally charged as an A misdemeanor under GBL §875-i.  The prosecution could be handled by a County District Attorney under CNT §700, or, in the alternative, could be referred via written invitation from the Superintendent of NYS Police under EXC §63(3) to the NY Attorney General.

• Alternatively, or, potentially in combination, a suspected violation of GBL §875 could be initiated in County Court (likely through a County Attorney) under PEN §400.00(11).

• No Dealer in Firearms in NY has been charged under GBL §875-i, nor has any Dealer been brought up in a license proceeding for a violation of GBL §875 using PEN §400.00(11).

• Instead, the NY Attorney General chose to pursue three Dealers in Firearms through (now acknowledged) “investigations” and to issue to them extrajudicial subpoenas demanding documents and, to one Dealer, demanding a deposition.  The NY Attorney General then chose to sue one Dealer under EXC §63(12), citing GBL §875 and GBL §898-b/c/d.

It’s a Power Play by the NY AG.

There is no legal reason not to use the routes designed by the NYS Legislature to pursue enforcement against the Dealer in Firearms for an alleged violation of GBL §875.

Other than power.

The current NY Attorney General thrives in an environment of press releases and podiums, expansive use of these “investigations” and extrajudicial subpoenas, and demands for huge amounts of money.

The NYS Legislature and the NY Governor did not expressly grant the NY Attorney General any authority during the 2022 Session that ushered in NYS S.4970-A.  And the statutes do not include any monetary fines beyond what is a generic part of a misdemeanor A.

By contrast, using this EXC §63(12) route, the NY Attorney General is demanding a court order under GBL §898-d that the Dealer in Firearms turn over an accounting of sales, disgorgement of profits, and monetary fines for alleged violations of GBL §875.

Today’s Lesson.

For purposes of this blog, I am not getting into statutory construction, legislative history, precedent, or an application to the facts of the case.  What I’m after at the moment is to notify you, the industry, writ large in New York, that this is where to look for the slight of hand.

Since June 2022, our industry in New York is down more than 400 FFLs Type-01 (retail) and Type-02 (pawnbrokers).  We’re losing an average of 8 more per month.  That’s more than 400 FFL-01/02 who either did not renew or prematurely terminated their federal license.  That’s nearly 25%, statewide, with no end in sight.

I would say that any Dealer in Firearms who had contact with a NYS Police Officer since June 2022 for a drop-by, survey, educational meeting, or other pretty misnomer is exposed. The NYS Police have turned in an annual “report” to the NYS Legislature and NY Governor in 2023, 2024, and in 2025 with a number of Dealers “inspected” and the number of Dealers “not in compliance.” An Assistant NY Attorney General wrote in an affidavit that she obtained NYS Police “records” in June 2024 that the NY AG used that to open “investigations.” No Dealer has been notified by the NYSP that they are “not in compliance” with GBL §875.

I can’t imagine this blog is going to help the number of licensed Dealers exiting the field of fundamental civil rights.  But – and it has taken four years of full-time litigation in federal and state courts to arrive at this point – here is the big picture. I’m pushing this out because the NY Attorney General relentless pursuit of licensed Dealers needs to be the #1 topic of discussion amongst FFLs, Second Amendment leadership, and the NY Republican Conference. There is no way for the three FFLs targeted by the NY Attorney General to go it alone.