Checklist, Not Regulations
Back on July 24, 2023, a NYS Police officer went into a state-licensed dealer in firearms and conducted what we understand to be the first on-site visit relating to the new (2022) laws under NY General Business Law section 875. The officer gave the dealer a “checklist.” The statute contemplated “premises inspections” under 875-g(2)(a), but the NYSP Superintendent never issued the regulations that would have authorized the inspections. What that will mean is now before a federal court judge in Gazzola v. Hochul as part of our plaintiffs’ cross-motion for a permanent injunction against any late effort to issue those regulations or to enforce them. See our new “Statement of Material Facts” for more information.
In plain English, the argument we placed before the court is that “checklists” are not regulations.
The law contemplates the regulations publishing prior to commencement of inspections. NY General Business Law section 875-g(2)(a) says:
“The superintendent shall promulgate regulations requiring periodic inspections of not less than one inspection of every dealer every three years, during regular and usual business hours, by the division of state police of the premises of every dealer to determine compliance by such dealer with the requirements of this article.” (emphasis added)
In other words, it would have been state police regulations that would have required the inspections. The only parameters put upon the conduct of such inspections by state legislators was every three years and during regular and usual business hours.
The NYS Police publish their regulations to Title 9 of the N.Y.C.R.R. The NYS Police are exempted from good governance standard-bearers such as the NYS Administrative Procedures Act. That makes it exceedingly difficult to anticipate – and impossible to comment upon and influence – upcoming regulations.
Nevertheless of non-issuance of the regulations, NYS Police officers, since that July 24, 2023 on-site, have been showing up at licensed dealers across the state. In fact, the individual NYSP officers are showing up with “checklists” of different formats. It appears the 31 questions are consistent, but not the sheets of paper on which the questions appear.
In litigation speak, under the Federal Rules of Evidence at 902(1)(A), the “checklists” are not self-authenticating. This means, a dealer could testify such a copy was made or received from an officer at their shop, but not much more. Equally of interest, an officer could testify as to making up such a form, but not that it is official. These pieces of paper do not even bear an NYSP logo, which is part of the criteria for self-authentication of a government document or form under the federal rules.
Along with this blog, I am uploading several images of the first page of these “checklists,” to illustrate that they differ as to form. Lest you wonder if the “checklist” differs from one Troop of the NYSP to another, ponder no more. Gazzola plaintiff Craig Serafini, of Upstate Guns and Ammo, in immediate proximity to the state capitol of Albany, has the distinction of having two set of different officers show up a few months apart and give him two different “checklists.” (Note was made to the court that we do not even know if the officers knew about each other.)
And, spoiler alert, the NYSP is treating these on-sites as inspections. In a one-page “report” dated January 1, 2024, the NYSP states it failed fifteen dealers through inspections. To date, we are unaware of any state-licensed dealer as having received results of the inspections. We are equally unaware of any dealer having been charged with violating the new compliance mandates.
The questions became: if a “checklist” is not a regulation, and the regulations were not issued, can a state-licensed dealer in firearms decline to participate in an “inspection” at their shop? Could a criminal court judge dismiss charges, if any are brought? For dealers who already engaged in an “inspection” did they pass, or not, and, if they passed, are they clear for another three years? Or is the entire program yet another failure-to-launch by the Hochul Administration on their 2022 roll-outs to shut down the firearms retail industry in New York?
I welcome this conversation. It is why we cross-motioned to get a formal declaration from the federal court to our request to permanently enjoin the NYS Police Superintendent from this and several other of the new provisions. Also uploading to this website is our “Statement of Material Facts,” as submitted, if you wish to take a deeper look into this compelling issue.
If you are a NY-based dealer in firearms and have NYSP “checklists” or other documents to contribute to our growing database in support of the Gazzola plaintiffs, please do reach out to me through the contact form on my www.CapannaLaw.com website. And, as always, please share this information with as many licensed dealers as possible.
