When it’s the government making the error, what is a licensee to do?
Federally-licensed dealers in firearms with New York business premises and a NYS “Dealer in Firearms” license were propelled into a whole new level of problem last Friday morning when the New York State Police published a new sign-in landing screen to the ammunition background check system. The NYSP screen gives dealers directions on how to game the ammunition background check system - literally. The NYSP screen tells dealers to scroll up into prior background check results and change the field for the quantity of ammunition in order to piggy-back a second sale onto the first within a 30-day period. HERE is a screenshot of that NYSP sign-in landing page.
It was easy for me to say, “That’s illegal and could result in the loss of the dealer licenses, both federal and state, as well as the individual concealed carry permit!” I did interviews with AmmoLand News, WYSL “Second Amendment Radio Show,” WLEA radio, and have an upcoming interview with Outdoor News. I slammed e-mails out to multiple NYS Senators (and did hear back from one). More to the point, I immediately reached out to my active client roster, confirmed it was on their screens, too, and responded to their questions and offered advice.
But, what if you’re not on speed dial with an attorney and your local government representative?
Let’s walk this problem to the yellow pad and generate thoughts.
Question: what is a regulated business to do when it appears the government office on oversight is the one making the suspected error?
Document, document, document. The FFL who first contacted me exhibited the instincts we should all develop in this circumstance. Take a screenshot with your phone, which will coat the photo file with the date and time taken. Download it to one or (preferably) two secure back-up drives in two, separate devices, servers, or even jump to firebox storage. This is true whether it pops up on your computer screen or as part of a PowerPoint at a training you attend. Know when you became aware of the potential government-generated problem.
Engage in Peer-to-Peer Issue Validation. If not an attorney, then hit speed dial of your most respected external colleague or internal superior. Walk that person through the issue you spotted. Does that person see the same government-published mistake that you do? Is there a deadline associated with the potential government error, such as a filing deadline? How might this impact you and how quickly would that impact hit?
Consult with Counsel. Unfortunately, if a licensee identifies a potential collision of a new directive from the government (e.g., the screenshot) that may collide with a mandate with criminal consequences (in this example, NY Penal Law s.400.02(2)), the licensee is smart to contact an attorney. A lawyer can provide you with a unique kind of cover. Lawyers regularly contact government offices and agencies, and even law enforcement, to raise issues and request changes without naming their client or their source. This allows the regulated client to fully dimension the problems under the attorney-client privilege and work product, whilst gaining valuable individual and organizational advice. It then allows the lawyer to develop the conversation with the government office, and use any response to further detail the work with the client. Lawyers often accomplish results basis having a lawyer’s letterhead and without having to go to court.
For the more than 1,500 FFLs Type-01 and 02 here in NY impacted by this NYS Police screen announcement, the timing is horrendous. Last Friday was the Friday before Black Friday. And, it’s hunting season. Plus, there’s years of frustration built up over the ammunition background check system that passed in 2013 and went live 09.13.2023. Ammunition is a legally-recognized component of firearms ownership, use, and possession, as protected straight the way up to the nation’s high court. It’s also a bread-and-butter inventory item at an FFL, which revenue numbers have crashed as customers have driven their business to neighboring states.
I get it! I’m as passionate about this field as you are.
Bottom line? The immediate example of the NYS Police instruction on “how to” break the law for ammunition background checks is a rare opportunity for whistleblower-style outreach to the Governor and her Democratic Legislators. It’s also an opportunity for the Republican minority conference to reach across the aisle over the malfunction. Either there is an operative ammunition background check system, or the pending NYS Bill to repeal it should be passed. Either we get to fight in federal court through our civil rights litigation in Gazzola v. Hochul to have the ammunition background check system shut down as unconstitutional, or we continue to watch FFLs close statewide as a result of unconstitutional regulatory overburden.
In no scenario, should the NYS Police, who operate the ammunition background check system, abuse that system for entrapment or operate that system with incompetence.
The key to navigating a government-created error with potential criminal consequences for compliance-minded licensees truly is to keep the roles and responsibilities straight, and push-back against the government actor or employee veering outside their lane.
