The New York Times.
Another Challenge to New York’s Gun Law: Sheriffs Who Won’t Enforce It
Jesse McKinley and Cole Louison – October 9, 2022
LYONS, N.Y. — Robert Milby, Wayne County’s new sheriff, has been in law enforcement most of his adult life, earning praise and promotions for conscientious service. But recently, Milby has attracted attention for a different approach to the law: ignoring it.
Milby is among at least a half-dozen sheriffs in upstate New York who have said they have no intention of aggressively enforcing gun regulations that state lawmakers passed last summer, forbidding concealed weapons in so-called sensitive areas — a long list of public spaces including, but not limited to, government buildings and religious centers, health facilities and homeless shelters, schools and subways, stadiums and state parks, and, of course, Times Square.
“It’s basically everywhere,” said Milby, in a recent interview in his office in Wayne County, east of Rochester. “If anyone thinks we’re going to go out and take a proactive stance against this, that’s not going to happen.”
On Thursday, a U.S. District Court judge blocked large portions of the law, dealing a major blow to lawmakers in Albany who had sought to blaze a trail for other states after the Supreme Court in June struck down a century-old New York law that had strictly limited the carrying of weapons in public. Between the court challenge and the hostility of many law enforcement officers, New York’s ambitious effort could be teetering.
The judge, Glenn T. Suddaby, agreed to a three-day delay of his order to allow an emergency appeal to a higher federal court. But even before Suddaby ruled, a collection of sheriffs from upstate New York were already saying they would make no special effort to enforce the law, citing lack of personnel, an overbroad scope and possible infringements on the Second Amendment.
Nationwide, conservative sheriffs have been at the front line of an aggressive pushback on liberal policies — often framing themselves as “constitutional sheriffs,” or as self-declared arbiters of any law’s constitutionality. Sheriffs in other states have also been part of efforts to prove a fallacious conspiracy theory that former President Donald Trump won the 2020 election.
In New York, dissent has walked a fine line between loud complaints and winking resistance, including pledges of selective — and infrequent — enforcement.
“I have to enforce it because I swore to uphold the laws, but I can use as much discretion as I want,” said Richard C. Giardino, the Republican sheriff in Fulton County, northwest of Albany. “If someone intentionally flouts the law, then they’re going to be handled one way. But if someone was unaware that the rules have changed, then we’re not going to charge someone with a felony because they went into their barbershop with their carry concealed.”
Such criticism has been heard from Greene County, in the Hudson Valley, to Erie County, home to Buffalo, the state’s second-largest city, as well as from groups like the New York State Sheriffs’ Association, which called the new law a “thoughtless, reactionary action” that aims to “restrain and punish law-abiding citizens.”
“We will take the complaint, but it will go to the bottom of my stack,” said Mike Filicetti, the Niagara County sheriff, who appends a Ronald Reagan quote to his emails. “There will be no arrests made without my authorization and it’s a very, very low priority for me.”
The law took effect Sept. 1, and, at least anecdotally, has been used only sparingly since. Jeff Smith, the sheriff in mostly rural Montgomery County, west of Albany, said his office has had no calls for enforcement of the new law, noting that “almost every household” in his jurisdiction had some sort of gun.
Smith, a Republican, said he understands the motives of lawmakers to quell violence and mass shootings, but that the gun law inadvertently targeted lawful gun owners.
“The pendulum swung way too far,” he said.
An element of the New York law makes it a crime to carry a firearm onto any private property, including homes, unless there is “clear and conspicuous signage” indicating that the owner allows such weapons. Some sheriffs have printed their own signs and distributed them to gun-friendly businesses and residents.
“I don’t think you could find one case in this country, in United States history, where a sign said ‘SCHOOL ZONE NO GUNS PERMITTED,’ and it stopped an active shooter,” said Giardino.
For supporters of the law, the opposition is insincere, considering that sheriffs’ demands for law and order are often coupled with complaints that the state is in disarray, that crime is rampant and that the Legislature has empowered lawbreakers.
“To turn around and say, ‘For the laws that we don’t like, or we may disagree with politically, we will refuse to enforce,’ to me is the height of hypocrisy,” said state Sen. Zellnor Myrie, a Brooklyn Democrat who voted for the bill.
John Feinblatt, the president of Everytown for Gun Safety, said sheriffs weren’t just endangering the public, they were also “endangering their colleagues in law enforcement.”
Myrie added that if sheriffs are angry, they should direct their ire at the Supreme Court, noting that the majority decision in the case, New York State Rifle and Pistol Association v. Bruen, was written by Justice Clarence Thomas, an avowed conservative — and specifically noted a historical basis for restrictions in “sensitive places.”
Kelly Roskam, the director of law and policy at the Johns Hopkins Center for Gun Violence Solutions, said that the Supreme Court left many unsettled questions that lower courts must address. One particular challenge is a lack of clarity in the court’s test for constitutionality: whether a sensitive place is identical to or sufficiently similar to one that existed at the time of the Second Amendment’s adoption in the late 18th century.
“We face different problems with firearms than those who ratified the Constitution did,” she said. “You’re likely to see challenges to these laws, and different judges will come to different conclusions.”
The nation has a long history of banning guns in certain places, said David Pucino, the deputy chief counsel at Giffords Law Center, which seeks to stem gun violence, with dozens of states restricting concealed weapons in places like airports, courthouses and locations that serve alcohol.
“The statements that we’ve been seeing here are ideological statements,” Pucino said of the sheriffs. “And that’s not an appropriate basis for a sheriff to enforce or not enforce laws.”
The dispute evinces a larger rift between Democratic lawmakers in Albany — heavily represented by downstate liberals — and more conservative law enforcement and elected officials upstate. The schism was intensified by the pandemic, with some sheriffs defying COVID-19 occupancy rules for Thanksgiving dinners in 2020, while other Republican county officials refused to abide by mask mandates in schools.
“The people who are doing this, a lot of them are New York City legislators and they don’t have a clue,” said Todd Hood, the sheriff of Madison County, east of Syracuse, who says that “firearms are what made our country great.”
“There are different people up here,” said Hood, a Republican. “It’s run totally different.”
Jeffrey A. Fagan, a law professor at Columbia University, said that Albany lawmakers and Gov. Kathy Hochul, a Democrat, performed a critical test of the Bruen decision’s limits, even if the law is overturned.
“What New York did in response to Bruen was just about as strong or any other state in the country,” he said. “The governor and the Legislature were sticking their chins out in service of making a very important point.”
For her part, Hochul says she and her staff consulted with a raft of state and county law enforcement officials before the gun bill’s passage. “It was an intense process, but it was necessary,” Hochul said in late August, on the eve of the law taking effect.
The rollout was not without hiccups, including concerns from some military re-enactors who have canceled events out of fear of running afoul of the new law. Officials in Adirondack Park, the 6-million-acre swath of greenery and small towns in the state’s North Country, also pressed Hochul on whether guns would be allowed there.
For his part, Milby, a Republican elected in November, reiterated that his officers, fewer than 100 in a county of nearly 100,000 people, would not be actively pursuing offenders of the new law, although they would respond to calls about concealed weapons if they came in.
More than anything, he said his office is getting “an awful lot of calls” from residents confused by the law, many of whom are “very pro-Second Amendment.”
“It’s basically been clear as mud since Sept. 1,” he said.
And as for who was to blame, Milby said the opinions in Wayne County were crystal clear long before Thursday’s decision.
“There’s a very strong sentiment in this county that the governor has just thumbed her nose at the Supreme Court, in what’s being touted as an unconstitutional conniption fit,” he said. “She’s absolutely overstepped.”