This is some legal research that I prepared about 4 years ago regarding the New York State ban on "assault weapons." It addresses the elements of an "assault weapon" and then discusses the issue of the 9/94 date cut-off.
As is relevant here, the New York Penal Law defines “assault weapon” as follows:
“Assault weapon” means (a) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least two of the following characteristics:
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;
(iii) a bayonet mount;
(iv) a flash suppressor or threaded barrel designed to accommodate a flash suppressor;
(v) a grenade launcher;
. . .
(e) provided, however, that such term does not include:
(i) any rifle, shotgun or pistol that (A) is manually operated by bolt, pump, lever or slide action; (B) has been rendered permanently inoperable; or (C) is an antique firearm as defined in 18 U.S.C. 921(a)(16);
(ii) a semiautomatic rifle that cannot accept a detachable magazine that holds more than five rounds of ammunition; . . . [or]
(v) a semiautomatic rifle, a semiautomatic shotgun or a semiautomatic pistol or any of the weapons defined in paragraph (d) of this subdivision lawfully possessed prior to September fourteenth, nineteen hundred ninety-four.
Penal Law § 260.00(22) (emphasis added). Thus, the statute defines an “assault weapon” as a rifle that is (1) semiautomatic, that (2) accepts a detachable magazine, and that (3) has at least two “evil” features. The statute excludes certain categories of firearms (e.g. possessed prior to 1994, only accepts a 5-round magazine) from its definition.
A. Elements Needed to Establish a State “Assault Weapon” Violation
I located two New York cases addressing the elements needed to establish a violation of the state assault weapon ban (“AWB”). See People v. Volkes, 1 Misc. 3d 829, 771 N.Y.S.2d 797 (Sup. Ct. Richmond County 2003); People v. Digaetano, 188 Misc. 2d 771, 729 N.Y.S.2d 614 (Sup. Ct. Kings County 2001). These cases generally indicate that it is necessary for the People to establish the specific characteristics that make the firearm an “assault weapon” both before the grand jury and at trial.
In Digaetano, the indictment charged the defendant with possessing four “assault weapons” in violation of the state law. See Digaetano, 188 Misc. 2d at 772, 729 N.Y.S.2d at 615. The officer testified before the grand jury as to the design features present on some of the four rifles, but the People’s ballistics report did not address these features. See id. at 773, 729 N.Y.S.2d at 615-16. The court determined that the evidence before the grand jury was insufficient to sustain the indictment. Id. at 774, 729 N.Y.S.2d at 616. Noting that it was not a crime to simply possess a rifle or shotgun, the court stated that to establish a violation of the state AWB the People had to establish “at a minimum” that there were at least two of the “evil” design characteristics outlined at § 265.00(22). Id. The court stated that such evidence should come from someone who “has some pertinent knowledge of the difference between an ordinary rifle and a ‘semiautomatic rifle’ that is considered an ‘assault weapon.’” Id. at 775, 729 N.Y.S.2d at 617.
In addition, the court placed emphasis on the portion of the “assault weapon” definition that provides that the term “assault weapon” does not include a firearm that cannot accept a detachable magazine holding more than five rounds. See id. at 774, 729 N.Y.S.2d at 616. “No testimony or other expert evidence was introduced to establish that the semi-automatic rifles were capable of accepting a detachable magazine holding more than five rounds.” Id. The court ruled that the People must minimally show that the rifle “is able to accept a detachable magazine that is able to hold more than five rounds of ammunition” and stated that the People should have included this information in the ballistics report. See id. The court did not discuss the 1994 exemption (even though it appears in the same subparagraph (e) as the 5-round exemption). The court dismissed the indictment as invalid, but granted leave to amend. Id. at 775, 729 N.Y.S.2d at 617.
In Volkes, the People charged the defendant with violating the state AWB by possessing a shotgun. See Volkes, 1 Misc. 3d at 830, 771 N.Y.S.2d at 798. The court found the information defective for the simple reason that it did not allege that the shotgun was “semiautomatic” (which is one of the requirements of the definition). See id. The court noted (without clarification) that “when a statute contains exceptions there is case law holding that the exceptions should be pleaded within the accusatory instrument.” Id. (citing People v. Rodriguez, 68 N.Y.2d 674, 505 N.Y.S.2d 593; People v. Feiler, 191 Misc. 2d 390, 742 N.Y.S.2d 526 (2000)). The court then went on to address the charge that the defendant had violated the NYC Code by possessing shotgun ammunition without a license, and concluded that this allegation was also defective because it did not allege that the ammunition was operational. See id. at 832, 771 N.Y.S.2d at 799.
B. Is the Date Exception “Personal”?
Note that the 1994 exception states that the assault weapon definition does not include a firearm “lawfully possessed prior to September fourteenth, nineteen hundred ninety-four.” N.Y. Penal Law § 265.00(22)(e)(5) (emphasis added). Does this mean that the definition doesn’t include a firearm that was “possessed” by anyone in 1994, or that the definition doesn’t include a firearm that was “possessed” by the defendant in 1994? During the federal AWB on which the state AWB is based, it was generally understood that the requirement was not personal: if the firearm existed before September 1994, then it was outside the federal AWB. I became concerned about this issue because I have heard through the “grapevine” that the NYPD in particular has suggested that the provision should have a different, “personal” meaning in New York. (I have never heard of a specific example.)
There is no New York law on point, but there are several federal decisions. One of the two cases discussed above noted that the state AWB “was enacted to prohibit a specific class of weapons already barred by federal law.” Digaetano, 188 Misc. 2d at 772, 729 N.Y.S.2d at 615 (citing Memo of State Senate in Support of L. 2000, ch. 189, McKinney’s Session Laws, at 1642). This suggests, strongly, that the state AWB should be construed consistent with the (former) federal AWB. While the language of the state and federal AWB’s is otherwise substantively identical, there is one material difference. The state AWB places the 1994 exception in the definition of “assault weapon.” See N.Y. Penal Law § 265.00(22)(e)(v). The federal AWB, in contrast, placed the exception in the statute that defined the offense of unlawfully possessing an “assault weapon.” See 18 U.S.C. § 922(v)(2) (“Paragraph (1) shall not apply to . . .”). The only real significance of this appears to be that there is a much stronger case for calling the 1994-exclusion an affirmative defense under federal law.
The bulk of federal authority concludes that the 1994-exclusion applies to firearms that were lawfully possessed prior to 1994, regardless of whether the current owner possessed them at that time. There are only two cases that squarely address the issue (in a holding), and the two are patently inconsistent. Compare United States v. O’Malley, 332 F.3d 361, 363 (6th Cir. 2003) (expressly clarifying prior opinions to state that a prohibited “assault weapon” “is not illegal per se, but is legal to buy, so long as it was manufactured or imported before the ban against such weapons”) with United States v. Indelicato, 964 F. Supp. 555, 558-59 (D. Mass. 1997) (refusing to release custody of “assault weapon” because party who would possess it did not possess it as of 1994). However, there are numerous cases that indicate that the exception applies to guns, not specific people who possessed specific guns in or before 1994, but that do not rely on this proposition to decide a case. Some cases rule that while a pre-94 weapon is exempt from the statutory prohibition, the weapon can still be considered for sentence enhancement purposes. See United States v. Vega, 365 F.3d 988, 989 n.1 (11th Cir. 2004) (stating that ban does not apply to weapons possessed before 1994); United States v. Hayes, 68 Fed. Appx. 432, 434-36 (4th Cir. June 23, 2003) (unpublished memorandum opinion) (same); United States v. Metheny, 11 Fed. Appx. 92, 94 (4th Cir. Apr. 4, 2001) (unpublished memorandum opinion) (same, and noting, “the government stipulated that Metheney acquired his semiautomatic assault weapon before his misdemeanor domestic violence conviction from someone who lawfully owned the gun before the effective date”). Other cases state that pursuant to the date exception, “grandfathered” weapons can still be bought or sold (which of necessity means that (v)(2) is not “personal”). See United States v. Serma, 2006 U.S. App. LEXIS 1578, *8 (9th Cir. Jan. 23, 2006) (date-exempted firearms “remained legally in circulation, even during the so-called ban”); Vega, 365 F.3d at 989 n.1 (permits possession and “sale”); Navegar, Inc. v. United States, 192 F.3d 1050, 1061 (D.C. Cir. 1999) (permits possession and “transfer”); Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 530 n.8 (6th Cir. 1998) (permits possession and “transfer”); San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1124 (9th Cir. 1996) (permits possession and “transfer”); Brady Campaign to Prevent Gun Violence United with the Million Mom March v. Ashcroft, 339 F. Supp. 2d 68, 71 (D.D.C. 2004) (permits possession and “transfer”). I found one case that suggested in dicta that the exemption was personal. See United States v. Ray, 411 F.3d 900, 905 (8th Cir. 2005) (“if a person lawfully possessed the assault weapon at the time that § 922(v)(1) was enacted, then there was no crime”). However, the issue in Ray was the appropriateness of a sentencing enhancement (which the courts have ruled does not depend on whether the firearm is pre- or post-ban), and the Ray defendant had possessed the firearms since the effective date, meaning that the issue would not have been outcome-determinative anyway. See id.
It thus appears that the strong weight of authority indicates that the exemption pertains to weapons, not persons. The only contra cases are Ray and Indelicato. The Indelicato decision (which is the only direct, adverse authority) is somewhat undercut by the First Circuit’s opinion in United States v. Laureano-Velez, 424 F.3d 38 (1st Cir. 2005). There, the court rejected the defendant’s contention that his “assault weapon” sentence enhancement was improper “because the weapon was manufactured before the enactment of the assault weapon ban in 1994.” Id. at 41. The court stated that while this exemption “exempts . . . weapons that were lawfully possessed before enactment of the ban,” the sentence enhancement applied regardless of the date exception. See id. (emphasis added). This suggests that the Indelicato approach was wrong.
 Based on the descriptions in the case, it appears that at least one of the “assault weapons” was not an “assault weapon” under the statute – just a note.