LEO/Military exemption under 265.20

[joel.favre]

Alright guys, I am new here, so be gentle.
I am looking at a move to upstate NY, the Watertown, FT Drum area within the next year or so and am looking for some possible clarification on confusing language used in the NY 265.20 Exemptions paragraph.
Although I am sure most of you already know the laws regarding firearms, I will post the relevant sections here for simplicity and brevity.

265.20 Exemptions.
a. Sections 265.01, 265.02, 265.03, 265.04, 265.05, 265.10, 265.11,
265.12, 265.13, 265.15 and 270.05 shall not apply to:
1. Possession of any of the weapons, instruments, appliances or
substances specified in sections 265.01, 265.02, 265.03, 265.04, 265.05
and 270.05 by the following:
(a) Persons in the military service of the state of New York when duly
authorized by regulations issued by the adjutant general to possess the
same.
(b) Police officers as defined in subdivision thirty-four of section
1.20 of the criminal procedure law.
(c) Peace officers as defined by section 2.10 of the criminal
procedure law.
(d) Persons in the military or other service of the United States, in
pursuit of official duty or when duly authorized by federal law,
regulation or order to possess the same.

Now, as I am sure can be inferred from the fact that my relocation will take me to Drum, I am an active duty military member. As such, I have had the pleasure of living in states that have no restrictions similar to the AWB and pistol licensing requirements of NY. Therefore, I am in possession of some weapons that under the definitions paragraphs of Sec 265 are illegal. This includes AR-15's with more than two prohibited features, hi-cap mags, and some other interesting Title II items.
Now here comes the meat of the question. Can I assume, under the bold wording in the exemption clause I have listed above (especially D) that I am exempt from the restrictions regarding "Assault Weapons", hi-caps, and Title II weaponry, all properly owned of course and Title II taxes paid.
I emailed this question to the NY State police firearms division and have received absolutely no reply. In view of that, is there anyone else I could forward this question to in the chain of diplomacy that would be able to give me an official answer and assuage my concerns over this matter?
Sorry about the long winded post, and thanks in advance for any help I can get.
Joel

[scottyb]

As a veteran who had to transfer to NY with some illegal items according to NY law, I can tell you that your military status does not exempt you. If you possessed those items for the purpose of performing your duties, that would be a different story. I had to leave multiple items with family in NC when I moved to NY. And since the job I got when I got out is still in NY, those items remain in NC.

"in pursuit of official duty or when duly authorized by federal law" is the important section. Again, if you have authorization from your CO to possess for your job, then you are good. This is for when you are authorized, for example, perimeter guard rounds outside of the base, but are performing your duties.

Sorry, it sucks, but it is the gun hating state of NY. I would transfer else where if at all possible. Or, do what I did and leave them somewhere else with family or friends you trust and get the hell out of NY when your tour here ends.

[darkvibe]

If you kept your stuff on base (I assume you'll live on base?) would that be considered federal and not subject to NYS laws? Of course base rules would have to allow it. Just a thought.

[scottyb]

I know that where I was stationed that there was no authorization for violation of the state laws. The military housing rules explicitly said that firearms must be possessed in IAW federal and state laws. Maybe Ft Drum has some better regulations for military member who own personal guns, but I would not bank on it.

To the OP, I would check with the HHG office.

http://www.drum.army.mil/sites/newcomers/goods.asp

More info from the Fort Drum Reg 190-6:

"Those weapons identified in paragraph 7 of this regulation, the possession of which is prohibited on the installation, and all other weapons the possession of which by private persons is illegal under state or federal law."

PDF link

[joel.favre]

All - thanks much for the replies and I believe that you have confirmed my fears, especially scottyb. I have sent in a letter to the ATF NY Division with this question, expecting the same answers I have received here, but will post it if they give me any sort of unusual response. My only possible hope here is that the clause "or when duly authorized by federal law" can possibly be construed as stand alone, and since under FEDERAL law I am duly authorized to own these weapons it will be permissible. Far flung hope, I know but I am trying to see my way through this.
As far as keeping the weapons on base, that is not an option for me. I refuse to live on post due to the horrific conditions of most post housing now that Picerne and other private agencies are managing it.

[scottyb]

Good luck. I hope you can find a way that I couldn't.

[Jarhead]

I am no lawyer and this is not legal advice. I repeat, I am not a lawyer and this is not legal advice.

When I read that exemption for simply what it says I get the following understanding of it.
(d) Persons in the military or other service of the United States, in pursuit of official duty or when duly authorized by federal law, regulation or order to possess the same.

So the exemption is written for "Persons in the military or other service of the United States" right? That exemption is written for two different and distinct groups of people; people who are "in the military" or people who are in "other service of the United States" right?

I can't think of any other way to interpret that sentence. You don't have to be in the military for that exemption to apply to you if you are in other service to the United States and you don't have to be in other service to the United Stats if you are in the military.

So when are these two group of people (military and other service) covered by the exemption? Well the first is "when in pursuit of official duty". Simple enough, military members do not use personally owned firearms "in pursuit of official duty" so strike that from the list.

The other time they are exempted is when they are "duly authorized by federal law, regulation or order to possess the same." The use of the word "or" lists two separate and distinct ways to be exempted just as it lists two separate and distinct groups of people covered by this exemption.

So where is the grey area? Well there is not Federal law, regulation, or orders that states "Persons in the military can own firearms considered by the state of New York to be assault weapons" but there are Federal laws that establish who cannot own a firearm. It would be extremely impractical to have a list of every person or group of people who can own a firearm so a list only exists of who cannot.

The Gun Control Act of 1968 defined what is a prohibited person and prohibited persons are defined in US Code, Title 18, part I, Chapter 44, Section 922, under Unlawful Acts.

If the original poster is a "person in the military" and is not prohibited from owning a firearm by "US Code, Title 18, part I, Chapter 44, Section 922, Unlawful Acts" then is he "duly authorized by federal law, regulation or order to possess the same"?

If he purchased the firearm in question legally then he is authorized to posess it (in New York it is questionable as covered in this discussion).

Seems there has never been a case covering this so the only way to get a definitive answer of what the exemption means is to get caught with an assault weapon, have charges pressed, go to trial, and see what happens. Which I am in no way suggesting!

I think it boils down to one question. Are you authorized by default under Federal Law since you are not prohibited?

Again, I am no lawyer and this is not legal advice. I repeat, I am not a lawyer and this is not legal advice.

[waldershrek]

All that means is that you are exempt if carrying government issued weapons while the performance of your military duties. If you are off the clock then NYS law applies to you. Unless you are on base of course but I don't know all the military rules about bringing personal weapons on base. I seem to remember it's a huge pain and requires permission from the base commander, they have to be kept in the armory where they usually get dinged up and in some cases taken out and played with by staff.

[Jarhead]

Originally Posted by waldershrek

All that means is that you are exempt if carrying government issued weapons while the performance of your military duties.

snip

"in pursuit of official duty" covers what you said above. If that is all it meant then why would it say "or" and continue on?

(d) Persons in the military or other service of the United States, in pursuit of official duty or when duly authorized by federal law, regulation or order to possess the same.

If a law stated that something can be red or blue, that doesn't mean it can only be red. It means in can be red or blue.

[scottyb]

Originally Posted by waldershrek

All that means is that you are exempt if carrying government issued weapons while the performance of your military duties. If you are off the clock then NYS law applies to you. Unless you are on base of course but I don't know all the military rules about bringing personal weapons on base. I seem to remember it's a huge pain and requires permission from the base commander, they have to be kept in the armory where they usually get dinged up and in some cases taken out and played with by staff.

This is exactly what it means. You can word-smith it to make it say whatever you want. But the interpretation by the courts is what matters.

When I first transferred to NYS, I specifically asked Navy legal about the listed exemptions in 265.20. They got back to me and quoting case law told me that there is no exemption for just being in the military. Only in the performance of my duties would the exemption take effect. They said something to the effect of not being prohibited by federal law does not mean authorized by federal law, regulation or order. If you are able to show written authorization to ignore state law, then by all means. If you are FBI or DEA and are home eating dinner you are not in the performance of your duties but you do not have to turn in your sidearm at work before you go home because you authorized to have the weapon by the federal government. That is what it is saying.

You can fight it and take your chances or you can listen to those that have been through it. Either way, it is up to you.

[Jarhead]

Not wordsmithing it at all. That is just how I read what it says. As I stated several times, I am not a lawyer and I am not giving legal advise. For me the choice is easy, work in Newburgh and live in Pennsylvania.

[joel.favre]

Excellent discussion going on here from both sides, I am appreciative

Jarhead: That is exactly how I read it, which is why I am seeking further clarification. You put it more eloquently and more fully explained it than I could, thank you.

Scottyb: Understand your point absolutely as well, which again is why I am seeking further clarification from the NY State Police, ATF and DA's office. I have not researched the existing case law in NY about this, because I am no lawyer and do not pretend to have the knowledge to delve into that. I would be inclined to agree with you though, simply because if that was the answer gotten from a Navy JAG officer, who did do the research, I would imagine its the correct answer.
Still, I hope to find a way to keep my weapons while living peacefully and LEGALLY in NY.

If only precedent cases existed so that I wouldn't run the risk of being the precedent if I do indeed bring my weapons in unlawfully. Which I will not do of course, since the weapons are not worth my commission and career.
Still searching...
Joel

[waldershrek]

Well how is this for an example then.....I know a kid who is (or was rather) in the Army. MOS was MP. He carried an M9 and an M-16 at his duty station checking ID's at the gate on base. Came home to NY on leave and brought his personal pistols and AR with him. Got pulled over and informed the officer he had the weapons in the car. It was also discovered that he didn't have a NY pistol permit and the AR was not NY legal. He was arrested and charged, kicked out of the Army and god only knows where he is now.

Now by some peoples logic on here you are exempt due to being military. Here is a perfect example that you are not.

[NNYSoldier]

Hi, I may be a little late and I registered just to answer this question. Fort Drum military policeman here. I can tell you for a fact that you are not exempt from NY weapons laws. I have only been working here a few weeks and already have apprehended a few people for having pistols without permits. The exemption is for your GOVT ISSUED weapon for official duty use. Any firearm or any weapon at all (including bb guns) need to be registered at the MP station and then we will issue a license. This license is simply a receipt saying that we have record of it at the station and you are allowed to have it on post. If you have pistols and no permit, or rifles that are illegal that is no problem, you just need to have them on your orders when you move in or at the very least LET US KNOW BEFORE YOU COME TO THE GATES. These weapons will be confiscated from you and stored in your unit's arms room until you have the proper permit to posess them. If you live in the barracks all weapons must be stored in the arms room anyways. Just to clarify, if you have rifles that are illegal in NY they must simply stay in that arms room untill you PCS.

To avoid any risk of legal trouble, just get them on your orders and they will go right where they need to go.

[darkvibe]

Thanks for posting that NNYSoldier. Hopefully it comes in useful to people in the future.