New York Legislation to Close Gun Show Loophole; New York Criminal Defense Lawyer Rochelle Berliner Explains the Bill and Effects on Gun Buyers, Sellers and Distributors

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After a recent gun show sting led to the arrest of 10 firearm sellers, U.S. Senator Kirsten Gillibrand proposed legislation aimed at tightening NY’s gun trafficking laws; New York criminal defense lawyer Rochelle Berliner examines the state’s current gun and weapons laws and how the bill intends to counteract illicit gun sales.

The proposed legislation brings controversy into question concerning states’ rights to choose the definition of what is "reasonable" gun control, stated Queens criminal defense attorney Rochelle S. Berliner.

Ten firearms dealers were charged with illegal gun sales over the past eight months, as stated in an announcement by the Office of the Attorney General on December 4, 2011, after New York Attorney General Eric Schneiderman conducted a series of undercover gun show investigations exposing sellers who allegedly did not properly observe current gun laws. Schneiderman’s weapons sting is part of the Attorney General’s fight against illicit gun sales and weapons trafficking in New York. Schneiderman, with the help of U.S. Senator Kirsten Gillibrand (D-NY), aims to tighten New York’s current gun laws and increase punishments for violators.

Last week, Senator Gillibrand announced her support for Schneiderman and his goal of increasing gun control when she introduced the “Gun Trafficking Prevention Act of 2011” into federal legislation. If accepted, Gillibrand’s bill would toughen penalties for dealers convicted of illegal gun sales in New York as well as persons charged with weapons trafficking throughout the state and across state lines. Several factors led to the crackdown on vendors and gun shows, including the increase in weapons crimes involving guns in the state of New York.

New York weapons defense attorney Rochelle Berliner explains, “New York City already has some of the most restrictive local licensing requirements for Federal firearm dealers in the country. The proposed legislation brings controversy into question concerning states’ rights to choose the definition of what is "reasonable" gun control, and it could end up punishing persons, such as gun shows operators, who have very little or no control over whether the law is actually being obeyed.”

According to the Federal Bureau of Investigation’s (FBI) gun crime statistics in the US for 2010, gun violence in New York increased 7 percent from 2009 to 2010 and accounted for over 60 percent of all crimes reported. A nationwide spike in police gun deaths in U.S also contributed to lawmakers’ urgency to reform gun control policy. To date, there have been166 police deaths nationwide in the past 11 months, an increase from last year's 146, according to a spokesperson at The National Law Enforcement Officers Memorial Fund.

Senator Gillibrand and Attorney General Schneiderman argue gun trafficking begins with the ease of an unqualified person’s ability to purchase weapons at gun shows. The weapons sold without proper protocol at gun shows subsequently end up on the streets, either to be used directly to commit a crime by the buyer or resold illicitly to someone else, becoming virtually untraceable of current location and origin of the weapon. The proposed bill by Senator Gillibrand would make all such transactions illegal, and a dealer could face a fine of up to $2,500 per violation, in addition to a suspension of their license for up to six months.

Under the federal Brady Handgun Violence Prevention Act, an amendment to the Gun Control Act of 1968, firearms dealers with Federal Firearms Licenses are required to enter buyers into the National Instant Criminal Background Check System (NICS) maintained by the FBI. Currently, gun sales in violation of the Brady Act can result in a misdemeanor offense; however, unlicensed private sellers are not subject to the Brady Act.

“On a federal level, private sellers who rent a booth at a gun show are not required to conduct a background check on their buyers, but New York laws state all firearm exhibitors must conduct a national instant criminal background check prior to all firearm sales or transfers, including sales or transfers of rifles or shotguns at a gun show,” states Berliner, a gun sale defense lawyer in Queens.

The Gun Trafficking Prevention Act of 2011 would punish individuals engaged in a conspiracy to traffic guns equally to those who actually traffic a gun, and alleged offenders could face up to 20 years in prison. Those accused of organizing gun trafficking operations would be subject to additional sentencing and could potentially serve five consecutive years in prison. Furthermore, the new bill would make the sale of two or more firearms illegal if the seller has reason to believe the buyer intends to use the guns to commit a felony. Penalties may increase depending on the quantity of guns trafficked.

Additionally, the proposed bill aims to eliminate the illegal flow of guns into New York by cracking down on gun trafficking into New York from across state and national borders through the creation of a unified national policy on gun sales that includes background checks, no matter in which state the gun sale occurred.

According to Berliner, “The proposed legislation would create a huge ambiguity in regard to the seller’s understanding of the buyer’s intentions and the seller’s understanding of the law, specifically regarding what constitutes a felony crime in the state of New York.”

Rochelle Berliner of the Law Office of Rochelle S. Berliner is a Queens criminal defense attorney committed to the protection of men and women accused of crimes throughout the areas of Queens County, New York County (Manhattan), Kings County (Brooklyn) and Bronx County, including Jackson Heights, Astoria, Rosedale, Chelsea, Washington Heights, Harlem, Bushwick, Flatbush, South Bronx, Williamsbridge and all other neighborhoods of New York City.


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