Legal Commentary

State Law Decision (from New York) on Felon Gun Possession

By Eugene Volokh

UPDATE: For news stories on the 2000 arrest of the applicant in this case, see here and here. The charges in that case were of quite serious misconduct, though of course they were just charges.

In the Matter of Caputo (Feb. 8):

James P. Caputo, Jr. has applied for a restrictive home premise handgun license pursuant to §400.00 of the Penal Law....

On April 16, 2010, Deputy Inspector Andrew Lunetta disapproved the application. (Exh. B). The reasons were given as follows:

The Applicant has an Arrest History as follows: (1) Arrest 9/28/99 Arrest #B00015121 charged with Assault 1st Degree (F)... Official Misconduct: Public Servant Performing Illegal Function 09/17/01. Convicted Upon Plea of Guilty to Assault 3rd Degree Sentenced to Probation 5 years. (2) Arrested 05/15/93 in Putnam County charged with Obstructing Governmental Administration. On 11/04/93 he was convicted upon Plea of Guilty to Disorderly Conduct. (3) Arrested on 10/21/92 in Town of Kent, Putnam County, NY charged with Grand Larceny 4th Degree credit card (F) 03/18/93 sentenced to 10 days Community Service. Due to the Applicant prior arrest record which includes two felonies one of which a violent felony the Applicant has been disapproved for a Premises Residence Handgun License.

...

Mr. Caputo, with counsel, then submitted an Administrative Appeal Affirmation dated May 15, 2010. In a lengthy and comprehensive affirmation from that counsel, first an overview of the cited arrests was given. It was pointed out that the 1992?93 arrests were linked and occurred when Caputo was 19 years old. It should also be noted that those arrests were known and were essentially disregarded by the New York City Police Department when Caputo was appointed to the Force. As a member of the force, he was given a gun to carry. The felony alluded to in the Disapproval was the Grand Larceny related to his girlfriend?s unauthorized use of a credit card. That charge was dismissed against him. In other words, he has had only one felony conviction.

A long, detailed account was then given of the 1999 arrest and its aftermath, which included the reasons behind Caputo?s plea of guilty to the Non-Violent ?E? Felony of Filing a False Document, for which he was sentenced to a term of Probation for five years, as well as to the reduced charge of Assault in the [third degree], a misdemeanor. The plea took place in 2001. At the same time Caputo was terminated by the Department.

Also, counsel included relevant documents including the ?sloppy? initial report written by Caputo (counsel?s words), the investigation conducted by Internal Affairs, and the Certificate of Relief From Disabilities signed by Supreme Court Justice S. Barrett on November 20, 2009, wherein the ?b? box is checked. That box reads: ?Relieve the holder of all disabilities and bars to employment, excluding the right to be eligible for public office.?

The above appeal was unsuccessful. On June 14, 2010, the Director of the License Division disapproved the appeal and stated the following (at Exh. D):

Your conviction for violating PL175.35, an E Felony on 9/17/2001 in connection with your duties as a police officer and subsequent dismissal from the NYPD demonstrates a lack of character and fitness for a license to possess firearms.

No reference was made to the other arrests. No reference was made to the remoteness of the 1999 incident, eleven years earlier, and no mention was made of Caputo?s exemplary record in the intervening years. And finally, no mention was made of the 2009 Certificate of Relief From Disabilities which Caputo had received from his sentencing judge in 2009....

Interestingly, counsel first argues that the United States Supreme Court?s recent interpretation of the Second Amendment to the United States Constitution in two cases, District of Columbia, et al. v. Heller, 128 S. Ct. 2783 (2008) and McDonald v. Chicago, 138 S. Ct. 1317 (2009), changes an individual?s possession of a gun from a ?privilege? to a ?right?, which he believes shifts the burden to the Agency to disprove eligibility, whereas before, the applicant had the burden of proving his eligibility.

I am not prepared at this time to accept this interpretation, but I am prepared to say that the decision here was arbitrary and capricious. I base this conclusion on the facts, concerning Caputo?s past and present along with cases cited by counsel showing that prior felons in New York have been granted handgun licenses by the Department. This refutes respondent?s claim that such a conviction is an absolute bar.

I further make this determination because the Department seems to have made its decision wearing blinders. The Director ignored Caputo?s unblemished record both before and after the 1999 incident. This would include his honorable service in the Marines, and his almost five years as a New York City Police Officer without any problem, until this complaint. After his leaving the Force, he joined the NYC Sanitation Department, rising to the level of Supervisor of 30?40 men. Is it not arbitrary to completely ignore these parts of one?s life and is it not clear that they speak to character as well?

And most significantly, the Director totally ignored the significance of the 2009 granting of Caputo?s application for a Certificate of Relief from Disabilities, which can only be granted and was granted here at the time his sentence of Probation was completed. At that time, the sentencing judge had the opportunity to review the applicant?s activities and character since the time he took his plea. The Director also ignored the actual words of this Certificate ?relieving the holder of all disabilities....?

Counsel points out that the Department, in the past, has recognized this Certificate as lifting the legal bar against handgun licensing. New York State Correction Law, Article 700, placed Caputo in the category of an ?eligible offender?, one qualified to apply for this Certificate. Other parts of this section speak of the public policy of NYS to ?encourage? the licensure of persons previously convicted of criminal offenses [§753(1)(a)] and state that such a certificate ?shall create a presumption of rehabilitation? [§753(2)].

Accordingly, it is hereby

ADJUDGED that this petition is granted to the extent of remanding the matter to the Commissioner and directing him to conduct a more thorough review of Mr. Caputo?s fitness and character. During that review, special attention to the remoteness of the 2001 conviction for a non-violent felony and to Mr. Caputo?s clear rehabilitation since that time, taking note of his employment and the Certificate of Relief from Disabilities, all toward the end of reversing the prior denial.

Full post as published by The Volokh Conspiracy on February 16, 2011 (boomark / email).