Video: Cuomo lays down law to sheriffs on gun control
Governor Cuomo signed the NY SAFE Act last January (Photo: Karen DeWitt)
A growing number of New York sheriffs are expressing fierce opposition to New York’s tough new gun control law, the SAFE Act, which was signed into law earlier this year.
Some sheriffs have said they won’t actively enforce the law, and the issue has become a flash point in the Saratoga County sheriffs race.
In that contest, Warren County sheriff investigator Jeff Gildersleeve — one of the candidates for the Saratoga office — has said that if elected he won’t enforce the SAFE Act, which he has described as unconstitutional.
I asked Governor Cuomo about the issue yesterday when he visited the Adirondacks. (I raise the issue at around :30 on the tape.)
Honestly, I didn’t expect such a fierce response. He said law enforcement “picking and choosing” which laws to enforce would bring “chaos” and would set a “dangerous precedent.”
I would back the sheriff’s in not enforcing the Safe Act if they would agree to not enforce any laws against marijuana and prostitution.
What is it these days with government officials just deciding what laws they want to enforce? Here is a good example at the state level, and all these exemptions under the Affordable Care Act are a good example at the federal level. The same goes for the justice department they think they can just do whatever they want. A law is a law. If you don’t like it take up the issue with the lawmakers. Enforce what is on the books. I think this new gun control law in NYS is pointless but it is a law and it should be enforced.
I know a lot of people who opposed the NYSAFE law but have a serious issue with this. So I guess my question is: if LAW ENFORCEMENT leaders can ignore laws they don’t like, why can’t everyone else?
If you think the law is unconstitutional there is a mechanism in place you can use to deal with that. Maybe these guys see federal officials willy-nilly picking and choosing which laws they want to enforce and feel that they can do the same thing?
All he did right there is explain the basics of our system of government.
There are people who make laws. There are people who enforce laws. And there are people who (if necessary) judge the legality of laws.
It seems like upstate sheriffs need to repeat a few grades.
A Sheriff is obliged to uphold the US Constitution. When I read the Second Amendment, I can’t see how it can be misinterpreted: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” The Governor has decided to make illegal common firearms that have been legal to own for decades. In my opinion, the SAFE act appears to be illegal and I think a Sheriff should arrest Andrew Cuomo.
If anyone is interested, did you know that according to FBI statistics, in the U.S. in 2011, long guns were used in 350 homicides. The Newtown shooting incident did not involve a long gun; the rifle was found in the trunk of the car, and the criminal used two handguns.
We need to really ask some hard questions here’ why dos the Governor really want to make these firearm illegal? What is the true motive?
Dave, I agree completely. The president was a law degree from Harvard and even he doesn’t get it so I am not sure repeating a few grades will do the trick.
Mick, doesn’t a sheriff take an oath to enforce ALL the laws of the state of NY? If he or she does he or she is breaking that oath by not enforcing a law even if he or she thinks that it violates the US constitution. Again, there is a simple mechanism for anyone to challenge a law they feel is unconstitutional. Arresting the Governor would be a complicated way to go about it.
Also, we should not turn this into a debate on guns or gun control. The issue he is law enforcement. BTW Mick I agree with you. There is a very good chance that the SAFE Act is unconstitutional. But that is irrelevant here. You or I as a citizen are free to violate this law and then appeal our case as far as we would like to go if necessary. In fact if the Sheriffs don’t enforce the law it, in a sense, strips us of that ability.
Politicians like Cuomo (and Obama) care nothing at all for the law. All they care about is getting elected and the power they think that entitles them to. They will do or say anything to further their personal ambitions, including making a mockery of the Constitution. The SAFE law is a shameless exploitation of tragedy and blatant pandering to misinformed public opinion. It might have been otherwise if it made any sense or addressed legitimate concerns, but it doesn’t. It’s a cheap and obvious ploy. It’s poorly written, contradictory and enacted in a very shady manner. It needs to go.
Federal law supersedes state law. The state may nullify federal law, but it must be done correctly.
The Sheriff’s primary duty is to uphold the US Constitution.
There has been no legal determination that the SAFE Act violates the US constitution. It may or it may not. You think the Sheriffs should make a personal determination on what laws they think are, or are not constitutional, and then manage their enforcement that way?
If a sheriff feels that the SAFE Act (or any other law) violates the US or NYS constitution, s/he can file a lawsuit in court asking for it to be judged so. They can also ask for injunction permitting them to not enforce the law pending a judicial ruling on its constitutionality. For sheriffs to unilaterally ignore laws based on their personal whim is a clear violation of the separation of powers.
Mick:
Time for a fact check. We won’t get anywhere otherwise.
TOL, not sure what you mean.
Firearm ownership is guaranteed under the constitution and it is the Sheriff’s duty to countermand an unlawful order.
Got it?
I agree in theory with your opposition to the SAFE Act, but I think we ought to stick to the facts as they are, not what we wish them to be. In the first place, a long gun was used at Newtown. In the second place, state nullification of federal law has never been upheld by the courts. Third, and I am sure by no means finally, a sheriff’s duty is not to decide on the constitutionality of laws.
Mick,
– Legislatures pass laws.
– Sheriff’s enforce laws.
– Courts can, if necessary, judge laws to be unconstitutional.
Each have a specific role. Just as courts are not the ones to enforce laws, sheriffs are not the ones to decide if laws are constitutional.
In our system, right now, the SAFE Act is a constitutional law. It was legally passed by elected representatives of the people and has not been deemed unconstitutional by any court with the authority to do so. Sheriffs, and other law enforcement personnel, are obligated to enforce that law because right now it IS a constitutional law.
If a court does judge that law to be unconstitutional, things would obviously change. At that point – not before – the sheriffs would be obligated to not enforce it.
Once more for good measure… in our system, sheriffs are not the people who get to decide what laws are and are not constitutional.
Dave, I totally agree.
On this:
“Once more for good measure… in our system, sheriffs are not the people who get to decide what laws are and are not constitutional.”
As I understand it (despite article two) these days the president and the justice department also gets to decide what laws they want to enforce. Sometimes the children learn by copying what their parents do.
http://www.forbes.com/sites/theapothecary/2013/08/13/yet-another-white-house-obamacare-delay-out-of-pocket-caps-waived-until-2015/
When constitutional rights regarding firearm ownership is changed, the Sheriff will be responsible for enforcing that. One more time: The DUTY OF THE SHERIFF IS TO UPHOLD THE CONSTITUTION. THE CONSTITUTION STATES THAT A CITIZEN HAS THE RIGHT TO KEEP AND BEAR ARMS. NO MATTER HOW MUCH CUOMO DESPISES THE CONSTITUTION, HE CAN NOT FORCE A SHERIFF TO PERFORM AN UNLAWFUL ACT OF VIOLATING THE CONSTITUTION.
Do any readers remember the war crime trials from Viet Nam, when some soldiers were court-martialed for violating an order, and the order was found to be illegal, so the soldiers were acquitted? Their superior officer who issued the illegal order was arraigned instead.
The courts are very clear on this matter in Heller V. D.C.
Cuomo can not order a Sheriff to violate the U.S. Constitution. Cuomo’s order would be treasonous and he should be arrested.
What happens when a Sheriff violates your constitutional rights?
There is a huge piece of information which has not been discussed. There is a law on the books and it is the NYS Civil Rights Law, Article 2, Section 4 and it is in direct violation of the new unconstitutional SAFE ACT. The Sheriffs are following the law by continuing to do as they have done before. How is one supposed to determine which law to follow when our Governor is proposing and ramming through in the middle of the night new legislation which is in direct conflict with existing law? This is the impetus for the refusal on behalf of the Sheriffs who are doing the brave thing and stating that they will not enforce this law (I have had the benefit of direct conversations with at least 5 of them). Thank goodness for the few who have the bravery to say NO to an unjust law. The right to nullify was placed in the hands of the people, juries, law enforcement and the courts when lawmakers abuse or refuse to remove an unjust law. I applaud the Sheriffs and will welcome any and all courts, DAs, jurors, etc. who also have the nerve to stand up to an ever encroaching government and a tyrranical leader.
mick, i think one of the big problems is that it’s not obvious that the safe act is unconstitutional. some forms of firearm regulation have been found to be constitutional. some haven’t. people can and obviously will disagree about what should and shouldn’t be deemed constitutional, but i hope we can all at least agree that these are some difficult, subtle questions, with very nontrivial arguments on both sides. it’s not a sheriff’s place to resolve questions like that.
Mick, no one disagrees that it is the sheriffs duty to uphold the constitution. So putting it in all caps helps people like me who need glasses to read small print, so thanks for that. However it is not the Sheriffs duty to interpret the constitution. Why not just go through the proper channels? No one is denying them their rights to fight the constitutionality of the law? What you and I both don’t want is some guy or gal deciding alone what they think is legal or illegal. You (and I) like their interpretation here but if the tables were turned and it was some other law that we did agree with we would not want to be in that position. Also, anyone they arrest under this law has all the same remedies at their disposal. Like I said above, in fact not enforcing the law, prevents it from being constitutionally challenged by individuals that feel their constitutional rights might have been violated. Trust me you want courts and jurys deciding things for us not individuals on the street. The legal system isn’t perfect but it is a heck of a lot better than letting one individual decide what he or she thinks is the law.
Also, please don’t forget to tell the Sheriffs that the constitution is made up of not only the original document but all the case law that came after it. If they are one of those people with the pocket sized original they only have a small part of the constitution that they are considering.
Mick is confusing “uphold the constitution” with “decide what is constitutional”
Sheriffs do the former, not the latter.
It’s really not that complicated. This is government 101. I don’t know about the rest of you, but I learned this stuff sometime around the 4th or 5th grade.
The irony here is that by not enforcing this law – a law that has not been declared unconstitutional by anyone with authority to do so – a sheriff would in fact be in violation of his duty to uphold the constitution, and is directly, and intentionally, undermining our system of laws. Frankly, I am surprised there are not consequences for this.
Anyone care to answer my previous question: What happens when a Sheriff violates your constitutional rights?
Here’s the answer: They get arrested.
Why would a Sheriff risk arrest by enforcing a law that violates the U.S. Constitution? That’s what Cuomo is commanding them to do.
Nice try, Mick, but sheriffs violate folks constitutional rights all the time without getting arrested. What they get is sued. Long, slow process, that generally results in taxpayers having to fork over damages to the injured party.
“How is one supposed to determine which law to follow when…”
Good question. The answer is we have courts to decide these things. Sheriffs do not determine these things according to their own personal whim. It’s called the separation of powers and is central to our political system.
Also, when hard core libertarians and “voluntaryists” claim that sheriffs and others shouldn’t enforce drug laws, seat belt laws, tax laws and others, opinion is virtually unanimous in denouncing them as kooks and anarchists who want chaos. But in this case, it’s acceptable? Hmm…
Police can and do prioritize what they enforce. That’s why your chances of getting a speeding or seat belt ticket in any city that has a real crime problem is pretty low. That’s why you can smoke weed in Holland — it’s not actually legal.
I don’t think any of the sheriffs who oppose the SAFE Act are saying they will actively ignore it — if they arrest someone for something else and find a SAFE Act violation, they’ll charge it, right? But they’re saying they won’t go out looking for violations. Given how little the law has to do with actual public safety (most real gun crimes are committed with illegal handguns that were illegal before), it makes sense not to prioritize it. Which burglary or assault would you want to see them stop investigating so they can seek out and bust hunters with illegal Bushmasters?
“Why would a Sheriff risk arrest by enforcing a law that violates the U.S. Constitution?”
In our system, a law does not violate the constitution unless a court with authority to make such a decision says it does. No court has declared the Safe Act unconstitutional. So by enforcing this law right now sheriffs are not risking anything. They would not be violating your rights, and and would not be held legally accountable. The sheriff would simply be doing his or her job according to our system of law.
If at some point this law were to be declared unconstitutional, by a court with the power to do so, THEN a sheriff would have to cease enforcing the law, because to do so would violate your rights.
I understand this is pretty frustrating if you really hate this law and truly believe it violates the constitution… however, our system has a way of handling these situations, and it does not involve sheriffs going rogue and deciding by themselves what laws they should and shouldn’t enforce. It involves the courts.
If you really want to follow and respect the constitution and our systems of law, then you should follow and respect the separation of powers it calls for.
I referred to Heller V. Washington, D.C. earlier. The Supreme Court has ruled on this subject.
really, mick? does heller exactly address what’s going on in the safe act?
Mick, if you are right… and if it is as clear cut and obvious as you seem to think it is… then rest assured a court will rule this law unconstitutional. But until that actually happens, the Safe Act is the law of the land here in NY and if you, and these rogue sheriffs, care about the constitution and the rule of law then you will respect the separation of powers and will follow the processes we have in place to addresses your concerns.
Its very easy to not enforce a complicated over reaching law, it also saves the taxpayers money.
Many many laws are not enforced by local authorities.
The mistake here was talking about it.
In police work it happens all of the time, you give a warning you don’t stop the person etc. So you take a gun law that says you have to have paperwork to buy a shotgun shell. I mean if the state wants to spend time and money enforcing that sort of thing they can pay for it.
The law will be enforced when you need it to convict someone of something else, that is when it will be useful. So you have someone you have been trying to nail on pot possession charges, oh wait they have a shotgun that without the proper paperwork, keep them in custody for that and then search for the pot. That is how these sorts of political based laws usually work.
McDonald v. Chicago, 561 U.S. 3025 (2010), is a landmark[1] decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states. The Court held that the right of an individual to “keep and bear arms” protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. The decision cleared up the uncertainty left in the wake of District of Columbia v. Heller as to the scope of gun rights in regard to the states.
Initially the Court of Appeals for the Seventh Circuit had upheld a Chicago ordinance banning the possession of handguns as well as other gun regulations affecting rifles and shotguns, citing United States v. Cruikshank, Presser v. Illinois, and Miller v. Texas.[2] The petition for certiorari was filed by Alan Gura, the attorney who had successfully argued Heller, and Chicago-area attorney David G. Sigale.[3] The Second Amendment Foundation and the Illinois State Rifle Association sponsored the litigation on behalf of several Chicago residents, including retiree Otis McDonald.
The oral arguments took place on March 2, 2010.[4][5] On June 28, 2010, the Supreme Court, in a 5–4 decision, reversed the Seventh Circuit’s decision, holding that the Second Amendment was incorporated under the Fourteenth Amendment thus protecting those rights from infringement by local governments.[6] It then remanded the case back to Seventh Circuit to resolve conflicts between certain Chicago gun restrictions and the Second Amendment.
mick:
so?
it’s not a question of whether the seconnd amendment applies to the states. it does. that’s settled.
it’s a question of whether the safe act goes too far. some amount of regulation is permissible under the second amendment. how much is a very subtle, murky question. it’s not for sheriffs to decide for the rest of us.
When you copy other peoples stuff you should give a reference.
http://en.wikipedia.org/wiki/McDonald_v._Chicago
So if a Sheriff comes upon a dead person who appears to have been shot and there is another person there holding a smoking gun he or she should decide if what happened was justified or illegal? It is a tough decision if he or she arrests that person on suspicion of murder there is a chance that he or she was not guilty since the constitution does allow him or her to commit that act legally under many circumstances.
Unlike NYSAFE, Stop and Frisk actually has been ruled constitutional. How come law enforcement officials don’t refuse to practice that on constitutional grounds?
Cuomo passed this law without due process and everyone knows this! A false emergency was created by Andrew Cuomo and he used this false premise to get this ridiculous law passed. No thought or a law amateur wrote this in the beginning and it should have been thrown out. Sheriffs departments and other law enforcement will be put in danger needlessly if they enforce it and this is the reason to protest this ongoing lawmaking abuse of power.
“Cuomo passed this law without due process and everyone knows this!” Actually a court has ruled on this and apparently due process was followed. A court has not yet ruled on the constitutionality of the law. Until a court says otherwise the law is constitutional.
Other affirmations sent to the court regarding the second case are ridiculous in my opinion. For example the DA from Nassau said that assault weapons with high capacity magazines are “not well suited to home defense”. Really? I don’t use guns to defend my home (with the way my guns and ammo are locked away separately I would be long dead before I could do any defending) but if I did use them for that purpose I would not mind having one of those guns, maybe even one with a night vision scope? It seems to me that the DA is dead wrong. Those guns are specifically designed for combat. If you choose to fight an armed intruder with a gun isn’t that combat??? Why would the best choice be my hunting rifle or shotgun? Like a duck I could ask the intruder to fly up and away from me. Or I could wait until he or she is standing still for a nice broadside shot like I want for a deer.
Well the law is the law and yes the local authorities are supposed to follow the law.
The fact is though we are a LONG ways from Albany, you can enforce all laws at various levels. In many counties drug laws are not pushed to hard particularly pot, the same will likely go for this law. It drives the control freaks down state crazy, but that is how things are done.
I think making it political and going on and on about it was very stupid, just let it ride. So you let someone go, so you don’t go nuts over a shotgun or don’t waste time checking to make sure some little gun shop has the right paperwork for its shotgun shells. Big deal, no one will know and it will save many dollars not running around trying to enforce stupid laws. Its already being done on other stupid laws. You can use it however to your advantage if you need to bust someone for something actually important you may be able to use this to get to them.
The whole idea of the system of the united states is the concept of balancing power. NOT all power to the government, and not anarchy. Minimal government power to main law and order.
The founders saw in a standing army a threat of being used for oppression as was know to be common in Europe. Therefore the militia was deemed to be a much saver form of DEFENDING the country.
The only armed authority to interact with the public was an elected Sheriff, who was given the ultimate authority in his county. The people can replace him if he oversteps or abuses his powers.
The second armed authority was the Marshal, who is below the Sheriff, and has no authority to directly interact with the public.
Every officer takes an oath to uphold and defend the constitution. Many laws come to be without even being read by congress or senate. The officer is the first line of defense of protecting us from unjust law. Very costly appeals to the supreme court are the second line of defense. Judges are the third line of defense. And the jury is the fourth line of defense. All four frequently fail miserably, and many violate their oath, not to endanger their careers. Only the Sheriff has an interest to do whats right for the people, because the people can hire and fire him.
As to the Juries, propaganda has done a great job to ridicule this highest obligation of a citizen, even promoting tricks on how “to get out of Jury duty”. If one stands in court facing unconstitutional, or unjust charges,his last hope is that a fair Jury looks at the facts AND the LAW, and says “NOT GUILTY” if they find the law unconstitutional or unjust, and cannot apply it in good conscience.
Consuming alcohol and harboring slaves were once a crime. When Juries stopped applying the law, the repeal of alcohol prohibition and the nullification of the slave harbor law ended the unjust practice.
Today we see an accumulation of power and force in the hands of government, with AR-15’s in the hands of IRS agents, and an endless number of agencies, of which congress would not be able to even produce a list of all of them. How can there be any balance of power.
Over 48,000 criminals and restricted people attempted to purchase guns. 44 were prosecuted., according to the head of NSA. Operation Fast and Furious put guns in the hands of criminals. Gun control is clearly not promoted for the stated purpose, it is to eliminate the balance of power. The result is by definition communism, where all power lays with the central government.
People are indoctrinated to trust and believe in the good of government, while there is historical guarantee, and everyday evidence, that the trust is not warranted, and the motives are not as pure as we want them to be.
The constitution was carefully drafted right after America escaped tyranny. We can be sure that the motivation to balance things out, back than were genuine. Today, we are exposed to politicians self interest, and a government that has largely eliminated all checks and balances.
The Sheriff is the last line of defense. If the Sheriffs fall, the country is no more.
PS: There is a hugh difference between Sheriff and Police. Don’t make the mistake to confuse that. The supreme court clearly found that the police’s job is NOT the protection of an individual.
PPS: For all those that wish the government would take care of everything, let me say this, the day we have people of high morals and integrity dominating the voting slips, that is the day when that would be thinkable. Candidates like Jesus, Mahatma Gandhi, and Mother Theresa come to mind, but they never made it, because no special interest group or company would invest a penny in their campaign.
PPPS: The constitution works best for all of us, if we elect those that are truly committed to uphold and defend it. It’s all we got, and if the constitution is lost, all is lost.
PPPPS: The constitution only works in its integrity. Messing with it has cause the balance to shift, and that is why we rent our houses, today, need licenses for everything, and government protects us from ourselves. There is no 1st without a 2nd, and everything else.