Erie County......still waiting. - Page 4
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Thread: Erie County......still waiting.

  1. #31
    Join Date
    Nov 2009
    Location
    Elma NY
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    Quote Originally Posted by Sights on Target View Post
    Section 400.00 of the NYS Penal Code, Paragraph 4-a

    4-a. Processing of license applications. Applications for licenses
    shall be accepted for processing by the licensing officer at the time of
    presentment. Except upon written notice to the applicant specifically
    stating the reasons for any delay, in each case the licensing officer
    shall act upon any application for a license pursuant to this section
    within six months of the date of presentment of such an application to
    the appropriate authority. Such delay may only be for good cause and
    with respect to the applicant. In acting upon an application, the
    licensing officer shall either deny the application for reasons
    specifically and concisely stated in writing or grant the application
    and issue the license applied for.

    Time for a lawyer?
    Got this from Legal Community Against Violence

    Licensing of Gun Purchasers / Owners

    New York generally requires anyone wishing to possess a handgun to first obtain a license, following a background check, that is valid for the purchase of one handgun only. N.Y. Penal Law 265.00 et seq., 400.00, 400.01. Applications must be made in the city or county where the applicant resides, is principally employed, or has his or her principal place of business. Section 400.00(3). Current photographs and fingerprints must be supplied with the application to facilitate the background check process. Id., section 400.00(4). Except upon written notice to the applicant, applications must be processed within six months. Section 400.00(4-a).



    Waiting Periods

    Although there is no specific waiting period in New York, all handgun purchasers must obtain a license to possess or carry a handgun, and such licenses may take up to six months to process (or longer, upon written notice to the applicant). N.Y. Penal Law 400.00(4-a).


    You are correct, it is time for a lawyer.

  2.   
  3. Any suggestions for a lawyer who specialzes in firearms issues in Erie county? How much do you think it would cost to get a lawyer to write a letter?

  4. #33
    Join Date
    Nov 2009
    Location
    Elma NY
    Posts
    1,638
    Quote Originally Posted by permitinNYtakesayear View Post
    Any suggestions for a lawyer who specialzes in firearms issues in Erie county? How much do you think it would cost to get a lawyer to write a letter?
    Well here is some more fodder.
    This is a quote from their website at
    http://www.erie.gov/depts/government...s_pistol.phtml

    Step 3 Please read and follow the instructions on the application carefully to avoid any unnecessary delays in the process. Applicants must come to our office in person when submitting the completed application. The processing time to receive a permit is approximately 6-8 months.

    Again, not to beat a dead horse but the Statute says:
    Except upon written notice to the applicant specifically stating the reasons for any delay, in each case the licensing officer shall act upon any application for a license pursuant to this section within six months of the date of presentment of such an application to the appropriate authority.
    Such delay may only be for good cause and with respect to the applicant. In acting upon an application, the licensing officer shall either deny the application for reasons specifically and concisely stated in writing or grant the application and issue the license applied for.

    By their own admission on the web site they are in violation of the statute.

    Not being a lawyer I don't see any wiggle room here. That is not to say that there isn't any.
    I mean what does this mean to you?
    Except upon written notice to the applicant specifically stating the reasons for any delay, in each case the licensing officer shall act upon any application for a license pursuant to this section within six months of the date of presentment of such an application to the appropriate authority.

    and then there is this next sentence;
    Such delay may only be for good cause and with respect to the applicant.
    I mean this is saying that only when there is reason involving the actual applicant can a delay be legal.

    And finally the last sentence;
    In acting upon an application, the licensing officer shall either deny the application for reasons specifically and concisely stated in writing or grant the application and issue the license applied for.

    To me this is saying that they must have cause and then state that cause to deny a permit. They cannot change the type of permit. If you applied for a permit to carry, they can not change it to 'hunting and sporting" which is exactly what they are doing.

    You know, the right to bear arms in not in the New York Constitution but rather in the Civil Rights Statutes, so I guess that leaves the FBI out as investigating a civil rights violation.
    So the State Police will have to investigate a process they are directly involved with..............probably a lost cause.

    Then I went to the Attorney Generals Web site.
    This is what is on the complaint form for civil rights -

    The Civil Rights Bureau enforces laws protecting New Yorkers from discrimination on the basis of race, creed, color, national origin, sex, religion, age, marital status, sexual orientation, predisposing genetic characteristics, military status or disability. The Bureau does not investigate or litigate cases on behalf of individuals, or against state agencies. The Bureau primarily seeks to change patterns, practices and policies of discrimination that affect groups of people.

    So State Agencies are immune from prosecution. Wonderful! They must really be overworked in Cummos office.

  5. #34
    The problem with the 6-month rule (NY Penal Law section 400.00(4)(a)) is that it is not practical to enforce because the existing controlling law in the Second Circuit is that the 2nd Amendment does not apply to the states.

    Thus, you can bring an Article 78 proceeding to force compliance with the 6-month rule and what you will get is "OK, we've made our decision - permit denied."

    More importantly, however, the 6-month rule is not at issue in this particular case because the licensing authority has already acted upon his application by approving it and notifying him of the approval.

    The 6-month rule does not apply to issuance of the physical permit.

    He can bring an Article 78 proceeding to force the county clerk to perform a ministerial act. But trying to work directly with the county clerk's office might be quicker and a whole lot less expensive (filing sfees alone will run about $300 for an article 78 proceeding.)

  6. #35
    The Penal Law has nothing to do with the second amendment. It only deals with NYS licensing requirements. The permit has not been issued. If the applicant has not received it, it has not been issued. The 6 month law does apply to issuing the permit. "the licensing officer shall either deny the application for reasons specifically and concisely stated in writing or grant the application and issue the license applied for."

    "and Issue the license applied for" means the physical permit.

    An article 78 has very short statues of limitation, usually 120 days from the date of an "Unfair Hearing." It may be too late in this case. But..it is worth a try.

    The filing fees are high in regards to the cost of a permit, but they will probably be cheaper than a lawyer. But as nogods said, it could very well get your permit denied.

  7. #36
    Quote Originally Posted by Sights on Target View Post
    The Penal Law has nothing to do with the second amendment. Second, the permit has not been issued. If the applicant has not received it, it has not been issued. The 6 month law does apply to issuing the permit. "the licensing officer shall either deny the application for reasons specifically and concisely stated in writing or grant the application and issue the license applied for."

    "and Issue the license applied for" means the physical permit.

    An article 78 has very short statues of limitation, usually 120 days from the date of an "Unfair Hearing." It may be too late in this case.
    The penal law is subject to the 2nd amendment if the 2nd applies to the states. If the 2nd doesn't apply to the states, then there is no constitutional right to a handgun license and no federal right to complain about being denied one. The state courts have ruled that licensing officers have almost unlimited discretion in denying a permit, short of being arbitrary and capricious

    The 6-month requirement does not apply to the issuance of the license, it only applies to acting upon the application.

    The statute of limitations for commencing an article 78 in the nature of mandamus (compelling a ministerial act) is 120 days from the date the county clerk refused to issue the license after a demand duly made. So if he is within 120 days of demanding issuance of the permit, he can still commence the article 78.

  8. #37
    Quote Originally Posted by nogods View Post
    The state courts have ruled that licensing officers have almost unlimited discretion in denying a permit, short of being arbitrary and capricious
    .
    You are right. That is why NY is a may issue state. In regards to the second amendment, you are right that it does not apply to the states. However, NY DOES issue permits. just because you don't have a federal right in NY does not mean it invalidates sections of the penal law. The 6 month law is on the books. Many states also have the second amendment in a state constitution bill of rights. NY is not one of those states, but again, that does not delete sections of the penal law. Because NYS issues permits and has a 6 month law on the books, officials are "supposed to" abide by it. Not to say that that is the case, but that is how it is supposed to be.

    "Article 78 cases have very short statutes of limitations (SOL), usually only four months or 120 days. There is some confusion as to when the four month time limit begins. Depending on which writ the case is pursuing, the SOL is either four months from the time when the determination is made or four months from the respondent’s refusal to perform its duty after a demand has been duly made" (Law Offices of Kevin P. Sheerin).

    I am not sure how you interpret the law does not apply to issuing a license when the law reads "and issue the license applied for." But after all, it is the law, and we can go back and forth all day as to what something means, or how something is interpreted. I go by what my lawyer tells me.

  9. Every county has the ability to deny and put restrictions.I asked a gun store employee who was familiar with Erie county pistol permit process.He said it was about a 9 month wait to get approved plus another 4 months to pick up your physical restricted permit.This is how they weed out the applicant's who get in trouble after the approved portion.It makes sense now,they give some extra time for the applicant to trip up.This could also apply to an applicant calling and asking what's taking so long.Many counties ask that you not call,your letter comes in the mail to come pick up your permit.I believe you should contact a lawyer to write a letter to the clerks office and ask what is the protocol after your approved.If you did not insult or make a rude comment during that time,you should be getting your permit.

  10. Quote Originally Posted by hunter won View Post
    Every county has the ability to deny and put restrictions.I asked a gun store employee who was familiar with Erie county pistol permit process.He said it was about a 9 month wait to get approved plus another 4 months to pick up your physical restricted permit.This is how they weed out the applicant's who get in trouble after the approved portion.It makes sense now,they give some extra time for the applicant to trip up.This could also apply to an applicant calling and asking what's taking so long.Many counties ask that you not call,your letter comes in the mail to come pick up your permit.I believe you should contact a lawyer to write a letter to the clerks office and ask what is the protocol after your approved.If you did not insult or make a rude comment during that time,you should be getting your permit.
    Same thing I'm hearing. If you complain, they put it at the bottom of the pile and you'll wait another six months. I've also heard some good things about the county clerk getting involved to motivate these people but who knows what to think these days. We shall see.

  11. Got the permit and so have many, MANY others! It seems that the county clerk has finally looked into the MESS called the Erie County Pistol Permit Bureau.
    I've heard the permits are flowing at high speed now.

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