NYSP dealer inspection update

In response to my yesterday blog/e-blast, information is starting to come in from dealers on their recent experiences with the NYS Police concerning the new (2022) laws affecting FFLs with NY-based retail outlets.

Here are the main touch points:

• DCJS ordered the NYSP to start dealer inspections by August 1, 2023

• NYSP delegated that responsibility to the “Joint Terrorism Task Force”

• The first dealer inspection, per the agent, took place July 25, 2023

• NYSP-JTTF agents are using a 4-page, 31 question checklist to conduct the inspection (click on link to download this form for FREE)

• NYSP-JTTF inspecting agents are not indicating the outcome of the inspection, nor are they saying what will happen next – for now the line is that they are using the inspection to contribute notes to a “White Board” and to report back to chain of command

• Thus far, I have confirmation of four inspections, all taking place in the counties that happen to be within the N.D.N.Y. federal court jurisdiction, which is home to the Gazzola v. Hochul federal civil rights lawsuit brought by FFLs (Update 08/14/2023: I have confirmation of additional inspections.)

• A “trial” of the new NYSP-POC background check system is being offered by e-mail to dealers to take place on August 18, 2023

• Per the NSSF e-mail (August 4, 2023), as of August 18, 2023 dealers and their employees can create accounts

• The NYSP hired a third party contractor for the background check system, and that company is believed to be NICUSA

Profile of how it’s going down at dealer locations:

 Agents walk in, saying they’ve gotten an e-mail that they have to start doing inspections, but have received no training and want dealers to “help” them figure out what to do;

 Agents show dealers the 4-page checklist and say that they just “made it up on their own” to help them try to look up some statutes;

 Agents tell dealers that the dealer input is “useful” and is “going to be put up on a White Board” back at their office to help them figure out how to do the inspections;

 Agents do not leave or offer for dealers to make copies of the notes that they take on their NYSP-JTTF 4-page compliance checklist;

 Agents say they don’t know what will happen next to the dealer, but it “should be okay” because the dealer has been helpful to the agents, who, portray themselves as the victim of the situation back at the office;

 Dealers do not receive anything in writing from NYSP-JTTF following the on-site inspection, as to whether they are going to be charged with failures of compliance or have their license suspended or revoked;

 Dealers are also being “selected” to be “invited” to sign up to be part of a test group of dealers for the new background check system.

What rights does a dealer have that are worth noting, in general terms – and now is the time to consult with your attorney to discuss your individual circumstances:

1. You have no obligation to respond to questions by the NYSP during an inspection. This is not the ATF and there are no state-level statutes or regulations limiting the resultant actions of the NYSP following an inspection the way that there is under federal law. Treat the inspection for what it is: a potential basis for criminal charges against you.

1a. Read the ACLU or the NYCLU website and print materials, if you’re looking for widespread, well-established information on how to communicate with law enforcement in a so-called “informal” conversation that could result in criminal charges.

1b. For those of you calling the NYSP on the telephone for information, I’ll repeat what I’ve been saying since the “SAFE Act” passed - and we can bemoan it all day long - the NYSP are an enforcement agency, tasked with identifying criminal conduct. It is not an administrative or assistance-forward ATF. Beware that whatever contact you initiate is available for their consideration concerning potential criminal charges.

2. Anything you say to the NYSP could be used against you in their reports and analysis, which could be transferred to a prosecutor’s office for further action. It would also potentially serve as admissible hearsay, at the least, as an “admission against interest.”

3. Failures to meet compliance mandates can be charged as an E felony. This is not a violation. This is not an administrative fine. This is a criminal charge.

4. You can ask to see the formal, agency-issued identification and badge of the agent or officer. You can also ask for their business card and to keep a copy of it.

5. You can call your attorney or even another person, including for them to join you on site with you during an inspection. The attorney might speak directly to the office and ask to schedule the inspection to another day or time when s/he can be present. You can ask the officer if he or she will kindly wait while that additional person arrives.

5a. Many of you are sole practitioners and/or are solo in your shops, and a number of the shops are based at homes and at remote (e.g., North Country) locations. The officer has a right of entry during regular business hours. Customers may walk in. The inspection may take more than an hour.

5b. If the officer is in plain clothes and an unmarked car, you can ask the officer to wait while you verify his identity. Call the number on his or her business card. Call the number of your local NYSP Zone Office. If the situation seems appropriate, we were always told as women that we could dial “911” to obtain officer identity verification.

5c. Given that our industry has detailed and long-standing relationships with our ATF agents, these drop-in inspections by strangers is going to be a marked shift.

6. You can take your own notes during the inspection. At the top of your page(s), you can jot down that it is “FOR MY ATTORNEY.”

7. You can take photographs or videos during the inspection.

8. If you have security cameras and recording capability, you should save the footage of the inspection, indefinitely. Back it up, and get a copy to your attorney.

9. At the conclusion of the inspection, you can ask the officer for a copy of their notes. If you have a photocopier or scanner, use it. You can even take phone photos. If the officer declines, simply make note of that.

10. After the inspection, go over your notes and make them as complete as possible. Contact your attorney. Make that your first call. You’re going to give the most information to the first person you call. That call will be your most complete narrative. If not an attorney and if you were unable to take notes during the inspection, make that first call to someone like a spouse, and have that person take detailed notes on your behalf.

11. Second, after the inspection, take photographs or videos of any area or item that is causing you anxiety, whether because you thought the officer was misinterpreting what he was seeing or because you thought the officer didn’t look thoroughly, etc. Capture a few images in case that visual aid is needed in your defense.

Final take-away points for today.

At least as the law is written (and without any regulations that were required of NYSP to issue, which they have not), there is no set process for what happens following an inspection, a deadline for filing charges, or a notification of the results of the inspection, status of your license, or filing of charges.

I’m continuing to ask that any dealers with information during this intense period to please send me a note/e-mail and allow me to set up a time for a phone call. The manner in which the NYSP and the DCJS and the Governor are pushing this out with no formal announcement would be unbelievable anywhere other than New York. I was not even given professional courtesy from opposing counsel, and our Gazzola v. Hochul lawsuit has been actively litigated in multiple courts since last November 1, 2022. There is an endless number of ways true agency leaders work with the firearms industry throughout decades of federal changes. Once again, New York politicians fail to do other than step upon those who are already partners with federal agencies to keep disqualified persons from obtaining guns through shops available to the law-abiding citizen. There’s no respect in Albany for the hard work we do to maintain federal compliance every day and there’s no respect from this Governor for the rulings of the U.S. Supreme Court.

You keep the information coming and I’ll keep aggregating it and sharing.