On January 15, New York Governor Andrew Cuomo made national headlines when he signed into law the New York Secure Ammunition and Firearms Enforcement Act of 2013 (the NY SAFE Act). In so doing, New York became the first state in the nation to amend its firearms legislation after the mass shooting on December 14, 2012, at Sandy Hook Elementary School in Newtown, Conn.
Gun control laws have always been a hotly debated issue. That said, the question remains whether the resulting legislation in New York was an appropriate response to the undeniably tragic events in Newtown. For us, the law takes steps in the right direction, but contains provisions that may reveal serious pitfalls in the future.
The New York law attempts to strike a balance between personal freedom and public safety and its stated purpose is to "protect New Yorkers by reducing the availability of assault weapons and deterring the criminal use of firearms while promoting a fair, consistent and efficient method of ensuring that sportsmen and other legal gun owners have full enjoyment of the guns to which they are entitled." The proponents of the law have applauded New York as a model for the entire nation. Opponents of the law have called it "draconian" and have argued portions of the law are arbitrary. Despite the strong feelings, stances and arguments on both sides, for New York residents, the effects of the law are unclear. Local counties have reported being inundated with calls and visits from residents with questions regarding the newly enacted legislation. In fact, New York even set up a website (www.nysafeact.com) that lists frequently asked questions (to be regularly updated) related to the new law.
The NY SAFE Act is sweeping legislation touching on numerous measures related to firearms and ammunition possession. The law includes provisions that:
• Expand the ban on assault weapons.
• Broaden the definition of what is considered an assault weapon.
• Require universal background checks for all gun sales, regardless of whether they are retail or private, person-to-person sales.
• Establish a statewide gun registry and a uniform licensing standard.
• Reduce the permissible size of magazines from 10 to seven rounds.
• Require gun owners to safely store guns if they live with someone within certain classes of individuals, including those who have been convicted of a felony or domestic violence crime, have been involuntarily committed, or are currently under an order of protection.
• Impose greater penalties on people who use guns in the commission of crimes, including mandatory life sentences for individuals who kill certain first responders.
• Aim to keep firearms away from mentally-ill individuals.
• Require mental health professionals to report to the state patients who exhibit behaviors indicating that they could be harmful to themselves or others.
• Permit confiscation of firearms owned by an individual reported by a mental health professional.
Several of the measures are appropriate and provide meaningful steps toward protecting New York residents by altering the rights and responsibilities of those who own and possess firearms. These include the requirements for background checks, secure storage and standardization of gun registry and licensing, all of which are intended to improve the tracking of firearms and precautions surrounding access to them. Similarly, the expansion of the ban on assault weapons (including broadening the definition of what is an assault weapon) and the reduction in the permissible size of magazines are directly aimed at reducing the level of harm caused by certain firearms.
Still, there are provisions in the law that totally miss the mark and create significant negative effects on individuals who have no connection to the purchase, sale, transfer or possession of firearms — mental health professionals. These aspects of the law are less frequently debated but make sweeping changes that will likely not contribute to the law's intended purpose, yet will negatively affect these professionals.
Specifically, the NY SAFE Act requires that, in the exercise of reasonable professional judgment, mental health professionals must file a report with the state if an individual they are treating is likely to engage in conduct that will cause serious harm to him or herself or others. After a mental health professional reports a patient, the state will determine whether a person licensed to possess a firearm shall have his or her license suspended or revoked.
First, this law is a major shift in the scope of confidentiality between patients and mental health professionals. Similar to the role of confidentiality in legal representations, patients, like clients, will be less likely to be completely honest if such honesty may be used against them. The confidentiality rules and laws are in place to encourage people to seek help when they need it and this law will clearly discourage people from doing so. This reporting requirement may deter patients from seeking the help of a mental health professional or from being completely forthcoming in their discussions with the mental health professional. An adverse consequence would be that those in need of treatment will not seek help in the first place, or may discontinue treatment, which may then lead to more, not less, violence when treatable mental health conditions are left untreated.
Second, this law places a heavy burden on mental health professionals. If you read between the lines, the implication here is that mental health professionals are tasked with identifying whether a patient might be the next mass shooting gunman, as well as reporting the patient to the state before he or she strikes. Still, the NY SAFE Act as written attempts to shield mental health professionals from liability for their actions/inactions under the law, and indicates that a good-faith decision about whether to report a patient will not be a basis for any criminal or civil liability. The goal of providing immunity for reporting mental health professionals under the act is laudable but difficult to achieve in practice. It is hard to guess or even imagine what level of deference would be applied to a mental health professional's decision not to report an individual. Hindsight is 20/20. What a court (of law or public opinion) would deem to be an exercise of good faith and reasonable professional judgment after a mass shooting similar to Newtown is hard to pinpoint and would likely be affected by factors outside the mental health professional's control or knowledge (such as the number of victims, age of other circumstances of the victims and whether the attempt was thwarted) at the time he or she chose not to report the patient. Consequently, mental health professionals might then be overinclusive in the number of patients they report in fear of incurring liability for an apparent failure to report.
Third, this law misses a crucial component regarding treatment after a patient has been reported to the state. The law should include a mandate that the patient continue to seek the help and treatment — the very treatment that allowed that person to be initially identified as a danger to him or herself or others. It is simply not enough to take away the guns the patient has at that moment without taking steps to address the patient's underlying mental health issues.
Still, while the New York SAFE Act has its flaws, New York should be commended for being the first state to respond to the trend of mass shooting gun violence in the aftermath of Newtown. A law this sweeping in nature, especially when it is the first to lead a new charge, will always have loopholes and unintended consequences that will only become clearer as time passes. The effects on confidentiality between the mental health professionals and their patients and laying the blame for the actions of an individual on a mental health professional are prime examples of some inappropriate consequences. We analyze this law with a very critical eye because these types of laws could become even more sweeping and could impact other professionals in the future. For instance, attorneys often face backlash when a crime is committed by someone who "slipped through the cracks," and it is not far-fetched to think that the legal profession will soon be blamed for the violence caused by guns.
Groups and individuals on both sides of this debate should recall the real focus of this law when assessing it: the tragedy of mass shootings. As lawyers, we realize that the New York SAFE Act is just the beginning — for New York and the nation as a whole. The enforcement and interpretation of the law will further define its effectiveness and, more importantly, whether it was an appropriate response to recent history. •
YL Editorial Board
Peter C. Buckley, Chairman
Leigh Ann Buziak
Shaune Ferrara
Teresa Jurgensen
Amber Racine
Preston Satchell
Royce Smith
Rob Stanko
Marisa Tilghman
Djung Tran
Nakul Warrier
Meredith Wooters
The Editorial Board of Young Lawyer is composed of members of the legal profession. They serve voluntarily and are independent of Young Lawyer. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. Members of the legal community are invited to contribute signed op-ed pieces.
