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Pistol License Application - Why Would I Need An Attorney?

The majority of the phone calls that I receive are from individuals who call me after they have submitted their pistol license application and have received a denial letter from the licensing authority – the Judge, the Sheriff’s Office or the Police Commissioner.

I think that we can all agree that the best approach to any situation that could end up producing negative results for us is to be prepared before we enter the arena. Having your ducks all lined up before you start shooting certainly increases your chances of success over shooting blindly into the dark.

In New York State, an individual seeking to obtain a pistol license must first purchase a firearm. If that individual has not already consulted an attorney for legal advice and direction regarding the pistol license application, while they are looking for the right firearm to purchase they will inevitably start asking the gun shop employees questions about the application process -- how long it will take to get approved, what their experience has been, what happens if they are denied and so on.

Questions about the pistol licensing process and the timing of a decision from the licensing officer…generally not a problem.

Problems – many of them serious problems - begin to arise when the gun shop employee begins offering you legal advice. Where is the line between legal advice and general banter about the application process?

Many gun shops charge a fee to assist applicants with filling out the New York Pistol/Revolver License Application. If you have a squeaky clean background, you most likely don’t need to pay anyone to fill out the application for you, let along charge you for it, as it is pretty self-explanatory. But, if you feel more comfortable having the gun shop fill out your application for you, that’s your call.

On the other hand, if you have ANY – and I mean ANY – issues that may give rise to the need for legal advice or a possibility of being denied, you should not be seeking legal advice from someone who is not a lawyer.

In fact, it is a misdemeanor in New York State to provide legal advice to another person if you are not, in fact, an attorney. See, N.Y. Judiciary Law § 478; Jemzura v. McCue, 45 A.D.2d 797, 357 N.Y.S.2d 167 (3d Dept. 1974), appeal dismissed 37 N.Y.2d 750, 374 N.Y.S.2d 624, appeal dismissed 37 N.Y.2d 786, 375 N.Y.S.2d 1031 (The purpose of prohibition against the practice of law by one who is not a duly licensed New York attorney is to protect citizens against dangers of legal representation and advice given by persons not trained, examined and licensed for such work). “The ‘practice’ of law reserved to duly licensed New York attorneys includes the rendering of legal advice…” El Gemayel v. Seaman, 72 N.Y.2d 701, 706, 533 N.E.2d 245, 248 (1988) (internal citations omitted).

What issues could possibly arise that would require legal advice? While there is a standard New York State Pistol/Revolver form to be completed when applying for a pistol license, each County in New York requires different information and each County has its own process, licensing officers, views on firearm possession itself, and so forth. Penal Law § 400.00 is actually a “shall issue” statute, but it also provides a host of mandatory enumerated disqualifiers (as well as a catch-all denial for “any good cause”) that may cause a denial of the application – and each licensing officer has his/her own idea of what “good cause” for a denial means as well.

The black and white issues that may automatically cause a denial of your application are a felony conviction, a conviction for a “serious offense” as defined by the Penal Law (which include misdemeanor drug possession), being involuntary committed to a mental institution, being addicted to drugs, and/or a dishonorable discharge from the military, among others. However, that is not to say that anyone with such a prohibitor will never be able to possess a firearm – there are legal procedures available to remove the barriers to firearm and long gun possession for such individuals.

Under Federal Law it is a crime to possess a firearm based on, among other conditions, a felony conviction, convictions for domestic violence related charges (even misdemeanors), adjudication as a “mental defective” or having been committed to a mental institution, receiving a dishonorable discharge, or where an individual is subject to an Order of Protection. However, like the state law disqualifiers, there are legal procedures available to remove the barriers to firearm and long gun possession for such individuals.

“Gray area issues” that are not specifically defined in the Penal Law or Federal Law but may also prevent approval of a pistol license application include any prior arrest (even where the charge was outright dismissed and/or Adjourned in Contemplation of Dismissal), medication usage (even if prescribed), therapy (even if there was no involuntary commitment), a family court proceeding or divorce, a CPS complaint (even if unfounded), excessive traffic tickets, any prior contact with law enforcement even if no arrest was made, living in a home with other individuals who are prohibited from possessing firearms...the list goes on and is not exhaustive as each applicant is viewed according to his/her own factual scenario.

Most important to remember: You will be submitting a document that you have sworn under the penalty of perjury is true. If the information that you provided is determined by the licensing officer and/or police agency performing the investigation to be false or misleading, you could not only be denied, you could be subject to criminal prosecution, you will be deemed an untruthful person (which means that you now do not meet the “moral character” requirement of §400.00 for a pistol license to be issued) and a denial on that ground will most likely remain in your file and be taken into consideration if and when you choose to reapply in the future.

Why not get it right the first time?

Depending on your County, any issue can be used to deny a pistol license application if the licensing officer so desires. That is not to say that a denial based on a “gray area issue” (or an objectively immaterial reason) is legal or just, but the value of legal advice from an attorney who regularly deals with Second Amendment and licensing issues in New York is absolutely invaluable because she will be able to spot not only the obvious “red flags”, but the potential issues that a licensing officer may fixate on and use to deny your application. She can attack and deflate the problem before it arises and provide the licensing officer with a positive view of your application supported by the appropriate legal arguments and the legal authority to back it up.

As any first year law student can attest – spotting the issues is 95% of the battle. Why not enter the arena armed and ready?

If you have any questions or concerns about whether you need legal guidance to navigate the pistol license application process, schedule an appointment to discuss your options before your options become severely limited.