A Year After the SAFE Act, Are We Safer?

On the cloudy morning of March 13 in the sleepy village of Mohawk, Kurt Myers walked into John’s Barber Shop on Main Street, had a brief exchange with the patrons inside, and opened fire with his Mossberg 590 12-gauge pump-action shotgun. The gunman killed two customers and wounded a third, as well as the shop owner. Then he crossed the Mohawk River to neighboring Herkimer, where within five minutes he murdered two more people at Gaffey’s Fast Lube.

By the afternoon Myers was holed up in an abandoned tavern on North Main Street, locked in a standoff with police that would end up lasting 19 hours. Early on in the stalemate Gov. Andrew Cuomo would arrive in Herkimer, where he surveyed the scene and met with State Police Superintendent Joseph D’Amico.

The next morning, federal and state law enforcement officers stormed the building. Myers killed an FBI dog in the ensuing melee, before he was overtaken and shot to death.

The 64-year-old Myers had been a loner in the tiny town of Mohawk, where he lived. State police would say that he had little contact with his family and that few people in the area knew him. But by the end of the ordeal Myers would be known as the perpetrator of the first major shooting spree in the state since the New York Secure Ammunition and Firearms Enforcement Act was passed almost exactly two months before.

“In the darkest of times, the bravery, kindness, and the spirit of community of New Yorkers shines the brightest, and that is what we saw yesterday in Herkimer and Mohawk as the community came together during this difficult time,” Cuomo said in a statement on the day Myers was killed. “The thoughts and prayers of my family and of all New Yorkers are with the friends and loved ones of the victims.”

The governor made no mention of the legislation he had successfully championed, nor did he point to Myers’ rampage as evidence as to why it was needed, or use it to push for further strengthening of the law.

Still, the connection was unavoidable. The SAFE Act had been drafted to reduce the likelihood of just such a tragedy from occurring. The Sandy Hook massacre in Newtown, Conn., roughly three months earlier, had prompted Cuomo and the state’s legislators to leap into action and capitalize on public sentiment to pass the toughest gun control legislation in the nation.

In the wake of the shootings in Mohawk and Herkimer, one question naturally arose—a question that on the one-year anniversary of the SAFE Act’s passage is worth revisiting—has the SAFE Act actually made New York safer?

Three key elements make up the SAFE Act, which was signed into law by the governor on January 15, 2013, and each one can be traced back to the massacre in Newtown a month earlier.

First, the act strengthens the state’s regulation of assault weapons by more strictly defining what constitutes one, banning the purchase of rifles with assault-weapon characteristics and requiring the registration of all existing assault weapons. Second, the legislation prohibits high-capacity magazines, and, in a controversial provision that has spurred intense legal debate, limits gun users to seven rounds in a magazine. Third, it includes provisions to take guns out of the hands of people deemed by mental health professionals to be unfit to own a weapon.

Other key parts of the bill include the Webster Provision—a name derived from the slaying of two firefighters who showed up to fight a Christmas Eve fire in the small town of Webster outside of Rochester—which makes killing a first responder punishable by life in prison without parole. The SAFE Act also increases the penalty for having an unregistered handgun, raising it from a misdemeanor to a felony. And similar to the mental-health portion, it contains a provision to keep guns out of the hands of criminals. Additionally, the law increases the scrutiny of gun sales, requiring background checks for all weapon and ammunition purchases.

A year later, figures indicate that the stricter rules are being enforced, leading to a number of arrests for new crimes and for crimes made more serious by the act. In December the Division of Criminal Justice Services announced that 1,155 people had been charged with a felony for illegal gun possession, which would have previously been a misdemeanor. Twenty-six people were arrested for felony criminal possession of a weapon on school grounds, a charge newly created by the law. Fifty-nine people were charged for either having a high-capacity magazine or for the controversial seven-round provision, although that part of the law was thrown out by a federal judge in late December.

There were 105 violent gun crimes reported by the state police between January and October of 2013, DCJS statistics show—a slight uptick from the 100 violent gun crimes during the same period in 2012. In general, over the past 10 years the annual number of violent gun crimes has remained relatively flat, fluctuating between a low of 113 in 2004 and a high of 171 in 2009. Since then, the number has steadily declined, dropping to 126 in 2012.

But do the figures mean that New Yorkers are any safer? For his part Cuomo seems pleased with the statistics. He said in early January that he did not believe people had actually looked at the SAFE Act’s impact and the number of arrests—especially for illegal gun possession in New York City, which accounted for 1,041 of the 1,155 felony charges statewide.

“I do think the effect of the law is a story that hasn’t been told and is just shocking on the numbers,” he said during a Q&A in the Red Room at the Capitol earlier this month.

Cuomo’s office declined to directly answer specific questions for this article, but did provide past statements he has given regarding the act.

Not everyone seems ready to declare the law a demonstrable success. Robert Spitzer, a gun policy expert and chair of the SUNY Cortland political science department, said that the statistics over the past year tell an incomplete story.

“The correct answer is it’s too soon to tell exactly what effect it has had and will have,” he said.

Spitzer pointed to provisions that could lead to someone with a disease like Alzheimer’s or a debilitating physical condition losing the right to own a handgun license, which he deemed a positive development. In terms of safety, taking guns out of the hands of people who should not handle them makes sense, he said; the effect is just not statistically perceptible.

“Those are safety measures,” he said. “But you are not going to see any immediate effect of them any time soon. But are they sensible to do? I would say so.”

“It’s very long-term, and not something that will show up in crime statistics,” he added. “But it is something that benefits public safety.”

Some ratings and surveys also support the law’s effectiveness. In December New York received a B+ from the Law Center to Prevent Gun Violence and the Brady Campaign in the groups’ state report cards for gun safety, up from a B in 2012 before the SAFE Act was passed. Days later the grade was bumped to an A- after lobbying from gun control groups, putting New York at the top of the list along with California, Connecticut, New Jersey and Maryland. The same month the New York State School Boards Association released data showing that roughly six in 10 superintendents felt their schools were safer than they had been the previous year.

Gun control advocates say such evidence demonstrates that the SAFE Act’s “common sense” reforms are working.

“You have a Second Amendment right. And at the same time, society also has the right to protect itself,” Cuomo said at a Police Athletic League of New York City dinner in June. “And that’s what our New York SAFE Act says.”

Staunch opponents of the act, who view it as an infringement on Constitutional rights, charge that the law fails to live up to its name, however.

“The SAFE Act was not meant to reduce crime or prevent tragedy,” said Bill Nojay, a Rochester area assemblyman who has been one of the law’s most vocal opponents. “It was meant to gut the Second Amendment. There is nothing in the SAFE Act that would have prevented another Sandy Hook.”

New York State Rifle and Pistol Association President Tom King said that statistics show that legal and lawful gun owners are not committing gun crimes, and that the majority of offenders are criminals. He added that the only thing that could stop illegal gun-related crimes are penalties so severe that criminals think twice about using a gun.

Even some officials whose job it is to enforce the laws are unconvinced that the state is any safer.

While State Police Superintendent D’Amico, a Cuomo appointee, said in April that as a police officer it is not up to him to interpret laws, others in law enforcement, like Erie County Sheriff Timothy Howard, have been vocal critics. Howard was re-elected in November after a campaign that stood out for a comment he made about declining to enforce the SAFE Act. Howard said the law is ambiguous and that some gun owners cannot figure out if the guns they own are legal.

He said elected officials squandered an opportunity to take meaningful steps to stop gun violence. Instead, he said, lines were drawn in the sand, and few people on either side of the debate have objectively examined the law’s strengths and weaknesses.

“I have stayed open-minded, and I do recognize there are some good things with the law,” Howard said. “But the amount of resources that have been expended have done little, if anything, to make it safer.”

Specifically, the provisions aimed at keeping guns, especially illegal guns, out of the hands of criminals may not be having an effect. The state’s borders are open, and those who want to make the trek could easily travel to a state with more lenient laws and bring an assault weapon back. There is also the so-called “iron pipeline,” a route along which guns are funneled from southeastern states into New York City.

Cuomo has acknowledged that a majority of the state’s illegal guns come from outside the state, yet enforcement can be tough.

“You can’t seal off the borders to New York,” said Dan Feldman, a professor at John Jay College of Criminal Justice.

As a result, laws like the SAFE Act can ultimately only have a limited impact, Feldman said. Stopping the illegal gun trade is a problem for lawmakers in Washington, D.C. to handle by hitting gun manufacturers with steep fines if they sell to the gun distributors who break the law, he said. When Eliot Spitzer was attorney general he went after gun manufacturers, claiming negligence. But efforts to sue manufacturers for negligence in violent gun crimes were stymied by Congress’s passage in 2005 of the Protection of Lawful Commerce in Arms Act.

Even Leah Barrett, the executive director of New Yorkers Against Gun Violence and one of the most vocal supporters of the SAFE Act, agreed that a federal law would be the most effective way to improve public safety.

“With the federal government not acting, it’s fallen to the states to take action,” Barrett said. “That’s why Gov. Cuomo and the Legislature passed the New York SAFE Act nearly a year ago. Because they felt that as New Yorkers we have to do something. … But to really have an impact, we need to close these loopholes in our federal laws. When is Congress going to step up to the plate and protect all Americans from unnecessary levels of violence? I don’t know. Hopefully it will happen soon.”

Andrew Cuomo’s stance on guns dates back to long before he became governor.

At the turn of the century, when Cuomo was secretary of U.S. Housing and Urban Development, he spearheaded several gun control efforts, including a safety agreement he and then Treasury Secretary Lawrence Summers signed with Smith & Wesson to adjust the design, distribution and marketing of guns.

The agreement required the company to install mandatory gunlocks and other child-safety devices on its firearms, to ban gun sales without background checks and to limit multiple handgun sales. It also required the company to introduce “smart gun” technology on all new handguns, allowing only authorized users to fire the weapons.

Cuomo also put together the Communities for Safer Guns Coalition to encourage gun manufacturers to adopt policies like the ones to which Smith & Wesson had agreed. The coalition, which included local governments throughout the country, pledged to give preference when purchasing firearms for law enforcement to gunmakers who adopted similar policies, according to HUD’s website.

However, those efforts, which came at the end of President Bill Clinton’s tenure, were not enforced by the next administration.

Some sources close to Cuomo say that guns have been on his mind ever since.

On a sunny day in December 2012, Adam Lanza shot his way into Sandy Hook Elementary School in Newtown, Conn. with a Bushmaster assault rifle and killed 20 children and six adults inside. The massacre, which lasted just 10 minutes, immediately put gun control at the top of Cuomo’s agenda.

“While we don’t have all the facts and our focus must be on the victims, this is yet another senseless and horrific act of violence involving guns,” Cuomo said in a statement on the day of the Sandy Hook shootings. “We as a society must unify and once and for all crack down on the guns that have cost the lives of far too many innocent Americans. Let this terrible tragedy finally be the wake-up call for aggressive action, and I pledge my full support in that effort.”

Politically, it was a powerful moment to act. One source close to the Cuomo administration said the governor was not about to let go to waste the heightened reaction to gun violence brought about by Sandy Hook and the shooting in Webster a little more than a week later.

“There are certain moments that allow you to galvanize the public,” said the source, who declined to speak on the record because of the sensitive nature of the topic.

In the wake of Sandy Hook, talks among legislators struck up immediately, said Senate Independent Democratic Conference Leader Jeffrey Klein, who was a chief sponsor of the legislation.

Looking back nearly a year later, Cuomo said in a January press conference that the law was a compromise, and that not everyone got all the pieces they wanted.

Some lawmakers say they knew nothing about the bill’s contents until it hit the floor of both houses under a message of necessity from the governor, a tactic that put pressure on legislators to move quickly—and they did. Just three days into the 2013 legislative session, the bill had passed and was signed into law.

That swiftness brought criticism, especially from opponents of the SAFE Act.

“Every single Republican said this legislation is poorly conceived, poorly drafted, unworkable and unenforceable,” Nojay said.

Opponents accused the governor and other state officials of simply wanting to be first to stamp the state’s name on new legislation after Sandy Hook. Meanwhile, some supporters defended the speed of the legislation as a positive factor because it helped ensure its passage.

Klein argued that New York has always been a leader in implementing important pieces of legislation, and said he was proud that state lawmakers passed what he called “the toughest, most comprehensive” gun legislation in the country. Cuomo has labeled the state a leader on progressive legislation, saying at an appearance in June that the state has led the way every time the country needed to move forward.

“I was pleased to play a small part of that on the issue of gun safety,” he said.

Before Oct. 12, Paul Wojdan was just another legal handgun permit holder living in New York.

After that day, he was a rallying point, with opponents of the SAFE Act citing his story as proof that aspects of the law are nonsensical.

Wojdan was arrested for allegedly having more than seven rounds of ammunition in his clip after police searched his gun, which he legally owned, during a traffic stop of the car in which he was riding. Wojdan became the first person whom the Lockport Police Department arrested under the SAFE Act.

Wojdan’s lawyer, Jim Tresmond, has claimed that police should not have checked the magazine in a legally owned gun, and instead simply have returned the weapon to Wojdan.

The arrest was neither the first nor the last example of the legislation’s gray area. Uncertainty as to how certain provisions of the act would actually be enforced has persisted since its passage. Even Superintendent D’Amico acknowledged in April that the new law was a little confusing. In September the state police released a 20-page field guide for troopers to help them understand each part of the law and how to enforce it. Still, not all of the act’s ambiguities have been clarified.

Take the mental health provision of the law. Its aim is to keep guns out of the hands of the mentally ill by tasking mental health professionals with evaluating if a gun owner should continue to possess any firearms. If a mental health professional makes the determination that a patient should not be allowed to do so, the recommendation is submitted to the Division of Criminal Justice Services, which makes the final decision as to whether to revoke a permit.

But not all guns require permits. While an April 15 deadline is fast approaching for owners to register assault weapons, and handguns have long been on a permit-only basis, some shotguns and rifles—so-called “sport guns”—are still legal to own without a permit. Moreover, even though background checks are now required for the purchase of all guns, illegal sales persist.

Additionally, in an emergency situation, mental health records, which are protected under federal health regulations, are not immediately available to law enforcement. One retired law enforcement official from the North Country, who asked not to be named because the source still works part-time in law enforcement, laid out a scenario in which a driver is pulled over and has a legal shotgun in the back seat. Officials can check for a criminal history and for any gun permits or permit revocations— something that would lead to the revocation of all other firearms—and even to make sure the gun is legal.

But access to mental health records to determine if it is safe for the driver to have the shotgun is blocked by red tape that cannot be cut through on the scene.

“Say [the driver] goes down the road and peppers my house because I just pulled him over. Or he walks into the police station and shoots the place up. Or he went home and shot his mother. Because that [mental health] information is not available to police, they can’t stop them,” the official said.

Last month the seven-bullet limit that got Wojdan arrested was thrown out in a court ruling. A federal judge in Buffalo upheld most of the SAFE Act, but rejected the provision limiting how many bullets could be loaded into a 10-round magazine. Initially some in the law enforcement and legal communities wondered if the limit were nonetheless enforceable outside of Western New York, where judge William Skretny issued his ruling, but Cuomo subsequently announced that until another court hears an appeal and makes a ruling on Skretny’s decision, 10 bullets is again the law of the land all across the state.

Finally, there is the matter of voluntary enforcement. After April 15 it will be a crime to own an unregistered assault weapon, but this prohibition seems to have provided little incentive for people to stop buying these weapons, let alone register them. Nojay said he believes there are more assault-style weapons in New York than there were a year ago. Not because people are trying to stick it to the government, he said: It is simply a matter of supply and demand.

Even within the state, sales are ongoing, including of AR-15 assault rifles.

“The governor has not decreased AR-15 sales. What he’s done is to push AR sales underground,” Nojay claimed. “So rather than 1,000 guns a month being sold through [Federal Firearm Licensees], you now have them being sold out of guys’ cars and garages, or people go into other states and buy them and bring them in.”

It is unclear how effective mandatory registration has been. Cuomo and the state police have refused to release the number of assault weapons already registered. King estimated there are between 1 million and 2 million assault rifles throughout the state. Of those he could not say how many may already be registered, though he has heard from people who say they do not plan to comply with the requirement.

“If there were a large number that were already registered, I think that number would already be out there for everybody to see that the law was being complied with,” King said.

Political observers viewed Cuomo’s 2014 State of the State address as the tone setter for a year in which he is seeking re-election.

If that is the case, don’t expect the SAFE Act, or gun control in general, to figure heavily into his re-election rhetoric.

In a 67-minute, 8,700-word speech, Cuomo used the word “gun” in only two sentences. The first was at the start of the speech, when he looked back at the state’s accomplishments under his stewardship. A brief mention of “common sense gun reform with the New York SAFE Act” made the list.

The other place the governor used the word gun?

In the turn of phrase “going great guns” to refer to a North Country manufacturer.

Another instance of the governor apparently downplaying the act was a mailer sent from his office in December to New Yorkers across the state summing up his work in 2013. The front page touts reducing gun violence as one of Cuomo’s top accomplishments of the year, but only one paragraph of the eight-page year-in-review is devoted to the SAFE Act.

At least one state lawmaker was not surprised the governor is not focusing more on the SAFE Act or gun control.

“This was a big issue for him last year, so maybe he figures he’s done what he’s done on it,” said state Sen. Cecilia Tkaczyk, whose district includes parts of the Mohawk Valley and Capital Region.

Some insiders have noticed that Cuomo has been mum on the SAFE Act unless prompted to speak about gun control in response to shootings or questions from the press.

Assemblywoman Claudia Tenney, whose district includes Mohawk, said it has seemed like the governor has avoided the issue for the past year and will likely skirt it again in 2014.

“If no one is asking the questions, he’s not going to volunteer the answers,” she said.

Politically, steering clear of the issue may be a smart move. Focusing on the SAFE Act has been a boon for some elected officials, but mainly those who are its critics. Sheriff Howard’s re-election bid was bolstered by his statement that he wouldn’t enforce the SAFE Act, and he is now serving a third term in Erie County.

In last year’s Westchester County executive race, Democrat Noam Bramson went after the incumbent Rob Astorino in a TV spot that said the Republican was against the ban on assault weapons and high-capacity magazines, and that Astorino helped bring gun shows back to the county, “making it easier for criminals and the mentally ill to buy guns.”

At the time, a spokesperson for Astorino dismissed the ad as a “Hail Mary” that tried to inject a national issue into a race that had little to do with gun laws. Astorino went on to win with a commanding 56 percent of the vote, and is now a potential candidate for governor.

Despite the governor’s reluctance these days to call attention to the SAFE Act, legal issues could move it back into the political spotlight over the course of the coming year. Skretny’s ruling will not be the last. King has called the judgment the first step on the way to the Supreme Court, and an appeal has already been filed. The state has also filed an appeal to the bullet limit Skretny shot down.

Still, Robert Spitzer said the SAFE Act is popular across the state, politically speaking, with 60 percent of residents continuing to support it. Its sizeable backing bodes well not only for Cuomo’s re-election chances, but also the lifespan of the law.

“What you’ve seen in the last year is at least 11 states enacting tougher gun laws, and then 15 or 20 states enacting weaker gun laws around the country. So the liberal states have tended to favor stronger gun laws and the more conservative states have gone in the opposite direction,” Spitzer said. “[The SAFE Act is] under challenge in the courts, and it may go to the Supreme Court, but barring court decisions striking down part or all of it, I think [it] will be on the books 10 years from now in New York.”

Ten years from now, however, the governor may no longer be living most of the year in New York. Speculation has long swirled that Cuomo could be the Democratic pick for President in either 2016 or 2020.

Despite the talk, does Cuomo’s appetite to take strong stands on contentious issues like gun control and gay marriage actually telegraph that his focus, at least for now, is not on the White House, since some of the bills passed during his tenure as governor could wind up being recast to his disadvantage once he is in the national spotlight, especially in states where they would be unpopular?

Spitzer, for one, is not convinced that Cuomo’s moves mean that he is discounting a pursuit of the Oval Office. “I believe that Cuomo has made a deliberate decision that his political persona would consist of social liberalism and economic conservatism—at least in moderation,” he said, “because on issues like gay marriage and gun control, for example, his public positions are squarely in line with most Americans—and certainly most New Yorkers.”

The political science scholar added that he thinks the governor believes that in the long-term the public will continue moving toward supporting socially liberal causes.

“On gay marriage, at least, this is already happening, and at a rapid speed,” he said. “So I think he sees himself as with the tide of future political trends, not against it.”

The immediate future, of course, includes the fewer than 11 months until Election Day. That date will fall around hunting season, when guns will be close by for voters passionate about the sport both upstate and downstate.

For single-issue voters, that proximity could make a difference at the polls.

“Those who feel that the worst thing that has ever happened is the passage of that bill will never vote for Gov. Cuomo, and wouldn’t vote for anybody who voted for the bill,” North Country Assemblywoman Janet Duprey said. “There’s going to be that pocket of people.”

But Duprey said she talks with legislators who still believe the SAFE Act is the best bill for which they have voted, and their constituents looked for “yes” votes perhaps as much as her constituents looked for a “no” vote.

Then she offered a question likely to be repeated for months to come, as focus on the SAFE Act comes and goes.

“Who’s going to balance out in November?” she said.