Open carry in Upstate NY

[homerfire232]

I hope I can get some good insight on this....I have done alot of research, and I don't find any law regarding open carry in my area. My permit says permission to carry a handgun, no restrictions. I even called the county clerk and she said, just keep it concealed...no explanation. The same for the state police, they said to avoid any headaches keep it concealed. If there is no law regarding this, why is it an issue to open carry. Sure, people may react differently, but Im from a small rural area, and I don't see it becoming a major issue. Please give me some advise, its not that I want to start something here, its just more comfortable to open carry at times.

 

[homerfire232]

Can anyone give me some information about open carry in New York State. I have found no laws or provisions saying open carry is illegal here. The under sherriff in my county said because I have a permit with no restrictions, I can carry however I want, even open. Please give me some insight on any laws.

 

[huddydrvr]

Your undersheriff friend needs to research the NY State code. NY law has no provision for open carry. All carry in NY state is concealed carry. I think the only time you can open carry is while hunting or target shooting, but perhaps there are other exceptions such as hiking or fishing. I've never checked since I don't intend to open carry. Open carry when outside on your own property is problematic; if you are in sight of a road or another residence you might have some difficulty.

An unrestricted permit is a permit to carry concealed anytime and anywhere it is not otherwise specifically forbidden (such as in Federal buildings or schools). Most of us with NY carry permits have recreational restrictions, which means the issuing judge has decided that outside of our own residences, we can only carry while hiking, hunting, or at the range, or traveling from home to those types of activities. The restriction is administrative and does not carry weight of law, meaning that someone carrying outside of his restriction cannot be arrested and charged with a crime, but the issuing authority could revoke the permit. Not so for open carry; you could be arrested and charged with "menacing", which could be a misdemeanor or a felony, depending upon the situation. Not a good thing.

Hope this answers your question. You can Google search the topic and get a lot of information (some of which is valid). YMMV.

 

[mrjam2jab]

Your undersheriff friend needs to research the NY State code. NY law has no provision for open carry. All carry in NY state is concealed carry. I think the only time you can open carry is while hunting or target shooting, but perhaps there are other exceptions such as hiking or fishing. I've never checked since I don't intend to open carry. Open carry when outside on your own property is problematic; if you are in sight of a road or another residence you might have some difficulty.

An unrestricted permit is a permit to carry concealed anytime and anywhere it is not otherwise specifically forbidden (such as in Federal buildings or schools). Most of us with NY carry permits have recreational restrictions, which means the issuing judge has decided that outside of our own residences, we can only carry while hiking, hunting, or at the range, or traveling from home to those types of activities. The restriction is administrative and does not carry weight of law, meaning that someone carrying outside of his restriction cannot be arrested and charged with a crime, but the issuing authority could revoke the permit. Not so for open carry; you could be arrested and charged with "menacing", which could be a misdemeanor or a felony, depending upon the situation. Not a good thing.

Hope this answers your question. You can Google search the topic and get a lot of information (some of which is valid). YMMV.

If there is no mention of open carry in the statute then it is not prohibited....making it legal by default.

Average person falls under subparagraph 2(f) in the statute.

NY PENAL Code 400.0

2. Types of licenses. A license for gunsmith or dealer in firearms
shall be issued to engage in such business. A license for a pistol or
revolver, other than an assault weapon or a disguised gun, shall be
issued to (a) have and possess in his dwelling by a householder; (b)
have and possess in his place of business by a merchant or storekeeper;
(c) have and carry concealed while so employed by a messenger employed
by a banking institution or express company; (d) have and carry
concealed by a justice of the supreme court in the first or second
judicial departments, or by a judge of the New York city civil court or
the New York city criminal court; (e) have and carry concealed while so
employed by a regular employee of an institution of the state, or of any
county, city, town or village, under control of a commissioner of
correction of the city or any warden, superintendent or head keeper of
any state prison, penitentiary, workhouse, county jail or other
institution for the detention of persons convicted or accused of crime
or held as witnesses in criminal cases, provided that application is
made therefor by such commissioner, warden, superintendent or head
keeper; (f) have and carry concealed, without regard to employment or
place of possession, by any person when proper cause exists for the
issuance thereof;

 

[Rocketgeezer]

Can anyone give me some information about open carry in New York State. I have found no laws or provisions saying open carry is illegal here. The under sherriff in my county said because I have a permit with no restrictions, I can carry however I want, even open. Please give me some insight on any laws.

Better have you undersherriff friend write you up a letter saying so, and have it signed and notorized, out in the sticks or hunting I dont think there would be a problem, but carry anywhere around town and you will probably go to jail and lose your gun, and if enough crap was stired up over it you would probably lose your permit, New York state does what they want, and have for a long time

 

[nogods]

If there is no mention of open carry in the statute then it is not prohibited....making it legal by default.

Average person falls under subparagraph 2(f) in the statute.

NY PENAL Code 400.0

It is illegal to posses a handgun in New York State except to the extent allowed by law - thus the default is no carry of any sort. You can only get a concealed carry permit, so if you open carry you are violating the handgun law because you don't have a permit for open carry.

 

[homerfire232]

Your undersheriff friend needs to research the NY State code. NY law has no provision for open carry. All carry in NY state is concealed carry. I think the only time you can open carry is while hunting or target shooting, but perhaps there are other exceptions such as hiking or fishing. I've never checked since I don't intend to open carry. Open carry when outside on your own property is problematic; if you are in sight of a road or another residence you might have some difficulty.

An unrestricted permit is a permit to carry concealed anytime and anywhere it is not otherwise specifically forbidden (such as in Federal buildings or schools). Most of us with NY carry permits have recreational restrictions, which means the issuing judge has decided that outside of our own residences, we can only carry while hiking, hunting, or at the range, or traveling from home to those types of activities. The restriction is administrative and does not carry weight of law, meaning that someone carrying outside of his restriction cannot be arrested and charged with a crime, but the issuing authority could revoke the permit. Not so for open carry; you could be arrested and charged with "menacing", which could be a misdemeanor or a felony, depending upon the situation. Not a good thing.

Hope this answers your question. You can Google search the topic and get a lot of information (some of which is valid). YMMV.

I don't think I would be charged with menacing.....

S 120.13 Menacing in the first degree.
A person is guilty of menacing in the first degree when he or she
commits the crime of menacing in the second degree and has been
previously convicted of the crime of menacing in the second degree
within the preceding ten years.
Menacing in the first degree is a class E felony.

S 120.14 Menacing in the second degree.
A person is guilty of menacing in the second degree when:
1. He or she intentionally places or attempts to place another person
in reasonable fear of physical injury, serious physical injury or death
by displaying a deadly weapon, dangerous instrument or what appears to
be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or
2. He or she repeatedly follows a person or engages in a course of
conduct or repeatedly commits acts over a period of time intentionally
placing or attempting to place another person in reasonable fear of
physical injury, serious physical injury or death; or
3. He or she commits the crime of menacing in the third degree in
violation of that part of a duly served order of protection, or such
order which the defendant has actual knowledge of because he or she was
present in court when such order was issued, pursuant to article eight
of the family court act, section 530.12 of the criminal procedure law,
or an order of protection issued by a court of competent jurisdiction in
another state, territorial or tribal jurisdiction, which directed the
respondent or defendant to stay away from the person or persons on whose
behalf the order was issued.
Menacing in the second degree is a class A misdemeanor.

S 120.15 Menacing in the third degree.
A person is guilty of menacing in the third degree when, by physical
menace, he or she intentionally places or attempts to place another
person in fear of death, imminent serious physical injury or physical
injury.
Menacing in the third degree is a class B misdemeanor.

 

[Midnight]

Let me remind you of a case in California where a certain man with a concealed carry permit absolutely insisted he was well within his legal right to open carry. He was warned several times by police before getting his carry permit revoked. You may very well within your right to open carry, but I'm going to say that the pragmatic conclusion would be to not open carry at all in public outside of what's considered recreational. New York is not a very gun-friendly state.

 

[huddydrvr]

Fact is, in NY it is illegal for anyone over 21 to even handle an unloaded pistol without a permit. This is why if you go to a gun shop you must show your permit before handling any pistols on display. Since the only permits are for concealed carry, that is only type of carry permitted in NY.


Now, I've taken 3 (three) pistol safety classes from 3 (three) different instructors, and I've also extensively discussed the rules with my gunshop proprietor, who is also a retired NY State Trooper and firearms instructor. They have consistently stated that open carry is not permitted except in very limited circumstances, which I mentioned above. No doubt this is a combination of criminal code and caselaw.

I believe you would be charged with menacing if you open carried publicly. You could certainly be shown to be deliberately carrying and attempting to intimidate others (even if that's not really your reason), which is the misdemeanor version. You would probably lose your permit and have all your pistols confiscated (the issuing official actually can do that even if you are not charged with anything). As others have pointed out, New York is not gun-friendly and the average person is not very comfortable with the concept of private citizens carrying firearms for other than hunting. The rural counties may be a lot more reasonable but the law is the same statewide.

I'm not ready to test the law and try to open carry; but if you are, be my guest.

 

[nogods]

NY Penal Law sections 265.01 et seq contain the sections defining criminal possession of firearms and other weapons. Open carry in NY and you would be violating one of those provisions because your permit can at most authorize concealed carry. Thus you would not have an exception to the general rule to protect you from prosecution.

You could still claim the second amendment authorizes you to open carry without a permit to do so but you'd be taking a big risk. Besides, there will many real criminals making that argument while trying to overturn weapons possession charges, so why take the risk yourself. Let them suffer the consequences if their arguments fail.

 

[twogunwilly]

I know a lot of people, including myself who have open carried during hunting season (all season) in town, in stores and diners and have never thought of it as illegal. It's just something we do and it doesn't seem to bother anyone. It for sure is the most comfortable way to carry.

 

[rheaj]

It is illegal to posses a handgun in New York State except to the extent allowed by law - thus the default is no carry of any sort. You can only get a concealed carry permit, so if you open carry you are violating the handgun law because you don't have a permit for open carry.

This is the key. The very first New York law about handguns, is that ALL carrying of handguns is illegal (265.01). Then there are a bunch of laws that allow carrying of handguns under certain conditions. Each type of license described in 400.00 states "have and carry concealed."

The absence of a specific law banning open carry does not make it legal by default. Rather, the absence of a specific law allowing open carry, makes it illegal by default.

Of course, the extend to which this law is enforced depends greatly on your community, and the law enforcement in that community. If the posted speed limit is 45, but no one is ever issued a ticket unless they go over 65, that doesn't make the legal speed limit 65. Technically open carry is illegal in NY, even if it is an accepted practice in your community.

 

[Midnight]

The absence of a specific law banning open carry does not make it legal by default. Rather, the absence of a specific law allowing open carry, makes it illegal by default.

Not true. The legal system is designed in restrictions. There's no law saying that you're allowed to breath. Does that make it illegal? Plus Nevada doesn't have a specific law making open carry legal, but it's de facto legal. States without specific statutes allowing open carry are called "free carry" states.

 

[rheaj]

I can't speak to the laws of other states. The question was posed about New York specifically, and I'm only talking about what I understand NY law to be (and I'm not a lawyer). New York has a law (penal code 265.01) that makes ALL handguns illegal.

This means that in order for you to possess or carry any handgun in New York State, there must be a SPECIFIC law that allows you to do so.

Penal Code 400.00 allows for the concealed carry of handguns to properly licensed persons.

Open carry is not permitted by Penal Code 400.0, and therefore violates Penal Code 265.01.

If New York State did not have 265.01, then yes, open carry would be legal by default. But it does, so open carry is illegal.

 

[homerfire232]

I can't speak to the laws of other states. The question was posed about New York specifically, and I'm only talking about what I understand NY law to be (and I'm not a lawyer). New York has a law (penal code 265.01) that makes ALL handguns illegal.

This means that in order for you to possess or carry any handgun in New York State, there must be a SPECIFIC law that allows you to do so.

Penal Code 400.00 allows for the concealed carry of handguns to properly licensed persons.

Open carry is not permitted by Penal Code 400.0, and therefore violates Penal Code 265.01.

If New York State did not have 265.01, then yes, open carry would be legal by default. But it does, so open carry is illegal.

But nowhere does it say it is illegal to open carry in NY, I believe if there is no law, then it is legal. The police can charge you with anything they want, it doesnt mean it is right or will stick in court. I understand how NY state is very anti-gun, but I am willing to be the first to step forward and educate the folks that guns are not bad, people are. To all you guys who say it is illegal to open carry in NY, please tell me the charge and statute number that I will be nailed with. There has to be a charge if I am arrested, and don't say a violation of my permit requirements, because that is not a charge.

 

[rheaj]

I believe you could be charged with violating 265.01:

§ 265.01 Criminal possession of a weapon in the fourth degree.

   A  person  is  guilty of criminal possession of a weapon in the fourth
   degree when:
   (1) He or she possesses any firearm....

Possession of any type of firearm (openly carried or otherwise) is illegal under 265.01. However, section 265.20 lists exemptions to 265.01. Among other things exempted (like rifles and shotguns), we are specifically talking about:

§ 265.20 Exemptions.

    a.  Sections  265.01,  265.02.... shall not apply to:
    ........
    3.  Possession  of  a pistol or revolver by a person to whom a 
        license therefor has been issued as provided under
        section 400.00...

As mentioned before, 400.00, specifically allows only concealed carry of handguns. Open carry is not permitted by 400.00, therefore open carry is not exempted from 265.01, therefore open carry is technically a violation of 265.01 and could result in a charge of criminal possession of a weapon in the fourth degree.

I recommend consulting a lawyer about it if you are actively carrying openly. The courtroom is not the best place to find out whether or not you're right about any particular legal issue. :no:

 

[nogods]

Don't take this as gospel because I have not had a chance to complete research on the issues (and the cases I'm using are 25 years old so there may have been legislative changes that impact the decisions) BUT:

I had some time to do a bit of research, and found something I didn't expect - the NY Court of Appeals (NY's highest court) held that Penal Law section 265.03 does not apply to anyone with a permit under Penal Law section 400, because Section 265.20 exempts such persons from the application of section 265.3, EVEN IF THE PERSON IS IN POSSESSION OF A FIREARM OUTSIDE THE SCOPE OF THEIR PERMIT (in that case, the person had a permit for possession in his home, but was caught with the firearm outside of his home.)

Presumably, the same would apply to all the other exempted penal code sections listed in section 265.20, which are: Sections 265.01 (except subdivision 3), 265.02, 265.03, 265.04, 265.05, 265.10, 265.11, 265.12, 265.13, 265.15 and 270.05.


Here is how a lower court described the court of appeals decision (BTW - the Court of Appeals did not issue a lengthly decision, instead it adopted the dissenting opinion of the Appellate Division)

In People v Parker (52 NY2d 935 [1981], revg 70 AD2d 387 [1st Dept 1979]) and adopting dissenting opinion of Justice Birns, the defendant had a premises permit for a weapon which he took out of his home and with which he threatened to shoot his girlfriend. The court -- after a lengthy discussion of Penal Law § 400.00 -- held that in such a case the defendant could be tried for menacing, attempted assault and violation of the terms of his license but not for felony possession of a weapon. In the Parker case, of course, the defendant had a permit for the particular weapon used.

In People v Serrano (71 AD2d 258, 259 [1979], affd 52 NY2d 936 [1981]), the court held that felony weapons possession charges would not lie where the charge concerned "'[possession] of a pistol or revolver by a person to whom a license therefor has been issued'". (Penal Law § 265.20 [a] [3].) In that case, the defendant had a "premises" license for the particular weapon in question and felony prosecution would not lie even though the defendant violated the terms of his license by possessing the weapon outside of his place of business.

Applicable statutes and case law spell out a HN4clear policy of limiting to the misdemeanor level all prosecutions for the violation of weapons possession where a license is involved. Obviously, the weapon involved must be that which was registered. That policy cannot apply to the defendant at the bar, as he did not have a license for the weapon he was carrying.

People v Moore, 127 Misc. 2d 402 (1985)

So it looks like open or concealed carry might not violate any of the anti-gun possession laws in NY so long as the person has any permit under section 400 for the particular weapon involved (except for the school and educational grounds exceptions.)


This would not apply to 265.6 (schools), and 265.01(3), which states:

(3) He or she knowingly has in his or her possession a rifle, shotgun or firearm in or upon a building or grounds, used for educational purposes, of any school, college or university, except the forestry lands, wherever located, owned and maintained by the State University of New York college of environmental science and forestry, or upon a school bus as defined in section one hundred forty-two of the vehicle and traffic law, without the written authorization of such educational institution;

 

[CapGun]

Great discussion. Maybe I should start a new thread but so many well thought out positions here.
I understand that NY does not offer non resident permits.
Does anyone know any legal way around this? What if you own a house in NY but not your main residence. (think since still a non resident, no go) There must be some exceptions. Well it is TPRNY so maybe not.
Thanks for the input.

 

[nogods]

In Bach v. Pataki, 408 F.3d 75; certiorari denied, 126 S. Ct. 1341 (2006), a non-resident challenged NY's refusal to issue permits to non-residents.

He lost on all arguments, but even if all the other arguments he lost on were still good law today, he would now have at least a chance under his second amendment argument because the court dismissed that argument with this holding:

Accordingly, we hold that the "right to keep and bear arms" does not apply against the States and affirm the district court's dismissal of Bach's Second Amendment claim.

 

[Peterson]

Interesting test case. I'd certainly be interested in a follow up post on your results. A word of caution though. While your case is going through the courts and lengthy appeals, you will most certainly lose your permit and any associated handguns on it will most certainly be confiscated pending any outcome. I would suggest you read the thread about the case presented in Westchester County and go on record suggesting that the test case be extended beyond the borders of one county to the entire state as I have. As state residents we should have equal rights (to carry unrestricted) regardless of our county of residence. Equal treatment under the laws of the state should be afforded to all law abiding licensed citizens.