Expert: Dean Speir - 8/17/2007

Question
Dear Mr. Speir,

I am a security officer in Buffalo, NY (Erie County). I have considered applying for a restricted carry license for work but also feel an unrestricted Concealed Carry would be beneficial for my safety as well as the safety of my family. I have done exhaustive research on cases in government and have found local state and Federal Law Enforcement personnel in the US have 'No legal duty to protect any ONE INDIVIDUAL CITIZEN from crime & the Government is NOT LIABLE for even a grossly negligent failure to protect a crime victim' (See: RISS v. NEW YORK, HARTZLER v.
CITY OF SAN JOSE, WARREN v. DISTRICT OF COLUMBIA, the SEMINAL CASE in establishing the same general rule is   DESHANEY  v. WINNEBAGO COUNTY DEPT. OF SOCIAL
SERVICES ... It stands to reason that it is ultimately the CITIZENS duty to protect themselves as well as the constitutional right (2nd amendment) and also in the Preamble to the declaration of independence.

Mr. Speir, would it not stand to reason than; that an unrestricted Carry License in Erie county (NY) would be easy enough to be approved for (assuming one meets all criteria)? In addition what in your opinion (or documented in law) would justify issue of an Unrestricted Carry License?

I am not a gun aficionado per se but I do like to use law to gain any edge I can (Especially as an investigator in the Private Security industry). I lack the knowledge of some who ask questions of you who are presumably licensed, avid shooters, judging by the caliber - no pun intended - of their questions. Nevertheless I look forward to your enlightened perspective and advice. Thank you.

Capt. Jay W.
Criminal Investigator

Answer
Hi, Jay…

Important disclaimer: I am not an attorney.

§400 of the New York State C&P [http://ypdcrime.com/penal.law/article400.htm] provides the licensing standards for issuance of a Handgun License within NYS, and unfortunately it is not applied uniformly within the state, and has through various "test cases" (such as O'Connor v. Scarpino, and O'Brien v. Keegan) over the years, been corrupted to the point that much of the original intent has been lost, much to the detriment of those who wish to legally possess handguns in New York.

Now, while there may be one, I don't see any language in that Statute unique to your Erie County, so I'm compelled to ask you…

Since there are only two (2) types of licenses in New York State… for the purposes of this discussion we will exclude the political subdivisions the five counties which comprise New York City… and those are "P" for Premises and "C" for "Carry."

So I'm unclear as to your reference in respect to "applying for a restricted carry license."

Why would you consider applying for something such as that? I think the first step in the process would be to ask for a "Pistol License Application," follow the instructions and submit it to the licensing authority, in your case the Erie County Clerk's Office and a guy named Fowler, last I looked.

The primary objective here is that you obtain a "Carry License," and address any imposed restrictions with the authority later.

As for your research, Warren v. D.C., etc., that is all irrelevant to your objective, getting a "NYS Carry License," and any such reference to same during the licensing process, will only confuse matters and cause a notation in the "secret portion" of your official file to reflect that you're a trouble-maker who bears watching.

For the same reason, I would strenuously recommend that you avoid any reference to the Second Amendment while you're at it. This is New York State, not the United States with which we're dealing here.

The rest of your inquiry is all academic dicta, #1, and, #2, your references to being "an investigator in the Private Security industry" (as a "Capt.???" Doesn't sound all that "private" to me!) may hold sway with the Erie County Clerk's Office, but it doesn't cut anything with me. Your employment, depending on its charter and its standing within Erie County, may have some bearing on the process, but that's something you haven't addressed in you inquiry. (I mean, what is your company's policy on this issue? Are they going to support your application?)

Now, I don't know if any of this qualifies as "enlightened perspective and advice" for your purposes, but I tried to answer the questions you seem to be asking.

G'luck to you.