New York man arrested for using unlicensed gun to shoot robber . . .

[Duces Tecum]

A Brooklyn, New York, grocery store was reportedly arrested after using an unlicensed gun to shoot an alleged knife-wielding robbery suspect Monday night.

CBS New York reports (https://newyork.cbslocal.com/2020/05/26/fatal-deli-shooting/) that the incident occurred at the Rose Family Grocery Store just after 11 p.m. The suspect, Edwin Candelario, was allegedly wielding a knife and was shot multiple times by the clerk.

Candelario was rushed to a hospital and pronounced dead.

ABC 7 reports (https://abc7ny.com/grocery-store-worker-arrested-illegal-gun-brooklyn-unlicensed-user-shooting/6212186/) that the clerk, an unidentified 34-year-old male, was arrested because he “was not licensed to have the gun.”

[El Cid]

A Brooklyn, New York, grocery store was reportedly arrested after using an unlicensed gun to shoot an alleged knife-wielding robbery suspect Monday night.

CBS New York reports (https://newyork.cbslocal.com/2020/05/26/fatal-deli-shooting/) that the incident occurred at the Rose Family Grocery Store just after 11 p.m. The suspect, Edwin Candelario, was allegedly wielding a knife and was shot multiple times by the clerk.

Candelario was rushed to a hospital and pronounced dead.

ABC 7 reports (https://abc7ny.com/grocery-store-worker-arrested-illegal-gun-brooklyn-unlicensed-user-shooting/6212186/) that the clerk, an unidentified 34-year-old male, was arrested because he “was not licensed to have the gun.”

F@*k New York.

Wonder if the NRA will be willing to help him out with the coming court battle?

[BehindBlueI's]

Our prosecutor's office has historically been *very* hesitant to file "no license to carry" and "felon in possession" (absent serious violent felon status) for most situations mirroring that. One, we want the victim's cooperation against the "real criminal" and gets the "not in the best interest of justice" turn-down*. Two, jury nullification concerns as local juries don't like it.

*Preemptively, I get the "real criminal" is dead here and not subject to prosecution, just talking in general.

[Sanch]

Good. Maybe we can get a supreme court ruling in our favor over this.

[TGS]

Our prosecutor's office has historically been *very* hesitant to file "no license to carry" and "felon in possession" (absent serious violent felon status) for most situations mirroring that. One, we want the victim's cooperation against the "real criminal" and gets the "not in the best interest of justice" turn-down*. Two, jury nullification concerns as local juries don't like it.

*Preemptively, I get the "real criminal" is dead here and not subject to prosecution, just talking in general.

It sounds like your DA is viewing such situations with the "competing harms" concept.

...but, would it really be applicable here? Doesn't that idea hinge on the concept that you gained access to the firearm in-extremis (such as a felon justifiably shooting someone using a friend's gun, or someone without a gun license grabbing a downed officer's gun to shoot a killer), and not applicable to someone who was breaking the law before the need arose?

Or, is what you're talking about a different practice altogether?

LockedBreech ssb what about your areas?

[BehindBlueI's]

It sounds like your DA is viewing such situations with the "competing harms" concept.

...but, would it really be applicable here? Doesn't that idea hinge on the concept that you gained access to the firearm in-extremis (such as a felon justifiably shooting someone using a friend's gun, or someone without a gun license grabbing someone else's gun to shoot a killer), and not applicable to someone who was breaking the law before the need arose?

Or, is what you're talking about a different practice altogether?

LockedBreech ssb what about your areas?

What you're describing in the example is a necessity defense. That's an actually-in-the-book legal defense. You broke the law but you did it because you had to.


It is a defense that the person who engaged in the prohibited conduct was compelled to do so by threat of imminent serious bodily injury to himself or another person.

But that's not what I'm talking about. In what I'm talking about there's no necessity defense. The person is factually guilty of, say, carrying a handgun without a license. If put in front of a judge, a "guilty" verdict would be pretty assured. But local juries don't like it. Same reason we don't file shoplifters who fight loss prevention as strong armed robberies despite both the law and case law saying it is. Local juries don't like it. Defense attorneys know that, request a jury trial, and you just wasted your resources on a losing case more often then not.

So they don't file on the "victim" because they'd likely lose that case and instead use the potential for a case as incentive to cooperate against the "suspect." The "victim" cooperates in prosecution, strengthening that case, and doesn't have to roll the dice on which jury he gets. The prosecutor gets one strong case instead of two shitty ones. If the "victim" is a shitbag, and they often are, they'll be "suspect" next time so we'll get them then. If they aren't a shitbag, they get another swing at doing things the right way instead of having a record.

[Wise_A]

Our prosecutor's office has historically been *very* hesitant to file "no license to carry" and "felon in possession" (absent serious violent felon status) for most situations mirroring that. One, we want the victim's cooperation against the "real criminal" and gets the "not in the best interest of justice" turn-down*. Two, jury nullification concerns as local juries don't like it.

Ditto for the rest of New York. In fact, we just had a case in the area where a somewhat-unhinged guy living in his dead dad's condemned home shot and killed a (IIRC) mother-son robbery team with the late father's unlicensed revolver. No charges filed, but I believe they confiscated the gun. I don't think the son had the financial or mental resources to go through the permitting process, anyway.

[RevolverRob]

[SIZE=1][COLOR=#111111][FONT=Georgia]A Brooklyn, New York, grocery store was reportedly arrested after using an unlicensed gun to shoot an alleged knife-wielding robbery suspect Monday night.

Damn...New York has gotten crazy...apparently the grocery stores are sentient now.

[HCM]

Our prosecutor's office has historically been *very* hesitant to file "no license to carry" and "felon in possession" (absent serious violent felon status) for most situations mirroring that. One, we want the victim's cooperation against the "real criminal" and gets the "not in the best interest of justice" turn-down*. Two, jury nullification concerns as local juries don't like it.

*Preemptively, I get the "real criminal" is dead here and not subject to prosecution, just talking in general.

In NY it’s not just “no license to carry” which is a misdemeanor in most places. In free America, things are generally allowed unless they are specifically permitted. In NY (and NJ) things are prohibited unless specifically permitted.

In NY the possession of a handgun is a felony unless you fall into the two exceptions: LE /military or have a NY handgun license.

Essentially everyone is a prohibited person unless the state grants you a waiver.

In NY cases involving illegals guns, the necessity defense only covers the actual use of force. IN NY, especially NYC , legitimate self defense situations in which the use of force is not charged but the firearms violations are charged are common. Bernie Goetz being the classic example.

[HCM]

Ditto for the rest of New York. In fact, we just had a case in the area where a somewhat-unhinged guy living in his dead dad's condemned home shot and killed a (IIRC) mother-son robbery team with the late father's unlicensed revolver. No charges filed, but I believe they confiscated the gun. I don't think the son had the financial or mental resources to go through the permitting process, anyway.

No charges were filed because it was upstate. In NYC /LI etc that would not have turned out as well.

[Wise_A]

No charges were filed because it was upstate. In NYC /LI etc that would not have turned out as well.

When it comes to gun prosecutions, we're effectively two different states (which is what I was driving at). The county sheriffs swing whichever way the political winds blow, and outside of maybe Erie, Albany, and Schenectady counties, that's pretty strongly pro-gun. True SAFE Act prosecutions are almost unheard of (there's something like 8,000 a year, 80% of which are NYC+LI, and most are for stuff that was already a felony beforehand). On the other hand, my concealed carry permit isn't valid in NYC. If I were to travel to Long Island, I would have to follow the same rules as an out-of-state resident.

[blues]

Damn...New York has gotten crazy...apparently the grocery stores are sentient now.

"Cleanup on Aisle 3: How NY Groceries Got Their Guns and Finally Took Matters Into Their Own Hands" by I.B. Shutin

At booksellers everywhere...

[LockedBreech]

It sounds like your DA is viewing such situations with the "competing harms" concept.

...but, would it really be applicable here? Doesn't that idea hinge on the concept that you gained access to the firearm in-extremis (such as a felon justifiably shooting someone using a friend's gun, or someone without a gun license grabbing a downed officer's gun to shoot a killer), and not applicable to someone who was breaking the law before the need arose?

Or, is what you're talking about a different practice altogether?

@LockedBreech (https://pistol-forum.com/member.php?u=10777) @ssb (https://pistol-forum.com/member.php?u=6556) what about your areas?

Wyoming is a profoundly gun friendly state. My gun-related prosecutions are almost zero and are usually misdemeanor ones for someone having their CCW in a bar. For felon in possession, every single time I've seen it come up the Federal district court takes it from us if they want it.

Speaking generally about charging victims, it's not at all uncommon to decline to charge a relatively minor crime to secure victim cooperation in a major crime, and it's often the clearly right move.

As was noted after your post, the necessity defense is available regardless of DA charging decision in your hypothetical scenarios, and I can't think of a DA that would be dumb enough to charge those kind of things anyway.

Then again, we're talking about NY here, maybe I shouldn't underestimate dumb DAs.

[Glenn E. Meyer]

Did someone mention Bernard Goetz? He was not convicted for the shooting but was convicted on the gun charges.

I wonder if the social circumstances would have changed for a NYC jury now? Also, what was the status of the shooter? Was he a prohibited person? If not, it shows how the Heller decision did not have far reaching consequences. While protecting the right to have a gun at home, it would have seemed that such logic would apply to places of business. The process of getting a gun permit in NYC is glacial, also contrary to the spirit of the decision. However, repeat alert, the Court has not as yet taken up a case to break that system. If it does this term is yet to be seen.

[blues]

Then again, we're talking about NY here, maybe I shouldn't underestimate dumb DAs.

It's not about them being dumb, it's about the culture of the institutions they (willingly) serve. If de Blasio represents NYC, is it any wonder?

Thankfully, on the federal level I never felt the need to compromise my values when bringing a case forward while working in NYC. Under state and city laws and regulations, I'd have a harder time looking at myself in the mirror. Glad I got out in '87.

[MGW]

This sounds like some U.K. bullshit. We know law enforcement can’t be there to protect you all the time but the government doesn’t trust you enough to defend yourself with a firearm.

I really don’t understand why laws like this haven’t been overturned by SCOTUS.

[blues]

This sounds like some U.K. bullshit. We know law enforcement can’t be there to protect you all the time but the government doesn’t trust you enough to defend yourself with a firearm.

I really don’t understand why laws like this haven’t been overturned by SCOTUS.

I think it's because the "powers that be" would prefer that "we the people" be "we the sheeple". A toothless adversary is less daunting to those pulling the strings.

[Glenn E. Meyer]

SCOTUS - got to keep up. They have refused to take up a gun case for years since the last two. Next, the court is 4/4 on gun rights with Roberts being an unknown. Heller was ambiguous (no, it wasn't, Scalia was a genius - blah, blah).

Now we are waiting for them, yet again. The theories are they will not take a case because the 4 fear Roberts or the progun justices are planning the golden case that comes from the mountain with tablets of stone on fire that free the guns - Hallelujah. However, they might take a wishy-washy case (like the NYC one) and come up with a wishy-washy decision that sounds good and changes nothing on the ground.

We will see.

[HCM]

When it comes to gun prosecutions, we're effectively two different states (which is what I was driving at). The county sheriffs swing whichever way the political winds blow, and outside of maybe Erie, Albany, and Schenectady counties, that's pretty strongly pro-gun. True SAFE Act prosecutions are almost unheard of (there's something like 8,000 a year, 80% of which are NYC+LI, and most are for stuff that was already a felony beforehand). On the other hand, my concealed carry permit isn't valid in NYC. If I were to travel to Long Island, I would have to follow the same rules as an out-of-state resident.

I agree but the key factor in who gets prosecuted or not is the District Attorneys not the Sheriffs. The DAs are also elected and thus follow the political winds of their constituents.

[ssb]

TGS

We prosecute unlawful possession of a weapon (misdemeanor - basically carrying without a permit), but in my current location that is a rare charge to see (mostly rural, and it's not illegal to have a loaded gun in your car). We prosecute the felon in possession cases when the feds do not (so, the vast majority of them). However, a quirk of our laws is that it's not illegal to be a felon in possession of a long gun as a general matter, but it is illegal to possess a handgun as a felon. If you have a prior involving a crime of violence or a drug felony, however, the grade of felony is enhanced and it is then illegal to possess any type of firearm.

In my jurisdiction I would be utterly shocked to see an otherwise lawful self defense case involve a charge of felon in possession or unlawful possession of a firearm. It is possible under our laws, but prosecutorial discretion is also a thing, and setting that aside a local jury would probably kill that one off pretty quickly once they learned the facts. Obviously, if we charge a murder and the murderer is a felon, we'll probably charge the felony gun charge as well.

[Caballoflaco]

SCOTUS - got to keep up. They have refused to take up a gun case for years since the last two. Next, the court is 4/4 on gun rights with Roberts being an unknown. Heller was ambiguous (no, it wasn't, Scalia was a genius - blah, blah).

Now we are waiting for them, yet again. The theories are they will not take a case because the 4 fear Roberts or the progun justices are planning the golden case that comes from the mountain with tablets of stone on fire that free the guns - Hallelujah. However, they might take a wishy-washy case (like the NYC one) and come up with a wishy-washy decision that sounds good and changes nothing on the ground.

We will see.

Glenn, dude, can you please go beat this dead horse in the thread you started specifically about the Supreme Court not taking cases, or at least limit it to one post per thread.

[Glenn E. Meyer]

Sorry, just responding to a post wondering why Scotus doesn't ... whatever. A fixation on my part, I guess.

[Wise_A]

I agree but the key factor in who gets prosecuted or not is the District Attorneys not the Sheriffs. The DAs are also elected and thus follow the political winds of their constituents.

Oh, for sure. There's a ton of hand-in-glove cooperation between the local R parties, the sheriffs, the DAs, and the judges. I don't know what they would do around here if it was a felon-in-possession charge. I don't think the good will of the local party and its accompanying Fudds (we have a lot of "I support the Second Amendment, but..." old guys*) would extend to a felon. There was a case south of Albany that I haven't bothered following that I know resulted in a charge, but it's (a) south of Albany, and (b) I don't know the details.

*True story--I had a director of our "We support the EnnArrAaayyy" gun club inform me that nobody needs an AR-15. He was not happy when I asked why he needs a semiautomatic shotgun to shoot trap when a single-shot would do fine. He also told me that nobody can shoot a handgun faster than one round a second with any accuracy at all. We had a hold-my-beer moment.

[HCM]

Oh, for sure. There's a ton of hand-in-glove cooperation between the local R parties, the sheriffs, the DAs, and the judges. I don't know what they would do around here if it was a felon-in-possession charge. I don't think the good will of the local party and its accompanying Fudds (we have a lot of "I support the Second Amendment, but..." old guys*) would extend to a felon. There was a case south of Albany that I haven't bothered following that I know resulted in a charge, but it's (a) south of Albany, and (b) I don't know the details.

*True story--I had a director of our "We support the EnnArrAaayyy" gun club inform me that nobody needs an AR-15. He was not happy when I asked why he needs a semiautomatic shotgun to shoot trap when a single-shot would do fine. He also told me that nobody can shoot a handgun faster than one round a second with any accuracy at all. We had a hold-my-beer moment.

Politics aside prosecutors decide who actually gets charged.

[Wise_A]

Yes, I think we're all aware of that.