By Don Smith

Recertification became a reality in the amended NY Penal Law as part (b) of Section 400.10: (b) All licensees shall be re-certified to the division of state police every five years thereafter. Any license issued before the effective date of the chapter of the laws of two thousand thirteen which added this paragraph shall be re-certified by the licensee on or before January thirty-first, two thousand eighteen, and not less than one year prior to such date, the state police shall send a notice to all license holders who have not recertified by such time. Such recertification shall be in a form as approved by the superintendent of state police, which shall request the license holder's name, date of birth, gender, race, residential address, social security number, firearms possessed by such license holder, email address at the option of the license holder and an affirmation that such license holder is not prohibited from possessing firearms. The form may be in an electronic form if so designated by the superintendent of state police. Failure to re-certify shall act as a revocation of such license. If the New York State Police discover as a result of the recertification process that a licensee failed to provide a change of address, the New York State Police shall not require the licensing officer to revoke such license. 

The State Police has provided the County Clerks Association with memos to update them on recertification over many months. These memos have been modified since changes to the various 'requirements' have occurred. One such change by the State Police was the decision not to issue a "recertification card to be carried with the permit at all times". Note this requirement was never in the statute. What other "requirements" are not in the statute? 

These are some of the statements in the memos provided to the Clerks and then the facts according to the statute. Discuss them with your State Senator. 

• "Recertification is a State Police function. The County Clerks do not have a role". Licensees are NOT recertified by the State Police. Licensees re-certify themselves by providing to the NYS Police (per the statute) "the license holder's name, date of birth, gender, race, residential address, social security number, firearms possessed by such license holder, email address at the option of the license holder and an affirmation that such license holder is not prohibited from possessing firearms." 

• “Any permit holder that does not have a valid NYS driver’s license or ID will be required to get one. This includes out of state residents that are permit holders.” In the first place, out of state residents are not eligible to receive a NY State ID and it is unlawful to have a NY State driver’s license and another state’s driver’s license at the same time. By this requirement, the  State Police is attempting to revoke the statute which does not require NY residency in order to be a permit holder. Moreover, no statutory provision requires a permit holder to have a valid NYS driver’s license or ID in order to be eligible to receive or to retain a permit. The Division of NY State Police does not have authority to impose requirements for the recertification of a permit holder or to repeal the law which allows nonresidents to have a NY State permit. Except pursuant to NY Penal Law §400.02 which relates to retired sworn members of the NYS Police, permits are denied, issued and revoked by local licensing officers, not by the NYS Police. Note also that there is case law that says a permit holder does not need to be a resident. They just need to have a verifiable address. Thus the snow birds who have Florida residency but still spend summers in NY can maintain their NY pistol permit. 

• “Counties will be notified when recertification is approved.” Nothing in the statute confers upon the State Police the authority to approve or disapprove recertification. When the State Police receives the information it should notify the County Clerk that the licensee has re-certified, unless, after checking whatever data bases may be at its disposal, it discovers information that calls into question whether the licensee is precluded by law from possessing the license. If the State Police determine that such information exists, it should provide that information to the licensing officer who is the only one who has the statutory authority to issue, deny or revoke the license. 

• "Recertification discrepancies must be corrected by amendment to license at the county level. Applicants will be instructed to do so." Note the continued use of the term “applicant” rather than “Licensee”. Licensees re-certifying their information are not applying for anything. The term “applicant” implies that the NYS Police have authority to grant or deny a right. It does not have that power. Only the licensing officer has that power. Similarly, the NYS Police have no authority to “instruct” licensees to do anything. It certainly can alert the licensee and the licensing officer of the “discrepancy” but it is then up to the licensing authority to take whatever action it may deem appropriate if the licensee fails to remedy the “discrepancy.” Note that the State Police are attempting to place themselves in the position of the licensing authority.

• “If the applicant re-certifies by mail, they will receive a return receipt with a tracking number.” The licensee is not an “applicant”, but note that this acknowledges that the licensee is re-certifying, not that the NYS Police is re-certifying the applicant. 

• “The recertification application is just like a pistol permit application without the references. The applicant is required to list all arrests, drug or alcohol treatment, mental illness, or family court petition or charge.” Again, licensees are not applicants. They are licensees, and the statute only requires the licensee to provide the licensee’s name, date of birth, gender, race, residential address, SS#, and firearms possessed together with an affirmation that the licensee in not prohibited from possessing firearms. The State Police are not authorized to rewrite laws. 

• "There are four steps to the recertification process: (a) Submission of application (b) Acceptance of application (c) Review/return for correction (d) Approval / Revocation." (a) Licensees are not submitting applications, they are submitting certifications. (b) and (c) If a certification is illegible, on the wrong form, incomplete, or received from a nonlicensee refusing to accept it and returning it for correction makes sense, but only for those reasons. (d) The NYS Police do not “approve” the recertification and it certainly has no authority to revoke a license. 

• "If the applicant is negative on the data base checks, “the application is approved." Again, the licensee is not an “applicant” and the NYS Police do not “approve” anything. If the data base check is negative, proof of recertification should be issued. 

• “Positives will be referred to the licensing officer for revocation or clarification.” The NYS Police have no authority to instruct the licensing officers how to discharge their statutory duties. As noted above, if the NYS Police uncover information that calls into question the licensee’s right to continued possession of the license, it is up to the licensing officer to determine the proper course of conduct. 

• “If the NYS Police determine that it cannot re-certify the permit, the recertification is sent to the licensing officer." The NYS Police do not recertify the permit. The licensee recertifies. 

• “According to the State Police Lieutenant addressing the County Clerks, the object of the recertification process is to create a “pristine” data base that any law enforcement official would be able to access at any time with real time information.” What is a “pristine” data base? I thought that the object of the recertification process was to make NY Safe by assuring that people who have the subject licenses are not under a statutory disability that would prohibit them from retaining the rights granted to us by the 2nd Amendment to the Constitution. 

• “The Lieutenant stated that the pistol permit data would be linked to the DMV data base and an officer would know that a pulled over vehicle was owned by a pistol permit holder.” Is that because there has been an epidemic in NY of shootings of police officers during traffic stops by holders of pistol permits? I doubt that has EVER happened, and if it has, that it has not happened more than once or twice since the Sullivan Law went into effect a little more than 103 years ago. Does this mean that when permit holders are stopped for routine traffic offenses we will be frisked and our firearms taken from us “for our own protection” during the encounter. If that occurs will the officer remove the magazine to make certain that it is not holding more than 10 rounds? Will our permits be demanded so that the officer can make sure that the handgun is registered on our permit? Is that information provided to out of state police officers who may stop a permit holder for a minor traffic infraction while traveling outside of NY State? 

• “Indicating a pistol permit on the face of a driver’s license is not a decision that has been made yet." OMG!! Really? On the face of the driver’s license? Talk about invasion of privacy. The statute provides that we may opt out of making that information a matter of public record, yet if it is decided to put it on our driver’s license, pistol permit holders will be forced to disclose that very private piece of information to the cashiers at Wal-Mart and any number of other retail outlets, such as Best Buy, Home Depot, Lowe’s, etc. etc., and other places as well, when making returns, applying for credit, cashing a check, receiving medical care, and so on. When the record of the permit is made, do we then become targets for burglaries? Besides, many of us have already completed an "Opt-Out form, Why does the recertification form deal with this issue? If we are out of state when a traffic infraction occurs, will the local police want to search us and our vehicles to see if we are illegally in possession of a firearm in their jurisdiction? What happens if we decline to permit the search of our vehicles? Is the result hours by the side of the road while the gun, bomb, and drug sniffing dogs are brought in, or worse? Is there no end to New York’s harassment of her citizens who choose to exercise their Constitutional right to protect themselves, and their families? 

• “There was a Power Point for the presentation but the Lieutenant said it would not be released to the clerk’s.” Why not? What is it about the proposed process that needs to be kept secret from the public. Secrecy is what permitted the NY SAFE travesty to be enacted in the first place. Is the next round by the State Police Gov. Cuomo’s emulation of President Obama’s decision to ignore Congress and rule by administrative action? This begs for a demand under the State's Freedom of Information Act. What is in that Power Point?"