by Bill Keeler, WIBX

Governor Andrew Cuomo announced on Wednesday that he plans to take away firearms from any New Yorkers who are charged with domestic violence.  The bill will be introduced as part of the Governor's State of the State address on Jan. 3., according to the New York Daily News.

In theory, this sounds like a great idea; after all, who wants a person who abuses another person to possess guns?  The problem is, this whole thing seems a bit unconstitutional.

For starters, there are already laws on the books in New York State that require anyone convicted of a felony domestic violence charge to forfeit their guns. The key word here is 'convicted.' The Governor's proposal would force people to forfeit their guns if they are 'charged' with a domestic violence crime. Currently, the court can require the forfeiture and future purchase of guns based on a 'charge,' if the judge determines that the accused is a threat to others or one's self.  This new bill, if signed into law, would make the forfeiture a requirement and automatic.

Utica attorney Jospeh Hobika Jr. feels this bill would go too far.  "Any time legislators make something like this mandatory, it takes away the discretion of the court and can lead to unintended consequences," said Hobika. "I also fear a law like this would be unconstitutional because it could strip a person's right to due process as guaranteed by the fifth and fourteenth amendments to the Constitution."

The Governor's proposal would also automatically void a person of their rights to possess guns if he or she has been issued an Order of Protection.  Similarly, such a law would take the decision away from the court and impose the automatic penalty. Orders of Protection are often times issued in family court and supreme court without due process if one party convinces a judge that the other party is a threat.

The bottom line: this bill, if it becomes law, will violate a person's right to due process. The court already has the authority to strip a person of their weapons; but, on a case by case basic and only if the judge feels it's warranted.  This is already the case for both charges of domestic violence and orders of protection. If this bill becomes law it will be another overreach by the state, violating the rights of non-violent people caught up in a family dispute.

I urge that Albany legislators vote no on this legislation.

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