A reader pointed me to an odd policy:
[A]ssistant district attorneys are not permitted to apply for a handgun permit nor own or possess a handgun while employed by the Nassau County District Attorney. Any exception to this policy must be in writing and approved by the District Attorney.And the applicant questionnaire asks the following questions:
1. Have you ever used, sold, or given away any illegal drugs? _________
2. Are you, or have you ever been, delinquent with respect to the filing of federal or state income tax returns? _________
3. Have you ever had a license to possess a firearm in this state or any other state? _________
4. Have you ever gambled illegally? _________
5. Have you ever been terminated from any employment? _________
6. Have you ever been convicted of a criminal offense? _________
7. Have you been convicted of any traffic violations? _________
8. Has any state ever suspended or revoked your driver’s license? _________
9. Have you ever declared bankruptcy? _________
To be sure, the questionnaire states, "NOTE: AN AFFIRMATIVE RESPONSE WILL NOT NECESSARILY SERVE, IN AND OF ITSELF, AS A DISQUALIFICATION FOR EMPLOYMENT," and at least as to some of these items that must surely be so: Consider the traffic violations question. Moreover, the government is surely free to ask about things that are not themselves illegal (such as declaring bankruptcy, or being terminated from a job) in case they reflect on the person's likely future job performance, or in case they might uncover other conduct that is illegal or that might reflect on the person's likely future job performance.
Still, the firearms question strikes me as something that one wouldn't expect to see in the company of the other questions. The other questions all deal either with misconduct, poor judgment, unreliability, or with something that is often — though not always — the result of misconduct, poor judgment, or unreliability (being terminated from a job or bankruptcy). Why is gun possession, especially licensed gun possession, of similar interest to the employer?
It also seems odd that the question focuses only on licensed possession, given that in many states one doesn't need a license to possess a firearm. I wonder whether that reflects a considered judgment that licensed possession is more relevant to the hiring decision than unlicensed possession, or just a lack of understanding of how guns are dealt with in much of the U.S.
In any case, this struck me as odd enough to note, and to ask further about. Does anyone happen to know the reasons for the policy? I e-mailed the office on the 5th about this, and they promptly acknowledged my message, but I haven't heard back from them yet on the substance; if I do, I'll pass along their response.
Thanks to Mike Guasco for the pointer.
UPDATE: I reposted this to fix a glitch with the comments; if you tried commenting on the original and couldn't, please try again.
Related Posts (on one page):
- Does Nassau County D.A.'s No-Handgun-Possession Policy Violate New York Law?
- Nassau County (N.Y.) Assistant DAs Barred from Possessing Handguns:
The problem with that explanation is that they don't (apparently) ask for everywhere you've been licensed to drive a vehicle; they simply ask about traffic violations. If they really were just concerned about violations of the law involving firearms, one would expect them to simply ask about such violations, the way they do with traffic violations.
It's hard to imagine this policy being animated by anything other than a hostility to guns. Given Heller, and maybe even without Heller, one wonders how the D.A.'s office would be able to justify a complete ban on ownership of firearms (as opposed to carrying them while on the job) as a condition of employment.
Well, nobody ever said state (or federal) bureaucrats were good at writing forms in a sensical manner. I'm suspicious of how much information can be gained from an obsessive parsing of the language, the way lawyers like.
After all, the opposite problem to your comment - pointed out in the original post - applies. If it was really motivated by animus towards guns, why not ask about all firearms?
Actually, the question only focuses on licensing, not licensed possession. D.C., I think, is the only (or one of the only) jurisdictions which requires you to own a gun before applying for the license. In most states with licensing statutes, you could apply for the license (and acquire it), but never actually own a firearm.
That just makes the question even more strange, as it is both underinclusive and overinclusive as far as firearm possession goes.
infractions are by definition NOT criminal
civil infractions =/= criminal offenses.
Many years ago, one of my students shot an armed teenager who was trying to rob him at gunpoint. He had a license for the gun he used. The local prosecutor had the student arrested, though he was let go fairly soon, as he had done nothing illegal. The prosecutor's explanation was simply that she didn't think people should carry guns. (The assailant confessed to a cellmate but was found not guilty by the jury anyway. This was in Ithaca NY, a city that issues its own money and probably has a foreign policy as well, though I can't vouch for that.)
And why isn't such an admission on the part of the prosecutor conclusive evidence for the student's lawsuit against her for malicious prosecution as well as the basis for disciplinary action by the bar? You don't get to prosecute people just because you don't like their legal activities.
The regulation of District Attorneys does make me chuckle, when contrasted with Oklahoma's policy on District Attorneys possessing weapons:
"A district attorney may carry a firearm on his person to use only for personal protection if he has successfully completed an approved course of firearm training conducted by a state certified firearms instructor which meets the minimum requirements for firearms training as set forth by the Council on Law Enforcement Education and Training."
19 Okla. Stat. §215.29.
First, I think it should be a criminal statute, so you can arrest someone for "D.A. in possession of a firearm".
Second,the government as employer can ask you to give up or limit some constitutional rights e.g. unlimited free speech. Can a bureaucrat ask you to give up 2nd Amendment rights with no justification?
Can we require them to wear armbands that say "I put people in jail" on one arm and "I am not allowed to shoot you" on the other?
It would also seem to ban running for office.
How can that be permitted in a public employer?
this is mind boggling to me. how can one be forced to give up one's second amendment rights OFF DUTY while employed as a DA?
I cannot see how this is unconstitutional.
Can the DA's office say "you must consent to all searches requested by police?" how about "you must waive miranda if arrested?" of course not. so how can they require you to give up your 2nd amendment rights?
i work with a cop who not only ran for public office, but won. there was no conflict, since he did not work in the same jurisdiction.
as it should be.
For those of you who are undecided if this policy is unconstitutional consider how you would feel if the DA forbade assistants from having an abortion? Or from subscribing to a particular magazine? Or from being a member of a particular party?
I'd like to see someone sue this jurisdiction over this policy and make them justify it in court.
One of the perks(IMO) of being a ADA in California is a almost automatic concealed weapons permit you are granted. Could have something to do with being an ADA in California is more dangerous than NY, but that seems silly.
I'm Yes on 4 of those questions and Im a pretty straight laced guy. 5 if filing an extension makes someone delinquent.
This is not universally true. In California, crimes are classified as one of felony, misdemeanor, infraction. (16 Calif. Penal Code). An example of a criminal infraction would be petty theft (490.1 Calif. Penal Code), which can be charged as either an infraction or a misdemeanor at the prosecutor's discretion.
I am rather shocked at how cavalierly Nassau County wants its Deputy District Attorneys to give up core First Amendment (political speech and activity) and Second Amendment rights (and yes, I am fully aware of the First Amendment rights federal employees routinely give up courtesy of the Hatch Act).
Reading the application, it sounds like Nassau County would be all in favor of forcing their employees to give up 13th Amendment rights as well, since it provides:What a happy place to work.
No, but you have a constitutional right to own a handgun, and the government has very limited discretion in making you give up constitutional rights in exchange for a job.
Nick
If this is acceptable, can the Nassau County DA restrict other legal activities as a basis for continues employement? Eat too much sugar, no job for you. Drive a foreign made car, no job for you. Painted your home chartreuse, no job for you. Smoke? No job for you.
Not being a lawyer, I can't point to any specific case law, but this seems like an unreasonable intrusion into one's personal life that would be difficult to defend.
because drinking is not a constitutional right. gun rights ARE constitutional. so, i find the analogy disanalogous :)
again, could a job require you to not exercise your 4th amendment rights, 5th amendment rights, etc? could they say "if questioned by police, you must give a statement". of course not.
i would argue no. the 2nd amendment is no different.
But it's clear in Federal law that you can require a person to give up some of their first amendment rights. So, perhaps I chose a bad analogy with drinking, but the question is, is the 2nd Amendment somehow more protected than the first? I doubt it. Though I would be happy to be wrong.
I've said this before about the Obama team's selection of similar word choice, and I'll repeat it now.
Do you honestly believe that many people in the Nassau county New York DA system are going to be from anywhere where firearms are not registered?
The question is reminiscent of similar ones on the employment application for Obama's transition team. We know that Obama is a gun control advocate and has picked very strong such advocates for a number of his most important team members.
Eugene's suggestion is the most likely explanation and applies equally to the Obama questionnaire:
"a lack of understanding of how guns are dealt with in much of the U.S."
well, yes. the restrictions while ON DUTY are pretty clear, and i'm not even referencing those for speech or firearms rights, but speaking of off duty conduct.
1st amendment rights off-duty (as i understand it) can only be restricted in very narrow ways, and only if they obviously conflict with the public office held, etc.
this, otoh, COMPLETELY restricts ALL 2nd amendment rights, and there is no way that carrying a gun (off duty) somehow conflicts with one's employ as a DA.
now personally, i think off-duty 1st amendment restrictions are too broad for many professions (for example, i don't think a police officer posing nude in a magazine should subject her/him to discipline, but i know some agencies have gotten away with that), but certainly a COMPLETE ban on an employee exercising their 2nd amendment right at all, is just not (imo) consitutional.
we are talking about
1) legal behavior
2) that is an exercise of a civil right
3) that in no way can reflect "badly" upon the DA's office
You may be onto something with the "no way [the legal behavior in question] can reflect 'badly' upon the DA's office," but that is precisely the question you would be disagreeing with the DA on (and unfortunately, a lot of other people). As to whether it completely restricts the right, I don't see this as being too important, as the 2nd is really only one right, while the 1st is a whole bundle of rights. But, then, I'm not a Constitutional law guy.
I'd like to think that the "no religious tests" clause is pretty good evidence that the writers of the Constitution would have opposed singling out even one right from the whole bundle that is the 1st amendment.
also, is there any other constitutional right that this DA thinks reflects "badly" on his office if one of his DA's exercises it?
if a ADA refused a consent to search would that reflect badly on him?
it's just absurd.
You did say, after all, that "in Federal law that you can require a person to give up some of their first amendment rights," and drew the analogy to the Second Amendment, so the scope of that "some" is pretty important.
I'm surprised she didn't ask if you have ever taken a drink of "intoxicating spirits" (or the Demon Rum) given her crusade against drunk driving. Remember this is the DA who obtained a 2nd deg. murder conviction for a drunk driving vehicular homicide. While I don't condone drinking and driving, that was a bit excessive.
Ah. The Scooter Libby/ Pat Fitzgerald method of Human Resourses management.
But putting aside constitutional issues, I'm a prosecutor. While I don't personally carry, I would refuse to work at an office that prohibited me from ever doing so. If I felt it was necessary for my safety, I would get a concealed license and carry in a heartbeat. (In Texas, prosecutors were recently given the right to a special concealed license that allows us to carry in courthouses and certain other places normally forbidden.) I think that any DA who didn't respect the safety of his employees is one I wouldn't respect enough to work for.
1) They are not talking about carrying a gun. The quote is "[A]ssistant district attorneys are not permitted to apply for a handgun permit nor own or possess a handgun while employed by the Nassau County District Attorney. "
They are banning their employees from owing a handgun. Period.
2) They are showing a complete lack of understanding on how the rest of the country operates. In the majority of the country (I think 45 of the 50 states) there is no licensing of guns. You can walk into a store, do the NCIC check and walk out with a rifle or shotgun. Pistols may be handled a little differently, depending on the state.
I have a 'few' guns in my gun locker. Some I bought. Some I inherited. Not a single one is 'licensed' because I live in an enlightened state.
If you have ever been a juror in, say, a trial of violent gang members, you would wish that privilege extended to jurors, too. Jurors, after all, aren't volunteers.
While I disagree with the policy, I don't think that these are fair points. First of all, this is a position as a county ADA; I don't think they need to be concerned about how the rest of the country operates. Secondly, firearms include handguns, and since many places do require a handgun license of some sort, the questions seems reasonable given their goals.
I've encountered that belief in both California and New Jersey which have never had general gun ownership licensing.
1) They are not denying the right for their people to keep and bear arms on duty. If they are dealing with a private business or various sorts of government buildings they can deny people the right to be armed on the premesis. It's misguided, but within their ability.
They are saying you must give up your rights to own a handgun in order to work for them. They should have not ability to regulate what you do on your own time regarding fundamental rights.
2) I was noting that for the vast majority of the country there is no 'gun licensing'. Not for handguns, rifles, shotguns or carbines. That means that nobody outside of NY, IL, or the other couple of states are eligable for employment under these rules. I cannot get a 'gun license' even if I wanted one. It doesn't exist.
I think we are on the same page. The policy is nuts. There is nothing to fear from a law abiding citizen with firearms of any kind. I was just pointing out that these lawyers (who are supposed to be so much smarter than I am) don't have a clue how the world works beyond the Hudson river.
Could the D.A.'s office justify requiring residence in a supervised environment as a condition of employment?
Could the D.A.'s office justify a complete ban on homosexual intercourse as a condition of employment?
Under New York State Law, only HANDGUNS are considered "firearms". With that a sharp lawyer (and a prospective ADA had better be) could own rifles and/or shotguns and honestly answer "NO" to this question.
Also, it is NOT a 'permit' in New York, it is a Pistol LICENSE.
http://www.NassauCountyCriminalAttorneys.Com
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