Does Nassau County D.A.'s No-Handgun-Possession Policy Violate New York Law?

I just realized I missed something about the policy in Nassau County, New York that assistant 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."

It turns out that New York Labor Law § 201-d provides, in relevant part,

[(1)(b).] "Recreational activities" shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material; ...

2. Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of: ...

c. an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property ....

3. The provisions of subdivision two of this section shall not be deemed to protect activity which:

a. creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest; ...

d. with respect to employees of [certain government employees], is in knowing violation of article eighteen of the general municipal law or any local law, administrative code provision, charter provision or rule or directive of the mayor or any agency head of a city having a population of one million or more, where such law, code provision, charter provision, rule or directive concerns ethics, conflicts of interest, potential conflicts of interest, or the proper discharge of official duties and otherwise covers such employees ....

4. Notwithstanding the provisions of subdivision three of this section, an employer shall not be in violation of this section where the employer takes action based on the belief either that: (i) the employer's actions were required by statute, regulation, ordinance or other governmental mandate, (ii) the employer's actions were permissible pursuant to an established substance abuse or alcohol program or workplace policy, professional contract or collective bargaining agreement, or (iii) the individual's actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct....

It's hard for me to see how any of the exceptions apply here, so the policy strikes me as clearly improper as to recreational possession of handguns, for instance at a target-shooting range. The employer may not punish an employee for violating the policy in such a situation.

I'd say the same would be true as to applying for a handgun permit in order to keep the handgun for recreational activities." That might be a tougher call, given that applying for the permit is not itself a recreational activity. But since applying for the permit may be necessary to own the tools needed to engage in the recreational activity -- if the applicant is motivated by recreational purposes -- I would think that it would be covered. I take it, for instance, that an employer can no more punish someone (given New York Labor Law § 201-d) for applying for a hunting permit, or for buying a snowmobile, than it could for actually hunting or snowmobiling. Or is my analysis mistaken here?

Related Posts (on one page):

  1. Does Nassau County D.A.'s No-Handgun-Possession Policy Violate New York Law?
  2. Nassau County (N.Y.) Assistant DAs Barred from Possessing Handguns:
Sk (mail):
Frankly, this question occurred to me the moment I read your first post-though, admittedly, not with respect to a particular New York Statute-but rather on principle.

In general, is it legal for an employer (I suppose its different for federal government, state government, and private employees) to deny its employees constitutional rights while off duty as a condition of employment?

examples: denial of the right to participate in political rallies, denial of the right to proselytize (ex: Mormon missionaries, etc), right to own a gun (in this case) and so on?

sk
1.13.2009 3:08pm
ShelbyC:
Well, the policy limits itself to ownership, and the law prohibits discrimination based on activities, which are seperate things. Are ownership and applying for a permit recreational activities within the meaning of the statue?
1.13.2009 3:16pm
JoeSixpack (mail):
I would be interested in learning what the DA's rationale is for instituting this policy in the first place. You would think that DAs have a fairly obvious interest in self defense given that they are in the business of trying to put often violent criminals in jail.
1.13.2009 3:39pm
fortyninerdweet (mail):
I'm with JoeSixpack on this one. On its face the policy looks like a swarmy fix to a perceived previous problem. What it means in real life is that Nassau County prosecutors are marshmallows in court, instead of lions.
1.13.2009 3:53pm
Duffy Pratt (mail):
ShelbyC:

It's hard for me to imagine how someone could engage in any lawful activity with a handgun while not possessing the handgun. Maybe possession here means something different than it does in other statutes (like drug possession)?
1.13.2009 4:08pm
Eugene Volokh (www):
ShelbyC: The policy applies both to ownership and to possession. On its face, it would bar people from target-shooting with a handgun rented from a shooting range, or borrowed from a friend at the range.

Sk: Generally speaking, a private employer may fire an employee for any reason or no reason at all, except for the ones specifically barred by statute (e.g., race, religion, sex, and the like) or by one of the rare common law doctrines that supplements the statutes in a few states. This means that a private employer may fire the employee for the employee's off-duty speech, off-duty sexual activity (unless the state law bans sexual orientation discrimination, and the firing is based on the sex of the parties involved in the sexual activity), off-duty gun use, or whatever else. About a dozen or so states have statutes that bar private employers from firing employees based on off-duty speech, off-duty recreational activity, or whatever else.

Joe Sixpack: You and me both.
1.13.2009 4:19pm
Former Oregonian (mail):
Is possessing a hand gun either for (1) self-defense or (2) armed resistance to a despotic government a "recreational activity"?
1.13.2009 4:35pm
Abdul Abulbul Amir (mail):
USPSA Practical Shooting

This is legal recreational activity and great fun too.
1.13.2009 4:35pm
Kazinski:
I think the employer would have to allow registering a gun under the law. If an employee rode motorcyles recreationaly, could the employer forbid the employee to get a motorcyle classification on their license under this law? I don't think so, and I don't think there is any appreciable difference in the scenarios. Especially since riding motorcyles is more dangerous than possessing or shooting firearms.
1.13.2009 4:46pm
Kazinski:
ShelbyC,
Under that reasoning Nassau county couldn't stop their employees from bowling, yet they could forbid employees from possessing a bowling ball under their terms of employment. Which is not a bad result, I can't think of any legitmate use for a bowling ball in a private residence.
1.13.2009 4:57pm
PersonFromPorlock:
EV:

...a private employer may fire the employee for the employee's off-duty speech, off-duty sexual activity..., off-duty gun use, or whatever else.

I know the law's as you describe but to your knowledge, has anyone ever claimed that as a result of their having to conform to their employer's wishes 24/7/365, they were employed 24/7/365 and deserved to be paid on that basis?
1.13.2009 5:05pm
Michael Ejercito (mail) (www):

I know the law's as you describe but to your knowledge, has anyone ever claimed that as a result of their having to conform to their employer's wishes 24/7/365, they were employed 24/7/365 and deserved to be paid on that basis?

Assistant DA's are paid on a salary, not hourly.
1.13.2009 5:31pm
ShelbyC:
I'd imagine that an ADA would have to do some handling of handguns as part of his duties, handling evidence, etc. Does this count as possession?
1.13.2009 5:39pm
David Schwartz (mail):
I've learned never to say "there ought to be a law", because there almost always is.
1.13.2009 5:57pm
Dilan Esper (mail) (www):
Sk:

In California, we have a law that generally prohibits employers from firing people for off-duty, lawful activities that bear no relevance to the job. But I think we are almost alone in that respect; certainly the common law rule is that at least for at-will employment (which comprises most jobs), a person could be fired for what they did off the job.
1.13.2009 6:06pm
Kazinski:
EV and JoeSixpack,
There is a rational reason for the DA's policy, and that is to reduce the chances that they would be charged with hypocrisy in enforcing gun laws. The Nassau DA like most jurisdictions in the area are very stringent about enforcing gun laws, even when the use of a gun was justified and prevents a serious crime like armed robbery or murder. If an assistant DA lives in a jurisdiction with looser gun laws, and happens to use their gun in the very same manner as someone they charge in Nassau county, it could be embarrassing to the DA.

The other possibility is that because handgun permits are discretionary issue in Nassau, the DA wants to eliminate the possibility of assistant DA's getting preferential treatment. Which is not unlikely.

But there is a solution, apply the constitution and let all law abiding citizens have the guns they are entitled to, and all of those issues go away.
1.13.2009 6:27pm
David Schwartz (mail):
There is a rational reason for the DA's policy, and that is to reduce the chances that they would be charged with hypocrisy in enforcing gun laws. The Nassau DA like most jurisdictions in the area are very stringent about enforcing gun laws, even when the use of a gun was justified and prevents a serious crime like armed robbery or murder. If an assistant DA lives in a jurisdiction with looser gun laws, and happens to use their gun in the very same manner as someone they charge in Nassau county, it could be embarrassing to the DA.
This is really analogous to "we can't hire black people because our customers are racist". Such an "embarrassment" would be completely illogical. We expect DAs to prosecute illegal conduct and condone legal conduct. You are not supposed to discriminate to cater to the irrational preferences of others.
1.13.2009 7:19pm
Eugene Volokh (www):
Dilan: I don't think California has such a law; the California Labor Code provisions sometimes cited for that, Cal. Labor Code § 96(k) and Cal. Labor Code § 98.6(a), have been interpreted as merely letting the Labor Commissioner take assignments of any claims already secured by existing law, such as § 1101 claims or right to privacy claims. See Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72, 80-84 (2004) (so holding as to both § 96(k) and § 98.6); 83 Ops. Cal. Atty. Gen. 226, 228, 230 (2000) (taking this view as to both provisions); Barbee v. Household Automotive Finance Corp., 113 Cal. App. 4th 525, 533-36 (2000) (taking this view, but considering only § 96(k)); Paloma v. City of Newark, 2003 WL 122790 (Cal. Ct. App.) (unpublished) (likewise); Hartt v. Sony Electronics Broadcasting &Prof. Co., 69 Fed. Appx. 889, 890 (9th Cir. 2003) (likewise).

Or am I missing some other statute, or some caselaw contrary to what I noted above?
1.13.2009 8:07pm
Thomas_Holsinger:
So collectors of Civil War handguns can't be deputy DA's in Nassau County. What about those who have Civil War cannon? That was a real big issue involving the then past and present elected Stanislaus County District Attorneys a few years ago.
1.13.2009 8:30pm
Jagermeister:
More reasons to avoid New York. I was amazed to find out that there is no right to accrued vacation pay in New York.
: Must an employer pay employees for holidays, sick time and/or vacations?

A: Under the New York State Labor Law, payment for holidays, sick time or vacation -- i.e. payment for time not actually worked - is not required unless the employer has established a policy to grant such pay. When an employer does decide to create a benefit policy, that employer is free to impose any conditions they choose.
I contrast this with California, where there is a definite right:
Under California law, earned vacation time is considered wages, and vacation time is earned, or vests, as labor is performed. ... Vacation pay accrues (adds up) as it is earned, and cannot be forfeited, even upon termination of employment, regardless of the reason for the termination. (Suastez v. Plastic Dress Up (1982) 31 C3d 774)
1.13.2009 10:28pm

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