Does the “place of business” exception of possession of a firearm cover all employees?

Under Penal Law § 265.03, it is a Class C violent felony to possess an unlicensed firearm. However, New York’s Legislature crafted an exception for the possession of an unlicensed firearm in an individual’s home or “place of business;” if the exception applies, the offense becomes a misdemeanor. In People v. Wallace (Ct. App. 5/8/2018) (Feinman, J.) (6-1-0) the Court of Appeals held that lower courts should read the “place of business” exception narrowly. Accordingly, the court explained that this exception does not protect any employee who is caught with an unlicensed firearm while at work, rather it only protects those “who have a greater interest in protection of their premises, principal control over said premises, and a strong tie to the continued safety and security of their establishment and the goods and services they offer.”

This case stems from an incident where an assistant manager of a McDonalds in Buffalo shot himself in the leg after a gun in his pocket discharged. Upon arrest, the defendant was charged with CPW 2º. 

Before trial, the defendant moved to either dismiss the indictment or reduce the charges to a misdemeanor arguing that the “place of business” exception should apply to any place where an individual works. In response, the People asserted that the “use of the possessive pronoun implies ownership over the ‘place of business.’” The trial court ultimately denied the motion. The defendant was convicted following a bench trial after he waived his right to a jury trial.

The conviction was confirmed on appeal. The Fourth Department held that because the “place of business” exception is not statutorily defined, courts have narrowly construed it. However, the dissent stated that the statute was “clear and unambiguous on its face” and if the legislature had intended to limit the places of business of business that § 265.03 (3) applies “it could have easily done so.”

The Court of Appeals affirmed the Appellate Division’s decision. Presented with an issue of statutory interpretation, the Court focused on preserving the Legislature’s intent when the law was enacted. Since the term “place of business” is not statutorily defined, the Court ascertained the legislative intent behind the statutes by reviewing statutes that relate to the same general subject matter.

For example, the court analyzed Penal Law § 400. This statue regulates the licensing of pistols and revolvers and in pertinent part states that “a license for a pistol or revolver shall be issued to . . . have and possess in his place of business by a merchant or storekeeper.” § 400[2][b]. The court, in discussing the statutes history, stated that both § 265.03 and § 400.00 first originated from the same statute and that the legislature overhauled the Penal Law in 1963 to enact stricter gun control laws. The court thus held that the exception applies only to individuals who may possess a firearm at their “place of business” under Penal Law § 400. Consistent with the legislative intent, the court stated that the benefit of the exception applies to “the merchant, store keeper, or principal operator of a business—those persons who have a greater interest in protection of their premises, principal control over said premises, and a strong tie to the continued safety and security of their establishment and the goods and services they offer.” The court explicitly rejected the defendant’s asserted interpretation because it would “swallow the rule” and be directly at odds with the Legislature’s intent in creating stricter gun laws.

In a concurring opinion, Judge Stein agreed with the majority’s conclusion, but criticized the majority for failing to analyze the statutory language of § 265.03 for its lack of guidance on the meaning of who qualifies as a merchant, storekeeper, or principal operator under this law. Construing the exception narrower than the majority, Judge Stein opined that the Legislature’s choice of “place of business” rather than “place of employment” is meaningful and that this exception should apply only where a person has “a clear and substantial interest in the business beyond that of an employee.” She notes, “However, in my view, this will ordinarily be the person or persons who have the greatest proprietary or possessory interest in the business in question. Viewed in this light, it is unlikely that employees or managers of retail establishments, without more, would ever fall within the exemption.”

The disagreement between the majority and concurrence may just open the door, ever so slightly, for litigation on who is considered a merchant, store keeper, or principal operator of a business for the exception to apply. (PT/LC)

Comments are closed.