The Current Law on Stun Guns
New York State law currently treats a stun gun as a "weapon," rendering it illegal to possess, sell or manufacture. Specifically, New York Penal Law § 265.01(1) provides, in relevant part, that "a person is guilty of criminal possession of a weapon when he or she possesses any firearm, electronic dart delivery system, or other weapon specified in subdivision one of section 265.02." (Emphasis added).
In 2012, the Second Department held that a stun gun is a prohibited "weapon" within N.Y. Pen. L. § 265.01(1), because it "falls within the statutory ambiguity of the term ‘other weapon’ as set forth in Penal Law § 265.02(1)(c)" in overruling a lower court’s reversal of a conviction for possessing stun gun. See People v. James, 91 A.D.3d 903 (2012). The Appellate Division relied on a dictionary definition of an "electronic dart delivery system," defining the term as "a device for administering an electric shock to a human being," prescribing a maximum penalty of one year in jail and a fine upon conviction. Id.
However, on June 23, 2018, the Supreme Court of the United States ruled that a Massachusetts stun gun ban violated the Second Amendment , holding that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were considered only at the time of the founding to be principally offensive weapons." Caetano v. Massachusetts, 577 U.S. __ (2016). In Caetano, the petitioner, Jaime Caetano, had been convicted of violating a state law which prohibited persons from carrying "a stun gun or similar device…unless authorized in writing by the colonel of state police or the chief of police of the city or town…" Id. at 3. The petitioner challenged the law, which a Massachusetts appellate court upheld, on Second Amendment grounds. The Supreme Court granted the petitioner’s writ of certiorari, vacated the appellate court’s judgment, and remanded the issue for further proceedings.
Following the Second Circuit Court’s decision in the Caetano matter, the Second Department vacated the aforementioned conviction, holding that pursuant to Caetano, the Virginia-based Petitioner should not have been convicted of possessing a stun gun. See People v. Burns, 167 A.D.3d 544 (2018). However, as of the date of this post, New York law remains unchanged.
Recent Legislative Updates on Stun Guns
The U.S. Court of Appeals for the Second Circuit recently held that a 1990 New York law that banned the possession and use of stun guns was unconstitutional. The Second Circuit’s decision in April 2019 reversed many years of decisions issued by trial courts within the Second Circuit upholding New York’s stun gun ban as constitutional. Though it was immediately challenged, the law in question had not been granted an appellate review until this year. The Second Circuit’s decision has therefore effectively ended New York State’s ban on stun guns.
Who Can Own Stun Guns Legally?
In order to legally own a stun gun in New York State, you must be at least 18 years of age. The process for obtaining a stun gun involves a background check. Gun-control advocates have no problem with the mere possession of electroshock firearms in most cases, causing only potential trouble for those individuals that have a criminal record, as Felony Convictions (or the commission of those crimes during the seven years preceding the application date) involving Assault 2nd Degree or higher, aggravated assault, robbery, menacing, attempted murder, murder, attempted kidnapping, kidnapping. Any violent felony offense or attempted use of force upon a person may also be grounds for an application denial.
Consequences of Illegal Stun Gun Possession
The punishments for illegally possessing a stun gun in New York depends on whether you have been charged with a misdemeanor or felony. Whether you are convicted depends on whether or not you had any prior convictions, the amount of time since your last conviction, and the circumstances surrounding your current charge. Although illegal possession of a stun gun is a class A misdemeanor, which carries a minimum one year sentence, it is possible to lose your license to carry a firearm in all its forms, including stun guns. If you have a permit to carry a firearm, you should be aware that it may be revoked indefinitely if you are found guilty of illegal stun gun possession. Because the consequence of illegally possessing a stun gun can affect the remaining licenses you hold to carry firearms, it is highly recommended that you contact an attorney immediately if you are charged with this crime. Normally, if you are charged with a class A misdemeanor in New York State, your lawyer will file for a pre-trial conference. The prosecution will agree to dismiss some of the lesser charges against you. The remaining charges will be tried in court, where they will likely be dismissed or reduced in exchange for some form of alternative sentencing. If you have been convicted of a Class A misdemeanor within the past five years, any subsequent Class A misdemeanor will count as a second offense. This will get you a harsher sentence. A second offense can carry a minimum sentence of 20 days in jail up to a maximum of one year in jail. Often judges will grant probation instead of jail time. A third offense will mean approximately three months in jail. However, if you have a criminal record and it contains at least one felony or two misdemeanors, your third offense could be sentenced to one to four years in jail. If you are convicted of a class A misdemeanor for a fourth time, you will serve one to four years in jail. All subsequent misdemeanor offenses will be charged as felonies. If the court finds that you were caught in possession of several stun guns, you can be charged with a felony in New York. Felony charges are very serious and carry mandatory minimum sentences. You could spend four years in prison. Unfortunately, people get injured and even die due to stun guns every year. If the police find evidence of a stun gun causing injury or harm to life, you will be arrested. You will need to hire an attorney to defend you.
Stun Guns and Tasers – What’s The Difference?
A stun gun is most likely the most common type of weapon to be termed "non-lethal". A stun gun uses high-voltage electrical currents that are passed through the body. The goal, of course, is to shock a person enough to cause them to let go of their intended target, not to cause permanent damage or death. The voltage maxes out at around 50,000 volts.
A Taser operates much differently. A Taser sends darts with barbed tips at a distance through conductive wiring. Unlike a stun gun, you cannot touch a Taser up to someone . Tasers can reach a target up to 15 feet away. Also, while a stun gun typically has two prongs that must touch a person; a Taser has one prong that must hit the skin and the other prong must come to rest on the ground or other surface. A Taser delivers shocks of 50,000 volts, although it delivers the bursts in very short stretches. Unlike stun guns, Tasers have a battery life but they do typically cover a greater distance. At least in New York State, Tasers are considered firearms and are classified as such.
Stun Guns – How to Safely & Legally Use Them
There are several State Police certified stun gun trainers in the New York Metro Area, and they include the New York SafeTactical Academy and Tactical Edge Headquarters. Generally speaking, stun guns should be used only as a defensive weapon, as close in as possible to the attacker’s body with the main goal being disabling the attacker long enough to escape. You should seek out a trainer who instructs on how to improve your overall situational awareness, including advised behavior and conduct while walking, driving, and traveling on public transportation. You should additionally seek out training in observation techniques, and taught should be the principle of avoidance of confrontations. Only when all other avenues of fleeing or avoiding a physical confrontation are exhausted, should stun guns be used. In short, you should first have a plan of action that enables you keep the situation from escalating or minimizing exposure to physical harm. Then, if all else fails, one could use a stun gun to achieve a temporary physical advantage over an attacker, but the goal is short-lived.
Alternatives to Stun Guns
An additional substitute for stun guns is pepper spray, which is also legal in New York. Unlike stun guns, which cannot be carried concealed in New York City per the above law, pepper spray can be carried concealed in New York City. However, in both NYC and Upstate NY, there are size/personal possession restrictions on pepper spray, which may decrease its effectiveness in some circumstances.
Police officers, as well as licensed private security guards, can carry larger pepper spray canisters in New York State for defensive use. Unlike stun guns, pepper spray is also considered a weapon under New York law. New York’s self-defense law requires that a person be in imminent danger of their life or serious physical injury in order to use a stun gun for self-defense. While pepper spray is less lethal, New York self-defense laws are not as clear when it comes to limitations on the use of pepper spray. New York law on self-defense indicates that a person can only lawfully use a deadly weapon against another person if the person is in imminent danger of losing his/her life, or suffering serious physical injury. So theoretically , if a person is attacked by another person and is not in imminent danger of losing their life, or suffering serious physical injury, Stun guns and pepper sprays could be considered deadly weapons, notwithstanding exemptions under New York Penal Law § 265.20 for "any instrument, implement or substance called for defensive purposes." As such, the use of pepper spray in situations of non-deadly attacks may be considered excessive use of force. The New York Statute "A person may use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself or herself… from what he or she reasonably believes to be the use or imminent use of physical force" and warnings to stop any attack can be a requirement before pepper spray can be used for self-defense purposes. It should also be noted that doing so would likely be an overuse of force even though a stun gun is not currently considered a deadly weapon. This, among other reasons, is why self-defense laws for stun guns (and pepper spray) are still somewhat unclear.