Judge Orders Guns Returned to Man After Finding "Error" by State Police.

April 11, 2013 Updated Apr 11, 2013 at 8:21 PM EDT

By Ed Reilly

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April 11, 2013 Updated Apr 11, 2013 at 8:21 PM EDT

BUFFALO, N.Y. (WKBW) Gun rights advocates were outraged this week when it was revealed that a Western New York man had his pistol permit suspended and guns confiscated because police believed he posed a threat due to a mental health condition.

Attorney James Tresmond threatened to file a lawsuit in Federal Court claiming his client's health privacy and civil rights had been violated.

It was reported that the unidentified man was taking a prescription for anxiety.

The enforcement action started on March 29th when New York State Police asked the Erie County Clerk's Office to pursue revoking the man's pistol permit because he owned guns in violation of the mental health provision of New York's newly enacted guns law called the SAFE ACT.

"They really pushed us to move quickly on this. We received a subsequent email from one of the State Police sargents making sure that we had taken these firearms away," said Erie County Clerk Chris Jacobs.

The State Police information was reviewed by a Supreme court judge, and the man's pistol permit suspended and guns taken away.

But now it turns out that the information was wrong.

After further investigation, State Supreme Court Judge William Boller has ruled that the police information that was the basis for the action was "in error."

Justice Boller writing that the "individual named pursuant to the New York Safe Act was not in fact the above named Licensee."

"What happened here is the State Police got it wrong," added Jacobs.

The question now is who is responsible for the mix-up.

The Erie County Clerk's Office placing blame on State Police investigators, and the State Police maintaining that the Clerk's office needed to use "due diligence" in getting a positive identification before removing any weapon.

The following are press releases issued by both the Erie County Clerk's Office and the New York State Police concerning the matter.

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Christopher L. Jacobs

County Clerk

***PRESS RELEASE***

APRIL 10, 2013 FOR IMMEDIATE RELEASE

Jacobs Says State Mishap Reflective of Flaws in SAFE Act

Erie County, NY - Erie County Clerk Chris Jacobs said that late today he received a call from the New York State Police informing him that they had provided information on the wrong person when they notified his office of someone whose permit should be suspended because of the new mental health provisions in New York's SAFE Act.

"Previously we received correspondence from the State Police that a pistol permit holder in our County had a mental health condition that made them a potential harm to themselves or others, a provision in the NY SAFE Act that requires suspension of their pistol permit license," said Jacobs.

At that time as required by law, Jacobs' referred the item and all supporting documentation to the State Supreme Court Judge in charge of issuing pistol permits. Acting on the information provided by the State Police, the judge issued a suspension of the permit pending a hearing.

"When the State Police called to tell us they made a mistake and had the wrong person...it became clear that the State did not do their job here, and now we all look foolish."

Jacobs' believes the central reason for this error is the inherent flaws in the mental health reporting provisions in the NY SAFE Act. "Until the mental health provisions are fixed, these mistakes will continue to happen," says Jacobs.

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11 April 2013
New York State Police Statement on Pistol License Suspension in Erie County

NEW YORK STATE POLICE
Joseph A. D'Amico
Superintendent

PRESS RELEASE
The SAFE Act requires mental health professionals to file notification when a medical professional determines that an individual he or she is treating is at risk to themselves or others. Medical prescription records are strictly private and not shared with the state, and no firearm license would ever be revoked for an anti-anxiety prescription.

The notification forwarded to the Erie County Clerk's Office required additional follow-up before a positive identification of a person at risk to themselves or others became final. The State Police was very clear in its letter to the Clerk's Office regarding the need for due diligence and the need for a positive identification by the County before they removed any weapon.

The final determination on whether to revoke or suspend a pistol permit license rests solely with the County and the licensing officials. The State Police has no authority to suspend or revoke a pistol permit in these circumstances.