New York City Office of Administrative Trials and Hearings Administrative Law Judge Kevin F. Casey found that Respondent served as a military police officer with the National Guard and was authorized to possess a handgun as his service weapon.
While federal law authorized Respondent to possess the handgun, it did not, however, exempt him from the Employer’s requirement that employees disclose any firearms they possess and accurately complete certain personal information forms.
In response to Respondent's failure to provide the required information to Employer, Judge Casey opined "An appropriate penalty should take into consideration petitioner’s interest in ensuring that all of its employees strictly comply with its firearm regulations as well as principles of progressive discipline, the facts of [the] case, and [the] respondent’s background."
The ALJ recommended the imposition of a 15-day suspension without pay on the Respondent for failing to disclose his possession of a handgun to his Employer.
Judge Casey's findings and recommendation are set out below:
______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF CORRECTION
Petitioner
- against -
ANDRE ANDERSON
Respondent
______________________________________________________
REPORT AND RECOMMENDATION
KEVIN F. CASEY, Administrative Law Judge
Petitioner, the Department of
Correction, brought this disciplinary proceeding against
respondent, Correction Officer Andre Anderson, under section 75 of the Civil
Service Law. The petition alleges that, on or about July 25, 2020, respondent failed to notify petitioner
that he had purchased and possessed several personal protection firearms (Pet.
Ex. 1).1
Respondent denied the charge.
At a two-day trial, held via video-conference and concluded on February
23, 2023,
petitioner relied on documentary evidence and testimony from two of its
employees, Firearms Instructor Villafane and Investigator Hall. Respondent
testified in his own behalf, offered documentary evidence, and called another
witness, Army National Guard Sergeant Villanueva.
For the reasons below, I find that petitioner proved that respondent failed to
provide required notice regarding one firearm. Thus, the charge should be
sustained, in part.
1 At the trial’s outset, petitioner dismissed two related charges concerning statements made by respondent to investigators in January and December 2021 (Pet. Ex. 1; Tr. 6-7).
BACKGROUND
Introduction
Petitioner authorized respondent to carry a Glock 9mm pistol as an off-duty
personal
handgun (Tr. 148-50; Resp. Exs. E, F). Respondent, who is also a military
police officer with the National Guard, is authorized by the Army to own a SIG Sauer 9mm handgun as
a service weapon (Tr. 102, 140-41; Resp. Exs. A, B, C). Federal law allows respondent to
carry the SIG Sauer handgun while off-duty (Id.). See Law Enforcement Officers Safety Act
of 2004 (“LEOSA”), 18 USCS § 926B (Lexis 2023).
The main contested issue is whether respondent committed misconduct when he failed to notify petitioner that he purchased and possessed the SIG Sauer handgun. Petitioner contends arms Policy and Procedures Directive 4511R-B mandates that employees cannot possess any personal handgun without the Department’s permission (Tr. 7; Pet. Ex. 2 at § IV(A)(2)). In addition, petitioner asserts that Operations Order 5/01 requires all employees to disclose firearms that they own when they complete annual employee personal information forms (Tr. 7; Pet. Ex. 5 at § IV(C)(III)(a), (b)). Respondent notes that petitioner’s firearms policy narrowly defines personal handguns and does not refer to military-authorized firearms (Tr. 17-18). Thus, respondent maintains that he was not required to obtain petitioner’s authorization to purchase his SIG Sauer handgun and he was not required to notify petitioner about that weapon (Tr. 18-19).
Though the military authorized respondent to obtain and possess the SIG Sauer handgun, petitioner’s Operations Order 5/01 imposes a broad obligation on all employees to disclose “Personal Protection Firearms” and “Other Firearms” (Pet. Ex. 5 at § IV(C)(III)(a), (b) and Attachment, Form 25). Because the evidence established that respondent failed to disclose his personally-owned SIG Sauer 9mm on his annual employee personal information form, he violated Operations Order 5/01.
Evidence
Most of the material facts are undisputed and all of the witnesses at trial appeared to testify credibly about events as they perceived and recalled them. According to a report prepared by petitioner’s investigators, respondent was in an off-duty car accident on July 25, 2020. His vehicle was rear-ended by another vehicle. The driver of the other vehicle drove away from the scene. Respondent called 911 and drove after the other vehicle. When the other vehicle became involved in a second accident, the driver fled on foot. A passenger got out and approached respondent, who identified himself as an officer, displayed his Department-issued handgun, and handcuffed the passenger. The police arrived, the passenger was released, and no arrests were made (Pet. Ex. 4 at 1).
On the day of the off-duty incident, petitioner’s investigators confiscated respondent’s personal protection firearm, the Glock handgun (Hall: Tr. 57; Pet. Ex. 4 at 2).
Investigators also learned that day that respondent owned two other guns, the SIG Sauer handgun and a Smith and Wesson rifle (Hall: Tr. 62-63; Pet. Ex. 4 at 2). Petitioner authorized respondent to buy his Glock handgun in September 2017 and he disclosed that weapon on his annual personal information forms (Hall: Tr. 58-59; Pet. Exs. 6-7). Respondent purchased the Smith and Wesson rifle in December 2018 and his SIG Sauer handgun on April 2, 2020 (Hall: Tr. 61-62; Pet. Ex. 4 at 2). He did not seek petitioner’s authorization to purchase those two weapons and did not disclose them on his employee personal information forms (Hall: Tr. 58-59; Pet. Exs. 6, 7).
Investigator Hall testified that petitioner’s rules and regulations require all employees to disclose all firearms that they possess (Tr. 60). Hall stated that respondent should have disclosed the SIG Sauer handgun on his 2020 employee personal information form, filed with petitioner on April 22, 2020, and he should have disclosed the Smith and Wesson rifle on the 2019 and 2020 forms (Tr. 69, 71-72).
During an MEO 16 interview in December 2021, Hall learned that respondent owned a Springfield handgun (Hall: Tr. 84; Pet. Ex. 4 at 1-2). Respondent also stated during the interview that, under Directive 4511R-B, he did not need petitioner’s authorization to purchase handguns that were authorized by the military (Pet. Ex. 8 at 1-2). According to respondent, the directive only applied to Department-authorized “carry” or “recreational” handguns (Id. at 2-3).
Firearms Instructor Villafane testified about petitioner’s firearms rules and regulations (Tr. 26-27, 35). He explained that it was important for the Department to know about all firearms possessed by members of service in the event that a weapon is lost or discharged (Tr. 28). According to Villafane, all firearm transactions had to be disclosed, even for unauthorized firearms (Tr. 28, 31). Villafane stated that a personal handgun is one purchased with the officer’s own money (Tr. 47). Thus, in his view, a handgun purchased by an officer for military service is a “personal handgun” (Tr. 48).
Respondent testified that his Glock handgun is a “personal handgun” authorized by and disclosed to petitioner (Tr. 148-50; Resp. Exs. E, F, G). However, respondent said that his military commanding officer authorized him to purchase the SIG Sauer handgun for use as a military police officer (Tr. 141). Respondent introduced documents showing that he is a Qualified Federal Department of Defense Law Enforcement Officer, who is authorized by federal law to carry a firearm while off-duty (Tr. 141, 143; Resp. Exs. A, B).
After the off-duty incident on July 25, 2020, petitioner confiscated respondent’s SIG Sauer handgun (Tr. 144). On April 27, 2021, an Army legal officer wrote to petitioner requesting return of that weapon because respondent, who was on active duty, needed it in connection with his service as a military police officer (Resp. Ex. C). When petitioner failed to return the SIG Sauer handgun, respondent received permission from his military commander to purchase a Springfield handgun (Tr. 145-46; Resp. Ex. D).
Though respondent continued to maintain that he was not required to disclose to petitioner that he purchased or possessed military-authorized handguns, he testified that he reported the purchase of the Springfield handgun to petitioner to avoid any problems (Tr. 155, 158).
Respondent introduced a copy of a June 17, 2021, memorandum that he sent to the warden of his facility, disclosing the purchase of the Springfield handgun (Tr. 153-54, 160; Resp. Ex. H). A copy of the memorandum was also attached to a letter that respondent’s attorney sent to the New York City Law Department on June 22, 2021 (Resp. Ex. H). Investigator Hall testified that he did not see a copy of the memorandum when he reviewed respondent’s personnel file in November 2021 (Tr. 90-91, 119, 121).
As for the Smith and Wesson rifle, respondent acknowledged that he purchased it with his own funds, kept it at home, and did not use it for his military service (Tr. 161-62). In response to questioning by petitioner’s counsel, respondent agreed that a rifle or a shotgun is a firearm (Tr. 162, 167-68).
National Guard Sergeant Villanueva, who is also a New York City Police Department detective, testified that he has supervised respondent in the military for 15 years (Tr. 128, 134).
Villanueva confirmed that, because of his military credentials, respondent is authorized to carry a firearm while off-duty (Tr. 124-26, 132). Based upon his reading of Directive 4511R-B and his understanding of federal law, Villanueva agreed with respondent that the directive does not apply to firearms authorized by the military (Tr. 130-33).
Villanueva acknowledged that he only read the directive on the day of trial and he did not give respondent any advice regarding petitioner’s reporting requirements (Tr. 132-34, 137).
ANALYSIS
The petition alleges that “on or about July 25, 2020,” in his residence, respondent “was in possession of several personal protection firearms which he had purchased and failed to notify the Department” in violation of Directive 4511R-B and Department rules, including Rule 3.20.030 (failure to abide by the provisions of any order) (Pet. Exs. 1, 3).
To prevail under section 75 of the Civil Service Law, petitioner must prove the charge by a preponderance of the credible evidence. See Dep’t of Correction v. Hall, OATH Index No. 400/08 at 2 (Oct. 18, 2007), aff’d, NYC Civ. Serv. Comm’n Item No. CD 08-33-SA (May 30, 2008). Here, the evidence showed that respondent failed to report at least one firearm, his SIG Sauer handgun.
To protect officers and the public, petitioner has a compelling interest in regulating and monitoring its employees’ purchases and possession of firearms. See Dep’t of Correction v. Fleming, OATH Index No. 228/85 at 14 (Nov. 5, 1987). One reason for monitoring firearm transactions is that petitioner administers a provision of the Penal Law that exempts correction officers, who are peace officers, from having to apply to local police for permission to carry handguns. See Dep’t of correction v. Katanic, OATH Index No. 2117/10 at 4-5 (Oct. 15, 2010), appeal dismissed, NYC Civ. Serv. Comm’n Item No. CD 11-03-D (Mar. 2, 2011); see also Penal Law §§ 265.20(a)(1)(c), 400.00(3)(b) (discussing procedures governing exemptions for peace officers). Petitioner administers that exemption by requiring correction officers to apply for permission from their command to buy such guns, registering those guns, and forwarding required forms to the State Police (Pet. Ex. 2 at § IV(A)(2)).
Petitioner does not merely administer the licensing exemption. Directive 4511R-B states that it is petitioner’s policy to “monitor all firearm transactions made by members of the Department by maintaining a personal firearms record” and petitioner’s “comprehensive record shall list all individual firearm transactions for each member” (emphasis added) (Pet. Ex. 2 at §I(B)(6)). There are sound reasons for this policy. If an officer is involved in a domestic violence incident, if a weapon is lost or misplaced, or if the officer is medically or psychologically unfit to possess a firearm, petitioner needs to locate firearms possessed by the officer (Tr. 28, 131; Pet. Ex. 2 at § IV(F)(1).
In addition to Directive 4511R-B, Operations Order 5/01 requires all employees to submit annual employee personal information forms, where they are to disclose firearms that they own (Pet. Ex. 5 at § IV(C)(III)(a), (b)). The order applies to all of petitioner’s employees and specifies that failure to complete the disclosure form accurately, “shall be construed a refusal and the staff member will be made the subject of disciplinary action” (Id. at §§ II, IV(D)).
The federal LEOSA statute allows respondent to possess a firearm while off-duty. See 18 USCS §926B. But the statute does not relieve respondent of his duty to comply with Operations Order 5/01, which requires accurate completion of the employee personal information form.
Petitioner had a right to request that information and respondent had a duty to provide it. See Katanic ̧ OATH 2117/10 at 16; cf. Dep’t of Correction v. LaSonde, OATH Index No. 2526/11 at 18-20 (Aug. 18, 2011), adopted, Comm’r Dec. (Sept. 9, 2011) (officers have a constitutional right to remain silent, but that does not preclude petitioner from disciplining an officer for failure to answer questions during an MEO 16 interview). As respondent notes, Directive 4511R-B does not mention military-authorized firearms.
The section of the directive concerning Firearm Transactions begins by stating that it refers to the acquisition and transfer of “personal handguns and departmental firearms” (Pet. Ex. 2 at §IV). And the directive classifies “personal handguns” into two categories: “carry” handguns authorized by the Department and “recreational” handguns. The directive defines those terms as follows:
Personal Handgun: Any handgun owned by a member of service that is authorized by the department for use as either a “carry” or “recreational” purpose.
Carry Handgun: A personally owned 9mm semiautomatic pistol or .38 caliber
revolver meeting factory and Department specifications that the member has been
authorized to
carry by the Department.
Recreational Handgun: A personally owned handgun that is used solely for
recreational
purposes (e.g., hunting, target shooting, collecting). (Pet. Ex. 2 at §
I(C)(2)(a), (b)). The directive further states a commanding officer’s
authorization is required to possess a recreational handgun and recreational
handguns must be unloaded and carried in a case to and from their legal areas
of use (Id. at § I(C)(2)(b)). Prior authorization is not required to purchase
or possess a recreational long arm (Id.).
Respondent stresses that Directive 4511R-B narrowly defines “personal handguns” (Tr. 19). But that argument ignores the fact that Operation Order 05/01 is separate and more comprehensive. It requires employees to disclose “Personal Protection Firearms” and “Other Firearms” (Pet. Ex. 5 at § IV(C)(III)). There is no dispute that respondent’s SIG Sauer 9mm handgun is a firearm and he purchased it before he submitted his 2020 employee personal information form. Thus, respondent violated Operation Order 5/01 by failing to disclose that he possessed his SIG Sauer handgun.
As for respondent’s Smith and Wesson rifle, it is unclear whether it is a “firearm” that he was required to disclose. Where an agency’s rules are subject to “reasonable differing interpretations,” the benefit of doubt should be given to the employee because rules must clearly put the employee on notice of the conduct that would be a violation. See Dep’t of Correction v. Page, OATH Index No. 1358/96 at 24 (Mar. 17, 1997), adopted, Comm’r Dec. (April 22, 1997).
Here, there was conflicting evidence as to what constitutes a firearm. Neither Directive 4511R-B nor Operation Order 5/01 define “firearm” (Pet. Exs. 2, 5). Directive 4511R-B distinguishes between recreational long arms and handguns by stating that prior authorization is not required to purchase or possess a long arm (Pet. Ex. 2 at § I(C)(2)(b)). Elsewhere, the directive states that, in some situations, petitioner may confiscate “all of an employee’s firearm(s) including long arms,” which implies that long arms are a subset of firearms (Id. at § IV(F)(10)(d)(iv)). Firearms Instructor Villafane defined a firearm “something designed to cause death or serious physical injury” (Tr. 47). And respondent said “yes” when petitioner’s counsel asked whether a rifle is a firearm (Tr. 162).
In summation, petitioner relied on the Penal Law’s definition of “firearm,” which includes “a rifle having one or more barrels less than sixteen inches in length” or an assault weapon, which is defined as a semiautomatic rifle, with the ability to accept a detachable magazine, and a folding or telescoping stock (Tr. 195-96). See Penal Law §§ 265.00(3), (22)(a)(i). Petitioner argued that respondent’s Smith and Wesson rifle qualified as a firearm because it was a semi-automatic rifle with a telescoping stock (Tr. 195-96). However, there was no evidence offered to support that argument. The parties did not present evidence regarding the rifle’s barrel length or other features.
Based on this lack of evidence, petitioner failed to prove that respondent’s rifle was a firearm that he was required to disclose.
The evidence also failed to show that respondent purchased or possessed a Springfield handgun on or about July 25, 2020, as alleged in the petition (Pet. Ex. 1). Instead, the evidence showed, that respondent purchased a Springfield handgun in mid-2021, to replace the SIG Sauer that petitioner confiscated July 2020. I credited respondent’s claim that, in an abundance of caution, he sent a memorandum to the warden of his facility in June 2021 advising her that he had purchased the Springfield handgun. At the time, there was an active dispute between the Army and petitioner regarding respondent’s authority to possess a military-authorized firearm.
Thus, it made sense for respondent to send the memorandum to avoid further problems. Respondent’s testimony was corroborated by a copy of the memorandum that he offered in evidence. Though petitioner’s investigator did not see the memorandum in respondent’s personnel folder in November 2021, that testimony falls short of proving that the memorandum was never submitted.
FINDINGS AND CONCLUSIONS
1. On or about July 25, 2020, respondent committed misconduct by failing
to disclose to petitioner that he purchased and possessed a SIG Sauer firearm.
2. Petitioner failed to prove that, on or about July 25, 2020, respondent committed misconduct by failing to disclose to petitioner that he purchased and possessed other firearms.
RECOMMENDATION
I requested and received a summary of respondent’s personnel history.
Petitioner hired respondent in 2016 and assigned him to an Emergency Services
Unit in 2018 (Tr. 138-39).
There are no prior proven charges of misconduct on his record and he has a very good attendance history. Indeed, he only took three sick days in all of 2020, during the height of the COVID pandemic. Respondent has also served in the National Guard for 16 years (Tr. 140). Petitioner now seeks a 30-day suspension (Tr. 207). That is excessive.
Petitioner’s penalty request was based, in part, on the assumption that it had proved that respondent failed to provide the required notifications for several firearms. Because the proven charge is that respondent failed to notify petitioner about one firearm, a lesser penalty would be appropriate. In non-use of force cases, the penalties for failure to submit an accurate report range from a ten-day suspension to termination of employment, depending on the employee’s background and the degree of deception. See, e.g., Dep’t of Correction v. Vives, OATH Index No. 817/05 at 14-15 (June 9, 2005), aff’d, NYC Civ. Serv. Comm’n Item No. CD 06-40-SA (Aug. 1, 2006) (ten-day suspension imposed where long-term correction officer, with good work record and minimal disciplinary history, failed to obey three orders and made improper entry falsely indicating that she had turned in a radio); Dep’t of Correction v. Centeno, OATH Index No. 2031/04 at 6-7 (Mar. 16, 2005) (20-day suspension recommended where officer, who had no record of prior discipline, made false or misleading statements during MEO 16 interview regarding another officer’s loss of a gun); Katanic, OATH. 2117/10 at 16-21 (termination of employment recommended where firearms instructor deliberately and actively concealed possession of five personal protection firearms and three long-arms, including two illegal assault weapons, repeatedly made false statements about those weapons, and disobeyed orders to surrender weapons).
As petitioner noted, this case is not nearly as egregious as Katanic (Tr. 193-94).
Respondent did not engage in deliberate deception. When approached by investigators on July 25, 2020, he disclosed and surrendered his firearms. During the MEO 16 interview and at trial, he consistently explained his sincerely held views about his reporting requirements. Though respondent’s views were incorrect, and he failed to fill out his 2020 employee personal information form accurately, he is an asset to the Department. An appropriate penalty should take into consideration petitioner’s interest in ensuring that all of its employees strictly comply with its firearm regulations as well as principles of progressive discipline, the facts of this case, and respondent’s background.
Accordingly, I recommend a penalty of 15 days’ suspension without pay.
Kevin F. Casey
Administrative Law Judge
April
6, 2023
SUBMITTED TO: LOUIS A. MOLINA
Commissioner
APPEARANCES:
JOHN MCNIFF, ESQ.
RICCA RAMEY, ESQ.
Attorneys for Petitioner
JOEY JACKSON LAW, PLLC.
Attorneys for Respondent
BY: JOEY JACKSON, ESQ.
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