background checks

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In 2018, Proskauer highlighted the importance of a New York law that gives those with criminal convictions an opportunity to build a better life. New York Crim. Proc. Law § 160.59 (“CPL 160.59”) allows persons convicted of certain crimes to apply for their criminal record to be sealed upon meeting two requirements: (1) at least ten years have passed since their release from prison; and (2) a record of two or fewer criminal convictions only one of which can be a felony.  Once sealed, these records are inaccessible to the public and through routine background checks, such as those used by landlords and employers. Though CPL 160.59 has provided some with a needed second chance, it has excluded far too many people.

Many other states have implemented their own laws permitting criminal records to be sealed — in 2019 alone, 31 states and D.C. enacted bills creating, expanding, or streamlining conviction record sealing, set-asides, or expungement. New York was one of those states, reforming the system by automatically sealing drug convictions for now decriminalized offenses, as well as sealing certain pending matters where there has been no activity in the past five years.  Nevertheless, New York did not take the opportunity to expand the scope of CPL 160.59 and thus it remains severely underused compared to original estimates.

As COVID-19 ravages communities across the United States, another serious public health crisis is also escalating: gun violence. Everytown for Gun Safety, a nonprofit organization and longtime Proskauer partner dedicated to ending gun violence, has been examining the impact of COVID-19 on the gun violence epidemic, as well as making important recommendations.

In a recent report, Everytown found that there was a major spike in gun sales between March and May of 2020 in comparison to previous years, as well as a corresponding rise in gun deaths. As a result of these sales, there has been a corresponding sharp increase in requests for background checks, which puts immense stress on the National Instant Criminal Background Check System (NICS). Everytown notes that the primary and most dangerous consequence of this strain on resources is the so-called “Charleston loophole.” While federal law mandates that licensed gun dealers run a background check on any prospective gun buyer, this loophole allows any purchaser, even one with an incomplete background check, to proceed by default with their gun purchase if three business days have elapsed since the background check request was submitted – the technicality through which Dylann Roof was able to secure a firearm to kill nine Black churchgoers in South Carolina. As a result, a significant number of gun sales (potentially over 90,000) have been processed during the course of the COVID-19 pandemic thus far without complete background checks.

One of the most important issues facing this country today is gun violence and how to prevent it.  Lawyers can play a vital role in advising legislators who want to enact meaningful gun regulations, and by using their skills to try to prevent the adoption of laws designed to block meaningful gun regulations.  Last month, a Proskauer team achieved a victory with nationwide implications by persuading a Florida state trial court to strike down a Florida gun law as unconstitutional.

The Florida law preempted “the whole field of regulation of firearms and ammunition,” meaning municipalities and counties could not pass gun regulations.  Unfortunately, such a preemption provision is not unusual, but in 2011, the Florida legislature took it a step further by adding substantial penalties for violating the preemption.  Under the law, if a municipality enacts a gun law later found preempted, it is subject to a private damages lawsuit with liability up to $100,000, plus uncapped attorneys’ fees, and the legislators who voted for the preempted law are subject to a $5,000 fine and removal from office by the governor.