David A. Lewis, a college librarian from Amherst, got his pistol permit reinstated Thursday and is getting his seven guns back soon, but not before touching off a new round of debate over Gov. Andrew M. Cuomo’s NY SAFE Act.
Somewhere between the State Police in Albany and the Erie County Clerk’s Office in Buffalo, the wrong David Lewis lost his gun permit and his handguns.
The State Police blames the clerk’s office for not properly investigating the tip it forwarded. But Erie County Clerk Christopher L. Jacobs said the police sent him an actual copy of the permit for the Amherst man whose guns and permit were seized, allegedly because he had a mental illness and could be a danger to himself or others.
The man the police actually were concerned about was from another Western New York county, according to Jacobs.
But the State Police forwarded the permit of David Lewis in Amherst to his office as someone who may fall under the new gun law’s mental health provisions, Jacobs said.
Going on what the State Police provided, Jacobs said he forwarded it to State Supreme Court Justice M. William Boller. The judge in turn suspended the 35-year-old Amherst resident’s pistol permit, the first time for such action in Erie County under the new state gun law.
It wasn’t until Wednesday, several days after Lewis had turned in his guns, that the State Police notified Jacobs that a mistake had been made, Jacobs said.
“I think the judge will be very hesitant to trust information from the State Police until he is assured that they have got their process right,” Jacobs said. He added that both his office and Boller, who handles pistol permit issues, depend on law enforcement to verify if an individual has mental health issues and should not have access to firearms.
The State Police, however, stood its ground.
“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 said in a statement Thursday. “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.”
Other law enforcement officials familiar with the case said Jacobs should have contacted local police to investigate whether there were mental health issues warranting action against the pistol permit held by Lewis of Amherst.
Jacobs disagreed. “The clerk’s office is the administrative arm. We do not have an investigative role,” he said. “We depend on the State Police to do that function, and here they got it wrong. They had the wrong person. We just do not have any investigative role. To say we do now goes totally against what the governor said, that there would be no additional burden on us.”
In an effort to understand how the mistake occurred, Jacobs said he checked records at the state’s Division of Criminal Justice Services and discovered that a mental health official had filed a report concerning another individual with the same name living in another area county.
“It became clear that the New York State Police made a grave error and sent a letter with the attached pistol permit of the wrong person,” Jacobs said.
He said he has contacted his counterpart in the other county where the man in question lives and that county clerk is looking into whether the man has a pistol permit.
The News placed a telephone call to that county clerk to find out if any actions were being taken. “This entire process is confidential, and I cannot comment either way,” a deputy county clerk said.
The State Police in its statement stressed that the final determination on whether to suspend or revoke a pistol permit “rests solely with the county and licensing officials.”
Darcy Wells, State Police director of public information, said she had no information on whether other individuals in the state had been flagged as having mental health issues that may require denying them access to weapons.
Under the new gun-control law, mental health professionals are mandated to report to the local county commissioner of mental health if they believe an individual they are treating has the potential to harm themselves or others.
The Division of Criminal Justice Services then is required to determine if the patient has a firearms license, according to the governor’s website explaining how the new law works.
The state maintains copies of pistol permits issued by counties.
“If the patient has a firearms license, State Police will report that information to the local firearms licensing official, who must either suspend or revoke the license,” the website states.
The State Police, in the statement Thursday, said no firearms license “would ever be revoked for an anti-anxiety prescription.”
The Amherst man had taken anti-anxiety medication, his lawyer said.
Thursday, in reversing his decision to suspend the man’s pistol permit, Boller stated, “ ... this court has determined that the information received from the New York State Police, which served as the basis for suspension of the licensee’s firearms license, was in error. Specifically, the individual named pursuant to the New York SAFE Act was not in fact the above named licensee.”
Jacobs offered an apology to Lewis.
“I feel terribly for him. I think he has been thrust into the public spotlight through no fault of his own. His Second Amendment right has temporarily been infringed upon,” Jacobs said.
Lewis surrendered his guns to the Amherst Police Department last Friday, after receiving a letter from Jacobs earlier in the week directing him give up the guns and his pistol permit, following the suspension.
Lewis hired Hamburg attorney James D. Tresmond last week after he received a voicemail from a State Police sergeant in Albany requesting Lewis return his phone call.
“He was truly afraid of the police because he had done nothing wrong, and he was being investigated at the state level by a mysterious trooper by the name of Sgt. Jackson who left a very stern message for Lewis to contact him at the State Police Headquarters,” said Maximillian G. Tresmond, a law clerk in his father’s office.
James Tresmond returned the call on behalf of Lewis, leaving a message that was never returned.
Jacobs said his office also was contacted by Sgt. Timothy Jackson.
“We got a call on Monday from Sgt. Jackson wanting to confirm that Lewis turned in his firearms,” Jacobs said.
James Tresmond said he plans to file a lawsuit on Lewis’ behalf in U.S. District Court claiming that his rights to possess property – his guns – and receive due process before his permit was suspended were violated along with federal privacy laws regarding his medical records.
Maximillian Tresmond said Lewis has had a pistol permit for about two years.
“He had a permit for hunting and target shooting. He’s never been arrested in his life and never been declared mentally incompetent either,” Maximillian Tresmond said. “He never carried a concealed weapon and never posed a threat to himself or others.”
Jacobs said that the haste in which the SAFE Act was adopted created confusion that could again result in someone having a pistol permit improperly taken.
“This is exactly the reason why many people have expressed concern ... like the New York State Conference of Local Mental Hygiene Directors, on the serious problems of implementing the law,” Jacobs said. “I believe they need to go back to the drawing board and be more thoughtful on how they are structuring the mental health provisions.”