Attorney Barry Covert: Order of Protection Can Be Backdoor Gun Confiscation

Probably the most enlightening conversation I had at SHOT Show 2015 was with Barry Covert, an attorney from Buffalo, New York, who specializes in Constitutional law, including the First and Second Amendments.

We started out discussing the draconian New York SAFE Act, which was rammed through the state Legislature by Gov. Andrew Cuomo in the wake of the mass shooting at Sandy Hook Elementary School in Newtown, Connecticut.

The SAFE Act is a disaster. It’s no secret. And its dysfunction is something I’ve covered on numerous occasions. The question I had for Barry is whether the citizens of the Empire State have any chance of repealing the law or getting a judge or court to declare that it is unconstitutional?

Barry’s a realist. He explained while there does appear to be room for discrete challenges against the law, e.g. the provision that prohibits one from inheriting a so-called “assault weapon” from a family member (It’s lawfully owned property, why wouldn’t a son or daughter be allowed to inherit the firearm assuming the person is a law-abiding citizen?), the overall nuts and bolts of the legislation — the expanded definition of “assault weapon,” the “assault weapon” registry, the retroactive ban on magazines holding more than 10 rounds of ammunition, etc., will likely remain intact.

Ultimately, time will tell what happens with the SAFE Act. Let’s hope that the very Blue state that is New York has a come to jesus moment with respect to firearms. Don’t hold your breath though.

On the issue of Order of Protection, or retraining order, Barry had some very insightful comments. Basically, it’s not uncommon during an acrimonious divorce for one spouse to slap the other with an order of protection, even if no crime has been committed. It’s a way for that spouse to gain an upper hand during the divorce proceedings (especially if there are children involved) as well as to make the other’s life a living hell.

When an order of protection is issued in New York State (and many others) that spouse has to surrender to the state all his/her firearms, as Barry pointed out. Once this happens, it becomes very difficult for that individual to restore his or her Second Amendment rights. With courts and judges erring on the side of the accuser and not the accused, it becomes a form of backdoor gun confiscation.

What’s Barry’s advice? Well, if you see things start to unravel in your personal life, it’s best to lawyer-up and get out in front of the situation before things turn ugly.

{ 24 comments… add one }
  • Jim January 14, 2016, 8:09 pm

    The government killed more women and children at Waco than the Sandy Hook terrorist attach

  • Paul February 11, 2015, 8:53 am

    Sorry Barry, but absolutely no form of gun registration is ok. Not Ever. Point of sale is the only time there is any reasonable government oversight of gun transfer. All forms of registration are a wolf in sheep’s clothing toward bans and confiscation. Only lawyers without 2nd Amendment Guts would think otherwise. Total repeal of crap laws is in order here. Though shall not infringe is the most un-enforced law in our land due to liberals. Just like the borders of the USA, we don’t have an immigration problem, we have something analogous to an international criminal trespass problem, for which we have laws that liberals won’t enforce. If the line is too long at Walmart its ok to steal the TV? Politicians are the ones that should be sued and/or go to prison for Infringing on the 2nd Amendment. Believing we shouldn’t have guns is not a right to pass laws that infringe.

  • Julio Adolfo Galletti February 8, 2015, 2:23 am

    That is terrible. i just don’t understand how a law abiding person can be subjected to this. I guess you can leave the jurisdiction and take your guns with you. If you ever give them up, the chances of you getting them back are nil and none. As a lawyer, myself, I have seen bureaucracy fail and fail in a grand form. A traffic ticket that was paid, but not properly processed caused the issuance of a bench warrant. I.E. arrest on sight. Poor SOB got arrested for speeding on the far side of the state. A regular joe, working to make ends meet got hauled into jail, no bond, very far from home. He spent more time in jail proving his innocence than most felons do for crimes they have committed. That is the hallmark of a broken system.

  • CAESAR... February 6, 2015, 4:52 pm

    Just remain single….

  • michael douglas February 6, 2015, 3:28 pm

    If you really want to invite trouble, have an FFL and go through a divorce. She will turn on you like a snake, and the stuff she tells the feds will put you in prison. Stay single if you enjoy guns!!!!!

  • Larry February 6, 2015, 2:33 pm

    Born in Buffalo; live in Texas. The ‘climate’ is so much better here and I don’t mean just the weather. Glad I’m gone from there.

  • Jim Bower February 6, 2015, 2:25 pm

    Sad to say, but sometimes the best solutions is too just avoid the fight by moving. Would be nice if we could return the USA to the citizens.

  • law dawg February 6, 2015, 1:48 pm

    The first thing the law abiding citizens in this country should do is get rid of Obama, biden, pelozi, holder, alien head I owe millions to the IRS, Sharpton. That’s just a start….then we get rid of the liberals, like Bob Costa’s, and actors, like liam neesom ( non American) who spouts off about us having guns. The only way these people can be stopped is to put them in prison for all the laws they have violated. The regime currently in the white house are a cancer to our great country. They have no morals and they believe they are demi-gods who know better then everyone else…obama is a dope smoking, coke snorting, lying embecil who hates America. He’s a socialist commi with his own agenda which is to destroy the country. The forefathers of this nation had great hind sight and knew stupid people like Obama who spits out the same old rhetoric every time he opens his mouth would come along to reeked havoc. I’m sorry folks, I love this country and what it stands for…..by out lawing guns the government will make hard working honest people felons….the amendments, especially the 2nd one, has to be protected…. Wake up Americans!!!! the government is coming after our guns. What will be next, our homes, cars, bank accounts….. Think about it the murdering of babies, 55 million and counting, through abortion is condoned by our gov but its wrong for a person to posse a firearm which in many cases has saved peoples lives….big brother is coming folks and if we don’t make a stand we’ll be standing in a FEMA line waiting to get a blanket and a box of starchy food…..let’s vote them out and get honest people in there and if they don’t work out, get rid of them. Wishful thinking.

    • John Nuckols February 6, 2015, 7:34 pm

      You Mention Abortion That Is A Womans Right Just Like The 2nd Admendment Why Take Away Any Of Our Rights But The Abortion Comment Makes Me Think About Some Catholics Saying Abortion Is Wrong But The Father’s (Presist) Molesting The Young Boys Of The Church Is Ok That Is As Or More Harmful Than Abortion As It Screws Up Thier Heads Forever That Maybe Where Some Of Our Worst Criminals Come From, The Sexualy Abused, Give Up None Of Our Rights !

    • John Nuckols February 6, 2015, 7:51 pm

      Abortion Is A Womens Right Just Like The 2nd Admendment Is Everybodies Right, By The Way Your Comment Sounds About Abortion I Think Of The Many Catholics Who Think Abortion Is Wrong But Child Molestion By The Catholic Priest Is Ok. To Me It Is Worse To Molest The A Child It Screws Up Their Heads And Possibly That Is Where We Get Some Of Our Worst Criminals Because The Church Said It Was Ok. We Should Not Give Up Any Of Our Rights Or Mention Trying To Do Alway With Them Or The World May End Up With More Child Molesters Which Need To Be Shoot With Our Guns Children Are Innocent!

    • Mariano C. February 6, 2015, 8:34 pm

      WELL SAID!!! GET RID OF THESE TYRANTS.

    • rayber5901 February 9, 2015, 2:32 pm

      WOW.. Such hatred. The talking heads have taught you well. Either you are one of the very rich or a fool. I have no desire to debate with some one so well educated but I have one question. PLEASE tell all the readers what President Obama has done to effect your guns ownership. Not BS from some mouthy FOX TV characters, (heaven forbid Rush Limbaugh, or the the NRA talking head LaPierre that lies more then most and does as much damage as the gun haters themselves. Tell us what laws that have been presented , what presidential decree, what paper he has written……..

      He did make a statement about addressing some gun control on the”assault type rifles” right after the kids were shot in Connecticut. But it never happened. It was a supporting statement for the grieving population. He knows it’s wrong. He has stated many times that will always support the Constitution and our 2nd amendment rights. He signed 2 bills that came out of congress that were presented before he took office. Both were good for gun owners. The primary good one was so that we could have a loaded and concealed weapon in our National Parks. That’s not a denial of ownership. The Obama haters who frequently are just racists have this hate thing going and lies abode. Some individual will announce a couple statements he made in collage debates. Statements he made 30 years ago while in school. If those are a concern then listen to what your present top dogs that want to be our next president. Women’s rights are tanked, WAR , WAR WAR.. decreased taxes on the very rich, more unchallenged contracts to large companies Companies that they hold stock Better do some checking on real facts before having a stroke writing all the hate stuff you spewed. Don’t forget to come back and tell us the laws that Obama has signed effecting your gun rights. How much he raised your taxes. How much your pay has been cut, How bad the unemployment has gotten. Spew some true facts. SHOW US. We don’t want to know what he can do, what he’s going to do (when) we want to know what he has done to effect your 2nd amendment rights.

      • Paul February 11, 2015, 8:59 am

        Go back to sleep rayber5901. If we have to tell you how dumb Obama is there is no talking to you about anything that matters. So go back to sleep. Someone will wake you and the other Liberal Drones when its time to get on the bus to vote for Hillary.

  • Chris Miraglia February 6, 2015, 12:37 pm

    I resolved all the problems of the “Safe Act” and the only solution. I moved out of the state.

  • john j February 6, 2015, 11:02 am

    This lawyer barry is a dumb a** !!! really that is his advice? No wonder NY’ers are in the situation they are in. How about getting a grass roots gun owner rights organization together, how about funding it, how about starting to file every single complaint and document and motion allowed by law. how about fighting back and not being cur and spineless. Take your state back, stand up.
    The law is is one spouse files for a protective order without good cause or valid reason that spouse can have a complaint shoved up their a** in proper fashion. NY is an extremely corrupt state, ask speaker silverman, and Cuomo is an Italian gangster like his father with a fancy education. get some balls NY.
    And Really Guns America???? Why in the name of anyone would you seek out a Constitutional Lawyer from the State of NY !!!! They have not done their job, they are examples of losers, whipped cur dogs. Not someone we should be taking advice from in any case!!!!!!

    • Pat February 12, 2015, 2:22 pm

      Brilliant statement there “john j” [and I assume you are not THE John Jay of Supreme Court fame]. I don’t disagree with you for a minute that, despite many well-meaning and honest politicians, NY State politics is as corrupt as the day is long. However, to paint the entire population of NY as “cur [whatever the hell that means] and spineless” is a bit naive. I’m not sure what the total has mounted to in legal challenges to the “Safe Act”, but I am confident if is in the hundreds of thousands of dollars. And those hundreds of thousands of dollars has been raised by a small minority who support and defend the 2nd Amendment. Unfortunately, New York (like the rest of the country) is controlled by a MAJORITY. Because you may reside in a state where the majority supports the 2nd Amendment, does not mean there is not a like-minded minority in some other state – and it certainly does not mean that minority is “spineless” because the law does not go their way. Indeed, perhaps it is YOU who is spineless because it was easier for you to move to or continue to reside in a state that accepts guns rather than fight to gain acceptance.

  • Joe February 6, 2015, 9:26 am

    So I decided to send somebody to the lower east side to find out the average street persons take on New York’s gun laws.
    My investigator spoke with a kindly street corner business owner we will refer to as Rufus.
    Rufus stated that when he is “taken out” he wants his Mac 10 that he lovingly calls his “Mac Daddy” to go to his son and vice president or “VP” as he calls him.
    .But Rufus also stated that he didn’t care about “no stinkin gun lawz” and he also stated that he “waznt gonna let VP get hiz mitts on his Mac Daddy befo his demize cus dat no good so n so might take the biz fo himself n leave him out in da cold”.
    As for the “foot powder” he peddles on the corner, I find it makes my feet numb but every half hour My leg twitches and the heel of my foot hits my buttocks til I pour more of that powder on it.
    If anybody knows what corner Rufus is currently working on please let me know because i’m low on powder and my butt is getting sore.

    • O February 6, 2015, 10:50 am

      Hehehehe

  • James February 6, 2015, 8:43 am

    Gun owners in NY should file an order of protection against their state government.

    • John j February 6, 2015, 11:04 am

      I agree, THEY SHOULD BLOODY WELL DO SOMETHING. NY the example of how “not” to do it.

      • grifhunter February 6, 2015, 8:08 pm

        Do what? The state is controlled by the downstate urban centers of the city and its suburbs, all Dem controlled.

  • rev dave February 6, 2015, 8:16 am

    Lawyering up is just plain good advice any time your life starts to unravel. Also, get your guns off premises and preferably out of state so they cannot be confiscated. And that is also good advice for your silver or gold stash and tools too. Just be sure that you are the only person who knows where your stuff is hidden. You may even want to leave the state to keep yourself intact. Vindictive spouses will go to any length to make you suffer, and as soon as they realize you are trying to protect yourself they often try to ratchet up on the pain factor. Many of the guys in prison on drug or illegal gun charges are there because an angry woman called the cops to ‘punish’ him.

    • Rayber5901 February 9, 2015, 1:44 pm

      rev dave, I agree with “lawyering up” when things begin to unravel. Our former Commonweath Attorney actually recommends you find a lawyer at this time so you don’t say or do anything stupid that can’t be changed later. BUT, your last statement sounds like you were supporting drug users and illegal guns. These people belong in jail. If it’s the wife, girl friend or other that turned him in , oh well. There was a reason, revenge but maybe there’s a good reason like he’s been doing drugs in the house, kids, illegal guns. She doesn’t want to go to jail as an accomplice etc. And don’t you think that these are the same guys that smack the crap out of women just because. These guys need to be taken out of our society not supported. Confiscation of weapons from felons takes some of the BAD out of owning a gun. Our sheriff was auctioning them off. He supports private fire arms. I believe the state has stopped that process. I’ve been out of that loop for a few years.
      I have not read this new law in NY. It sounds like an unconstitutional law but like the media, I want to see it myself not an individual’s interpretation. Confiscation with out cause is wrong. ” innocent until proven guilty”. We have to stand by the constitution . Yes, the real bad dude will hide things and they may run
      The people of New York can change their laws. GO VOTE. The people put these idiots in office. Did they know who they were voting for..no.. most didn’t. They voted party lines or who the ass on the radio said to vote for. We all listen to the media but especially the networks are slanted very hard one way or another. Fox news is horrible. The slanted views are often boldface lies but the American people think they are the truth from God.
      Enough time on the soap box.
      Ray

  • Steve February 6, 2015, 8:05 am

    Politicians don’t give a damn about these mass shootings, it’s just ammo for their political agendas, and nothing more . They are as sick in the head as the ones who did the shooting.

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