An Army veteran of the Iraq War has been convicted under New York’s SAFE Act for possessing three 17-round Glock magazines.
Simeon D. Mokhiber, 42, who served seven years in the Army’s 82nd Airborne Division, avoided jail time but must perform 15 hours of community service by March 1 and pay $375 in surcharges. His three felony convictions will also prohibit him from owning firearms under federal law.
The SAFE Act is one of the country’s most draconian gun laws and prohibits possessing magazines capable of holding more than ten rounds of ammunition.
“I think that the SAFE Act is clearly unconstitutional,” Mokhiber said after his court hearing, according to The Buffalo News. “The Second Amendment is only one sentence long. It’s written in plain English, that one sentence, and the SAFE Act clearly violates it. It’s not a complicated matter.”
Testifying in his own defense, Mokhiber argued that the jury should ignore New York’s gun control law due to its unconstitutionality.
“The facts that I tried to get across to the jury are that our rights that are enshrined in the Constitution and the Bill of Rights are not for New York State or Gov. (Andrew M.) Cuomo to infringe upon,” Mokhiber said. “We have rights that are supposed to be protected. I think it’s important that a jury judge the law and the facts.”
Police stopped Mokhiber for speeding and driving while intoxicated in April of 2016. They searched his car and discovered three loaded 17-round Glock magazines in a container. There was no handgun in the vehicle.
A jury convicted Mokhiber in April of 2017 for possessing what New York’s law calls “high capacity” magazines, but they acquitted him of the drunk driving charge.
Niagara County Judge Matthew J. Murphy III passed the sentence. Mokhiber faced a maximum of 21 years in prison or five years of probation.
Murphy said his lenient sentence was “not a commentary on the New York SAFE Act,” but rather the result of the letters he received on behalf of Mokhiber. He told The Buffalo News that he has never received more letters in his 10 years on the bench.
Despite the light sentencing, Mokhiber and his team plan to appeal.
“We’re going to take it all the way,” said James M. Ostrowski, Mokhiber’s defense attorney. “We’ll look at every conceivable issue.”
If this case reaches the higher courts, it could provide an opportunity for a pro-gun ruling striking down bans on magazine capacities.