DA says he will not prosecute SAFE Act provision ruled unconstitutional

Nov 20, 2018

Erie County Distict Attorney John Flynn says he is dropping criminal charges against 23 individuals for having too many cartridges in a gun magazine. The DA says that comes a result of an appeals court decision declaring this particular section of the SAFE Act unconstitutional.

"I'm going to dismiss those charges and I'm going forward on the law in this charge," Flynn said Monday.

There are others who have either been convicted on this B misdemeanor in the past or pleaded guilty. Flynn says they can ask to have their records cleared.

Credit File Photo / National Public Radio

"They can't appeal. They can file a 440 motion," Flynn says. "So their defense lawyer can file a 440 motion and say, 'In the interests of justice, Mr. Flynn, these people were found guilty of this and now you aren't prosecuting this anymore' and I'll take those on a case-by-case situation."

However, Flynn was careful to say that all of those 23 will not be walking away from the legal system, since many also face other weapons charges.

Federal District Judge William Skretny originally ruled this section of the SAFE ACT ws unconstitutional, a decision upheld by the Federal Second Circuit in Manhattan in 2015. The DA says the law was passed before he came into the job and he was only recently told about the court decisions.