NEW YORK — It was 2:30 a.m. on Valentine’s Day last year when a detective watching a live camera feed from a major Queens thoroughfare spotted a man in a minivan who appeared to be holding a gun.
Police said they had quickly arrested the man, Robert Homer, and found a loaded Glock pistol in his pocket. When they checked his criminal record, they saw that he had a sex trafficking conviction. That made him ineligible for a gun license under federal law. He was indicted and pleaded not guilty to a charge of being a felon in possession of a firearm.
The case is now in jeopardy after a federal judge in Brooklyn ruled Feb. 5 that the police did not have probable cause to stop Homer. In the ruling, Judge Nicholas Garaufis cited a 2022 US Supreme Court decision that found citizens have a broad right to carry concealed firearms, overturning long-standing New York regulations. The case involving Homer is the latest test of gun laws in the state, where officials continue to grapple with how to square a legacy of strong gun control with the 2022 ruling.
Just nine days after Garaufis’s decision in Homer’s case, a defense attorney in a different gun case cited the ruling in state court in Manhattan, saying he understood it to mean that having a gun did not provide probable cause for an arrest. The judge in the state case, Abraham Clott, said he disagreed with the federal judge’s conclusion.
The Supreme Court decision — in New York State Rifle & Pistol Association v. Bruen — “has really upended America’s laws,” said Adam Winkler, a professor at UCLA Law. That it has come up in connection with Fourth Amendment questions about probable cause in the Homer case “just shows the profound impact that Bruen is having,” he added.
Homer’s attorney cited the Bruen decision in July when she moved to suppress evidence in the case. The lawyer, Marissa Sherman of the Federal Defenders of New York, argued that police officers had not had probable cause to believe that a crime was being committed when they searched Homer and found the gun.
If carrying a gun is not presumed to be illegal, then the simple sight of a gun would not be reasonable cause to stop someone, she argued.
Garaufis agreed. The question after Bruen, he wrote, was whether a police officer who sees an unidentified person with a gun “has an objectively reasonable ground to believe that person is guilty of a crime.”
In Homer’s case, the judge concluded, the answer was no.
On the night of Homer’s arrest, Detective Nicholas Conte of the 113th Precinct was watching a video feed from the Argus surveillance system, which police use in high-crime areas. Conte testified last year at a hearing before Garaufis that after a homicide, he had been assigned to a long-term investigation into a criminal gang whose members hung out on the stretch of Guy R. Brewer Boulevard where he saw Homer.
Prosecutor Raffaela Belizaire wrote in a court filing that Conte saw Homer shoving a firearm into his pants pocket as Homer sat in the driver’s seat of a parked van with two passengers inside. The detective testified that he had recognized the van as one used by the gang’s members but that he could not see the license plate number.
Belizaire wrote in the filing that officers had gotten to the van within minutes of Conte’s spotting the gun and had pulled Homer out, and that the episode had been captured on the officers’ body-worn cameras.
Garaufis, who was appointed to the federal bench by President Bill Clinton, said in his ruling that although the detective had determined that Homer had no “firearm discipline,” given the way he put the gun in his pocket, he had not observed other suspicious behavior. Homer “could have plausibly been licensed to carry the firearm,” the judge wrote.
A spokesperson for the U.S. attorney’s office in New York’s Eastern District declined to comment. Homer’s lawyer also declined to comment.
New York City’s history of strong gun control includes the issuing of few so-called concealed-carry licenses: Just 7,384, a number equal to only 0.1% of the city’s adult residents, were active the day the Bruen case was decided, according to an affidavit filed by Sgt. David Blaize of the Police Department’s License Division along with a recent prosecutors’ motion. Applicants used to have to show that they faced “extraordinary personal danger” to obtain such a license, Garaufis noted in his ruling.
After the Bruen decision, New York lawmakers passed new laws that directed officials to issue licenses to applicants who completed safety training, passed a firearms test and provided references to attest to their “good moral character.” Even so, the judge wrote, the state’s revised post-Bruen law was “broad enough that even alleged gang membership would not necessarily preclude the licensing officer from granting a firearm license.”
Felons still cannot possess guns in New York, and state law prohibits guns in sensitive areas, including on the subway, in Times Square and around schools. On the day Homer was arrested, eight months after the Bruen decision, the number of concealed-carry licenses had increased by just 237, according to the affidavit.
Garaufis said in his ruling that police officers could have stopped Homer, frisked him and run a license check to see whether there was probable cause to arrest him, but they arrested him immediately instead.
Further, the judge wrote, a “reasonably cautious police officer” would not assume that an “unidentified alleged gang member was a felon.” He also found that the link between the van and the gang was “tenuous at best.”
Eric Ruben, a professor at Southern Methodist University’s Dedman School of Law in Dallas and a fellow at the Brennan Center for Justice at NYU Law, cautioned that it will take a long time to resolve the swirl of legal questions related to gun possession in light of the Bruen decision.
Litigation around the country had centered on whether the presence of a gun allows people to be stopped and questioned at all, he said. And while Garaufis’ ruling appeared to be a loss for the police, Ruben said it contained an important clause in their favor: Stopping and frisking Homer, as the judge suggested, requires a lower threshold of reasonable suspicion of a crime.
“In light of what I’ve seen around the country on this issue,” Ruben said, “this actually can be viewed as a win for the NYPD.”
This article originally appeared in The New York Times.