Off-duty cop who left gun in school bathroom could legally bring weapon there, Suffolk DA says
An off-duty police officer left his personal gun in a bathroom at Eastport-South Manor Junior-Senior High School on Monday. Credit: Tom Lambui
An off-duty police officer who left his personal gun in a bathroom at the Eastport-South Manor Junior-Senior High School didn't break state law when he brought the weapon onto school grounds, Suffolk District Attorney Raymond Tierney said Thursday.
Officer David Samartino, 47, who is also a school board member and a parent of two students at the school, left his personal weapon in the lavatory at about 6:30 p.m. on Monday during a special session of the school board, according to the district superintendent, Joseph A. Steimel.
In an interview Thursday, Tierney said the officer was exempt from a 2022 state law that forbids carrying firearms in sensitive places, including schools.
Asked whether the officer action's in misplacing the gun, now under investigation by the county police department's Internal Affairs Bureau, was subject to prosecution, Tierney said, “If we receive a referral, we would investigate it.” But he noted that those types of cases are “incredibly fact-specific.”
Not everyone agrees with Tierney's assessment.
Jerold Levine, an attorney specializing in New York firearms litigation, said Samartino broke the law.
“He’s got a problem,” Levine said. “Under federal law, you can’t bring a gun into a school.”
According to Levine, Samartino ran afoul of the federal Gun-Free School Zones Act, which bars weapons within 1,000 feet of a school, and the 2022 New York State Concealed Carry Improvement Act, which deems campuses as one of the places guns are prohibited.
Tierney did not comment on the federal law, saying only Samartino's actions in bringing the firearm onto the grounds were not illegal.
A 2020 U.S. Supreme Court decision struck down a New York law mandating gun owners articulate a need for carrying a gun before they could carry a concealed gun in public. But the high court also opened the door for states to limit where gun owners can bring their weapons.
The Concealed Carry Improvement Act restricted even licensed gun owners from bringing firearms into sensitive places, like polling sites, courthouses and schools.
The Second Circuit Court of Appeals reaffirmed these restrictions in a decision last week.
Both federal acts have carve-outs for police to carry their weapons at schools, but only the School Zone Act specifies that the exception applies to officers on duty.
“He wasn’t in the performance of his duties,” Levine said. “If you’re off-duty, you have no business bringing a gun into a school.”
Other legal scholars were less certain Samartino broke the law.
“Off-duty and on-duty lines are blurry,” Columbia Professor Jeffrey A. Fagan, who specializes in Second Amendment issues, said. “He is liable for the gun offenses, but I doubt any prosecutor would actually bring charges.”
A school custodian doing routine cleaning of the bathroom discovered the gun and alerted the building security. Suffolk police locked down the area around the bathroom temporarily before their investigation determined that Samartino had inadvertently left the gun behind after using the facilities. He was still in the building and returned to the bathroom within minutes to inform police that the gun was his.
District officials wouldn't comment on whether the officer's actions violated school policy and referred comment to law enforcement, saying the matter was under investigation.
The officer did not respond to a request for comment and other board members declined to comment on the incident.
The Concealed Carry law also requires that firearms be secured at all times, something Samartino clearly didn't do, according to John Jay College of Criminal Justice professor Warren Eller.
“What he could be charged with is reckless endangerment for failure to secure his firearm,” Eller said. “If you have a firearm, you do have an obligation to have it under control.”
Failure to properly store and secure a firearm also carries a fine up to $250 under the Concealed Carry law.
Suffolk County police would not disclose their guidelines to officers regarding personal firearms, and declined to say if officers received guidance on recent changes in the law.
A 2009 version of the Suffolk police department patrol guide states that officers “are responsible for the safekeeping, good care, proper maintenance and serviceable condition of all firearms issued to them by the Department and all pistols or revolvers personally purchased and possessed.”
The state Department of Education guidelines on firearms on school premises are hazy. Agency spokesman JP O’Hare could not articulate any policy New York has governing guns on school premises.
Levine said that Samartino’s prior disciplinary history would be a big factor regarding his criminal exposure.
“If he’s got no bad record, I can see the DA hitting him with a misdemeanor or deferring prosecution,” the lawyer said. The police department declined a request for his disciplinary history.
Samartino has more than two decades on the police department, he’s a member of the Suffolk PBA board of directors, a school board member and he coaches his kid’s soccer team.
PBA president Lou Civello expressed support for the officer while the Internal Affairs Bureau investigates, saying the gun incident “shouldn’t define his career.”
“The real problem is his job,” said Levine. “Is Suffolk County going to fire him?”
An off-duty police officer who left his personal gun in a bathroom at the Eastport-South Manor Junior-Senior High School didn't break state law when he brought the weapon onto school grounds, Suffolk District Attorney Raymond Tierney said Thursday.
Officer David Samartino, 47, who is also a school board member and a parent of two students at the school, left his personal weapon in the lavatory at about 6:30 p.m. on Monday during a special session of the school board, according to the district superintendent, Joseph A. Steimel.
In an interview Thursday, Tierney said the officer was exempt from a 2022 state law that forbids carrying firearms in sensitive places, including schools.
Asked whether the officer action's in misplacing the gun, now under investigation by the county police department's Internal Affairs Bureau, was subject to prosecution, Tierney said, “If we receive a referral, we would investigate it.” But he noted that those types of cases are “incredibly fact-specific.”
WHAT TO KNOW
- Suffolk County District Attorney Raymond Tierney said that the off-duty police officer who left his personal firearm inside a Eastport-South Manor Junior-Senior High School bathroom did not break the law in bringing the weapon on school grounds.
- The incident involving Suffolk police officer David Samartino, who sits on the school board and has two children who attend the school, is being investigated by the police department's Internal Affairs Bureau.
- Legal scholars and attorneys were divided over whether Samartino broke state or federal law by bringing a weapon into the school while off duty.
Not everyone agrees with Tierney's assessment.
Jerold Levine, an attorney specializing in New York firearms litigation, said Samartino broke the law.
“He’s got a problem,” Levine said. “Under federal law, you can’t bring a gun into a school.”
According to Levine, Samartino ran afoul of the federal Gun-Free School Zones Act, which bars weapons within 1,000 feet of a school, and the 2022 New York State Concealed Carry Improvement Act, which deems campuses as one of the places guns are prohibited.
Tierney did not comment on the federal law, saying only Samartino's actions in bringing the firearm onto the grounds were not illegal.
A 2020 U.S. Supreme Court decision struck down a New York law mandating gun owners articulate a need for carrying a gun before they could carry a concealed gun in public. But the high court also opened the door for states to limit where gun owners can bring their weapons.
The Concealed Carry Improvement Act restricted even licensed gun owners from bringing firearms into sensitive places, like polling sites, courthouses and schools.
The Second Circuit Court of Appeals reaffirmed these restrictions in a decision last week.
Both federal acts have carve-outs for police to carry their weapons at schools, but only the School Zone Act specifies that the exception applies to officers on duty.
“He wasn’t in the performance of his duties,” Levine said. “If you’re off-duty, you have no business bringing a gun into a school.”
Other legal scholars were less certain Samartino broke the law.
“Off-duty and on-duty lines are blurry,” Columbia Professor Jeffrey A. Fagan, who specializes in Second Amendment issues, said. “He is liable for the gun offenses, but I doubt any prosecutor would actually bring charges.”
A school custodian doing routine cleaning of the bathroom discovered the gun and alerted the building security. Suffolk police locked down the area around the bathroom temporarily before their investigation determined that Samartino had inadvertently left the gun behind after using the facilities. He was still in the building and returned to the bathroom within minutes to inform police that the gun was his.
District officials wouldn't comment on whether the officer's actions violated school policy and referred comment to law enforcement, saying the matter was under investigation.
The officer did not respond to a request for comment and other board members declined to comment on the incident.
The Concealed Carry law also requires that firearms be secured at all times, something Samartino clearly didn't do, according to John Jay College of Criminal Justice professor Warren Eller.
“What he could be charged with is reckless endangerment for failure to secure his firearm,” Eller said. “If you have a firearm, you do have an obligation to have it under control.”
Failure to properly store and secure a firearm also carries a fine up to $250 under the Concealed Carry law.
Suffolk County police would not disclose their guidelines to officers regarding personal firearms, and declined to say if officers received guidance on recent changes in the law.
A 2009 version of the Suffolk police department patrol guide states that officers “are responsible for the safekeeping, good care, proper maintenance and serviceable condition of all firearms issued to them by the Department and all pistols or revolvers personally purchased and possessed.”
The state Department of Education guidelines on firearms on school premises are hazy. Agency spokesman JP O’Hare could not articulate any policy New York has governing guns on school premises.
Levine said that Samartino’s prior disciplinary history would be a big factor regarding his criminal exposure.
“If he’s got no bad record, I can see the DA hitting him with a misdemeanor or deferring prosecution,” the lawyer said. The police department declined a request for his disciplinary history.
Samartino has more than two decades on the police department, he’s a member of the Suffolk PBA board of directors, a school board member and he coaches his kid’s soccer team.
PBA president Lou Civello expressed support for the officer while the Internal Affairs Bureau investigates, saying the gun incident “shouldn’t define his career.”
“The real problem is his job,” said Levine. “Is Suffolk County going to fire him?”
