SAF sues Westchester County, NY to block "good cause" requirement for CCW

krucam · Sep 6, 2011

Someone (Patrick?) just Recapped the Opinion at 13:36. Thanks to whoever.

OPINION: http://www.archive.org/download/gov.uscourts.nysd.365487/gov.uscourts.nysd.365487.80.0.pdf

krucam · Sep 6, 2011

What a shallow reading and subsequent ruling. This court was clearly not going to be swayed by anything Plaintiffs presented.

Fail fast, It will probably be on Appeal to the 2nd before Friday.

Court Rules
SAF Standing
Younger Abstention (Gansler tried this in Woollard), Pullman Abstention, Burford Abstention...arggh, did Defendants really argue that??
Rooker-Fieldman Doctrine
County as a Proper Party
Heller overturned a prohibition of firearms in the Home (you can guess where this is leading)

They skirted outside the Open/Concealed carry argument entirely, saying everything outside of hunting is ok to prohibit. Also, Plaintiffs didn't apply to carry a handgun openly, it was to carry concealed. How about that for skirting around "Bear Arms"

Ugly...

press1280 · Sep 6, 2011

Not unexpected. The weird part for me was the judge talking about Nunn,Chandler, and the other 19th Century state cases banning CC while upholding OC. The judge seems to almost imply that plaintiffs should have asked for OC instead of a CC license. The judge also basically says as long as public carry isn't 100% banned, it's OK. So under this judge's logic, as long as a few token permits are issued then that's it;the 2A is satisfied. Judge uses intermediate scrutiny but the data relied upon is very much dated and doesn't take into account the 40 plus states with shall-issue laws.
While a win would have been better, the good thing is a decision was finally made. We'll probably see the appeal to the 2nd Circuit any time now, although I see that appeal will probably be stopped when SCOTUS grants certiorari to one of the other cases waiting.

Patrick · Sep 6, 2011

krucam said:
What a shallow reading and subsequent ruling. This court was clearly not going to be swayed by anything Plaintiffs presented.

Fail fast, It will probably be on Appeal to the 2nd before Friday.

Court Rules
SAF has no Standing
Younger Abstention (Gansler tried this in Woollard), Pullman Abstention, Burford Abstention... denied arggh, did Defendants really argue that??
Rooker-Fieldman Doctrine in favor of plaintiffs
County as a Proper Party not decided
Heller overturned a prohibition of firearms in the Home (you can guess where this is leading)

They skirted outside the Open/Concealed carry argument entirely, saying everything outside of hunting is ok to prohibit. Also, Plaintiffs didn't apply to carry a handgun openly, it was to carry concealed. How about that for skirting around "Bear Arms"

Ugly...

What he said, with my additions in bold.

It is not all bad. The judge said the individual plaintiffs have standing, even if the SAF does not, apparently because none of the plaintiffs were SAF members (huh?). The judge also ruled on the Second Amendment issues and used those to deny the motion.

This is good news for appeal. The reason the states keep tossing Younger and other abstention issues out there is to force appeals to be about standing and "threshold issues", as the judge put it. Literally, they want to fight over whether they should fight. By dispensing with those threshold issues, the fight is on.

The judge denied the 2A claims entirely using all the expected misconstructions and contextual analysis - I am particularly irked by some of it but will save the words for another day. This is important and helpful, because it means the appeal is about the right, not the fight. If that makes sense.

Put succinctly: The appeal will be about the Second Amendment. That is our backyard and our turf. We will eventually win.

My only complaint is that I wish this had been ruled upon months ago. As Mark notes, the appeal will probably be fined within days.

rambling_one · Sep 6, 2011

Grrr!

yellowfin · Sep 6, 2011

It was a "let them eat cake" attitude on need for self defense:

The statute does not function as an outright ban on concealed carry, but rather calls for individualized, case-by-case determinations regarding whether full-carry permit applicants have an actual and articulable—rather than merely speculative, potential, or even specious—need for self-defense. As crafted, the statute seeks to limit the use of handguns to self-defensive purposes—a use which, although in this context existing outside the home, is nonetheless a hallmark of Heller—rather than for some other use that has not been recognized as falling within the protections of the Second Amendment. This purpose is furthered by the statute’s directive that full-carry permits “shall be” issued where there exists proper cause—rather than directing merely that permits “may” be issued in such instances.
....

First, a plaintiff must “demonstrate that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination.” Id. Second, he must show that “the disparity in treatment cannot survive the appropriate level of scrutiny.” Id. The claim fails, as Section 400.00(2)(f) does not treat similarly situated individuals differently, but rather applies uniformly. Further, all full-carry permit applicants are not similarly situated because some can demonstrate “proper cause” for the issuance of a permit, while others cannot.

Also she says the state has an interest in limiting number of legal carriers because criminals carry guns in public--disgustingly dishonest.

Al Norris · Sep 6, 2011

I honestly didn't expect anything different.

I thought the concluding remarks were more of putting a ribbon on the gift wrap to the State.

For the reasons stated above, I hereby DENY the State Defendants' and the County's Motions to Dismiss, DENY Plaintiffs' Motion for Summary Judgment, and GRANT the State Defendants' Cross-Motion for Summary Judgment. Although the County has not cross-moved for summary judgment, I hereby GRANT it summary judgment sua sponte. The Clerk of the Court is respectfully directed to terminate the pending motions, (Docs. 30, 33, 39,42), and close the case.

Judge Siebel can footnote that sua sponte decision all she wants. All she really said was that she was finished with the case, and refused to hear more of it.

Papi4baby · Sep 6, 2011

Al Norris said:
I honestly didn't expect anything different.

I thought the concluding remarks were more of putting a ribbon on the gift wrap to the State.

Judge Siebel can footnote that sua sponte decision all she wants. All she really said was that she was finished with the case, and refused to hear more of it.

So pretty much, she refuses to do her job and decides to wash her hands of it :sad20:

.

hvymax · Sep 6, 2011

Papi4baby said:
So pretty much, she refuses to do her job and decides to wash her hands of it .

More like put her fingers in her ears and shouting lalalalalalalala.

Afield · Sep 6, 2011

Heller lost at District. McDonald too. Any reason this should be different?
Right now we just need answers, any kind, so this process can keep moving.

Patrick · Sep 6, 2011

Afield said:
Heller lost at District. McDonald too. Any reason this should be different?
Right now we just need answers, any kind, so this process can keep moving.

Lose fast.

SkunkWerX · Sep 6, 2011

As was pointed out, at least we are now able to get these cases centered on 2A, directly, and not on one of the other diversions and adventures the antis would like to see.

We need 2A rulings. We need 2A rulings from higher courts.
We need 2A rulings from higher courts to stomp down the cowards in the state and lower courts who refuse to actually deal with the issue at hand.

It is becoming more apparent that the beating around the bush is about to end. They are quickly running out of rope. And each one of thee cases further cinches the noose that is the 2A fight.

Another year or two and the landscape will be changed for a good long time.
Despite these little bumps along the way, we are winning.

And soon (in geologic/court time) we will win BIG.

Patrick · Sep 7, 2011

Excellent points about the overall state of affairs. I think you hit on the head something really important: that most of these cases have already expired the 'adventures' in litigiation and are now at the point the courts must rule on the merits of our claims. From now on, many of these cases are going to about 2A.

Jurisprudence is the thing the courts claim they lack when it comes to 2A. We need these ruling to create that jurisprudence.

But we are losing! How can that be good?

We are losing due to what we contend are fundamental errors in law. Every case that falls based on an 'in the home' standard of 2A is hanging by a single perilous thread. Sever it and they all crash and burn at the same instant. Each of those cases then rules in favor of...us. That is the kind of jurisprudence we need.

The SAF understood this early: File lots of cases in lots of places. Rack up huge losses, then let one or two move to the top and get decided in our favor by the Supreme Court. Instantly convert all those losses in all those places into our wins. Then all future issues are compared against those wins, not just one or two. It is a steamroller of jurisprudence that will be impossible to undo.

If this works out, there will be more positive jurisprudence on the Second Amendment than exists on abortion or most any other right other than voting or 1A. All in about six years.

Future courts will have no choice, and that is exactly as it should be.

Of course, if the Supreme Court rules against our views then this boomerangs back at us in bad ways. But reward requires risk, and I think the Court has pretty much decided the issue already. The other side apparently agrees. This is a risk worth taking.

yellowfin · Sep 7, 2011

Another thing to note is that this ruling is almost entirely based on NY state court cases that are all pre-Heller and McDonald, continuing the anti gun tradition of NY. What an ugly tradition it is, too, when you look at the cases, which entirely disregard any concept of individual rights or equal protection under the law. It succinctly illuminates the position of NY government's relationship to its citizens as an absolute dictatorship, totally repugnant to the American conceptualization of liberty.

MDFF2008 · Sep 7, 2011

Can/Do Circuit judges ever order a new judge at the district level?

It seems some of these judges refuse to do anything even when the Circuits tell them to do it.

Patrick · Sep 7, 2011

Yes. Our own Woollard case had a change in judge for what we presume to be scheduling reasons; and Palmer in DC was reassigned after the chief judge of that district realized they could not complete it in due time. So the Chief Justice of the Supreme Court was asked to reach out of circuit and find someone else to sit in.

It happens. The federal court system is seriously bogged down. Justice Roberts - who is in charge of the whole system - has been pushing Congress to fill existing openings quickly and to consider creating new judges in some circuits. There is also talk of splitting the Ninth because of its enormous size - it is the largest circuit in the US and handles a great number of cases.

Sportstud4891 · Sep 7, 2011

....regulating concealed firearms is an essential part of [the] County’s efforts to maintain public safety and prevent both gun-related crime and, most importantly, the death of its citizens....

....the Court recognizes not only that many violent crimes are committed by those carrying handguns illegally....

So how does regulating help again??

yellowfin · Sep 7, 2011

Patrick said:
The federal court system is seriously bogged down. Justice Roberts - who is in charge of the whole system - has been pushing Congress to fill existing openings quickly and to consider creating new judges in some circuits. There is also talk of splitting the Ninth because of its enormous size - it is the largest circuit in the US and handles a great number of cases.

Why not solve the problem the real way be repealing most of the federal laws so there's less to clog up the courts with? Seriously, there is NO reason to have laws for every single aspect of every individual's life and business, last reported at over 356,000 pages of US code NOT including the tax code and administrative rulings. That's the problem. We should have MAYBE 10% of that. Leviathan needs to buzz off.

Patrick · Sep 7, 2011

yellowfin said:
Why not solve the problem the real way be repealing most of the federal laws so there's less to clog up the courts with? Seriously, there is NO reason to have laws for every single aspect of every individual's life and business, last reported at over 356,000 pages of US code NOT including the tax code and administrative rulings. That's the problem. We should have MAYBE 10% of that. Leviathan needs to buzz off.

I am all for reducing regulation, but most regulation is a response to some question posed to a court because no regulation existed...

In other words, reducing regulation has the net effect of increasing the gulf between "absolutely known" (i.E: heavily regulated) and "unknown". Courts exist to answer the questions in between.

I'm not arguing against reduced regulation...just pointing out one of the costs of doing so.

Hopefully we get another strong showing for the right from the Supreme Court, plus a little help on place restrictions and permits. That essentially creates a strong "regulation" of the right in our favor - after all, the Constitution is technically a binding legal document...i.e: "regulation". Some strong opinions (referencing Ezell for kicks) would save us some litigation going forward. I see the Williams/Masciandaro pair as a chance for two "two-fers".

SkunkWerX · Sep 7, 2011

Patrick said:
We are losing due to what we contend are fundamental errors in law. Every case that falls based on an 'in the home' standard of 2A is hanging by a single perilous thread. Sever it and they all crash and burn at the same instant. Each of those cases then rules in favor of...us. That is the kind of jurisprudence we need.

I like the thread analogy.
I also look at the current situation like a house of cards. The "house" was built as far back as the early 1900's. States like MA, IL, CA, NY, NJ, MD and others embraced gun control, and built their houses of cards, then, defended them via their in-state lower court system, backed by a fairly liberal higher federal system, starting when FDR appointed the first large batch of liberal activist judges.

Fast Forward to today. These houses of cards don't necessarily have to be dismantled in the order the cards were placed. As we know, pull the right card, and the entire house caves in.
However (caveat) there is a certain direction we want this house of cards to fall, so there are cards we knowingly stay away from pulling. Not that they are complete show stoppers, but they could delay the finality of the game by months or years. We all prefer it's done in the most efficient way possible.

And there is not just one house of cards, each state has their own, and the feds have a few of their own. It's a whole neighborhood built of card houses.

Our heroes, such as Gura, are the maestros we entrust to pull the proper cards, in the correct order, so as to facilitate the best outcome.

Currently there are numerous card houses that are teetering badly. If one falls, like our own Woollard or Williams cases, or some of the others nationally, it may likely fall into another card house, which will bring it down, and so on. Sometimes a card is pulled and nothing happens, other times (Heller) a card is pulled and an entire card house comes crashing down. Each one of these cases we watch has huge potential.

Sometimes these analogies are the only way I can wrap my head around the entire enchilada.

I'm sitting and watching the game of "Bring down the houses of cards" right here at Maryland Shooters, with play by play being called by Patrick, Mark, Al Norris, and many others. Thanks guys! :popcorn:

SAF sues Westchester County, NY to block "good cause" requirement for CCW

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