by In the Westchester County, NY pistol permit case, Kachalsky et al v. Cacace et al, pre-motion conference letters have been received from both the plaintiffs and defendants. Judge Cathy Seibel maintains a set of Individual Practices governing cases in her court. With regard to civil cases, she requires an informal pre-motion conference before a party is allowed to submit a formal motion. Letters requesting a conference must be sent to the Court and to all the other parties. (Seibel, Individual Practices 1(A) (C) and 2(A)). The pre-motion conference is set for September 7th.
Letter for State Defendants Cacace and Cohen
The letter from New York Attorney General’s office which is representing Susan Cacace and Jeffrey Cohen, as might be expected, indicate that they will be seeking a dismissal of the case. They are also challenging the presence of the Second Amendment Foundation as a plaintiff. Anthony J. Tomari, Assistant AG for the State of NY, argues that SAF “alleges no facts specific to itself, but rather appears to rely upon those factual allegations pertaining to the individual named plaintiffs.”
In seeking to have the case dismissed, Tomari lists a range of reasons including that Heller did not preclude a prohibition on carry, that the case isn’t “ripe” because Kachalsky and Nikolov had their permits denied before the McDonald ruling, that this is something better left for state courts, that the plaintiff’s claims are barred because they lost in state court (Rooker-Feldman doctrine), that state judges can’t be sued under Sec. 1983, and finally, that the Equal Protection claim “is not factually developed.” In essence, he did a data dump and listed every conceivable reason that he could come up with to have this case dismissed.
Of the reasons listed, the most important for this case are probably the ripeness challenge, the fact that Cacace and Cohen are NY state judges, and the argument about Heller not precluding a prohibition on carry. The doctrine of ripeness asserts that a case must have matured into a controvery sufficient enough to warrant adjudication.Both Kachalsky and Nikolov had their permits denied before the McDonald case was settled. Under the ripeness doctrine, there may not be a controversy that needs to be settled as it was legal when they received the denial as the Second Amendment hadn’t been incorporated yet. With regard to Heller, New York is arguing that Heller and McDonald do not invalidate the state’s “full carry” licensing provisions as the decisions only preclude a prohibition on handguns in the home.
Letter for Kachalsky and Nikolov
In his letter to Judge Seibel, Alan Gura indicates that he will be seeking a motion to add additional plaintiff(s) and that he intends to file a cross-motion for a summary judgment. He notes the plaintiffs will respond separately to the letters from New York and Westchester County seeking a motion to dismiss.
Gura makes the point that the plaintiffs are not seeking to invalidate New Yorks “full carry” licensing provision as alleged by the attorney for Cacace and Cohen. The only regulations at issue is the “constitutionality of New York’s requirement that individuals demonstrate “proper cause” to obtain a permit to carry a handgun.” He contends that individuals may not be required to demonstrate “proper cause” in order to exercise a fundamental right.
He contests the notion that Cacace and Cohen cannot be sued because they are New York State judges. While they may usually acts as judges, when they denied Alan Kachalsky and Christina Nikolov their permits they were acting as administrative licensing officers. Gura notes that “no judicial function is questioned in this lawsuit.”
In his motion to add parties, he makes note of the State’s contention that the denial of the permits was legal when it was done (pre-McDonald).
The unavoidable suggestion is that Defendants might reach a different conclusion with respect to the permit applications today. However, Cacace and Cohen have not sought to moot this litigation by issuing Kachalsky and Nikolov their requested permits.
He says that he has an additional plaintiff whose permit was denied after June 28th (date of McDonald decision) and he is moving to add them to the case. While this person could file a separate lawsuit, it would be more efficient to just add them to the existing case.
Gura is also seeking a cross-motion for summary judgment. This is standard practice under the Federal Rules for Civil Procedure and that was what was done in the Heller case. He argues that in Heller, the Court found that “to bear” meant “to carry”. While the right isn’t unlimited, the Court “confirmed that there is a right to carry at least some weapons, in some manner, for some purpose.”
Westchester County is seeking a Fed. Rules of Civil Procedure 12(B)6 motion to dismiss the case. Under this rule, if there is a failure to present sufficient facts, when taken as true, would indicate that any violation of law occurred or that the plainitffs are entitled to a legal remedy, then it is grounds for dismissal. In other words, do the facts indicate that the defendant did anything that violated the law? Moreover, have they done anything for which the plaintiffs can ask the court to force the defendants to do?
Westchester argues in their pre-motion letter that there really is no claim made against the county but rather against NY State Penal Law Sec. 400. They go on to argue that Westchester County did not deny the permits but merely did the required background investigation and made recommendations to the licensing officers. They argue that the decisions were made by Cacace and Cohen who are not Westchester County employees and are paid by the State of New York.
The defendants in Kachalsky v. Cacace are exhibiting similar behavior to those in Peruta v. County of San Diego and Bateman v. Perdue. The common elements are a) reading Heller and McDonald as narrowly as possible so as to completely ignore the word "bear" in the 2nd Amendment and b) denial of any legal responsibility for their actions and c) unwillingness to moot the issue by granting the plaintiffs request (which would have the effect of making the suit go away and then they could still not issue permits to other citizens). Gura on the other hand is showing a trend too. He finds a plaintiff, files suit along with SAF and other institutional plaintiffs, then adds plaintiffs as he goes to strengthen his case. No defendant to date has just rolled over on the requests for summary judgment, and the strategy of all defendants is delay, delay, delay. For a bit of history, Brown v. Board of Education came out in 1954 – and in 1963 Wallace was still standing in the door of the auditorium and U of Alabama. Persistence is required yet.
@Mary: I think you've hit the nail on the head – in both your summation of the defendants and in their strategy of delay.
In this case, however, it is my understanding from Alan Kachalsky is that he found Alan Gura and not the other way around.