In the list of orders issued today by the US Supreme Court was an order of certiorari denied for Kachalsky et al v. Cacace et al. This was the case from New York which challenged the Sullivan Law and its restrictions on carry.
Attorney Generals from 20 states have filed an amicus brief in support of the Second Amendment Foundation’s petition for a Writ of Certiorari before the US Supreme Court. This brief is in addition to supporting briefs from the NRA, the Cato Institute, and others.
BELLEVUE, WA – Twenty state attorneys general have filed an amicus brief to the U.S. Supreme Court in support of the Second Amendment Foundation’s petition for a Writ of Certiorari in a case challenging New York’s gun permitting statute, along with several other interested parties that have filed their own briefs.
The case is known as Kachalsky v. Cacace and was argued before the Second Circuit Court of Appeals. SAF is represented by attorney Alan Gura, who won both the Heller and McDonald Second Amendment cases before the Supreme Court.
“We are delighted at the support being shown by attorneys general in Alaska, Alabama, Florida, Oklahoma, Nebraska, New Mexico and 13 other states, and particularly for the leadership of Virginia Attorney General Kenneth Cuccinelli in bringing them all together,” said SAF founder and Executive Vice President Alan Gottlieb. “This case is all about an individual’s right to carry a firearm outside the home for personal protection, and it is gratifying to see so much support.”
In addition to the brief filed by the attorneys general, supporting amicus briefs have also been filed by the Center for Constitutional Jurisprudence represented by former Attorney General Edwin Meese III, the National Rifle Association represented by former Solicitor General Paul D. Clement, plus the American Civil Rights Union, Academics for the Second Amendment, Cato Institute, the Second Amendment Preservation Association, New Jersey Second Amendment Society and Commonwealth Second Amendment, Inc.
“This is an important case,” Gottlieb said, “and that’s why so many parties are interested and supportive of our issue.”
SAF and the five individual plaintiffs are challenging whether the state can arbitrarily restrict the Second Amendment right to bear arms outside the home by requiring people to prove a special need to the satisfaction of a government official.
“Our case is about equal protection and the arbitrary authority of government officials to essentially decide on a whim whether average citizens can have the means of self-defense outside the confines of their home,” Gottlieb said. “Most crimes happen away from the home, and it is in public places and on public streets where a citizen is most likely to encounter a life-threatening situation where he or she might have to defend themselves.”
UPDATE: Dave Hardy of the Of Arms and the Law blog has links to all the pro-Kachalsky amicus briefs. You can find them here.
Kachalsky v. Cacace was the second case filed by the Second Amendment Foundation after their Supreme Court win in McDonald. It challenged the State of New York’s requirement to show “good cause” before the issuance of a carry permit. Judge Cathy Seibel using intermediate scrutiny found for the defendants and against the plaintiffs saying that the State of New York had an important governmental interest in regulating carry. She also said that the Second Amendment protections as affirmed in Heller only applied to “hearth and home.”
Alan Gura filed a notice of appeal on September 12, 2011 to the 2nd Circuit Court of Appeals. The oral hearings were finally held late last month on August 22nd. The judges hearing the case were Judge Robert Katzmann (Clinton appointee), Judge Richard Wesley (George W. Bush appointee), and Judge Gerald Lynch (Obama appointee).
The 2nd Circuit does not automatically publish the audio file of the oral hearings unlike some other circuits like the 7th. Fortunately, thanks to a generous donor who paid for the audio files, Maryland Shall Issue was able to get a copy and has posted them on their website. You can find it here. The entire hearing runs for about 36 minutes.
Thanks to the contemporaneous notes sent to me by a reader who attended the hearings, I was able to follow most of it. The primary questioners of Alan Gura were Judge Wesley and Judge Lynch with the occasional question from Judge Katzmann. I have to admit that their accents are so similar to me that it was hard for me to distinguish between them.
Judge Wesley did admit to being an avid hunter but then went on to say that he didn’t know if handguns were the preferred weapon of choice for home defense. I guess it wouldn’t be too smart to call a judge a Fudd.
I think it went well enough and I share Sebastian’s cautious optimism on the outcome of the case. Alan Gura is an exceptionally skilled appellate attorney and held his own very well. When the judges would go off on tangents he would still make sure to reiterate his essential points regarding the Second Amendment, Heller, and carry.
In a move that was expected, Alan Gura filed a notice of appeal with the 2nd Circuit Court of Appeals in Kachalsky v. Cacace. This is the case challenging New York State’s requirement to show “proper cause” for a pistol carry permit. From the docketing notice:
Date: September 12, 2011
Docket #: 11-3642
Short Title: Kachalsky v. Cacace
DC Docket #: 10-cv-5413
DC Court: SDNY (WHITE PLAINS)
DC Judge: Seibel
A notice of appeal filed by Alan Kachalsky, Christina Nikolov, Johnnie Nance, Anna Marcucci-Nance, Eric Detmer in the above referenced case was docketed today as 11-3642. This number must appear on all documents related to this case that are filed in this Court.
The notice of appeal consisted of Judge Seibel’s decision in the case plus the docket history of the case from the District Court.
In a rather gloating press release, New York Attorney General Eric Schneiderman touts the state’s win in Kachalsky et al v. Cacace et al. To say Judge Seibel’s decision was a win for the United States Constitution is ludicrous.
I’m sure Mayor Richard Daley of Chicago said similar things when Chicago won in McDonald v. Chicago at the lower court levels. However, he was crying in his beer after the Supreme Court ruled for Otis McDonald and the rest of the plaintiffs in their landmark decision applying the Second Amendment to the states through incorporation.
In light of the number of shootings in New York City over the past weekend, the statements of Richard Aborn, head of Citizen’s Crime Commission of NYC and former President of the Brady Campaign, ring hollow.
WHITE PLAINS – Attorney General Eric T. Schneiderman today announced that his office has won a major court victory in defense of New York State’s gun safety laws. In a decision in the case of Kachalsky, et al. v. Cacace, et al, a federal judge in the Southern District of New York rejected a constitutional challenge to New York’s handgun licensing statute, ruling that individuals do not have a constitutional right to carry a concealed handgun in public.
“Every day, my office fights to ensure all New Yorkers are safe and secure in their communities,” Attorney General Schneiderman said. “This means ensuring that our state’s gun laws are protected and vigorously enforced. This federal court decision is a victory for New York State law, the United States Constitution, and families across New York who are rightfully concerned about the scourge of gun violence that all too often plagues our communities.”
“This is a major victory for the public safety of all New Yorkers,” said Jackie Hilly, Executive Director of New Yorkers Against Gun Violence. “We applaud Attorney General Schneiderman for vigorously defending the state’s gun laws that clearly indicate that individuals have no constitutional right to carry dangerous, concealed weapons in public. For law enforcement officers and communities across this state, this decision means fewer deaths and injuries – it’s that simple.”
“This critical decision protects New York’s right to decide the conditions under which a concealed weapon may be carried,” said Richard M. Aborn, President of Citizens Crime Commission of New York City. “As a result of Attorney General Schneiderman’s aggressive defense of our state’s gun laws, our communities will be safer and more secure.”
In Kachalsky, et al. v. Cacace, et al, five individual plaintiffs residing in Westchester County, and one organization, the Second Amendment Foundation, Inc., argued that the “proper cause” provision of the New York law governing the issuance of licenses to carry concealed handguns in public violates their rights under the Second Amendment to the U.S. Constitution as defined in two recent landmark decisions by the United States Supreme Court, District of Columbia v. Heller and McDonald v. City of Chicago. The “proper cause” provision requires a license applicant to show “a special need for self protection distinguishable from that of the general community or of persons engaged in the same profession.”
The defendants in this case, four State Court judges who also serve as “licensing officers” under the New York statute, were represented by Attorney General Schneiderman’s office, which argued that the “proper cause” provision of the New York law did not violate the Second Amendment as described by the Supreme Court in Heller and McDonald. Judge Cathy Seibel agreed, ruling that the Second Amendment provides the right to keep arms for the purpose of self defense in the home, but does not extend to a right to carry concealed handguns in public.
The judge further ruled that even if the Second Amendment were read to cover such a right, the New York “proper cause” provision passes constitutional muster under the Heller and McDonald rulings because the law is substantially related to important governmental interests, namely the promotion of public safety and the prevention of crimes perpetrated with concealed handguns. Judge Seibel also ruled that the “proper cause” provision does not violate the Equal Protection clause of the constitution because it does not discriminate against handgun license applicants.
Accordingly, Judge Seibel granted the State defendants’ motion for summary judgment, and dismissed the plaintiffs’ case in its entirety.
The case was handled by Assistant Attorneys General Monica Connell and Anthony Tomari under the supervision of Bruce McHale, Deputy Bureau Chief of the New York City Litigation Bureau.
Kachalsky v. Cacace was the second of the post-McDonald cases brought by Alan Gura and the Second Amendment Foundation. Originally filed in July 2010, it challenged the arbitrary nature of the issuance of handgun permits in New York State and the requirement to show good or “proper cause”.
Today, Judge Cathy Seibel released her opinion granting the cross-motion for summary judgment from the State of New York and denying the motion for summary judgment for the plaintiffs. As the decision is a 60-page opinion, I have not had time to study it it in detail to see her reasoning.
As I said in the headline, damn!
UPDATE: I have quickly scanned through Judge Seibel’s opinion. She made the following points:
- The court had subject matter jurisdiction and the case was ripe. By denying them permits, the State of New York had injured the plaintiffs.
- Found that the Second Amendment Foundation did not have standing as an organizational plaintiff.
- Said none of the abstention doctrines pushed by New York applied in this case.
- Found that Second Amendment protections in Heller only applied to “hearth and home” and not to carry outside of the home.
- Says New York’s proper cause requirement meets the standard set forth in Heller.
- Argument about hunting “unavailing” as “as hunting does not involve handguns and therefore falls
outside the ambit of the challenged statute.”
- Says intermediate scrutiny applies here and that NY Penal Code 400.00(2)(f) is related to a important governmental interest.
- Says equal protection claim fails as the statute “does not treat similarly situated individuals differently, but rather applies uniformly.”
UPDATE II: As Gray Peterson and Gene Hoffman reminded me by Twitter, Alan Gura lost both what was then Parker v. DC and McDonald v. Chicago at the District Court level as well as more recently Dearth v. Holder and Ezell v. Chicago. All four of those cases eventually became wins at the appellate level.
In a letter sent Friday and filed on Monday, Alan Gura called out the New York State Attorney General’s Office for their attempt to vacate or set aside the previously agreed upon briefing schedule in the Kachalsky case. They asked that the briefing schedule be delayed indefinitely and have proposed no new schedule. Gura said this was “dilatory and lacks any basis.”
And it appears from her handwritten comments on the letter that Judge Cathy Seibel agrees with Gura.
In his 3 page letter, Gura reiterated what had happened in previous meetings and the September 7th status conference. He noted that all the parties had agreed to a briefing schedule prior to the September 7th status conference and that the Attorney General’s Office had backed out at the last moment. The Attorney General’s Office had decided that they didn’t want to consent to the plaintiffs filing a motion for summary judgment. Nonetheless, all parties had agreed to a briefing schedule as a result of the status conference with Judge Seibel on September 7th.
One bone of contention was that the denials of the pistol permits for Alan Kachalsky and Christina Nikolov happened before the McDonald decision was handed down. Gura proposed that the complaint be amended to add more plaintiffs who had been denied after the McDonald decision and this was accepted by the Court and all defendants. It was understood by all parties that the plaintiffs’ attorneys would only add new additional parties (both new plaintiffs and defendants) to the case but not make any substantive changes in their arguments or theories. The amended complaint filed last week with the District Court did exactly that – 3 new plaintiffs and 2 new defendants and no changes to the arguments.
Gura notes that the attorneys for the State Defendants have come back to the court repeatedly asking for more time to make their motion along with cutting the amount of time that the plaintiffs have with which to respond. Moreover, the Attorney General’s Office obtained permission as noted in a post here last week to submit a 50-page motion and memorandum to dismiss which is twice the normal size. As he notes in his letter to the court:
Notwithstanding the Attorney General’s Office’s previous lack of reciprocal courtesy on the summary judgment schedule, to accommodate that office, I agreed to a compromise that effectively cut our response time in half: the Attorney General’s Office would serve its brief on November 5 instead of October 22, and our opposition would be extended trom November 12 to the 15th. The Court subsequently adopted this modified schedule.
At no point during the conversations relating to this last modification did counsel indicate that he would want additional pages. But last week, counsel obtained permission to double the size of his brief. So we face the prospect of having agreed to half the time -to respond to double the brief, and we are already looking at having a responsive pleading served on November 5, for a case filed July 15 – 92 days versus Rule 12’s 21-day standard.
Westchester County also seems to be trying to play games and is called out as well. The County is now saying that they need to be served “officially” with the amended complaint even though they have gotten notice of each and every filing electronically. Gura states that if the “County would ignore the amended complaint, Plaintiffs would request entry of default.”
Gura ends his letter by saying he hoped that the Attorney General’s Office would accept service and appear on behalf of the new defendants (Lorenzo and Holdman) as there is no need to have duplicate cases. He notes that he has worked with opposing counsel to agree on a briefing schedule for this case and that time and time again they have come back asking for changes.
Judge Seibel, as I noted above agrees with Gura, and says in her handwritten notes (which are transcribed verbatim):
The Court understood the proposal in Mr. Tomassi’s (sic) 10/8/10 letter as Mr. Gura does – i.e., the parties contemplated an amended complaint concurrent w/ the motion to dismiss. The Court also does not see why the representations of the new Defendants cannot be formalized quickly. The original Defendants shall file their motion to dismiss on or before 11/9/10. Once the new defendants are represented, they may join the original Defendants’ arguments by submitting a letter stating the same, & may add any additional arguments unique to them & the amended complaint. This shall be done by 12/6/10. Plaintiffs may oppose the original Defendants’ motion on whatever date they would like, which they should provide to me by letter, & the same is true for opposition to the new Defendants submission if it contains new arguments. Defendants to reply 3 weeks thereafter, with plaintiffs reply on cross-motion 2 weeks thereafter. Plaintiff’s counsel should be mindful, in deciding when to oppose, that the Court has a long queue of motions & is unlikely to reach this case for some time in any event. So Ordered. Cathy Seibel USDJ 11/1/10
It is my impression from Judge Seibel’s Individual Court Practices that she likes to keep an orderly court and is thus none too happy with the games that the State of New York is trying to play in her court room. Her handwritten comments are a distinct rap across the knuckles to the Attorney General’s Office and is a reminder that they need to shape up and fly right.
UPDATE: The State of New York’s Motion to Dismiss which Judge Seibel required to be submitted by Tuesday, November 9th is still not up on the Pacer.gov website. There have been no updates since November 8th so I don’t know if they have gotten an extension or not. If there are any changes, I’ll keep you posted.
Of course, it could be that a 50-page Motion is just too large and wordy for the on-line system.
An amended complaint was filed Thursday in the Kachalsky case by Alan Gura. The amended complaint adds three new plaintiffs as well as two new defendants to the case. Back in August, Gura had requested the permission of the court to add additional plaintiffs in an endorsed letter to Judge Cathy Seibel. He had noted at that time that he had at least one additional plaintiff who had been denied a pistol carry permit after the McDonald decision. While this plaintiff could file a separate suit, Gura suggested it would be more efficient to just add them to the Kachalsky case.
All the new plaintiffs are residents of Westchester County and all are licensed to have a handgun for the limited purpose of target shooting. They had each applied to have their limited licenses amended or upgraded to full carry after the McDonald decision was reached by the U.S. Supreme Court in late June. The timing is important as the State of New York had indicated in earlier filings that they would use the pre-McDonald decision denial of permits for Alan Kachalsky and Christina Nikolov as grounds for dismissal.
The first new plaintiff is Eric Detmer. Mr. Detmer serves in the U.S. Coast Guard Reserve and is a qualified Boarding Team Member where he carries a .40 S&W Sig-Sauer P229 DAK while on duty. As part of his service with the Coast Guard, he has to qualify twice a year with his handgun. Due to his military status, he is exempted from having to complete a firearms safety course per NY Penal Code 400.00.1(i). In his civilian life, Mr. Detmer is a state licensed Professional Engineer.
When Mr. Detmer applied to Westchester Court to amend his limited license for the purpose of full carry, Westchester County recommended to the hearing officer Albert Lorenzo that it be disapproved saying, in part, that:
Detmer “has not substantiated that he faces danger during non employment hours that would necessitate the issuance of a full carry firearm license” and “has not demonstrated an exceptional need for self protection distinguishable from that of the general public.”
On September 27, 2010, Lorenzo denied Detmer’s application saying “I see no justification for a full carry permit.”
Johnnie Nance and Anna Marcucci-Nance both hold limited pistol licenses that only allow for target shooting. Both he and she are shooting instructors and regularly transport firearms. They both hold FCC Amateur Radio Licenses and are active in the amateur radio (HAM) community.
They both applied to have their limited license upgraded to “full carry” for the purpose of self-defense. In mid-August, Westchester County recommended that each of their applications be denied saying “no safety concerns have been cited by the applicant” and they had not demonstrated “an exceptional need for self protection distinguishable from that of the general public.”
On September 9th, hearing officer Robert Holdman found that neither had demonstrated any exceptional need for the permit. He then cited the denial of Alan Kachalsky’s application and found that neither of the applicants demonstrated “proper cause” within the meaning of the Penal Code. He then went to add:
“In sum, the applicant has not shown sufficient circumstances to distinguish his (her) need from those of countless others, nor has he demonstrated a specific need for self protection distinguishable from that of the general community or of persons engaged in the same business or profession.”
Both counts of the lawsuit charging violations of the Second Amendment and the Equal Protection Clause of the Fourteenth Amendment remain essentially the same. The second count clarifies the violation of the Equal Protection Clause saying that the requirement that applicants “demonstrate cause for the issuance of a permit classifies individuals, including plaintiffs, on the basis of irrelevant, arbitrary, and speculative criteria in the exercise of a fundamental right.”
All four of the named defendants are being sued in their capacity as a licensing officer. The complaint, both original and amended, have always noted that they were “at all relevant times a handgun carry permit licensing officer for defendant Westchester County.” The complaint stresses this as each is also a sitting judge in New York State. Susan Cacace is an elected County Court Judge for Westchester County, Jeffrey Cohen is a Justice in the NY Supreme Court for Westchester County, Albert Lorenzo is a Judge on the Court of Claims, and Robert Holdman is a Judge on the Court of Claims. Lorenzo and Holdman are also acting Justices in the NY Supreme Court for Bronx and Westchester Counties respectively. I should note that in New York State, the Supreme Court is a trial court akin to a Superior Court in other states.
The State of New York did not file their anticipated 50 page Motion to Dismiss on Friday. The amended complaint may have been the reason. They did, however, add a second Assistant Attorney General, Monica Connell, to the defense team.
It has been a long time since we’ve had news in this case. Kachalsky et al v. Cacace et al was the second post-McDonald case filed by Alan Gura. It challenges New York State’s pistol permit requirement to show “proper cause”.
An endorsed letter was filed last week by Anthony Tomari, Assistant Attorney General, on behalf of the State of New York. District Court Judge Cathy Seibel requires a letter indicating what motions the parties intend to file before they are filed. This letter requested the court’s permission to exceed the 25 page limit for the legal memorandum in support of their motion to dismiss. They are requesting up to 50 pages in order to support their position. Alan Gura had advised them he would be OK with 35 pages. Nonetheless, Judge Seibel granted permission to go up to 50 pages and added that the plaintiffs could also file a brief of that size if they thought it necessary. This motion is scheduled to filed with the court this Friday, November 5th.
Mr. Tomari, in his request, said he didn’t think he could adequately cover the substantial issues of both jurisdiction and the constitutional question presented otherwise. Tomari noted:
The impact of Heller/McDonald is just beginning to work its way through the federal and state judiciary and there are numerous on-going cases across the country raising Second Amendment challenges to state handgun statutes. Collectively, these cases will define the scope of rights conferred (sic) by the Second Amendment. Moreover, given the interests at stake, it is a certainty that there will be appeals, and a reasonable prospect that these issues will again be presented to the Supreme Court.
This letter also gives an indication of the grounds on which the State of New York plans to argue for a dismissal of this case. They will center on jurisdictional issues including:
- Plaintiff’s constitutional claims are not ripe
- Plaintiffs lack standing to pursue the claims set forth in the complaint
- Jurisdictional abstention is appropriate under Younger v Harris
- Jurisdictional abstention is appropriate pursuant to the Pullman and Burford doctrines
- Subject matter jurisdiction does not exist pursuant to the Rooker-Feldman doctrine.
Younger abstention is the argument that the State of Maryland is pursuing in its move to dismiss the challenge to Maryland’s concealed carry requirement of “apprehended fear” in Woollard v Sheridan. More on the other abstention doctrines mentioned can be found here.
In the State’s earlier letter announcing motions, they only mentioned ripeness and the Rooker-Feldman doctrine. I can only infer from the latest letter that Mr. Tomari has been studying the arguments presented by the defendants in other Second Amendment cases. If so, I do give him credit for not trying to reinvent the wheel – not that it will carry the day in the end.
I will have updates next week after I have had time to digest the anticipated motions to be filed on Friday.
UPDATE: The State of New York has not filed their 50-page motion to dismiss yet. However, Alan Gura has filed an amended complaint which names new plaintiffs who have been denied pistol carry permits in Westchester County as well as additional defendants. I will have a separate post on this after I have had a chance to read it.
Judge Kathy Seibel’s pre-motion conference on the proposed motions to dismiss from Westchester County and the State of New York as well as the proposed counter-motion by the plaintifs is scheduled for 2:15pm this afternoon (Sept. 7th) in White Plains, NY. Judge Seibel requires an informal pre-motion conference before she allows formal motions to be introduced in her court.
The letters from all parties are discussed in detail here.
As soon as any details emerge, I’ll be posting them.
UPDATE: After checking Pacer.gov for any word on the hearing, I finally emailed Alan Gura about it. In his email response, he notes that the hearing was mostly “ordinary housekeeping”and setting the briefing schedule – the normal stuff that goes on in any case. There will be cross-motions produced and filed. These will appear in Pacer.gov in time.