Kachalsky v. Cacase (New York)

[05FLHT]

Link to Opinion - http://ia600505.us.archive.org/2/items/gov.uscourts.nysd.365487/gov.uscourts.nysd.365487.80.0.pdf

 

Very good discussion of the case - http://mdshooters.com/showthread.php?t=40003&page=12

 

Article from the New York Law Journal -

 

U.S. Court Rejects Challenge to State's Concealed Gun Law

 

Joel Stashenko ContactAll Articles

New York Law JournalSeptember 08, 2011

 

http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202513701014&US_Court_Rejects_Challenge_to_States_Concealed_Gun_Law

 

New Yorkers do not have a constitutional right to carry a concealed handgun in public, a federal judge ruled yesterday.

 

In a case brought by four New Yorkers challenging the denial of "concealed carry" gun permits by four state judges, Southern District Judge Cathy Seibel said she found persuasive the reasoning of the Illinois' Court of Appeals in People v. Marin, 795 N.E.2d 958 (2003), that the overriding purpose of gun statutes should be to prevent innocent people from being victimized by gun violence.

 

As such, Judge Seibel ruled, that granting licenses to carry concealed firearms is a matter of discretion to be decided by state authorities and is not a right.

 

The plaintiffs contended that the defendants—Westchester County Judges Susan Cacace and Jeffrey A. Cohen, Westchester Acting Supreme Court Justice Robert K. Holdman and Bronx Supreme Court Justice Albert Lorenzo—arbitrarily denied them licenses to carry concealed handguns even though they did not fall under the categories proscribed by §400.00(2)(f) of New York Penal Law, such as felony offenders, people with a history of mental illnesses and minors.

 

The judges, who were represented by the office of New York Attorney General Eric Schneiderman, argued that the "proper cause" provision of the state law served as a valid basis of the denial of gun permits and did not violate the U.S. Constitution's Second Amendment guarantee of the right to bear arms.

 

Quoting Marin, Judge Seibel said, "The underlying activity of possessing or transporting an accessible and loaded weapon is itself dangerous and undesirable, regardless of the intent of the bearer since it may lead to the endangerment of public safety." Marin also held that transporting a loaded weapon on a public street "creates a volatile situation vulnerable to spontaneous lethal aggression in the event of road rage or any other disagreement or dispute."

 

"For all these reasons, I hold that the state has an important government interest in promoting public safety and preventing crime," Judge Seibel said in Kachalsky. v. Cacace, 10-cv-05413.

 

The judge found §400.00(2)(f), which provides for the carrying of a concealed handgun, requires that applicants show an "actual and articulable" need to possess their weapons "rather than merely speculative, potential, or even specious" grounds for self-defense.

 

"As crafted, the statute seeks to limit the use of handguns to self-defensive purposes…rather than for some other use that has not been recognized as falling within the protections of the Second Amendment," Judge Seibel wrote. "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."

 

In the main, the concealed handgun permit statute appears to apply to those who legitimately need protection from harm, such as shopkeepers and merchants, bankers and even judges, "who may be the targets of criminal defendants or disgruntled litigants," the judge said. But the Legislature has left it up to those who grant licenses to carry concealed handguns to decide on a case-by-case basis, a process that sometimes entails the denial of permits for various reasons, Judge Seibel noted.

 

"Section 400.00(2)(f) may not be perfect, but it need not be to pass constitutional muster," she wrote. "Section 400.00(2)(f)'s limitations promote the government's strong interest in public safety and crime prevention, and are substantially related to it."

 

Judge Seibel's ruling "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," Mr. Schneiderman said in a statement yesterday.

 

New York City Mayor Michael Bloomberg similarly praised Judge Seibel for her ruling.

 

"Common-sense restrictions like the one the court upheld today do nothing to infringe on the rights of law-abiding Americans, but are essential to fighting gun crime on our streets," he said in a statement.

 

Mr. Bloomberg said the law is essential to both protect police officers and New Yorkers, "which can be done while respecting the Second Amendment."

 

Assistant Attorney General Monica Anne Connell represented the four judges.

 

Vincent Gelardi of Gelardi & Randazzo of Rye Brook was among the attorneys representing the plaintiffs, which included the Second Amendment Foundation, a gun-owners' rights group based in Alexandria, Va.

 

@|Joel Stashenko can be contacted at jstashenko@alm.com.

[gangrel]

Federal Appeals court and SCOTUS, here we come...

[colt-45]

i wonder what this is going to do in Illinois for our ruling.

[Steve O]

In the main, the concealed handgun permit statute appears to apply to those who legitimately need protection from harm, such as shopkeepers and merchants, bankers and even judges, "who may be the targets of criminal defendants or disgruntled litigants," the judge said. But the Legislature has left it up to those who grant licenses to carry concealed handguns to decide on a case-by-case basis, a process that sometimes entails the denial of permits for various reasons, Judge Seibel noted.

 

Got it so Im just a peon slave and the whole concept of "equal protection" doesn't apply to me because Im not a Judge or a Banker

[mrmagloo]

i wonder what this is going to do in Illinois for our ruling.

I don't think it will weigh much because the distinction here is CCW is totally banned. However, no doubt that any negative ruling against 2A, on any level, is a set back.

[JackTripper]

i wonder what this is going to do in Illinois for our ruling.

I don't think it will weigh much because the distinction here is CCW is totally banned. However, no doubt that any negative ruling against 2A, on any level, is a set back.

 

 

Actually, CCW is not the question in Illinois. It is the total prohibition on bearing.

[lockman]

I don't look at this as a setback, as I believe it would move on up the chain regardless of the outcome at the trial level. What is Obvious to anyone that has read Heller/McDonald/Ezell, know the discretionary authority given without clear statutory requirements violates the equal protection clause. Remember, "fundamental right" is key here, the standard of scrutiny has been raised a notch or two.

[mrmagloo]

i wonder what this is going to do in Illinois for our ruling.

I don't think it will weigh much because the distinction here is CCW is totally banned. However, no doubt that any negative ruling against 2A, on any level, is a set back.

 

Actually, CCW is not the question in Illinois. It is the total prohibition on bearing.

 

"It is the total prohibition on bearing"... of arms in public, you might mean?

 

Perhaps we're talking about inverse logics here, but I am under the impression that we can certainly bear arms in certain places, like our homes and property, etc. However, the crutch of the issue is, we cannot bear arms in public, either open or concealed. At the point, HB822 would not be applicable in Illinois, until the current UUW laws are overturned and some form of CCW or OCW is approved, the later less likely.

[lockman]

i wonder what this is going to do in Illinois for our ruling.

I don't think it will weigh much because the distinction here is CCW is totally banned. However, no doubt that any negative ruling against 2A, on any level, is a set back.

 

Actually, CCW is not the question in Illinois. It is the total prohibition on bearing.

 

"It is the total prohibition on bearing"... of arms in public, you might mean?

Perhaps we're talking about inverse logics here, but I am under the impression that we can certainly bear arms in certain places, like our homes and property, etc. However, the crutch of the issue is, we cannot bear arms in public, either open or concealed. At the point, HB822 would not be applicable in Illinois, until the current UUW laws are overturned and some form of CCW or OCW is approved, the later less likely.

 

 

For the above to be true the following must also be found to be true:

 

1. Carry or transport of a firearm outside your property is not a fundamental right or an enumerated right.

2. Protection of life or liberty outside of your property is not a fundamental right or an enumerated right.

 

I beleive Heller/McDonald and Ezell do provide ample reasoning that both items #1 and #2 are false.

[JR1987]

Got it so Im just a peon slave and the whole concept of "equal protection" doesn't apply to me because Im not a Judge or a Banker

 

Good boy, now you're catching on . Typical politics. We are more important than you. You don't need to be protected... we will protect you, now come to daddy...

[mrmagloo]

i wonder what this is going to do in Illinois for our ruling.

I don't think it will weigh much because the distinction here is CCW is totally banned. However, no doubt that any negative ruling against 2A, on any level, is a set back.

 

Actually, CCW is not the question in Illinois. It is the total prohibition on bearing.

 

"It is the total prohibition on bearing"... of arms in public, you might mean?

Perhaps we're talking about inverse logics here, but I am under the impression that we can certainly bear arms in certain places, like our homes and property, etc. However, the crutch of the issue is, we cannot bear arms in public, either open or concealed. At the point, HB822 would not be applicable in Illinois, until the current UUW laws are overturned and some form of CCW or OCW is approved, the later less likely.

 

 

For the above to be true the following must also be found to be true:

 

1. Carry or transport of a firearm outside your property is not a fundamental right or an enumerated right.

2. Protection of life or liberty outside of your property is not a fundamental right or an enumerated right.

 

I beleive Heller/McDonald and Ezell do provide ample reasoning that both items #1 and #2 are false.

Isn't that what Shepard is all about? If HB822 passes, and we win the right to carry, either open or concealed, then HB822 will apply.

[Mark C.]

A loss for SAF at CA2 today in Kachalsky.

 

http://www.ca2.uscourts.gov/decisions/isysquery/0acb4352-09ff-4a93-9a55-cac79d8ddbf9/1/doc/11-3642_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0acb4352-09ff-4a93-9a55-cac79d8ddbf9/1/hilite/

 

Think "In the Home" and you'll be warm....

[scough]

Bad news!

[lockman]

Odd that the appellate court has concluded that since laws prohibiting carry in certain sensitive areas are presumptively lawful then by extension all public carry prohibitions are presumptively lawful.

[Federal Farmer]

On to the Supreme Court!

[GWBH]

On to the Supreme Court!

 

I agree - "bear arms" comes to mind...

[scough]

On to the Supreme Court!

 

I think the problem with the Kachalsky case is, they are trying to argue that the state, or juridiction cannot regulate CCW licensing at all. I read alot of that decision, and it seems pretty clear to me that the court chose to preserve the considerable leeway in determining a special need, and was not interested in trying to narrowly this unbridled descretion. They obviously avoided the entire option of reducing or better defining this leeway. Evidently, just because someone has the ability to approve CCW, that's good enough, whether they actually do so in practice or not.

 

Knowing that many other courts have also presented opinions that confirm that states do have a right to regulate CCW in some manner, it seems Kachalsky over reached on this one. Granted if they got a win, that would have been huge, but I'm not so sure this is a dramatic loss as that's really not our arguement here. However, the farther reaching concern is, you can bet that the Democreeps in Chicago are going to model legislation very similar to NY, if Posner ever comes back with a repeal of UUW and CCW ban. We might win, but end up with nothing and ultimately we're going to sit here for a few more years praying that Obama doesn't get ot tilt the balance first.

 

I personally hope they don't keep pushing Kachalsky as I don't think we will ever win a no questions asked approval for everyone on CCW. Unless I'm reading this wrong, this is not the case to pursue. While we should certainly work to limit the bias in approvals, I don't think think we should go for an all or none that could backfire on us. But then again, what do I know? I would sure like to hear others thoughts on the matter.

[stm]

A loss for SAF at CA2 today in Kachalsky.

 

http://www.ca2.uscourts.gov/decisions/isysquery/0acb4352-09ff-4a93-9a55-cac79d8ddbf9/1/doc/11-3642_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0acb4352-09ff-4a93-9a55-cac79d8ddbf9/1/hilite/

 

Think "In the Home" and you'll be warm....

 

Just finished reading through this. I think they leaned on states' rights to regulate 2nd Amendment rights more than the "in the home" argument. The judges stated that since carrying in public was a step removed from the core right (in the home), that the state could exercise more discretion in regulating it, meaning intermediate scrutiny.

 

I found one little nugget to share, though :

 

Can New York limit handgun licenses to those demonstrating a special need for self-protection? Unlike the cases and statutes discussed above, New York’s proper cause requirement does not operate as a complete ban on the possession of handguns in public.

 

Here, they seem to imply that NY's law is constitutional because a complete ban on carrying firearms in public would be unconstitutional.

[C0untZer0]

This doesn't bode well for Woollard either, Davis wanting to send the case up (via a decision) King wanting to send the case down on a jurisdiction question. King wanted to send the case down to the state court with talk of Rooker-Feldman and Younger Abstention. Younger Abstention suggests a plaintiff needs to exhaust all remedies before "bothering" the Federal Courts was brought up in District.

 

 

Bad cases have cost the Second Amendment rights movement.

 

Although it doesn't specifically deal with shall issue or may issue questions, Moore / Shepard is a good case, and it looks to me like it could be the first to change things.

[lockman]

The only way discretionary licensing can be upheld is for privilege not rights. Any decision to the contrary coveys that some people can exercise their rights and others can not under circumstances where neither have been legally deprived of said rights.

[GarandFan]

It's really discouraging that so few courts are yet willing to take these rights seriously, to treat rights protected by the second amendment as fundamental, even after the SCOTUS affirmed just that.

 

At the end of the day, I know this for sure ... my fundamental rights don't arise from nor depend on legislatures, or courts, or constitutions. They are innate and inherent, and come from nature (or from nature's God, for those who prefer it put in those terms).

[scough]

Let's just pray Gura doesn't appeal it. Kachalsky went for a home run, and unfortunately, because of which, lost.

 

We've got to hope for Shepard / Moore, to rise above, and be the case SCOTUS eventually takes, BEFORE Obama pulls the rug on us. Once the right to CCW outside of the home is etched, then we can work on the qualifications end.

[C0untZer0]

.

It's really discouraging that so few courts are yet willing to take these rights seriously, to treat rights protected by the second amendment as fundamental, even after the SCOTUS affirmed just that.

 

Judge Legg is quite a guy and I'm not saying it necause he found in our favor, I'm saying that because he did his job, unlike Myerscough, and unlike Judges King and Davis who seem to want to be assembly line workers where they're told exactly what to do by the Supreme Court Justices and nothing else.

 

There is defnately a shortage of judges who are willing to use their minds.

[kurt555gs]

The Moore/Shepard ruling will be important. Until is has been released it's hands sitting time. No matter how frustrating that is.

[C0untZer0]

Until is has been released it's hands sitting time

 

We can while away the time talking about container "transport"

[Federal Farmer]

The Moore/Shepard ruling will be important. Until is has been released it's hands sitting time. No matter how frustrating that is.

 

Too uncomfortable sitting on my hands, cuz I got "Boney Fingers"!

 

[oneshot]

i wonder what this is going to do in Illinois for our ruling.

 

Well for one thing, you can't even get a permit with a "legitimate reason" in Illinois. I would be happier with a New York style May Issue than what we have, if that's all we can ever get, because most counties outside of Chicago area will be able to get them. I've already asked my Sheriff and he said he'd issue one to anyone who passes a background check. Sure it would suck for Chicagoans, but again, I'm in favor if that's the best we'll ever get.

[oneshot]

Oh, and I wish that they would have to substantiate claims such as "strong interest in public safety and crime prevention" with verifiable facts, if they did they wouldn't have been able to rule that way.

[mstrat]

Oh, and I wish that they would have to substantiate claims such as "strong interest in public safety and crime prevention" with verifiable facts, if they did they wouldn't have been able to rule that way.

 

If my understanding is correct, this is precisely why it's so important that our side makes the argument that the right to keep and bear arms, being a fundamental human right, is subject to strict scrutiny, per the Heller ruling. i.e. the government can only limit these rights if it can prove beyond all doubt that the imposed limitations are the only way to protect others' rights.

[82Bulldog]

I saw this on another blog:

 

In November 2012, the 2nd Circuit Court of Appeals upheld New York state's policy of denying permits for carrying weapons without a demonstration of "proper cause" to local officials in the case of Kachalsky v. Cacase. Today, 01/08/2013, a petition for certiorari to reconsider the case was filed with the U.S. Supreme Court. The case is sponsored by the Second Amendment Foundation with counsel of record Second Amendment superlawyer Alan Gura.