Loss in NY CCW Case

[PDM 91]

A Federal District Court Judge granted summary judgment to the defendants (CCW issuing authority) in Kachalsky v Cascace, the NY CCW case. See article below. Expect the same in the NJ SAF case.

 

No Cause, No Gun, Judge Tells Gun Lovers

By ADAM KLASFELD

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WHITE PLAINS, N.Y. (CN) - Five Westchester residents and the Second Amendment Foundation cannot relax a law forcing citizens to demonstrate proper cause before they pack heat on public streets, a federal judge ruled.

New York courts have interpreted "proper cause" as having a "special need for self-protection" as compared to the general population.

"I hold that the state has an important government interest in promoting public safety and preventing crime," U.S. District Judge Cathy Seibel wrote in an order dismissing a class action challenging the regulation.

Alan Kachalsky, Christina Nikolov, Eric Detmer, Johnnie Nance and Anna Marcucci-Nance say their applications for full-carry permits were rejected, even though they had all been trained in firearms and had spotless criminal records.

Kachalsky claimed he had proper cause because "we live in a world where sporadic random violence might at any moment place one in a position where one needs to defend oneself or possibly others," court documents say.

Judge Susan Cacace, his licensing officer, found that this explanation did not distinguish him from anybody else seeking a permit.

Nikolov said she deserved a license because she passed three firearms safety courses with the National Rifle Association, showed a "calm demeanor" as a pilot and flight instructor, and had a higher likelihood of being the victim of violence as a transgender woman.

Rejecting her request, Judge Jeffrey A. Cohen explained that a specific threat of violence against her was "conspicuously absent" from her application.

Nance and Marcucci-Nance cited no special needs for full-carry permits, Judge Robert K. Holdman found.

Detmer thought he satisfied the proper cause requirement as a federal law enforcement officer with the U.S. Coast Guard, but Judge Albert Lorenzo said his application contained "no justification" for a full-carry permit.

Gaining the support of the Second Amendment Foundation, the five applicants filed a federal class action lawsuit against Westchester County and the four judges serving as licensing officers in late 2010.

On Friday, Judge Seibel agreed that the plaintiffs had standing to pursue the case, but she granted summary judgment to the defendants sua sponte on the grounds that the state had the duty to protect public safety.

In a footnote, she noted that the state attorneys argued in affidavits that gun crimes are linked to general availability, and citizens with concealed handguns can endanger cops stopping them.

An affidavit also said that the "majority of criminal homicides and other serious crimes are committed by individuals who have not been convicted of a felony and would receive permits to carry concealed weapons without the 'proper cause' requirement."

Data from the Bureau of Alcohol, Tobacco, Firearms and Explosives showed that 227 firearms were recovered during the first half of 2009 in Westchester, more than double those recovered in nearby Orange County and several times more than those recovered in Dutchess, Rockland, Sullivan and Putnam.

The report also cited 132 weapon offenses in the Westchester region.

Judge Seibel entered the 60-page opinion on Friday, preceding a particularly bloody Labor Day weekend in which 48 people were shot in New York City. Mayor Mike Bloomberg called for stricter gun-control laws Tuesday.

[jcerillo70 16]

Well thats no good

[Krdshrk 3,883]

Bloomberg.

 

Stricter gun control laws? In NYC? yeah that'll help......

[vjf915 456]

On Friday, Judge Seibel agreed that the plaintiffs had standing to pursue the case, but she granted summary judgment to the defendants sua sponte on the grounds that the state had the duty to protect public safety.

I keep seeing on this site that police officers have no duty to protect people. Can somebody explain that? Is that just a NJ thing? Because I see some contradiction here...

[Parker 214]

No Cause, No Gun, Judge Tells Gun Lovers

Interesting biased title for the article.

 

Not that this statement is an excuse, but once you cross the river, Westchester county is a different world than its counterparts on the west side of the river.

[robot_hell 72]

Gotta keep the masses dependent and defenseless, after all...

[PDM 91]

I am trying to get a copy of the opinion, but don't expect it to be well reasoned or logically consistent. It's pretty apparent just from this article that she bought the Brady bunch type scare tactics hook line and sinker. As we know, that way of thinking has nothing to do with logical analysis. And yes, the title of the article ("gun lovers") makes the bias of the author of the article abundantly clear.

[Shane45 807]

VJ if Im not mistaken, I believe it was a fed case that came to the conclusion that the police do not have a duty to protect an individual. In the quote you cite, I take it to mean they view CCW as a threat to public safety.

[Dan 177]

I don't get it, McDonald v Chicago AFAIK has ruled that the whole "public safety" argument for restricting a civil right is moot to a large extent. This is the old tired argument that anti's have been using for decades in further restricting 2A rights. It is obvious that this judge is just playing to the old tune and ignoring massively important SCOTUS precedence.

 

Balance Theory (Page 35, Alito) - Municipal respondents maintain that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety. Brief for Municipal Respondents 11. And they note that there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries. Id., at 11, 13–17.

 

The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category. See, e.g., Hudson v. Michigan, 547 U. S. 586, 591 (2006) (“The exclusionary rule generates ‘substantial social costs,’ United States v. Leon, 468 U. S. 897, 907 (1984), which sometimes include setting the guilty free and the dangerous at large”); Barker v. Wingo, 407 U. S. 514, 522 (1972) (reflecting on the serious consequences of dismissal for a speedy trial violation, which means “a defendant who may be guilty of a serious crime will go free”); Miranda v. Arizona, 384 U. S. 436, 517 (1966) (Harlan, J., dissenting); id., at 542 (White, J., dissenting) (objecting that the Court’s rule “n some unknown number of cases . . . will return a killer, a rapist or other criminal to the streets . . . to repeat his crime”); Mapp, 367 U. S., at 659. Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.

 

 

 

My link

[BigHayden 77]

I keep seeing on this site that police officers have no duty to protect people. Can somebody explain that? Is that just a NJ thing? Because I see some contradiction here...

 

Castle Rock vs. Gonzales is a SCOTUS case ruled, 7-2, that a town and its police department could not be sued under 42 U.S.C. §1983 for failing to enforce a restraining order, which had led to the murder of a woman's three children by her estranged husband. In that case, there was a restraining order against her husband, and even then, there was no duty for the police department to protect you, the individual citizen.

 

There are other cases as well:

Warren v. District of Columbia

Riss v. City of New York

Bowers v. DeVito

Calogrides v. City of Mobile

Chapman v. City of Philadelphia

Davidson v. City of Westminster

Hartzler v. City of San Jose

Keane v. City of Chicago

Lynch v. N.C. Dept. of Justice

Marshall v. Winston

Morgan v. District of Columbia

Morris v. Musser

Reiff v. City of Philadelphia

Sapp v. Tallahassee

Silver v. Minneapolis

Simpson’s Food Fair v. Evansville

Stone v. State

Weutrich v. Delia

Just to name a few...

[vjf915 456]

The piece I quoted states that the judge granted summary judgement to the defendants because the state has a responsibility to protect the public, rendering self defense as an unnecessary action. This would severely contradict the case you have mentioned and what I have heard several times on this site. I'm not pointing the finger, or saying anybody on here is wrong, I'm trying to point out a huge contradiction in court rulings. The left hand doesn't know what the right hand is doing kind of thing. Or maybe each hand knows, but they just don't GAF and they do whatever benefits the government at the time.

 

Edit: Thank you Shane, Dan, and Hayden.

[BigHayden 77]

The piece I quoted states that the judge granted summary judgement to the defendants because the state has a responsibility to protect the public, rendering self defense as an unnecessary action. This would severely contradict the case you have mentioned and what I have heard several times on this site. I'm not pointing the finger, or saying anybody on here is wrong, I'm trying to point out a huge contradiction in court rulings. The left hand doesn't know what the right hand is doing kind of thing. Or maybe each hand knows, but they just don't GAF and they do whatever benefits the government at the time.

 

Edit: Thank you Shane, Dan, and Hayden.

 

That's why losses at this level should be viewed as a good thing. SCOTUS is more likely to hear a case that conflicts with one of its rulings rather than one that agrees with SCOTUS jurisprudence.

[vjf915 456]

That's why losses at this level should be viewed as a good thing. SCOTUS is more likely to hear a case that conflicts with one of its rulings rather than one that agrees with SCOTUS jurisprudence.

Amazing point my good sir.

[PDM 91]

That's why losses at this level should be viewed as a good thing. SCOTUS is more likely to hear a case that conflicts with one of its rulings rather than one that agrees with SCOTUS jurisprudence.

Ha! I appreciate the positive spin on it, but of course if the lower courts did their job we wouldn't have to worry about going back to the S. Ct., with all the delay and risk (failure to grant cert, death or retirement of one pro 2A judge, etc) that entails. Also, would be nice to have at least one lower court rule in accordance with Heller/McDonald.

[mcbethr 42]

It seems like this case wasn't put together correctly. They were trying to get "proper cause" to be thrown out, not defined.

 

I don't know if it means that much to the NJ case. I think the Muller Case is more about defining "Justifiable need," instead of throwing out justifiable need. Justifiable need is interpreted in different ways to different permit applicants. I don't think anyone can argue that Robert Muller didn't have justifiable need. I don't think that anybody can argue that the FBI employee or the part-time deputy doesn't either.

 

Now is their life any more important than yours? No. But we need to take baby steps. Once we get "Justifiable Need" defined, we can work toward lowering the standard.

[BigHayden 77]

Ha! I appreciate the positive spin on it, but of course if the lower courts did their job we wouldn't have to worry about going back to the S. Ct., with all the delay and risk (failure to grant cert, death or retirement of one pro 2A judge, etc) that entails. Also, would be nice to have at least one lower court rule in accordance with Heller/McDonald.

 

Presidential elections are ALL about Supreme Court nominations, and really not much else.

[LorenzoS 100]

Don't get discouraged. Both the Heller and McDonald cases were lost in the federal District courts before moving on to victory on appeal and ultimately in the US Supreme Court. Expect an appeal. Also expect that whoever wins in the first round of Mueller v NJ Douchebaggery will also be appealed.

 

Seems inevitable that the right to carry will eventually be won or lost in the US Supreme Court.

[Sticky Grips 4]

George w. Appointed this idiot too. I was certain I would have seen obama attached to her.

[reloaderguy 30]

George w. Appointed this idiot too. I was certain I would have seen obama attached to her.

 

Afraid we will see the same decision in NJ.

[KpdPipes 388]

I keep seeing on this site that police officers have no duty to protect people. Can somebody explain that? Is that just a NJ thing? Because I see some contradiction here...

 

 

It's not QUITE that simple. What the SCOTUS case established that the Police do not have a CIVIL LIABILITY to protect any individual person, save one who has entered in a "Special Relationship" (ie. Witness protection, or Protective Custody) with them. IIRC the call stemmed from someone calling 911 for a Home Invasion or Robbery in progress. The Police were delayed in their response for some reason, Again I forget the details, but I believe it was a mixture of low manpower and a busy night and there was physically nobody to send, and the caller was killed by the Actor. The family of the caller sued the Police because they didn't show up when he/she called 911, and it wound it's way up through the Courts System. Sadly MOST people who like to toss out the "Police dont have to protect you" nonsense don't have a clue about the Actual case, and what the Laws Say. In NJ for example we have "Misconduct in Office" which comed under 2 Headings, Misfeasnace and Malfeasance. MISfeasance means that someone in Authority Failed to Act. For Example, You Call the Police, and they just ignore you. MALFeasance means that someone in Authority acted Wrongly. Most if not all Departments have an administrative charge of "Neglect of Duty". Now, that said, the point behind the SCOTUS case was that the Police in general are Human, and cannot be in 2 places at once. If you call, we'll do our best to get there as soon as possible..but in the end there are a finite number of people working at any given time.

[vjf915 456]

Now, that said, the point behind the SCOTUS case was that the Police in general are Human, and cannot be in 2 places at once. If you call, we'll do our best to get there as soon as possible..but in the end there are a finite number of people working at any given time.

Understood. Now is there any obligation for them to leave their current call to respond to a more important issue? At what point does it become "Okay, I have to leave. I'll be back once I stop the *blah blah*"? Obviously if there's a school shooting taking place, they're not going to stay at Grandma's house to help get her cat from under the porch....but past that, are their any other incidents that officers will leave their current call in order to take care of another one?

[LorenzoS 100]

As expected, it took the SAF just one day to file their appeal.

 

http://ia700505.us.archive.org/2/items/gov.uscourts.nysd.365487/gov.uscourts.nysd.365487.82.0.pdf

[NFRs2000NYC 7]

It's not QUITE that simple. What the SCOTUS case established that the Police do not have a CIVIL LIABILITY to protect any individual person, save one who has entered in a "Special Relationship" (ie. Witness protection, or Protective Custody) with them. IIRC the call stemmed from someone calling 911 for a Home Invasion or Robbery in progress. The Police were delayed in their response for some reason, Again I forget the details, but I believe it was a mixture of low manpower and a busy night and there was physically nobody to send, and the caller was killed by the Actor. The family of the caller sued the Police because they didn't show up when he/she called 911, and it wound it's way up through the Courts System. Sadly MOST people who like to toss out the "Police dont have to protect you" nonsense don't have a clue about the Actual case, and what the Laws Say. In NJ for example we have "Misconduct in Office" which comed under 2 Headings, Misfeasnace and Malfeasance. MISfeasance means that someone in Authority Failed to Act. For Example, You Call the Police, and they just ignore you. MALFeasance means that someone in Authority acted Wrongly. Most if not all Departments have an administrative charge of "Neglect of Duty". Now, that said, the point behind the SCOTUS case was that the Police in general are Human, and cannot be in 2 places at once. If you call, we'll do our best to get there as soon as possible..but in the end there are a finite number of people working at any given time.

 

This post, in terms of responding to the subject is incorrect. The USSC ruled that a law enforcement officer has no DUTY to protect you in any way, shape of form. If you are from a small town NJ, and a van of baddies comes to your house, each with 3 AR15s and 4 glock 17s, and a police car arrives...if the officers deem THEIR life will probably end if they engage, they have the LEGAL RIGHT to NOT engage. Police do NOT have to risk their lives to save yours, and don't you ever forget it.

 

P.S. This does NOT mean, Police can ignore 911 calls, walk past a crime in progress, or things of that nature. We are talking about a true life threatening situation, in which THEIR life is at stake as well.

 

http://www.freerepublic.com/focus/news/1976377/posts