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Old February 27, 2013, 03:13 PM   #1
Maxb49
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Holtz v. State of New York

Breaking News

We have a court order against the State.

The case is Edward R. Holtz v. State of New York, et. al.

Mr. Holtz, a Class 3 firearms dealer and sole proprietor of Urban Armory in Sinclairville, New York has brought a Special Proceeding to enjoin the State of New York from enforcing the assault weapon sales/transfer ban on Heller, McDonald, and right to work grounds, including the landmark Slaughterhouse cases.

The case is before the Honorable Deborah Chimes in New York State Supreme Court, Chautauqua County. Judge Chimes issued an order requiring the State to demonstrate good cause why an injunction against the AWB should not be issued; otherwise, it will be issued on April 29th.

Last edited by Maxb49; February 27, 2013 at 03:26 PM.
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Old February 27, 2013, 03:43 PM   #2
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Yippee!
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Old February 27, 2013, 03:48 PM   #3
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Now that has razzle dazzle even for us uneducated laymen.
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Old February 27, 2013, 03:57 PM   #4
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I can't wait to read the brief.
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Old February 27, 2013, 03:58 PM   #5
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Outstanding!
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Old February 27, 2013, 04:00 PM   #6
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The lawsuit will be available soon, but it will take some time to scan. This one is really thick.
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Old February 27, 2013, 05:08 PM   #7
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I'm curious about how right-to-work and the Slaughterhouse cases fit together in this case. I'm looking forward to seeing it.
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Old February 27, 2013, 07:22 PM   #8
62coltnavy
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Don't get too excited. All you've got is an order requiring the State to appear. That is how such cases normally proceed. Now if you had a temporary restraning order, that would be something; that would require the court to find that you had a reasonable chance of prevailing.
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Old February 27, 2013, 07:27 PM   #9
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Except now the burden of proof is on NY State to prove that the AWB and other provisions in the SAFE Act are Constitutional (good luck with that - can't put a round peg in a square hole).

The burden of proof is enormous as the State will have to come up with a pile of evidence to put a stop to the prelim. injunction. The injunction was ordered by a Supreme Court Justice -- the State has until April 29th to respond with proof for WHY the injunction should not be allowed to proceed. Temporary Restraining Orders (TRO's) are notoriously difficult to obtain and case law currently in place is prohibitive of a TRO in most every circumstance. The Supreme Court Justice (Deborah Chimes) could have very well refused to sign the order if the case did not have merit.
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Old February 27, 2013, 08:03 PM   #10
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As a matter of law, temporary restraining orders cannot be granted against a State, body, or officer from carrying out Statutory law. You need a full injunction. This is the way it was in the CPLR, every judge's hands are tied regarding TROs. Nevertheless, the team applied for a TRO. The judge simply cannot grant the request. This isn't simply a lawsuit. The way the order is written places the burden on the State to demonstrate the Constitutionality of the law. That's a major shift from the Petitioner having to prove that the law is unconstitutional. Remember, the judge was not required to sign the order. Further, Mr. Holtz now has a court order. That's a big deal.

I think we crashed NYFirearms.com tonight.
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Old February 27, 2013, 08:08 PM   #11
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http://www.wkbw.com/news/local/Secon...193688301.html

Here is an update from WKBW-TV, Channel 7 that adds some perspective to the lawsuit. If anyone is wondering why we have separate threads for the Holtz case and the Dywinski case, it has to do with the fact that these two cases raise separate and distinct issues. As such, according to the consensus of the legal team, it is unlikely that these cases can be consolidated into one case. So, properly, each post deserves it's own thread.

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Old February 27, 2013, 08:41 PM   #12
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Go for it!
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Old March 25, 2013, 05:30 PM   #13
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Bump for a really good thread. Congrats Father and Son Tresmonds.
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Old March 25, 2013, 05:49 PM   #14
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Hopefully this will establish some precedent for the other states
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Old March 28, 2013, 01:08 AM   #15
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New York's Trial Level Court

Quote:
The injunction was ordered by a Supreme Court Justice -- the State has until April 29th to respond with proof for WHY the injunction should not be allowed to proceed.
The New York Supreme Court is the trial level court. Even so, they are very far from being required to submit proof of anything. They are being called before the court to respond to a complaint. I would like to hear if the judge even has discretion to do less than that, as a complaint for anything typically requires a response if service has been provided to prevent some type of default judgment.

Quote:
Hopefully this will establish some precedent for the other states
This is just about as far from establishing precedent for New York as you can get, let alone other states.
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Old March 29, 2013, 12:43 PM   #16
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MTGreen -- we're clear this court is the lowest level in NY state, but if the state doesn't appear, and this court's injunction therefore goes through, are you saying such an injunction will have no legal impact?
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Old March 29, 2013, 01:29 PM   #17
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I do not presume to speak for MTGreen, but I think he's simply saying that it will have no precedential impact, not that it would have no legal impact. That's a horse of a different color.
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Old March 30, 2013, 06:01 PM   #18
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Trial court Judgments

A trial courts judgment is only binding on the parties and is not binding upon any other court, although in rare areas of jurisprudence where a court of appeals simply has not spoken it could be cited with perhaps greater persuasive weight then a law review article.

This case is far from any final judgment. New York is being ordered to respond, and the burden of a response is the most preliminary component of a case against any defendant.

I wish Holtz well, but this case is just getting started.

With regard to if the state does not appear, it is unlikely, and such a case would have the least persuasive value of any trial court case.

With regard to the legal impact, I have tried a case in federal court where the defendant simply failed to appear until default judgment was filed. The defendant is simply increasing the cost on the plaintiff in hope that he will go away sooner rather than later. The judgment upon motion for default was simply an order to respond. That may be where we are in this case. I can tell you that nothing is easy legally, and this case has a long way to go.
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Old April 2, 2013, 12:34 AM   #19
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Great News for NY!

I gladly moved from Buffalo to Texas, without any regrets, so I'm not too worried about my 2nd Amendment rights here, but I'm thrilled for the rest of you New Yorkers up there. If it passes, that's one small victory for NY citizens, but the biggest victory would be to replace the schmucks who pushed it through in the first place!
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Old May 3, 2013, 10:36 AM   #20
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Since the date was pushed from the 29th til today I'm anxiously awaiting an update. I would not be surprised if the state got an extension for up to 90 days.
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Old May 3, 2013, 10:45 AM   #21
baby kaboomer
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You must be psychic...

eCourts now showing an adjournment until 8/12.
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Old May 3, 2013, 07:35 PM   #22
NY Stagehand
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sigh...

August 12th.

Okay, I guess we wait.

Patiently...


in the dark...
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Old May 3, 2013, 08:12 PM   #23
USG
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So where is the "Breaking News"....

The State has had two months to prepare, why was this matter postponed?

Since the provisions of law being challenged are already in effect, and the plaintiff is suffering losses and continuing harm from the law, in addition to the ongoing infringement of Constitutional Rights, it would seem that an injunction would be issued fairly quickly pending a trial on the merits. But apparently there is not much urgency in the mind of this judge, in issuing an injunction against enforcement of the law, pending the outcome of the case. I wonder if this speaks to the court's view of the merits of the case.
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Old May 4, 2013, 08:52 PM   #24
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Quote:
Originally Posted by USG
I wonder if this speaks to the court's view of the merits of the case.
Just my opinion, of course, but I think this is the steadily revealed rebellion of all the lower courts against the Heller/McDonald decisions.
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Old May 5, 2013, 08:37 AM   #25
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I agree with Al, lower courts are outright refusing to administer the Heller/McDonald decisions in their rulings. Hell look at Kachalsky in the State Court opinion written by Seibel: pistols aren't covered under the 2A because they aren't used for hunting.
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