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August 14, 2011, 01:17 PM | #1 | |
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Osterweil v. Bartlett, NY State
Osterweil v. Bartlett is a case that I posted a couple of days ago (third post, item #57 in the Current 2A Cases thread). This is a peculiar case as it turns on a decidedly narrow interpretation of what a "home" is.
The case was filed pro se (meaning Mr. Osterweil represented himself). Here's the background: It starts with a man who was at the time, a NY State resident who applied for a premises license to have a gun in his home. That was in May of 2008. By late June of this process, Mr. Osterweil had purchased a home in another State and planned to use this as his primary residence. He kept his home in New York as a vacation or summer home. After some problems and disputes, the permit was denied as he was no longer a State resident. Suit was filed in July of 2009. The suit was dismissed on defendants MSJ, on May 20, 2011. Here's the telling reasoning of the court: Quote:
While Heller did not make this distinction, this Judge did. The other reasons the Judge used to dismiss the complaints were the usual 2A two Step. Since the plaintiffs home was not his domicile and therefore not subject to the core of the right, intermediate scrutiny was applied (in this case, Justice Breyer's interest balancing, aka rational basis) and all complaints were dismissed. What I didn't see in any of the briefs I read: Plaintiff was unaware of the significance of Baker v. Drozdoff (was Biaggi - 2nd post, item #21 in Current 2A Cases thread). In that case, a preliminary injunction was issued (agreed to by all parties) preventing the State of Nevada from enforcing any ban of firearms on State and Federal campgrounds in their Parks and Recreational Areas. The area of concern was that a tent in a campground was a "home," even if temporary, under Heller. Herein lies the danger of most pro se litigants. Most simply do not have the necessary research capabilities to properly order and brief their case. If a temporary tent is a "home," even to non-residents, within the meaning of Heller, then a "vacation home" is also a "home," within that same context. The Judge could not have substituted domicile as the definition of home. That is the value of persuasive precedent. To be sure, there are several other problems with the Judges interpretation in this decision. Hopefully, they can be overcome... Plaintiff appealed to the 2nd Circuit on June 13th. At this point, if I understand the NRA-ILA 2A Legal Update, the NRA will be handling the appeal. Currently, Mr. Osterweil is still listed on the 2nd Circuit Docket as pro se. |
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August 14, 2011, 09:48 PM | #2 | |
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August 14, 2011, 11:30 PM | #3 |
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Isn't there ample case history that even a tent sight is a domicile for the purposes of the 2A?
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August 15, 2011, 08:17 AM | #4 | |
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There might very well be such cases. The litigation process in Baker never came close to the stage of point - counter point, before the parties stipulated to the injunction. So we mere laymen don't have a working timeline to refer to. What we do have, thanks to Baker, is that "home" and "residence" were used interchangeably within those documents. We have the successful argument that the right to be armed in a residence, even a temporary residence, is the same as the right to be armed in the home (which is generally more permanent). In Osterweil, the plaintiff never made that connection and noticed the court. Because of that, the Judge was able to substitute "domicile" for "home." That changed the entire nature of the complaint. |
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January 12, 2012, 07:43 PM | #5 | |
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A motion to extend time to file was granted on 12-15-2011. Filing of appeal is now set to Jan. 26, 2012.
Additionally, it appears Mr. Osterweil has read this thread and emailed the following clarification: Quote:
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January 13, 2012, 09:31 AM | #6 | |
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January 13, 2012, 02:41 PM | #7 |
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Nope. Not saying that at all.
While not controlling, it is citable as to what another jurisdiction is doing. |
January 30, 2012, 10:54 PM | #8 | |
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Here is a listing of the docket:
Quote:
In this, from reading the opening brief, it appears that Mr. Clement is the main author. It is a really good read, if a bit long (45 pg - 54 PDF pgs). Here are the main points by Clemkent:
While the 2nd CCA comprises the States of Connecticut, New York and Vermont, a positive 2A decision here will have an effect on other Circuits and how they view part-time residents. More broadly, should the Court reach to the Equal Protection argument (and I would think they would avoid this), it would ultimately impact "visitors" in those States as it regards their own right to self defense. |
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January 31, 2012, 05:07 AM | #9 |
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DAMMIT.
No cites to Saenz v. Roe OR Ward v. Maryland - both controlling US Supreme Court cases that say "a state cannot discriminate against visiting residents of other states". The hell are they thinking?
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January 31, 2012, 06:52 AM | #10 | |
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January 31, 2012, 11:50 AM | #11 |
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Jim, those arguments would work if this case were about visitors from other States. This is not that case.
This is primarily about a part-time resident, not a visitor. This is about how the State of New York defines "residence" or "home" or "abode." Heller did not make such distinctions, but NY State has. And it has the case law (controlling 2CCA precedent) to back it up. That must be corrected before "visitors" might have a shot at the 2A ferris wheel. Equal Protection is the least of the worries and I highly doubt if the 2CCA will even go there. They will resolve it on the purely 2A "in the home" question. |
January 31, 2012, 11:14 PM | #12 |
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Al, I disagree.
They're treating him as a visitor. Right? So at least as a secondary argument, if the courts are going to accept the other side's argument that he is NOT any sort of "resident", then he's gotta be a visitor, right? Fine. So if he's a visitor, there's a specific prohibition by the US Supremes, TWICE (1870 and 1999), that such discrimination against a visitor in any area of basic civil rights (in Ward, the right to engage in commerce) is flat banned. This would go double for any right that is specifically mentioned in the BoR. (And yes, lawyers do this in pleadings all the time: "your honor, if you accept the other side's view that Mr. Whatever isn't a resident, then he has to be a visitor, therefore Ward v. Maryland and Saenz v. Roe bar the county's conduct even under their own theory of residence". No state law that I'm aware of has ever tried to discriminate against a resident of another state in any area of the Bill Of Rights except for RKBA issues. Explain to me why that shouldn't be at least floated as a "plan B", in case the "I'm not a visitor" thing falls apart? Plan B is a good thing. And the NRA's own attorneys are too ignorant to try. That's just sad.
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January 31, 2012, 11:56 PM | #13 |
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I agree with Mr. March.
None of us would probably actually agree that the gentleman is a "visitor" when he is living in a house that he owns, but we are probably all aware that the BATFE specifically recognizes and addresses dual residency for people who own vacation homes. But the State of New York IS claiming that he is a "visitor" when he is in his vacation home. He isn't a resident (according to them), ergo he must be a visitor. The state can't have it both ways. If he is NOT entitled to the rights and privileges of a resident, then he MUST be entitled to the rights and privileges of a visitor. ALL of them. |
February 1, 2012, 12:37 AM | #14 |
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Gentlemen, I don't disagree. However,
Your argument is with Mr. Osterweil and Mr. Clement. My sole responsibility here is to report, as I understand it, the facts of the case. These are the pleadings. At the appellate level, they can't raise issues not raised in the district court. As such, Clement is stuck with the arguments made by Osterweil at the lower court. |
February 1, 2012, 01:15 AM | #15 |
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Al, I *think* you can always cite US Supreme Court cases that are completely on point to a case.
I intend to call Mr. Clement's office tomorrow.
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May 10, 2012, 10:44 AM | #16 | |||
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Not much has been written lately, on this case. Here is the current docket at CA2:
Quote:
The interesting thing is the #68 motion to certify the question. This is a ploy to take the case out of the Circuit and present the question of residency = domicile (or not) to the New York Court of Appeals (aka State Supreme Court), in light of Heller and McDonald. According to #77, the Motions Panel will decide the issue of the certification. Quote:
In Baker v. Drozdoff (was Baker v. Biaggi) 3:10-cv-00426, a Nevada Federal Court agreed that a tent in a campsite was a "home" as interpreted by Heller. That court issued a preliminary injunction against the State of Nevada. The regulation was subsequently changed and the case was dismissed without prejudice on Feb. 27th, 2012. While Mr. Osterweil may or may not agree, if a Nevada Federal Court agrees that a temporary tent in a campsite was a "home," per Heller, the State of New York cannot maintain that a part-time resident must be domiciled in order to exercise his 2A rights. From the last pages of the opposition brief: Quote:
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May 11, 2012, 04:23 PM | #17 |
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NY State cares little about what other states do. Declare one state as residence and go from there.
The shame of it all is that the NY Sullivan Law was initiated for political power in NYC but passed for the whole state. Not much has changed ,a NYState permit is clearly marked "Not Valid in NYC " .In fact for many years it was not legal to transport your gun from upstate to Long Island as you would have to pass through NYC !
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July 25, 2012, 09:55 PM | #18 | |
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Here is the most current docket:
Quote:
The response brief and the reply brief have been filed (I'm reading them now). This completes the briefing schedule and we now await a date for orals. |
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October 9, 2012, 06:39 PM | #19 |
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Osterweil v Bartlett set for Oct 26 2012 NYC
Osterweil v Bartlett is set for trial by oral argument in NYC on October 26th, 2012- Paul Clement is the attorney. Additionally, www.talk1300.com, hosted by Fred Dicker in Albany, NY, will have the 2nd chair lawyer there to interview about this case at approx. 10:15AM on Thursday, October 11th. The bottom line is, if you own two homes, shouldn't you be able to protect yourself in both of them? Sounds reasonable to me. |
January 29, 2013, 10:59 PM | #20 | ||
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SCOTUS Blog: A new gun rights issue arises by Lyle Denniston.
Quote:
Justice O'Conner, writing the decision, avoids (remporarily) the tough question and certifies the question to the New York Court of Appeals (their Supreme Court): Quote:
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October 15, 2013, 11:15 PM | #21 |
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Top NY court lifts handgun permit residency limit - Times Union
Mr. Osterwiel has won in the NY Court of Appeals, the NYS equivalent of a Supreme Court. The Court took a certified question from the 2nd Circuit back in January of 2013. While the Court ruled that part-time residents could not be denied their right to arms as a class, it stopped short of declaring the law, as previously interpreted, unconstitutional on 2A grounds. The case will now go back to the CA2 to decide how this ruling impacts the federal case. The decision: http://www.scribd.com/doc/176284968/...eil-v-Bartlett |
October 16, 2013, 05:01 AM | #22 |
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The case will probably be disposed of. CA2 sent this to the NY court to do just this-sidestep the 2A claim, but grant the permit to make the case go away.
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October 16, 2013, 01:38 PM | #23 |
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It's still a victory even if not decided on 2A grounds. It is preferable, IMO, for court to construe a statute, rather than a constitution, if it can do so. This is the more "conservative" legal approach.
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October 16, 2013, 02:17 PM | #24 | |
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What does
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October 16, 2013, 03:09 PM | #25 | |
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nra , ny state , pro se , second amendment |
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