The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools
Old January 28, 2013, 05:36 PM   #1
Brian Pfleuger
Staff
 
Join Date: June 25, 2008
Location: Central, Southern NY, USA
Posts: 18,605
Dywinski v. State Of New York (SAFE Act Challenge)

I just got off the phone with Jim Tresmond. He tells me that the first court appearance for their lawsuit will be 930am tomorrow in State Supreme court, Buffalo.

Someone in his office will send me an email with the procedures and projected actions/filing so I can update. All the legalese is more than I can write while he talks.

Brief background is in this thread.
__________________
Still happily answering to the call-sign Peetza.
---
The problem, as you so eloquently put it, is choice.
-The Architect
-----
He is no fool who gives what he can not keep to gain what he can not lose.
-Jim Eliott, paraphrasing Philip Henry.
Brian Pfleuger is offline  
Old January 28, 2013, 05:48 PM   #2
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 5,044
This post is only so that I can easily find the thread in the future. Nothing to see here.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old January 28, 2013, 06:30 PM   #3
CharlieDeltaJuliet
Senior Member
 
Join Date: July 25, 2012
Posts: 750
Let us know if we can do anything to help. I have emailed the Reps. In NY, and told them of my opinion, but being an out-of-state person, I doubt they even listen...

Seriously though just let us know if we can write or call. I am going to re-write all of my reps this weekend and mail them out.
__________________
" The strongest reason for the people to retain the right to
keep and bear arms is, as a last resort, to protect
themselves against tyranny in Government.
..." - Thomas Jefferson
CharlieDeltaJuliet is offline  
Old January 28, 2013, 06:40 PM   #4
Dr Big Bird PhD
Senior Member
 
Join Date: October 26, 2012
Location: Los Angeles, CA
Posts: 778
Fight on my brothers.
__________________
I told the new me,
"Meet me at the bus station and hold a sign that reads: 'Today is the first day of the rest of your life.'"
But the old me met me with a sign that read: "Welcome back."
Who you are is not a function of where you are. -Off Minor
Dr Big Bird PhD is offline  
Old January 28, 2013, 09:34 PM   #5
Ed Bernay
Junior Member
 
Join Date: January 16, 2013
Posts: 6
I hope the good guys are coordinating strategy with SAF and NRA. We're all on the same side.
Ed Bernay is offline  
Old January 28, 2013, 09:53 PM   #6
Aguila Blanca
Senior Member
 
Join Date: September 25, 2008
Location: CONUS
Posts: 6,321
Quote:
Originally Posted by Ed Bernay
I hope the good guys are coordinating strategy with SAF and NRA. We're all on the same side.
Definitely.

The situation is clearly at a tipping point, and the consequences are FAR too important for key players (cough -- NRA -- cough) to be playing their usual "My way or the highway" games.

To forestall the inevitable "Don't speak ill of the NRA" responses ... I am a member. I also remember that the NRA tried hard to block the Heller lawsuit, then later tried to take credit for the win when the case succeeded. We don't need any of that sort of Brinksmanship at this point.
Aguila Blanca is offline  
Old January 28, 2013, 11:34 PM   #7
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,308
The "Major Players" had counseled that a few weeks should pass so that the law could be properly studied and a considered reply be brought.

This advice was apparently unheeded.
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Old January 29, 2013, 04:20 PM   #8
Maxb49
Senior Member
 
Join Date: March 8, 2007
Location: Jamestown, New York
Posts: 256
Tresmond files lawsuit

Mr. Tresmond filed his lawsuit today in New York State Supreme Court in the City of Buffalo. The case has been placed on the calendar for February 21st. The next step is service. Mr. Tresmond cannot release the order or petition until all respondents have been served. Although, I read the petition and the arguments are solid and in many ways fascinating. It looks like a winner.
Maxb49 is offline  
Old January 29, 2013, 04:34 PM   #9
Vireye
Senior Member
 
Join Date: August 21, 2012
Location: Pennsylvania
Posts: 201
More information for those of us not familiar with the suit?
Vireye is offline  
Old January 29, 2013, 04:40 PM   #10
hermannr
Senior Member
 
Join Date: March 24, 2011
Posts: 730
They will be interesting to see.
hermannr is offline  
Old January 29, 2013, 04:42 PM   #11
Brian Pfleuger
Staff
 
Join Date: June 25, 2008
Location: Central, Southern NY, USA
Posts: 18,605
Threads merged.
__________________
Still happily answering to the call-sign Peetza.
---
The problem, as you so eloquently put it, is choice.
-The Architect
-----
He is no fool who gives what he can not keep to gain what he can not lose.
-Jim Eliott, paraphrasing Philip Henry.
Brian Pfleuger is offline  
Old January 29, 2013, 06:10 PM   #12
Maxb49
Senior Member
 
Join Date: March 8, 2007
Location: Jamestown, New York
Posts: 256
Brian, thank you for merging these threads. At the time I was on the road and couldn't find this thread.

Al,

With all due respect to those who are members of the NRA and other gun rights groups, there are certain factors that Mr. Tresmond had to take into consideration when he filed this case.

The first issue has to do with his clients. An attorney's responsibility, first and foremost, are to his clients. The client is the boss, not the attorney. The attorney is the skilled professional who listens to the needs and wants of his other client and carefully tailors the best logically cohesive argument he or she can that is supported by statute and case law to achieve the client's objective. Mr. Tresmond has clients who were adversely affected by the SAFE Act and directed him to petition the court. They kindly opened this effort to the public as a service to New York's gun owners.

The second issue has to do with the New York State Law: Civil actions in New York State are governed by a draconian code known as the New York State Civil Practice Law and Rules (CPLR). The CPLR was designed to make life brutal for anyone who bring civil actions, particularly challenges to government bodies or officers. New Yorkers need attorneys well versed in the CPLR to handle a such a case; not an out of state attorney from the who is merely admitted to practice in New York.

Mr. Tresmond is a distinguished attorney in Buffalo who has the support and assistance of dozens of attorneys around the State. The arguments made in the petition were elegant and forceful. I think you will all be pleasantly surprised when the Order and Verified Petition is made public.
Maxb49 is offline  
Old January 29, 2013, 06:28 PM   #13
Cascade1911
Senior Member
 
Join Date: February 27, 2011
Location: Dutchess County, NY
Posts: 450
Quote:
NYSRPA, in co-operation with the NRA, are having the Cuomo law reviewed by a highly qualified legal team. We ask that no other 3rd party legal action be taken without prior consultation.
and

Quote:
The state Rifle and Pistol Association today is set to file a notice of claim over the state’s new gun-control law, the first step toward a lawsuit over the measure.
I sure hope they are working together and not stepping on each others toes.
Cascade1911 is offline  
Old January 29, 2013, 06:30 PM   #14
mete
Senior Member
 
Join Date: June 14, 2004
Location: NY State
Posts: 5,335
While draconian NY practices are difficult to deal with it IS possible to change things and it may not take as many people as you think.
Here in Zone 3 adverse possession cases were handled very differently than in other zones . Not any more. A relatively few hard working citizens, lawyers and representatives changed the law !!
__________________
And Watson , bring your revolver !
mete is offline  
Old January 29, 2013, 06:33 PM   #15
NWPilgrim
Senior Member
 
Join Date: September 29, 2008
Location: Oregon
Posts: 2,144
I hope they can nip this bad law early and get it thrown out.

According to how the law was written or NY practices, if part of the law is found to be unconstitutional is the entire thing tossed or just that specific part?
NWPilgrim is offline  
Old January 29, 2013, 06:36 PM   #16
Brian Pfleuger
Staff
 
Join Date: June 25, 2008
Location: Central, Southern NY, USA
Posts: 18,605
Quote:
Originally Posted by NWPilgrim
if part of the law is found to be unconstitutional is the entire thing tossed or just that specific part?
It was written without a severability clause, unfortunately one was later added.
__________________
Still happily answering to the call-sign Peetza.
---
The problem, as you so eloquently put it, is choice.
-The Architect
-----
He is no fool who gives what he can not keep to gain what he can not lose.
-Jim Eliott, paraphrasing Philip Henry.
Brian Pfleuger is offline  
Old January 29, 2013, 07:13 PM   #17
Maxb49
Senior Member
 
Join Date: March 8, 2007
Location: Jamestown, New York
Posts: 256
Quote:
I sure hope they are working together and not stepping on each others toes.
I'd like to clear up a point of misunderstanding.

The NYSRPA's lawsuit has not been filed, they have filed a Notice of Claim, which reserves their right to file a lawsuit within the near future.

Mr. Tresmond's lawsuit is separate and on the docket. The fear that Mr. Tresmond's lawsuit, if unsuccessful, will prevent future challenges is simply not true. While they are not working together, Mr. Tresmond went to great lengths to structure his lawsuit in such a way as to not prevent future challenges to the law if his case is unsuccessful.

The doctrine of collateral estoppel prevents an issue from being re-litigated when it has been decided by the highest court in a jurisdiction. The issues raised in this lawsuit are some of the most unexpected, but perhaps the most devastating attacks on the S.A.F.E. Act that one could come up with. And much of it doesn't involve the Second Amendment (yes, there are issues with this bill that are even more serious than Second Amendment problems).

You will be pleasantly surprised. Some gun rights groups are nervous that a group of attorney's might "steal their thunder", and that's completely understandable, but that's not what Mr. Tresmond is trying to do. He's a hard working civil rights attorney, not an advocacy group, and he's not looking to make money out of this. I hope this puts some of those fears to rest.
Maxb49 is offline  
Old January 29, 2013, 07:37 PM   #18
Dr Big Bird PhD
Senior Member
 
Join Date: October 26, 2012
Location: Los Angeles, CA
Posts: 778
What clause or law would allow for another lawsuit to come before this act?
__________________
I told the new me,
"Meet me at the bus station and hold a sign that reads: 'Today is the first day of the rest of your life.'"
But the old me met me with a sign that read: "Welcome back."
Who you are is not a function of where you are. -Off Minor
Dr Big Bird PhD is offline  
Old January 29, 2013, 07:37 PM   #19
Fishing_Cabin
Senior Member
 
Join Date: February 10, 2010
Posts: 713
Quote:
Originally Posted by Al Norris
The "Major Players" had counseled that a few weeks should pass so that the law could be properly studied and a considered reply be brought.

This advice was apparently unheeded.
While I really do understand the risk of a bad precedence, I have to take a pause though...While I understand the "Major Players" are also working to bring forth a case to challenge the law, in part or whole, I did not know there was a monopoly on who could decide, as in the "Major Players"... That causes as much concern to me as the law itself.

Why? If we had listened to a "Major Player" such as the NRA who wasnt initially interested in the Heller case, we would not be as far as we are today. At times it takes a new or different idea to continue to move things forward.

No, I am not saying that the NRA or other "Major Players" dont know what they are doing, but the fact that a small group wants to be the only one to go forward worries me, extremely.
Fishing_Cabin is offline  
Old January 29, 2013, 07:50 PM   #20
Maxb49
Senior Member
 
Join Date: March 8, 2007
Location: Jamestown, New York
Posts: 256
Quote:
What clause or law would allow for another lawsuit to come before this act?
That's the wrong question to ask. There is no "clause" that allows for more lawsuits. The way to look at it is, lawsuits are only prohibited if the doctrine of collateral estoppel applies. Collateral estoppel will not apply to all of the issues surrounding the unconstitutionality of the S.A.F.E. Act. Therefore, if Mr. Tresmond is unsuccessful, there are other issues that can be raised in challenging this law. There is no reason that any organization should engage in any fear mongering or attempt to intimidate Plaintiffs from filing lawsuits. It's totally unethical.

As an aside, consider the fact that many challenges to a law are raised in multiple federal circuit courts throughout the country, sometimes resulting in contradictory decisions among the circuit appellate courts (percolating issues). The Supreme Court often rules on these issues. The fact that these issues have been challenged in one district court does not prevent them from being challenged in another district court. This case is being raised in New York State Supreme Court, Fourth Department, Eighth Judicial District. There is nothing preventing other challenges in other departments or districts. NYSRPA needs focus their attention on lobbying and political action. If they want to hire an attorney to file suit, by all means, that is their right to do so. There is no need for fear mongering or ill will, it's not going to get any of us anywhere.
Maxb49 is offline  
Old January 29, 2013, 07:54 PM   #21
Maxb49
Senior Member
 
Join Date: March 8, 2007
Location: Jamestown, New York
Posts: 256
Quote:
No, I am not saying that the NRA or other "Major Players" dont know what they are doing, but the fact that a small group wants to be the only one to go forward worries me, extremely.
This is so true. Attorneys around the state are really fed up with "major players" telling other people to step aside and leave this up to them. In fact, if the organizations attorneys are doing this, or thinking of doing this, they need to stop and realize that any such action is an offense that can be taken to the attorney grievance committee. It's not OK for attorneys to contact plaintiffs or other attorneys and tell them to not file suit for their benefit. Just imagine the consequences for doing that with an issue other than gun rights (insurance litigation, wills/estates/trusts, banking law, etc). Major, major problem. Even bigger ethical problem when an attorney calls the attorney of a client and asks them to sink the filing of their clients case for the benefit of the original attorney and their organization. That's actually criminal, and...well, I won't go into further detail. It suffices to say that's not kosher.
Maxb49 is offline  
Old January 29, 2013, 11:19 PM   #22
Ed Bernay
Junior Member
 
Join Date: January 16, 2013
Posts: 6
I hope for all of our sakes that before someone files a lawsuit they bounce it off of the other leading players on our side, to get their perspective on strategy, potential consequences of losing and how a win or a loss will effect other cases in the pipeline. If all players on our side are not doing that, we are going to lose in the long term.
Ed Bernay is offline  
Old January 29, 2013, 11:43 PM   #23
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,308
Max, the fact that this is a State case and not a federal case, eases my personal concerns. The distinction between the two are worlds apart.

I will say that I distrust the NRA's litigation efforts in any of this. Their "team" is simply not conversant with civil rights litigation.

I will also say that it was the NRA that was issuing, for the most part, the...um, cautionary note. The SAF was simply worried where they were going to file. I understand that Gura, while cautious, was not entirely opposed to the filing of a State case.

As it stands, I do eagerly await a read of the complaint.
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Old January 30, 2013, 02:41 AM   #24
Dr Big Bird PhD
Senior Member
 
Join Date: October 26, 2012
Location: Los Angeles, CA
Posts: 778
Thank you for clarification Maxb4.

Can this lawsuit reach SCOTUS or will it stay entirely in NYS
__________________
I told the new me,
"Meet me at the bus station and hold a sign that reads: 'Today is the first day of the rest of your life.'"
But the old me met me with a sign that read: "Welcome back."
Who you are is not a function of where you are. -Off Minor
Dr Big Bird PhD is offline  
Old January 30, 2013, 06:59 AM   #25
cajunboy2k
Junior Member
 
Join Date: January 28, 2013
Posts: 1
If the lawsuit is successful and the Hi-Cap ban is lifted, I will buy 1 full cap magazine for the first New Yorker who contacts me on this board. Reasonably priced.

CB2K
__________________
Politicians are people who, when they see light at the end of the tunnel, go out and buy some more tunnel.
~John Quinton
cajunboy2k is offline  
Reply

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 06:33 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.14676 seconds with 7 queries