Dywinski v. State Of New York (SAFE Act Challenge)

[JimDandy]

Will a lay-man think so? I didn't really get why that was big.

[Maxb49]

Yes, certainly everyone on all sides of the issue will consider this a landmark moment, attorney and non attorney alike.

That's all I can say for now.

[Spats McGee]

Originally Posted by Maxb49

This is bigger than the jury announcement.

Originally Posted by Maxb49

Yes, certainly everyone on all sides of the issue will consider this a landmark moment, attorney and non attorney alike.

That's all I can say for now.

Well, now you're just teasing us.

[JimDandy]

Well Spats, since Max is busy... what was so big about the Jury Trial thing? Other than it took the decision mostly out of the judge's hands giving them a better shot at victory?

[Spats McGee]

JimDandy, the best I'll be able to give you on this one is a hunch. In reading my hunch, please bear in mind that I'm not licensed in NY, and have never practiced there. Accordingly, my best hunch will just be based on general principles of legal practice.

With that said, there are two kinds of "matters to be found" by a court. There are "matters of law," and "matters of fact."

Matters of law -- "That which is determined or ascertained through the use of statutes, rules, court decisions, and interpretations of legal principles." Source: http://legal-dictionary.thefreedicti.../Matter+of+law

Matters of fact -- "That which is to be determined by the senses or by the testimony of witnesses who describe what they have perceived through the senses of sight, smell, touch, taste, and hearing."
Source: http://legal-dictionary.thefreedicti...Matter+of+fact

Ordinarily, these cases go to federal court, rather than state, and I would expect most of them to be tried to a bench. The reason for that is that the constitutionality of a law is a matter of law, not a matter of fact. In a bench trial, the judge is the finder of fact, as well as the finder of law. When the challenge is simply to the constitutionality of a statute, it's likely that many of the facts (such as "Plaintiff desires to carry a handgun for self-defense") will be undisputed.

In a jury trial, the jury becomes the finder of fact, and the judge is the finder of law. The jury decides whether "the plaintiff actually desires to carry a handgun for self-defense," for example. The judge finds the law and instructs the jury on same.

So, that's the long-winded way of saying: Other than it took [certain parts of] the decision mostly out of the judge's hands giving them a better shot at victory, nothing.

Edited to add: But that's pretty big.

[Maxb49]

From my father:

Article 78 cases are rarely, if ever, tried by a jury, but they are available when the facts are in dispute. The Petitioners argue that certain facts on which this case hinges are in dispute, and this proceeding is going to do something that hasn't been done before in NY - argue a 78 Firearms case on Constitutional grounds in front of a jury.

This case brings nationwide attention to a little known way of handling a case called Article 78 in New York. It's not your typical compliant.

[Maxb49]

Here's a chance for you to meet Mr. Dywinski and Mr. Lefkowitz, the two fine young men who are the Petitioners in this matter.

http://www.wivb.com/dpp/news/new_yor...er-ny-safe-act

[Al Norris]

JimDandy, I've been "brushing up" on NY civil law, as best a layman on the Interwebs can, and I agree with Max. The way in which this case was filed and a jury trial is requested, is really big news. To those that don't have a clue about NY civil procedure (including most of the guys living in NYS), this "Big News" wasn't very big at all.

I mean, come on! Jury trials happen every day, yes?

Well, not in this case. First, it being an Article 78 case means that it is being tried before a Justice of the NY Court of Appeals, their version of a State Supreme Court. Second, an adverse ruling would be appealed for reconsideration directly to the Full Court. My understanding is that unless the Justice at trial made a grievous error, reconsideration is denied (most cases). Next stop would be a petition of cert to the SCOTUS.

That is a Big Deal. (I'm sure that Max will correct me, if and where I'm wrong here)

[Aguila Blanca]

Originally Posted by Spats McGee

In a jury trial, the jury becomes the finder of fact, and the judge is the finder of law. The jury decides whether "the plaintiff actually desires to carry a handgun for self-defense," for example. The judge finds the law and instructs the jury on same.

How curious. That's exactly what they tried to tell me the last time I was rejected as a prospective juror. During voir dire one of the opposing attorneys asked me if I would have any problems following the judge's instructions on what the law said or meant. Being under oath, I felt I had to be honest, so I said "Yes, if I don't agree with the judge's interpretation I would have a problem."

This caused all measure of consternation. They ultimately hauled in a judge they must have found stuffed in a broom closet upstairs, and she proceeded to ask me that same question. When I gave her the same answer, she lectured me on my inadequate understanding of how the court system works, and told me to go home and do some homework.

So I went home and looked up Georgia v. Brailsford, 3 U.S. 1 (1794), in which case Chief Justice John Jay stated that, "The jury has the right to judge both the law as well as the fact in controversy." I wrote to her honor with this citation (which has never been reversed by the SCOTUS), and she has never acknowledged my letter.

[btmj]

Isn't this similar to Jury Nullification? Jury Nullification has been an important element in achieving some measure of justice in the face of unjust laws ? In the years leading up to the Civil War, people who were charged with participation in the underground railroad were often acquitted at trial, even when the facts clearly pointed towards guilt. Northern white juries felt the law itself to be unjust. In general, most judges hate the concept of Jury Nullification, but hey, TFB. An acquittal is pretty much a done deal, and a jury has the final say.

[Spats McGee]

Yes, what Aquila Blanca points to is jury nullification: the power of the jury to nullify a law. From the federal Model Jury Instructions, 2001 version (the only copy that I could get to quickly):

Ladies and gentlemen: I will take a few moments now to give you some initial instructions about this case and about your duties as jurors. At the end of the trial I will give you further instructions. I may also give you instructions during the trial. Unless I specifically tell you otherwise, all such instructions both those I give you now and those I give you later are equally binding on you and must be followed.
This is a civil case brought by the plaintiff[s] against the defendant[s]. The plaintiff[s] allege[s] that the defendant[s] _______________. The defendant[s] deny[ies] that allegation. [If defendant has a counterclaim or affirmative defense, it should be stated here.] It will be your duty to decide from the evidence whether the plaintiff[s] is [are] entitled to a verdict against defendant[s].
From the evidence you will decide what the facts are. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You will then apply those facts to the law which I give you in these and in my other instructions, and in that way reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.
In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, or only part of it, or none of it.
In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, any motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony and the extent to which their testimony is consistent with other evidence that you believe.
Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you.
You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

Whether jury nullification is a proper exercise of the jury's powers is a debate more properly discussed in another thread. However, I would like to put AB's quote in a little more context:

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.

State of Georgia v. Brailsford, 3 U.S. 1, 4, 1 L. Ed. 483 (1794)

[MWalsh]

For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.

Reasonable.

The law was built to serve justice, but does not always do so. In times where the two are not compatible, a thinking person of initiative must discard the incorrect law and serve justice instead (at least their version of it, as it is often subjective). I expect such views for a potential juror may invalidate their selection.

[batjka]

I am very disappointed that Mr. Tresmond is not challenging the provisions requiring registration of ammo dealers, background checks for ammo sales and outlawing mail-order ammo sales. Even if we return to pre-1/13/2013 situation as far as guns go, Cuomo will make it impossible to feed those guns. We will still end up with a de-facto ban. Mr. Tresmond, please address this problem as well.

[Southwest Chuck]

A poster over at NYFirearms.com says that the announcement is postponed until tomorrow. See post 137
http://www.nyfirearms.com/forums/law...tml#post419292

Just got off the phone with Max -- big news will be postponed to tomorrow. I know you guys have been waiting on this thread anxiously all day but Court schedules have delayed the significant news until tomorrow.

Max will be blogging directly from the court room tomorrow and keeping NYF as well as some other forums current with the information.

[kayakersteve]

Fingers crossed for good news

[ChrisWNY]

I'll let Max provide details but I've been in direct contact with him on these SAFE Act cases and have been relaying leaks (directly from Max who has been in the Court room) within another pro-firearms forum which I won't post here in fear that I might violate forum rules.

As of today, one of the Tresmond Cases (can't get into case details, that is for Max to do) had a favorable ruling come through from a NY State Supreme Court Justice that has been handling the litigation of one of the Tresmond's anti-SAFE cases. The Supreme Court Justice has signed an order for Respondents to appear before the court on April 29th and provide good cause and reasons why the State should not be enjoined from enforcing any provision of the assault weapons ban. This is not the instant gratification NY gun owners are looking for, but the implications of an injunction on the SAFE Act are huge. The injunction is likely to rewind NYS back to how things were in terms of gun laws on Jan. 14th, 2013, before the SAFE Act was passed and signed. You should be able to answer your own questions about assault weapons bans, etc. based on that statement. An injunction is far-reaching and essentially puts the entire SAFE Act on hold while the Court battles are in process (which can take a year or longer). Prelim. Injunctions are only granted when the higher Courts rule that a case has merits among other things.

http://en.wikipedia.org/wiki/Preliminary_injunction

I'm just relaying news here, I spoke with Max on the phone just before 1pm today. Not sure how much info will get into the press at this point but certainly keep an eye out...

[Jayster]

Good news indeed. Great work from these people.

Any response from Cuomo?

[stepupto]

I was following Maxb49 thread on NYFirearms.com and apparently the site just crashed! Before that it was all Great News!

[mrbatchelor]

"I was following Maxb49 thread on NYFirearms.com and apparently the site just crashed! Before that it was all Great News!"

A liberal conspiracy no doubt!!

OK, maybe people celebrating. Or maybe just coincidence.

[stepupto]

Most likely too many people hitting the site. Anyone else experiencing the same thing?

[rrockefe]

Yes, I also cannot get in.

[ChrisWNY]

Yeah they're down right now, probably from the increase in traffic. Either that or Cuomo hired some ex-union workers to DDoS it...

[stepupto]

This came in an email from SCOPE.

http://audio.wben.com/a/71558139/bau...d-dipietro.htm


http://www.wktv.com/news/local/State...193664911.html

[Maxb49]

I can't believe we crashed NYFirearms.

We were taking a break, went out to dinner, and I tried pulling the website up on my phone. Said the page couldn't load. I was puzzled. Then I thought "Nah, couldn't be..." Apparently, it is.

Onward!

[kayakersteve]

Come on Max, your only official update tonight is to tell us that NY firearms crashed? We want the scoop from the horses mouth.......