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

[Brian Pfleuger]

Lowest court in NY?!

This is the State Supreme Court.

[LancelotLink]

Lowest court in NY?!

This is the State Supreme Court.

Supreme Court is the lowest court in New York. Its a holdover from colonial days where it was the Supreme Court for the County.

There are 62 counties in NY, meaning there are 62 Supreme Courts.

Efforts to change this are often opposed by the trial judges, who like being called Supreme Court Justices of New York. They get more cookies when they attend out of state judge conventions.

[Brian Pfleuger]

Huh. No kidding. Shows what I know about court.

[JRH6856]

Lowest court in NY?!

This is the State Supreme Court.

Confusing, isn't it? Not being from New York, I can't always keep them straight, but I think it works like this:

In New York "Supreme Court" is the trial-level court of general jurisdiction in the state court system. It is one of several courts that are "Superior Courts" The first level of appeal from Superior (Supreme) court is the Supreme Court, Appellate Terms and above that is the Supreme Court, Appellate Division. At the top, the New York State Court of Appeals.

(At this point, I'm not sure which court is hearing these cases.)

[Maxb49]

All Special Proceedings originate in the NYS Supreme Court. They are then appealed to an intermediate court of appeals, known as the Appellate Division, which are divided by geographical region, called departments. There are four departments in New York. Western New York is under the Fourth Department Appellate Division. The final court of appeals is the New York State Court of Appeals in Albany. After the Court of Appeals comes a Petition for Certiorari to the U.S. Supreme Court.

[speedrrracer]

So, how does it work? If we "win" an injunction, I'm assuming the other side can appeal all the way up the ladder, correct?

While their appeal is working through the system, what happens to our injunction? Are they granted an injunction against our injunction, meaning the law goes into effect, or is our injunction still in effect during the appeals process?

Gimme them details!

[Spats McGee]

I'll freely admit that I'm not a NY attorney, but operating on general principles, it should go something like this:

1. Plaintiff files Complaint and request for TRO &/or injunction
2. If Plaintiff wins, Court enters TRO/injunction
3. Defendant(s) appeal, and file a motion to stay the injunction (allowing state to continue enforcing law) pending outcome of appeal
4. Trial court decided whether to stay injunction.

If the Court issues the injunction, my gut reaction is that it is unlikely that the stay will be granted. I say that because denying a stay (leaving injunction in place) just leaves everyone in the same position that they would be, had the law never been passed. OTOH, if the stay is granted, everyone goes forward, with the risk being that the injunction will be upheld on appeal, and there's a risk that lots of stuff will have to just be undone if the Plaintiffs ultimately prevail.

[Progress]

Can anyone provide info on this matter?

http://www.bloomberg.com/news/2013-0...-gun-suit.html

[Maxb49]

This case is filed by a man named Bob Schulz. Bob is not an attorney, and cannot represent clients. That said, there are interesting issues in the case that are being followed closely.

[Maxb49]

If the Court issues the injunction, my gut reaction is that it is unlikely that the stay will be granted. I say that because denying a stay (leaving injunction in place) just leaves everyone in the same position that they would be, had the law never been passed.

The consensus among the attorneys here is identical with Spats. Judges typically don't like to stay their orders pending appeal around here.

[62coltnavy]

A restraining order that does not change the existing status quo is not likely to be stayed, so a retraining order here, invalidating the new laws but leaving the original NY laws in effect, is a good "no stay" case. By contrast, in Wollard, the injuction barred the Md. "may issue" law, and would have resulted in a massive change in the status quo. The trial court refused to stay his ruling, but the Court of Appeals did; and although it set the case for expedited briefing, and the case has been argued, no decision has yet been issued and the stay remains in effect.
That said, i am not sure that a TRO is an appealable order, although perhaps a petition for writ of mandate would lie. The TRO is just the first step--there still has to be a trial and a determination by the court that the law is invalid, resulting in a permanent injuction (which is an appealable order). A TRO here doesn't mean that much, except that the SAFE law will be delayed until the litigation is concluded.

[Come and take it.]

What is important is that it will snag up the law and slow it down.

Also it may even be that even a liberal judge may have an issue with a law being passed on the grounds it was an emergency when it obviously was not. And that there is clear evidence that the legislators never took the time to read the bill thourougly enough to know what they were going pass. i.e. did not know it would affect police, or transportation of guns.

That would be an abuse of legislative and executive powers.

There was clearly no representation of the people in that only a few inquisitive people even knew they were passing the legislation and had no time to notify their lawmakers of what they thought of it. I have friend in New York who knew absolutely nothing until it read it in the paper a few days after it had been signed by Cuomo.

[Musketeer]

The feigned need for speed in passing this was atrocious. I learned of it the hour it was going to vote in the state senate. My senator, who absolutely opposes it, was doing his Army reserve time in VA and did not even have the opportunity to comment about it let alone vote.

[speedrrracer]

Is today the last day for the state to satisfy the order?

[kayakersteve]

Is this true from the SAFE act:
N.Y. PEN. LAW § 265.03
A person is guilty of criminal possession of a weapon in the second
degree when:
(1) with intent to use the same unlawfully against another, such
person:
(a) possesses a machine-gun; or
(b) possesses a loaded firearm; or
(c) possesses a disguised gun; or
(2) such person possesses five or more firearms; or
(3) such person possesses any loaded firearm.
Such possession shall not, except as provided in subdivision one or seven of section 265.02 of
this article, constitute a violation of this subdivision if such possession takes place in such person's home or place of business.
Criminal possession of a weapon in the second degree is a class C felony.
N.Y. PEN. LAW § 265.04
A person is guilty of criminal possession of a weapon in the first
degree when such person:
(1) possesses any explosive substance with intent to use the same
unlawfully against the person or property of another; or
(2) possesses ten or more firearms.

Owning 5 or more is a felony???

[Willie Sutton]

^^^^


Such possession shall not, except as provided in subdivision one or seven of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person's home or place of business.



Not in your house... I guess you can take 5 to the range but not more.



Willie


.

[HarrySchell]

No, and I think the comment on it is one on this thread. I forget.

The sloppy way they wrote the law is another reason it should be canned.

[camper4lyfe]

Kayaker, the key to that is the definition of firearm. A firearm is an unlicensed gun, not the standard definition of the word.

[kayakersteve]

Thanks for quick responses folks.

[Musketeer]

So when the Suffolk County busts my cajones at my next permit renewal and requires I transport all my handguns to their office for confirmation during my renewal will I be a felon for transporting them there?

[bird_dog]

On the NY Firearms website (which I can't access at work today) Jim Tresmond posted (under Max's screen name) that good things were coming.

Any update, Max?

[Maxb49]

There will be updates coming as things become more solidly established in the next week and a half.

One of the biggest problems with the NY SAFE Act is the confusion it's created among dealers. A lot of dealers are refusing to sell guns that they have no problem selling, even under the NY SAFE Act and it's putting a damper on their business and the ability of New York residents to purchase guns. It's a good idea for gun dealers to retain a lawyer familiar with the various provisions of the act as it relates to the sale and transfer of guns to sit down spend some time with them explaining what they can and cannot do right now. The $500-$800 that a 1-2 hour consultation costs is well worth the confidence and boost to their business it will provide. As things develop here, dealers may in fact be in a much clearer position than they are today.

[CowTowner]

Sounds like the dealers need to get together and see if they can find an attorney willing to give a group consultation.
If done as a cooperative thing by county or region could be very helpful for everyone.

[Maxb49]

It's certainly a worthwhile option. Tresmond Law, of course, knows the NY SAFE Act inside and out, but there are plenty of competent attorneys for dealers located in other areas of the state. Gun sales are not going away any time soon in New York. Mistakes made by firearms dealers (i.e. if they're too restrictive and won't sell or transfer guns that they are legally able to transfer) can be costly; clients may never return and they may tell their friends to steer clear from that dealer. Bad news spreads faster than good news, and FFLs depend upon a good reputation for business.

[Spats McGee]

I just saw an article that said the 7-round limit had been suspended indefinitely. Anybody have any more information than is contained in this: http://www.bloomberg.com/news/2013-0...elos-says.html ?