Another NY SAFE Act Legal Challenge

There’s a race on in New York. Specifically, a race among lawyers to be the first to kill the NY SAFE Act. We’ve been talking about James Tresomnd’s challenge, which is already doing quite well and awaiting a ruling on an injunction from the courts to keep the act from going into effect. Another lawyer, Robert Shultz, is challenging the act through the use of a class action lawsuit against the governor and his cronies and has been instrumental in organizing the rallies in New York. And now it looks like Shultz will be the first to present oral arguments in court against the act this coming Wednesday. From LegeslativeGazette.com: . . .

SAFE Act opponents will have their first day in court Wednesday as Robert Schulz, acting pro se on behalf of 1,256 plaintiffs, had his motion to have oral arguments heard by the state Supreme Court approved.

Schulz petitioned the court on March 7 to have oral arguments heard by the court on Wednesday “given the fact that 53 of 56 operative sections of the SAFE Act are scheduled to take effect on March 14, 2013,” according to his motion filed with the court. The suit would provide an injunction against parts of the SAFE Act becoming law while the courts determined the constitutionality of those sections.

It sounds like they’re challenging the constitutionality of the rush job Governor Cuomo pulled to pass the legislation, and making the case that the governor’s letter of urgency waiving the three-day legislative waiting period was inappropriate under the circumstances and inaccurate in the details. I’m still not exactly clear on the fine points of the case and what they hope to achieve, but needless to say we’ll be looking to interview them pretty shortly.

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About Nick Leghorn

Nick Leghorn is a gun nerd living and working in San Antonio, Texas. In his free time, he's a competition shooter (USPSA, 3-gun and NRA High Power), aspiring pilot, and enjoys mixing statistics and science with firearms. Now on sale: Getting Started with Firearms by yours truly!

27 Responses to Another NY SAFE Act Legal Challenge

  1. avatarSpoons Make You Fat says:

    The best part about the SAFE act is that I feel safer. Probably how Californians feel, too.

    California Seizes Guns as Owners Lose Right to Keep Arms
    Bloomberg – March 11, 2013

    Wearing bulletproof vests and carrying 40-caliber Glock pistols, nine California Justice Department agents assembled outside a ranch-style house in a suburb east of Los Angeles. They were looking for a gun owner who’d recently spent two days in a mental hospital.

    Merely being in a database of registered gun owners and having a “disqualifying event,” such as a felony conviction or restraining order, isn’t sufficient evidence for a search warrant, Marsh said March 5 during raids in San Bernardino County. So the agents often must talk their way into a residence to look for weapons, he said.

    At a house in Fontana, agents were looking for a gun owner with a criminal history of a sex offense, pimping, according to the attorney general’s office. Marsh said that while the woman appeared to be home, they got no answer at the door. Without a warrant, the agents couldn’t enter and had to leave empty- handed.

    They had better luck in nearby Upland, where they seized three guns from the home of Lynette Phillips, 48, who’d been hospitalized for mental illness, and her husband, David. One gun was registered to her, two to him.

    “The prohibited person can’t have access to a firearm,” regardless of who the registered owner is, said Michelle Gregory, a spokeswoman for the attorney general’s office.

    • avatarDaniel Silverman says:

      In this case if the husband’s guns were in a safe, and she did not know the combination he would have been able to keep them.
      It is also unusual that they don’t have warrants so they need to talk their way in lol. Just tell them sorry come back with e warrant and close the door, nuff said.

  2. avatarIn Memphis says:

    So for thoes of us who might be impared on the subject of lawsuits, might this lead to complications for the home team (we the people) to have two seperate trials going on against the same problem? I couod be wrong but it just sounds like more headaches and stepping on toes than good.

    • avatarDaniel Silverman says:

      Actually if done right this could be a good thing. Here is why.
      NY basically passed a huge single law, using the emergency act to do it. Now if we have new suits filed not at the same time, but at different times, each challenging different areas. Each would ask for an injunction on part of or the entire law.
      At this point we can litigate the heck out of it. This could be tied up for months or years. Lawyers can ask for extensions on time and drag it out.
      More challenges can be filed, picking apart the law until it becomes useless and unenforceable. If the judges are smart they will simply put an injunction on the whole thing until this is all done.

      • avatarVermont Guy says:

        It is useless and unenforceable now.

        It also contains a severablilty clause which means every point has to be challenged, taken all the way to the USSC and ruled unconstitutional. All 56 of ‘em.

  3. avatarEagleScout87 says:

    the argument “this bill does nothing to prevent tragedy because it lets people keep what they already have” is not only inaccurate, but does a grave disservices to the Pro-2A movement. The bill does nothing to prevent tragedy because good people who obey the law aren’t the problem, which we all already know. Words need to be chosen carefully, because one on the anti side could make the conclusion jump “you’re right, we need to confiscate ALL guns”.

  4. avatarWilliam says:

    I LOVED “had to leave empty-handed”. All it needed was a really sad-looking emoticon after it. : [

    But there needs to be a fair and equitable procedure in place, not just a feeble tarring with the crusty old “mental illness” brush.

    The average competency hearing in the Land of the Free is less than one minute long.

  5. avatarLemming says:

    I’m still puzzled by this one. Should he prevail (which according to many lawyers is unlikely) all Cuomo would need to do was resubmit the bill, wait three days, and we’re back where we are now.

    • avatarChuckN says:

      True, but if Shultz od Tresmond get an injunction it will help
      them and other plaintiffs by giving them more time to prepare
      arguments. Cuomo can obviously resubmit and wait the 3 days,
      but given the level of scrutiny, ramming it through again would
      be very difficult.

      I suspect that Cuomo et al will allow the SAFE Act to die in
      court but run a revised act through the legislature as quietly
      as possible. It would have the appearance of more moderation
      but really have the same language just hidden deeper in
      legalese.

      • avatarNor'Easter says:

        Very true, Ramming it through again will be tough in it’s present form. Some of the Republican Senators have already changed sides – all the demos and letters have done some good. My feedback tells me that it would be extremely modified if done at all. They’ve already done a little of that on the Governor’s FAQ’s Safe Act site.
        As was pointed out to me by the Legal Eagle Brigade – bless ‘em all – on this site, the chances of a good result by the lower courts are low anyway and it’ll go up to the 2nd Circuit or SC in any case. Like me just remind them of the old saying “Nothing of any Consequence was Ever Achieved by a Reasonable Man”.

  6. avatarAccur81 says:

    It sounds like their heart is in the right place, but I sincerely hope the execution of the legal challenge is sound. Like others, I’m concerned that an unsuccessful challenge could set things back even further for gun owners. With that being said, the SAFE Act definitely needs to be fought in the courts.

  7. avatarSammy says:

    But, if the SAFE ACT is blocked how will we “End The Madness!!”? Please be reasonable! Think of ………………….The Children, for god sake, think of the millions of children that will be killed if this act of responsible legislation is invalidated !

    Sarcasm/

    Ultimately the people who voted for this Communist asshat are responsible.

  8. avatarRalph says:

    Bob Schulz is not an attorney. He’s a notorious tax “protester” and birther who’s run into legal troubles of his own. We couldn’t be in worse hands that this @sshat’s.

    • avatarNor'Easter says:

      Hi Ralph, just saw the video and well……
      Whatever we think of it, he’s doing it and I wish him all the best.
      Just want to say though, that I do see your point. Got my fingers crossed.
      Is SAF doing something on this too?

    • avatarChristine says:

      I’m not from NY but I am keeping my fingers crossed for all of you! I wanted to say though, you are here criticizing the guy trying to do something about it as an a@shat but if you think he is so inept and you can do better then get out there and help! He’s at least being pro active and trying to protect everyone’s rights! Give him credit where credit is due and maybe he will just surprise you!

  9. avatarRandy Drescher says:

    I would assume/hope Bob is getting lots of help on this. Maybe the law is so bad that even a hack like me could knock it down, Randy

  10. avatarUS says:

    Not a fan of all these apparently minor-league guys rushing in on these NY SAFE Act lawsuits. I appreciate the sentiment (assuming they are not just looking for recognition) but am worried they will do more harm than good. Something as big as this should really be handled by the SAF.

    • avatarAccur81 says:

      My thought s exactly – and Perhaps Ralph could back them up.

    • avatarjustamessenger says:

      I, too, would feel more comfortable with SAF leading the way in federal court.

    • avatarDarnon says:

      There was only a limited time frame in which article 78 filings can be brought against the law which is why Tresmond got on the ball pretty quickly. There are also a lot more lawyers and legal professionals behind the Tresmond case than just himself so the idea that it’s just “some minor-league guy” is a bit of a misnomer that the armchair lawyers like to throw out to try and discredit him for some reason. In any case, the SAF and NRA haven’t exactly stepped forwards to support the case or file their own at this time; they may simply be waiting until it gets higher up the food chain of the court system.
      One of the issues with the Schulz case is that if he wins, it simply kills the SAFE Act, but doesn’t do anything to potentially establish any real 2nd amendment gains. Whereas in the case of challenging the actual content of the law should it go before the Supreme Court and receiving a favorable verdict it could invalidate any further magazine bans or assault weapon bans as unconstitutional.

      • avatarNor'Easter says:

        Very good thinkin’ – maybe too much thinkin’. What a dream to have it go the way you say, but things don’t always go the way we want. That’s why we have to hang loose and use all opportunities as they occur.
        Scalia is waiting and I’m desperate to get something to serve up he can hit out of the park. They’ve done the two, Federal home (keep), rest of country home (more keep) and now need a third – “bear”. They do need a type and mag size too but that may take a while.
        There’s another case going for cert’s that has nothing to do with Safe Act but challenges the Sullivan Law to establish a logical basis for CCW regulations. The Supremes have already established an “Arbitrary and Capricious” standard – God, I love that term – and the Sullivan Law is nothing but, so that may do the trick
        This one is backed by the whitest of white shoes and looks great.

  11. avatarMark N. says:

    This is NYS’ response to the OSC: http://www.scribd.com/doc/129788688/Memorandum-of-Law-in-Opposition-to-Preliminary-Injunctive-Relief
    The State contends that the court cannot judge the propriety of the emergency by the Governor, and that therefore there is no procedural impropriety. Haven’t read the rest.

    • avatarNor'Easter says:

      That can be good, telling a court it can’t do something is a good way to get them to do it.

  12. avatarcrndl says:

    the website bob refers to in the video is here: http://www.wethepeopleofny.org/
    and a video from that site on our “sister country” switzerland’s militia tradition here:
    http://www.wethepeopleofny.org/
    good stuff

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