BREAKING: NY District Attorney Refuses to Stop Enforcing Now-Unconstitutional Ammunition Limits

H&K Mag, c Nick Leghorn

We recently reported that the NY SAFE Act’s provision banning the loading of more than 7 rounds of ammunition in a magazine had been struck down as arbitrary by the a federal court judge, something we all knew but took many months of wrangling to get the anti-gun politicians in New York to understand. However, it now appears that at least one district attorney (Onondaga County, to be specific) thinks that just because the law is unconstitutional doesn’t mean that he won’t enforce it . . .

From localsyr.com:

Less than a year after New York passed historic legislation regulating guns in the state, a Federal judge has made a ruling saying the controversial laws are constitutional.

The judge in Buffalo did strike down one controversial provision – the limitation on ammunition to large capacity magazines. The SAFE Act currently limits magazines to seven bullets.

However, Onondaga County District Attorney Bill Fitzpatrick noted that the ruling is only binding in the Western District of New York.

He says the limitation on ammunition will continue to be enforced in the Northern District of New York – which includes the greater Syracuse area.

My question is this: how does Bill Fitzpatrick justify his continued persecution of gun owners? Does he think that his specific county is a Constitution-free zone? Does he not understand that prosecuting people for something that has already been found unconstitutional in the same state in which he operates will cost taxpayers untold hundreds of thousands of dollars in court fees and reparations once those individuals are exonerated? Or does he simply think that gun owners are scum?

Stay tuned.

comments

  1. avatar El Mac says:

    Typical commie at work here folks…move along now, nothing to see here.

    1. avatar Chris Mallory says:

      Typical government employee is more like it. Only those of low morals and suspect character take government employment.

      1. avatar 45&4WD says:

        By no means a government employee here, but this kind of blanket statement crap is the exact same thing anti’s pull. It’s simply not true.

      2. avatar William Burke says:

        That’s an eternal truth.

        “All governments suffer a recurring problem: Power attracts pathological personalities. It is not that power corrupts but that it is magnetic to the corruptible.
        Such people have a tendency to become drunk on violence, a condition to which they are quickly addicted.”
        – Frank Herbert, Chapterhouse: Dune

      3. avatar Wood says:

        @ Mr. Mallory: That statement is neither true nor helpful. The POTG are so divided among ourselves the antis may well win. Lose the ‘tude, play nice with your friends, and save the offense for your enemies. And that’s the nicest I’m ever gonna say that.

    2. avatar Cliff H says:

      The DA is an elected position, I believe. He is simply playing to his base to get votes even though he knows he has no legal standing on this issue. What does he care about the expense of these illegal prosecutions? He doesn’t have to pay, the low-information voters won’t notice, and he’ll probably get re-elected.

      1. avatar JMD says:

        I’m afraid I live in Syracuse and thus could be prosecuted by Mr. Fitzpatrick (if I were to stoop so low as to load a legally-owned magazine with 8 rounds). He has been the DA here for as long as I can remember and runs basically unopposed at election time. It’s not that he needs to pander for votes, it’s that most politicians around here, D and R alike, seem to believe that guns should be kept out of the hands of the people.

  2. avatar Emfourty Gasmask says:

    Oh lord. If somebody wants to take the plunge they can be set for life with how quick this county can be sued for enforcing unconstitutional laws against the people.

  3. avatar Luke says:

    Of course. Wasn’t stop and frisk ruled unconstitutional too?

    1. avatar Jus Bill says:

      Yeah, what is it with New York? Are they jealous of North Korea or something?

      1. avatar William Burke says:

        North Korea is jealous of them, more likely.

  4. avatar John S. says:

    I hope someone sues the pants off this guy, personally as well as the county. The absolute contempt for the constitution and the authority of the court makes me sick.

    1. avatar BobS says:

      Why to I have to roll the dice and get arrested by the state for not breaking and unconstitutional law and spend my treasure in order to challenge AGAIN in court the unconstitutional behavior of a state agent. Why isn’t this judge willing to declare this DA in contempt of court and throw HIS butt in jail?!?

  5. avatar H-Dizzle says:

    Ol’ Fitzy is one of the three directors of Andy Cuomo’s “Anti-Corruption (as long as you don’t look at the Executive branch or the Democratic Party) Commission” and it looks like he is angling for something more from the Gov at this point, so this is him falling in line.

    No real shock from this weak and unprincipled man that he bow down to King Andy. Our only real hope here in NY on this is SCOTUS.

  6. avatar NYC2AZ says:

    I often wonder aloud to my more progressive friends and family members in NY, who constantly talk about the overpopulation of our prison system (among other crime-related problems), why they believe a person who goes through all the legal hoops to obtain a handgun lisence in NYS should be put in jail for having 8 – 10 rounds in their firearm instead of the abitrary number of 7; while murders and rapist get early parole due to the aforementioned overcrowding in prison. I’m still waiting on a rebuttal.

  7. avatar uncommon_sense says:

    Let’s say a police officer tries to arrest a citizen today for having 9 rounds in a magazine … because County Prosecutor Fitzpatrick says they are still enforcing a law that a federal judge declared unconstitutional. How can that citizen interpret that police officer’s actions as anything but a felony? Why is that citizen under any obligation to to submit to the arrest? Why is that citizen not legally justified using any force necessary to prevent the police officer from illegally kidnapping that citizen?

    1. avatar NYC2AZ says:

      Unfortunatley that is an absolute no-win scenario for the citizen being arrested.

    2. avatar rjoguillory says:

      …correct….it is the same thing with their “Constitution-Free-Zone”…that they think they can apply to the first 100 miles inland from the coast….what a load of crap…if there is no Constitution that declares our liberties and the basis for our laws…then the country doesn’t exist…. and we are not bound by any of the “laws” or enforcement of those laws….it is a free-kill zone….if there is no government…or the government feels it is not bound by The Constitution…then that means no government officials or people who hold any kind of office over us……I say we begin to form Citizen Grand Juries… and start charging these people with treason and violating their oath of office…when we find them guilty… start hanging them…impeach… charge…convict and hang…no appeals process…nothing…if you voted for this treason…or have written some judicial order that obviously violates The Constitution …impeach, charge , convict…and hang…including the last four living Presidents….hang them all….

      RJ O’Guillory
      Author-
      Webster Groves – The Life of an Insane Family

    3. avatar Hannibal says:

      That’s why citizens need to know the law. The DA is technically correct that the court case cited does not cover his district. Therefore it is still technically a legal law, and it would be a lawful arrest. The thing is, the law is ALL ABOUT TECHNICALITIES. Regardless, if you try and resist arrest you will lose up to and including by being killed. So cut the keyboard commando stuff… if you really believe that crap we should be hearing about you on the evening news.

      Would an arrest for 8 rounds in a mag be appealed? Yes, if the charges weren’t dropped. But that doesn’t mean it’s an illegal arrest.

    4. avatar tdiinva says:

      The DA is legally correct. A ruling by a Federal district court is only applicable in that district. It is not a settled constitutional question yet. If an appellate court confirms and/or expands the decision it will apply to all areas within the appellate courts jurisdictions. Contradictory rulings by different appellate jurisdictions general get taken up by the SCOTUS. You can’t have two appellate decisions taking opposite positions.

      1. avatar Geoff says:

        It’s worse then that, a federal district court decision is NON-BINDING against NYS Law. In NY, only a decision from NY courts or SCOTUS is binding. This is why the NYSRPA NRA suit was flawed from the beginning, Federal District courts are trial level courts. You would not be tried in a Federal court for a SAFE Act Violation, you would be tried in a State Court. NYSRPA and NRA are playing for a Shot at SCOTUS. In actuality no one in NYS can load more then 7 unless they have an exemption.

        1. avatar Rustholio says:

          That is not correct. The Federal Courts have subject matter jurisdiction to decide whether state law violates the US Constitution. The decision binds the State of New York until it appeals the decision and wins.

          However because the federal district court’s geographic jurisdiction does not include all of New York State there is an argument that it does not bind those areas of the state that are not under the jurisdiction if this particular Federal District Court.

          Prosecutors will typically use discretion though and not prosecute a case where the statue has already been struck down by one district. That’s what is unusual here.

        2. avatar Geoff says:

          The district attorney from Cayuga County Chimed in when asked and that is who I quoted specificly “… an earlier ruling by the state Court of Appeals — New York’s highest state court — federal judges’ rulings on state laws are merely advisory and have no binding affect without concurrence from some state court or legislative act.”
          Just saying I’ll be safe as a resident and stay downloaded to 7 until the whole mess is settled….

      2. avatar Salty Bear says:

        Except that we don’t need some federal judge to tell us what we already know. 2a is clear. The technicality here is that lawmakers “technically” ignore the Bill of Rights while “officially” championing freedom and liberty and forthechildren.

    5. avatar Nigil says:

      Unfortunately, you as a citizen are not [legally] allowed to resist arrest (even if you’re being wrongfully arrested). You are only [legally] allowed to resist unnecessary use of force while being wrongfully arrested. Your only legal recourse is to sue after the fact. Sort of a ‘good faith’ in law enforcement kind of thing.

    6. avatar Cliff H says:

      How about this – if you’ve got 10 rounds on board and are confronted by a cop fire three times into the ground. You’ve got 7 rounds in the mag when arrested and can only be charged with misdemeanor “firing a weapon within the city limits.” (/sarc)

    7. avatar William Burke says:

      To my way of thinking, it is 100% justifiable. Maybe not prudent, but justifiable, and commendable.

      Tyranny unopposed is tyranny acceded to.

  8. avatar IdahoPete says:

    “… how does Bill Fitzpatrick justify his continued persecution of gun owners? Does he think that his specific county is a Constitution-free zone?”

    Yes. Yes, he does. Just like Obama thinks America is a Constitution-free zone.

    1. avatar Chris Mallory says:

      Just like nearly every president since 1861, including every president since 1932.

      1. avatar IdahoPete says:

        And, for that matter, every Congress since 1861.

    2. avatar William Burke says:

      Just like Dubya Arbusto: “It’s just a goddamned piece of paper.”

  9. avatar Mike S says:

    PLEASE let this end with the Marshals Service bringing him before a Federal court to explain why he defied a ruling.

    1. avatar Soccerchainsaw says:

      Wouldn’t that be a joyous occasion? Of course, it isn’t ever going to happen given our current administration….

      1. avatar Mike S says:

        Its true- but a guy can dream!

    2. avatar Hannibal says:

      He hasn’t defied a ruling. The ruling has no legal holding over him or his district. No doubt a conviction would be tossed, but that’s not the same thing.

  10. avatar T says:

    When it comes to someone like Bill it’s all of the above. What’s really ridiculous is that he’s under the illusion that he needs to keep this law in place to save lives. Nothing but emotion and fear is what Bill is all about.

  11. avatar Idaho Lawyer says:

    Actually, that opinion was issued by a Federal Court, specifically the Eastern District of New York of the United States District Court. As a result, the opinion has no force of law in other jurisdictions, including Onondaga County, New York, which is in the Western District of New York.

    Further, I don’t think any New York State Court has struck down the seven-round limit. It’s important to note that New York’s highest court is called the New York Court of Appeals, not the “Supreme Court.” Instead, New York’s trial and intermediate courts are called the “Supreme Court,” even though their opinions are not binding on the entire state. Only opinions issued by the New York Court of Appeal are binding on the entire state of New York.

    1. avatar Soccerchainsaw says:

      While this ruling was indeed issued in one federal district court, it is still a federal court, no? Don’t federal court rulings apply to the whole country until either a conflicting ruling is reached or the ruling is overturned by either an appellate court or the supreme court?

      1. avatar Mark N. says:

        No. Trial court decisions are binding only as to the parties in the trial court district in which the decision was issued. (California, for example, has three different federal trial court districts, NY has at least that many.) Outside of that court, trial court decisions are merely persuasive authority, not binding on any other court. Pretty much the same as county judges–their decisions are binding only on the parties, not on anyone else, and not on any other judge at any level.

    2. avatar JeffR says:

      If the state was a party to the lawsuit, it is bound by the decision . . . for now. If a state prosecutor wants to ignore the decision, he can enjoy being brought before the court for contempt.

      1. avatar Mark N. says:

        I addressed this below. the question is whether he is a state agent or a county agent. If he is a county agent, he as an argument that he is not bound.

        1. avatar JeffR says:

          True story on the county agent part. Too many people, however, are confusing the precedential value of a federal court decision on other courts and are completely ignoring the party issue. Your post below on the Illinois debacle was spot on. A county sheriff, Tom Dart, can flout the N.D. of Ill. a bit on its rulings against the state, but an Illinois prosecutor may find himself in a bit of a bind.

    3. avatar rlc2 says:

      Thank you for the facts. NY voters will suffer from the SAFE Act and its consequences until they decide they have had enough. NYC has already elected a Progressive. The rural and conservative counties are going the other way. This will be interesting to watch.

    4. avatar LKB says:

      (Texas lawyer here)

      Picky nit: actually, the order *is* from the Western District of NY, and Onondaga County is in the Northern District.

      Nevertheless, Idaho Lawyer’s legal point is well taken: just because one jurisdiction has ruled a statute unconstitutional, it doesn’t mean other jurisdictions of equal dignity are bound to accept that ruling.

      Indeed, “circuit splits” (where one federal court of appeals rules one way, but another rules the opposite) occur quite a bit, and unless and until the Supreme Court resolves such splits you can have situations where a law is considered unconstitutional and unenforceable one part of the country yet constitutional and in force in another.

      Again, the SAFE law is garbage, but unfortunately this DA’s legal position (from a procedural point of view) is not completely out to lunch here. And because his position is certainly legally colorable, the idea that he has any serious exposure to any sort of civil rights lawsuit for asserting such a position is wishful thinking at best.

      Sorry, but that’s just how it is.

      LKB

      1. avatar Hannibal says:

        It’s really nice to see some people here who know the technicalities of the law in addition (not “instead of”) knowing what’s right.

        1. avatar Ralph says:

          Let the ass kissing begin.

        2. avatar JeffR says:

          WTF, Ralph. Take a thanks now and again on behalf of the legal profession. It doesn’t happen often.

    5. avatar Kevin R. Mussack says:

      Check your facts.
      It was the western district court that ruled and Syracuse is in the northern district, I believe.

    6. avatar William Burke says:

      Named after the Iroquois nation that sleeps on a reservation.

  12. avatar jwm says:

    This is not enforcing the law or seeking justice. This is a flagrant attempt to turn law abiding folk into criminals for no other reason than it can be done.

    Tar and Feathers would be appropriate here.

    1. avatar Soccerchainsaw says:

      In France they used guillotines…

      1. avatar William Burke says:

        Vive la difference!

    2. avatar chuck (hates nj) says:

      I vote public stoning, charge for rocks and put it on pay per view. All proceeds used to offset the cost of the resulting lawsuits.

  13. avatar S.CROCK says:

    that is a rotten state.

    would you rather live in ca, ny, or ct?

    1. avatar Mark N. says:

      Given a choice between these three, California. It is, among these, the lesser of evils.

      1. avatar jwm says:

        Weather’s nicer in CA. All I have to do is get a permanent address in one of the gun friendly counties here and a ccw is shall issue. And in CA when you get your ccw it’s good to go damn near everywhere.

        I live in Alameda county. Not ccw friendly territory. But once my wife retires we can sell out here and move to the friendlier parts of the state and get licensed.

    2. avatar Jus Bill says:

      No.

    3. avatar Soccerchainsaw says:

      Hmmm, not sure. In which state would an armed uprising have the highest potential for success? You know, since we’re talking in hypotheticals here, you know….

  14. avatar ST says:

    Who’s gonna stop him?

    Eric Holder?
    Hahaha.

    Besides, this is nothing new for New York State.They’ve been ignoring the FOPA since the Regean administration.Remember this next time some starry eyed idealist yaps about “National Reciprocity”. Even if the Feds passed such a law, the anti gun governments will ignore it.

    1. avatar Mark N. says:

      It is my impression that only NYC is ignoring FOPA, not the whole state.

  15. avatar WI Patriot says:

    Leftists/liberals will ALWAYS find a way to violate the law, your civil rights and your constitutional rights…if you give them an inch, they’ll stretch that out to eternity…

    1. avatar Jonathan -- Houston says:

      I can almost hear this freedom-snatching satrap of a D.A. standing on the steps of the local gun store shouting “Seven rounds now! Seven rounds tomorrow! Seven rounds forever!”

  16. avatar Mark N. says:

    This reminds me of the Cook County DA who claimed that he was not bound by the Seventh Circuit decision in Moore v. Madigan, and only bound by a state trial court decision in his county, or a state appellate decision. There were many discussions as to the legal viability of his argument, but the issue never came to a head because the Illinois Supreme court followed the Seventh Circuit decision.

    One of the things you must consider is that the current decision is (a) of a trial court not an appellate tribunal, and (b) not final in the court in which the decision was entered. Further, either or both of the parties to the case may appeal. As such, The DA has every right to disagree with the decision, and every right to re-litigate the constitutionality of the statute. A state criminal trial court is not bound to follow the decision of a federal trial court, The interesting side question that I cannot answer is whether he is deemed a “party” to the decision as a result of the fact that the State of New York itself was as party. I don’t know what the law is in NY, but in California, a local DA, although elected in a county election and paid by the county, is deemed an agent of the state in his prosecutorial function. If this is true in NY, then the DA is arguably bound by a judgment of the constitutionality of the law as an agent of the State. We will see.

    Meanwhile, it is politics as usual. And one must necessarily question how many people n northern New York state are being prosecuted for having more than seven rounds in their firearms.

  17. avatar Jonathan -- Houston says:

    I used to think that the people who laugh most loudly at the law are those who break the law and those who make the law. Now it would seem those charged with enforcing the law are getting in on the laugh riot. Ahhhh……good times……good times…. Of course, it’s all fun and games until someone fires on Fort Sumter.

  18. avatar Dirk Diggler says:

    Techically, the DA is correct. The decision is binding only on courts/DA’s located within the particular federal district. However, most other federal district courts would take notice of the bullet ruling and most wise DA’s would determine that this is not worth the time/effort when someone is gonna walk if they are an otherwise upstanding citizen. However, here, the DA is looking for something, either an increase in his budget to “proscute” this type of scourge (ie, $$$ = power and Cuomo is willing to funnel more cash to those who do his bidding) or the DA thinks the ruling from the W. District will be overturned on appeal and is hedging his bets appropriately. Either way, unless/until someone gets prosecuted in the N. District, there is nothing that can be done (unless someone wants to try to file an action for declaratory judgment). . . . . if anything, it just means we should donate the cost of a range day to the NY legal defense fund being set up to challenge such a law. I strongly believe the 2nd Cir ct of appeals will overturn the bullet limit and it will have to go to SCOTUS. . . . that is the end game.

    1. avatar rlc2 says:

      I agree. This looks like a political statement of support for the Democratic Party Machine in NY. Having elected DeBlasio, Cuomo and Hillary before that my guess is voters are in for more long term pain.

  19. avatar AaronW says:

    Until I read the whole article I thought for sure the DA in question was Eric Schneiderman.

  20. avatar Notguiltfree says:

    Seem’s to be the right time to solicit donations to train and equip hit squads. Just saying what others are undoubtedly thinking……….

    1. avatar Jonathan -- Houston says:

      Out of bounds. WAY out of bounds.

      1. avatar Notguiltfree says:

        And the difference between our Govt militarizing the police to violate our 4th amendment rights with no knock warrants and the DHS and FEMA corp coming in to confiscate weapons in disaster zones as well as FEMA camps set up to house the citizens for their own good, of course, is???

        1. avatar jwm says:

          *SIGH* Again with the FEMA camps. FEMA, with the exception of a few professional manager types has no manpower. When disaster occurs the manager types set up and their personnel is recruited from state, city, county and fed workers. You know, the clerks and janitors at the local schools. City parks workers.

          These people are hardly a source of goons for an oppressive and murderous regime. They’d be rounding up their neighbors and extended families for the camps. Ain’t gonna happen.

          I know a little about the FEMA bit as I was one of those janitors activated into FEMA service during the flooding in WV back in the 80’s.

        2. avatar RockOnHellChild says:

          Yeah, not much, my GF worked for FEMA in FL for years, FEMA death camps are actually refuge camps and are a joke, at best.

          FEMA is logistically inept, they couldn’t round people up and put them in death camps anymore than the Post Service could.

          They can’t even handle the fall out from hurricanes, tornadoes and other natural disasters.

        3. avatar William Burke says:

          I don’t really think it’ll be FEMA that’s rounding up people, do you? Stalag-17 may have been a bad joke, but it was still a POW camp, no?

    2. avatar MOG says:

      Actually, notguiltfree, I am undoubtedly not thinking that.

      1. avatar Notguiltfree says:

        Maybe you should be, just to cover all the bases.

    3. avatar rlc2 says:

      IMHO this kind of comment, sarcastic or not, should be considered out-of-bounds here at TTAG. Too many other places on the web you can talk like this to have to cokr herr to pollute this “clean well-lighted space”.

      1. avatar Notguiltfree says:

        Bill Fitzpatrick; wondered when you’d show up……..

        1. avatar rlc2 says:

          I smell troll.

        2. avatar Notguiltfree says:

          rlc2; then you must have your nose where it shouldn’t be.

      2. avatar William Burke says:

        You are entitled to your view; I am entitled to enthusiastically disagree with it. Your Tory ilk told those who started the American Revolution they were “out of bounds”.

      3. avatar RockOnHellChild says:

        The 2nd A is a hedge against oppression and tyranny…

        Which is a cute euphemism for shooting people that attempt to strip your rights, so, it seems quite in-bounds actually.

  21. avatar JoshinGA says:

    Its this kind of A$$hat that kinda makes me yearn for the days where a statist POS like this would be forcibly removed post haste, by the people whose rights they were attempting to suppress.

    1. avatar Jus Bill says:

      You’re thinking of the immediate post-Tammany days, long since departed,,,

  22. avatar crashbear says:

    Notguiltfree will have Homeland Security knocking on his door (with a battering ram) in …3…2…1…

  23. avatar Notguiltfree says:

    Well, while I’m waiting, I’m hopping in the shower to be all spruced up for the rubber glove or condom depending on sexual orientation of arresting officer.

  24. avatar Hannibal says:

    He’s right… to a point. And the sooner someone arrests someone in that district, the sooner it’ll get overturned there.

    1. avatar matt says:

      What a nightmare that will be for the person. Depending on their job they could be fired just for the charges even if you are ultimately found innocent after years of appeals.

      1. avatar Jus Bill says:

        Nobody in the employ of New York will be fired for anything. Ever.

  25. avatar Gunr, from Oregon says:

    Is there a law that say’s one cannot carry more than one magazine? What is to stop someone from carrying a couple dozen mags with 7 in each?

    1. avatar B says:

      I wouldn’t put it past New York having a limit on the number of magazines you can carry.

    2. avatar FortWorthColtGuy says:

      How about the “New York Reload?”

      i.e. Carry more than one gun.

      1. avatar Gunr, from Oregon says:

        I love it!

      2. avatar RockOnHellChild says:

        I was thinking about that the other day, it gives all new context to the NY reload.

  26. avatar B says:

    As the appointed Baron of his northern province it is his royal right to make decrees upon the peasantry.

  27. I believe this looks an awful like “violating civil rights under color of authority” … people get fired, fined and sued for that kind of thing.

    http://www.law.cornell.edu/uscode/text/18/242

    1. avatar William Burke says:

      We have long ceased to be a nation of laws. We have become a nation of color of law. Which is to say, “we can make it up as we go along.”

  28. avatar Mike Crognale says:

    I actually knew Fitzpatrick when I lived in Syracuse. He was a pretty nice guy when he was running for DA. Didn’t think he’d turn out to be an asshole. Sad.

  29. avatar Jus Bill says:

    My question is: how does Bill Fitzpatrick justify his continued employment? HE should be prosecuted.

  30. avatar JAS says:

    We really need to find another habitable planet, and soon!

    1. avatar William Burke says:

      We had better be very careful who is allowed on board.

      Better yet, we could put people like the DA on rockets, and set the controls for the heart of the Sun!

  31. avatar William Burke says:

    In other words, he promises to break the law. This ain’t a job for a jail cell; this is a job for a length of rope.

  32. avatar Soccerchainsaw says:

    So after reading all these comments I take it that this ruling has limited effect until either many other rulings provide a propensity of legal precedent or the Supremes rule on it. Sounds like this could take decades and success is surely not assured. This is why we need to take charge at the ballot box to stop these laws from ever occurring. To do that we need more friendly/helpful interactions with the uninformed voter that isn’t aware of why this issue is important to him/her.

  33. avatar Mark Beder-Bedur says:

    When will just start popping these big mouth traitors like Fitz? We’re already felons, so why not just go for it and get a bunch together, storm the capital and kill ’em all?

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