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This coming Friday has been set by the Appellate Division in the state of New York as the deadline for a “show cause” order against the state, compelling them to prove that the message of necessity used to rush the SAFE Act through, avoiding the mandated 3-day waiting period, was valid and constitutional. Which they can’t do. As a result, most people expect the court to either kick the can down the road to the Court of Appeals, or issue a much anticipated injunction against the SAFE Act. For a little more detail on the case and what’s going on, I talked to one of the plaintiffs in the case . . .

To be clear, this case is not the Tresmond case, which attacks the constitutionality of the content of the new law. This case is Bob Shultz’s attack on the way the act was passed, which gets more disgusting every time I hear about it.

On the first day of the new legislative session, the Democrats introduced bill #1 (which was the SAFE Act) accompanied by a “letter of expedience” signed by the governor. The NY constitution requires a minimum of three days between introduction and passage unless there is a pressing and urgent need to get something done. In the letter, the governor stated that the SAFE Act would get these “dangerous assault weapons” and magazines off the streets immediately. Of course, the act does no such thing. The governor’s letter was an outright lie.

Less than 30 minutes later the bill was passed by the first chamber of the legislature, the members of which hadn’t even read the bill. Less than a day later the bill was signed into law.

Bob Shultz is attacking this on the grounds that the “letter of expedience” was unconstitutional, and that the way the SAFE Act was passed is morally (and procedurally) repugnant. It’s an effective argument, since after comparing the language of the letter and what the act actually does, it looks like the governor tried to pull a fast one on the people of New York, hoping the subjects wouldn’t notice.

This case made headlines when the state Supreme Court (the lower court in New York) failed to issue an injunction a few weeks back. But the case has been passed on to the higher Appellate Division on an expedited schedule. The Supreme Court’s failure to act was based on their reading of a 2005 case. According to that precedent, as interpreated by the judge, the court is not able to question the contents of a “letter of expedience” from the governor. However, Bob Shultz’s argument is that the court misinterpreted that previous ruling, and judicial oversight is a necessary component of these expedited legislative endeavors, not to mention the separation of powers.

Whatever happens on Friday, we’ll bring you the news as soon as we have it. For more information on the case you can visit

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  1. The Court of Appeals IS the state supreme court in New York. A supreme court in New York is a court of first instance (i.e., the equivalent of a superior court in other states).

    Yep, New York is completely crazy.

  2. Let’s say the court were to rule that the letter of expedience was unconstitutional and issue an injunction. Could the NY State Legislature go back and pass a SAFE Act clone, this time observing the 3 day minimum wait time? And how would that affect the Tresmond case?

    • Theoretically, they could. But the whole reason why they rammed it through without the 3-day wait was because politically, they couldn’t get it passed if the people had a chance to apply pressure on their elected officials.

      As for Tresmond, if they passed the exact same law, it wouldn’t change anything in his case, as far as I’m aware.

    • Yes they could go back and pass a new law. If the law is amended to remove some of its unconstitutional provisions (something the Legislature is likely to do any way since the law as written does not exempt LEOs from the magazine limit) it could moot Tresmond’s case, or at least require an amendment to his pleadings. His case is not soley dependent upon the procedural “irregularity” in the letter of expedience, which I think Schultz case is.

      • Thanks, guys. My worry would be that if the legislature went back and passed a clone (granted that’s a big if, considering the map above), the Tresmond case would technically be arguing the wrong law, and another similar challenge would have to make its way up the judicial chain.

        Eventually, the constitutionality of the SAFE Act will be decided in court, I guess at this point, I’m just trying to get a handle on when that will be.

  3. I think you meant to say that Friday the Appellate Division is going to decide whether issue the injunction or “kick the can down the road to the state supreme court.”

    The Court of Appeals is the state supreme court. The Appellate Division is the intermediate appellate court.

  4. I hate to play ‘devils advocate’ here. But from what I read about previous New York Appeals Court Rulings it appears that the New York Appeals Court has held that the letter of expedience need not contain any actual RATIONAL basis for the matter to be rammed thru. Only that it needs to be rammed thru in the opinion of the Governor, and words that state something like “because a letter is required by the constitution to ram this thru, here is said letter”.

    Of course, I am paraphrasing a bit.

  5. That’s an old map. For the newest one, check out the “NY Safe Act Resolutions” Facebook page.

  6. The case hasn’t reached the NY Court of Appeals yet, and it probably won’t get there. It’s presently before the Appellate Division, which is an intermediate appeals court.

    Here’s the holding from the Maybee case, decided by the state’s high court (the Court of Appeals) in 2005: “We hold that, as long as the Governor’s certificate contains some factual statements, the sufficiency of the stated facts to support the Governor’s conclusion may not be challenged.”

    The Maybee case involved a letter with zero factual statements — none. Three judges complained about the Governor’s high-handedness, but every judge agreed that he had the power. The courts just don’t want to get involved in issues arising from an expediency letter.

    • Ralph,

      I agree that Schultz is highly unlikely to prevail absent the Court of Appeals reversing itself. Nevertheless, I’ve been trying to figure out some argument that one could make in this case. How about this:

      The Court in Finger Lakes, 30 N.Y.2d 207, upheld the use of a message of necessity, holding, in part, “[t]he facts supporting his opinion . . . are rational and reasonable.”

      In Maybee, the Court held that any ambiguity created by Finger Lakes had been resolved by Norwick, which was based on the trial court’s rational that “the sufficiency of the facts stated by the Governor as necessitating expedited consideration of a bill may not be challenged.” Maybee also held: “The Constitution on its face makes the Governor’s judgment of the facts determinative; he or she is to state facts that ‘in his or her opinion’ necessitate prompt action. Whether a court’s opinion is or is not the same as the Governor’s does not matter.”

      I think one could argue that the “ambiguity” in Finger Lakes was whether the Governor’s opinion has to be rational and reasonable. There is nothing in Norwick or Maybee that speaks to whether the underlying facts themselves have to be rational and reasonable. That requirement was (arguably) not ambiguous.

      Here, the Governor’s statement was: “Some weapons are so dangerous, and some ammunition devices so lethal, that New York State must act without delay to prohibit their continued sale and possession in the State in order to protect its children, first responders and citizens as soon as possible. This bill, if enacted, would do so by immediately banning the ownership, purchase and sale of assault weapons and large capacity ammunition feeding devices, and eliminate them from commerce in New York State, For this reason, in addition to enacting a comprehensive package of measures that further protects the public, immediate action by the Legislature is imperative.”

      By the statement’s plain language, the Governor’s opinion was relying on the “fact” that the bill would immediately ban the ownership of assault weapons and high capacity mags. This fact is false and thus unreasonable. It is also a question that is purely legal in nature, which means the Court could rule in our favor without opening itself up to reviewing debatable facts, like Cuomo’s first sentence.

      This is admittedly a long shot. I am just trying to find something that an Appellate Division judge could use to justify a favorable decision. What do you think?

      • Armchair, I think that you’ve summarized the thrust of Schultz’s argument better than he did. Gov. Mussolini’s message claimed that the guns are so excessively dangerous that an immediate ban was required, but the legislation does not impose an immediate ban. At best, that’s an internal contradiction.

        There have been over 400 bills enacted under a message of expediency, and perhaps only a couple were truly emergency measures. Against that background, the Court of Appeals has made it very clear that it wants nothing to do with these claims. It regards the issue as political in nature and not justiciable.

        IMO, it’s most likely that the App Div will pass on the case, citing Maybee. I’d be surprised if the App Div will try to distinguish this case from the precedent.

        If the App Div surprises me, then it will fall on the high court to find a way around Maybee, but I don’t think it will want to distinguish this case from Maybee or overrule it.

        Still, it’s going to be fun watching the Court squirm. You read Maybee, so you know that squirm is exactly what the Court did.

        • There’s no doubt that the App Div would have to really want to overturn the Safe Act for them to distinguish Maybee. Chances are definitely slim.

          Do we know at this point who is on the panel?

  7. The map up top is outdated, I believe all the yellow counties are now green. And a couple of the white counties have their votes tonight or Thursday. It looks like we will end up around 52-55 counties out of 62 against this idiotic law. If we hold the coalition and anger together we can take Cuomo out of the game next election. Around 69 percent of the city folks back him so he is vulnerable, we can remove him.

  8. I hope the SAFE act gets enthusiastically sh!tcanned. It would be nice to see more in the news about the repugnancy of its passage, but the media considers the NY pols to be the ones “brave enough” to set their politics aside. For the children.

    On a side note, my ARs and standard capacity magazines have harmed exactly zero children.

  9. If Cuomo’s concern was a rush on assault weapons without an immediate passage of the law, they could’ve passed a moratorium on their sales and then debated the final law in a normal way. Not that this observation would sway any judge in NY.

  10. What Cuomo did was morally wrong and will result in an injunction from either the Tresmond or the NYSRPA case because they point out legal problems with the NY SAFE Act.

    However, the Shultz case has no legal merit. The NYS Constitution clearly leaves the message of necessity up to the governor’s “opinion.” That term is used in the exact wording. How can you find legal fault with Cuomo’s opinion?

    In Cuomo’s opinion, banning guns will eliminate all murders and result in leprechauns leaving pots of gold at the end of rainbows.

    • leprechauns leaving pots of gold at the end of rainbows

      That actually makes more sense than any other pretext the Control Fetishists have offered. Besides, Bernanke and Krugman already believe in it. 😉

  11. It’d be a bit more accurate to say that it’s up to the legislature to decide if there is a necessity. There is where this case starts to fall apart, at least according to every lawyer I’ve seen post on a pro-2a board in NY

    • Leaving us to ponder the philosophical question as to why the NY Constitution allows the governor to act in such an undemocratic and totalitarian fashion.

  12. No court would issue an injunction on a law that was duly passed by the legislature, regardless of procedure. Talk about legislating from the bench. No one was disenfranchised nor denied representation. We just have bad representation.

    • Most Assembly members from upstate voted against the passage of the SAFE Act, including my own Assemblyman who represents me in Chenango County. It was the myopic down state Assembly members who pushed the law and carried it through the Assembly……It sucks that down state sends more Assembly members to Pyongyang….(oops I meant Albany…..I’ve been confusing the two lately)

  13. What also is a factor, I believe, is the evidence of the state map – political considerations.
    This ill-structured law has gotten so much blow back that Cuomo and his legislative cohorts might be glad to have it thrown out and have a chance to reform it into something more acceptable by court decree rather than admit a mistake and crawl back to the legislature with egg on their face. Got my fingers crossed.

    PS – Thanks Commando for your positive input – much better!

  14. Can someone explain, does the fact that the counties and towns basically said “Fuck the SAFE Act” mean anything or is it just symbolic?

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