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Thread: SAF sues to void 'good cause' requirement

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    SAF sues to void 'good cause' requirement


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    Thanks for the info and link URL.

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    Regular Member Thundar's Avatar
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    SAF Press release

    SAF Sues in New York to Void 'Good Cause' Carry Permit Requirement

    BELLEVUE, Wash., July 15 /PRNewswire-USNewswire/ -- The Second Amendment Foundation has filed a federal lawsuit against Westchester County, New York and its handgun permit licensing officers, seeking a permanent injunction against enforcement of a state law that allows carry licenses to be denied because applicants cannot show "good cause."

    SAF is joined in the lawsuit by Alan Kachalsky and Christina Nikolov, both Westchester County residents whose permit applications were denied. Kachalsky's denial was because he could not "demonstrate a need for self protection distinguishable from that of the general public." Nikolov's was denied because she could not demonstrate that there was "any type of threat to her own safety anywhere." In addition to Westchester County, Susan Cacace and Jeffrey Cohen, both serving at times as handgun permit licensing officers, are named as defendants. The lawsuit was filed in U.S. District Court for the Southern District of New York, White Plains Division.

    Attorney Alan Gura is representing the plaintiffs, along with attorney Vincent Gelardi with Gelardi & Randazzo of Rye Brook, NY. Gura recently represented SAF and the Illinois State Rifle Association in their landmark Second Amendment Supreme Court victory over the City of Chicago.

    Under New York Penal Code Section 400.00, handgun carry permit applicants must "demonstrate good cause for the issuance of a permit," the lawsuit alleges. This requirement violates the Second Amendment, according to the plaintiffs.

    "American citizens like Alan Kachalsky and Christina Nikolov should not have to demonstrate good cause in order to exercise a constitutionally-protected civil right," noted SAF Executive Vice President Alan Gottlieb. "Our civil rights, including the right to keep and bear arms, should not be subject to the whims of a local government or its employees, just because they don't think someone 'needs' a carry permit. Nobody advocates arming criminals or mental defectives, but honest citizens with clean records should not be denied out of hand."

    "Thanks to our recent victory before the Supreme Court," Gottlieb stated, "the Second Amendment now applies to state and local governments. Our lawsuit is a reminder to state and local bureaucrats that we have a Bill of Rights in this country, not a 'Bill of Needs'."

    The case is filed as Kachalsky v. Cacace, U.S. Dist. Ct. S.D. N.Y. 10-05413

    The Second Amendment Foundation (www.saf.org) is the nation's oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.


    SOURCE Second Amendment Foundation
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Regular Member Thundar's Avatar
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    The Complaint

    IN THE UNITED STATES DISTRICT COURT
    FOR THE SOUTHERN DISTRICT OF NEW YORK
    WHITE PLAINS DIVISION
    ALAN KACHALSKY, CHRISTINA NIKOLOV, and : Case No.
    SECOND AMENDMENT FOUNDATION, INC., :
    : COMPLAINT
    Plaintiffs, :
    :
    v. :
    :
    :
    SUSAN CACACE, JEFFREY A. COHEN, and :
    COUNTY OF WESTCHESTER, :
    :
    Defendants. :
    :
    ------------------------------------------------------------------------X
    COMPLAINT
    COME NOW the Plaintiffs, Alan Kachalsky, Christina Nikolov, and Second Amendment
    Foundation, Inc., by and through undersigned counsel, and complain of the defendants as follows:
    THE PARTIES

    1. Plaintiff Alan Kachalsky is a natural person and a citizen of the United States and
    of the State of New York. Kachalsky resides in Westchester County.

    2. Plaintiff Christina Nikolov is a natural person and a citizen of the United States and
    of the State of New York. Nikolov resides in Westchester County

    3. Plaintiff Second Amendment Foundation, Inc. (“SAF”) is a non-profit membership
    organization incorporated under the laws of Washington with its principal place of business in Bellevue, Washington. SAF has over 650,000 members and supporters nationwide, including Westchester County, New York. The purposes of SAF include promoting the exercise of the right to keep and bear arms; and education, research, publishing and legal action focusing on the Constitutional right to privately own and possess firearms, and the consequences of gun control. SAF brings this action on behalf of itself and its members.

    4. Defendant Susan Cacace was at all relevant times a handgun carry permit licensing
    officer for defendant Westchester County. Defendant Cacace is responsible for executing and
    administering the laws, customs, practices, and policies at issue in this lawsuit; has enforced the challenged laws, customs and practices against plaintiff Kachalsky and plaintiff SAF’s
    membership, and is in fact presently enforcing the challenged laws, customs and practices against plaintiffs’ interests. Defendant Cacace is sued in her capacity as licensing officer.

    5 Defendant Jeffrey A. Cohen was at all relevant times a handgun carry permit
    licensing officer for defendant Westchester County. Defendant Cohen is responsible for executing and administering the laws, customs, practices, and policies at issue in this lawsuit; has enforced the challenged laws, customs and practices against plaintiff Nikolov and plaintiff SAF’s membership, and is in fact presently enforcing the challenged laws, customs and practices against plaintiffs’ interests. Defendant Cohen is sued in his capacity as licensing officer.

    6. Defendant County of Westchester is a governmental entity organized under the
    Constitution and laws of the State of New York, possessing legal personhood within the meaning of 42 U.S.C. § 1983. The County, by and through its Department of Public Safety, Pistol Licensing Unit, is responsible for executing and administering the laws, customs, practices, and policies at issue in this lawsuit; has enforced the challenged laws, customs and practices against plaintiff Kachalsky, plaintiff Nikolov, and plaintiff SAF’s membership, and is in fact presently enforcing the challenged laws, customs and practices against plaintiffs’ interests.

    JURISDICTION AND VENUE

    7. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
    §§ 1331, 1343, 2201, 2202 and 42 U.S.C. § 1983.

    8. Venue lies in this Court pursuant to 28 U.S.C. § 1391.

    STATEMENT OF FACTS

    9. The Second Amendment to the United States Constitution provides: “A well
    regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

    10. The Second Amendment guarantees individuals a fundamental right to carry
    functional handguns in non-sensitive public places for purposes of self-defense.

    11. The States and their units of local government are bound to respect Second
    Amendment rights by operation of the Fourteenth Amendment.

    12. The States retain the ability to regulate the manner of carrying handguns, prohibit
    the carrying of handguns in specific, narrowly defined sensitive places, prohibit the carrying of arms that are not within the scope of Second Amendment protection, and disqualify specific, particularly dangerous individuals from carrying handguns.

    13. The States may not completely ban the carrying of handguns for self-defense, deny
    individuals the right to carry handguns in non-sensitive places, deprive individuals of the right to carry handguns in an arbitrary and capricious manner, or impose regulations on the right to carry handguns that are inconsistent with the Second Amendment.

    14. New York Penal Code § 265.01(1) prohibits the possession of firearms. A
    violation of this provision constitutes “Criminal Possession of a Firearm in the Fourth Degree,” a class A misdemeanor.

    15. New York Penal Code § 265.03(3) provides that possession of a loaded firearm
    outside one’s home or place of business constitutes “Criminal Possession of a Firearm in the
    Second Degree,” a class C felony.

    16. The prohibitions of sections 265.01(1) and 265.03(3) do not apply to the
    “[p]ossession of a pistol or revolver by a person to whom a license therefor has been issued as provided under section 400.00 or 400.01.” New York Penal Code § 265.20.

    17. For most civilians who are not otherwise barred from possessing and carrying
    weapons, the only permit to carry handguns in public for self-defense is a permit “to have and
    carry concealed, without regard to employment or place of possession, by any person when
    proper cause exists for the issuance thereof,” pursuant to New York Penal Code § 400.00(2)(f).

    18. Plaintiffs Alan Kachalsky, Christina Nikolov, and the members and supporters of
    plaintiff SAF, would carry functional handguns in public for self-defense, but refrain from doing so because they fear arrest, prosecution, fine, and imprisonment for lack of a license to carry a handgun.

    19. Plaintiffs Alan Kachalsky and Christina Nikolov are fully qualified to obtain a
    license to carry a handgun under New York Penal Code § 400.00(1), in that each (a) is over 21 years old, (b) of good moral character, (c) has never been convicted of a felony or serious crime, (d) has never been mentally ill or confined to any institution, (e) has not had a license revoked or been the subject of a family court order, (f) has completed a firearms safety course, and (g) should not be denied a permit for any good cause.

    20. Defendants maintain a strict policy of denying handgun carry license applications
    where the applicants cannot affirmatively demonstrate a unique and personal need for self-defense distinguishable from that of the general public. Plaintiffs Kachalsky and Nikolov, and the members and supporters of plaintiff SAF, cannot meet this standard as it is applied by the defendants.

    21. Plaintiff Alan Kachalsky applied for a handgun carry license pursuant to New York
    Penal Code § 400.00. Defendant Westchester County recommended that the permit be denied. On or about October 8, 2008, Defendant Cacace denied Kachalsky’s permit application, offering that Kachalsky “has not stated any facts which would demonstrate a need for self protection distinguishable from that of the general public.” Accordingly, Defendant Cacace found Kachalsky did not satisfy the requirement of New York Penal Code § 400.00(2)(f) that “proper cause” be shown for issuance of the permit.

    22. Plaintiff Kachalsky appealed the permit denial to the Appellate Division of the
    Supreme Court of the State of New York, pursuant to Article 78 of the New York Code of Civil Practice Law and Rules. On September 8, 2009, the Appellate Division held that Defendant Cacace’s “determination was not arbitrary or capricious and should not be disturbed.”

    23. On February 16, 2010, the New York Court of Appeals dismissed Kachalsky’s
    appeal on the grounds that it presented no substantial constitutional question. At the time of this decision, it was not a holding of any federal appellate circuit that the States were bound to respect Second Amendment rights. The Court of Appeals for the Second Circuit had held that the Second Amendment did not apply to the States. On June 28, 2010, the Supreme Court held that the Fourteenth Amendment does incorporate and apply the Second Amendment against the States.

    24. Plaintiff Kachalsky would apply again for a handgun carry license, but refrains
    from doing so because any such application would be a futile act. He cannot satisfy the good
    cause standard, which has already been applied to him.

    25. Plaintiff Christina Nikolov applied for a handgun carry license pursuant to New
    York Penal Code § 400.00. On or about October 1, 2009, Defendant Cohen denied Nikolov’s
    permit application, offering that “conspicuously absent” from Defendant County’s background investigation report of Plaintiff Nikolov “is the report of any type of threat to her own safety anywhere.” Defendant Cohen continued: “[I]t cannot be said that the applicant has demonstrated that she has a special need for self-protection distinguishable from that of the general public; therefore, her application for a firearm license for a full carry permit must be denied.” Accordingly, Defendant Cohen found Nikolov did not satisfy the requirement of New York Penal Code § 400.00(2)(f) that “proper cause” be shown for issuance of the permit.

    COUNT I
    U.S. CONST., AMEND. II, 42 U.S.C. § 1983
    AGAINST ALL DEFENDANTS

    26. Paragraphs 1 through 25 are incorporated as though fully stated herein.

    27 Individuals cannot be required to prove their “good cause” for the exercise of
    fundamental constitutional rights, including the right to keep and bear arms.

    28. Individuals cannot be required to demonstrate any unique, heightened need for
    self-defense apart from the general public in order to exercise the right to keep and bear arms.

    29. New York Penal Code § 400.00(2)(f)’s requirement that handgun carry permit
    applicants demonstrate good cause for the issuance of a permit, violates the Second Amendment to the United States Constitution, facially and as applied against Kachalsky, Nikolov and SAF’s members and supporters, damaging them in violation of 42 U.S.C. § 1983. Plaintiffs are therefore entitled to permanent injunctive relief against the enforcement of this provision.

    COUNT II
    U.S. CONST., AMEND. XIV, EQUAL PROTECTION, 42 U.S.C. § 1983
    AGAINST ALL DEFENDANTS

    30. Paragraphs 1 through 29 are incorporated as though fully stated herein.
    31 New York Penal Code § 400.00(2)(f)’s requirement that handgun carry permit
    applicants demonstrate cause for the issuance of a permit violates Plaintiffs’ Fourteenth
    Amendment right to equal protection of the law, damaging them in violation of 42 U.S.C. § 1983. Plaintiffs are therefore entitled to permanent injunctive relief against the enforcement of this provision.

    PRAYER FOR RELIEF

    WHEREFORE, Plaintiffs request that judgment be entered in their favor and against
    Defendants as follows:
    1. An order permanently enjoining defendants, their officers, agents, servants,
    employees, and all persons in active concert or participation with them who receive actual notice of the injunction, from enforcing N.Y. Penal Code § 400.00(2)(f)’s good cause requirement;

    2. An order commanding Defendants to issue Plaintiffs Kachalsky and Nikolov
    permits to carry a handgun;

    3. Costs of suit, including attorney fees and costs pursuant to 42 U.S.C. § 1988;

    4. Declaratory relief consistent with the injunction; and

    5. Any other further relief as the Court deems just and appropriate.

    Dated: July 14, 2010 Respectfully submitted,

    Alan Gura* Vincent Gelardi
    Gura & Possessky, PLLC Gelardi & Randazzo
    101 N. Columbus Street, Suite 405 800 Westchester Avenue, Suite S-608
    Alexandria, VA 22314 Rye Brook, NY 10573
    703.835.9085/Fax 703.997.7665 914.251.9603/Fax 914.253.0909
    Lead Counsel Local Counsel
    *Motion for admission pro hac vice
    forthcoming
    By: ___________________________
    Vincent Gelardi
    Attorneys for Plaintiffs
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

  5. #5
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    SAF sues in New York over 'good cause' requirement

    At what point does a civil right become a highly-regulated privilege?


    That question may be answered by a brand new lawsuit filed Thursday in federal district court in New York by the Bellevue, WA-based Second Amendment Foundation. It was their lawsuit – McDonald v. City of Chicago – that recently prevailed in the U.S. Supreme Court to incorporate the Second Amendment to the states. That is, the right to keep and bear arms protected by the Second Amendment of the Bill of Rights now applies as a limit on state and local governments as it does on Congress.
    http://www.examiner.com/x-4525-Seatt...se-requirement

    Or try this:

    http://tinyurl.com/285cbws

  6. #6
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    Their response ought to be interesting, to say the least.

    This in New York, and Peruta vs. San Diego in California, both over so-called good cause.
    Last edited by Statkowski; 07-17-2010 at 11:33 AM.

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