Matter of O'Connor, 154 Misc. 2d 694 | Casetext Search + Citator
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Man allegedly arrested for defending his land in NY
- Thread starter Doc8404
- Start date
In that matter:
"...determination of this application turns upon the statutory construction afforded the above-quoted statutory language. Construction is the process of determining the meaning of statutes and involves "drawing of conclusions with respect to subjects which lie beyond the direct expression of the text from elements known from, and given in, the text" (McKinney's Cons Laws of NY, Book 1, Statutes § 71, citing 82 CJS, Statutes, § 311). While a prior judicial interpretation may bind subsequent courts (McKinney's Cons Laws of NY, Book 1, Statutes § 72), the applicant and court agree that this issue has not been previously decided by any court in this State (but see, 1972 Opns Atty Gen 4, 5 [wherein the Attorney-General concluded that "the broad discretion given to local officers with respect to gun licenses implies the power to issue licenses subject to conditions or restrictions based on local circumstances"]).
So just because it's not spelled out in PL400, doesn't mean they can't and won't apply the intent of the law and the intent of the purpose for a restricted license.
"...determination of this application turns upon the statutory construction afforded the above-quoted statutory language. Construction is the process of determining the meaning of statutes and involves "drawing of conclusions with respect to subjects which lie beyond the direct expression of the text from elements known from, and given in, the text" (McKinney's Cons Laws of NY, Book 1, Statutes § 71, citing 82 CJS, Statutes, § 311). While a prior judicial interpretation may bind subsequent courts (McKinney's Cons Laws of NY, Book 1, Statutes § 72), the applicant and court agree that this issue has not been previously decided by any court in this State (but see, 1972 Opns Atty Gen 4, 5 [wherein the Attorney-General concluded that "the broad discretion given to local officers with respect to gun licenses implies the power to issue licenses subject to conditions or restrictions based on local circumstances"]).
So just because it's not spelled out in PL400, doesn't mean they can't and won't apply the intent of the law and the intent of the purpose for a restricted license.
This is pretty interesting. It shows that the argument "restrictions don't exist in the state law", was thrown out because that argument is "without merit".
The applicant's remaining contentions have been considered and found to be without merit. The assertion that the "form" prescribed by the State Police does not allow the county of issuance to place the name of such county or any restrictions on such form is incorrect. On the top of the form prescribed by the State is printed, "County of __________". Obviously, the form requires each county to fill in the blank. As to the addition of a space on the back of the license to insert the conditions and restrictions applicable to the license, the authority to place restrictions on the license necessitates the utilization of the license form to notify the licensee of appropriate restrictions.
The further contentions that restrictions do not further any legitimate county interest, are arbitrary and capricious, and improperly distinguish or discriminate between residents of this county and residents of counties that do not utilize restrictions, are also without merit. The variations in population density, composition, and geographical location provide ample grounds upon which to exercise the discretion provided by statute. The circumstances which exist in New York City are significantly different than those which exist in Oswego or Putnam Counties. Such circumstances must be considered in the exercise of the licensing officer's discretion. The licensing officers in each county are in the best position to determine whether any interest of the population of their county is furthered by the use of restrictions on pistol licenses. The mere fact that some licensing officers choose to utilize restrictions while others do not does not make their use arbitrary or capricious. Such a determination can only be made on a case-by-case basis.
In accordance with the foregoing, the application to remove the restrictions contained on the applicant's existing license is denied. The County Clerk is directed to return the applicant's existing license to him at the address listed thereon.
The applicant's remaining contentions have been considered and found to be without merit. The assertion that the "form" prescribed by the State Police does not allow the county of issuance to place the name of such county or any restrictions on such form is incorrect. On the top of the form prescribed by the State is printed, "County of __________". Obviously, the form requires each county to fill in the blank. As to the addition of a space on the back of the license to insert the conditions and restrictions applicable to the license, the authority to place restrictions on the license necessitates the utilization of the license form to notify the licensee of appropriate restrictions.
The further contentions that restrictions do not further any legitimate county interest, are arbitrary and capricious, and improperly distinguish or discriminate between residents of this county and residents of counties that do not utilize restrictions, are also without merit. The variations in population density, composition, and geographical location provide ample grounds upon which to exercise the discretion provided by statute. The circumstances which exist in New York City are significantly different than those which exist in Oswego or Putnam Counties. Such circumstances must be considered in the exercise of the licensing officer's discretion. The licensing officers in each county are in the best position to determine whether any interest of the population of their county is furthered by the use of restrictions on pistol licenses. The mere fact that some licensing officers choose to utilize restrictions while others do not does not make their use arbitrary or capricious. Such a determination can only be made on a case-by-case basis.
In accordance with the foregoing, the application to remove the restrictions contained on the applicant's existing license is denied. The County Clerk is directed to return the applicant's existing license to him at the address listed thereon.
nortatoga
.338 Win Mag
Wow! "Addressing the merits, the district court concluded that the concealed carrying of handguns in public is “outside the core [of the] Second Amendment"
These courts are brutal!
This is also pretty interesting! "New York's efforts in regulating the possession and use of firearms predate the Constitution."
Marine Cpl
.577 Tyrannosaur.
1. This wasn’t a Supreme Court like you say.
2. This case was about removing just cause restrictions and whether a judge has the power to add restrictions based on the just cause used to obtain license. It does not say that violation restrictions placed on it invalidates license F from Penal Law 400.
You are still issued license F and if a judge deems that you no longer have just cause, he can take it away.
3. And this here is crucial. Note that it says opinion rather than the Penal law is herby amended to officially add restrictions to category F rather than administrative restrictions.
It is the opinion of the court that the power to determine the existence of "proper cause" for the issuance of a pistol license necessarily and inherently includes the power to restrict the use to the purposes which justified its issuance.
There are others that include the high court. Believe it was the court of appeals. Whatever the highest one is is where the ruling came from. It echos this case and they came to the same conclusion. They are all posted in another thread here.
The case you posted actually makes a pretty good argument that open carry is legal. It describes in detail how and why the concealed carry license was formed. It was to prevent people from hiding a weapon unless licensed. That is what the criminals preferred to do. Interesting read.
Marine Cpl
.577 Tyrannosaur.
Bottom line, the courts granted themselves the power to add restrictions to the Category F license on Penal Law 400 but did not change Category F itself in the Penal Law.
Without changing the Actual Penal Law, those restrictions are administrative meaning that they do not have the force of law in the penal law itself which is what is required for criminal prosecution. That makes restrictions administrative meaning that not following them are grounds for revocation rather than criminal charges.
Basically, nothing has changed. No one has ever been charged criminally for them in the past and cannot in the future until Category F is amended and separated into separate official classes of licenses in the penal law.
Without changing the Actual Penal Law, those restrictions are administrative meaning that they do not have the force of law in the penal law itself which is what is required for criminal prosecution. That makes restrictions administrative meaning that not following them are grounds for revocation rather than criminal charges.
Basically, nothing has changed. No one has ever been charged criminally for them in the past and cannot in the future until Category F is amended and separated into separate official classes of licenses in the penal law.
"Any violation of any section by anyone is a misdemeanor" is what concerns me. It doesn't get any easier for a prosecutor than that.
One of the sections is types of licenses. The courts can further restrict you within those types. Sounds like a violation to me.
nortatoga
.338 Win Mag
FindLaw's United States Supreme Court case and opinions.
FindLaw's searchable database of United States Supreme Court decisions since
caselaw.findlaw.com
But we are also of opinion that, even if the contract of a seaman could be considered within the letter of the thirteenth amendment, it is not, within its spirit, a case of involuntary servitude. The law is perfectly well settled that the first 10 amendments to the constitution, commonly known as the 'Bill of Rights,' were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press ( article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people [165 U.S. 275, 282] to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (article 5) does not prevent a second trial, if upon the first trial the jury failed to agree, or if the verdict was set aside upon the defendant's motion (U. S. v. Ball, 163 U.S. 662, 627 , 16 S. Sup. Ct. 1192); nor does the provision of the same article that no one shall be a witness against himself impair his obligation to testify, if a prosecution against him be barred by the lapse of time, a pardon, or by statutory enactment (Brown v. Walker, 161 U.S. 591 , 16 Sup. Ct. 644, and cases cited). Nor does the provision that an accused person shall be confronted with the witnesses against him prevent the admission of dying declarations, or the depositions of witnesses who have died since the former trial.
Many here refuse to acknowledge this SCOTUS opinion!
Serious, any additional info on the OP story?
Marine Cpl
.577 Tyrannosaur.
What you do not want to get is that you have license F. You are not violating it. You can get it revoked for violating the judges administrative restrictions placed on it by the just cause you used but that’s it. I do not know how many times that point has to be made it you. It’s like it is said to you, you ignore it, than a day later you go back to it like if the point was never made at all.
You do this in every thread.
This comes from the US Court Of Appeals 2nd Circuit.
They ruled that carrying a firearm while on a target and hunting permit introduces that weapon into the public sphere and with that restricted permit you do not have proper cause to do so. You are going against the intent and spirit of the licensing scheme which is to limit the introduction of firearms in public. If you have a target/hunting permit, that is what you have shown proper cause for. If you are not engaged in those activities, proper cause does not exist. PL 400 says "to have and carry concealed.. when proper cause exists". You don't have proper cause to carry in the grocery store because you cannot target shoot in a grocery store.
This explains why the guy who was printing in a diner on a target permit was arrested and charged. This was a few years ago. I forget what county it was. I don't know the outcome of that case, but he was definitely cuffed and hauled away. I'm sure someone here will remember that and can maybe link to the news story. Anyhow, in that case there was no proper cause in the diner so he was not operating in accordance with either PL 400 or PL 265, or maybe both.
..."Given New York's interest in regulating handgun possession for public safety and crime prevention, it decided not to ban handgun possession, but to limit it to those individuals who have an actual reason (“proper cause”) to carry the weapon. In this vein, licensing is oriented to the Second Amendment's protections. Thus, proper cause is met and a license “shall be issued” when a person wants to use a handgun for target practice or hunting. N.Y. Penal Law § 400.00(2)(f); see, e.g., Clyne,58 A.D.2d at 947, 397 N.Y.S.2d 186. And proper cause is met and a license “shall be issued” when a person has an actual and articulable—rather than merely speculative or specious—need for self-defense. N.Y. Penal Law § 400.00(2)(f); see, e.g., Klenosky,75 A.D.2d at 793, 428 N.Y.S.2d 256.
Restricting handgun possession in public to those who have a reason to possess the weapon for a lawful purpose is substantially related to New York's interests in public safety and crime prevention. As explained above, New York's law need only be substantially related to the state's important public safety interest. A perfect fit between the means and the governmental objective is not required. Here, instead of forbidding anyone from carrying a handgun in public, New York took a more moderate approach to fulfilling its important objective and reasonably concluded that only individuals having a bona fide reason to possess handguns should be allowed to introduce them into the public sphere. That New York has attempted to accommodate certain particularized interests in self defense does not somehow render its concealed carry restrictions unrelated to the furtherance of public safety."
-Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 98-99 (2d Cir. 2012)
So while both licenses are issued under § 400.00(2)(f), the difference is when your proper cause is valid. You can only carry when you have proper cause to do so.
They ruled that carrying a firearm while on a target and hunting permit introduces that weapon into the public sphere and with that restricted permit you do not have proper cause to do so. You are going against the intent and spirit of the licensing scheme which is to limit the introduction of firearms in public. If you have a target/hunting permit, that is what you have shown proper cause for. If you are not engaged in those activities, proper cause does not exist. PL 400 says "to have and carry concealed.. when proper cause exists". You don't have proper cause to carry in the grocery store because you cannot target shoot in a grocery store.
This explains why the guy who was printing in a diner on a target permit was arrested and charged. This was a few years ago. I forget what county it was. I don't know the outcome of that case, but he was definitely cuffed and hauled away. I'm sure someone here will remember that and can maybe link to the news story. Anyhow, in that case there was no proper cause in the diner so he was not operating in accordance with either PL 400 or PL 265, or maybe both.
..."Given New York's interest in regulating handgun possession for public safety and crime prevention, it decided not to ban handgun possession, but to limit it to those individuals who have an actual reason (“proper cause”) to carry the weapon. In this vein, licensing is oriented to the Second Amendment's protections. Thus, proper cause is met and a license “shall be issued” when a person wants to use a handgun for target practice or hunting. N.Y. Penal Law § 400.00(2)(f); see, e.g., Clyne,58 A.D.2d at 947, 397 N.Y.S.2d 186. And proper cause is met and a license “shall be issued” when a person has an actual and articulable—rather than merely speculative or specious—need for self-defense. N.Y. Penal Law § 400.00(2)(f); see, e.g., Klenosky,75 A.D.2d at 793, 428 N.Y.S.2d 256.
Restricting handgun possession in public to those who have a reason to possess the weapon for a lawful purpose is substantially related to New York's interests in public safety and crime prevention. As explained above, New York's law need only be substantially related to the state's important public safety interest. A perfect fit between the means and the governmental objective is not required. Here, instead of forbidding anyone from carrying a handgun in public, New York took a more moderate approach to fulfilling its important objective and reasonably concluded that only individuals having a bona fide reason to possess handguns should be allowed to introduce them into the public sphere. That New York has attempted to accommodate certain particularized interests in self defense does not somehow render its concealed carry restrictions unrelated to the furtherance of public safety."
-Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 98-99 (2d Cir. 2012)
So while both licenses are issued under § 400.00(2)(f), the difference is when your proper cause is valid. You can only carry when you have proper cause to do so.
You making a "point" does not make it valid or anything else invalid. Your "points" are personal opinions. License F is only valid when you have proper cause. "To have and carry concealed when proper cause exists". PL 400.
Another one...
Appellate Division of the Supreme Court of New York, Fourth Department
We conclude that the authority of the licensing officer to determine whether "proper cause" exists necessarily and inherently includes the authority to impose and retain certain restrictions on the license so that the pistol is used for the purposes that justified its issuance in the first place (accord, Matter of O'Connor, supra; see also, Matter of Caruso v. Ward, 160 A.D.2d 540, lv denied 76 N.Y.2d 706; Matter of Davis v. Clyne, supra; cf., Matter of Mulligan v Williams, 169 A.D.2d 280, 283).
Petitioner proffered no reasons that would constitute "proper cause" to justify the removal of the restrictions contained on her pistol license. Therefore, we conclude that respondent's determination was not arbitrary and capricious and did not constitute an abuse of discretion. We have reviewed petitioner's remaining arguments and find each one to be lacking in merit.
Matter of Eddy v. Kirk, 195 A.D.2d 1009, 1011 (N.Y. App. Div. 1993)
Appellate Division of the Supreme Court of New York, Fourth Department
We conclude that the authority of the licensing officer to determine whether "proper cause" exists necessarily and inherently includes the authority to impose and retain certain restrictions on the license so that the pistol is used for the purposes that justified its issuance in the first place (accord, Matter of O'Connor, supra; see also, Matter of Caruso v. Ward, 160 A.D.2d 540, lv denied 76 N.Y.2d 706; Matter of Davis v. Clyne, supra; cf., Matter of Mulligan v Williams, 169 A.D.2d 280, 283).
Petitioner proffered no reasons that would constitute "proper cause" to justify the removal of the restrictions contained on her pistol license. Therefore, we conclude that respondent's determination was not arbitrary and capricious and did not constitute an abuse of discretion. We have reviewed petitioner's remaining arguments and find each one to be lacking in merit.
Matter of Eddy v. Kirk, 195 A.D.2d 1009, 1011 (N.Y. App. Div. 1993)
It's funny that all of these people have gone to great lengths and expense to try to get unrestricted permits. I wonder why? If the permits were all the same why bother? If your permit can be taken away at any time for any reason what's the difference? Also, if the restrictions are not lawful why are the courts accepting these cases? Wouldn't they just deny hearing them? How can they hear a case about something that does not exist?
Hmmmm.....
Hmmmm.....
I do not do this often, but I am going to turn this thread off for me. Kind of like an ignore.
nortatoga
.338 Win Mag
Marine Cpl
.577 Tyrannosaur.
It isn’t because you fear jail. It’s so that the license doesn’t possibly get it revoked if something happens because if a revocation happens, your handguns are gone. I do not think anyone here except for yourself thinks that they’ll go to jail for carrying outside of restrictions.
Also, many of us get unrestricted right off the bat as a first time license holder. My wife, my friends, and I both got unrestricted right off the bat.
spat
.700 Nitro Express
Anywhere in any of these cases do you have someone who was convinced of the misdemeanor of violating pl400 by carrying outside their restrictions ?
If not, then it's all irrelevant BS.
Robin
.577 Tyrannosaur.
After eight pages of being ground to a pulp, the property owner was heard to say, "so put in the fucking jail already, Jesus Christ!".
Robin
Robin
Doc8404
.450/400 Nitro Ex
This may not being the same.
Article says 46 year old.
OP references 77 year old.
Article says 46 year old.
OP references 77 year old.