Temporary Restaining Order Issued For Concealed Carry Improvement Act (merged thread)

[John Stark]

Going in circles here. The state was not restrained, the governor, superintendent of state police, and specific district attorneys and sheriffs were. The DA in X county is not Governor Hochul or acting on behalf of Governor Hochul. Governor Hochul may be the chief executive but she is not the State of New York nor is she law enforcement; if you think she is then I'd like to see the authority for that argument. Anyway I'm not going to beat that dead horse anymore.

I'm going to ask the same question that I asked previously, which you ducked at the time:

If the chief law enforcement officer of an entire political entity is restrained from enforcing a law that effects an entire political entity, and the law which is the basis for enforcement in that entire political entity flows from the State (regardless who enforces it), then how can it legally (not practically) be enforced and stand in a criminal matter?

Whorechul is not being sued personally, she is being sued in her capacity as the chief law enforcement officer of the State. The law in question is State law, for which she has responsibility to enforce... unless she is restrained to not enforce it. Since she is not being sued personally, but in her official capacity, the State for all intent and purpose is itself restrained from doing so. She IS the State of NY here.

She cannot enforce it anywhere in the State; not in Buffalo, or Rottenchester, in any county, or even NY City (at least in terms of the parts of the CCIA she has been restrained from enforcing.)

If the Governor of a State cannot enforce it, the law us not enforceable.

And any DA who tries to bring a case with this strict and broad TRO is going to have to answer that question right quick in a court of law, especially in a criminal case.

Feel free not to flog the horse, but at a certain point when you make claims, the horse will flog you.

 

[John Stark]

The AG = top law enforcement officer. If she cant enforce then why would anyone under her be able to?

Technically not. The governor of any given state is the top law enforcement officer (chief executive officer), and there are remedies for a governor to remove other law enforcers under her authority (even elected ones like AGs).

See for example DeSantis in Florida removing some elected state prosecutors for not following state law recently,

 

[Glock_USA]

Technically not. The governor of any given state is the top law enforcement officer (chief executive officer), and there are remedies for a governor to remove other law enforcers under her authority (even elected ones like AGs).

See for example DeSantis in Florida removing some elected state prosecutors for not following state law recently,

OK well the governor has been restrained so....

 

[John Stark]

It seems to me that the majority of the forum members are looking to the TRO becoming a reality on Wednesday or at least extremely optimistic. Knowing how no holds barred dirty the thugs in the capital can play, I’m hoping for the best but expecting the worst. I would be interested in your take on this.

I'm not honestly up to date on the makeup of the 2nd Circuit. I know that Trump appointed some justices to it and that the makeup of that court has changed. I would have to do some reading on the makeup of the court and decisions promulgated by them to see which way the wind is blowing down there in Manhattan.

In NY I am always an optimist though; that is, I'm usually pretty confident that things are going from bad to worse.

My guess is the 2nd Circuit will ditch the TRO while appeals go forward. That's my best dart throw.

 

[John Stark]

OK well the governor has been restrained so....

Yes, and I'm sorry if I seem pedantic.

I note that Whorechul is named as "restrained" and as a "defendant" along with another state official (Bruen) and county officials. However, Latetia is not specifically "restrained" or named as a "defendant," even though it would seem to apply to her as a state official under the Gov's authority (and restraint!).

 

[Glock_USA]

I'm not honestly up to date on the makeup of the 2nd Circuit. I know that Trump appointed some justices to it and that the makeup of that court has changed. I would have to do some reading on the makeup of the court and decisions promulgated by them to see which way the wind is blowing down there in Manhattan.

In NY I am always an optimist though; that is, I'm usually pretty confident that things are going to from bad to worse.

My guess is the 2nd Circuit will ditch the TRO while appeals go forward. That's my best dart throw.

I would think the 2nd can scrap the TRO without any consequence, but when the actual case ruling comes down (in a few weeks I think) it will have to stand or they know it is going back to SCOTUS, the same court that just smacked them down, and the court they have called "radical" and "illegitimate" so why would they risk sending it back to them? They would have to be stupid to make that mistake. They know they cant let it go back there.

 

[Phazer]

I never got my pistol permit here in NY because I don't believe in going through a vetting process for a constitutional right to possibly get denied for nothing. Maybe when this is all over and we become a free 2A state, then I will apply for a permit.

Get it! Mostly, because THEY don't want you to have it.

 

[Saltwater60]

This decision is still really not great for churches. While there are a few churches like yours that are proactive about having specifically tasked volunteer armed security with specific protocols, the vast majority don't.

I would say the majority of churches are simply "agnostic" about guns, in that they have members who are all over on the issue and they don't want to divide over guns as this is not a doctrinal issue for them. So, there is no policy in place, and under previous law licensed members and communicants were free to conceal carry without any special permission. Even asking for permission to carry would cause a major problem for many churches because this would stir up unwanted controversy. Simply having members conceal carry and not make a big deal about it caused no issues but provided protection.

With this decision, even getting permission isn't enough. A church is still not free to just grant permission to someone to carry, either individual or blanket. They have to task them with a "duty" to "maintain order." Most churches are not going to be willing to task an armed volunteer with a duty to maintain order, as that's a huge liability issue. Now this directly puts the church on the line as liable if anything goes wrong. And this is by design. And what church is going to provide a blanket "duty to maintain order" and be armed while doing so to anyone in the church? That's a recipe for chaos and definitely for getting sued if there's ever a shooting at church under any circumstances.

As far as paid security, many faithful churches would see that as problematic in terms of Sabbath-breaking. It could be an "work of mercy and necessity" but maybe not if worshippers could just bring their own pistols. Plus most churches can't afford and don't want that anyway.

I expect the ruling to go further on churches.
I agree many don’t es to to do this but many at my church were talking about hiring paid security guards. If they do that I will propose to them to pay for my license and I will work for free for them. I don’t need or want my churches money.
My church previously had and still does have a security team where we are tasked with keeping peace and order. It is fully sanctioned by the church, my church wrote me a CCW upgrade letter, supplied us with a safety budget, trained us on certain life saving measures, asks us to cover events, supplies us with a schedule of said events and supplied us with gear that says security on it. I do t wear it so I blend in but it’s there.

 

[Glock_USA]

Some information regarding the appeal;
Appealing a TRO is generally super narrow. You can't just say "I don't like it, I want a second opinion"
You have to have a factual issue with the TRO. It does not get re-heard, or re-argued. You cannot present new arguments. You can only claim the lower court did not act according to facts.

 

[VietnamEraVet]

A lot of the recent posts on this seem confusing to me. Many on here are saying that the TRO allows them to do this and that right now. That doesn't seem right to me.

As I understand it, Judge Suddaby issued a TRO yesterday (Thursday 10/6), and gave NYS defendants 3 business days BEFORE it was to take effect in order to give the state time to appeal. So, as I see it, it is not even in effect yet. With Monday being a holiday, it should take effect next Thursday 10/13.

NYS didn't take long to appeal, - AG James appealed to the 2nd Circuit the same day he issued his TRO (that evening, in fact). So, now this goes to the 2nd Circuit. If and until they strike the TRO down, or issue their own ruling on the case, then as of this Thursday, the TRO will be in effect. But until then, the CCIA bullshit as written is in effect.

I happen to agree with @RBean's analysis as to what the 2nd may or may not do. The question is, how long will we have to wait for the 2nd to act.

I think that they may try to keep this from going to SCOTUS all together because a SCOTUS ruling would likely slap them down rather badly, and would then be a ruling that would affect the entire country. (Same kind of deal as in when Washington, DC didn't appeal a Circuit ruling on handguns to SCOTUS that would have affected other states, - including NY as I recall.) Personally, I really hope that the plaintiffs settle for nothing short of a complete victory at SCOTUS.

As for a Permanent Injunction being issued, I have no idea what could happen next. Is this totally out of the hands of Judge Suddaby? Anyone know what follows? @RBean ?

 

[Far king]

Some information regarding the appeal;
Appealing a TRO is generally super narrow. You can't just say "I don't like it, I want a second opinion"
You have to have a factual issue with the TRO. It does not get re-heard, or re-argued. You cannot present new arguments. You can only claim the lower court did not act according to facts.

That sounds like good news for us especially since the second circuit flipped to a conservative majority under President Trump in 2019.

 

[John Stark]

I would think the 2nd can scrap the TRO without any consequence, but when the actual case ruling comes down (in a few weeks I think) it will have to stand or they know it is going back to SCOTUS, the same court that just smacked them down, and the court they have called "radical" and "illegitimate" so why would they risk sending it back to them? They would have to be stupid to make that mistake. They know they cant let it go back there.

Again, as I said in my post (#47), I agree with you... in theory. If our JustUs system worked the way it should, NY never would have had the Sullivan Act in the first place, none of the egregious and terrible gun laws and permitting schemes in the south (that spread northward and westward to almost all states) would never have been put in place, Segregation would have never been allowed to go on for a century, etc.

How will the 2nd Circuit rule is one question. Another is, how long will they drag their feet? Running out the clock is a favorite game of the commies in NY, and Thomas is no spring chicken.

If NY tells SCOTUS to go to hell, what are the ramifications? Years and decades of more law suits? How does that get sorted out?

Am I being obtuse or stubborn? Probably I am. But as I said, we cannot rule out "politics" now in anything pertaining to the USSA.

Whether the 2nd Circuit rules completely in line with what is now clear SCOTUS precedent, or whether the Supremes have to give the "smack down to the 2nd Circuit and NY, someone still have to enforce those decisions.

NY is already a rogue state, on this matter and many others. I will state clearly that NY is an EVIL state, and I don't and won't discount the possibility that NY will somehow go rogue all over again. If Whorechul goes full pantsuit nazi, no one in NY is going to stop her. Xiden isn't going to send the bully boys in like Ike did during the desegregation era to put a stop to that bullshit.

Since NY City is the defacto government of these Disunited States, and the capitol of the World Government that is now ascendant, I am not fully convinced that some serious shenanigans are not on the way to "rescue" NY from what should have been a slam dunk case long before this.

Will that happen? I don't have the answer to that question, I'm not a prognosticator. Probably not! However, I do not have "full faith and credit" in the United States any longer. Call me paranoid or jaded or tinfoil hat. Perhaps I have simply seen too much evil in my life.

I tell people who might be considering moving to or visiting NY not to, and to "Give up hope all ye who enter here."

 

[US RIFLE M1A]

A lot of the recent posts on this seem confusing to me. Many on here are saying that the TRO allows them to do this and that right now. That doesn't seem right to me.

If you do not lose the mentality of requiring permission to exercise a fundamental right, you will never be able to navigate this new landscape.

In NYSRPA/Bruen, SCOTUS declared that the right to be armed exists, it exists without permission being needed, and that the state must justify any infrigement via a strict test. If a license is needed it MUST be shall issue. If locations are restricted, they must mirror tradition from 1791. No official discretion in who can or cannot carry. Objective criteria only. Period. That is a very new legal standard that governments and the courts need to get used to.

The CCIA has been declared unconstitutional. In my opinion it has been negated. It does not meet the new Bruen standard. It no longer exists.

Everything past this point is legal wrangling that will get the state nowhere.

 

[Zerex]

https://storage.courtlistener.com/recap/gov.uscourts.nynd.134829/gov.uscourts.nynd.134829.27.0_1.pdf

Sudddaby's decision.

Now the 2nd Circuit is in a pickle...it is dragging its feet regarding the Bruen decision's implementation, and now it has to rule on the unconstitutional Hochul laws in the TRO..................as a result of its dragging its feet on Bruen.


The Hochul laws are somewhat different from the Bruen matter, in fact it is the Bruen situation all over again..Bruen II on steroids! A real kick in the balls to the 2nd' Courts slow implementation of Bruen.

So the 2nd Circuit has to implement the Bruen decision first............ and then possibly simultaneously, take up the mattter of the TRO against Hochul's Bruen II attempt.

Courts like to avoid making decisions twice.

It is possible that the TRO will stand, and the other matters that Sudday mentioned, that need to be re-examined, like the obliteration of the 4 character references, and Social Media requirement's and household members listings will have to be litigated in subsequent lawsuits, OR THE 2ND CAN JUST DO ITS JOB, IMPLEMENTING BRUEN.

Shall issue, is not shall not issue.

Hochul and 80% Letitia, are not capable of submitting a cogent appeal of the TRO, except by ignoring Buren entirely, AGAIN, and that will not fly at the 2nd.

 

[Depick]

 

[Glock_USA]

Again, as I said in my post (#47), I agree with you... in theory. If our JustUs system worked the way it should, NY never would have had the Sullivan Act in the first place, none of the egregious and terrible gun laws and permitting schemes in the south (that spread northward and westward to almost all states) would never have been put in place, Segregation would have never been allowed to go on for a century, etc.

How will the 2nd Circuit rule is one question. Another is, how long will they drag their feet? Running out the clock is a favorite game of the commies in NY, and Thomas is no spring chicken.

If NY tells SCOTUS to go to hell, what are the ramifications? Years and decades of more law suits? How does that get sorted out?

Am I being obtuse or stubborn? Probably I am. But as I said, we cannot rule out "politics" now in anything pertaining to the USSA.

Whether the 2nd Circuit rules completely in line with what is now clear SCOTUS precedent, or whether the Supremes have to give the "smack down to the 2nd Circuit and NY, someone still have to enforce those decisions.

NY is already a rogue state, on this matter and many others. I will state clearly that NY is an EVIL state, and I don't and won't discount the possibility that NY will somehow go rogue all over again. If Whorechul goes full pantsuit nazi, no one in NY is going to stop her. Xiden isn't going to send the bully boys in like Ike did during the desegregation era to put a stop to that bullshit.

Since NY City is the defacto government of these Disunited States, and the capitol of the World Government that is now ascendant, I am not fully convinced that some serious shenanigans are not on the way to "rescue" NY from what should have been a slam dunk case long before this.

Will that happen? I don't have the answer to that question, I'm not a prognosticator. Probably not! However, I do not have "full faith and credit" in the United States any longer. Call me paranoid or jaded or tinfoil hat. Perhaps I have simply seen too much evil in my life.

I tell people who might be considering moving to or visiting NY not to, and to "Give up hope all ye who enter here."

How will they rule? Well they can rule in our favor and the restraint stands or they can rule against which I almost hopes happens, and it;; go back to SCOTUS and be even better for us in the long run.

How long will they stall? Well the stay expires in 2 business days after today so not for long.

 

[Glock_USA]

As for a Permanent Injunction being issued, I have no idea what could happen next. Is this totally out of the hands of Judge Suddaby? Anyone know what follows?

The case is still with him. He ruled on the emergency TRO which protects the plaintiffs from damage until he can make the final ruling on the case as a whole.

 

[Truebeliever]

yes, the 7 round limit was struck down, but somehow it meant going back to another arbitrary limit of 10, even though that was not in the law?

Or did they make sure to add "you can only load 7, but if this is struck down you can only load 10"?

Actually the ten round limit was under the old law, hence why it came back into effect when the 7 round law was nullified. Can the 10 round limit be challenged? Absolutely. But that wasn’t the case before the court and that decision was just the 2nd circuit appeals court.

 

[subsonic]

The law was deemed unconstitutional, no?

No it wasn't. This is still the very beginning of the case. The plaintiffs asked for a TRO and the court applied TRO legal standards and gave them one, restraining the plaintiffs. The TRO standard required finding it was more likely than not that plaintiffs would succeed on the merits. So, without a hearing or trial, the judge is signaling the plaintiffs will probably win. That's not the same as judging the law to be unconstitutional now.

When you get to the bottom of a document from a judge there is a part with the remedy that has words in all caps in bold like ORDERED, or ADJUDGED, or ORDERED AND ADJUDGED. There is nothing ADJUDGED in this order. The court isn't yet legally deciding anything enforceable about the status of the law in this case outside the context of this order. The judge did ORDER specific parties who are restrained from enforcing the law.

Now remember, if a law is unconstitutional, it is unconstitutional for the government to enforce it from day 1. It doesn't start being unconstitutional when a judge issues a final ruling that it's unconstitutional. The reason it is in court is because there's a dispute about whether it is constitutional or not. While normally law enforcement presumes that a duly enacted law is constitutional, if it isn't your local sheriff not only can but should come out and say "I'm sworn to uphold the constitution and won't be enforcing this unconstitutional law" up and until a court with jurisdiction rules otherwise.

The AG was restrained, no?

No, the governor and superintendent of state police, and the sheriff and DA of three counties, along with Syracuse police, were restrained,

The AG = top law enforcement officer. If she cant enforce then why would anyone under her be able to? I think you are worrying about nothing here. If you want to follow unconstitutional laws go ahead. I won't.

Local district attorneys and sheriffs are not under the Attorney General. They are elected by the people of their respective counties. They may take guidance from the state and there are mechanisms for removing them, but while in office they are not under the control of the state executive.

You can try to argue it the other way, but I'd need to be persuaded and I'm not sure you'd like the result.

I'm going to ask the same question that I asked previously, which you ducked at the time:

If the chief law enforcement officer of an entire political entity is restrained from enforcing a law that effects an entire political entity, and the law which is the basis for enforcement in that entire political entity flows from the State (regardless who enforces it), then how can it legally (not practically) be enforced and stand in a criminal matter?

Because counties are separate political entities and local sheriffs and police can make arrests, local district attorneys can prosecute, and local sheriffs can jail. We do have a unified New York state court system, but a local justice, county or supreme court judge could take a different position from a US district judge in the Northern District. None of these entities are parties to or restrained by the TRO.

Since she is not being sued personally, but in her official capacity, the State for all intent and purpose is itself restrained from doing so. She IS the State of NY here.

She might think so but she's not, she's the governor and sits in her chair in Albany.

She cannot enforce it anywhere in the State; not in Buffalo, or Rottenchester, in any county, or even NY City (at least in terms of the parts of the CCIA she has been restrained from enforcing.)

If the Governor of a State cannot enforce it, the law us not enforceable.

Actually that's not how law enforcement in New York works. The NYSP, state-level law enforcement can't enforce it statewide, but I see nothing restraining NYPD, the Chautauqua County Sheriff, or the Cobleskill village cops from enforcing it if they were deadset on it.

And any DA who tries to bring a case with this strict and broad TRO is going to have to answer that question right quick in a court of law, especially in a criminal case.

That's true of literally any law. Once someone is charged they can always raise a constitutional defense whether there's any other pre-enforcement challenge or not. The big difference there is you will rarely get a chance to raise that defense in a federal court. You'd have to be convicted and appeal up to Appellate Divisions, and the Court of Appeals, and then if you still lost, petition the US Supreme Court for cert, which they rarely grant, and then win there. In some cases once you are in prison you can file for post-conviction relief via habeas corpus in federal court, but that's also not a great position to be in.

Legal procedure isn't simple. Note, no matter what this TRO expires when the case hits the next step of a hearing and ruling for a preliminary injunction, which has the same standards but is given after both sides have a full opportunity to present evidence in a sort of mini-pretrial (though not a trial). That's scheduled for October 20, though may well be delayed by appeal. If a preliminary injunction is granted (or even if not), both sides have there's more opportunity to flesh out the record and either party can then make a motion for summary judgment, which is a final judgment without a trial if the judge decides there's only a legal and not a factual dispute. If there's facts at issue then it goes to trial for a final judgment after trial. So, one hopes this TRO is a signal of a quick win, but this TRO is not the final order under any scenario. It's temporary.

I want to add, I hope that this ends up being the end of CCIA, I hope all our local officials take their cue and start complying with the spirit of this order regardless of what does or doesn't happen in the 2nd circuit. It's just not as simple as it may be made out to be in terms of what the next steps are in your particular county. You don't have to wait for this to play out to carry where you are in terms of complying with unconstitutional requirements. But what happens if you are applying for a license or getting yourself in some sort of CCIA-related law enforcement situation in this aftermath if you aren't in the relevant jurisdictions, may not be so clear-cut yet.

 

[alistair]

Sorry have not had time to read TRO papers .... can you tell me if, under the TRO, I can carry in a restaurant that serves booze?

 

[US RIFLE M1A]

Sorry have not had time to read TRO papers .... can you tell me if, under the TRO, I can carry in a restaurant that serves booze?

Not only that, but you can find a restaurant with a bar attached in the Adirondacks, after stocking up your cabin by shopping at the local grocery store after filling up the tank on your Jeep which needed a minor doodad at the auto parts store....

All while concealed carrying.

Like people do all the time in free states.

 

[m1_ping]

The state has filed their motion for emergency interim stay of temporary restraining order, and stay of order pending appeal in the Second Circuit Court of Appeals.

 

[Acer-m14]

"The serious risk of irreparable harm to public safety and the possibility of regulatory chaos necessitates an immediate appeal. As the data confirm, more guns carried in more places by more people result in more crime, violence, and homicide."


What is it 25 states you don't even need a permit now ..

i don't see WW4 here in the USA .. remember WW3 is over in Ukraine

WHAT DATA!!! ??

She said she does not need DATA ..

NY Gov. Kathy Hochul: "I don't need to have numbers" to justify position on gun control​

 

[Shadow2]

its not clear to me if the requirement for a sign allowing CC in a private place is no longer valid. Was that struck down as well? Sure, some sensitive places were removed. But can i now CC at say, the local supermarket, even if they don't have a sign allowing it? Sorry, i read thru the whole tread this morning, but i didnt see this specifically mentioned. but, i'm still not fully caffeinated so who knows.

It went back to how it use to be. businesses have to post a sign saying no guns.

 

[Grimscale]

She said she does not need DATA ..

Which any judge should use to deny the State's request.
"You said you didn't need data, so you can't use it now."

 

[Uzi]

As usual I'm confused. What is this talk about something going into effect on Wednesday? I'm seeing all sorts of mixed info as per usual. Is it "legal" to carry again normally, or are we still waiting for some technicality bullshit?

 

[subsonic]

The state has filed their motion for emergency interim stay of temporary restraining order, and stay of order pending appeal in the Second Circuit Court of Appeals.

Pretty frank appeal. They argue procedural points but the main thrust is they know they are going to lose with Sudabby and they want the 2nd circuit to slap him on the merits kid the constitutional issue now. If the 2nd circuit obliges this could speed up SCOTUS getting involved.

 

[m1_ping]

GOA's response in opposition to the state's motion for a stay pending appeal and an administrative stay pending resolution of the motion.

 

[subsonic]

GOA's response in opposition to the state's motion for a stay pending appeal and an administrative stay pending resolution of the motion.

This is a very good response, that they got this out the next day shows they were well prepared.

The 2nd circuit could deny the stay and then grant one from the preliminary injunction as soon as later this month. If the 2nd circuit stays the TRO then it really signals that they are going to overrule the district going forward. The other factor in how this ultimately plays out is what panel is assigned and if the 2nd circuit rehears it en banc.

 

[camper4lyfe]

As usual I'm confused. What is this talk about something going into effect on Wednesday? I'm seeing all sorts of mixed info as per usual. Is it "legal" to carry again normally, or are we still waiting for some technicality bullshit?

The TRO was granted but didn't take effect right away. It had a 3 [business] day stay to allow for appeal. IANAL but I'll say that even though the state filed for appeal, the TRO will still take effect tomorrow because the appeal has not been granted.