Lawsuit challenging state's gun laws is dismissed

Suit claimed that state officials violated Second and Fourth Amendment rights

By Bennett Loudon
BridgeTower Media Newswires

ROCHESTER, NY - A federal judge has dismissed a lawsuit challenging the constitutionality of New York state's gun-control laws.

The defendants included Gov. Andrew Cuomo; Attorney General Eric T. Schneiderman; State Police Superintendent Joseph A. D'Amico; Niagara County Court Judge Matthew J. Murphy III; former Wayne County Court Judge Dennis M. Kehoe; and Erie County Court Judge M. William Boller.

The plaintiffs include the Erie County Libertarian Party and nine individuals from Erie, Nassau, Broome, Niagara and Wayne counties.

The original complaint was filed in July 2015 and amended in December 2015.

The suit claimed that state officials and the judges responsible for issuing pistol permits violated their Second and Fourteenth Amendment rights by enforcing the state gun laws, which prohibit possession of handguns without a license.

To get a license in New York, you must be 21, have "good moral character," have no history of crime or mental illness, and demonstrate no "good cause" to deny the license.

An applicant must receive a concealed carry license when they show "proper cause" for it. And individuals may get a license for at-home possession and concealed carry in public.

The plaintiffs claimed that the terms "good moral character," "good cause," and "proper cause" are undefinable and violate the Second and Fourteenth Amendments. They also claimed the licensing process is expensive, time-consuming, and unnecessarily invades an individual's privacy.

Plaintiff Philip M. Mayor, of East Aurora in Erie County, claimed that, although he is licensed to own a firearm, he remains "under constant threat" of having it revoked.

Plaintiff David Mongielo, a resident of Lockport, Niagara County, claimed that Judge Murphy suspended his concealed carry license in July 2013 without notice or due process after police officers falsely arrested him.

Although Mongielo was later acquitted of all charges, except a minor cellphone violation, Murphy did not schedule a hearing on his license until more than 2 ½ years after the arrest.

Plaintiff William A. Cuthbert, of Buffalo, also claims he is under constant threat of having his license revoked. Cuthbert applied for his license on July 19, 2013, but did not receive it until May 18, 2015. Cuthbert claims Judge Boller violated his Second Amendment rights when he limited Cuthbert's license to hunting and target shooting.

On Nov. 24, 2015, Kehoe sent a letter to plaintiff John Murtari, of Lyons, Wayne County, explaining that he found "good cause" to deny his application because Murtari was arrested approximately 50 times, had received four jail sentences totaling over four months in jail, and repeatedly refused to make child support payments.

The defendants argued that the Libertarian Party of Erie County lacked standing to file the complaint. The plaintiffs did not respond to that argument, so U.S. District Court Judge Frank P. Geraci Jr. ruled that the claims had been abandoned and were dismissed.

Five other defendants had their cases dismissed because they had not applied for pistol permits and therefore lacked standing.

They could overcome that barrier "by making a substantial showing that their applications would be futile," Geraci wrote in the 26-page ruling filed Wednesday.

"However, they do not allege futility in the amended complaint," Geraci wrote.

Mayor argued that he is under constant threat of having his license revoked and being arrested if he does not carry his permit at all times. He also claimed that the process to add firearms onto a license is cumbersome and he disagrees with the existence of state's gun licensing laws.

Regardless, Mayor also lacked standing to sue because he has an unrestricted firearms license, Geraci ruled.

"No court has held that an individual who applied for and received a firearms license has standing to challenge the constitutional validity of the licensing laws," Geraci wrote.

"Mayor cannot have an injury when the licensing laws do not prevent him from owning firearms," he wrote.

Likewise, Mongielo's claims were dismissed because he has an unrestricted gun license and therefore lacks standing. Murphy suspended Mongielo's firearms license on July 3, 2013, but reinstated it on February 18, 2016.

"The very licensing laws that Mongielo seeks to challenge allow him to own firearms," Geraci wrote.

Only two of the plaintiffs were found to have standing to sue.

Cuthbert had standing to challenge the "proper cause" requirement for a concealed carry license because he established an injury by being denied a license, Geraci ruled. And Murtari's claims against Kehoe remained.

Normally, judges are immune from lawsuits stemming from their judicial acts. But the plaintiffs argued that the judges were not immune because their work deciding gun licenses was an administrative act, not a judicial one.

Geraci disagreed and wrote that Kehoe and Boller evaluated firearms license applications because they are judges and dismissed the remaining claims.

"It would be illogical to find that Judges Kehoe and Boller were acting outside of their judicial capacity," Geraci wrote.

The plaintiffs' attorney, James Ostrowski, of Buffalo, plans to appeal the decision to the U.S. Court of Appeals for the Second Circuit.

"Obviously in New York state it's a privilege to have a handgun. It's not a right, and that's why we filed this thing," Ostrowski said.

"We want to find out if it's really a privilege, or if it's a right, and I think the Supreme Court will have to answer that," he said.

Ostrowski said Geraci's decision, based largely on precedent, showed that if you don't apply for a pistol permit you can't challenge the constitutionality of the statute, and if you get the permit you can't challenge the statute.

"It's a useless exercise to apply for a pistol permit if the point you're trying to prove is you shouldn't have to apply for a pistol permit. That makes no sense to me," Ostrowski said.

The New York State Attorney General's Office also did not respond to a request for comment.

Published: Thu, Jan 18, 2018