| Schulz v State of N.Y. Exec. |
| 2015 NY Slip Op 07728 [134 AD3d 52] |
| October 22, 2015 |
| Devine, J. |
| Appellate Division, Third Department |
| As corrected through Wednesday, January 13, 2016 |
[*1]
| Robert L. Schulz et al., Appellants, et al.,Plaintiffs, v State of New York Executive et al.,Respondents. |
Third Department, October 22, 2015
Robert L. Schulz, Queensbury, appellant pro se.
Jeffrey Gaul, Schenectady, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Victor Paladino ofcounsel), for respondents.
Appeal (transferred to this Court by order of the Court of Appeals) from a judgmentof the Supreme Court (McNamara, J.), entered April 21, 2014 in Albany County, which,among other things, granted defendants' motion for summary judgment dismissing thecomplaint.
On January 14, 2013, at the request of both the Senate and Assembly, defendantGovernor issued a message of necessity to the Legislature, setting forth facts which, inhis opinion, necessitated an immediate vote by both houses on the New York SecureAmmunition and Firearms Enforcement Act (hereinafter the SAFE Act). The SAFE Actwas passed by the Senate later that day and by the Assembly on January 15, 2013, and itwas signed into law by the Governor on January 15, 2013 (see L 2013, ch 1).
Plaintiffs Robert L. Schulz and Jeffrey Gaul, as well as numerous others, commencedthis action and argued that the SAFE Act was void as violative of the NYConstitution.{**134 AD3d at 54} Supreme Court deniedSchulz's motion for a preliminary injunction preventing enforcement of the SAFE [*2]Act and, upon appeal, we affirmed (108 AD3d 856 [2013],lv dismissed 21 NY3d 1051 [2013]). Following joinder of issue, defendantsmoved for summary judgment dismissing the complaint. Supreme Court granted themotion, and sundry plaintiffs appeal.[FN1]
[1] We affirm. Schulz argues that the Governor's message of necessity didnot comport with NY Constitution, article III, § 14, which requires that abill be printed and placed upon the desks of legislators "at least three calendar legislativedays prior to its final passage, unless the governor, or the acting governor, shall havecertified, under his or her hand and the seal of the state, the facts which in his or heropinion necessitate an immediate vote thereon." The constitutional language accordinglyrequires that the Governor set forth some facts in a message of necessity, but "thesufficiency of [those] facts . . . is not subject to judicial review" (Maybee v State of New York,4 NY3d 415, 418 [2005]; see 108 AD3d at 857). Contrary to the contentionof Schulz, heightened review of the facts justifying the message of necessity is notrequired, even though the SAFE Act impacts upon fundamental rights (see 108AD3d at 858 n 2). Inasmuch as the message of necessity here provided a factualjustification, Supreme Court was correct in holding that no further judicial review waswarranted (see Maybee v State of New York, 4 NY3d at 417).
As for the substance of the legislation, the SAFE Act expanded the definition ofassault weapon and, in so doing, effectively "criminaliz[ed] the possession of a greaternumber of guns or otherwise restrict[ed] them, . . . [although] a grandfatherprovision was also included that permitted certain individuals who possessed 'assaultweapons' . . . before the January 15, 2013 effective date to lawfully continueto possess" them subject to registration (Kampfer v Cuomo, 993 F Supp 2d 188,190-191 [ND NY 2014]; see Penal Law § 265.00 [22], as {**134 AD3d at 55}amended by L 2013, ch 1,§ 37). The SAFE Act also retooled the definition of large capacityammunition feeding devices
"to include, among other things, devices with a capacity of ten or lessrounds of ammunition, but 'containing more than seven rounds of ammunition,' or thoseobtained after the effective date that have 'a capacity of, or that can be readily restored orconverted to accept, more than seven rounds of ammunition' " (Kampfer vCuomo, 993 F Supp 2d at 191, quoting L 2013, ch 1, § 38; seePenal Law § 265.00 [23]).
Schulz and Gaul argue that the affected weapons and feeding devices are in commonuse in New York and that restricting the possession of those items offends the right tokeep and bear arms for self-defense guaranteed by the Second Amendment of the USConstitution. Defendants assert that this argument is unpreserved but, given that it wasarguably raised in the complaint and was certainly addressed before Supreme Court byboth defendants and the court, we do not agree. That being said, "[l]egislative enactmentsenjoy a strong presumption of constitutionality . . . [and] parties challenginga duly enacted statute face the initial burden of demonstrating the statute's invaliditybeyond a reasonable doubt" (LaValle v Hayden, 98 NY2d [*3]155, 161 [2002] [internal quotation marks and citationsomitted]; see Matter ofConcerned Home Care Providers, Inc. v State of New York, 108 AD3d 151, 154[2013], lv dismissed 22 NY3d 946 [2013]). Defendants invoked that presumptionin their summary judgment motion and, accordingly, the burden rested on plaintiffs toraise a question as to the invalidity of the SAFE Act (see e.g. Wein v Carey, 41NY2d 498, 505-506 [1977]). Even viewing the evidence in the light most favorable tothe nonmoving parties (seeBranham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007]), we agreewith Supreme Court that they failed to do so.
"[T]he Second Amendment confers a constitutionally protected individual right tokeep and bear arms as a means of self-defense within the home" (People v Perkins, 62 AD3d1160, 1161 [2009], lv denied 13 NY3d 748 [2009]; see District ofColumbia v Heller, 554 US 570, 592-595, 630 [2008]), and "the Due Process Clauseof the Fourteenth Amendment incorporates" that right against the states ({**134 AD3d at 56}McDonald v Chicago, 561 US 742,791 [2010]).[FN2]The Second Amendment does not confer "a right to keep and carry any weaponwhatsoever in any manner whatsoever and for whatever purpose," and reasonablegovernmental restrictions may be placed on the right to keep and bear arms (Districtof Columbia v Heller, 554 US at 626; see United States v Bryant, 711 F3d364, 368-369 [2d Cir 2013], cert denied 571 US &mdash, 134 S Ct 804 [2013];People v Perkins, 62 AD3d at 1161). The Supreme Court of the United States hasexplained that such reasonable restrictions include "longstanding prohibitions on thepossession of firearms by felons and the mentally ill, or laws forbidding the carrying offirearms in sensitive places such as schools and government buildings, or laws imposingconditions and qualifications on the commercial sale of arms" (District of Columbia vHeller, 554 US at 626-627; see McDonald v Chicago, 561 US at 786).
We will accept, for purposes of discussion, that the SAFE Act substantially burdensthe right to keep and bear arms so as to subject it to Second Amendment scrutiny (seeNew York State Rifle & Pistol Assn., Inc. v Cuomo, 804 F3d 242, 259-260 [2d Cir 2015];United States v Decastro, 682 F3d 160, 166 [2d Cir 2012], cert denied568 US &mdash, 133 S Ct 838 [2013]). We will also assume, although it is debatable,that the weapons and feeding devices addressed by the SAFE Act are not the type ofdangerous and exotic weaponry that merit no Second Amendment protection (seeDistrict of Columbia v Heller, 554 US at 627; New York State Rifle &Pistol Assn., Inc. v Cuomo, 804 F3d at 256; but see Friedman v City of Highland Park,Ill., 784 F3d 406, 407-411 [7th Cir 2015]). The question accordingly becomeswhether the challenged provisions survive intermediate scrutiny, namely, whether they"bear[ ] a substantial relationship to the achievement of an important governmentalobjective" (People vHughes, 22 NY3d 44, 51 [2013]; see Clark v Jeter, 486 US 456, 461[1988]).
[2] With regard to the objective pursued, "New York has substantial, indeedcompelling, governmental interests in public safety and crime prevention" ({**134 AD3d at 57}Kachalsky v County of Westchester,701 F3d 81, 97 [2d Cir 2012], cert denied 569 US &mdash, 133 S Ct 1806[2013]; see New York State Rifle & Pistol Assn., Inc. v Cuomo, 804F3d at 261-262; People v Hughes, 22 NY3d at 52). Schulz and Gaul provided no proof to call the [*4]well-established premise behind the challenged provisionsinto question, namely, that the governmental interest in public safety is substantiallyfurthered by reducing access to weapons designed to quickly fire significant amounts ofammunition and the ammunition feeding devices required to hold that ammunition(see New York State Rifle & Pistol Assn., Inc. v Cuomo, 804 F3d at261-264; Friedman v City of Highland Park, Ill., 784 F3d at 410-411; Fyock v Sunnyvale, 779F3d 991, 1000-1001 [9th Cir 2015]; Heller v District of Columbia, 670 F3d1244, 1262-1264 [DC Cir 2011]).[FN3] Thus, we agree with Supreme Courtthat "[t]he core prohibitions . . . of assault weapons and large-capacitymagazines [contained in the SAFE Act] do not violate the Second Amendment" (NewYork State Rifle & Pistol Assn. v Cuomo, 2015 WL 6118288, *16, 2015 USApp LEXIS 18121, *58{**134 AD3d at 58}).
The further arguments of Schulz, to the extent that they are properly before us, havebeen examined and found to lack merit.
Egan Jr., J.P., Rose and Lynch, JJ., concur.
Ordered that the judgment is affirmed, without costs.
Footnote 1:While the notice ofappeal is purportedly filed on behalf of all plaintiffs, and is signed by many of them, onlySchulz and Gaul have filed briefs on appeal. Schulz and Gaul are not admitted to practicelaw in this state and, accordingly, lack authority to represent the other plaintiffs upon thisappeal (see Judiciary Law § 478; Matter of Schulz v New YorkState Dept. of Envtl. Conservation, 186 AD2d 941, 942 n [1992], lv denied81 NY2d 707 [1993]). Thus, we deem the appeal to have been abandoned by allplaintiffs except Schulz and Gaul (see Gapihan v Hemmings, 121 AD3d 1397, 1398 n 2[2014]).
Footnote 2:Civil Rights Law§ 4 also confers a right to keep and bear arms, and "authoritative. . . decisions construing the Second Amendment may properly be applied tothe [s]tate statute in the interest of homogeneity of interpretation" (Matter of Moore vGallup, 267 App Div 64, 67 [1943], affd 293 NY 846 [1944]; see Peoplev Perkins, 62 AD3d at 1161).
Footnote 3:The provisions of theSAFE Act barring the use of ammunition feeding devices with more than seven roundsloaded were declared unconstitutional by the United States Court of Appeals for theSecond Circuit, which found the limit to be an unsupported limitation on the right tokeep and bear arms (New York State Rifle & Pistol Assn., Inc. v Cuomo,804 F3d at 264-265;see L 2013, ch 1, § 46-a; L 2013, ch 57, § 1, partFF, §§ 2, 4). That decision, although it serves as "useful andpersuasive authority," is not binding upon us (People v Kin Kan, 78 NY2d 54, 60[1991]; see Matter of State ofNew York v Daniel OO., 88 AD3d 212, 218-219 [2011], appealdismissed 21 NY3d 1038 [2013]; Hess v Wojcik-Hess, 86 AD3d 847, 848 [2011], lvdenied 18 NY3d 805 [2012]). In any case, Schulz and Gaul have not advanced anychallenges specific to the seven-round limit, and we take no position as to whether itwould pass muster under an intermediate scrutiny analysis.