Opinion
10-22-2015
Robert L. SCHULZ et al., Appellants, et al., Plaintiffs, v. STATE OF NEW YORK EXECUTIVE, Andrew Cuomo, Governor, et al., Respondents.
Robert L. Schulz, Queensbury, appellant pro se. Jeffrey Gaul, Schenectady, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for respondents.
Robert L. Schulz, Queensbury, appellant pro se.
Jeffrey Gaul, Schenectady, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for respondents.
Before: EGAN JR., J.P., ROSE, LYNCH and DEVINE, JJ.
Opinion
DEVINE, J.
Appeal (transferred to this Court by order of the Court of Appeals) from a judgment of the Supreme Court (McNamara, J.), entered April 21, 2014 in Albany County, which, among other things, granted defendants' motion for summary judgment dismissing the complaint.
On January 14, 2013, at the request of both the Senate and Assembly, defendant Governor issued a message of necessity to the Legislature, setting forth facts which, in his opinion, necessitated an immediate vote by both houses on the New York Secure Ammunition and Firearms Enforcement Act (hereinafter the SAFE Act). The SAFE Act was passed by the Senate later that day and by the Assembly on January 15, 2013, and it was signed into law by the Governor on January 15, 2013 (see L. 2013, ch. 1).
1 Plaintiffs Robert L. Schulz and Jeffrey Gaul, as well as numerous others, commenced this action and argued that the SAFE Act was void as violative of the N.Y. Constitution. Supreme Court denied Schulz's motion for a preliminary injunction preventing enforcement of the SAFE Act and, upon appeal, we affirmed (108 A.D.3d 856, 969 N.Y.S.2d 195 [2013], lv. dismissed 21 N.Y.3d 1051, 973 N.Y.S.2d 85, 995 N.E.2d 1157 [2013] ). Following joinder of issue, defendants moved for summary judgment dismissing the complaint. Supreme Court granted the motion, and sundry plaintiffs appeal.
While the notice of appeal is purportedly filed on behalf of all plaintiffs, and is signed by many of them, only Schulz and Gaul have filed briefs on appeal. Schulz and Gaul are not admitted to practice law in this state and, accordingly, lack authority to represent the other plaintiffs upon this appeal (see Judiciary Law § 478; Matter of Schulz v. New York State Dept. of Envtl. Conservation, 186 A.D.2d 941, 942, 589 N.Y.S.2d 370 n. [1992], lv. denied 81 N.Y.2d 707, 597 N.Y.S.2d 937, 613 N.E.2d 969 [1993] ). Thus, we deem the appeal to have been abandoned by all plaintiffs except Schulz and Gaul (see Gapihan v. Hemmings, 121 A.D.3d 1397, 1398, 995 N.Y.S.2d 368 n. 2 [2014] ).
23 We affirm. Schulz argues that the Governor's message of necessity did not comport with N.Y. Constitution, article III, § 14, which requires that a bill be printed and placed upon the desks of legislators “at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinion necessitate an immediate vote thereon.” The constitutional language accordingly requires that the Governor set forth some facts in a message of necessity, but “the sufficiency of [those] facts ... is not subject to judicial review” (Maybee v. State of New York, 4 N.Y.3d 415, 418, 796 N.Y.S.2d 18, 828 N.E.2d 975 [2005]; see 108 A.D.3d at 857, 969 N.Y.S.2d 195). Contrary to the contention of Schulz, heightened review of the facts justifying the message of necessity is not required, even though the SAFE Act impacts upon fundamental rights (see 108 A.D.3d at 858 n. 2, 969 N.Y.S.2d 195). Inasmuch as the message of necessity here provided a factual justification, Supreme Court was correct in holding that no further judicial review was warranted (see Maybee v. State of New York, 4 N.Y.3d at 417, 796 N.Y.S.2d 18, 828 N.E.2d 975).
As for the substance of the legislation, the SAFE Act expanded the definition of assault weapon and, in so doing, effectively “criminaliz[ed] the possession of a greater number of guns or otherwise restrict[ed] them, ... [although] a grandfather provision was also included that permitted certain individuals who possessed ‘assault weapons' ... before the January 15, 2013 effective date to lawfully continue to possess” them subject to registration (Kampfer v. Cuomo, 993 F.Supp.2d 188, 190–191 [N.D.N.Y.2014]; see Penal Law § 265.00 [22], as amended by L. 2013, ch. 1, § 37). The SAFE Act also retooled the definition of large capacity ammunition feeding devices “to include, among other things, devices with a capacity of ten or less rounds of ammunition, but ‘containing more than seven rounds of ammunition,’ or those obtained after the effective date that have ‘a capacity of, or that can be readily restored or converted to accept, more than seven rounds of ammunition’ ” (Kampfer v. Cuomo, 993 F.Supp.2d at 191, quoting L. 2013, ch. 1, § 38; see Penal Law § 265.00[23] ).
45 Schulz and Gaul argue that the affected weapons and feeding devices are in common use in New York and that restricting the possession of those items offends the right to keep and bear arms for self-defense guaranteed by the Second Amendment of the U.S. Constitution. Defendants assert that this argument is unpreserved but, given that it was arguably raised in the complaint and was certainly addressed before Supreme Court by both defendants and the court, we do not agree. That being said, “[l]egislative enactments enjoy a strong presumption of constitutionality ... [and] parties challenging a duly enacted statute face the initial burden of demonstrating the statute's invalidity beyond a reasonable doubt” (LaValle v. Hayden, 98 N.Y.2d 155, 161, 746 N.Y.S.2d 125, 773 N.E.2d 490 [2002] [internal quotation marks and citations omitted]; see Matter of Concerned Home Care Providers, Inc. v. State of New York, 108 A.D.3d 151, 154, 969 N.Y.S.2d 210 [2013], lv. dismissed 22 N.Y.3d 946, 977 N.Y.S.2d 175, 999 N.E.2d 538 [2013] ). Defendants invoked that presumption in their summary judgment motion and, accordingly, the burden rested on plaintiffs to raise a question as to the invalidity of the SAFE Act (see e.g. Wein v. Carey, 41 N.Y.2d 498, 505–506, 393 N.Y.S.2d 955, 362 N.E.2d 587 [1977] ). Even viewing the evidence in the light most favorable to the nonmoving parties (see Branham v. Loews Orpheum Cinemas, Inc., 8 N.Y.3d 931, 932, 834 N.Y.S.2d 503, 866 N.E.2d 448 [2007] ), we agree with Supreme Court that they failed to do so.
678 “[T]he Second Amendment confers a constitutionally protected individual right to keep and bear arms as a means of self-defense within the home” (People v. Perkins, 62 A.D.3d 1160, 1161, 880 N.Y.S.2d 209 [2009], lvs. denied 13 N.Y.3d 748, 886 N.Y.S.2d 102, 914 N.E.2d 1020 [2009]; see District of Columbia v. Heller, 554 U.S. 570, 592–595, 630, 128 S.Ct. 2783, 171 L.Ed.2d 637 [2008] ), and “the Due Process Clause of the Fourteenth Amendment incorporates” that right against the states ( McDonald v. City of Chicago, Ill., 561 U.S. 742, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 [2010] ). The Second Amendment does not confer “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” and reasonable governmental restrictions may be placed on the right to keep and bear arms (District of Columbia v. Heller, 554 U.S. at 626, 128 S.Ct. 2783; see United States v. Bryant, 711 F.3d 364, 368–369 [2d Cir.2013], cert. denied ––– U.S. ––––, 134 S.Ct. 804, 187 L.Ed.2d 609 [2013]; People v. Perkins, 62 A.D.3d at 1161, 880 N.Y.S.2d 209). The Supreme Court of the United States has explained that such reasonable restrictions include “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” (District of Columbia v. Heller, 554 U.S. at 626–627, 128 S.Ct. 2783; see McDonald v. City of Chicago, Ill., 561 U.S. at 786, 130 S.Ct. 3020).
Civil Rights Law § 4 also confers a right to keep and bear arms, and “authoritative ... decisions construing the Second Amendment may properly be applied to the [s]tate statute in the interest of homogeneity of interpretation” (Matter of Moore v. Gallup, 267 App.Div. 64, 67, 45 N.Y.S.2d 63 [1943], affd. 293 N.Y. 846, 59 N.E.2d 439 [1944]; see People v. Perkins, 62 A.D.3d at 1161, 880 N.Y.S.2d 209).
9 We will accept, for purposes of discussion, that the SAFE Act substantially burdens the right to keep and bear arms so as to subject it to Second Amendment scrutiny (see New York State Rifle & Pistol Assn., Inc. v. Cuomo, 804 F.3d 242, 260 [2d Cir.2015]; United States v. Decastro, 682 F.3d 160, 166 [2d Cir.2012], cert. denied – –– U.S. ––––, 133 S.Ct. 838, 184 L.Ed.2d 665 [2013] ). We will also assume, although it is debatable, that the weapons and feeding devices addressed by the SAFE Act are not the type of dangerous and exotic weaponry that merit no Second Amendment protection (see District of Columbia v. Heller, 526 U.S. at 627, 119 S.Ct. 1692; New York State Rifle & Pistol Assn., Inc. v. Cuomo, 804 F.3d at 255–257; but see Friedman v. City of Highland Park, Ill., 784 F.3d 406, 407–411 [7th Cir.2015] ). The question accordingly becomes whether the challenged provisions survive intermediate scrutiny, namely, whether they “bear[ ] a substantial relationship to the achievement of an important governmental objective” (People v. Hughes, 22 N.Y.3d 44, 51, 978 N.Y.S.2d 97, 1 N.E.3d 298 [2013]; see Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 [1988] ).
With regard to the objective pursued, “New York has substantial, indeed compelling, governmental interests in public safety and crime prevention” (Kachalsky v. County of Westchester, 701 F.3d 81, 97 [2d Cir. 2012], cert. denied ––– U.S. ––––, 133 S.Ct. 1806, 185 L.Ed.2d 812 [2013]; see New York State Rifle & Pistol Assn., Inc. v. Cuomo, 804 F.3d at 262; People v. Hughes, 22 N.Y.3d at 52, 978 N.Y.S.2d 97). Schulz and Gaul provided no proof to call the well-established premise behind the challenged provisions into question, namely, that the governmental interest in public safety is substantially furthered by reducing access to weapons designed to quickly fire significant amounts of ammunition and the ammunition feeding devices required to hold that ammunition (see New York State Rifle & Pistol Assn., Inc. v. Cuomo, 804 F.3d at 262–263; Friedman v. City of Highland Park, Ill., 784 F.3d at 410–411; Fyock v. City of Sunnyvale, 779 F.3d 991, 1000–1001 [9th Cir.2015]; Heller v. District of Columbia, 670 F.3d 1244, 1262–1264 [D.C.Cir.2011] ). Thus, we agree with Supreme Court that “[t]he core prohibitions ... of assault weapons and large-capacity magazines [contained in the SAFE Act] do not violate the Second Amendment” (New York State Rifle & Pistol Assn. v. Cuomo, 804 F.3d at 269).
The provisions of the SAFE Act barring the use of ammunition feeding devices with more than seven rounds loaded were declared unconstitutional by the United States Court of Appeals for the Second Circuit, which found the limit to be an unsupported limitation on the right to keep and bear arms (New York State Rifle & Pistol Assn., Inc. v. Cuomo, 804 F.3d at 265; see L. 2013, ch. 1, § 46–a; L. 2013, ch. 57, § 1, part FF, §§ 2, 4). That decision, although it serves as “useful and persuasive authority,” is not binding upon us (People v. Kin Kan, 78 N.Y.2d 54, 60, 571 N.Y.S.2d 436, 574 N.E.2d 1042 [1991]; see Matter of State of New York v. Daniel OO., 88 A.D.3d 212, 218–219, 928 N.Y.S.2d 787 [2011], appeal dismissed 21 N.Y.3d 1038, 972 N.Y.S.2d 533, 995 N.E.2d 849 [2013]; Hess v. Wojcik–Hess, 86 A.D.3d 847, 848, 928 N.Y.S.2d 103 [2011], lv. denied 18 N.Y.3d 805, 940 N.Y.S.2d 214, 963 N.E.2d 791 [2012] ). In any case, Schulz and Gaul have not advanced any challenges specific to the seven-round limit, and we take no position as to whether it would pass muster under an intermediate scrutiny analysis.
The further arguments of Schulz, to the extent that they are properly before us, have been examined and found to lack merit.
ORDERED that the judgment is affirmed, without costs.
EGAN JR., J.P., ROSE and LYNCH, JJ., concur.