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View Full Version : 3 NY Defendants Claim 2nd A RKBA Outside of the Home


Paladin
08-04-2008, 10:52 AM
Looks like the 2nd Circuit in a few years might be deciding whether a 2nd A RKBA for self-defense exists outside of our homes.

Q1: Are any of our "right people" in contact w/the lawyers for these NY defendants charged w/illegally carrying a handgun outside of their homes?

Q2: What is the 2nd Circuit like re 2nd A RKBA?

CGN may want to start a thread/something to track these important cases.

I also bolded some text re the requirements for getting a license to merely possess a gun in NY.

*****

http://www.nysun.com/new-york/gun-rights-of-new-yorkers-may-rest-on-case-of-hot/83043/
New Yorkers' Gun Rights May Rest on Hot Dog Vendor's Case
New Supreme Court Ruling Is Cited Repeatedly in City Gun Cases

If New York's strict antigun laws are overturned in the near future, it may be the work of a hot dog vendor.

The vendor, Daniel Vargas, is due next month in court to fight misdemeanor charges that he kept an unlicensed revolver loaded on a basement shelf in his apartment. The case, which has generated 23 hearings and been heard by no fewer than 10 different judges as it winds through Brooklyn's lowest criminal court, would be of little general interest, except for the fact that the U.S. Supreme Court recently ruled that the Second Amendment protects a right to keep a handgun at home for self-defense.

Now, suddenly, Mr. Vargas's case, as well as a handful of other cases, are testing the authority of district attorneys to prosecute people for gun possession, a strategy that Mayor Bloomberg has emphasized in his criminal justice policies.

In about half a dozen New York City cases reviewed by The New York Sun, defense lawyers have filed briefs arguing that the Supreme Court's decision requires the dismissal of gun possession charges against their clients.

The briefs question the constitutionality of the city's treatment of all unlicensed guns as illegal guns mere possession of which can be punished by up to 15 years in prison.

At least two of the cases involve gun arrests during traffic stops. The motions ask New York courts to expand the federal Supreme Court decision to find that the "right to bear arms is not limited to the physical confines of the home," as a Brooklyn lawyer, Andrew Miller, wrote in one such case.

One state judge, Michael Gary in Brooklyn, has already rejected the Second Amendment claims of one defendant since the Supreme Court decision. The case involved a man accused of possessing a gun while smoking outside a Chinese restaurant.

But other cases featuring Second Amendment claims involve, like Mr. Vargas's case, allegations of gun possession in the home. In the Bronx, a lawyer for a man named Jose Rivera, who was arrested after police allegedly found marijuana and a .40-caliber pistol in his home, is claiming that he can't be prosecuted for the firearm under the Second Amendment.

In Brooklyn, a lawyer for a woman named Claudett Monplaisir is saying the Second Amendment protects her from prosecution for gun possession after police found a handgun in her apartment which may have been linked to a nearby shooting. Police say the suspected shooter, who fathered a child with Ms. Monplaisir, had instructed her to hide the gun in her freezer, according to court documents.

What makes Mr. Vargas's case so singular is that the only issue is the alleged gun. He is not accused of using the gun improperly or of committing any illegal conduct unrelated to its possession. Nor did police find the alleged gun while investigating other crimes, as often happens. For instance, many unlicensed handguns are recovered from homes in the course of responding to domestic violence calls, defense lawyers say.

Police records indicate that the officer who arrested Mr. Vargas in October 2006 had received "a tip for a location with firearm." According to the police records, Mr. Vargas consented to the search and police found a loaded .38-caliber revolver in a holster sitting on a shelf, with a box of bullets nearby.

Under New York law, possession of an unregistered gun on the streets in New York City carries a maximum penalty of up to 15 years in prison, while possession of such a gun at home is treated as a misdemeanor, which rarely carries jail time for a first offense.

Mr. Vargas's legal aid attorney, Laura Guthrie, wrote in a brief that Mr. Vargas denies possessing any gun or ammunition. The court brief goes on to say that even assuming the allegations are taken as true, the prosecution, "violates the individual right to bear arms protected by the Second Amendment."

"Here the government does not allege that Mr. Vargas possessed the weapon with intent to use it unlawfully, or outside of his home," she wrote. "Mr. Vargas is accused of keeping a gun in his home. This conduct is protected by the individual right to bear arms enshrined in the Second Amendment." The brief, filed last year, cites the appellate court ruling that the U.S. Supreme Court affirmed in the June decision.

A prosecutor from the Brooklyn district attorney's office, David Morisset, had argued, before the Supreme Court ruling was issued, that the Second Amendment didn't protect an individual right to keep a gun unless the owner was a part of a militia.

In a decision last year rejecting Mr. Vargas's Second Amendment claims, a city judge, Alexander Jeong, focused on another point, which is that Mr. Vargas had never sought a gun license.

But that reason for dismissing Mr. Vargas's Second Amendment claim may have been weakened somewhat since the Supreme Court recognized an individual right to keep a gun at home.

"The question now becomes which defendants with guns in their homes should benefit from that Constitutional right," a criminal defense lawyer and former president of the city bar, Barry Kamins, said. "One issue becomes whether to allow defendants to make these types of challenges even though they never applied for the permit."

Ms. Guthrie has argued that it should not matter whether Mr. Vargas applied for a permit.

"Mr. Vargas is alleged, in essence, not to have submitted himself to the complete discretion and the extraordinary power of the New York City Police Commissioner," she wrote. "The Second Amendment does not permit such interference."

New York's permitting system itself could come under scrutiny as these issues in criminal cases are litigated.

Mayor Bloomberg and other city officials have said that the Supreme Court decision does not threaten New York City's regulations, which require that all gun owners go through a lengthy and costly licensing process. Yet, some gun rights proponents and defense lawyers say that New York's licensing system is so burdensome as to be unconstitutional.

"An average poor guy who's particularly vulnerable to burglary or break-ins is going to have a hard time getting a license," said a legal aid attorney, Steven Wasserman, who wrote the Second Amendment motion that many legal aid attorneys are now using.

It can require multiple trips to One Police Plaza, a wait of more than four months, and fees that can reach more than $1,000 over a decade. Some criminal defense lawyers also say that the requirement that applicants possess "good moral character" is too arbitrary.

Mr. Vargas moved last month from the address on Lincoln Avenue where he was arrested, neighbors said. He could not be reached for comment. An immigrant from the Dominican Republic who is in his early 40s, Mr. Vargas "was a very nice man whenever I saw him," an upstairs neighbor, Beatrez Leger, said, adding that she recalled the arrest in 2006.

"I know he was very upset about it," she said.

Another neighbor, who declined to give his name, said that Mr. Vargas usually sells hot dogs at the corner of Liberty and Sheridan Avenues, although he was not there yesterday. A Daniel Vargas was, until 2004, registered as a street vendor with the Department of Health.

Ms. Guthrie declined to comment on the case, explaining that "any press isn't helpful" for Mr. Vargas.

CCWFacts
08-04-2008, 2:27 PM
I think we're going to see a lot of crim. defendants invoking the 2A over the next few years. I believe that "felon in possession" will pass scrutiny, but I have no idea what will happen to the other stuff (gun enhancements, etc).

This isn't good for us. Crim. defendants, with lawyers who may not really care about RKBA, might result in some case law that's less than ideal for us. But that's how it goes; the best we can do is to hurry up and get good case law done before bad case law can happen.

I expect that prosecutors might want to stay out of this whole area, so they don't have to spend years in court arguing over this stuff. They might want to use other charges instead.

Glock22Fan
08-04-2008, 2:47 PM
I think we're going to see a lot of crim. defendants invoking the 2A over the next few years. I believe that "felon in possession" will pass scrutiny, but I have no idea what will happen to the other stuff (gun enhancements, etc).

This isn't good for us. Crim. defendants, with lawyers who may not really care about RKBA, might result in some case law that's less than ideal for us. But that's how it goes; the best we can do is to hurry up and get good case law done before bad case law can happen.

I expect that prosecutors might want to stay out of this whole area, so they don't have to spend years in court arguing over this stuff. They might want to use other charges instead.


As I understood the article, the people charged with possession here were not felons/criminals, although the boyfriend of one of them might have been.

CCWFacts
08-04-2008, 3:06 PM
I just mean criminal case defendants, not that they were all felons in possession. Heller etc are great because they're civil suits, which is a much better way to make good case law than a criminal defense case, even if the defendant is not a criminal.

bulgron
08-04-2008, 3:22 PM
This is a loser case. Vargas never sought a permit for the pistol. Had he sought one, been denied, and then was busted for having the gun, I could see the case having legs. But the Supreme Court made it clear in Heller that permits are acceptable regulation under the 2A. What we need to do is push to make sure those permits are "shall-issue". But if you've never applied, you can't claim that your civil liberties have been denied.

hoffmang
08-04-2008, 3:48 PM
I actually think Mr. Vargas' case is not a loser. He's not a criminal in any other way than simply possessing an unregistered handgun for defense of his home inside his home.

That's going to be a hard one for the City of NY or the State of NY to overcome. Registration schemes may not be facially invalid, but as applied here, I think Mr. Vargas wins this case sooner or later.

-Gene

bulgron
08-04-2008, 3:57 PM
I actually think Mr. Vargas' case is not a loser. He's not a criminal in any other way than simply possessing an unregistered handgun for defense of his home inside his home.

That's going to be a hard one for the City of NY or the State of NY to overcome. Registration schemes may not be facially invalid, but as applied here, I think Mr. Vargas wins this case sooner or later.

-Gene

If you consider the general anti-gun feelings in state courts (I'm assuming NY Courts are a lot like California's), then I don't see how Mr. Vargas can win. They'll just hold that a permit system exists, and Mr. Vargas made no attempt to use it, and so he is in violation of that permit system -- which Heller indicates is probably constitutional.

Mr. Vargas can't claim that the permit system is unfair, because he never tried to use it.

Even if it jumps over to federal court, I don't see him winning short of running it all the way to SCOTUS, and they might not even look too kindly on someone completely ignoring the law.

And, of course, the other question is, does Mr. Vargas have enough money to actually chase this thing up the court system, or does he eventually go broke and fold?

I usually agree with your view on things, Gene, but on this one I find that I can't share your optimism.

yellowfin
08-04-2008, 7:08 PM
^ Perhaps, but in the case of NYC where the permits are virtually no issue, it can be said that there was no reasonable expectation of said permit being available to him. Why pay hundreds of bucks just to get them to officially say no? Vargas may have had reliable info that there is practically no such thing as an available permit because in practice there is not. Thus it is as if there is no permit at all.

Hmm...kinda reminds me of here.

RP1911
08-04-2008, 7:15 PM
Got to love a name like Claudette Monplaisir

monplaisir in french means my pleasure. :eek:

Gray Peterson
08-04-2008, 7:53 PM
The Supreme Court never said that.

"Because Heller conceded at oral argument that the D.C. Licensing Law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the license requirement".

Paladin
08-04-2008, 9:24 PM
The main point of this thread was to show that there are 3 NY defendants (2 from traffic stops and 1 just taking a smoke) where, if the facts are good, may be good means to get a ruling re the RKBA for SD outside of the home (i.e., an extremely important "son of Heller" case). I hope the legal eagles from the NRA/SAF/(CGF?) get in touch w/the attorneys involved and at least monitor these cases.

The main point of the article was discussing Heller's impact on the requirement to get a license to even own a gun in NY. That is a different issue and one that doesn't have as much importance for us in the PRK as getting the rationale of Heller applied outside of our homes as well as inside them.

Builder
08-04-2008, 9:48 PM
"Because Heller conceded at oral argument that the D.C. Licensing Law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the license requirement".How can one license a constitutional right? It is either a right or a permit to express. A license implies a granting or denial. There can be no denial of a right, for if there is a denial, there is no right.
Registration is not licensing, but it leads to the same conclusion, can one register their 1st Amendment rights? Can one register their rights to search & siezure?
Thanks,
Builder

hoffmang
08-04-2008, 11:04 PM
If you consider the general anti-gun feelings in state courts (I'm assuming NY Courts are a lot like California's), then I don't see how Mr. Vargas can win. They'll just hold that a permit system exists, and Mr. Vargas made no attempt to use it, and so he is in violation of that permit system -- which Heller indicates is probably constitutional.


Mr. Vargas chooses to fight or go to jail is my understanding.

I will agree with you that the state court issue is problematic, but I can also tell you that if he can get past the state appeals court, the rest of New York is not Manhattan.

-Gene

bulgron
08-05-2008, 7:44 AM
The Supreme Court never said that.

"Because Heller conceded at oral argument that the D.C. Licensing Law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the license requirement".

My point is that because Mr. Vargas never tried to get a permit, he's going to have trouble proving that N.Y.'s permit system is "enforced arbitrarily and capriciously." I mean, sure, he can drag all of the permit applications and denials into court (if the law allows him access to that) so as to show that many people can't get a permit, but what he can't prove is that he couldn't have gotten a permit if he had tried.

We see the same thing here in California. People caught carrying a concealed weapon without a permit are on much shakier ground if they never applied for a permit than if they had. If you've never been denied, then you can't really claim that your civil liberties have been denied to you.

Now, the thing about the Vargas case is that SCOTUS has already said that the keeping of arms is a fundamental right, so maybe the Vargas case is the one that pushes back on permit systems in general to show they are unconstitutional, at least for the keeping of arms within the home. But that seems like a really hard argument to make and win in court, especially when we still haven't cleared the incorporation hurdle.

In a lot of ways, Mr. Vargas' chances really come down to three things:

1. How much money he has and how stubborn he's willing to be
2. His luck on the judges and juries he gets. A pro-gun judge or jury could really help him out.
3. How other gun cases shake out in NY and around he country. If the case law that comes before him (if there is any) is generally more supportive of gun rights than not, the fight will be easier for him.

But all in all, I wouldn't want to be in Mr. Vargas' shoes right now. His case is coming too early, before the really big points have been won in court. To win, he has to get permit systems tossed out altogether. That's huge. For it to happen before incorporation seems like a John Grisham fantasy.

hoffmang
08-05-2008, 1:24 PM
Mr. Vargas is not going to be fighting alone in NYC I'd expect, first of all.

Second, there are more than just 2A issues on the permit. The punishment for an unregistered firearm is probably way too high for simply not registering versus the old justification of illegal possession. Mr. Vargas - post incorporation - has a fundamental right to possess a functional firearm in his home. Under strict or intermediate scrutiny, the onus will be on NY to prove that their registration system is the least restrictive.

Timing may be early but not bad. He's going to lose before his appeal. His appeal will be coming just as the various Federal case opinions are being issued. It's not perfect, but Mr. Vargas has excellent facts and his lack of a permit doesn't hurt him much at all. As applied challenges are much easier to prevail on than facial challenges and Mr. Vargas has that in spades.

-Gene