Category: Self Defense

Another, more in depth, look at the takedown of the kneejerk New York gun ban.

N.Y. Law Banning Gun Carrying in Churches (Including by People Authorized by the Church) Struck Down

From Hardaway v. Nigrelli, decided yesterday by Judge John L. Sinatra, Jr. (N.D.N.Y.):

Eight days after the Supreme Court struck down New York’s unconstitutional “proper cause” requirement for conceal-carry licenses, the State responded with even more restrictive legislation, barring all conceal-carry license holders from vast swaths of the State. The complaint and motion in this case focus solely on one aspect of the new legislation, namely, the portion making it a felony for such a license holder to possess a firearm at “any place of worship or religious observation.”

Ample Supreme Court precedent addressing the individual’s right to keep and bear arms—from Heller and McDonald to its June 2022 decision in Bruen—dictates that New York’s new place of worship restriction is equally unconstitutional. In Bruen, the Court made the Second Amendment test crystal clear: regulation in this area is permissible only if the government demonstrates that the regulation is consistent with the Nation’s historical tradition of sufficiently analogous regulations. As set forth below, New York fails that test. The State’s exclusion is, instead, inconsistent with the Nation’s historical traditions, impermissibly infringing on the right to keep and bear arms in public for self-defense….

Reverend Dr. Jimmie Hardaway, Jr. and Bishop Larry A. Boyd filed this lawsuit on October 13, 2022, and are joined by institutional plaintiffs, Firearms Policy Coalition, Inc. (“FPC”), and Second Amendment Foundation (“SAF”)…. Hardaway and Boyd, leaders of their respective churches, “wish to exercise their fundamental, individual right to bear arms in public for self-defense by carrying concealed firearms on church property in case of confrontation to both themselves and their congregants.” They allege that, as “leaders of their churches, they would be authorized to carry on church premises to keep the peace, and would do so, but for Defendants’ enforcement of the unconstitutional laws, regulations, policies, practices, and customs at issue in this case.” In particular, they seek to prevent the enforcement of New York’s new law that makes it a felony to carry firearms at all places of worship and religious observation….

 

The State argues that the place of worship exclusion complies with Bruen. The State cites to 1870-1890 enactments by four states (Texas, Georgia, Missouri, and Virginia) and the territories of Arizona and Oklahoma that contained place of worship firearm restrictions. This does not carry the State’s burden, as explained below.

At the outset, as the Supreme Court has made clear, individuals have the right to carry handguns publicly for self-defense. New York’s exclusion is valid only if the State “affirmatively prove[s]” that the restriction is part of the Nation’s historical tradition of firearm regulation. The test is rigorous because the Second Amendment is the very product of an interest balancing, already conducted by “the People,” which “elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense.” …

New York’s restriction finds no analog in any recognized “sensitive place.” In Bruen, the Court noted: “[a]lthough the historical record yields relatively few 18th- and 19th-century ‘sensitive places’ where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions …. And courts can use analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” Id. (emphasis in original).

In particular, places of worship or religious observation are unsecured, spiritual places that members of the public frequent as often as daily as part of day-to-day life, and encounter vast numbers of other people there—as they do anywhere in public. In contrast, legislative assemblies, polling places, and courthouses are civic locations sporadically visited in general, where a bad-intentioned armed person could disrupt key functions of democracy. Legislative assemblies and courthouses, further, are typically secured locations, where uniform lack of firearms is generally a condition of entry. The State’s argument that places of worship are analogous because the exclusion supposedly also minimizes the chance of violence between those with opposing views is undeveloped and, in any event, belies the non-confrontational purpose drawing people to houses of worship in the first place. The argument would apply nearly everywhere in public. The places of worship and religious observation exclusion thus finds no analogy in Bruen‘s recognized sensitive places.

Nor is there an American tradition supporting the challenged law here. As in Bruen—where, “apart from a handful of late-19th-century jurisdictions, the historical record compiled by [the State] does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense”—the State does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense at all places of worship or religious observation across the state.

Nevertheless, the State relies on a few laws from the late-1800s to insist that a relevant tradition exists. Bruen anticipates this argument. Rejecting the relevance of an outlier analogous law and state-court decisions, the Court stated that it would “not give disproportionate weight to a single state statute and a pair of state-court decisions. As in Heller, we will not ‘stake our interpretation of the Second Amendment upon a single law, in effect in a single [State], that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense’ in public.” …

Here, the State cites to a handful of enactments in an attempt to meet its “burden” to demonstrate a tradition of accepted prohibitions of firearms in places of worship or religious observation. The notion of a “tradition” is the opposite of one-offs, outliers, or novel enactments. Rather, “tradition” requires “continuity.”

These enactments are of unknown duration, and the State has not met is burden to show endurance over time. As a result, the Court is left with a handful of seemingly spasmodic enactments involving a small minority of jurisdictions governing a small minority of population. And they were passed nearly a century after the Second Amendment’s ratification in 1791. These outlier enactments also contrast with colonial-era enactments that, in fact, mandated such carry at places of worship. These enactments are far too remote, far too anachronistic, and very much outliers—insufficient, then, in the search for an American tradition….

For instances of effective defensive gun uses in church shootings, see the Colorado Springs New Life Church shooting and the Antioch (Tenn.) Burnette Chapel Church of Christ shooting, though of course these are just anecdotal illustrations.

Congratulations to Nicolas J. Rotsko (Phillips Lytle LLP), and David H. Thompson, John W. Tienken, and Peter A. Patterson (Cooper & Kirk, PLLC), who represent the plaintiffs. Note that one of the plaintiffs is the Firearms Policy Coalition; I have consulted for the FPC, but I haven’t been involved in this case.

FPC VICTORY: Federal Judge Blocks New York’s “Places of Worship” Handgun Carry Ban

BUFFALO, NY (October 20, 2022) – Today, Firearms Policy Coalition (FPC) announced that United States District Judge John Sinatra, Jr. has issued a temporary restraining order against New York’s ban on guns in “any place of worship or religious observation.” The order in Hardaway v. Bruen, which is effective immediately, can be viewed at FPCLegal.org.

“The Constitution requires that individuals be permitted to use handguns for the core lawful purpose of self-defense,” wrote Judge Sinatra in his opinion. “And it protects that right outside the home and in public. Nothing in the Nation’s history or traditions presumptively closes the door on that right across every place of worship or religious observation. As in Bruen, where the Court stated that, ‘[n]othing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms,’ nothing there casts outside of its protection places of worship or religious observation. New York’s exclusion violates ‘the general right to publicly carry arms for self-defense.’ It, too, is one of the policy choices taken ‘off the table’ by the Second Amendment.”

“Today another court blocked an unconstitutional gun law, this time the ‘places of worship’ carry ban New York imposed as punishment for the Bruen decision,” said FPC Director of Legal Operations Bill Sack. “Today, the Court recognized what we have long argued: That no one should be forced to forgo one constitutional right in order to exercise another.”

FPC is joined in this lawsuit by the Second Amendment Foundation.

Man can argue he needed handgun because police did not protect him, N.J. court rules

A state appeals court has reversed a man’s handgun possession conviction after finding he should have been able to argue he needed it for protection from people trying to kill him for cooperating with police.

The court, in a Tuesday decision, found merit in the man’s arguments that the danger he faced was real, and that authorities had not sufficiently helped him – after he’d helped them by wearing a wire in an investigation.

The man, who was identified only by his initials, was beat up twice, shot at once and moved residences before finally arming himself in case his attackers accosted him again, the decision describes.

Before that occurred, a Lawrence police officer arrested him during a traffic stop in 2015, and found the Beretta pistol in his pants. He was 21 years old at the time.

After being unable to suppress the gun evidence and the trial judge in Mercer County ruling against his defense, the necessity defense, the man took a plea bargain. A judge sentenced him to eight years behind bars with four as a mandatory minimum.

The man’s appeal failed in one part. He argued that the Lawrence police officer overstepped during the traffic stop by asking the driver to roll down the rear, tinted windows, where he found the man as one of two backseat passengers.

The officer also smelled marijuana and eventually searched the car, with the driver’s consent, and the occupants – and only found the gun in the defendant’s pants. One bullet was in the chamber.

The appeals court found the officer’s actions lawful, as he was dealing with four people during a nighttime stop and the steps he took to protect himself were reasonable.

The court took issue with the barring of the necessity defense, which allows defendants to argue that their conduct, while normally illegal, was necessary or justified in a limited instance – in this case, carrying a gun.

The decision says the man described his situation to a police detective: he’d helped police and prosecutors in a prior case and now people were “after him.”

After the two assaults and being fired upon, and moving, he sought help from a detective and the prosecutor from the case, but received no assistance. He told police he wanted to move out of state, but could not due to being on probation.

He then admitted obtaining the gun a few days prior and knew it was loaded with the bullet.

He had a plan, he told the detective interviewing him, that if confronted a fourth time, he’d fire the gun and flee.

The Mercer prosecutor’s office argued against the necessity defense in the appeal, saying the man had not qualified for the defense, specifically that he had not been met with an “imminent and compelling” emergency.

The appeals court disagreed.

The man wore a wire for police. “By doing so, he assisted police in performing their duty to protect the public. Through no fault of his own, his cooperation with the police led to him being beaten up twice and fired upon in his own community,” the decision said.

“Defendant was acutely aware that other individuals in the community wanted to hurt or kill him. We find more than sufficient evidence … to conclude that the threat to defendant was ‘imminent and compelling,’ and raised a reasonable expectation in the defendant that he would suffer physical injury, if not death,” the decision went on.

The defendant’s, “plea to law enforcement for assistance went unanswered. He tried to move out of state to avoid the threat to his life, however he was unable to do so. Defendant also changed his local residence to avoid encounters with his attackers, which didn’t work, as he was attacked outside his new home.”

“Consequently,” it said, “he faced a crisis with no opportunity to avoid repeated assaults until he was severely injured or killed.”

A jury should hear those arguments and be the deciders, the decision says.