Thursday, July 15, 2010

Next Gura Target - Westchester County, New York

Less than two weeks after Alan Gura and the Second Amendment Foundation sued the State of North Carolina, they are back. This time they are suing Westchester County, New York over its enforcement of the State of New York's handgun carry permit process which requires the showing of "good cause."

Alan Kachalsky and Christina Nikolov, both residents of Westchester County, were denied handgun carry permits when they applied.
Kachalsky’s denial was because he could not “demonstrate a need for self protection distinguishable from that of the general public.” Nikolov’s was denied because she could not demonstrate that there was “any type of threat to her own safety anywhere.” In addition to Westchester County, Susan Cacace and Jeffrey Cohen, both serving at times as handgun permit licensing officers, are named as defendants. The lawsuit was filed in U.S. District Court for the Southern District of New York, White Plains Division.
 The case is Kachalsky v. Cacase, U.S. Dist. Ct. S.D. NY 10-05413.

I will post the complete complaint as soon as it is available in Pacer.

Way to go Alan and Alan! Taking it solidly into unfriendly territory takes guts.

UPDATE: Mr. Kachalsky first sued in New York state court on this issue. It reached the NY State Court of Appeals (the highest level in the state of New York). His appeal was denied in February 2010. The case, In the Matter of Alan Kachalsky v. Susan Cacace, SSD 4 (2010), was dismissed by the Court sua sponte (without a request for a motion) saying there was no substantial constitutional issue involved . However, one of the judges dissented.
In his dissent, Judge Robert Smith said:
Petitioner's argument, rejected by the courts below, is that Penal Law
§ 400.00 (2) (f), which requires "proper cause" for the issuance of a license to carry a concealed pistol or revolver, violates the Second Amendment to the United States Constitution. Two constitutional questions are directly involved: (1) whether the Second Amendment limits the powers of the states, as well as of the federal government; and (2) whether a prohibition on carrying concealed weapons without a showing of proper cause is consistent with the Second Amendment. I make no comment on the merits of either issue, except to say that neither is insubstantial.
He went on to say that the first question was substantial enough that the US Supreme Court had accepted the McDonald case and the second question was undoubtedly substantial due to the Heller decision.

Judge Smith's dissent in the matter was considered a relatively rare occurance. Joel Stashenko analyzed his dissent for here and includes comments from other legal scholars.

UPDATE II: The full complaint in Kachalksy v. Cacace, U.S. Dist. Ct. S.D. NY, is here. The case has been assigned to Judge Cathy Seibel, an appointee of George W. Bush.

I have embedded the case filing below. It includes the case number and judge assignment on it.

Kachalsky Et Al v. Cacace Et Al - Complaint With Judge Assignment



  2. Ian,

    Thanks. It still isn't posted on the Fed Ct Pacer system yet.