Sunday, November 7, 2010

Amended Complaint Filed in Kachalsky et al v. Cacace et al

An amended complaint was filed Thursday in the Kachalsky case by Alan Gura. The amended complaint adds three new plaintiffs as well as two new defendants to the case. Back in August, Gura had requested the permission of the court to add additional plaintiffs in an endorsed letter to Judge Cathy Seibel. He had noted at that time that he had at least one additional plaintiff who had been denied a pistol carry permit after the McDonald decision. While this plaintiff could file a separate suit, Gura suggested it would be more efficient to just add them to the Kachalsky case.

All the new plaintiffs are residents of Westchester County and all are licensed to have a handgun for the limited purpose of target shooting. They had each applied to have their limited licenses amended or upgraded to full carry after the McDonald decision was reached by the U.S. Supreme Court in late June. The timing is important as the State of New York had indicated in earlier filings that they would use the pre-McDonald decision denial of permits for Alan Kachalsky and Christina Nikolov as grounds for dismissal.

The first new plaintiff is Eric Detmer. Mr. Detmer serves in the U.S. Coast Guard Reserve and is a qualified Boarding Team Member where he carries a .40 S&W Sig-Sauer P229 DAK while on duty. As part of his service with the Coast Guard, he has to qualify twice a year with his handgun. Due to his military status, he is exempted from having to complete a firearms safety course per NY Penal Code 400.00.1(i). In his civilian life, Mr. Detmer is a state licensed Professional Engineer.

When Mr. Detmer applied to Westchester Court to amend his limited license for the purpose of full carry, Westchester County recommended to the hearing officer Albert Lorenzo that it be disapproved saying, in part, that:
Detmer “has not substantiated that he faces danger during non employment hours that would necessitate the issuance of a full carry firearm license” and “has not demonstrated an exceptional need for self protection distinguishable from that of the general public.”
On September 27, 2010, Lorenzo denied Detmer's application saying "I see no justification for a full carry permit."

Johnnie Nance and Anna Marcucci-Nance both hold limited pistol licenses that only allow for target shooting. Both he and she are shooting instructors and regularly transport firearms. They both hold FCC Amateur Radio Licenses and are active in the amateur radio (HAM) community. 

They both applied to have their limited license upgraded to "full carry" for the purpose of self-defense. In mid-August, Westchester County recommended that each of their applications be denied saying "no safety concerns have been cited by the applicant" and they had not demonstrated "an exceptional need for self protection distinguishable from that of the general public."

On September 9th, hearing officer Robert Holdman found that neither had demonstrated any exceptional need for the permit. He then cited the denial of Alan Kachalsky's application and found that neither of the applicants demonstrated "proper cause" within the meaning of the Penal Code. He then went to add:
“In sum, the applicant has not shown sufficient circumstances to distinguish his (her) need from those of countless others, nor has he demonstrated a specific need for self protection distinguishable from that of the general community or of persons engaged in the same business or profession.”
 Both counts of the lawsuit charging violations of the Second Amendment and the Equal Protection Clause of the Fourteenth Amendment remain essentially the same. The second count clarifies the violation of the Equal Protection Clause saying that the requirement that applicants "demonstrate cause for the issuance of a permit classifies individuals, including plaintiffs, on the basis of irrelevant, arbitrary, and speculative criteria in the exercise of a fundamental right."

All four of the named defendants are being sued in their capacity as a licensing officer. The complaint, both original and amended, have always noted that they were "at all relevant times a handgun carry permit licensing officer for defendant Westchester County." The complaint stresses this as each is also a sitting judge in New York State. Susan Cacace is an elected County Court Judge for Westchester County, Jeffrey Cohen is a Justice in the NY Supreme Court for Westchester County, Albert Lorenzo is a Judge on the Court of Claims, and Robert Holdman is a Judge on the Court of Claims. Lorenzo and Holdman are also acting Justices in the NY Supreme Court for Bronx and Westchester Counties respectively. I should note that in New York State, the Supreme Court is a trial court akin to a Superior Court in other states.

The State of New York did not file their anticipated 50 page Motion to Dismiss on Friday. The amended complaint may have been the reason. They did, however, add a second Assistant Attorney General, Monica Connell, to the defense team.


  1. A. I am very glad that the names of these tyrants will forever be memorialized, along with their deeds, and the government defense.

    B. The news on this blog is so good and timely, I feel like I should have to pay to read it.

  2. @jeremystaden:

    A. I agree!

    B. This is my way of giving back so no need to pay. Make a contribution to the Second Amendment Foundation instead.

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  4. Although it's easy to vilify the judges, we need to realize they are just following the law. The real culprits are the short sighted politicians that write the laws in the first place. Give "credit" where it is due, don't blame the scapegoats.
    Btw: who did write these laws? They are the ones who should be "outed".
    Let's hope this case moves forward quickly. Then maybe someone can work on eliminating the ridiculous ban on high capacity magazines (as if that was going to stop a criminal from obtaining and using them!)

  5. The judge has full authority to issue an unrestricted license regardless of what the Westchester Dept of Public Safety thinks. That level of authority is granted to the issuing authority by Section 400, which is the law in this case. The fact that most won't shows you the level of influence that the county PD has. Part of this problem is who you elect to the bench. I find it very easy to vilify an elected official who won't do their job.

  6. I've read a little more about the Westchester judges (joined the WCFOA) and now tend to agree somewhat with what gsg64 is saying. The judges do have latitude in making the decision. I always thought that judges were supposed to apply the law in an unbiased manner (naive fool I am) regardless of whether they agreed with it or not. I also thought the PD just did the background research and then handed over the file to the judges. Are they also pressuring, in some way, the judges to disallow full carry or is it their own anti-gun biases? Or both? The detective I worked with during the license process was very helpful and not at all obstructionist. But that's an individual not a department or agency.
    Anyway, if they win the case this may all be a moot point.