Thursday, November 4, 2010

An update in the Kachalsky case

It has been a long time since we've had news in this case. Kachalsky et al v. Cacace et al was the second post-McDonald case filed by Alan Gura. It challenges New York State's pistol permit requirement to show "proper cause".

An endorsed letter was filed last week by Anthony Tomari, Assistant Attorney General, on behalf of the State of New York. District Court Judge Cathy Seibel requires a letter indicating what motions the parties intend to file before they are filed. This letter requested the court's permission to exceed the 25 page limit for the legal memorandum in support of their motion to dismiss. They are requesting up to 50 pages in order to support their position. Alan Gura had advised them he would be OK with 35 pages. Nonetheless, Judge Seibel granted permission to go up to 50 pages and added that the plaintiffs could also file a brief of that size if they thought it necessary. This motion is scheduled to filed with the court this Friday, November 5th.

Mr. Tomari, in his request, said he didn't think he could adequately cover the substantial issues of both jurisdiction and the constitutional question presented otherwise. Tomari noted:
The impact of Heller/McDonald is just beginning to work its way through the federal and state judiciary and there are numerous on-going cases across the country raising Second Amendment challenges to state handgun statutes. Collectively, these cases will define the scope of rights conferred (sic) by the Second Amendment. Moreover, given the interests at stake, it is a certainty that there will be appeals, and a reasonable prospect that these issues will again be presented to the Supreme Court.
This letter also gives an indication of the grounds on which the State of New York plans to argue for a dismissal of this case. They will center on jurisdictional issues including:
  • Plaintiff's constitutional claims are not ripe
  • Plaintiffs lack standing to pursue the claims set forth in the complaint
  • Jurisdictional abstention is appropriate under Younger v Harris
  • Jurisdictional abstention is appropriate pursuant to the Pullman and Burford doctrines
  • Subject matter jurisdiction does not exist pursuant to the Rooker-Feldman doctrine.
Younger abstention is the argument that the State of Maryland is pursuing in its move to dismiss the challenge to Maryland's concealed carry requirement of "apprehended fear" in Woollard v Sheridan. More on the other abstention doctrines mentioned can be found here.

In the State's earlier letter announcing motions, they only mentioned ripeness and the Rooker-Feldman doctrine. I can only infer from the latest letter that Mr. Tomari has been studying the arguments presented by the defendants in other Second Amendment cases. If so, I do give him credit for not trying to reinvent the wheel - not that it will carry the day in the end.

I will have updates next week after I have had time to digest the anticipated motions to be filed on Friday.

UPDATE:  The State of New York has not filed their 50-page motion to dismiss yet. However, Alan Gura has filed an amended complaint which names new plaintiffs who have been denied pistol carry permits in Westchester County as well as additional defendants. I will have a separate post on this after I have had a chance to read it.

1 comment:

  1. "shall not be infringed" meets "apprehended fear." Only one of the two exists in the Constitution. Judicial nullification or off to the Supes? Film at 11.