Dywinski v. State Of New York (SAFE Act Challenge)

[Brian Pfleuger]

I just got off the phone with Jim Tresmond. He tells me that the first court appearance for their lawsuit will be 930am tomorrow in State Supreme court, Buffalo.

Someone in his office will send me an email with the procedures and projected actions/filing so I can update. All the legalese is more than I can write while he talks.

Brief background is in this thread.

 

[Spats McGee]

This post is only so that I can easily find the thread in the future. Nothing to see here.

 

[CharlieDeltaJuliet]

Let us know if we can do anything to help. I have emailed the Reps. In NY, and told them of my opinion, but being an out-of-state person, I doubt they even listen...

Seriously though just let us know if we can write or call. I am going to re-write all of my reps this weekend and mail them out.

 

[Dr Big Bird PhD]

Fight on my brothers.

 

[Ed Bernay]

I hope the good guys are coordinating strategy with SAF and NRA. We're all on the same side.

 

[Aguila Blanca]

I hope the good guys are coordinating strategy with SAF and NRA. We're all on the same side.

Definitely.

The situation is clearly at a tipping point, and the consequences are FAR too important for key players (cough -- NRA -- cough) to be playing their usual "My way or the highway" games.

To forestall the inevitable "Don't speak ill of the NRA" responses ... I am a member. I also remember that the NRA tried hard to block the Heller lawsuit, then later tried to take credit for the win when the case succeeded. We don't need any of that sort of Brinksmanship at this point.

 

[Al Norris]

The "Major Players" had counseled that a few weeks should pass so that the law could be properly studied and a considered reply be brought.

This advice was apparently unheeded.

 

[Maxb49]

Tresmond files lawsuit

Mr. Tresmond filed his lawsuit today in New York State Supreme Court in the City of Buffalo. The case has been placed on the calendar for February 21st. The next step is service. Mr. Tresmond cannot release the order or petition until all respondents have been served. Although, I read the petition and the arguments are solid and in many ways fascinating. It looks like a winner.

 

[Vireye]

More information for those of us not familiar with the suit?

 

[hermannr]

They will be interesting to see.

 

[Brian Pfleuger]

Threads merged.

 

[Maxb49]

Brian, thank you for merging these threads. At the time I was on the road and couldn't find this thread.

Al,

With all due respect to those who are members of the NRA and other gun rights groups, there are certain factors that Mr. Tresmond had to take into consideration when he filed this case.

The first issue has to do with his clients. An attorney's responsibility, first and foremost, are to his clients. The client is the boss, not the attorney. The attorney is the skilled professional who listens to the needs and wants of his other client and carefully tailors the best logically cohesive argument he or she can that is supported by statute and case law to achieve the client's objective. Mr. Tresmond has clients who were adversely affected by the SAFE Act and directed him to petition the court. They kindly opened this effort to the public as a service to New York's gun owners.

The second issue has to do with the New York State Law: Civil actions in New York State are governed by a draconian code known as the New York State Civil Practice Law and Rules (CPLR). The CPLR was designed to make life brutal for anyone who bring civil actions, particularly challenges to government bodies or officers. New Yorkers need attorneys well versed in the CPLR to handle a such a case; not an out of state attorney from the who is merely admitted to practice in New York.

Mr. Tresmond is a distinguished attorney in Buffalo who has the support and assistance of dozens of attorneys around the State. The arguments made in the petition were elegant and forceful. I think you will all be pleasantly surprised when the Order and Verified Petition is made public.

 

[Cascade1911]

NYSRPA, in co-operation with the NRA, are having the Cuomo law reviewed by a highly qualified legal team. We ask that no other 3rd party legal action be taken without prior consultation.

and

The state Rifle and Pistol Association today is set to file a notice of claim over the state’s new gun-control law, the first step toward a lawsuit over the measure.

I sure hope they are working together and not stepping on each others toes.

 

[mete]

While draconian NY practices are difficult to deal with it IS possible to change things and it may not take as many people as you think.
Here in Zone 3 adverse possession cases were handled very differently than in other zones . Not any more. A relatively few hard working citizens, lawyers and representatives changed the law !!

 

[NWPilgrim]

I hope they can nip this bad law early and get it thrown out.

According to how the law was written or NY practices, if part of the law is found to be unconstitutional is the entire thing tossed or just that specific part?

 

[Brian Pfleuger]

if part of the law is found to be unconstitutional is the entire thing tossed or just that specific part?

It was written without a severability clause, unfortunately one was later added.

 

[Maxb49]

I sure hope they are working together and not stepping on each others toes.

I'd like to clear up a point of misunderstanding.

The NYSRPA's lawsuit has not been filed, they have filed a Notice of Claim, which reserves their right to file a lawsuit within the near future.

Mr. Tresmond's lawsuit is separate and on the docket. The fear that Mr. Tresmond's lawsuit, if unsuccessful, will prevent future challenges is simply not true. While they are not working together, Mr. Tresmond went to great lengths to structure his lawsuit in such a way as to not prevent future challenges to the law if his case is unsuccessful.

The doctrine of collateral estoppel prevents an issue from being re-litigated when it has been decided by the highest court in a jurisdiction. The issues raised in this lawsuit are some of the most unexpected, but perhaps the most devastating attacks on the S.A.F.E. Act that one could come up with. And much of it doesn't involve the Second Amendment (yes, there are issues with this bill that are even more serious than Second Amendment problems).

You will be pleasantly surprised. Some gun rights groups are nervous that a group of attorney's might "steal their thunder", and that's completely understandable, but that's not what Mr. Tresmond is trying to do. He's a hard working civil rights attorney, not an advocacy group, and he's not looking to make money out of this. I hope this puts some of those fears to rest.

 

[Dr Big Bird PhD]

What clause or law would allow for another lawsuit to come before this act?

 

[Fishing_Cabin]

The "Major Players" had counseled that a few weeks should pass so that the law could be properly studied and a considered reply be brought.

This advice was apparently unheeded.

While I really do understand the risk of a bad precedence, I have to take a pause though...While I understand the "Major Players" are also working to bring forth a case to challenge the law, in part or whole, I did not know there was a monopoly on who could decide, as in the "Major Players"... That causes as much concern to me as the law itself.

Why? If we had listened to a "Major Player" such as the NRA who wasnt initially interested in the Heller case, we would not be as far as we are today. At times it takes a new or different idea to continue to move things forward.

No, I am not saying that the NRA or other "Major Players" dont know what they are doing, but the fact that a small group wants to be the only one to go forward worries me, extremely.

 

[Maxb49]

What clause or law would allow for another lawsuit to come before this act?

That's the wrong question to ask. There is no "clause" that allows for more lawsuits. The way to look at it is, lawsuits are only prohibited if the doctrine of collateral estoppel applies. Collateral estoppel will not apply to all of the issues surrounding the unconstitutionality of the S.A.F.E. Act. Therefore, if Mr. Tresmond is unsuccessful, there are other issues that can be raised in challenging this law. There is no reason that any organization should engage in any fear mongering or attempt to intimidate Plaintiffs from filing lawsuits. It's totally unethical.

As an aside, consider the fact that many challenges to a law are raised in multiple federal circuit courts throughout the country, sometimes resulting in contradictory decisions among the circuit appellate courts (percolating issues). The Supreme Court often rules on these issues. The fact that these issues have been challenged in one district court does not prevent them from being challenged in another district court. This case is being raised in New York State Supreme Court, Fourth Department, Eighth Judicial District. There is nothing preventing other challenges in other departments or districts. NYSRPA needs focus their attention on lobbying and political action. If they want to hire an attorney to file suit, by all means, that is their right to do so. There is no need for fear mongering or ill will, it's not going to get any of us anywhere.