Osterweil v. Bartlett, NY State

[Al Norris]

Osterweil v. Bartlett is a case that I posted a couple of days ago (third post, item #57 in the Current 2A Cases thread). This is a peculiar case as it turns on a decidedly narrow interpretation of what a "home" is.

The case was filed pro se (meaning Mr. Osterweil represented himself). Here's the background:

It starts with a man who was at the time, a NY State resident who applied for a premises license to have a gun in his home. That was in May of 2008.

By late June of this process, Mr. Osterweil had purchased a home in another State and planned to use this as his primary residence. He kept his home in New York as a vacation or summer home.

After some problems and disputes, the permit was denied as he was no longer a State resident. Suit was filed in July of 2009. The suit was dismissed on defendants MSJ, on May 20, 2011.

Here's the telling reasoning of the court:

Second, the burden imposed by this law falls at least one level outside the core right recognized in Heller, i.e., the right of a law abiding individual to keep and carry a firearm for the purpose of self defense in the home. Although plaintiff still owns a house in New York, which he uses for vacation purposes, that house is no longer his "home."

Despite arguments to the contrary, the Judge in this case has defined "home" as a domicile. Domicile has a specific legal definition that is much narrower than a mere home.

While Heller did not make this distinction, this Judge did. The other reasons the Judge used to dismiss the complaints were the usual 2A two Step. Since the plaintiffs home was not his domicile and therefore not subject to the core of the right, intermediate scrutiny was applied (in this case, Justice Breyer's interest balancing, aka rational basis) and all complaints were dismissed.

What I didn't see in any of the briefs I read: Plaintiff was unaware of the significance of Baker v. Drozdoff (was Biaggi - 2nd post, item #21 in Current 2A Cases thread). In that case, a preliminary injunction was issued (agreed to by all parties) preventing the State of Nevada from enforcing any ban of firearms on State and Federal campgrounds in their Parks and Recreational Areas. The area of concern was that a tent in a campground was a "home," even if temporary, under Heller.

Herein lies the danger of most pro se litigants. Most simply do not have the necessary research capabilities to properly order and brief their case. If a temporary tent is a "home," even to non-residents, within the meaning of Heller, then a "vacation home" is also a "home," within that same context. The Judge could not have substituted domicile as the definition of home. That is the value of persuasive precedent.

To be sure, there are several other problems with the Judges interpretation in this decision. Hopefully, they can be overcome...

Plaintiff appealed to the 2nd Circuit on June 13th.

At this point, if I understand the NRA-ILA 2A Legal Update, the NRA will be handling the appeal. Currently, Mr. Osterweil is still listed on the 2nd Circuit Docket as pro se.

 

[KyJim]

Herein lies the danger of most pro se litigants. Most simply do not have the necessary research capabilities to properly order and brief their case.

And to amplify . . . many of the worst precedents over the years have come in criminal cases where "bad facts make bad law" or where harried public defenders or private attorneys with no real expertise on the topic have inadequately litigated or briefed the issue.

 

[maestro pistolero]

Isn't there ample case history that even a tent sight is a domicile for the purposes of the 2A?

 

[Al Norris]

Isn't there ample case history that even a tent sight (sic) is a domicile for the purposes of the 2A?

If there were, then why weren't they listed in the Baker complaint?

There might very well be such cases. The litigation process in Baker never came close to the stage of point - counter point, before the parties stipulated to the injunction. So we mere laymen don't have a working timeline to refer to.

What we do have, thanks to Baker, is that "home" and "residence" were used interchangeably within those documents. We have the successful argument that the right to be armed in a residence, even a temporary residence, is the same as the right to be armed in the home (which is generally more permanent).

In Osterweil, the plaintiff never made that connection and noticed the court. Because of that, the Judge was able to substitute "domicile" for "home." That changed the entire nature of the complaint.

 

[Al Norris]

A motion to extend time to file was granted on 12-15-2011. Filing of appeal is now set to Jan. 26, 2012.

Additionally, it appears Mr. Osterweil has read this thread and emailed the following clarification:

In your discussion of Osterweil v Bartlett, you failed to fully understand the issue. The 2nd CCA previously ruled as constitutional the New York statute which makes domicile the requirement to possess a handgun. The type of "home" is not relevant to the argument. The issue here is whether, under McDonald and Heller, a part time resident of New York will be permitted to possess a handgun in his part time residence.

Al Osterweil

I suspect it is time for me to go back and reread the pleadings.

 

[Armorer-at-Law]

What I didn't see in any of the briefs I read: Plaintiff was unaware of the significance of Baker v. Drozdoff (was Biaggi - 2nd post, item #21 in Current 2A Cases thread). In that case, a preliminary injunction was issued (agreed to by all parties) preventing the State of Nevada from enforcing any ban of firearms on State and Federal campgrounds in their Parks and Recreational Areas.

Are you saying that a stipulated injunction in a Nevada court would be controling precedent on a NY court?

 

[Al Norris]

Nope. Not saying that at all.

While not controlling, it is citable as to what another jurisdiction is doing.

 

[Al Norris]

Here is a listing of the docket:

12/15/2011 47 MOTION ORDER, granting motion to extend time [41] filed by Appellant Alfred G. Osterweil, by RKW, FILED. [474256][47] [11-2420]
01/13/2012 48 NOTICE OF APPEARANCE AS SUBSTITUTE COUNSEL, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/13/2012 by CM/ECF. [498236] [11-2420]
01/26/2012 49 NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/26/2012 by CM/ECF. [507960] [11-2420]
01/26/2012 50 NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/26/2012 by CM/ECF. [508046] [11-2420]
01/26/2012 51 ATTORNEY, Daniel Louis Schmutter for Alfred G. Osterweil, in case 11-2420 , [48], ADDED.[508216] [11-2420]
01/26/2012 52 ATTORNEY, Paul D Clement for Alfred G. Osterweil, in case 11-2420 , [49], ADDED.[508219] [11-2420]
01/26/2012 53 ATTORNEY, David Zachary Hudson for Alfred G. Osterweil, in case 11-2420 , [50], ADDED.[508227] [11-2420]
01/26/2012 54 ACKNOWLEDGMENT AND NOTICE OF APPEARANCE, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/26/2012 by CM/ECF.[508579] [11-2420]
01/26/2012 55 BRIEF, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/26/2012 by CM/ECF.[509365] [11-2420]
01/26/2012 56 JOINT APPENDIX, volume 1 of 1, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/26/2012 by CM/ECF.[509379] [11-2420]

I had said earlier that the NRA was helping Mr. Osterweil. You will note that Paul Clement with Daniel Schmutter are now the attorneys for Mr. Osterweil.

In this, from reading the opening brief, it appears that Mr. Clement is the main author. It is a really good read, if a bit long (45 pg - 54 PDF pgs). Here are the main points by Clemkent:

• New York’s Ban On Home Handgun Possession By Part-Time State Residents Violates the Second Amendment.
  • New York’s Ban On Home Handgun Possession By Part-Time State Residents Is, At A Minimum, Subject To Strict Scrutiny.
  • New York’s Ban On Home Handgun Possession By Part-Time State Residents Substantially and Unconstitutionally Burdens Second Amendment Rights.
• New York’s Residency Requirement Arbitrarily Burdens The Fundamental Rights Of Part-Time State Residents In Violation Of The Equal Protection Clause.

While the 2nd CCA comprises the States of Connecticut, New York and Vermont, a positive 2A decision here will have an effect on other Circuits and how they view part-time residents.

More broadly, should the Court reach to the Equal Protection argument (and I would think they would avoid this), it would ultimately impact "visitors" in those States as it regards their own right to self defense.

 

[Jim March]

DAMMIT.

No cites to Saenz v. Roe OR Ward v. Maryland - both controlling US Supreme Court cases that say "a state cannot discriminate against visiting residents of other states".

The hell are they thinking?

 

[CowTowner]

The hell are they thinking?

Perhaps strategy cards not ready to be placed on the table just yet?

 

[Al Norris]

Jim, those arguments would work if this case were about visitors from other States. This is not that case.

This is primarily about a part-time resident, not a visitor. This is about how the State of New York defines "residence" or "home" or "abode."

Heller did not make such distinctions, but NY State has. And it has the case law (controlling 2CCA precedent) to back it up. That must be corrected before "visitors" might have a shot at the 2A ferris wheel.

Equal Protection is the least of the worries and I highly doubt if the 2CCA will even go there. They will resolve it on the purely 2A "in the home" question.

 

[Jim March]

Al, I disagree.

They're treating him as a visitor. Right? So at least as a secondary argument, if the courts are going to accept the other side's argument that he is NOT any sort of "resident", then he's gotta be a visitor, right?

Fine. So if he's a visitor, there's a specific prohibition by the US Supremes, TWICE (1870 and 1999), that such discrimination against a visitor in any area of basic civil rights (in Ward, the right to engage in commerce) is flat banned. This would go double for any right that is specifically mentioned in the BoR.

(And yes, lawyers do this in pleadings all the time: "your honor, if you accept the other side's view that Mr. Whatever isn't a resident, then he has to be a visitor, therefore Ward v. Maryland and Saenz v. Roe bar the county's conduct even under their own theory of residence".

No state law that I'm aware of has ever tried to discriminate against a resident of another state in any area of the Bill Of Rights except for RKBA issues.

Explain to me why that shouldn't be at least floated as a "plan B", in case the "I'm not a visitor" thing falls apart?

Plan B is a good thing. And the NRA's own attorneys are too ignorant to try.

That's just sad.

 

[Aguila Blanca]

I agree with Mr. March.

None of us would probably actually agree that the gentleman is a "visitor" when he is living in a house that he owns, but we are probably all aware that the BATFE specifically recognizes and addresses dual residency for people who own vacation homes.

But the State of New York IS claiming that he is a "visitor" when he is in his vacation home. He isn't a resident (according to them), ergo he must be a visitor. The state can't have it both ways. If he is NOT entitled to the rights and privileges of a resident, then he MUST be entitled to the rights and privileges of a visitor.

ALL of them.

 

[Al Norris]

Gentlemen, I don't disagree. However,

Your argument is with Mr. Osterweil and Mr. Clement.

My sole responsibility here is to report, as I understand it, the facts of the case. These are the pleadings. At the appellate level, they can't raise issues not raised in the district court. As such, Clement is stuck with the arguments made by Osterweil at the lower court.

 

[Jim March]

Al, I *think* you can always cite US Supreme Court cases that are completely on point to a case.

I intend to call Mr. Clement's office tomorrow.

 

[Al Norris]

Not much has been written lately, on this case. Here is the current docket at CA2:

01/26/2012 55 BRIEF, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/26/2012 by CM/ECF.[509365] [11-2420]

01/26/2012 56 JOINT APPENDIX, volume 1 of 1, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/26/2012 by CM/ECF.[509379] [11-2420]

02/07/2012 63 SCHEDULING NOTIFICATION, on behalf of Appellee George R. Bartlett, III, informing Court of proposed due date 04/26/2012, RECEIVED. Service date 02/07/2012 by CM/ECF.[519844] [11-2420]

02/07/2012 66 SO-ORDERED SCHEDULING NOTIFICATION, setting Appellee George R. Bartlett, III Brief due date as 04/26/2012, FILED.[520043] [11-2420]

02/15/2012 67 EXTRA PAPER COPIES, Joint Appendix, Volumes, on behalf of Appellant Alfred G. Osterweil, RECEIVED.[525800] [11-2420]--[Edited 02/15/2012 by DH]

04/18/2012 68 MOTION, to certify question, on behalf of Appellee George R. Bartlett, III, FILED. Service date 04/18/2012 by CM/ECF. [584194] [11-2420]

04/18/2012 69 MOTION, to extend time, on behalf of Appellee George R. Bartlett, III, FILED. Service date 04/18/2012 by CM/ECF. [584231] [11-2420]

04/24/2012 72 OPPOSITION TO MOTION to extend time [69], on behalf of Appellant Alfred G. Osterweil, FILED. Service date 04/24/2012 by CM/ECF. [588839][72] [11-2420]

04/27/2012 77 MOTION ORDER, denying motion to extend time. Appellee shall file his brief within sixty days from the date of this order, [69] filed by Appellee George R. Bartlett, III; referring motion to certify question [68] filed by Appellee George R. Bartlett, III, by DC, FILED. [593136][77] [11-2420]

04/30/2012 79 OPPOSITION TO MOTION to certify question [68], on behalf of Appellant Alfred G. Osterweil, FILED. Service date 04/30/2012 by CM/ECF. [594808][79] [11-2420]

According to #77, the Appellee must file an answering brief by June 25th.

The interesting thing is the #68 motion to certify the question. This is a ploy to take the case out of the Circuit and present the question of residency = domicile (or not) to the New York Court of Appeals (aka State Supreme Court), in light of Heller and McDonald. According to #77, the Motions Panel will decide the issue of the certification.

Appellee George R. Bartlett, III, moves the Court to stay the briefing schedule and to certify a question of state law to the New York State Court of Appeals. Upon due consideration,

IT IS HEREBY ORDERED that Appellee’s motion to stay briefing is DENIED. Appellee shall file his brief within sixty days from the date of this order.

IT IS FURTHER ORDERED that Appellee’s motion to certify a question of state law is REFERRED to the panel that will consider the merits of the appeal.

Regardless of the fact that the State prevailed at District Court, if the State had a good case, then certification could have been asked at that level. They didn't. By making this motion now, that State must feel that they will not win the appeal on the merits and is merely looking at prolonging (delay, obfuscate, delay) the inevitable.

In Baker v. Drozdoff (was Baker v. Biaggi) 3:10-cv-00426, a Nevada Federal Court agreed that a tent in a campsite was a "home" as interpreted by Heller. That court issued a preliminary injunction against the State of Nevada. The regulation was subsequently changed and the case was dismissed without prejudice on Feb. 27th, 2012.

While Mr. Osterweil may or may not agree, if a Nevada Federal Court agrees that a temporary tent in a campsite was a "home," per Heller, the State of New York cannot maintain that a part-time resident must be domiciled in order to exercise his 2A rights.

From the last pages of the opposition brief:

In all events, Bartlett’s certification motion itself makes clear that certification is not necessary in this case. Bartlett effectively concedes that denying Mr. Osterweil a license for in-home handgun possession because Mr. Osterweil is a part-time resident runs afoul of the Second Amendment. In the affirmation in support of his motion, Bartlett admits that the “continuing vitality” and “rationale” of New York precedent “requir[ing] not merely residence but domicile” to be eligible to apply for a handgun license “has been cast in doubt by subsequent Supreme Court jurisprudence....” Bartlett Affirmation 2.

....

This Court does not need a New York court to tell it what Heller, McDonald, and Bartlett’s certification motion make plain: prohibiting Mr. Osterweil from possessing a handgun to protect his New York home because he is a part-time New York resident violates Mr. Osterweil’s Second Amendment right.

The opposition brief to that motion is attached.

 

[mete]

NY State cares little about what other states do. Declare one state as residence and go from there.
The shame of it all is that the NY Sullivan Law was initiated for political power in NYC but passed for the whole state. Not much has changed ,a NYState permit is clearly marked "Not Valid in NYC " .In fact for many years it was not legal to transport your gun from upstate to Long Island as you would have to pass through NYC !

 

[Al Norris]

Here is the most current docket:

04/18/2012 69 MOTION, to extend time, on behalf of Appellee George R. Bartlett, III, FILED. Service date 04/18/2012 by CM/ECF. [584231] [11-2420]

04/24/2012 72 OPPOSITION TO MOTION to extend time [69], on behalf of Appellant Alfred G. Osterweil, FILED. Service date 04/24/2012 by CM/ECF. [588839][72] [11-2420]

04/27/2012 77 MOTION ORDER, denying motion to extend time. Appellee shall file his brief within sixty days from the date of this order, [69] filed by Appellee George R. Bartlett, III; referring motion to certify question [68] filed by Appellee George R. Bartlett, III, by DC, FILED. [593136][77] [11-2420]

04/30/2012 79 OPPOSITION TO MOTION to certify question [68], on behalf of Appellant Alfred G. Osterweil, FILED. Service date 04/30/2012 by CM/ECF. [594808][79] [11-2420]

06/01/2012 81 NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellee George R. Bartlett, III, FILED. Service date 06/01/2012 by CM/ECF. [625388] [11-2420]

06/01/2012 82 ATTORNEY, Simon Heller for George R. Bartlett III, in case 11-2420 , [81], ADDED.[625481] [11-2420]

06/26/2012 83 BRIEF, on behalf of Appellee George R. Bartlett, III, FILED. Service date 06/26/2012 by CM/ECF. [648135] [11-2420]

07/03/2012 86 ORAL ARGUMENT STATEMENT LR 34.1 (a), on behalf of filer Attorney Mr. Simon Heller for Appellee George R. Bartlett, III, FILED. Service date 07/03/2012 by CM/ECF. [654291] [11-2420]

07/06/2012 88 ORAL ARGUMENT STATEMENT LR 34.1 (a), on behalf of filer Attorney Mr. Daniel Louis Schmutter, Esq. for Appellant Alfred G. Osterweil, FILED. Service date 07/06/2012 by CM/ECF. [656913] [11-2420]

07/10/2012 90 REPLY BRIEF, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 07/10/2012 by CM/ECF. [659580] [11-2420]

The response brief and the reply brief have been filed (I'm reading them now). This completes the briefing schedule and we now await a date for orals.

 

[Mountain2View]

Osterweil v Bartlett set for Oct 26 2012 NYC



Osterweil v Bartlett is set for trial by oral argument in NYC on October 26th, 2012- Paul Clement is the attorney.

Additionally, www.talk1300.com, hosted by Fred Dicker in Albany, NY, will have the 2nd chair lawyer there to interview about this case at approx. 10:15AM on Thursday, October 11th.

The bottom line is, if you own two homes, shouldn't you be able to protect yourself in both of them? Sounds reasonable to me.

 

[Al Norris]

SCOTUS Blog: A new gun rights issue arises by Lyle Denniston.

01/29/2013 103 NON-DISPOSITIVE OPINION, question certified to the New York Court of Appeals, by DJ, FILED.[829365] [11-2420]--[Edited 01/29/2013 by DH]--[Edited 01/29/2013 by DH]

01/29/2013 105 ORDER, certifying question to the New York State Court of Appeals, FILED.[829429] [11-2420]

01/29/2013 107 CERTIFIED ORDER, dated 01/29/2013, to New York Court of Appeals, FILED.[830188] [11-2420]

Before: JACOBS, Chief Judge, WALKER , Circuit Judge, AND O’CONNOR, U.S. Supreme Court Justice (Ret.)

Justice O'Conner, writing the decision, avoids (remporarily) the tough question and certifies the question to the New York Court of Appeals (their Supreme Court):

Part-time New York resident, who is not a domiciliary of the State, appeals from the grant of summary judgment denying injunctive relief from New York’s statutory handgun licensing requirement. The United States District Court for the Northern District of New York (D’Agostino, J.) concluded that the statute limits the grant of handgun licenses to domiciliaries of the State. We hold that certification of this statute’s interpretation to the New York Court of Appeals is warranted.