Lesser-known SAFE Act lawsuit raises unique points and risks for gun rights

[Mr VJP]

While the gun rights community is focused on the National Rifle Association-backed New York State Rifle and Pistol Association lawsuit challenging New York’s Secure Ammunition and Firearms Enforcement (SAFE) Act, a lesser-known complaint has also been filed that is not without both promise and controversy, especially considering NYSRP has specifically pleaded “We ask that no other 3rd party legal action be taken without prior consultation. We realize that this law impacts a very large number of people, but this is an extremely important case and must be handled properly with the best lawyers.”

The point is well taken, especially as judicial recognition of what controls are considered “lawful” can be established that other courts throughout the land will then rely on. That’s assuming there is no conflict which the Supreme Court can later rule on, or as importantly, a ruling they will decline to hear on appeal. Add to that NYSRP’s legal team, which includes scholar and author Stephen P. Halbrook, and even the most well-intentioned of independent challenges can raise fears that they’re going to mess things up and force bad precedent on us all.

So what do we do when such a challenge happens anyway? For starters, we do ourselves no favors by ignoring it. And examining it, we just may gain valuable insights, both in terms of legal points and in terms of how gun owners, as a community, can best ensure our rights are protected and advanced when a surprise plaintiff enters the fray.

The case is Razzano v. Cuomo, filed in the United States District Court, Eastern District of New York by “Gabriel Razzano, individually and on behalf of a class of all other persons similarly situated,” by attorneys Robert J. La Reddola and Steven M. Lester. What’s immediately noticeable, is while the NYSRPA suit has been filed for various associations, companies and residents, including a currently-serving assemblyman and two federal firearms licensees with physical disabilities, the “class members” in the Razzano lawsuit include “all persons who own long arms and are or may become ineligible to obtain or maintain a pistol license or own a newly defined ‘Assault Weapon.’”

In terms of who is being sued, in addition to defendants unique to each, both lawsuits name Governor Andrew M. Cuomo, Attorney General Eric T. Schneiderman and Superintendant of New York State Police Joseph A. D’Amico, although the Razzano complaint specifies “individually” in addition to in their official capacities.

Still, it’s fair to ask why a second lawsuit is needed, and whether it should be supported or discouraged. There are parallels in rights both actions invoke in terms of violations, as well as substantial differences between the NYSRP complaint and the Razzano action, the main one being, for Gabriel Razzano, it’s personal. His rights, and those of others like him, are at unique risk for reasons his lawsuit explains.

That’s because he’s already been through the legal process in Razzano vs. County of Nassau (“Razzano I”). Rep. Carolyn McCarthy’s office sicced the cops on him after an animated meeting over immigration issues, and they confiscated his legally registered weapons--nine rifles, 15 handguns, and his fiancée’s handgun. They revoked his pistol license three weeks later over his “suitability.” In other words, an American citizen, with no criminal charges against him, no convictions, no mental health diagnoses, no adjudication of any kind, was stripped of his supposedly Second Amendment-guaranteed rights essentially because he exercised those promised in the First.

“The Court ordered the return of Razzano’s long arms [but] after years of litigation ... Razzano is still ‘ineligible’ for a Nassau County pistol license, and thus under the SAFE Act is subject to having all of his ‘weapons’ confiscated, including hunting rifles and shotguns for self-defense in his home,” the current Razzano lawsuit explains.

“Upon information and belief, there are many in New York State who, like RAZZANO, fail to meet the standard of local pistol administrators for non-criminal reasons, and are thus ‘ineligible to possess a handgun license’ or “no longer a valid license holder,” it elaborates. “Therefore, the SAFE Act promulgates the same unconstitutional policy rejected in Razzano I: the seizure of all legally-owned weapons without notice, administrative review or judicial finding.”

That would seem borne out by the law, which states “The Division of Criminal Justice Services, upon determining that an individual is ineligible to possess a license, or is no longer a valid license holder, shall notify the applicable licensing official of such determination and such licensing official shall not issue a license or revoke such license and any weapons owned or possessed by such individual shall be removed...”

“By registering an assault rifle under Penal Law § 400.00(16-A), an individual is forced to provide information to the State Police which will be used in conjunction with the Database created by N.Y. Penal Law ... to ultimately arrest the individual for being ineligible to possess a ‘weapon,’ ‘firearm,’ ‘shotgun’ or ‘rifle,’ seize the weapons and firearms, and prosecute the individual for possession of such weapons,” Razzano’s motion for preliminary injunction and temporary restraining order explained, as it attempted to keep the April 15, 2014 deadline from placing him and others in similar situations at risk.

That effort suffered a setback last week when the District Court turned that motion down.

“The Judge said that this needs to be dealt with in the state court until I have been ‘injured’ (having all my firearms taken away again),” Razzano explained by email.

“We will be bringing the state action forthwith and then return to federal court,” Razzano’s attorney, Robert Redola promised.

While some may view this as a critique of Razzano’s case, NYSRP has encountered stumbling blocks as well.

"The Court ruled against us on guns, but dismissed [the] 7 round limit,” they announced in December, noting they are appealing the District Court decision and order to the United States Court of Appeals for the Second Circuit.

The questions that remain, at least as far as supporters of gun rights are concerned: Should Razzano defer to the big guns and take one for the team, or should his action be welcomed and supported? Don’t both cases pose risks? Is there no room to embrace and advance both? And if not, what would those inclined to discourage Razzano’s case advise he do?

For its part, one statewide group has already expressed support.

“SCOPE [the Shooters Committee on Political Education] is fully in support of the Razzano case,” the group posted on its Facebook page, linking to and quoting an April 9 Washington Free Beacon article. “It rightly presents issues that we have been raising since the passage of the so called NY SAFE Act,” said Stephen Aldstadt, president of SCOPE.”

For his part, NYSRPA president Tom King weighed in on Razzano’s troubles back in 2008, when he wrote“Congresswomen McCarthy should resign, the police chief should be prosecuted for a civil rights or RICO violation, the entire Nassau County Board should apologize and the residents of Nassau County should hang their heads in shame for not immediately coming to the aid of Mr. Razzano. And by the way where was the ACLU?”

Does that mean support will now be forthcoming?

Is a right delayed a right denied, and if one man’s rights can be violated, might we all be in danger?

Gov. Cuomo doesn't care. He's had taxpayer-funded armed bodyguards for years. Not that it's made the public he's intent on disarming any safer.

The Examiner.com