NY Supreme Court Considers SAFE Act Injunction

[GmanCdp]

Maybe this is some GOOD news for the shooters of NY...

http://www.thetruthaboutguns.com/2013/02/foghorn/ny-supreme-court-considers-safe-act-injunction/

HAMBURG —

New York State will soon have to defend its controversial new gun control law against two separate lawsuits filed by the same Western New York attorney.

Attorney James Tresmond, whose law practice is based in Hambug, filed the first of the two lawsuits on Jan. 29, and the second on Wednesday, he said. Both are next due before a judge at the end of April.

The first lawsuit, filed in Erie County, was filed on behalf of two plaintiffs, both of whom own guns with magazines that hold more than seven rounds and are therefore banned under the state's new SAFE Act, Tresmond said.

Both men "have several firearms that fall under this category ... and they have money invested in these firearms and they're really upset about it," Tresmond said, adding that the case could eventually become a class action lawsuit.

Rather than arguing that the gun control violates the Second Amendment right to bear arms, however, Tresmond is arguing that the law violates Fifth and Fourteenth Amendment protections against government seizure of private property without "due process and just compensation."

"If you can take somebody's $20,000 gun or firearm without any compensation whatsoever, that's criminal," he said.

After hearing motions in that case, state Supreme Court Justice Diane Devlin has ordered the state, represented by state Attorney General Eric Schneiderman, to show cause before oral arguments on April 25 or face an injunction. An order to show cause is not unusual in these cases, however. In fact it's standard procedure, said Devlin's law clerk, Timothy Kane.

"These proceedings are always commenced by an order to show cause," Kane said, adding that the state has indicated it plans to respond by mid-March.

The state Attorney General's Office could not immediately be reached for comment early Thursday.

Tresmond agreed that the order to show cause is standard, but said the case itself is "very significant" because it was the first legal challenge to the new law and "the beginning of taking the state into account for their actions in passing this law back in January."

In the second lawsuit, filed Wednesday in Chautauqua County, Tresmond is representing a Sinclairville firearms dealer who previously sold guns now classified as assault weapons and says the law is preventing him from earning a living. Tresmond portrays the plaintiff as a father of eight who has been "denied the opportunity to pusure his lifelong work." He said the plaintiff has had gun manufacturers from around the country refuse to ship to him since the law passed.

That case is being heard by Justice Deborah Chimes, with the next court date set for April 29, Tresmond said.

Before anyone spends too much on champagne, consider a couple of things:

1) I have not been successful in obtaining a copy of anything issued by the NY Sup. Ct. in this case, but my understand is that what was issued is a "Show Cause" order. While it has been a while since I practiced in the NY state courts, my recollection is that a "Show Cause" order is essentially a hearing scheduling notice, signifying nothing about the merits or the Court's inclination for a ruling. Nor do I believe that issuance of a "Show Cause" order has any effect on the burdens of production and persuasion.

2) Again from a distance, my understanding is that a substantial issue exists under the New York state constitution about the procedures used to enact the Cuomo laws; could this be the "constitutional" issues at stake (versus anything under the 2d Amendment to the federal constitution)?