The first legal challenge to New York’s recent gun restrictions could be heard in Erie County by April.
Two local gun owners have filed an Article 78 petition – essentially a lawsuit against the government – asking a judge to prohibit the state from enforcing parts of the recently enacted Secure Ammunition and Firearms Enforcement Act.
But the court action against the toughened gun law does not mirror the stormy public debate seen at rallies, heard over the airwaves or popping up across the Internet.
The gun owners – Richard Dywinski, 26, of Cheektowaga, and David Lefkowitz, 24, of Buffalo – do not claim a Second Amendment right to bear arms in their court challenge.
“The whole thing boils down to a violation of the Fifth Amendment right against the taking of property and the 14th Amendment right to due process,” said James D. Tresmond, a Hamburg lawyer who represents the two men.
Neither does their petition mention the Bushmaster .223-caliber rifle used in the Newtown and Webster shootings nor any assault weapons.
Instead, they have gone to court because of their concern over the classic pump-action shotgun, particularly the Remington 870 model with the three-inch chamber.
“While it is clear that the state’s intent was not to regulate or restrict possession, purchase and ownership of common pump-action shotguns, the definition and prohibition against high-capacity ammunition-feeding devices effectively criminalizes the sale of all common pump-action shotguns,” according to the petition.
The new law includes a provision reducing the legal size of ammunition magazines from 10 bullets to seven.
While the size of ammunition magazines sold in New York will be reduced from 10 to seven bullets, gun owners who currently possess the larger capacity magazines can still keep them; but the law bans the gun owners from placing more than seven rounds in the magazines.
The Remington 870 has the capacity to fit seven three-inch cartridges, or shells, but can accommodate 10 to 12 cartridges that are 1¾ inches long, the lawsuit said.
The higher number of cartridges “effectively make the common Remington 870 a large-capacity ammunition-feeding device, the possession of which is a criminal offense under the SAFE Act,” according to the lawsuit.
Elected officials such as Gov. Andrew M. Cuomo and Assemblyman Sean Ryan, D-Buffalo, have said the new law does not affect rifles and shotguns used by traditional sportsmen and hunters.
But the lawsuit alleges the two gun owners would have to divest themselves of the Remington 870 shotgun to avoid prosecution.
The two gun owners, in court papers, said they “fear that a strict statutory interpretation of the SAFE Act will open themselves and gun shop owners to prosecution if they exercise their rights under the Constitution to purchase a shotgun.”
“The violation of civil rights is really where we’re coming from in this case,” Tresmond said.
“The reason I got into it is because I am concerned this country, little by little by little, is taking back our fundamental constitutional rights,” he said. “Somebody has to jump in and say, hey, wait a minute, let’s slow this thing down. We’re reacting to crazy people who get hold of a gun and shoot somebody.”
Tresmond’s son, Maximillian G. Tresmond, a University at Buffalo graduate, provided the research that went into the lawsuit.
One of the petitioner’s is a friend of Maxilillian Tresmond.
“They are gun owners,” Tresmond said of the two men who filed the petition. “They had the guns and the ammunition that were affected by the law.”
Still, “if you look at it in the final analysis, every New Yorker has standing in this matter because of the taxpayer money wasted on this ridiculous registry.”
The law requires those who own a handgun or an assault rifle to recertify their permit every five years in their county. The state will establish an electronic gun permit database that may be run against other databases containing the names of people who would be disqualified from possessing firearms, including those with criminal convictions, involuntary commitments, and those subject to orders of protection, as well as death records, according to the state’s website.
The two Erie County gun owners’ court action comes as the New York State Rifle & Pistol Association plans its own legal challenge,
The state association, the National Rifle Association’s affiliate in New York, has asked gun owners and other groups not to file any lawsuits challenging the gun restrictions without consulting the association.
The association, the state’s largest and nation’s oldest firearms advocacy organization, said it is cooperating with the NRA and “having the Cuomo law reviewed by a highly qualified legal team,” according to its website.
On Jan. 29, the New York State Rifle and Pistol Association – along with the Westchester County Firearms Owners Association, Sportsmen’s Association for Firearms Education and AR15.com – filed a notice of claim with the state, giving them 90 days to file a suit challenging the gun law.
“We realize that this law impacts a large number of people, but a proper legal review will take some time,” according to an announcement on the state association’s website. “Involved in the lawsuit will be two of the nation’s best Second Amendment attorneys. This is a very important proceeding and must be handled properly with the best lawyers.”
The new law results in “an unconstitutional taking of private property under the Fifth and Fourteenth Amendments to the U.S. Constitution,” according to its filing.
Meanwhile, Tresmond’s petition was supposed to come before State Supreme Court Justice Diane Devlin on Feb. 21, but the State Attorney General’s Office asked for an adjournment until April, Tresmond said.
The attorney said he consented to the request but has not heard from the court yet.
Tresmond said he has not heard of any other pending court challenges against the new state law.
“If this law is allowed to stand, there is a possibility that another state may adopt this process and nibble away at other fundamental rights,” Tresmond said.
Named as respondents in the petition are Cuomo, Assembly Speaker Sheldon Silver, State Senate leaders Dean Skelos and Jeffrey Klein, State Attorney General Eric Schneiderman and State Police Superintendent Joseph D’Amico.
The petition asks the court to forbid the state from:
• Threatening the two Erie County gun owners with felony prosecution for failing to register their long guns with the state;
• Restraining or prosecuting the men from buying a Remington 870 shotgun with a three-inch chamber;
• Compelling the men to destroy or surrender any large-capacity ammunition-feeding devices.
Tresmond said he is not being paid for his work on the petition and has not sought fees or contributions.
Tresmond said he worries the petition will be dismissed on a procedural ground.
If that happens, “we’re not going to stop here,” he said. “If we have to, we’ll run right across the street into federal court, and that is where we’ll probably get a better reception.
“There are constitutional issues here. That’s where it becomes a federal question,” he said.