3.2 Cases Decided After Mcdonald V. City Of Chicago

• Jurisdiction: New York

3.2 Cases Decided After McDonald v. City of Chicago

As with the pre-McDonald cases, about half of the post-McDonald cases are Article 78 proceedings, and half are challenges to criminal possession charges or convictions. And the post-McDonald decisions, not surprisingly, are remarkably similar in their analyses and holdings to those that pre-date McDonald.²¹³ The cases acknowledge Heller’s determination that the Second Amendment is limited and find that with respect to the Second Amendment challenges that New York’s gun regulation scheme is a reasonable restraint.²¹⁴ Only one of the cases addresses the SAFE Act, and that decision, with minimal substantive analyses, dismissed the complaint for failure to state a cause of action.²¹⁵ One other decision upheld the SAFE Act against a state constitutional challenge to its method of enactment, on the ground that it had supposedly not been passed pursuant to a valid message of necessity from the Governor.²¹⁶

One of the more interesting cases is Tessler v. City of New York²¹⁷ in part because it involved guns—one loaded—kept in an unlocked cabinet within the home. The weapons were noticed by police officers when they were summoned to the petitioner’s home because petitioner’s wife was attacking his daughter. Petitioner had licenses for both guns. Nonetheless, the officers issued an appearance ticket for the criminal offense of violating New York City Administrative Code § 10-312 for failure to properly safeguard the weapons,²¹⁸ and the petitioner was later given notice that his handgun license had been suspended because of “your domestic incident.” The court engaged in an extensive review of the traditional standards of review under C.P.L.R 7803²¹⁹ and then addressed the constitutional challenge. At first blush the Code provision appeared very similar to that of the District of Columbia under consideration in Heller, and the New York Supreme Court noted that “insofar as [it] would require that lawfully owned firearms be kept inoperable in the home at all times, the statute and rule would be unconstitutional.”²²⁰ But the court focused on the differences between the two ordinances:

. . . nor does the evidence in this record demonstrate, that handguns in the home be “kept inoperable at all times,” . . . so “as to render them wholly useless,” . . . and make “it impossible for citizens to use them for the core lawful purpose of self-defense” in the home. . . . Unlike the local laws addressed in Heller and McDonald, the New York City statute and regulation do not require a licensee to “keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device.” . . . Instead, the New York City requirement to render a “weapon inoperable by employing a safety locking device” applies only when the weapon “is out of the control of [the owner’s] immediate possession or control.” (Administrative Code § 10-312[a]; 38 RCNY 5-22[a][13].)

It is the circumstances of storing, placing, or leaving the weapon out of the owner’s possession or control, if anything, that may prevent a handgun from being “readily accessible in any emergency.” . . . To keep handguns unlocked, readily accessible, and operable for immediate use, licensed handgun owners in New York City may keep their handguns in their possession or control. ²²¹

The court also observed that the petitioner had not demonstrated that the use of a trigger lock prevented the handguns’ use for self-defense. Accordingly, the court found that the ordinances withstood petitioner’s Second Amendment challenge.

Also of note is People v. Nivar, 30 Misc. 3d 952, 915 N.Y.S.3d 801 (Sup. Ct. Bronx Cnty. 2011), which addressed a police response to a domestic violence call. The officers came to the defendant’s apartment and observed a handgun in a bedroom closet. The defendant, who was charged, inter alia, with criminal possession in the fourth degree (Penal Law § 265.01), moved to dismiss the weapons charge, advancing several constitutional challenges: (a) that the Penal Law was an unconstitutional prohibition on his right to possess firearms; (b) that under the strict scrutiny test, the state laws on gun ownership are overly broad; (c) that the state’s gun licensing scheme...