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Kachalsky - Letter - Gura

Kachalsky - Letter - Gura

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):
+1-9143904278 Page
2
of
5
2010-08-1617:35:45(GMT)
Alan
Gura
From: Alan
Gura
C;UftA
&.
POSSESSKY,
P.L.L.C.
Virginia·
Washington,
D.C. 
101
N.
COLUMBUS STREET,
SUITE
405 
ALEXANDRIA,
VIRGINIA
22314 
TEL
703.835.9085/FAX
703.997.7665 
The
Hon. Cathy Seibel
United
States District Court
Judge
United
States
Courthouse
300
Quarropas
Street
White
Plains,
NY
10601-4150
VIA
:FAX
TO
914.390.4278
Re:
Kachalsky
v.
Cacase
U.S.Dist.Ct.,S.D.N.Y.1O-CV-5413-CSDear Judge Seibel:
I
represent
the
Plaintiffs in
the
above-referenced case,
Alan
Kachalsky, ChristinaNiko!ov,
and the Second Amendment
Foundation, Inc. ("SAF"). This lettcr
is
submitted pursuant
to
Your
Honor's
Individual Practices to respectfully requcst the scheduling
of
two
motions:
(1)
amotion to add parties,
and
(2) a cross-motion for
summary judgment.
Plaintiffs
wiJI
respondseparately to Defendants' letters
seekingto
schedule motions to dismiss.
BACKGROUND:
Plaintiffs
do
not,
and
would not, seek "invalidation
of
New York's
'full
carry' licensingprovisions." State
Defs.'
Letter, Aug.
13.
)Jew
York regulates
the
licensing
of
handguns
in a
variety
of
ways, but only a
single
regulation
is
here at
issue: the constitutionality
of
New York's
requirement
that
individuals demonstrate
"proper
cause" to
obtain
a permit
to
carry a handgun.N.Y. Penal
Law
§ 400,00(2)(1).
That provision was administratively applied against Kachalsky
and
Nikolov, and it imposes a standard that
most
of
SArs
members
and supporters cannotsatisty.Thisprovision also imposes organizational costs upon SAF.Plaindffs contend that because
the
bearing
of
arms
is
a fundamental right, the state
may
not force individuals
to
demonstrate
a
need to
exercise
it
regardless
of
however else the statelicenses
or
regulates
that
right. Thus, while
the
right at issue
is
newly-recognized
hy
the SupremeCourt,
the
concept underlying this case is
not:
individuals
maynotbe
required
to
demonstrate
"proper
cause" for exercising a fundamental right.
The
need to engage in constitutionally
protected
conduct
is inherently
recognized
by
the
right's
codification.
Moreover, because
the
<'proper
cause"requirement improperly
classifies
individuals
in
the
exercise
of
a
fundamental
right, the provision violates the
Equal
Protection Clause.
Case 7:10-cv-05413-CS Document 11 Filed 08/18/10 Page 1 of 5
 
To:
+1-9143904278 Page
3
of
5
2010-08-1617:35:45 (GMT)
Alan
Gura
From:Alan
Gura
The
Hon. Cathy SeibelPage
TwoThere
are no othet" issues
in
this case. Plaintiffs
again
stress that this litigation does
not
challenge
the
state's
ability to license the carrying
of
handguns,
nor does
it
challenge any otherlicensing provision, nor
do
Plaintiffs question
the
state's
abiLity
to
regulate
the
time,
place,
andmanner
of
carrying
guns
pursuant
to
constitutional standards. Obviously,
the
state can license andregulate the carrying
of
guns in
the
interest
of
public safety, subject to any relevant constitutionalstandards. At least
some
of
New York's
laws in this regard are plainly constitutional and, in anyevent, nothing beyond the
"proper cause"
requirement is here
at
issue. Plaintiffs have complied
with
aU
other licensing provisi.ons.
The
Defendants
have
never contended otherwise.
* * *
New
York law
sets out certain requirements for individuals wishing to obtain a permit tocarry a handgun,
induding
criminal background checks
and
training requirements. Plaintiffs havesatisfied all
of
these requirements but one: they
cannot
show, to Defendant,>' satisfaction,
"proper
cause" for
the
issuance
of
a permit. ).few York Penal
Code
§
400.00(2)(f).
For
this
reason--and
this reason
alone-Defendants
eacase
and
Cohen
denied Plaintiffs Kachalsky
and
Nikolov,respe.ctively, permits to carry handguns for self-defense. Defendants Cacase and
Cohen
mayusually
be
judges,
but
that
is
not
aU
they are: in denying the permits, Defendants actcd pursuant
to
discreet authority designating
them
as administrative licensing officers,
on par with
otherdecidedly non-judicial government employees.
I
No
judicialfunction
is
questioned
in this lawsuit.
Cacase and
Cohenactedupon
the recommendation
of
Defendant Westchester
County's
police department.
On
information
and
belief, Defendant
County recommended
that the
pennits
be denied for lack
of
"proper
calise"
and for no other
rea">CHl,
e.g.,
failure
of
a criminalbackground check. Plaintiffs readily concede
and
admit
that
they
cannot
satisfy
the "proper
cause" requirement
as
authoritatively interpreted
by
New
York courts and applied against them.
MOTION
TO
ADD PARTIES
Tn
their
August
13,
2010
letter
to the
Court, Defendants
Cacase
and Cohen suggest thatthe case
might
be
dismissed because their actions preceded the
Supreme
Court's
June
28,
2010
decision in
McDonald
v.
City
of
Chicago,
130
S. Ct.
3020
(2010)/
which binds
them to obey
Second Amendment
standards. The unavoidable suggestion
is
that
Defendants
might
reach adifferent conclusion
with
respect to the
permit
applications today. However,
eacase
and
Cohen
have not
sought to
moot
this litigation
by
issuing Kachalsky
and
Nikolov their requested
pe11l1its.
1
"Loc
al
licensing officers [are] often local
judges,"
but
not
always.
Bach
v.
Pataki, 408 
F.3d 75,
79
&
n.7 (2d Cir.
2(05)
(citing N.Y.
Penal Law
§
265.00(10)).
Depending
on
which town, city,
or
county
an applicant resides in,
or
on theapplicant's
former employment, the licensing officer may also
be
a police commissioner, sheritT,
or
the state police superintendent. 2Undersigned counsel is counsel for the
McDonald
plaintiffs.
Case 7:10-cv-05413-CS Document 11 Filed 08/18/10 Page 2 of 5
 
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To:
+1-9143904278
Page
4
of
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2010-08-1617:35:45
(GMT)
Alan Gura
From:Alan
Gura
The
Hon.
Cathy
SeibelPage ThreeAlthough Plaintiffs
do not
believe this defense
has
any merit, there is a simple
way
to
avoid
the issue altogether. Plaintiffs' counsel are in
contact
with another local individual whose
permit
was
denied under Section
400.00(2)(t)
since
June 28, 2010 (because,
quite
obviously,
Defendants
and
other licensing officers are still applying this statutory provision). This individualcould immediately file a similar lawsuit,
whichwould then
be
consolidated with this action.
Themore
efficient course
of
conduct
would
be
to
allow
this
person
to
join
as party plaintiff, bringing
with him
an additional party defendant
who
acted as licensing officer in that case. Counselshould soon
know
whether
this course
of
action is viable.
"Rule
21.
F.R.
Civ.
P
grants the
court
broad discretion
to
permit
a
change
in
the parties atany stage
of
a litigation.
The court's
decision
to
permit
joinder
is based
on
whether the claims
of
the addi lionaJ plaintiffs al'Ose out
of
the
same
or
separate acts
or
occurrences;
whether
the
partyseeking
joinder
has unnecessarily delayed the proceedings; and whether thc nonmovant would be
pr~iudiced
by
the addition."
Four Star Capital Corp.
v.
Nynex Corp.,
183 P.R.D. 91,9&(S.D.N.Y. 1997) (citations and internal quotation marks omitted). Additionally, "[p]arties
may
move
pursuant to Rule 15(a), Fed. R. Civ. P., to
amend
their pleadings
to
add new
plainLiffs tothe litigation."
fnt'[ Union
of
Bricklayers
&
Allied
Craftsmen
v.
Hud'Jon Valley Dist. Council,
162
F.R.D.
17,24
(S.D.
N.Y. 1995)
(citations
omitted).
The
transaction here is
the
same: application
of
Section 400.00(2)(f). No delay hasoccurred; indeed, Defendants have yet
to
respond to
the
original complaint.
Nor
wi.ll
anyone
be
prejudiced
by
the
proposed amendment, since the scope
ofthe
legal claims will remain unaltered.
And
in
the
absence
of
amendment, the prospective
new
plaintiff may
well file his ovm, identical
litigation, as
he, too, may wish to have
his
constitutional rights considered.
CROSS-MOTION
FORSUMMARY
JUDGMENT
Aside from a variety
of
non-substantive
claims
to
be
addressed separately, Defendantsdispute that
the
Supreme
Court
has
in fact upheld the
tight
claimed
by
Plaintiffs.
The
standardpractice called for
by
the
Federal Rules
of
Civil
Procedure
for resolving this type
of
dispute iscross-dispositive motions.
That
is, after all,
how
District
qfColumbia
v.
Heller,
128
S.
Ct. 2783(2008) was decided
on
plaintiff's
motion
for
summary judgment.
Parker
v.
District
(~f
Columbia.
478
F.3d
370,401
(D.C. Cir. 2007),
o:ll'd
sub
nom
Heller,
128 S. Ct.
2783.'
In
Heller,
the
defendant
argued that
the Second
Amendment's
use
of
the term
"beararms"
was
understood to have an exclusively military idiomatic meaning, e.g., to soldier,
or
go
into
battle.
The Supreme Court
rejected
the
argument, holding.
"[a]l
the time
of
the
founding, as
now,
to
'bear'
meant to
'carry.'"
Heller,
128 S. Ct. at 2793 (citations omitted).
To
"bear anns,"as
used in
the
Second Amendment, is to "wear, bear,
or
carry
...
upon the person
or
in
the
clothing
or
in a pocket, for
the
purpose
...
of
being
anned
and
ready for offensive
or
defensive
'Undersigned
counsel
was
counsel for Heller.
Case 7:10-cv-05413-CS Document 11 Filed 08/18/10 Page 3 of 5

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