Bach v. Pataki

• Decision Date: 23 September 2003
• Docket Number: No. 02-CV-1500.,02-CV-1500.
• Citation: 289 F.Supp.2d 217
• Parties: David D. BACH, Plaintiff, v. George E. PATAKI, in his official capacity as Governor of New York; Eliot Spitzer, in his official capacity as Attorney General of New York; James W. McMahon, in his official capacity as Superintendent, New York State Police; J. Richard Bockelmann, in his official capacity as Ulster County Sheriff, Defendants.
• Court: U.S. District Court — Northern District of New York

289 F.Supp.2d 217

David D. BACH, Plaintiff, v. George E. PATAKI, in his official capacity as Governor of New York; Eliot Spitzer, in his official capacity as Attorney General of New York; James W. McMahon, in his official capacity as Superintendent, New York State Police; J. Richard Bockelmann, in his official capacity as Ulster County Sheriff, Defendants.

No. 02-CV-1500.

United States District Court, N.D. New York.

September 23, 2003.

COPYRIGHT MATERIAL OMITTED

David D. Bach, Esq., Virginia Beach, VA, Plaintiff, Pro Se.

Hon. Eliot Spitzer, Attorney General of the State of New York, Gerald J. Rock, Esq., Assistant Attorney General, Albany, NY, for Defendants Pataki, Spitzer and McMahon.

Office of Ulster County Attorney, Francis T. Murray, Esq., of counsel, Kingston, NY, for Defendant Bockelmann.

MEMORANDUM-DECISION AND ORDER

MORDUE, District Judge.

INTRODUCTION

In this action for declaratory and permanent injunctive relief under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343(a)(3),(4), plaintiff moves for a preliminary injunction, permanent injunction and declaratory judgment pending final judgment (Dkt. No. 2). He moves separately to consolidate the trial on the merits with a hearing on the application for a preliminary injunction (Dkt. No. 7). Defendants George E. Pataki, in his official capacity as Governor of New York, Eliot Spitzer, in his official capacity as Attorney General of New York, and James W. McMahon, in his official capacity as Superintendent, New York State Police (collectively "state defendants") cross-move to dismiss the complaint (Dkt. No 10). For reasons set forth herein, the Court denies plaintiff's motions and grants the state defendants' motion to dismiss the complaint against them.

Plaintiff, a nonresident of New York, challenges New York's statutory scheme pertaining to the issuance of permits to carry or possess concealed firearms in the state. Under the scheme, most people without significant contacts to New York are not eligible for such permits and thus are prevented from legally carrying such weapons while traveling in New York. In his initial pleading, denominated "Plaintiff's Application for Preliminary and Permanent Injunction, and Declaratory Relief,"¹ plaintiff, a domiciliary of the state of Virginia, summarizes his claim as follows:

This Application seeks declaratory and injunctive relief to protect the substantive constitutional rights of ordinary, law-abiding, nonresident citizens of sister States to keep and bear otherwise lawful firearms while temporarily residing, visiting and traveling within the State of New York; and to protect these citizens from unlawful discrimination and criminal prosecution under State law. Bach seeks a declaratory judgment that New York's licensing provisions (as codified in N.Y. Penal Law §§ 265.00 and 400.00, et seq.), facially, and as applied, violate the fundamental personal rights, privileges and immunities of ordinary, law-abiding, nonresident citizens to keep and bear arms, and travel interstate under the Second and Fourteenth Amendments, and Article IV of the United States Constitution. In addition, Bach requests the Court to grant a preliminary injunctive order pending a determination of the merits to prevent any further irreparable harm to Bach and other ordinary nonresident citizens whose constitutional rights continue to be infringed under New York law.

In his affidavit in support of the claim, plaintiff avers:

1. I am a citizen of the United States and the State of Virginia where I maintain my domicile. I possess a permit to carry a concealed handgun in accordance with Virginia law and own a 9mm pistol (model P-85, manufactured by Sturm, Ruger and Company of Southport, Connecticut) substantially similar to the type used by the United States Armed Forces, National Guard, and law enforcement.

2. I am a Commissioned Officer in the United States Naval Reserve with approximately twenty-five years of service, including twelve years of active duty service. Due to my military service with the Navy's Underwater Demolition and SEAL Teams, I have extensive experience in handling and providing instruction in different types of small arms. I currently hold a Department of Defense Top Secret Security Clearance and have never been convicted of a felony, firearms related crime, or any other serious offense.

3. I am a graduate from an accredited law school and have been a licensed attorney in good standing from the Commonwealth of Pennsylvania since 1985. During the past seventeen years, I have been employed by the Office of the General Counsel, Department of the Navy as an attorney, except for a period of approximately four-and-a-half years when I returned to active duty as a Navy SEAL both during and after Operation DESERT STORM.

4. I have been married for seventeen years and have three young children. Although born in New Jersey, I grew up in the Town of Saugerties, County of Ulster, New York where my parents continue to reside.

5. My parents own a small farm and my family and I periodically visit them for several days at a time. During the ten-hour drive between Virginia and Upstate New York, my family and I travel on dimly lit rural roads, busy streets and highways some of which are in densely populated areas that have extremely high crime rates. Should our vehicle breakdown in one of these areas, or should we have an accident, we would be vulnerable to criminal attack because we are required to travel unarmed. In addition, because of my occupation within the Department of Defense and Naval Special Warfare, I believe my family and I are at greater risk of being targeted by those seek to carry out symbolic acts of terror. Therefore, I wish to possess and carry my personal firearm to protect my family and myself from acts of criminal violence in accordance with New York State law during our journey and while temporarily visiting within the State's jurisdiction.

6. Law enforcement personnel are relatively few and far between and have neither a legal duty to respond to an emergency 911 call nor protect a citizen or family from a violent criminal acts. Despite the exceptional efforts of law enforcement, they cannot be everywhere at all times as evidenced by the tens of thousands of ordinary, law-abiding American citizens who have been, and continue to be brutally attacked, terrorized and murdered by sadistic criminals in New York State.

7. Following the attacks on the World Trade Center in New York, the Pentagon in Virginia, and a commercial airliner in Pennsylvania, the President and Attorney General of the United States, and Director of Homeland Security repeatedly warned American citizens of impending terrorist attacks, including the possible employment of weapons of mass destruction. Additionally, they have notified the public of the vital need for every citizen to be watchful and vigilant as the Nation remains on heightened alert indefinitely. Because the United States is in a state of war at home and abroad, and thousands of citizens have been slaughtered by foreign enemies in New York, Virginia and Pennsylvania, I continue to maintain a heightened concern for the safety and welfare of my family, particularly when traveling interstate through unfamiliar territory.

8. As a parent, I bear ultimate responsibility for the safety, welfare, protection and defense of my children. But because New York State law prohibits me from obtaining the required license to possess and carry an operable pistol or revolver, I am unable to effectively protect and defend my family from acts of criminal violence while temporarily visiting and traveling within the State. Because attempting to use a cumbersome long-gun as a personal defense weapon is an ineffective alternative to a handgun, particularly in an automobile, I am deprived of the only rational and effective means I have to repel an attack from a violent criminal predator.

9. Due to my military training, I am aware that law enforcement routinely chooses handguns as its primary weapon of protection. When used properly, a handgun offers an extremely effective means of personal protection in close combat situations, such as stopping violent criminals.

10. Although the State of New York has deprived me of the rational and effective means to protect and defend my family, the State would be immune from liability should my family or I be harmed by criminals, even if the State were to be found grossly negligent.

11. Because of my concern for my family's protection and safety, I mailed written inquiries to Eliot Spitzer, New York State Attorney General; Sergeant James Sherman, New York State Police, Pistol Permit Bureau; and J. Richard Bockelmann, Ulster County Sheriff on November 14, 2001. My purpose in contacting these government officials was to confirm my understanding of New York law whereby an ordinary nonresident from another State who does not meet one of the narrowly prescribed exemptions under N.Y. Penal Law § 265.20, is ineligible to obtain a New York firearms license, and thus submission of a firearms license application and nonrefundable fee would be a futile act.

12. By letter of November 27, 2001, Peter A. Drago, Director of Public Information and Correspondence, State of New York, Office of the Attorney General referred me to the New York State Police in Albany as the "appropriate authority to contact with your request."

13. By letter of December 5, 2001, Sergeant James Sherman of the New York State Police, Pistol Bureau, confirmed that "no exemption exists which would enable you to possess a handgun in New York State." Further, "[t]here are no provisions for the issuance of a carry permit, temporary or otherwise, to anyone not a permanent resident of New York State nor does New York State recognize pistol permits issued by other states." Finally, he warned that anyone "found to be in possession of a pistol or revolver that is not registered on a New York State Pistol...