Citizens for a Safer Community v. City of Rochester

• Decision Date: 16 September 1994
• Citation: 164 Misc.2d 822,627 N.Y.S.2d 193
• Court: New York Supreme Court
• Parties: CITIZENS FOR A SAFER COMMUNITY; The Genesee Conservation League, Inc.; The Monroe County Conservation Council; The New York State Rifle & Pistol Association, Inc.; The Shooters Committee on Political Education, Inc. (Monroe County Chapter); Leadloader Arms, Inc. d/b/a American Sportsman; Frederick Calcagno; Steven C. DeMallie; and Kurt Thomann, Plaintiffs, v. CITY OF ROCHESTER, NEW YORK; The Council of the City of Rochester, New York; Thomas Ryan, as Mayor of the City of Rochester, New York; Louis Kash, as Corporation Counsel of the City of Rochester, New York; Roy Irving, as Chief of Police of Rochester, New York; John Curran; Maxine Childress Brown; Wade Norwood; Tim Mains; Benjamin Douglas; Lois Giess; Nancy Padilla; & Robert Stevenson, as members of the Council of the City of Rochester, New York, Defendants.

Page 193

627 N.Y.S.2d 193

164 Misc.2d 822

CITIZENS FOR A SAFER COMMUNITY; The Genesee Conservation League, Inc.; The Monroe County Conservation Council; The New York State Rifle & Pistol Association, Inc.; The Shooters Committee on Political Education, Inc. (Monroe County Chapter); Leadloader Arms, Inc. d/b/a American Sportsman; Frederick Calcagno; Steven C. DeMallie; and Kurt Thomann, Plaintiffs, v. CITY OF ROCHESTER, NEW YORK; The Council of the City of Rochester, New York; Thomas Ryan, as Mayor of the City of Rochester, New York; Louis Kash, as Corporation Counsel of the City of Rochester, New York; Roy Irving, as Chief of Police of Rochester, New York; John Curran; Maxine Childress Brown; Wade Norwood; Tim Mains; Benjamin Douglas; Lois Giess; Nancy Padilla; & Robert Stevenson as members of the Council of the City of Rochester, New York, Defendants.

Supreme Court, Monroe County.

Sept. 16, 1994.

[164 Misc.2d 826] Jeffrey Chamberlain, Albany, for plaintiffs.

Linda S. Kingsley, Corp. Counsel, Rochester, Jeffrey Eichner, Mun. Atty., New York City, for defendants.

CHARLES J. SIRAGUSA, Justice.

This matter comes before the Court on a motion for partial summary judgment brought by the plaintiffs and on a cross-motion for summary judgment brought by the defendants. The plaintiffs commenced this action with a complaint dated August 24, 1993, requesting that Ordinance # 93-62 be declared "invalid and illegal ...", and further, that the defendants be permanently enjoined from enforcing the law. Ordinance # 93-62 concerns the possession and sale of It is the determination of the Court that Ordinance # 93-62's regulation of semi-automatic rifles and shotguns, when possessed with ammunition feeding devices permitting them to be loaded with a combination of more than six rounds in the feeding device and chamber, is a lawful exercise of police power on the part of the City of Rochester. However, the Court finds that the Ordinance violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, insofar as it attempts to make criminal the sale or the possession of certain guns of some manufacturers while allowing the possession of essentially identical guns made by others. Also, the Court finds that the definition of air guns, as contained in the Ordinance, is vague and overbroad, and that the regulation of both air guns and imitation weapons is preempted by state and federal law. The remainder of the Ordinance is, in the Court's judgment, lawful.

semi-automatic rifles and shotguns, as well as the possession and use of air guns and imitation weapons.

The plaintiffs have alleged seventeen separate causes of action. However, many of these overlap, and are more efficiently analyzed in the categories enumerated below.

THE SECOND AMENDMENT

Central to the plaintiffs' contention that a municipality may not limit the rights of individuals to possess such guns as they choose is the reliance on the words of the Second Amendment of the United States Constitution: "A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Plaintiffs' reliance on this language to support their position is at odds with the weight of current legal authority. In United States v. Warin, 530 F.2d 103, 106 [6th Cir.1976], cert. den. 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976), the Sixth Circuit United States Court of Appeals stated "the [Supreme] Court did not hold ... that the Second Amendment is an absolute prohibition against all regulation of the manufacture, transfer and possession of any instrument capable of being used in military action". This language is perhaps most significant because it has been universally held that the Second Amendment guarantees no right to keep and bear a firearm if it does not have some reasonable relationship to the preservation or efficiency of a well regulated militia (see, e.g., Lewis v. United States, 445 U.S. 55, 65, n. 8, 100 S.Ct. 915, 920-21, 63 L.Ed.2d 198 [1980]. Moreover, as noted in the well reasoned decision of the Ohio Supreme Court in Arnold v. City of Cleveland, 67 Ohio St.3d 35, 39, 616 N.E.2d 163, 166 [1993], "the question of whether individuals have a fundamental right to bear arms has, seemingly, been decided in the negative under the Second Amendment to the United States Constitution" [citations omitted] (see also, Justice v. Elrod, 832 F.2d 1048 [7th Cir.1987].

The Second Circuit Court of Appeals has found "the right to possess a gun is clearly not a fundamental right" (United States v. Toner, 728 F.2d 115 at 128 [2d Cir.1984].

The Second Amendment limits only the power of Congress to infringe upon the right to keep and bear arms necessary for the militia. It creates no bar to State or local action. "We note that the Second Amendment has not yet been held applicable to the states. The amendment has not been absorbed either directly or through selective incorporation in the Fourteenth Amendment". (Arnold v. City of Cleveland, supra, 67 Ohio St.3d, at 41, 616 N.E.2d, at 168, citing Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 [1964]. (See also, Fresno Rifle and Pistol Club v. Van De Kamp, 965 F.2d 723 [9th Cir.1992]; Sklar v. Byrne, 727 F.2d 633 at 639 [7th Cir.1984]; Cases v. United States, 131 F.2d 916 [1st Cir.1942], cert. den'd 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 [1943]; United States v. Kozerski, 518 F.Supp. 1082, 1090 [D.N.H.1981], aff'd 740 F.2d 952 [1st Cir.1984], cert. den'd 469 U.S. 842, 105 S.Ct. 147, 83 L.Ed.2d 86 [1984]; United States v. Hale, 978 F.2d 1016 [8th Cir.1992], cert. den'd 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174 [1993]; People v. Morrill, 101 A.D.2d 927, 475 N.Y.S.2d 648 [3d Dept.1984]; Moore v. Gallup, 267 A.D. 64, 45 N.Y.S.2d 63 [3d Dept.1943].)

The Second Amendment does, of course, limit the power of Congress to enact legislation affecting the possession of certain types of weapons. The holding in United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206 [1939] found that Congress was prevented from banning guns which have "some reasonable relationship to the ... well regulated militia". As recently as Lewis v. United States, supra, the United States Supreme Court has recognized a need for this relationship between the actual weapon sought to be possessed and the militia service.

Congress is not limited, however, from regulating weapons merely because they may have some theoretical or hypothetical military use or merely because of some technical definition of the term "militia", which includes all or substantially all the people in the country:

"Since the Miller decision, no federal court has found any individual's possession of a military weapon to be 'reasonably related to a well regulated militia'. 'Technical' membership in a state militia [e.g., membership in an 'unorganized' state militia] or membership in a non-governmental military organization is not sufficient to satisfy the 'reasonable relationship' test". United States v. Hale, 978 F.2d 1016 at 1020 [8th Cir.1992], cert. den'd 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174, citing United States v. Oakes, 564 F.2d 384, 387 [10th Cir.1977], cert. den'd 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 [1978].

The plaintiffs' challenge to the regulation of certain semi-automatic weapons must fail for three additional reasons. First, all members of the military, as well as military uses of firearms, are exempted under the express terms of the Ordinance ( § 47-5[f]. Second, as plaintiffs have repeatedly argued, the guns subject to this law are not military weapons, but merely look like military weapons, since they are identical in action to sporting guns and are not capable of full automatic fire. Third, the plaintiffs have not alleged that they are members of the State or Federal National Guard, nor that the banned weapons are in use by these military groups. This Court is of the opinion, that at least since 1933, the State and Federal National Guard have been the organized, and therefore, the "well regulated militia" of the Second Amendment (see, Perpich v. Department of Defense, 496 U.S. 334, 110 S.Ct. 2418, 110 L.Ed.2d 312 [1990]; Maryland v. United States, 381 U.S. 41, 46, 85 S.Ct. 1293, 1297, 14 L.Ed.2d 205 [1965].

New York's Civil Rights Law

For many of the same reasons as stated above regarding the Second Amendment, the plaintiffs' claim that the Ordinance is in contravention of Civil Rights Law Article 2, § 4, must fail. The Courts of this State have concluded that the language of federal law interpreting the Second Amendment (which is identical in its language to Article 2, § 4 of the Civil Rights Law) should be used in interpreting the provisions of this state law. Therefore, as noted above, in order to fall within its protection, the plaintiffs bear the burden of establishing that the gun itself will be used for the purpose specified in Article 2, § 4, and that they have more than a mere technical association with an unorganized, reserve militia (United States v. Hale, 978 F.2d 1016, 1020 [8th Cir.1992], cert. den'd 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174; Guida v. Dier, 84 Misc.2d 110, 375 N.Y.S.2d 826 [Sup.Ct., Saratoga County, 1975], modified on other grounds 54 A.D.2d 86, 387 N.Y.S.2d 720 [3d Dept.1976]. The plaintiffs have failed to meet this burden.

Ban vs. Regulation

Plaintiffs have cited no authority for the proposition that the State could not regulate possession of even military arms. Rather, relying on People ex rel. Darling v. Warden, 154 A.D. 413, 422, 139 N.Y.S. 277 [1st Dept., 1913] and People v. Raso, 9 Misc.2d 739, 170 N.Y.S.2d 245 [Co.Ct., Kings County, 1958], the plaintiffs contend that the possession of these guns cannot be banned. The plaintiffs urge that the current Ordinance constitutes a ban. The plaintiffs base their claim upon the affidavit of Peter Burke. That affidavit (p 14) states that...