Saturday, November 8, 2008

Lawsuit Derails Nassau Handgun Ban


UPDATE: Lawsuit Derails Nassau Handgun Ban

Mineola, NY – November 07, 2008 – The Nassau County local law banning the possession of handguns mislabeled “deceptively colored” has been put on hold indefinitely pending the outcome of a legal challenge by gun-rights activists.

In June 2008, Nassau passed Local Law #5, criminalizing the possession and sale of "deceptively colored handguns” as a supposed danger to law enforcement. The law bans all handguns except for those that are "black, grey, silver, steel, nickel or army green." It does not grandfather currently owned guns and mandates that gun owners surrender all banned guns for destruction without any compensation, and with no opportunity to sell them outside the county.

Three New York State pistol licensees—Alan Chwick of Freeport, Edward Botsch of Franklin Square, and Thomas Fess of Rochester—instituted an Article 78 proceeding on July 23rd in Nassau Supreme Court (Index #: 013564/2008) to challenge the laws. The proceeding was filed pro se, with the assistance of a New York gun-rights activist and attorney.

The petition seeks a ruling that Nassau’s local law is invalid because it is “preempted” by New York State’s extensive gun control laws, which already ban “disguised guns.” Under the doctrine of preemption, localities may not pass laws in areas already regulated by state law, unless state law permits such local laws. The suit also seeks to overturn the law because it is vague and ambiguous, lacks standards for consistent enforcement, and violates the right to keep and bear arms under both the Second Amendment to the United States Constitution and a similar provision of New York State Civil Rights Laws.

The proceeding was brought on the day the law was to go into effect, and sought a temporary restraining order and an injunction to stay enforcement of the law. That led to Nassau to enter into a binding stipulation not to enforce the law unless the court rules against the petitioners. Further, the Nassau County legislature reacted to the proceeding by amending the law to remove the prohibitions against gold plated, blued, and brown handguns.

The matter has been fully briefed and oral argument has been requested. The petitioners have retained attorney Robert Firriolo, a litigation partner in the New York office of Duane Morris LLP.

All documents pertaining to this proceeding have been made public, and are posted at

The local law challenged affects not only Nassau pistol licensees, but all New York gun owners and visitors to Nassau County. Anybody found with a banned handgun is subject to arrest and prosecution. The law is particularly hazardous to the many shooters who come into, or pass through, Nassau to participate in shooting events and have no way of knowing about this law. The suit was brought to protect the interests of all of law-abiding gun owners and dealers, most of whom are still unaware that many ordinary, popular and valuable handguns are banned. The law imposes a penalty of one year in jail and a $1000 fine.

Recognizing the importance of challenging this onerous law, the Shooters’ Committee On Political Education (SCOPE), of Tonawanda, N.Y., responded immediately to petitioners’ request for support from their Legal Defense Fund.

The petitioners are asking for donations to help fight this ridiculous and dangerous local law, which holds dire implications for New York’s gun owners if it is lost. A victory in this case may well be the springboard for challenging other New York gun control laws.
Please donate whatever you can to the SCOPE Legal Defense Fund.
Send donations to:
SCOPE, PO Box 12711, Rochester, NY 14612.

Please make checks payable to SCOPE, Inc., and note in the memo area of your check "Legal Defense Fund-Chwick v. Mulvey." All donations are greatly appreciated.

The petitioners continue to express their gratitude to SCOPE, the Freeport R&R Association Junior Club, and all those that have supported them.

For more information, contact:

Nassau County News Flash
Alan Chwick, Editor

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