Friday, December 31, 2010

Matter of Chwick v Mulvey

Next, we want to thank SCOPE, the Freeport Junior Club, SAFE, and SASI for their strong support on this matter
This ruling strengthens the NYS Preemption Laws and sends a strong message to the counties. It is a very good win for licensees, and it does begin to open doors on other suits.


It is a stepping stone!
Though sometime in coming, all four Appellate Division, Second Department,
Judges concur that NY PL 256 & 400 ARE the "comprehensive and detailed regulatory language and scheme...which demonstrates the Legislature's intent to
preempt the field of firearm regulation," and they find that it preempts the[Nassau County] amended ordinance.

First, the Appellants thank Mr. Robert Firriolo, Esq., for his concise brief and brilliant oral argument. Without his masterful touch, we may not have gotten the ruling we received.

Next, we want to thank SCOPE, the Freeport Junior Club, SAFE, and SASI for their strong support on this matter

This ruling strengthens the NYS Preemption Laws and sends a strong message to the counties. It is a very good win for licensees, and it does begin to open doors on other suits. It is a stepping stone!

http://www.nycourts.gov/reporter/3dseries/2010/2010_09911.htm#1FN

Here is part of the claim~

Matter of Chwick v Mulvey
2010 NY Slip Op 09911
Decided on December 28, 2010
Appellate Division, Second Department
Belen, J., J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law §431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 28, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
FRED T. SANTUCCI
ARIEL E. BELEN
CHERYL E. CHAMBERS, JJ.
2009-01468
(Index No. 13564/08)

[*1]In the Matter of Alan J. Chwick, et al., appellants, et al.,petitioner/plaintiff,v Lawrence W. Mulvey, etc., et al., respondents.

APPEAL by the petitioners/plaintiffs Alan J. Chwick and Thomas G. Fess in a hybrid proceeding pursuant to CPLR article 78 to enjoin the enforcement of
Nassau County Ordinance No. 5-2008, as amended by Nassau County Ordinance 9-2008, and action for a judgment declaring that the subject ordinance is preempted by State law and unconstitutional, as limited by their representations
at oral argument, from so much of a judgment of the Supreme Court (Kenneth A.

Davis, J.), dated December 18, 2008, and entered in Nassau County, as denied the petition and dismissed the proceeding.
Duane Morris, LLP, New York, N.Y. (Robert P. Firriolo of
counsel), for appellants.
John Ciampoli, County Attorney, Mineola, N.Y. (Lisa B.
Ross and Dennis J. Saffran of counsel), for respondents.

OPINION & ORDER BELEN, J.This Court is called upon to resolve two issues. The first is whether a Nassau County ordinance that bans "deceptively colored" handguns is preempted by State law. The second is whether the ordinance violates the appellants' rights under New York's Civil Rights Law. We need to consider the second question only
if the first question is answered in the negative.
The principal issue on appeal is whether a Nassau County ordinance (County of Nassau, Miscellaneous Laws, Title 69, Local Law, 5-2008) (hereinafter the ordinance), which bans the possession of "deceptively colored" firearms, is
preempted by Penal Law § 400.00. New York State bans the possession of all firearms but exempts individuals who obtain a license for their firearms (see

Penal Law §§ 265.01, 265.03, 265.20[a][3]). Furthermore, State law enables firearms license holders "to carry or possess a pistol or revolver" and provides that any license "shall be effective throughout the state," subject to certain limitations (Penal Law § 400.00[6]). The appellants each allege that they hold valid licenses for their firearms and allege that certain of their firearms
violate the ordinance because they fall within the definition of "deceptively colored" handguns. The appellants contend that Penal Law § 400.00 preempts the ordinance, and that the ordinance violates the protections of the New York Civil Rights Law (see Civil Rights Law, art 2, § 4). The respondents, Lawrence W.Mulvey, the Nassau County Police Department, and the County of Nassau(hereinafter collectively the County) argue that the ordinance is not preempted because it merely affects the possession of a firearm while the State Law affects firearm licensing. The County further asserts that the ordinance does not violate the petitioners' rights under article 2, section 4 of the New York Civil Rights Law.


In May 2008 Nassau County enacted Local Law No. 5-2008, the "Deceptively Colored Handgun Law" (see County of Nassau, Miscellaneous Laws, Title 69 § 1). The ordinance made it a [*2]misdemeanor to possess a handgun that has a substantial
amount of its exterior surface plated with gold or colored anything "other than black, grey, silver, steel, nickel, or army green" (County of Nassau,Miscellaneous Laws, Title 69 § 3[b]; §§ 4, 5). Violators were subject to a fine of up to one thousand dollars, or imprisonment for no more than one year, or both (see County of Nassau, Miscellaneous Laws, Title 69 § 5). The purpose of the ordinance was to protect the public and law enforcement officers from the dangers associated with mistaking a real gun for a toy because it is deceptively colored (see County of Nassau, Miscellaneous Laws, Title 69 § 2).
In July 2008 the petitioners, proceeding pro se, commenced the instant hybrid proceeding pursuant to CPLR article 78 to enjoin enforcement of the ordinance and action for a judgment declaring that the ordinance is preempted by State law and unconstitutional. The appellant Alan J. Chwick alleged that he is a Nassau County resident who owns a pink Kel-Tec Model 32 pistol and a "browned"[FN1]
model 1930 J.P. Sauer & Sohn pistol. The petitioner Edward L. Botsch alleged that he also is a Nassau County resident, and that he owns a gold plated Sigarms pistol, Model P-226, which commemorates the 37 Port Authority Police Officers killed on September 11, 2001. The appellant Thomas G. Fess alleged that he is a resident of Monroe County but frequently visits Nassau County for shooting competitions and owns a camouflaged [FN2] Glock Model 20 pistol. The appellants contend that all of the above-described weapons are properly licensed under State law, but in violation of the ordinance.[FN3]--

Alan Chwick, Editor
Nassau County News Flash
5 Brunella Street
Long Island, NY 11520
516-903-1959
Editor@...
URL: http://www.incnf.org/
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