The Lawsuit has ended.
I did not win everything that I wanted but I did win more that I thought that I would win.
The Sheriff's Department will accept Safety Class from all instructors and I get to take the Sheriff's Department's "class" and be on their "approved and recommended list." I won some other small points but I am still waiting for the lawyers to draw up the final agreement.
THIS PAGE WILL HAVE INFORMATION ABOUT THE LAWSUIT AND REFERENCES THAT IT IS BASED ON.
It will be added to as time allows so please check back if you are interested.
After Orange County
replies to my lawsuit I will post all papers if my lawyers approve.
| I have been forced to bring a lawsuit because NY Penal Law 265 and 400 do not give any government entity the authority to require a safety class, to certify instructors, to require that all instructors be NRA Instructors, to require that all instructors give only the Sheriff’s Department class and will not accept NRA classes and to only allow instructors to be from Orange, Sullivan and Ulster Counties, and to limit the total number of instructors to fifty.
Remember that the only reason that I was not put on the "Approved Instructor" list was because I objected to the program. The Sheriff's Department also violated my rights to due process and the equal protection of the laws as guaranteed by the United States and New York State Constitutions.
At a private meeting that I had with the Undersheriff he told me that he had the authority to take over the whole process and only accept certificates from the Sheriff’s Department class. He also said that he wanted his program to be adapted across the state.
I will be working on a page on my website over the next weeks to put all of the information on line for those of you who want to see the details and sections of NY law.
I am paying for this lawsuit by myself so far and I have spent several thousand dollars and expect to spend several thousand more.
As Undersheriff Ken Jones testified to the Orange County Legislative Safety Committee on November 20th, 2014
when questioned about the proposed program; from the meeting minutes:
“Undersheriff Jones responded that in a very technical sense, there is no actual calling for the training at all in the law.”
As is the case with most lawsuits the dates that things are supposed to happen have changed. The layer for Orange County filed papers to have the case dismissed for several reasons; I did not have standing and I should have sued the Judges were the main points. The lawyers have sent papers back and forth and so now the final date for Orange County to reply is Jan. 14th, 2016. My lawyers have a week to look it over and reply if they feel like they have to and the Judge gets the papers on Jan. 21st. At some point the Judge will rule on the IF THE CASE CAN GO FORWARD. Only then will the case really begin.
BASIS OF THE LAWSUIT
The basis of the lawsuit is that NY law does not contain any provision that gives any branch of local government the authority to:
1. require any type of class BEFORE a handgun license is issued,
Therefore the Sheriff's Department does not have the authority:
to create a list of instructors,
to certify instructors,
4. to require that they are NRA instructors,
that they live in specific locations,
that they only teach a mandated class and issue a specific certification (Conceded on June 15, 2015, see Ken Jones email below)
and that any class with more than 3 students must be registered so that the Sheriff’s Department can audit the class.
The Sheriff's Department has additional rules and regulations but because nothing is written down I really cannot say what they are. These are some of the rules that I have been told that they have.
A. Class can only be taught by approved instructors. If an unapproved instructor helps you, that is cause for you to be taken off the list of instructors.
B. Instructors must use the Sheriff's Department's Power Point presentation and must give each student a printed copy or CD with the Power Point.
My lawsuit is based in part on an Informal Opinion from the NY Attorney General from
September 18, 1974. Suffolk County wanted to pass a local law requiring all pistol license applicants to take a safety class. The AG said that they did not have the legal authority to pass a local law. The ruling in part:
|NEW YORK STATE CONSTITUTION, Article IX, § 2(c) and § 3(d)(1); MUNICIPAL HOME RULE LAW, §§ 2(5) and 10(1); and PENAL LAW, § 400.00(1), (2), (4)AND(6).
The County of Suffolk is not authorized to enact a local law requiring the applicant for a pistol license to satisfactorily complete a weapon safety course prior to the issuance of such license nor does the licensing official who issues such license have the authority to institute a rule or regulation requiring the completion of such a safety course prior to its issuance.
CLICK BELOW FOR THE WHOLE OPINION
|"... But a local government's police power is not absolute. When the State has created a comprehensive and detailed regulatory scheme with regard to the subject matter that the local law attempts to regulate, the local interest must yield to that of the State in regulating that field. ..."
NRA-ILA POSITION ON REQUIRING A
HANDGUN SAFETY CLASS- IN PART:
From: ILA-Contact [mailto:ILA-Contact@nrahq.org]
Sent: Wednesday, September 10, 2014 11:22 AM
Subject: RE: NRA position on requiring Handgun Safety classes
Thank you for contacting NRA-ILA.
Your e-mail raises some interesting issues. Based on the limited information it contains, it would appear your concern, in essence, is the legal authority of the sheriff to regulate the handgun safety class and content. The NRA position on training or training costs has no bearing on this. In practice, though, the NRA Training Department does not dictate what fees, if any, an instructor should charge to conduct a course, and because owning and using a firearm is a constitutionally protected right, mandatory training and the associated costs should not be required at the Federal, State or local level. ... (EMPHASIS ADDED)
KEN JONES CAVES ON CERTIFICATES
In what can only be described as a validation of my lawsuit, Ken Jones has conceded one of the minor points of my lawsuit. By accepting certificates from all instructors and from all classes Undersheriff Ken Jones has proven my point that his decisions are arbitrary and capricious and an abuse of discretion.
Date: Mon, Jun 15, 2015 at 4:22 PM
Subject: Fwd: Instructors List
To All Current Instructors,
Due to certain developments this Office will, going forward, accept training certificates from instructors in addition to those on the approved and recommended list. Accordingly, you are no longer required to be on the list. Any Instructor that wishes to have themselves removed from the list please advise by return email.
For those that choose to remain on the list please be reminded that approval to be on the list should not be implied to the public that you, as an instructor, are affiliated in any way with the Sheriff’s Office other than having been approved to teach a prescribed syllabus that we have provided. To remove any confusion we have removed any reference to “certification” and replaced it with “approved”.
Everything else seems to be going well except that some Instructors are notifying our Office about their classes the day of or shortly after giving them. Please be reminded that timely notification to this Office of classes that have 3 or more students is a requirement and please be advised that timely is to be interpreted as at least 48 hours in advance.
Any questions? You may contact me directly at (845) 291-7693
MID-HUDSON NEWS COVERS
UNDERSHERIFF JONES CAVE ON CERTIFICATES
GOSHEN – The Orange County Sheriff’s office is changing its rules concerning who can provide instruction to persons applying for pistol permits.
“Due to certain developments this office will, going forward, accept training certificates from instructors in addition to those on the approved and recommended list,” Undersheriff Kenneth Jones wrote in a letter to instructors.
He wrote that being approved to be on the instructors’ list “should not be implied to the public that you, as an instructor, are affiliated in any way with the sheriff’s office other than having been approved to teach a prescribed syllabus that we have provided.”
Jones said the change is “a firm, upbeat and solid way to protect the consumer when they want training.”
Several weeks ago, NRA-approved instructor, filed a lawsuit against the sheriff’s office challenging its new rules. That suit remains active.
“This should solve the issue,” Jones said.
(MY COMMENT: Jones made this change on his own and the change does not solve the issue.)
ORANGE COUNTY ENDS REQUIREMENT TO BUY A HANDGUN BEFORE YOU GET YOUR HANDGUN LICENSE.
March 4, 2016
TO: Media Outlets
FROM: Captain Scott K. Hamill, Public Information Officer
DATE: March 4, 2016
Sheriff Carl E. DuBois and County Clerk Annie Rabbitt, in conjunction with the pistol permit licensing authority for Orange County, are pleased to announce a change to requirements for gun permit applicants. The purchase of a handgun prior to submitting an application for a gun permit is no longer required, effective immediately.
Formerly, an applicant for a handgun permit was required to tentatively purchase a handgun and then wait for the pistol permit process to conclude before taking possession. Most merchants required the applicants to make substantial down payments and some charged holding fees if the process was not timely for the handguns that were to be purchased. Some applicants, if they were denied a pistol permit, received only store credit instead of a full refund. Finally, merchants were dealing with substantial on-hand stock being held with partial payment for extended periods of time that would otherwise be available for sale.
Sheriff DuBois commented, "This is a common sense approach to the gun permit process. An applicant receives approval for a gun permit and then goes to a merchant to purchase one. I continue to support the right of law abiding citizens to obtain gun permits and I strongly encourage all such gun permit holders to become proficient with the handgun they select by seeking appropriate training." The Sheriff's Office launched a training program for gun permit applicants and gun permit holders in 2014.
County Clerk Annie Rabbitt commented, "Since taking Office I have worked hard to make it easier for law abiding citizens to obtain gun permits. Working with the Sheriff's Office and the Judges, we are taking another step to make it a more simple process."
Finally after all of these years. The requirement that you put a deposit on a handgun before they would give you a license has always been a complaint that most pistol applicants have had. There is no legal requirement that you have a handgun to put on your license and many counties don't require it. Some counties let you add the handgun to your license when you go to pick up your license. It does save you $5 per gun if you have the gun(s) on your initial license. If you add a gun using an AMENDMENT it cost you $5 per gun.
Now if they would next drop the requirement that people who co-registering handguns on an initial license notarized the permission letter from the handgun owner. I don’t mind the letter but it is stupid to think that someone would forge a document to have handguns added to their handgun license because if the forger was in possession of the guns that they forged the document to have added to their license, the forger would be in possession of stolen guns. Look at it this way; let’s say you get a copy of my handgun license and forge a document saying that I have given you permission to have two of my handguns on your license. At some point you steal the guns from me. When I discover that the guns are missing I report them stolen. The police do a check and discover that you have my handguns on your license. The police call me up and ask if I know if you have my handguns. I say that I never gave you permission to have my handguns. The police then arrest you for forgery, submitting false documents, possession of stolen property, … It is not a requirement that the letter be notarized AFTER you get your license.
The Sheriff’s Department could also stop wasting time going to every applicant’s house to see if they live there. I can’t think of a more ridiculous waste of time. I can see it for someone who just moved to Orange County two months ago but they are the police and can check and see the address on your driver’s license, your insurance, they can look up on the Orange County website where everyone who owns a home lives and how long they have lived there, they can also get a copy of the list of everyone who votes and see that that matches. Only in rare instances can I see them justifying spending the time to visit your house. If they don’t match up then I can see them asking questions.
FOOTNOTE: I was the person years ago who got the Sheriff’s Department to change from mailing out all of the reference questionnaires and instead have the applicant provide them. On that note the reference questionnaire letters are a made up requirement and serve no purpose other than more paperwork. NY law only requires that your references sign the application. That is where they are signing on you “good moral character.”