Weinstein vs Nassau County, NY

A case involving confiscation of firearms.

Didn't finish it all ... but WOW!!!!

... will continue reading later...

Briefly, the plaintiff and his son argued about use of a washing machine, with no violence or threat of violence. Wife called police.

Police arrive, find everything peacefully resolved, demand plaintiff surrender all his firearms. Plaintiff refuses.

Police return several ours later, take possession of all plaintiff's firearms.

(Plaintiff was apparently a first responder in the 9/11 incident).

Police refuse to return firearms, plaintiff sues on basis of 1st, 2nd, 5th, and 14th amendment grounds.

So yeah, wow.

The whole thing is only 14 pages, go on and read it. Amazing. They're suing for millions. Hope they win.

Bob, Thank you for the summery.

All, There was a similar case many years ago before the NY-SAFE act was passed.

http://volokh.com/2011/03/01/court-...prompt-hearing-as-to-return-of-citizens-guns/

http://scopeny.org/ARCHIVES/Decision22811.pdf

By what Authority does the govt have the power to just take your property?? at what point does a property owner have the right to flat out say NO!

CrueChief said:

By what Authority does the govt have the power to just take your property?? at what point does a property owner have the right to flat out say NO!

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That's what the court is charged with determining, I suppose. The point where you can refuse a policeman's order is that point where you are ready to accept the consequences of your decision.

On the whole, I think the plaintiff acted responsibly; whether the officials involved fulfilled their responsibility will be determined by the courts. Whatever the outcome, it will probably be less unpleasant than the consequences of resisting a group of men armed with firearms and badges of authority. One can only hope it will be an outcome that aligns well with the supreme law of the land.

"Officer, do you have a warrant to seize my property? No? (4th Amendment violation number 1). Well, please leave immediately. No? (Fourth Amendment violation 2). Are you arresting me? Yes? (Fourth Amendment violation number 3) On what charge? (Due Process violation). I demand an opportunity to call my lawyer immediately and until then, I invoke my right to refrain from further comment." (Invoking 5th and 6th Amendment privileges). I would never resist. I would just pile up the constitutional violations, one after another, and file the 1983 suit the next day. It just takes balls.

esqappellate said:

"Officer, do you have a warrant to seize my property? No? (4th Amendment violation number 1). Well, please leave immediately. No? (Fourth Amendment violation 2). Are you arresting me? Yes? (Fourth Amendment violation number 3) On what charge? (Due Process violation). I demand an opportunity to call my lawyer immediately and until then, I invoke my right to refrain from further comment." (Invoking 5th and 6th Amendment privileges). I would never resist. I would just pile up the constitutional violations, one after another, and file the 1983 suit the next day. It just takes balls.

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Reminds me of an old friend who had canned statements printed on the back of his business cards for such occasions.

This happens to dozens of people every year in Nassau and Suffolk.
I'm sure people's rights are being violated but this has been going on for the last 20+ years.

NY is a May issue state and that license is needed just to posses a handgun in the home. Once they cancel your license they then claim you are in possession of illegal guns. Here is some language from their handbook.


LICENSE SUSPENSION, REVOCATION OR DOWNGRADE
Pursuant to NYSPL § 400.00(11), a pistol license issued by the Nassau County Police Department may be revoked and cancelled by the Commissioner of Police at any time. Furthermore, a person whose pistol license is suspended or revoked for any reason is required to surrender their license and firearms, including their rifles and shotguns, to the NCPD Pistol License Section. In the event a license is downgraded, a licensee must comply with any and all rules and regulations applicable to their new pistol license status.

1. Automatic Revocation
A pistol license shall be automatically revoked in the following circumstances:
a. In the event a licensee is named as the respondent in a permanent Order of Protection;
b. Upon the conviction of a licensee anywhere of a felony or serious offense;
c. Upon the conviction of a licensee of a misdemeanor crime of domestic violence; or
d. The licensee is deemed not mentally fit by the NCPD Pistol License Section.
2. Grounds For Suspension And/Or Revocation
A pistol license may be suspended and/or revoked based upon evidence of any disqualification pursuant to this Handbook or applicable law. The policy of the Nassau County Police Department is to immediately suspend the pistol license of any licensee who violates any of the terms and conditions of the license or this Handbook and commence an investigation to determine whether or not the license should be revoked. Violations of the terms and conditions of the pistol license include, but are not limited to:
a. Possession of a loaded firearm at the NCPD Pistol License Section located at Nassau County Police Headquarters;
b. Arrest, indictment, issuance of a field appearance ticket, being named as respondent in a proceeding for the issuance of an Order of Protection or a Temporary Order of Protection, or any conviction, other than a traffic summons, in any jurisdiction;
c. The licensee is the subject of a Court Order restraining him or her from harassing, stalking, threatening or engaging in any acts of physical violence directed towards another person;
d. Report of any domestic situation involving a licensee where violence is threatened or alleged to have occurred or the existence of a volatile domestic situation;
e. Improper use of a firearm;
f. Failure to report any of the following to the Pistol License Section within three (3) business days :
-any arrest, indictment or conviction in any jurisdiction (except non-criminal traffic infractions);
-any discharge of a firearm by a licensee or involving one of licensee’s firearms (other than for lawful target shooting or hunting);
-a lost, stolen or mutilated pistol license;
-a lost or stolen firearm;
-any domestic dispute/disturbance involving a licensee and also involving
police presence; or
-the issuance of an Order of Protection or Temporary Order of Protection involving a licensee.
g. Failure to properly safeguard a firearm;
h. Carrying a firearm outside of license classification;
i. Mental illness of a licensee or admission of a licensee to any hospital or institution, public or private, for mental illness;
j. Any medical or mental condition which impairs the licensee’s ability to own, carry or safeguard a firearm;
k. Admission of licensee to any psychiatric institution, sanitarium and/or the receipt of psychiatric treatment;
l. Possession by licensee of any firearm(s) loaded with armor piercing ammunition (except when on a pistol range authorized by local law for the purpose of target shooting);
m. The illegal use or possession by a licensee of a controlled substance as defined in Section 220.00 of the NYSPL;
n. Alcoholism or drug abuse by the licensee;
o. The presence or occurrence of a disability or condition that may affect the licensee’s handling of a firearm, including but not limited to epilepsy, diabetes, fainting spells, blackouts, temporary loss of memory or nervous disorder;
p. A licensee carrying a handgun in a location prohibited by local, state or federal law;
Note: This prohibition does not apply to licensees employed at the prohibited location if the carrying of a firearm at that location is a condition of such employment.
q. Going through or attempting to go through a weapons screening area at an airport terminal, or board or attempt to board an aircraft operated by an air carrier in air transportation, when the licensee has on or about their person or property, or the property of another, a firearm which is, or could be, accessible beyond the screening area or on board an aircraft;
Note: This prohibition does not apply to licensees employed at the airport
or by an airline and the carrying of a firearm is a condition of such employment.
r. A licensee enters any court facility while having a firearm on or about their person;
Note: This prohibition does not apply to licensees employed at the court and/or when the carrying of the firearm is authorized by the District Administrative Judge for Nassau County.
s. A licensee enters a federal facility while having a firearm on or about their person;
Note: This includes property of the U.S. Postal Service and Federal Courts (18 U.S.C. § 930 - Possession of Firearms and Dangerous Weapons In Federal Facilities). This prohibition does not apply to licensees that are exempt as per § 930 (c)(1)(2)(3).
t. Incidents, regardless of whether an arrest was made or a case was prosecuted, where the licensee:
1) Is intoxicated and could be a threat to himself or herself or another person,
2) Has caused or threatened bodily harm to another person, or
3) Is behaving irrationally and in a manner that causes a normal rational person to be fearful or threatened by the licensee having access to firearms;
u. Falsification of any documentation submitted to the NCPD Pistol License Section, including, but not limited to, correspondence, amendment forms and/or license renewal applications;
v. A gunsmith or dealer in firearms conducting firearm transactions at any location other than their licensed premises;
Note: The only exception to this rule is that business may temporarily be conducted at a location, other than the location specified on the license, if such temporary location is for a gun show or event sponsored by any national, state or local organization, or any affiliate of any such organization, devoted to the collection, competitive use or other sporting use of firearms. While at any such show or event, a copy of the gunsmith or dealer license must be available for inspection. Records of receipt and disposition of firearm transactions conducted at such temporary location shall include the location of the sale or other disposition and shall be entered in the permanent records of the gunsmith or dealer of firearms and retained at the location specified on the license.
w. If a police officer requests a licensee to exhibit or display his or her license and firearm(s), and the licensee refuses, such conduct will be considered presumptive evidence that the licensee is not duly licensed per NYSPL § 400.00(8), and the licensee may be arrested and charged with a violation of § 365.01(1) Criminal Possession of a Weapon 4th, a class A misdemeanor;
x. Any alteration, mutilation or destruction of a pistol license;
y. A licensee’s public display of a firearm;
z. A licensee’s failure to comply with any of the regulations stated in this handbook.[/I][/quote]

I think that law is ripe for a due process challenge.

Bob A said:

That's what the court is charged with determining, I suppose. The point where you can refuse a policeman's order is that point where you are ready to accept the consequences of your decision.

On the whole, I think the plaintiff acted responsibly; whether the officials involved fulfilled their responsibility will be determined by the courts. Whatever the outcome, it will probably be less unpleasant than the consequences of resisting a group of men armed with firearms and badges of authority. One can only hope it will be an outcome that aligns well with the supreme law of the land.

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Since when does department policy carry the weight of law?

No warrant, no charges no reason for the police to do anything.

Consequences of refusal can lead to such things as blunt force trauma. Despite the generally high level of professionalism we know is exercised by LEOs on this forum, it's not unheard-of for the occasional bad apple to exist. Also, attitudes on the street are affected by the attitude of the department in question. Apparently Nassau County tolerates the sort of behavior that permits a high-handed approach to civil rights.