Osterweil v. Bartlett, NY State

Osterweil v. Bartlett is a case that I posted a couple of days ago (third post, item #57 in the Current 2A Cases thread on TFL). This is a peculiar case as it turns on a decidedly narrow interpretation of what a "home" is.

The case was filed pro se (meaning Mr. Osterweil represented himself). Here's the background:

It starts with a man who was at the time, a NY State resident who applied for a premises license to have a gun in his home. That was in May of 2008.

By late June of this process, Mr. Osterweil had purchased a home in another State and planned to use this as his primary residence. He kept his home in New York as a vacation or summer home.

After some problems and disputes, the permit was denied as he was no longer a State resident. Suit was filed in July of 2009. The suit was dismissed on defendants MSJ, on May 20, 2011.

Here's the telling reasoning of the court:

Second, the burden imposed by this law falls at least one level outside the core right recognized in Heller, i.e., the right of a law abiding individual to keep and carry a firearm for the purpose of self defense in the home. Although plaintiff still owns a house in New York, which he uses for vacation purposes, that house is no longer his "home."

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Despite arguments to the contrary, the Judge in this case has defined "home" as a domicile. Domicile has a specific legal definition that is much narrower than a mere home.

While Heller did not make this distinction, this Judge did. The other reasons the Judge used to dismiss the complaints were the usual 2A two Step. Since the plaintiffs home was not his domicile and therefore not subject to the core of the right, intermediate scrutiny was applied (in this case, Justice Breyer's interest balancing, aka rational basis) and all complaints were dismissed.

What I didn't see in any of the briefs I read: Plaintiff was unaware of the significance of Baker v. Drozdoff (was Biaggi - item #39 in Post Mcdonald 2A Cases thread). In that case, a preliminary injunction was issued (agreed to by all parties) preventing the State of Nevada from enforcing any ban of firearms on State and Federal campgrounds in their Parks and Recreational Areas. The area of concern was that a tent in a campground was a "home," even if temporary, under Heller.

Herein lies the danger of most pro se litigants. Most simply do not have the necessary research capabilities to properly order and brief their case. If a temporary tent is a "home," even to non-residents, within the meaning of Heller, then a "vacation home" is also a "home," within that same context. The Judge could not have substituted domicile as the definition of home. That is the value of persuasive precedent.

To be sure, there are several other problems with the Judges interpretation in this decision. Hopefully, they can be overcome...

Plaintiff appealed to the 2nd Circuit on June 13th.

At this point, if I understand the NRA-ILA 2A Legal Update, the NRA will be handling the appeal. Currently, Mr. Osterweil is still listed on the 2nd Circuit Docket as pro se.

This is why everyone visiting these highly restrictive states need to be VERY aware of the laws. For example, NJ's statute could almost be read that you can't have a gun in a home you're leasing. It states ownership of house, land, and business specifically.

This case you cite should have been easy one, but I'm not sure if even Alan Gura would have won in that case. The mindset of these lower judges is not to expand Heller at all, to the point of saying a vacation home is not protected under the 2A. Glad the NRA will be stepping in to help but at this stage it probably won't matter. We should have the right to carry from SCOTUS by next summer, and then the Peterson case should put to bed any notions of NY/CA going shall-issue only for their own residents(without doing reciprocity).

Even after the Peterson case, NY state will still need to be sued to forcefully apply it to them. I'm glad that this was in the pipe though I wish he'd consulted knowledgeable people first--of course a lot of the problem is that NY state is still in its formative stages of having an effective pro 2A community, at least 5 years behind California's Calguns which has effective communications and an established legal team.

Today we (TFL - but directed to me) received the following from Mr. Osterweil:

Mr Norris----I am sorry to say that even after you received my e mail, you missed the point in the case. A NY state court previously ruled that "residence" meant domicile in the NY licensing statute. Two 2nd CCA cases following that ruled that residence in the statute meant domicile and the reason was to give the state the ability to monitor its licensees. The question then is whether a part time "resident" is or is not entitled to defend himself and his family in the part time home. I believed that I am so entitled, and that is why I chose to challenge the aforementioned cases. Incidentally, my original argument preceded McDonald. I argued that Heller was applicable to the states by virtue of selective incorporation through the due process clause of the 14th A. The judge originally dismissed those counts but following McDonald, and on my motion, he reinstated the 2nd A counts. The brief in the 2nd CCA has been filed.

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This is interesting in that Mr. Osterweil did write me after reading the thread at TFL. I included his intial email to me (in that thread) and never said another word about his case, other than to clarify something someone else said. What is interesting about the above, is his explanation of what NY has classified as a "home" for a resident (a resident has a domicile, while a home is not a residence - pre-Heller). This is all further explained in the opening brief (attached).

Something I should clarify, Mr. Osterweil is a retired attorney with an extensive practice. So any derogatory remarks about his being pro se were misplaced. He is no Gorsky or Birdt.

AAR, his opening brief is in. Here is a listing of the docket:

12/15/2011 47 MOTION ORDER, granting motion to extend time [41] filed by Appellant Alfred G. Osterweil, by RKW, FILED. [474256][47] [11-2420]
01/13/2012 48 NOTICE OF APPEARANCE AS SUBSTITUTE COUNSEL, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/13/2012 by CM/ECF. [498236] [11-2420]
01/26/2012 49 NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/26/2012 by CM/ECF. [507960] [11-2420]
01/26/2012 50 NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/26/2012 by CM/ECF. [508046] [11-2420]
01/26/2012 51 ATTORNEY, Daniel Louis Schmutter for Alfred G. Osterweil, in case 11-2420 , [48], ADDED.[508216] [11-2420]
01/26/2012 52 ATTORNEY, Paul D Clement for Alfred G. Osterweil, in case 11-2420 , [49], ADDED.[508219] [11-2420]
01/26/2012 53 ATTORNEY, David Zachary Hudson for Alfred G. Osterweil, in case 11-2420 , [50], ADDED.[508227] [11-2420]
01/26/2012 54 ACKNOWLEDGMENT AND NOTICE OF APPEARANCE, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/26/2012 by CM/ECF.[508579] [11-2420]
01/26/2012 55 BRIEF, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/26/2012 by CM/ECF.[509365] [11-2420]
01/26/2012 56 JOINT APPENDIX, volume 1 of 1, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/26/2012 by CM/ECF.[509379] [11-2420]

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I had said earlier that the NRA was helping Mr. Osterweil. You will note that Paul Clement with Daniel Schmutter are now the attorneys for Mr. Osterweil.

In this, from reading the opening brief, it appears that Mr. Clement is the main author. It is a really good read, if a bit long (45 pg - 54 PDF pgs). Here are the main points by Clemkent:

• New York’s Ban On Home Handgun Possession By Part-Time State Residents Violates the Second Amendment.
  • New York’s Ban On Home Handgun Possession By Part-Time State Residents Is, At A Minimum, Subject To Strict Scrutiny.
  • New York’s Ban On Home Handgun Possession By Part-Time State Residents Substantially and Unconstitutionally Burdens Second Amendment Rights.
• New York’s Residency Requirement Arbitrarily Burdens The Fundamental Rights Of Part-Time State Residents In Violation Of The Equal Protection Clause.

Unlike Alan Gura, Paul Clement makes no bones about the District Courts use of Intermediate Scrutiny, which Mr. Clement says is nothing more than rational basis, no matter what term the court was using. I liked that.

While the 2nd CCA comprises the States of Connecticut, New York and Vermont, a positive 2A decision here will have an effect on other Circuits and how they view part-time residents.

More broadly, should the Court reach to the Equal Protection argument (and I would think they would avoid this), it would impact "visitors" in those States as it regards their own right to self defense.

Al Norris said:

More broadly, should the Court reach to the Equal Protection argument (and I would think they would avoid this), it would impact "visitors" in those States as it regards their own right to self defense.

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If this case makes it to the SCOTUS using that premise. There would be national reciprocity, instantly.

Inigoes said:

If this case makes it to the SCOTUS using that premise. There would be national reciprocity, instantly.

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Not sure it would happen quite like that.

A win here would(or should) mean travelers could keep their firearms inside hotel rooms, friends/relatives' houses, or any temporary living space. A win plus a carry case win means NY and CA would either have to accept reciprocity or issue OOS licenses. My gut tells me they issue OOS licenses, and try to make it difficult/expensive, like requiring multiple trips to the licensing agency in order to frustrate visitors from carrying in the state.

Inigoes said:

If this case makes it to the SCOTUS using that premise. There would be national reciprocity, instantly.

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They will NEVER make any ruling clearer than depleted uranium.

press1280 said:

A win here would(or should) mean travelers could keep their firearms inside hotel rooms, friends/relatives' houses, or any temporary living space.

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I'm not sure that would help travelers, at least out of state ones. Even if they could do what you say legally, from what I understand of NY (and NJ) law transporting to and from there would still be a felony, and so would possession of the weapon at the train station/bus station/airport.