City defense attorneys use supreme court gun decision to challenge possession charges

At least one judge has already rejected the argument, noting that “failing to seek a license before roaming the streets with a loaded firearm is not abiding by the law” and that “The Constitution is not a suicide pact.”

August 1, 2022 George Joseph, THE CITY
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New York City defense attorneys are asking judges to drop gun possession cases following this June’s Supreme Court decision striking down the state’s restrictive gun licensing regulations for violating a newly found Second Amendment right “to keep and bear arms in public for self-defense.”

In motions filed in three separate cases on July 15, public defenders with the Legal Aid Society in Brooklyn asked judges to dismiss gun possession cases against their clients, arguing that in New York State Rifle & Pistol Association, Inc. v. Bruen the U.S. Supreme Court made “no distinction” between the unconstitutionality of the state’s gun licensing standards and the penal laws against carrying guns without a permit.

“The Second Amendment demands this Court’s ‘unqualified deference’ and is ‘not a second-class right,’” the boilerplate motions declare, pointing to the high court’s evisceration of “Sullivan’s Law,” a 1911 New York gun permit statute. “The Supreme Court has already ruled that New York’s Sullivan Law is unconstitutional, and the crimes alleged here are part of that law.”

Those three cases are still pending. THE CITY also identified four similar motions by other defense attorneys in gun cases in Manhattan and the Bronx, which judges have rejected.

In a statement, Tina Luongo, chief attorney of the Criminal Defense Practice at the Legal Aid Society, stood by the organization’s full court press.

“As we have always done, we will advance all valid and available legal arguments in defense of our clients and continue to urge policymakers to focus on real solutions to gun violence, which lie outside of the criminal legal system,” Luongo said.

“The Supreme Court’s decision to force New York to abandon strong, commonsense restrictions on concealed carry permits is a disaster for public safety, but we do not believe it affects those charged with illegal weapon possession who have never applied for a license or were denied under the provision that was struck down,” said a spokesperson for Brooklyn District Attorney Eric Gonzalez. “We will continue to take every step to protect the people of Brooklyn from illegal guns.

‘Not a suicide pact’

Across the river in Manhattan, a private defense attorney also tried to raise a similar argument to win a gun case dismissal, but was shot down by a borough Supreme Court judge earlier this month.

“Defendant misreads Bruen as eviscerating the police powers of the State to address criminality, or as applying to anyone other than law-abiding citizens,” wrote Judge Robert Mandelbaum.“Failing to seek a license before roaming the streets with a loaded firearm is not abiding by the law, and nothing in the Second Amendment requires that it be tolerated. The Constitution is not a suicide pact. The motion to dismiss is denied.”

Mayor Eric Adams joined NYPD officials at One Police Plaza in calling for a crackdown on untraceable guns flooding into the city, May 11, 2022.
Photo: Ben Fractenberg/THE CITY

“The Bruen decision is a setback for public safety in Manhattan, and my office has been preparing to handle these motions and briefing business leaders and community groups on the impacts of the Court’s ruling,” said Manhattan District Attorney Alvin Bragg. “Our designated team looking at these petitions will continue to diligently respond and we are pleased with these reasoned decisions.”

A discriminatory scheme?

Over the last two years, several New York public defender associations have pushed back on New York’s relatively stringent gun laws.

Last year, a statewide coalition of public defender groups, including The Black Attorneys of Legal Aid Caucus, Brooklyn Defender Services, and the Bronx Defenders, submitted an amicus brief to the Supreme Court arguing that their “clients’ conduct would not be a crime in states that already properly recognize the Second Amendment.”

In a statement just after the Supreme Court issued its decision this June, public defenders across the state including the Brooklyn Defenders and Black Attorneys of Legal Aid praised the court’s decision “to put an end to New York’s discriminatory gun licensing scheme,” which they said has fueled “the criminalization and incarceration of young New Yorkers of color.”

“This kind of gambit is not surprising in light of the Bruen case,” said Daniel R. Alonso, partner at Buckley LLP and former chief assistant district attorney in Manhattan. “I suspect they won’t be successful.”

THE CITY is an independent, nonprofit news outlet dedicated to hard-hitting reporting that serves the people of New York.

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