Dywinski v. State Of New York (SAFE Act Challenge)

New member from wonderful Western NY, the land of the not so free.

Great to be able get updates on Tresomond's suit!! I was in contact with him on USCarry before he filed his suit. He also spoke at the last WNY SCOPE re his suit but was cautious about what he said not knowing who was in the audience. I'm still a little confused. It seems he filed on behalf a one or more specific clients. I was under the impression he was planning a class-action suit. Only thing that matters is overturning the absurd law!!!

MAX Thanks for the updates!!
 
Maxb49 said:
The legal team appears to have been viruently attacked on the LIFirearms message board, perhaps someone from that site would like to come over this way for a discussion.
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And this will be the only warning for someone who comes here with the purpose of bashing Mr Tresmond or anyone else.... your time on The Firing Line will be short.

Civilized discussions wherein we disagree about the merits of the case, great. Coming here to attack the reputation/integrity of ANYONE without cause and proof... bye-bye.
 
Thanks Brian. The law office, and Mr. Tresmond from time to time, will be updating the Firearms community online through this site. The legal team welcomes anyone with honest and serious objections to the case to come forward and state these objections for an honest discussion. This will serve a very useful purpose in perparing for objections in court.

Now, aside from the attacks on certain message boards, there have been interesting objections to the team's reading of the Haynes decision. This is a very good objection to raise, as we can all be sure that the NYS Atty General's Office will be sure to do the same in their reply papers. The objection attempts to distinguish Haynes's situation from the current SAFE Act by pointing out that Miles Haynes was charged with failing to register the firearm, whereas under the SAFE Act, failing to register an assault weapon with the State pursuant to PL 400.00 will be charged with unlawful possession and not failure to register. On its face, this objection would appear to have some merit (in fact, that was the team's first impression when reading Haynes). A deeper look into the issue reveals that there is no substantive difference in being charged with unlawful possession of an assault weapon under the SAFE Act and being charged with failure to register in the Haynes case because the failure to register an assault weapon with the State is essence of the charge; the only thing that makes an "assault rifle", currently lawfully possessed by its owner, and an unlawfully possessed assault weapon is that owner's failure to register the firearm with the State police. In other words, charging someone with unlawful possession of an unregistered assault weapon pursuant to the NY SAFE Act is the functional equivalent of charging that person with failure to register that weapon. Any thoughts, criticism, feedback - all greatly appreciated.
 
I would also give a look at comparing registration to the government demanding registration of everyone who buys Catcher in the Rye or checks it out at the library, given it's urban legend with a grain of salt connections to numerous assassinations and attempts over the years. We either have a right to privacy, or we don't. We're either presumed not guilty or we're not.
 
How does one ensure that one is included in the lawsuit? i sent an email to Mr. Tresmond the first day it was posted online, but I have not received any emails/calls confirming anything. Will any updates etc. ever be sent out to anyone?
 
You don't necessarily need to "be included". They want it to make it Class Action but the law will either stand or fall for all of us. (All of you, I'm still leaving)
 
Just to be specific... Many shotguns CANNOT be easily modified to hold mre than 10 rounds...
First of all, every shotgun can be easily modified, by the average person, to hold more than ten rounds with a simple magazine extension tube.
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My Mossberg 500 20 gauge would be a difficult project...

I have a 5/16ths hole in my barrel lug so a tube extension is of little use on my gun...;)

Many auto loader guns are also not so easy to modify nor was my Mossberg bolt action guns...

Sure some can easily accept a tube extension but many MANY cannot...

Brent
 
Brent,

Most shotguns don't require modifications to hold more than 7 rounds. I don't think they make a 20ga version, but virtually all 12ga guns are llegal because of...

1 3/4" mini-shells


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I'm not really a shotgunner, obviously the people who wrote the law aren't either.

The nature of this suit is something that bothers me a bit. Even if we "win", it seems as though it will simply be rewritten to address the faults exposed in the suit and we'll be saddled with an even stronger version of the law.
 
Any thoughts, criticism, feedback - all greatly appreciated.
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Here's mine. Haynes was self-incrimination. The guy was a criminal and upon registration he would have been charged as one--not for failing to register, but for his previous crime of illegally owning the weapon, correct?

What happens in July 2014 to a non-registered AW owner? He is committing a felony. If he is caught with this unregistered gun he's in trouble. However, the important question is: What happens in July 2014 if he registers? It's obvious that registering at that point is admittance that up until that day he was a felon, for not having registered his AW, but will there be amnesty for any late-registrations? If so, I am not sure Haynes applies, because the self-incriminating action of registering after the fact will lead to no penalty or charging of a crime. The only exception here would be for other felons (not a felon because of lack of registration, but for other reasons--like owning it while already a convinced felon), like Haynes, in which case perhaps the law is unconstitutional--but only as it applies to felons.
 
Use Millers in common use

A previous post lists many guns that hold more than seven rounds that are lever action. Even a 22 revolver is/will now be banned. These are all guns that have been around for quite some time (1800's). In common use from miller and heller seem to be the strongest way to fight this nonsense.

I'm not convinced the judges will find the registration unconstitutional. Common use has been held up most recently and is stronger argument to me.
 
Can't get the ipad to copy paste right now but they are referring to the wrong part of the new law. further in the law anything that has capacity greater than 7 is banned. exception for tubular fed rifle 22. no exception for nine shot revolver 22. In addition 8 shot .357 mag would also be banned. I'm sure there are more.
 
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further in the law anything that has capacity greater than 7 is banned. exception for tubular fed rifle 22. no exception for nine shot revolver 22. In addition 8 shot .357 mag would also be banned.
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AFAIK it is not 100% clear whether >7 shot revolvers, along with >7rd en bloc clips (e.g. M1 Garand), count as LCAFDs. I have discussed this at length in other threads. It seems like they could be covered if the wording is interpreted in a particular way, but AFAIK the actual applicability is unclear.

OTOH integral tubular centerfire magazines clearly CAN be considered LCAFDs because rimfire mags are exempted.

Speaking of such magazines... another similar quandary to the "mini shells" is a .357Mag lever rifle loaded with .38 Long Colt or a .44Mag lever rifle loaded with .44 Russian. It's doubtful that most modern manufacturers have bothered to measure the mag capacity of these rifles when loaded with these obsolete, shorter cartridges, but the capacity could increase by 2-3 rounds, leaving owners or buyers in a state of potentially unknown legal jeopardy. :(
 
Great! Everyone here has raised some very important concerns!

Brian writes,

The nature of this suit is something that bothers me a bit. Even if we "win", it seems as though it will simply be rewritten to address the faults exposed in the suit and we'll be saddled with an even stronger version of the law.
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Brian, this is an excellent point. It's safe to say that everyone here shares your worries. If they knock out the assault weapon's registry, it's hard to imagine how that could be resurrected. Knocking out the registry takes a lot of wind out of Cuomo's sails - for example, enforcing a transfer ban is impossible without a registry.

For what it's worth, in my opinion it's also a good thing to look at the lawsuit in terms of damage mitigation. This bill isn't your typical gun control bill. This bill is a draconian attempt to ban, eradicate, and criminalize vast numbers of common, average firearms. Having any part of this bill thrown out is going to increase the liberty of New Yorkers.

MWalsh writes:

Here's mine. Haynes was self-incrimination. The guy was a criminal and upon registration he would have been charged as one--not for failing to register, but for his previous crime of illegally owning the weapon, correct?
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Good question. Hayes was actually charged with failing to register the firearm. He was a criminal, and any firearm in his possession would be illegally possessed. However, the particular firearm in his possession was an 11" Stevens double barrel shotgun, a firearm that was required to be registered under the National Firearms Act.

Here's the rub: If a convicted felon in, say, Canajoharie illegally owns an AR-15, the State cannot compel him to register his AR-15 because doing so would force him to admit to criminal possession of a firearm. He's protected by the Fifth Amendment. So, Problem No. 1: The registry is unenforceable. After the date by which people are supposed to register, if they do not register, they're in illegal possession of a firearm, and thus cannot be compelled to register. . .

Problem No. 2: According to the State, law abiding citizens must register their weapons with the NYS Police. In doing so, they have to circumscribe their liberty and privacy by registering their private information with the State government. The law, in it's totality, offers protection to felons and no protection to law abiding citizens. I'm sure most people aren't comfortable with felons receiving more protection than law abiding citizens.

What happens in July 2014 to a non-registered AW owner? He is committing a felony. If he is caught with this unregistered gun he's in trouble. However, the important question is: What happens in July 2014 if he registers? It's obvious that registering at that point is admittance that up until that day he was a felon, for not having registered his AW, but will there be amnesty for any late-registrations? If so, I am not sure Haynes applies, because the self-incriminating action of registering after the fact will lead to no penalty or charging of a crime.
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So what if there is an amnesty? An amnesty would be nothing more than a deadline extension. What happens after *that* date when people fail to register? Again, they would be charged with criminal possession of a firearm on the basis of failing to register that firearm.
 
Maxb49 said:
Brian, this is an excellent point. It's safe to say that everyone here shares your worries. If they knock out the assault weapon's registry, it's hard to imagine how that could be resurrected. Knocking out the registry takes a lot of wind out of Cuomo's sails - for example, enforcing a transfer ban is impossible without a registry.
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It isn't hard at all to imagine how the assault weapon ban can be resurrected if it is defeated based on Haynes, it can be resurrected to look just like the current NFA registry which was upheld and distinguished from Haynes in U. S. vs. Freed, 401 U.S. 601 (1971).

Am I missing something here? Why wouldn't New York just immediately modify the law the same way the NFA was modified in order to maintain the registry?
 
May I interject some (ir?)revant information.

Canada passed a long gun registration in 1996? anyway, very few people registed their long guns. the deadline was extended, and very few registered their weapons,,,and extended etc..until Harper came along and campaigned to eliminate the long gun registration that was supposed to of cost $30 million, and had already cost $3 billion It was estimated that only 20% or so of the long guns in Canada had been ever registered, and no registered gun had been involved in a crime. Kind of like the Cobis program in NY eh?

Harper was elected, the long gun registration was repealed...end of story.
 
Update

The New York State Attorney General has contacted Mr. Tresmond requesting an adjournment until the end of April.

This is (tentative) good news.
 
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