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Thursday, January 16, 2020

Over due update on Second Amendment Litigation



Image result for second amendment

I litigate like the Finnish approach the battlefield using the concept of Motitus -- a double envelopment manoeuvre, using the ability of light troops to travel over rough ground to encircle enemy troops on a road. Heavily outnumbered but mobile forces could easily immobilize an enemy many times more numerous.

The main thrust of my Second Amendment litigation is the argument raised in my  Administrative Application for a Carry Concealed licence proceeding that:

  • New York’s procedure for adjudicating applications to possess a handgun outside of the home violates federal procedural due process;
  • N.Y. Penal Law, §400.00.1 is void-for-vagueness, facially overbroad, violates the Equal Protection and Privileges and Immunities guarantees and encourages and permits, as in my case, prohibited arbitrary and discriminatory licensing.
On January 10, 2020, a hearing was held on those legal issues and my factual basis for requesting a license to carry handguns outside the home for purposes of: (i) self-defense and/or (ii) as part of my job-related duties as a New York licensed Nuisance Wildlife Control Operation to humanely “take”, i.e. kill, certain wild animals in certain situations for public health and/or safety reasons.  A decision from the Licencing Officer is pending.

However, employing the concept of Motitus, I have two other lawsuits pending in a bid to "encircle enemy troops" (the State of New York) all towards the end of crystallizing that which New York has intentionally kept legally indeterminate:  What is the required process due the termination or limitation on the fundamental right to self-defense inside and outside the home?

Of course, this arbitrariness of legal process has a historical precedent: 
The qualitative shift in the legal treatment of the Jews can also be described in terms of the decreasing basis for an expectation on the part of the Jewish subject that he or she would be subject to predictable treatment by those in power. That is, the assumption by the SS of jurisdiction over many aspects of Jewish life lent an atmosphere of potential, if not actual, arbitrariness to the administration of these measures. . . . Indeed, the policy of extermination that shortly followed belonged to an extra-legal world of SS directives that remained, at all times, contingent on the whims of those who had the power to issue them.  

THE IMPOSSIBILITY OF AN EXTERMINATORY LEGALITY: LAW AND THE HOLOCAUST, 59 UNIVERSITY OF TORONTO LAW JOURNAL DOI: 10.3138/utlj.59.1.65

In New York, the licencing procedure rests solely upon the "whims of those who" have the power to issue carry concealed pistol permits.  Leaving aside the question (which I raise in these proceedings) whether New York has the authority to so limit carry concealed firearms, clearly that recognized right cannot be taken away so cavalierly.

Thus, I have filed a New York Freedom of Information Lawsuit (FOIL) to see who is and who is not getting carry concealed licences and why or why not.  That litigation is set for a Motion to Re-argue on January 27, 2020, at 9:30 a.m. before Judge Nasca in Bath, New York.

Second, I have also filed a federal lawsuit in Rochester, New York against His Excellency Andrew Mark Cuomo and others seeking a legal declaration by the Judge assigned, the Honorable Frank Geraci, that:
  • New York’s criminal ban on my handgun possession in my home and cane sword possession both in my home and in public on its face and as applied violates my (i) Fundamental rights and (ii) Second Amendment rights;
  • New York’s administrative handgun licensing procedure  as codified in N.Y. Penal Law §400.00 et seq. and N.Y. Admin. P. Act, §100 et seq. violates my rights; and 
  • The judicial review system of New York’s administrative handgun licensing procedure codified in N.Y. CPLR, Article 78  violates Federal and New York Due Process guarantees as failing to provide meaningful judicial review from an administrative process affecting Fundamental and Constitutional rights.
This suit is pending a response by the Defendants which should be filed later in January.

More, doubtlessly, will follow.  However, fuller background regarding these litigations can be found in the below Press Releases:

Press Release #1: Sibley Challenges New York State’s Handgun Law and Licensing Procedures in Federal Court

Press Release #2: Sibley’s Second Amendment FOIL/Red Flag Lawsuit Set for Hearing September 9, 2019, at Bath, N.Y.

Press Release #3: Sibley’s Second Amendment/Red Flag FOIL Lawsuit set for Hearing Monday, October 21, 2019 in Bath, New York

Press Release #4Judge Threatens to Hold Steuben County in Contempt at Sibley’s Second Amendment/Red Flag FOIL
Lawsuit Hearing

Press Release #5Is Steuben County Going to be Held in Contempt at Sibley’s November 18, 2019 Second Amendment/Red Flag FOIL Lawsuit Hearing?

Press Release #6Hearing on Sibley’s Pistol Permit Application set for Friday, January 10, 2020 at 9:30 a.m. *** Sibley Sues Governor Cuomo Challenging Criminalization of Handgun Possession in the Home *** Judge Ignores Sibley’s First Amendment Argument and Dismisses Sibley’s Red Flag/FOIL Lawsuit

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Friday, August 23, 2019

Sibley’s Second Amendment FOIL/Red Flag Lawsuit Set for Hearing

In conjunction with my recently-filed Federal Lawsuit in which I challenged New York’s criminalization of handgun possession in the home in clear violation of the Second Amendment, I have filed a New York State Article 78 lawsuit under New York’s Freedom of Information Law (“FOIL”) challenging New York’s procedure for granting pistol permits.

In my Article 78 Lawsuit, I sought a “complete copy of records or portions thereof pertaining to all Pistol /Revolver License applications and Pistol /Revolver License files for each person granted or denied a Pistol /Revolver License in Steuben County for the years 2016, 2017, 2018 and 2019.”  In response, the Records Access Officer for Steuben County claimed that she was prohibited from releasing that information under New York Penal Law §400(5)(b).

Of course Steuben County must follow the law as written and deny my request.  I understand, it is not for the administrative/executive branch to declare a statute unconstitutional which is what I am arguing. My point: Albany has created a secret, extrajudicial, Red Flag system to deny New Yorkers the right to possess handguns in their homes as secured by the Second Amendment. That system secrets pistol permit applications and determinations from public view.  By hiding the “why” who is getting ‒ and who is not getting pistol permits ‒ Albany can and is treating persons seeking a pistol permit who are similarly situated differently.  That allows for the arbitrary and discriminatory granting of pistol permits and thus violates Equal Protection guarantees.”

The Honorable Judge Robert B. Wiggins has issued an Order to Show Cause in which he set a hearing on my Article 78 Lawsuit for September 9, 2019 at 10:00 a.m. at the Steuben County Courthouse, 3 E. Pulteney Square, Bath, N.Y. 14810.

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Wednesday, July 24, 2019

New York Handgun Laws vs. The Second Amendment

Young George Washington
Once again, I find myself called to file a lawsuit. This time regarding the scope of the Fundamental and Second Amendment rights of resistance and self-preservation in the Home vs. the State of New York's attempt to circumscribe those rights by banning ownership of handguns. I would rather not be so called as lawsuits are harder to get out of than marriages.  But this one I can not walk away from and here is why:

Young George Washington's first military and diplomatic venture came in the Fall and Winter 1753 - 1754 through Western Pennsylvania.  He was accompanied by my Fifth Great Grandfather, Christopher Gist (1706 - 1759)*.  Martin J. O'Brien of the Harmony Museum, recounts the story:
At one point, Washington and his traveling companion, Christopher Gist, had a mishap on the Connoquenessing Creek. They tried to take this raft across the Allegheny River, and Washington was controlling it with a pole, and didn’t do a very good job because he ended up being thrown into the river. And with all the wet wool clothes that they used to wear, it was very fortunate that he was able to be saved by Gist.
Washington was the catalyst of the Revolution, he was the leader of the Constitutional Convention, he held everything together throughout the Revolution and afterwards, when we formed our government. And I truly believe, had Washington been killed, that our nation’s history would be quite different and the history of the world, the modern world as we know it, would be quite different.
The way I look at it, I have little choice other than to jump in and assert the fundamental rights of resistance and self-preservation in my home than my great, great, great, great, grandfather Christopher Gist did to jump in the Connoquenessing Creek and save young George Washington from drowning: Indeed, less choice.

The background on this is:
  • On July 18, 2018, I filed my State of New York Pistol/Revolver License Application (“Application”) with the Clerk of Steuben County. The Application was referred to Chauncey J. Watches, a New York Penal Law §265.00(10) Pistol/Revolver Licensing Officer for Steuben County, New York and, incidentally, a County Court Judge. 
  • On May 29, 2019 ‒ three hundred fifteen (315) days or 10 ½ months after I filed my Application ‒ Chauncey J. Watches sent me a letter denying to me a Pistol/Revolver License stating in pertinent part: (i) That he had reviewed my application and “the investigation submitted by the Steuben County Sheriff’s Department”; (ii) "The basis for the denial results from concerns about your being sufficiently responsible to possess and care for a pistol”; (iii) “[T]he Court is concerned that your history demonstrates that you place your own interest above the interests of society”.
  • In response to my request for the factual basis of his decision, on June 25, 2019, Chauncey J. Watches wrote me stating that:“I have reviewed your requests for information and documents and find them to be without legal basis and therefore they are denied.”

My response: Sibley v. Watches, a federal lawsuit in the Western District of New York. 

IDistrict of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court of the United States held that the Second Amendment protects an individual's right to possess a handgun, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home.  Importantly, the late Justice Scalia writing for the majority opinion stated:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Thus, faced with a denial-without-explanation by Chauncey J. Watches of my Application upon "secret" evidence against me, I have loosed three litigation dogs of war; the first being the above federal lawsuit.  Subsequent posts on this blog will update the full nature and progress of my three litigation hell-hounds through the treacle-slow process of litigation.
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* Nathaniel Gist (1733 - 1796) Son of Christopher Gist; Elizabeth Violet Gist (1794 - 1877) Daughter of Nathaniel Gist; Montgomery Blair (1813 - 1883); Son of Elizabeth Violet Gist; Montgomery Blair (1865 - 1944); Son of Montgomery Blair; Montgomery Blair (1898 - 1974); Son of Montgomery Blair; Beatrice Blair (1929 - 1994); Daughter of Montgomery Blair; Montgomery Blair Sibley (1956- ); Son of Beatrice Blair.



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