On March 3, 2021, I had my ten (10) minute oral argument in my Second Amendment Lawsuit before the Appellate Division of the New York Supreme Court, Fourth Department.  

A decision is expected by the Fourth of July, some 1000 days after I applied for a pistol permit in New York.

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Court Refuses Request to Record Oral Argument

By Letter dated February 23, 2021, the Appellate Division of the Fourth Department informed me that my request to record the Zoom™ Oral Argument in my Second Amendment cases was denied, stating: "the court will not permit the recording of oral argument."

Curious behavior for the guardians of our Freedoms.  Do they have something to hide?

So the only chance to hear the Oral Arguments which will address the conflicts between the fundamental right to self defense and to keep & bear "arms" and New York's improper curtailing of those rights is by sending an email request to watch this Oral Argument to the Clerk at: ad4-calendar-clerk@nycourts.gov requesting the credentials to watch this Oral Argument.

DATE	DOCKET	TIME
Wed Mar 03 10:00 a.m.	OP 20-00556 Sibley v Steuben County Licencing Officer Chauncey Watches	10:00 a.m
Wed Mar 03 10:00 a.m.	OP 20-00776 Sibley v Steuben County FOIL Lawsuit	10:00 a.m

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I Really Didn’t Want To File Suit To Remove A Federal Judge From Office . . .

The Honorable Frank Geraci, Jr.

As I have documented in prior posts, I have been challenging New York’s Handgun licensing scheme in both State and Federal Courts for the last eight hundred and fifty six (856) days. That effort continues at the speed of treacle: New York has been directed to file its Answer Briefs in the State cases in early January 2021. The Federal case is still in the motion to dismiss phase which will linger on into 2021 as well.

What I have not made public is that I found myself faced with a choice back in May of this year whether to sue the federal judge handling my federal Second Amendment case ‒ the Honorable Frank Geraci ‒ to remove him for “misbehaviour” in office. Family and friends will tell you I never shied away from filing a lawsuit when I believe the cause was just, so you can imagine my choice.  What was the “misbehaviour” of a federal judge which might authorize removal from office?  That is a complicated question requiring context of a completely un-illuminated clause in the Federal Constitution.  So let me start there:

It was the common law of the United States that existed before the federal Constitution was ratified in June 1788 – and subsequently and expressly reserved to the People by the Ninth Amendment in 1791 – that there were three grounds for forfeiture of a judicial office: (i) abuse of office, (ii) non-use of office, and (iii) refusal to exercise an office.

The U.S. Constitution at Article III, §1 states in pertinent part: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour . . .”.  Ergo, an inferior District Court Judge  ‒ such as the Honorable Frank Geraci ‒ may be removed from office for the antithesis of “good behavior”, i.e., “misbehavior”.

Importantly, the Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  I maintained in my Complaint against the Honorable Frank Geraci that among those rights “retained by the people” was the right in a judicial proceeding to remove judicial actors for “misbehaviour”.

Clearly, the Constitution delegates to the Legislative Branch only the right to remove “civil officers” – which necessarily includes District Court Judges – in only very limited circumstances.  Article I, §2 states: “The House of Representatives . . . shall have the sole power of impeachment.”  Article I, §4 states: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”  Ergo, Congress can only remove a civil officer  ‒ such as the Honorable Frank Geraci ‒ upon an impeachment and conviction in only three instances: (i) "treason", (ii) "bribery", or (iii) other "high crimes and misdemeanors".  A priori, Congress cannot remove a civil officer for “misbehavior” that does not rise to the level of: ((i) "treason", (ii) "bribery", or (iii) other "high crimes and misdemeanors" as such power was never granted – and indeed was expressly prohibited – to Congress.

A fortiori, there must exist a range of judicial behavior which is not: (i) “treason”, (ii) “bribery”, or (iii) other “high crime and misdemeanor” but that does constitution “misbehavior” sufficient to breach the “good behavior” requirement  of  Article III, §1 for holding judicial office.

Let me put this proposition graphically:

Against that brief legal backdrop, on to the particular facts of Sibley v. Geraci, et al.:

On July 9, 2019, I filed my Second Amendment lawsuit challenging New York’s Handgun licencing scheme in federal court in Rochester, New York.  At the same time, I also filed a Motion for Leave to proceed in forma pauperis. The Motion for Leave to proceed in forma pauperis asked the Court to waive the $400 filing fee which is required to file a federal lawsuit.  The Honorable Frank Geraci was assigned the case.

After waiting for seventy-nine (79) days, on September 26, 2019, as it was apparent to me that the Honorable Frank Geraci was not going to rule upon my Motion for Leave to proceed in forma pauperis, I, as my work had picked up, was able to tender the filing fee of $400.00 which finally allowed the case to move forward.

The U.S. Supreme Court has left no doubt that access to court is a fundamental right and is also guaranteed by the U.S. Constitution in five different areas: (i) The Article IV Privileges and Immunities Clause, (ii) The First Amendment Petition Clause, (iii) The Fifth Amendment Due Process Clause, (iv) The Fourteenth Amendment Equal Protection Clause, (v) The Fourteenth Amendment Due Process Clause.

In my lawsuit against the Honorable Frank Geraci, I maintained that his refusal to rule upon my Motion to Proceed in forma pauperis for seventy-nine (79) days denied to me my absolute right to access court for redress of my grievances and to seek protection of my fundamental, constitutional and statutory rights.

What, you may ask, is wrong with ignoring my Motion to Proceed in forma pauperis for seventy-nine (79) days?  The problem is this: To those with money, the Honorable Frank Geraci granted immediate access to his Court but made impoverished litigants stand outside the Courthouse waiting his grace to enter thus denying equal protection of the laws between rich and poor.  Such denial by the Honorable Frank Geraci I maintained was evidence of abuse, non-use and/or refusal to exercise his office warranting a finding of “misbehavior” in that office by the Honorable Frank Geraci.  As such, I requested a judgment rendered after ‒ and only upon a jury verdict ‒ directing the forfeiture of the Honorable Frank Geraci’s office as a United States District Court Judge.

Now as you might imagine, when I filed this suit against the Honorable Frank Geraci on May 13, 2020, in federal court in Rochester, N.Y., the result was preordained.  Without allowing me to be heard, the Honorable Catherine O'Hagan Wolfe, immediately dismissed the suit and deemed it frivolous.  How dare I raise a “first impression” Constitutional issue which created an existential threat to the Article III hegemony of federal judges?

Needless to say, I don’t take “no” for an answer lightly and so this matter now pends at the federal Court of Appeals for the Second Circuit in New York City.  My Initial Brief details all this in greater detail.

More to follow when the Second Circuit makes its decision.

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The 2nd Amendment, Stephen Decatur & Me

Stephen Decatur

I didn't really want this fight.  When I moved to New York in 2016, I simply wanted to have my pistols for protection and work (I am licenced as a Nuisance Wildlife Control Operator and am legally obligation to "take", i.e. "kill", animals suspected of rabies for testing.)

But then I ran into New York's Pistol Licensing scheme and found it wanting in due process, equal protection and respect for the Second Amendment.  I wished I could just look away, but  . . . I couldn't.  So as few can afford to challenge New York and I do know how, it was off to the races.

Now, after waiting six hundred (600) days for a decision on my Application for a pistol license, I received that decision on March 9, 2020.  In that Decision, Licensing Officer (and County Court Judge) Watches rested his sole reason for denying my Application that: “[Sibley] has failed to demonstrate good moral character.” Notably, Licensing Officer Watches did not find that I had failed to demonstrate “good cause” for such a license.

Fortunately, it is not 1820 and I don't have to challenge Licencing Officer Watches to a duel ala Stephen Decatur to defend my Honor and Family Name as Decatur did 200 years ago almost to the day.  Instead, there is a Court system to address this slur and I look forward to vigorously pursing vindication.

To that end, I have recently filed a pleading which briefly (well, as briefly as a lawyer can) and indisputably demonstrates structural and systemic failures in New York’s pistol licensing procedures and seeks relief not only for me but system-wide reforms.  I have also asked the Court to "fish or cut bait" as my Fundamental right to self-defense in my home is at issue. 

The noted jurist and High Priest of U.S. Jurisprudence, William Blackstone said it best in 1769: “[Self-defense is] justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the laws of society.” 3 William Blackstone, Commentaries 139.  Yet, this is what New York has done to me . . . and 13 million other law-abiding New York Citizens.

Particularly now when the foundations of our civil society are being shaken, this need for self-defense is more pressing than anytime in our Country's history.

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Over due update on Second Amendment Litigation

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

Lawsuit Hearing

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

Press Release #6: Hearing 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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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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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. 

In District 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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