PRESENT: HON. THOMAS J.

McNAMARA Acting Justice STATE OF NEW YORK SUPREME COURT

COUNTY OF ALBANY

ROBERT L. SCHULZ, et aI., Plaintiffs, -againstNEW YORK STATE EXECUTIVE; ANDREW CUOMO, Governor; STATE OF NEW YORK LEGISLATURE; SHELDON SILVER, Speaker of the New York State Assembly; DEAN SKELOS, Temporary President and Republican Coalition Leader; JEFFREY KLEIN, Temporary President and Democrat Coalition Leader, Defendants. (Supreme Court, Albany County, Motion Term) APPEARANCES: Robert 1. Schulz PlaintiffPro Se 2458 Ridge Road Queensbury, New York

JUDGMENT Index No.: 1232-13 RJI No.: 01-13-109432

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Eric T. Schneiderman Attorney General of the State of New York (By: James B. McGowan, Assistant Attorney General, of Counsel) Attorney for Defendants The Capitol Albany, New York 12224-0341

McNamara, J. In their complaint plaintiffs maintain that the New York Secure Ammunition and Firearms

Enforcement Act (NY SAFE Act) (L 2013, ch 1) violates New York State Constitution Article III, 14 and Article XII. After plaintiffs' application for a preliminary injunction to enjoin enforcement of the SAFE

Schulz, et al. v State ofNew York Executive, et al. Index No.: 1232-13; RJI No.: 01-13-109432 Act was denied, defendants moved for summary judgment dismissing the complaint. New York Constitution Article III, 14 provides that: "No bill shall be passed or become a law unless it shall have been printed and upon the desks of the members, in its final form, at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinion necessitate an immediate vote thereon " The challenge under Article III, 14 is based on a certificate issued by the Governor on January 14, 2013 calling for immediate passage of a bill then pending in the Legislature: Assembly Bill Number 23 88 and Senate Bill Number 2230. The message contained the following language: "Some weapons are so dangerous, and some ammunition devices so lethal, that New York State must act without delay to prohibit their continued sale and possession in the State in order to protect its children, first responders and citizens as soon as possible. This bill, if enacted, would do so by immediately banning the ownership, purchase and sale of assault weapons and large capacity ammunition feeding devices, and eliminate them from commerce in New York State. For this reason, in addition to enacting a comprehensive package of measures that further protects the public, immediate action by the Legislature is imperative. Because the bill has not been on your desks in final form for three calendar legislative days, the Leaders of your Honorable bodies have requested this message to permit the immediate consideration of this bill." Later that same day, the Senate passed the bill and on the following day the bill was approved by the Assembly. While plaintiffs argue that the certification issued by the Governor is a sham, the law in this regard is well settled: "as long as the Governor's certificate contains some factual statements, the sufficiency of the stated facts to support the Governor's conclusion may not be challenged" (Maybee v State ofNew York, 4 NY3d 415,417 [2005]). Here, while plaintiffs may disagree with the Governor's and Legislature's

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Schulz, et al. v State ofNew York Executive, et al. Index No.: 1232-13; RJ1 No.: 01-13-109432 assessment ofthe need to act quickly, the Governor included in his certificate a recitation ofhis reasons for urging speedy passage. Article III, 14 fails. The complaint and memoranda submitted by plaintiffs are unclear as to other bases for challenging the SAFE Act. For instance, in the complaint plaintiffs allege that the Safe Act "arguably" infringes on rights protected by the Second Amendment of the United States Constitution and Civil Rights Law 4. Plaintiffs also assert that the statute "arguably" infringes on rights guaranteed by New York Constitution Article XII. However, Legislative enactments enjoy a strong presumption ofconstitutionality and while the presumption is rebuttable any invalidity must be demonstrated beyond a reasonable doubt (Matter ofMcGee v Korman, 70 NY2d 225,231 [1987]). Here, plaintiffs have failed to demonstrate in what manner the SAFE Act infringes upon their asserted rights. The Second Amendment and Civil Rights Law 4 contain nearly identical language: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not [cannot] be infringed." "While the United States Supreme Court concluded in [District of Columbia v Heller, 554 US 570 (2008)] that the Second Amendment confers a constitutionally protected individual right to keep and bear arms as a means of self-defense within the home, it also held that the right conferred by the Second Amendment and, by extension, Civil Rights Law 4 is not absolute and may be limited by reasonable governmental restrictions" (People v Perkins, 62 AD3d 1160, 1161 [3d Dept 2009] Iv appeal denied 13 NY3d 748 [2009], citations omitted). The right is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose (see District ofColumbia v Heller at 626). "[L]ongstanding prohibitions on the possession offirearn1s by felons and the mentally ill, or laws
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That is all the Constitution requires and consequently, the challenge based on

Schulz, et al. v State ofNew York Executive, et al. Index No.: 1232-13; RJI No.: 01-13-109432

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" are not in doubt (id at 626-627). Given that the right is not absolute and in the absence of a cogent argument demonstrating how the SAFE ACT infringes upon their right, plaintiffs have failed to establish that the legislation is unconstitutional. New York Constitution Article XII, 1 provides: "The defense and protection of the state and of the United States is an obligation of all persons within the state. The legislature shall provide for the discharge of this obligation and for the maintenance and regulation of an organized militia." Though plaintiffs assert in the complaint that the SAFE Act infringes upon rights granted by this provision of the Constitution, they do not point to any right created thereby nor is one apparent. The arguments offered with regard to this provision are generally linked to the right to keep and bear arms which as discussed above, fall short of demonstrating unconstitutionality beyond a reasonable doubt. Accordingly, it is ORDERED, ADJUDGED AND DECREED, that New York Secure Ammunition and Firearms Enforcement Act (NY SAFE Act) (L 2013, ch 1) does not violate New York State Constitution Article III, 14, New York State Constitution Article XII and United States Constitution Second Amendment and is not in conflict with New York Civil Rights Law 4. This constitutes the judgment of the Court. The original judgment is returned to the attorney for defendants. A copy ofthe judgment and the supporting papers have been delivered to the County Clerk for placement in the file. The signing of this judgment, and delivery of a copy of the judgment shall not

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Schulz, et al. v State ofNew York Executive, et al. Index No.: 1232-13; RJI No.: 01-13-109432 constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry. Dated: Saratoga Springs, New York April 10,2014

Thomas J. cNamara Acting Supreme Court Justice Papers Considered:

I.

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

Verified Complaint/Petition dated January 25, 2013, with Exhibits A through G annexed thereto; Verified Answer dated April 4, 2013; Order to Show Cause dated April 8,2013; Affirmation of James B. McGowan, Assistant Attorney General dated April 5, 2013, with Exhibits A through C annexed thereto; Defendants' Memorandum of Law dated April 5, 2013; Affidavit of Robert L. Schulz, sworn to May 8, 2013, with Exhibits A through F annexed thereto; Plaintiffs' Memorandum of Law dated May 1,2013; Affidavit in Opposition of Jeffrey Gaul, sworn to May 8, 2013; Letter Reply Memorandum of Assistant Attorney General James B. McGowan dated May 15,2013; Affidavit of Robert L. Schulz, sworn to December 11,2013, with Exhibits A through C annexed thereto; Plaintiffs' Sur-Reply dated December 11,2013; and Affidavit of Robert L. Schulz, sworn to December 23, 2013, with Exhibits A through C annexed thereto.

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