New York Woman Files Suit for Due Process when Denied Second Amendment Rights

skeloscuomosilver
Skelos, Cuomo, Silver

By Dean Weingarten

Dean Weingarten
Dean Weingarten

Arizona – -(Ammoland.com)-

On April 7, 2015, Donna L. McKay voluntarily admitted herself into mental health unit at the Soldiers and Sailors Memorial Hospital in Penn Yan, NY, for a variety of reasons, including taking some newly prescribed prescription medication and anxiety due to recent events that raised the stress level in her life. A doctor had suggested the possibility of a voluntary admission in the event of another panic attack. Some time after her admission, the treating physician, Dr. Marino, made an online report in compliance with the infamous “SAFE” act.
According to Dr. Marino, the online report did not state that Donna McKay was mentally defective, or that she had been involuntarily committed.On April 13, 2015, the State Police sent a letter to Donna McKay stating that her pistol license, which she had possessed since 2008, was suspended, because of mental incompetence or involuntary commitment. All her firearms, including rifles and shotguns, had to be turned over to the Sheriff's department for safekeeping while the matter was being adjudicated.

A date of 19 May was set for McKay to appear to respond to the letter. The letter did not state the basis for the ruling. She appeared with counsel on 19 May. Over a year later, on 7 June, 2016, Donna McKay's pistol permit was ordered restored, and her firearms ordered returned. The routine report from her doctor had been the cause of the State infringing on her Second Amendment rights. In the court decision, the court noted that the state had considerable discretion when deciding whether a person should be allowed to exercise their Second Amendment rights. From justia.com:

A pistol license may be revoked and cancelled “for any good cause” [see, Mtr of Vale v Eidens, 290 AD2d 612, 613 (3rd Dept 2002)] at any time if the court determines that a licensee is no longer eligible or fit to continue to possess a firearm. PL §400.00(1) (n). This could include an inability to possess a pistol license due to mental illness (P.L. §400.00(1)(i), having been involuntarily committed to a mental health facility [P. L. §400.00(1)(j)] or having a guardian appointed for her [P. L. §400.00(1)(m)].

When exercising its discretion, the court must look to the underlying facts in the record before it and as they relate to the respondent's fitness and eligibility to hold a pistol license. And the court is not bound by a standard of proof beyond a reasonable doubt but rather “good cause” based upon “substantial evidence”. Perlov v Kelly, 21 AD3d 270, 271 (2nd Dept 2005), citing Mtr of Abramowitz v Safir, 293 AD2d 352, noting that “our obligation is limited to insuring that respondent (court) met the very minimal evidentiary requirement necessary to uphold its determination', quoting Mtr of Scully v Safir, 282 AD2d 305, 308 (1st Dept 2001).

In this regard, “the State has a substantial and legitimate interest and indeed, a grave responsibility, in insuring the safety of the general public from the individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which [*5]should be present in one entrusted with a dangerous instrument.” Dorsey v Teresi, 26 AD3d 635, 636, quoting Mtr of Pelose v County Ct. of Westchester, 53 AD2d 645 (2nd Dept 1976), app. dism. 41 NY2d 1008.

Consider what happened to Donna McKay. At no time did she do any thing that would have justified taking her Second Amendment rights from her.  A routine form, submitted by a doctor as a routine matter, that did not find that she was either involuntarily committed or mentally defective, was sent to the State Police. The police, without any further investigation or judicial process, issued the order that effectively deprived McKay of her rights for over a year. It is plausible that if she had not hired an attorney and vigorously defended her rights, they would have been taken forever.  Notice the asymmetry. It took the State less than a week and a few keystrokes, to take away McKay's rights. It took more than a year, and considerable treasure to restore them.

After winning the court case to restore her rights, her lawyer,  Paloma Capanna, has filed a lawsuit to require a more rigorous process in the future. From the timesunion.com:

By not having representation when police initially took her weapons she was deprived of due process, Capanna contends.

The suit, filed earlier in December in federal court in Rochester, seeks an injunction that would require the state to provide legal counsel in gun confiscation cases and notification to individuals who are facing confiscation.

State Police declined to comment since the matter was pending litigation.

An estimated 380,000 New Yorkers have been reported to the NCIC database. Capanna argues that those people should be notified.

In spite of having her pistol permit restored and her firearms returned, Donna McKay is still in the federal NICS system as a prohibited person. Her name was added to the prohibited person list when the State Police sent the the notice suspending her pistol license.

The New York Safe Act has numerous significant flaws. It is actively being challenged in several court cases. The act was passed as an “emergency” measure without regular debate or committee hearings, in one night, under pressure from Governor Cuomo.

Of the three men most responsible for the “SAFE” act, two have been convicted on corruption charges. Sheldon Silver, former Speaker, of the New York State Assembly, was convicted in 2015. Dean Skelos, the former leader of the Senate, was convicted in December of 2015.  Governor Cuomo, is being investigated on a number of corruption charges. The election of Donald Trump over Democrat Hillary Clinton, does not bode well for Governor Cuomo.

The lawsuit against the State of New York was only filed a few days ago. It will take months to work its way through the courts.

The lawsuit was filed in federal court. It may be appealed all the way to the Supreme Court. If the case travels that far, it may find a Court with one or more Donald Trump appointees.
©2016 by Dean Weingarten: Permission to share is granted when this notice is included.

Link to Gun Watch

About Dean Weingarten;

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

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Alan
Alan
3 years ago

Re all the moaning and groaning about New York’s Safe Act, from what I’ve read of it, truly a piece of legislative crap, the fact that the governor who pushed it was handily returned to office, ditto for the elected representatives who voted for it, correct me should I be in error, continues to strike me as passing strange. I grew up, and lived for a number of years in NYC. In 1967, having had more than enough of the rubbish that passed for legislation, ditto for the dictatorial scams of the NYPD, I voted with my feet, departing the… Read more »

Ivano
Ivano
3 years ago

NY state will never return to the ideals expressed by the founders of this nation until people who collect welfare are prohibited from voting. No work…No vote. I hope silverstein enjoys prison and the inmate give him the love he deserves.

Ray
Ray
3 years ago

Mine was taken away by the Maryland State Police,
because they said I didn’t need it anymore. I sued, won
the case, they appealed to the 4th Circuiit and they
put a stay on the case. Hope Trump does something

Lava
Lava
3 years ago
Reply to  Ray

You mean, the court will just procrastinate forever? !!

Alan
Alan
3 years ago
Reply to  Lava

If they can get away with so doing, yes.

Scott T
Scott T
3 years ago

Perhaps the “Safe” Act should be rewritten to include: Removing your eight inch kitchen knife. Your four inch paring knife.. Let’s play it “safe” and remove all of your kitchen knives.Who know’s what a stressed out person would do.Eat dinner? No One ever gets stressed. Right? If you have a small head cold or allergies and are NOT take any medication you may sneeze or have a slower reaction time so under the new and improved “Safe Act” you must surrender your car or truck to the goverment for your and everyone’s “SAFETY” They could add to the law that… Read more »

Charles
Charles
3 years ago

Isn’t that a picture of the Three Stooges, Curly Larry and Moe?

Alan
Alan
3 years ago

Sounds like a great idea, good luck pushing it.

Bill N.
Bill N.
3 years ago

All of these lawsuits and idiotic laws such as the “SAFE act will continue in NY, Ca NJ and Md until the lame brains who elected these “law makers” replace them with men and women who can think for themselves. Don’t hold your breath. I find it difficult to even try to understand the Democrat thought process. All of the major cities with the most gun violence are and have been controlled by Democrats for years if not decades. Chicago Police just started calling for more gun laws after a record number of shootings in their fair city. What kind… Read more »

Fee
Fee
3 years ago
Reply to  Bill N.

The US has two cultures. The gun culture and the anti gun culture. The anti gun culture do not see the necessity of owning a gun. At best they will accept sporting guns for hunting. Hand guns and black weapons are no no. Trump election may change all that. For the first time many anti gun liberals feel their freedoms are threatened and many are arming and prepping for social unrest. Irony of all ironies. Liberals are prepping!!! You can’t make this stuff up.

Laddyboy
Laddyboy
3 years ago

Where is the law suit to recover ALL of the costs of representation in court? IE: Court fees, Lawyer fees, harassment fees, mental anguish fees, transportation fees, boarding fees, food fees, traveling fees, etc., etc..
The State’s lawyers with their UNLAWFUL actions caused these FIASCOs. Let the Governor, and the individuals behind the desks bear the costs of litigation. The People of that State should not bear the expense of these ILLEGAL actions.

Wild Bill
Wild Bill
3 years ago
Reply to  Laddyboy

@Laddyb, Don’t worry her lawyer will get her reimbursed under the Equal Access to Justice Act, if she wins.

Donna
Donna
3 years ago
Reply to  Laddyboy

Hi! If you go to http://www.law-policy.com you can see the complaint in its entirety. I would recommend you use a desktop computer, or download the adobe acrobat reader to your cell phone in order to read the complaint. Thank you for your support!

MontieR
MontieR
3 years ago

The ease of the government (city, state and federal) to unilaterally suspend ones constitutional rights has grown to the point where the constitution it’s self is made irrelevant not only in the area of weapon ownership but in everything. They have upended the entire system in favor of plain tyranny. The precepts this country was built upon, property ownership, liberty, freedom have been replaced by totalitarian control, you are now guilty until proven innocent and it is standard procedure for the state to do everything in it’s power to stop you at every level from establishing your innocence eve when… Read more »

SuperG
SuperG
3 years ago
Reply to  MontieR

Well said. Abraham Lincoln said our destruction will come from within, I think he was right. It was never a brute force assault, just a steady erosion of failed liberal BS, and I do hope Donald drains the swamp.

Tionico
Tionico
3 years ago
Reply to  SuperG

and HE< yes, "honest" Abe, was the first president to open wide the floodgates that have led to our present ugly pass… it was HE who acted a number of times contrary to the terms of the Constitution…. and began the long, accelerating slide downhill toward an overarching out of control FedGov

Alan
Alan
3 years ago

This SAFE Act, and the State Police are a crock, and by the way, the fact that the governor was returned to office, how about the legislators who voted for that legislative monstrosity, The SAFE Act, doesn’t speak especially well for the electorate either. By the way, I grew up in NYC, lived there for some while too, departed in 1967.