Federal Court Rules New York State Stun Gun Ban UNCONSTITUTIONAL

Opinion

Stun Guns
New York has been ordered not to enforce its ban on private citizens owning electronic defensive tools.

U.S.A. – -(Ammoland.com)- “New York's sweeping prohibition on the possession and use of tasers and stun guns by all citizens for all purposes, even for self-defense in one's own home, must be declared unconstitutional in light of Heller,” the David N. Hurd, United States District Judge for the Northern District of New York ruled Friday.

Hurd’s opinion was issued in the case of Matthew Avitabile, Plaintiff, -v- Lt. Col. George Beach, in his official capacity as Superintendent of the New York State Police, Defendant. Avitabile wanted to purchase a taser or stun gun for self-defense in his home, but “has yet to purchase either device because he reasonably fears prosecution under New York Penal Law … which criminalizes the civilian possession of any ‘electronic dart gun’ or ‘electronic stun gun.’”

Attorneys for the plaintiff, Alan Beck, and Stephen Stamboulieh, should be familiar to readers of AmmoLand Shooting Sports News. They both were instrumental, along with co-counsel Ryan Watson,  in winning a judgment to overturn a similar ban in New Jersey in 2017. Additionally, Stamboulieh has represented this correspondent in numerous Freedom of Information Act Requests and lawsuits and provides counsel in a still-unfolding attempt to win an injunction to forestall ATF’s “bump stock” ban scheduled to “go hot” next Tuesday.

While ceding that “this conclusion does not foreclose the possibility that some restriction(s) on the possession and/or use of tasers and stun guns would be permissible under the Second Amendment” and that New York “might consider” adopting statutes similar to those in another state, Judge Hurd’s order was unequivocal:

  1. Plaintiff's motion for summary judgment is GRANTED;
  2. Defendant's cross-motion for summary judgment is DENIED;
  3. New York Penal Law § 265.01(1), as applied to “electronic dart guns” and “electronic stun guns,” is an unconstitutional restriction on the right to bear arms; and – 28 – Case 1:16-cv-01447-DNH-CFH Document 63 Filed 03/22/19 Page 28 of 29
  4. Defendant, his officers, agents, servants, employees, and all persons in active concert or participation with the New York State Police are hereby ENJOINED from enforcing New York Penal Law § 265.01(1) as applied to “electronic dart guns” and “electronic stun guns.”

The Clerk of the Court is directed to enter a judgment accordingly and close the file. IT IS SO ORDERED.

“We are delighted to vindicate our client’s Second Amendment rights and very pleased with the decision,” Stamboulieh said. “This opinion confirms that the Second Amendment applies prima facie to all bearable arms, as the Heller opinion stated. We will continue to fight against governments that seek to disarm their citizens.”



About David Codrea:David Codrea
David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.

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    BettyAmmolandcarlHeed the Call-upAl Hubbard Recent comment authors
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    Betty
    Guest
    Betty

    I own a tazer n I live in ny got it from NC n will use it as needed

    carl
    Guest
    carl

    dose these mean we can buy stunguns here in new york state? or do we have to wait a set number of time before this rulling takes effect?

    carl
    Guest
    carl

    dose this mean that we can start buying these now in new york state?

    Ammoland
    Admin

    It does not, there are more appeals to come and currently the ruling applies only to CA.

    Al Hubbard
    Guest
    Al Hubbard

    Guys! Guys! You just don’t get it! We, the enlightened elite, here in the Peoples Republic of New York, understand that gun laws don’t prevent crime, but here is how it works: When it becomes obvious that a given gun law doesn’t accomplish a thing, you get to use that as the excuse to pass even more restrictive laws. Ultimately, when all the laws fail to solve The Problem, the only desparate choice left is to get rid of the guns! “Turn ‘em in, boys!” (Who said that?) When that glorious day comes, when that last garbage scow full of… Read more »

    m.
    Guest
    m.

    exercise gun “control” @ your own risk, d-suckers

    Tim Stewart
    Guest
    Tim Stewart

    This change only permits “the possession”. States can still require registration, possession only in the home, licensing, and other forms of controlling access to or possession conditions. But it is a start.

    Green Mtn. Boy
    Guest
    Green Mtn. Boy

    That’s the way the Commie cookie crumbles in New Yorkistan,get over it cupcakes or is it snowflakes,oh and after the SCOTUS decides get ready for more.

    Chuck
    Guest
    Chuck

    Can’t believe that an actual liberal judge appointed by obummer actually ruled in favor of the 2nd amendment. Up your butt Cuomo

    LL
    Guest
    LL

    It’s great, but when it comes down to push vs shove, the 2nd Amendment rules over any anti- right to bear arms state law making them null and void anyway. No Two bit Tin horn politicians/bureaucrats can overrule the Constitution without a Federal Congressional vote to change it.

    John
    Guest
    John

    They must have two thirds of both houses and must be ratified by two thirds of the states

    Tionico
    Guest
    Tionico

    now WHEN will a court in New York State stand up and do the same for the “Black and Ugly” rifles that state now demands to be registered, restricted, etc?

    Cliff
    Guest
    Cliff

    Also pistols that too require permits, and invasion of our privacy, Law enforcement “interviews”, fingerprints, harassment of your “contacts” etc. (as well as the “possibility” of a “denial” because a police officer or “judge’ doesn’t think you need one, but STILL KEEPS the “fees” you pay to apply) The “second” says SHALL NOT BE INFRINGED and THAT should be ALL a Law abiding citizen needs to possess a firearm. That is the “norm” here in COMMUNIST N.Y. thanks to our CORRUPT “emperor” cuomo and his unconstitutional what I call, “unsafe act” shoved through in the dead of night like most… Read more »

    Bill
    Guest
    Bill

    One of thousands of infringements on the Second Amendment, but most of them stand unchallenged and remain in effect, especially in deep blue states. Glad that there is occasional push-back, but it is oh, so rare. So easy for tyrannical politicians, elected by ignorant, propagandized, and public-treasury-bribed voters, to take citizens’ rights away, and so much effort to ever get them back!

    Patriot
    Guest
    Patriot

    Power crazed mentally unstable politicians do not want you to have any way to protect yourself. Apologists say muggers and robbers have a right to rob you! You have to feel sorry for them. There are some people out there who don’t want to work and are more then happy to rob, rape and steal! Politicians now say you no longer have the right to self defense- like in England, so we now want to put a policeman or soldier and surveillance cameras on every street corner- for your own good of course! You must obey your government masters! Resistance… Read more »

    Tionico
    Guest
    Tionico

    but term limits won’t fix a thing until the VOTERS wake up. We all know the DumbDems have an endless stream of owned puppets who will do lak dey massa say…… now we even have proof they find suitable faces and personalities, spend big bux to shove them in front of gullible voters, then trot them out to do their bidding. AOC comes quickly to mind, as do Omar and Tlaib. Same group landed them all seats in the House. And the stupid voters, the root of the problem, buy them up like cotton candy at the county fair. With… Read more »

    WV Bill
    Guest
    WV Bill

    So, this law is unconstitutional. Does that mean that all the politicians that voted for it and that also pledged to uphold the Constitution have a conflict and will resign. If not they should be charged with violation their pledge and put in jail.

    John
    Guest
    John

    Wishful thinking – answer no – actuallly they will get promotions. Look at Andrew Weissmann, committed prosecutorial misconduct against Merrill Lynch, sending executives to prison before an appellant court overturned their convictions, and least we not forgot Arthur Anderson Accounting, obtaining guilty verdicts, sending executives to prison, this time an unanimous Supreme Court reversed the convictions; tens of thousands of jobs lost when the accounting firm went under as a result of Weissman’s conduct.

    He later became Special Counsel Mueller’s lead prosecutor. Accountability? Not hardly!

    Vincent Brady
    Guest
    Vincent Brady

    If it uses a dart, it does shoot a projectile which means other similar projectile gun control type laws could be voided.

    Michael
    Guest
    Michael

    Everything about gun control is unconstitutional

    Jim Macklin
    Guest
    Jim Macklin

    A law that restricts such devices to self-defense or other lawful purpose seems to be legal. That means the using a stun gun, cattle prod or other device in a mugging or robbery could be an additional charge about robbery or mugging.
    IANAL but this seems reasonable since it would only be involving an accutal criminal action.
    Of course I do not live in NY, NJ or CA but totalitarian tyrannies do seem to always push te limits, sometimes even after a court has said they can’t do a thing.

    Heed the Call-up
    Guest
    Heed the Call-up

    Jim Macklin, using anything to commit assault is charged as using a weapon in the commission of a crime, that could even be a purse. Yes, using tasers or stun guns to commit unlawful acts are charged as assault with a weapon, and any other crimes that might be charged, regardless of the legality of ownership of such tools.

    William Ginn
    Guest
    William Ginn

    Awesome

    Walter Goddard
    Guest
    Walter Goddard

    I see a conflict with SB-1310 from Florida.. It looks like a gun!
    What happens when it’s raining outside?
    .. Do we go from just a stun, to electrocution; heart attacks, excessive use of force, etc…?