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1-9143904278 Page 2 of 5 2010-08-1617:35:45 (GMT) Alan Gura From: Alan Gura

C;UftA &. POSSESSKY, P.L.L.C.Virginia Washington, D.C.

101 N. COLUMBUS STREET, SUITE 405 ALEXANDRIA, VIRGINIA 22314

TEL 703.835.9085/FAX 703.997.7665

The Hon. Cathy SeibelUnited States District Court JudgeUnited States Courthouse300 Quarropas StreetWhite Plains, NY 10601-4150

VIA :FAX TO 914.390.4278Re: Kachalsky v. CacaseU.S. Dist. Ct., S.D.N.Y. 1O-CV-5413-CS

Dear Judge Seibel:I represent the Plaintiffs in the above-referenced case, Alan Kachalsky, ChristinaNiko!ov, and the Second Amendment Foundation, Inc. ("SAF"). This lettcr is submitted pursuant

to Your Honor's Individual Practices to respectfully requcst the scheduling of two motions: (1) amotion to add parties, and (2) a cross-motion for summary judgment. Plaintiffs wiJI respondseparately to Defendants' letters seekingto schedule motions to dismiss.BACKGROUND:

Plaintiffs do not, and would not, seek "invalidation of New York's 'full carry' licensingprovisions." State Defs.' Letter, Aug. 13. )Jew York regulates the licensing of handguns in avariety of ways, but only a single regulation is here at issue: the constitutionality of New York'srequirement that individuals demonstrate "proper cause" to obtain a permit to carry a handgun.N.Y. Penal Law 400,00(2)(1). That provision was administratively applied against Kachalskyand Nikolov, and it imposes a standard that most of SArs members and supporters cannotsatisty. This provision also imposes organizational costs upon SAF.

Plaindffs contend that because the bearing of arms is a fundamental right, the state maynot force individuals to demonstrate a need to exercise it regardless of however else the statelicenses or regulates that right. Thus, while the right at issue is newly-recognized hy the SupremeCourt, the concept underlying this case is not: individuals may not be required to demonstrate"proper cause" for exercising a fundamental right. The need to engage in constitutionallyprotected conduct is inherently recognized by the right's codification. Moreover, because the

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The Hon. Cathy SeibelPage Two

There are no othet" issues in this case. Plaintiffs again stress that this litigation does notchallenge the state's ability to license the carrying of handguns, nor does it challenge any otherlicensing provision, nor do Plaintiffs question the state's abiLity to regulate the time, place, andmanner of carrying guns pursuant to constitutional standards. Obviously, the state can license andregulate the carrying of guns in the interest of public safety, subject to any relevant constitutionalstandards. At least some of New York's laws in this regard are plainly constitutional and, in anyevent, nothing beyond the "proper cause" requirement is here at issue. Plaintiffs have compliedwith aU other licensing provisi.ons. The Defendants have never contended otherwise.

* * *New York law sets out certain requirements for individuals wishing to obtain a permit tocarry a handgun, induding criminal background checks and training requirements. Plaintiffs havesatisfied all of these requirements but one: they cannot show, to Defendant,>' satisfaction, "propercause" for the issuance of a permit. ).few York Penal Code 400.00(2)(f). For this reason--andthis reason alone-Defendants eacase and Cohen denied Plaintiffs Kachalsky and Nikolov,respe.ctively, permits to carry handguns for self-defense. Defendants Cacase and Cohen mayusually be judges, but that is not aU they are: in denying the permits, Defendants actcd pursuantto discreet authority designating them as administrative licensing officers, on par with otherdecidedly non-judicial government employees. I No judicialfunction is questioned in this lawsuit.

Cacase and Cohen acted upon the recommendation of Defendant Westchester County'spolice department. On information and belief, Defendant County recommended that the pennitsbe denied for lack of "proper calise" and for no other rea">CHl, e.g., failure of a criminalbackground check. Plaintiffs readily concede and admit that they cannot satisfy the "propercause" requirement as authoritatively interpreted by New York courts and applied against them.MOTION TO ADD PARTIES

Tn their August 13, 2010 letter to the Court, Defendants Cacase and Cohen suggest thatthe case might be dismissed because their actions preceded the Supreme Court's June 28, 2010decision in McDonald v. City ofChicago, 130 S. Ct. 3020 (2010)/ which binds them to obeySecond Amendment standards. The unavoidable suggestion is that Defendants might reach adifferent conclusion with respect to the permit applications today. However, eacase and Cohenhave not sought to moot this litigation by issuing Kachalsky and Nikolov their requested pe11l1its.

1"Local licensing officers [are] often local judges," but not always. Bach v. Pataki, 408 F.3d 75, 79 & n.7 (2d Cir. 2(05) (citing N.Y. Penal Law 265.00(10)). Depending on which town, city, or county an applicant resides in, or on the applicant's former employment, the licensing officer may also be a police commissioner, sheritT, or the state police superintendent. 2Undersigned counsel is counsel for the McDonald plaintiffs.

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The Hon. Cathy SeibelPage ThreeAlthough Plaintiffs do not believe this defense has any merit, there is a simple way to

avoid the issue altogether. Plaintiffs' counsel are in contact with another local individual whosepermit was denied under Section 400.00(2)(t) since June 28, 2010 (because, quite obviously,Defendants and other licensing officers are still applying this statutory provision). This individualcould immediately file a similar lawsuit, which would then be consolidated with this action. Themore efficient course of conduct would be to allow this person to join as party plaintiff, bringingwith him an additional party defendant who acted as licensing officer in that case. Counselshould soon know whether this course of action is viable.

"Rule 21. F.R. Civ. P grants the court broad discretion to permit a change in the parties atany stage of a litigation. The court's decision to permit joinder is based on whether the claims ofthe addi lionaJ plaintiffs al'Ose out of the same or separate acts or occurrences; whether the partyseeking joinder has unnecessarily delayed the proceedings; and whether thc nonmovant would bep r ~ i u d i c e d by the addition." Four Star Capital Corp. v. Nynex Corp., 183 P.R.D. 91,9&(S.D.N.Y. 1997) (citations and internal quotation marks omitted). Additionally, "[p]arties maymove pursuant to Rule 15(a), Fed. R. Civ. P., to amend their pleadings to add new plainLiffs tothe litigation." fnt'[ Union ofBricklayers & Allied Craftsmen v. Hud'Jon Valley Dist. Council,162 F.R.D. 17,24 (S.D. N.Y. 1995) (citations omitted).

The transaction here is the same: application of Section 400.00(2)(f). No delay hasoccurred; indeed, Defendants have yet to respond to the original complaint. Nor wi.ll anyone beprejudiced by the proposed amendment, since the scope ofthe legal claims will remain unaltered.And in the absence of amendment, the prospective new plaintiff may well file his ovm, identicallitigation, as he, too, may wish to have his constitutional rights considered.CROSS-MOTION FO R SUMMARY JUDGMENT

Aside from a variety of non-substantive claims to be addressed separately, Defendantsdispute that the Supreme Court has in fact upheld the tight claimed by Plaintiffs. The standardpractice called for by the Federal Rules of Civil Procedure for resolving this type of dispute iscross-dispositive motions. That is, after all, how District qfColumbia v. Heller, 128 S. Ct. 2783(2008) was decided on plaintiff's motion for summary judgment. Parker v. District ( ~ f Columbia. 478 F.3d 370,401 (D.C. Cir. 2007), o:ll'd sub nom Heller, 128 S. Ct. 2783.'

In Heller, the defendant argued that the Second Amendment's use of the term "beararms" was understood to have an exclusively military idiomatic meaning, e.g., to soldier, or gointo battle. The Supreme Court rejected the argument, holding. "[a]l the time of the founding, asnow, to 'bear' meant to 'carry.'" Heller, 128 S. Ct. at 2793 (citations omitted). To "bear anns,"as used in the Second Amendment, is to "wear, bear, or carry . . . upon the person or in theclothing or in a pocket, for the purpose . . . of being anned and ready for offensive or defensive

'Undersigned counsel was counsel for Heller.

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The J10n. Cathy SeibelPage Fouraction in a case of con1lict with another person." Heller, 128 S. Ct. at 2793 (quoting Muscarellov. United States l 524 U.S. 125, 143 (1998) (Ginsburg, J., d i s s e n t i n g ) ~ BLACK'S LAW DICTIONARY214 (6th Ed. 1998)); see also Heller, 128 S. Ct. at 2804 ("the Second Amendment right,protecting only individuals' liberty to keep and carry arms . . ."), at 2817 ("the right to keep andcarry arms") (emphasis added).

Having defined the Second Amendment's language as including a right to "cany" gunsfor self-defense, the Supreme Court helpfully noted several exceptions that prove the rule.Explaining that this right is "not unlimited," in that there is no right to "carry any'\veaponwhatsoever in any manner whatsoever and for whatever purpose," Heller, 128 S. Ct. at 28 t6(citations omitted), the Court confirmed that there is a right to carry at least some weapons, insome manner, for some purpose. The Supreme Court then listed as "presumptively lawful,"Heller, 128 S. Ct. at 2817 n.26, "laws forbidding the canying of firearms in sensitive places;' id ,at 2817, confirming both that such "presumptions" may be overcome in appropriatecircumstances, and that carrying bans are not presumptively lawful in non-sensitive places.Summary judgment is appropriate not only because there are no conceivable relevantfactual disputes. The motions to dismiss will likely be converted to summary judgment motions

as Defendants indicate they will rely on the administrative record. By default, a summaryjudgment motion may be filed at any time, Ped. R Civ. P. 56(c)(1)(A). In the unlikely event anyDefendant requires additional facts, that Defendant could respond to the motion under Rule56(f). Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-39 (2d Cir. 1994). "[N]either bareallegations nor mere speculation will suffice to stay a motion for summary judgment." Owusu v.HSBC Bank USA, 655 F. Supp. 2d 308,330 (S.D.N.Y. 2009); Four SIal', ]83 F.RD. at 99. Aparty invoking Rule 56(1) "must furnish enough infonnation to convince the court that it is 110tengaged in a fishing expedition for claims that have no hope of being substantiated." lei.

Thank you in advance for your consideration. All parties will receive a copy of this Lettersimultaneously via facsimile transmission.

S i ~ ~ ~ ~ a

cc: Anthony J. Tomari (via fax to 212.416.6075) Melissa-lean Rotini (via tax to 914.995.3132) Vincent Gelardi (via fax to 914.253.(909)

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+1-9143904278 Page 1 of5 2010-08-1617:35:45 (GMT) Alan Gura From: Alan Gura

FACSIMILE COVER SHEET

From: Alan GuraGura & Possess.ky, PLLC (703.835.9085/Fax 703.997.7665)

To: The Hon. Cathy Seibel, 914.390.4278Cc: Melissa-Jean Rotini, 914.995.3132Anthony J. Tomari, 212.416.6075Vincent Gelardi, 914.253.0909Re: Kachalsky v. Cacase, No.1 O-CV-S4 I3-CS

Five pages including this cover sheet

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http:///reader/full/Possess.kyhttp:///reader/full/Possess.ky