By Rob McNally, At Large Director
On November 4, 2019, a Cattaraugus County Supreme Court jury of 12 local residents stood up for this country’s right to selfdefense. The jury, overseen by the Honorable Judge Ronald D. Ploetz, handed down the not guilty verdict after only 45 minutes of deliberation.
The trial began October 30 with the prosecution putting on the case of felony Assault against Damien Marvin, a Salamanca resident. Testimony for the prosecution’s case attempted to point to Marvin as instigating a confrontation that began at the Villagio, a restaurant and club in Ellicottville, during an employee Christmas party on December 1, 2018; Marvin and his fiancée were attending it. The prosecution attempted to portray Marvin as the instigator who allegedly became jealous after two brothers, Brandon and Bryan Janesz, had been talking to Marvin’s fiancée.
The defense, led by Benjamin Smith of the Cattaraugus County Public Defender’s Office, presented additional facts that pointed to the Janesz brothers, both in their 40’s, behaving as bullies and attacking Marvin, 26. The brothers attacked Marvin, not just once but three separate times, as the club management was trying to calm the situation and remove all three parties from the location.
Part of the defense’s case presented facts that revealed the Janesz brothers attacked Marvin inside the club, which prompted their removal. Then, they waited outside the club door for Marvin’s removal, where they continued to instigate a confrontation against Marvin, both verbally and with fists. During the last of which, they reportedly ran a distance of 58 yards as Marvin was attempting to leave the scene. They then knocked Marvin to the ground, pummeling his head and face. According to testimony, Marvin once again backed away. When Brandon Janesz attempted to rush Marvin for a third attack, Marvin had already drawn his lawfully carried and possessed pistol and commanded Janesz to stop, three times, alerting Janesz at the same time that he had a gun. As Marvin perceived the threat persisting, he fired a single shot at Janesz which struck Janesz in the abdomen and ended the attack.
The jury agreed with Marvin’s actions by acquitting him of all charges
What remains to be seen is whether or not Marvin and his family will have to undergo further persecution through a civil suit by the Janesz. This is, frankly, almost always a secondary threat to criminal prosecution these days. Even if a case is clearly made and accepted for self-defense in such a situation, all believers in the Second Amendment and our rights for self-defense must be prepared to defend ourselves against criminal charges and then against a lawsuit for monetary damages.
While Marvin’s conduct was judged by his jury to be right and proper, there are those who will insist that because he fired at an unarmed man, he was wrong no matter what the circumstances. The jury in this case understood the lunacy of this belief and found the proper and lawful verdict in acquitting him.
We all must continue our defense against this state’s love of gun control efforts that make this state less safe - not safer. This case seems to confirm that.
While we had members of this organization present during the trial, the attendance was woefully low. An action alert was published to the four surrounding counties of Allegany, Chautauqua, Erie and Wyoming in addition to Cattaraugus County over a week in advance of the trial. Turnout from even Cattaraugus County members was disappointing. We went into this effort without the need for political rant, signs, T-shirts or showmanship. We wanted to simply show support for the defense and did so, but not nearly to the level that would have been appropriate.
This case also identifies the need for our members to educate all citizens on the power of Jury Nullification. In most states if not all states, the law prohibits the jury from being informed during their instructions on their right to this power. Simply stated, Jury Nullification gives the jury the ability to find a verdict of not guilty when their belief is that the law being enforced is unconstitutional in its very existence. That is not to say this is the situation in Marvin’s case. We don’t believe anyone would disagree with the presence of an assault law that protects the citizens from such conduct. However, in the case of gun controls such as Red Flag laws, mandatory storage laws, clearly unconstitutional pistol permit laws that require the state’s permission before purchase and a myriad of others that exist in this state, Jury Nullification can be a very useful tool for the citizens being oppressed.
Jury Nullification is and should be routinely taught and preached. Instead of seeking ways to avoid such duty, as citizens, we must learn that participation in a jury is a valuable means of discarding clearly unconstitutional laws that are forced upon us by a hierarchy of public servants who seem to believe they know what is best for us as ‘mere’ citizens. This is just another means of the checks and balances within our constitutional form of government and it puts power back into the hands of our citizens, where it rightly belongs. We must all strive to educate ourselves and others on all aspects of our Constitution or we stand very dangerously close to losing it all.
By Harold Moskowitz
The American Revolution had been successful but the new nation was deeply in debt. Loans from France, Spain, and the Netherlands had to be repaid. During the war, national and state bonds had been issued. According to the U.S. Treasury’s Bureau of the Fiscal Service, the nation owed 43 million dollars in 1783, and the nation owed 77.1 million dollars by 1791.
Alexander Hamilton was President Washington’s Secretary of the Treasury. One part of his plan for placing the nation on a sound financial footing was repayment of both the national and state war debts. The federal government would redeem all of the bonds in order to establish a good national credit rating.
To raise money for bond redemption, Hamilton proposed an excise tax on whiskey. The law required national registration of all whiskey stills. The owner of the still had to pay the tax. Farmers living on the western frontier converted their grain to whiskey because it was less expensive to ship than the grain. The whiskey was also more valuable than the grain and allowed for a profit after deducting shipping expenses. Kegs of whiskey were used locally as money. Cash was very scarce in frontier areas. The barter system was used extensively.
The small-scale western farm distillers paid a tax of nine cents per gallon. Large-scale eastern distilleries paid six cents per gallon with further tax breaks for correspondingly larger amounts produced. The requirement of paying the tax in cash was a huge burden for the frontier farmers, not for the large commercial distilleries in the East.
Protests immediately broke out in North Carolina, Kentucky, and especially in western Pennsylvania. Many war veterans among the protesters saw the tax as a continuation of the anti-excise tax problem the colonists had faced under British rule. It was viewed as taxation without representation. As isolated frontiersmen, they felt unrepresented by Congress. Cash payment of the tax was a requirement that seemed to open the door to government intrusion into their domestic lives. Furthermore, the tax was considered an abuse of federal authority. They rejected it for wrongly targeting a group of people who, due to their location and circumstances, relied on distilling grain for generating a profit. This perception was accurate.
This is exactly what Hamilton had planned. He represented the interests of the wealthy business community. Business owners needed assurance that the national government would not only pay its debts but that it also could use military force when needed to enforce its tax laws. Hamilton’s plan was to raise revenue while provoking an armed rebellion by the fiercely independent frontier farmers. When that occurred, military force could be used to end it and to punish the leaders. The authority of the government would be established.
The first resistance in western Pennsylvania was in September, 1791. Sixteen men assaulted a tax collector. They cut his hair, tarred and feathered him, and left him in the woods. Protests against the tax were held. There were mass meetings to draft petitions to Congress to repeal the tax. In the fall of 1792, several men ransacked the office of the regional supervisor for tax collection. President Washington issued a proclamation condemning the tax resistors. In September, 1792, a U.S. Marshall arrived with federal court summonses for more than sixty distillers. This resulted in a twenty-five minute gun battle in which one resistor was killed.
That incident led to five hundred resistors facing off against ten soldiers from Fort Pitt. At one point, a large group of armed men came close to deciding to attack the city of Pittsburgh. In 1794, President Washington asked state governors to raise a militia for suppressing the revolt.
An army of slightly less than 13,000 men was mobilized. Washington personally led the militia which was larger than any army he had led during the Revolution. He was accompanied by Hamilton. They captured twenty suspects. Ten were eventually tried for treason. Two were convicted because the definition of treason was expanded specifically for the trials. The altered definition now contained “combining to defeat or resist a federal law is the equivalent of levying war on the United States.” President Washington pardoned both convicted men in 1795. The excise tax on whiskey distilling was repealed in 1802 under President Jefferson.
The “Whiskey Rebellion” was provoked for the purpose of establishing the authority of the new nation’s government. The independent-minded frontier farmers were pawns in Hamilton’s scheme. Perhaps firearm owners should be alert to the possibility that at some point a “revolt” might be instigated by the government for the purpose of mass gun confiscation.
By Tom Reynolds, Treasurer
When standing firm for the Second Amendment, we often oppose even the smallest infringement as the beginning of a “Slippery Slope” to losing the entire right. That Slippery Slope theory deserves more attention.
There are main stream - but extremist - political groups within the United States which abhor the United States. The dictionary defines abhor as regarding “with distrust and hatred”, so that word seems appropriate. These extremists want to fundamentally change (destroy) the United States of America. The USA is not just our Constitution but also our values, traditions and principles, written and unwritten. The extremists hate these values, traditions and principles which made the United States what it is and has been - but not what the extremists want for the future. Their goal is to destroy the USA by eating away at our belief in our principles and make distrust and hatred of them commonplace, so they can eventually be destroyed.
Let’s look as some examples of traditions, values and Constitutional principles that are currently being undermined by the politically correct culture, with the long-term goal of destroying them:
The 1st Amendment says, “Congress shall make no law… abridging the freedom of speech.” But now, if you criticize a liberal you are a racist. College students need to be protected with “Safe Spaces” and “Trigger Warnings” from views with which their professors disagree. Social media censors speech to protect snowflakes from distressful speech. Is this protection needed to defend delicate ears? No. Its purpose is to prevent people from hearing the other side of the argument; the side that history has often proven to be correct.
I grew up under the American tradition of, “I disagree with what you said but I will defend to the death your right to say it”. I doubt if that principle is taught in today’s schools. Now, our Constitutional values are being undermined by liberal social values trumpeted in the main stream media.
The 2nd Amendment says, “…the right of the people to keep and bear Arms shall not be infringed”. Machine guns / automatic rifles have been heavily regulated for over eighty years because of their capabilities. But semiautomatic AR15s are now vilified and legislated against because they look scary. They are no more dangerous than other models that are equally capable but less scary looking. If you can ban a gun based on looks, the road to overturning the 2nd Amendment will be paved with AR15s.
Extremist political groups hate guns because they can be used as protection from a tyrannical / socialist / communist government. Given that our Constitution and Bill of Rights resulted from a war against government, that is a precedent that the extremist politicians find extremely distressful.
The 4th Amendment says, “...no Warrants shall issue, but upon probable cause….” and the 5th Amendment says, “no person shall be…deprived of life liberty or property without due process of law…”. The 14th Amendment reinforces this, “…nor shall any state deprive any person of life, liberty or property without due process of law…” But under the Red Flag laws, there does not have to be probable cause that someone actually committed a crime in order to be deprived of our “Arms”. It only takes some degree of likelihood that one might, in the future, commit a crime. Of course, that one might NOT commit a crime goes unsaid. The problem with the future is that no one has been there yet, so no one can give first person testimony about it, which causes conflict with the 6th Amendment.
Under Red Flags, who can make a charge that one is likely to commit a crime? Basically, any disgruntled person who has an issue with gun owner. A gun owner’s politics, writings and speech are then put under a microscope by bureaucrats beholden to the extreme left’s ideology. And who is the mind reader that decides if someone might be a future threat? A judge with a law degree. And contrary to what Chief Justice Roberts has said, we all know that there are Obama judges and Clinton judges.
Article 2 of the Constitution and the 14th Amendment set up and redefined what is called the “Electoral College”. The main purpose was to give smaller states some protection from the more populous larger states (protection from the tyranny of the majority). Now we constantly hear from the main stream media that the Electoral College must be done away with as the majority should rule, absolutely.
In 2016, Hillary Clinton won the popular vote by over 2 million votes while Donald Trump won approximately 2,600 counties and Clinton won about 500.The Electoral College worked, as planned, in safeguarding the smaller states.
The Constitution sets the minimum voting age at eighteen. State laws set the minimum age to drink alcohol, drive a car and buy cigarettes to the mid to late teens and sometimes to twenty-one. Adults have, for the most part seen these as necessary steps to protect youth from the more dangerous mistakes of inexperience. But extremist groups rejoice when preteens decide they are a different sex than the one in which they were born. Following that line, some extremists want the voting age lowered to fourteen!
Laws, traditions and values recognized the differences in sexes, provided for different restrooms for males and females and recognized only two genders. Now, extremist groups are mainstreaming the belief that there are a virtually unlimited number of genders and it’s everyone’s right to choose which gender they wish to join, irrespective of chromosomes and genitals.
If I had a dollar for every gender, I would have two dollars and a lot of counterfeits.
There is a great example of how this creeping undermining of our traditions and values happens and it occurred within the last eighty years. Until Franklin Roosevelt’s presidency, balancing the federal budget - except in wartime - was an accepted belief. FDR legitimatized heavily unbalanced budgets even in peacetime. This grew, after World War II, into federal peacetime deficits being legitimate as long as they were below a certain percent of the Gross Domestic Product. Then, the Barack Obama presidency blew the lid off of that principle and now deficits receive only lip service, which ignores the inevitable day of reckoning.
The Second Amendment is, quite obviously, bearing the brunt of the unrelenting extremist assault, which goes on over a broad front. Will defenders of our Constitution, values and traditions simply tire and give up under this constant barrage?
Long ago, I noticed a trend when people took on a task that was a “stretch” – that was difficult. When things got challenging, as almost all “stretches” eventually do, people go through a stage I call, “What have I gotten myself into”? Some people quit. But Americans, going as far back as Valley Forge, have labored through defeat, despair, hunger and seemingly insurmountable odds to persevere and win.
The question now is what kind of American are we? Do we surrender to these extremist groups or do we stand firm against even the smallest attack on our liberties? The Slippery Slope is real and it threatens the very core of what it is to be an American.
Nov 15, 2019 Reprinted courtesy of Jim Eckstrom who is executive editor of the Olean Times Herald and Bradford Publishing Co.
LITTLE VALLEY — The Cattaraugus County Chapter of S.C.O.P.E. made a donation of $300 to the Cattaraugus County Santa Sheriff’s Program Thursday evening at Little Valley American Legion Post 531.
S.C.O.P.E. chairman Mike Wesley presented the donation to Sheriff Tim Whitcomb, who was invited to speak at the meeting that evening. The sheriff explained his office works in partnership with the Division of Social Services and Cattaraugus County Community Action to identify families who are in need for the holidays. The Sheriff’s Santa Program provides these families with a Christmas meal and gifts. Last year approximately 40 families benefited.
S.C.O.P.E. (Shooters Committee on Political Education) is a statewide organization dedicated to Second Amendment Rights with county-based chapters. The local chapter raises funds through the sale of raffle tickets and S.C.O.P.E. merchandise.
By Richard Rossi, Delaware County
I would like to bring to light an issue which has gone unnoticed, a process of our legal system that is and has been a well-kept secret; JURY NULLIFICATION.
Jury nullification occurs when a trial jury reaches a verdict that is contrary to the letter of the law because the jurors either: disagree with the law under which the defendant is prosecuted or believe that the law shouldn’t be applied in the case at hand.
If you have never heard the term Juror Nullification don't be surprised, it is NOT something that Judges, District Attorneys, and Prosecutors readily speak about to juries or Grand Juries. It is a way for citizens to defend against laws that are unconstitutional and infringe on our Rights and Freedoms. Jury Nullification may be the final peaceful barrier between law abiding gun owners and a tyrannical government dependent upon disarming honorable citizens.
However, to use it you must get on the jury. Therefore, when you get a jury duty notice, be grateful and appreciative. You have a tremendous responsibility which should not be taken lightly. Once on that Jury or Grand Jury you can nullify any and all laws that infringe our right to selfdefense of our loved ones and ourselves. Self-preservation is a natural instinct of human mankind and no government has the right to take that away from you.
A bit of history about “Jury Nullification”. Alexander Hamilton, an American Founder, said that Jurors should acquit even against the judge's instruction... "if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong." One court later ruled, "If the jury feels that the law under which the defendant is accused is unjust... or for any reason which appeals to their logic or passion, the jury has the power to acquit and the courts must abide by that decision - (U.S. V Moylan 427 F 2d 1002, 1006, 1969)
Reasoning jurors defend liberty when they refuse to convict fellow citizens who are maliciously accused of crimes. Reasoning jurors freed tax protesters during the Whiskey Rebellion of 1794, slaves under the Fugitive Slave Act in 1850 and during Prohibition.
Who is the most powerful person(s) in a jury trial? Some might say the judge. However, it is the JURY. The Citizens that compose the jury are ultimately responsible for the guilt or innocence of the individual on trial. Judges may and do give you the law that pertains to a particular case and the prosecution may claim that they have made their case beyond a reasonable doubt. However, you, as the jury, decide the verdict.
The defense of our liberties happens at the ballot box, the soap box and the jury box. The founding Fathers (writers of our US Constitution), understood that power always corrupts and that people must retain and understand the various ways to defend oneself from one’s own government.
Let’s look at a modern-day case – Bernard Goetz. The jury defended Goetz’ Right of Self Defense with a firearm on the New York subway system against multiple attackers. The government accused Goetz of several crimes, but a jury of his peers refused to convict him of all but one crime, thus defending his right to defend himself. The jury acquitted Goetz because members of the jury understood their authority to judge the law and refused to apply laws that the government imposed.
Be aware that the chances of being punished for practicing Jury Nullification are remote, but possible. The law limits the courts' ability to inquire into jurors' motivations during or after a verdict. Jurors cannot be punished for their verdict, even if they reached it improperly. However, there could be legal consequences if it can be proved a juror violated an oath or on some technical legal grounds.
Juror nullification is your right to refuse to enforce bad laws and bad prosecutions. Nullification is your personal veto over corrupt laws from corrupt politicians with political agendas. In our system of checks and balances, you, the juror, are the final judge of law and justice. We can stand up for our Rights and Freedoms against our legislators and judges who dictate laws that are unjust. We can take back our justice system. We the jurors have the power... JURY NULLIFICATION.
As a Law-abiding gun owner or Concealed Carry Permit holder especially in New York State where our Second Amendment Rights are constantly being attacked and regulated to the point that the 2nd Amendment is just words with no meaning - this is an opportunity to shine. You can make the NYS SAFE Act into just words without power - just like they are attempting to do with our Second Amendment Rights and Freedoms.
As a side note, even if you are not a juror, you can be active; become a 'Court Watcher'. You have a right to attend most court trial functions. Just like the 'media' you can voice your opinions in your local papers in the letter to the editor sections. You can voice your agreement or disagreement with the results (verdict) and the actions of the court officials. We still have freedom of speech; the more individuals that are keeping a 'watchful eye' on our judicial process the better for all of us.
The same holds true for Town Meetings, School Board Meetings and 'Town Hall' events. When the public does not show up, it sends a message to our various boards that they can do as they please without and consequences. No one is watching or caring. Attend, be vocal and defend your convictions. You can make a difference.
You can learn more about this by visiting WWW.FIJA.ORG or calling 1-800-TEL-JURY to get more detailed information. I strongly suggest that you visit this site for informed citizens are what keeps our Government in check.
By Gene Nolan Chairman, Monroe County S.C.O.P.E. Chapter
Monroe County S.C.O.P.E. welcomed a 2nd Amendment Defense Attorney, and Michael Bezer, who works in the Monroe County District Attorney’s Office, to a recent meeting where they discussed home invasion. I thought it important to pass on a few of their more meaningful comments to all SCOPE members.
The attorney began the discussion by reviewing the NYS law as it applies to home invasion. Under the law, there are two justifiable reasons to kill someone: If you are in danger of being seriously injured or killed by that person; or If you are in your own home and are trying to stop a burglary (or arson) in progress. But there’s also a key, real-world element to such a defense; your actions must be reasonable. The “reasonableness standard” is determined on a case-by-case basis, which means that it’s typically up to grand juries or trial juries to determine if someone’s actions were reasonable.
Michael further explained the definition of burglary in NYS; a person is guilty of committing burglary in the third degree - the least of the burglary offenses - when he or she "knowingly enters or remains unlawfully" in a building with the intent to commit a crime therein.
Examples and scenarios were exchanged back and forth with the audience. The gist of which seemed to be that use of deadly force may well be legal, but it may come with severe consequences. If you shoot someone it is likely you will be arrested, spend some time in custody, lose your weapons for a period of time and spend a good amount of money on legal defense. Yes, you will be guilty until proven innocent. Yes, this in unconstitutional. Yes, this is reality. Life is messy. On the other hand, you will be alive to endure all this. You have a right to self defense if your life is threatened.
Multiple attendees asked what we should do in the event we shoot someone in our home in a home invasion. The answer was Call 911, Surrender Immediately upon the arrival of law enforcement (gun down, hands up), state your willingness to cooperate and make a statement as soon as your attorney is present.
Michael Bezer suggested we review the NY CJI Criminal Justice Instruction.
In Summary: 1
1. Avoid the situation if at all possible. If there is an escape route, take it.
2. If you are confronted with a threat to your life, your family’s life , then and only then use deadly force.
3. Shoot and keep shooting until the threat is completely immobilized.
4. Call 911, report a shooting – that’s all.
5. When police arrive - weapon down, hands up.
Cooperate fully with police BUT make NO statements until your attorney is present.
By Michael. A. Morrongiello, PhD
New York’s “Red Flag Law” is supposed to protect us from gun violence. Instead, it sets dangerous precedents that radically alter our judicial system and erode our individual rights.
The new law allows people to apply for an “Extreme Risk Protection Order” (ERPO). To apply, a petitioner (someone who feels threatened) must ask a Supreme court judge to remove the lawfully possessed firearms of a respondent (the person accused of dangerousness). Here’s the definition (Sec. 630 -1):
“Extreme Risk Protection Order means a court-issued order of protection prohibiting a person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun.”
It sounds good but the devil is in the details, and there are a lot of details. Who can ask for an ERPO? Law enforcement and school personnel, to name two…. but school personnel means just about everyone except the janitor and secretary (2- c).
“…..school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching license or certificate, and full or part-time compensated school employee required to hold a temporary coaching license or professional coaching certificate.”
No experience in threat assessment is necessary; if you feel threatened you can apply.
Family members can petition too, but the definition is broad and comes from NYS Social Services law (459-A). It includes married or divorced persons, parents not married who have children in common. And it includes persons who have had an: “intimate relationship…..regardless of whether a relationship is sexual in nature or frequency of interaction between the persons; and the duration of the relationship.”
You can imagine the potential flood of petitions from people who are duking it out in divorce court.
Also included are, “any other category of individuals deemed to be victims of domestic violence…...”
The law empowers the following organizations,
“Residential programs for victims of domestic violence,” “Domestic violence shelters,” “Domestic violence programs,” and finally “Non-residential program for victims of domestic violence.”
A firearms owner who has gone on a date or had a brief relationship can be accused. What does “deemed to be a victim of domestic violence” mean, and who does the deeming?
The confiscation of rights and guns begins (S. 6341).
“In accordance with this article, a petitioner may file a sworn application, and accompanying supporting documentation, setting forth the facts and circumstances justifying the issuance of an extreme risk protection order….Such application form shall include inquiry as to whether the petitioner knows, or has reason to believe, that the respondent owns, possesses or has access to a firearm…..”
If the court deems the accused a risk, they will issue a temporary ERPO. The accused need not be present. You can be denounced as a “potential” murderer and not even be present to defend yourself. In legal language this is known as “exparte” (S 6342-1). Judges have historically avoided this, until now.
“….the court may issue a temporary extreme risk protection order, ex-parte or otherwise, to prohibit the respondent from purchasing, possessing or attempting to purchase or possess a firearm…….upon finding that there is probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others…..”
The judge is now a mind reader. The phrase, “likely to engage in conduct...” turns American justice inside out. Now the accused, instead of being innocent until proven guilty, is assumed guilty. The accused does not face his accuser, shifting the entire process. Will the accused have to answer the question, “When did you stop being a menace to society?” This is as totalitarian as it gets.
The court may consider the following (S 6342 2 a,b,c,d,e,f,g):
"In determining whether grounds for a temporary extreme risk protection order exist, the court shall consider any relevant factors including but not limited to, the following acts of the respondent: (a) a threat or act of violence or use of physical force directed toward self, the petitioner, or another person; (b) a violation or alleged violation of an order of protection; (c) any pending charge or conviction for an offense involving the use of a weapon; (d) the reckless use, display or brandishing of a firearm, rifle or shotgun; (e) any history of a violation of an extreme risk protection order; (f) evidence of recent or ongoing abuse of controlled substances or alcohol; or (g) evidence of a recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefore."
Each of acts A thru F already violates the law, and results in a denial of purchase on the NICS Federal database and the arrest and removal of a person’s weapons under existing NYS law. Then, “the court shall consider any relevant factors,” a gaping hole that any judge can use to deny a constitutional right. The purchase of ammunition six months prior to the petition fits the definition of “recent.” A lawful gun owner is now a suspect. An “alleged violation of an order of protection” is a reason to grab the accused’s guns. Alleged by whom and substantiated by what?
The gun removal standard is frighteningly low. Note the language in S. 6342 3.
"The application of the petitioner and supporting documentation, if any, shall set forth the factual basis for the request and probable cause for issuance of a temporary order. The court may conduct an examination under oath of the petitioner and any witnesses the petitioner may produce."
What is the supporting documentation, “if any”, to have someone deemed a threat? Then note that the court “may” examine the petitioner and any witnesses under oath, not shall but may: advantage accuser— disadvantage gun owner.
If the judge grants a temporary ERPO, a horde of locked and loaded police will serve the order and confiscate the accused’s guns, creating an unwarranted risk for all. He must provide a list of all of his guns to the authorities (S. 6342 4, iii, e). The hearing to determine if the order should be permanent is scheduled in 3 to 6 business days. The law mandates a quick pace, but what government agency moves rapidly? The judicial calendar is already swamped. The accused is advised that he “may” need an attorney. “May?”
If the court does not grant the temporary ERPO, the hearing still goes forward, unless the petitioner withdraws the accusation (6342 5).
“If the application for a temporary extreme risk protection order is not granted, the court shall notify the petitioner and unless the application is voluntarily withdrawn by the petitioner, nonetheless schedule a hearing on the final extreme risk protection order.”
The court then informs every law enforcement agency involved in the temporary order, including the FBI (7 (a) (b)). The accused’s reputation is damaged.
At the hearing the burden now shifts to the accuser, who must prove the accused is a threat. The court will be cautious; it will scrutinize the accused, and likely terminate his rights to err on the side of caution. Never mind the legal smokescreen of a “civil” proceeding; the criminal implications are massive and life-altering. The respondent stands accused of (maybe) joining the ranks of humanity’s lowest scum— a murderer or worse, a mass murderer. Then there’s the matter of expense. Attorneys cost, and the respondent may also have to hire an expert. What if the accused can’t afford a lawyer, let alone an expert? People on the lower end of the economic spectrum will at a major disadvantage.
“At the hearing pursuant to subdivision one in this section, the petitioner shall have the burden of proving by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to himself or others...”
If the order is made permanent, the police takes the accused’s firearms. The court will also notify all involved law enforcement agencies. If the court does not find sufficient cause to make the order permanent, then the firearms are returned.
This will only affect lawful gun owners. Criminals need not worry - they will still be able to get guns.
In the movie Minority Report, citizens are arrested before they commit a crime because three psychics can predict what they will do. But in New York State, our unique Constitutional rights hinge on the opinion of one lawyer in black robes peering into the human heart to predict the future.
Tim Andrews, At Large Director
We’re told, time and again, that Governor Cuomo’s gun control schemes are all about protecting New Yorkers. In fact, we’re told by Cuomo and his fellow gun grabbers in the legislature that it’s not about gun control - it’s about “gun safety.” Of course, we view it very differently; the only people safer as a result of Cuomo’s assault on the Second Amendment are criminals. A few examples: mass shooters love gun free zones; limits on magazine size are, again, advantage to the criminal. I could go on and on, but you get the point.
Apparently, the safety of New Yorkers is no longer a priority. Last April the New York State Legislature and Governor Cuomo passed and signed into law bail reform legislation. Bail reform is a misnomer, it’s closer to eliminating bail altogether. To name a few crimes not subject to bail: making a terroristic threat, robbery, criminal possession of a weapon on school grounds, selling drugs on school grounds and promoting an obscene sexual performance by a child are all subject to appearance tickets, which do not require bail. A full list of offenses not requiring bail can be found at the end of this column.
An appearance ticket is like a traffic ticket, you’re issued a ticket and expected to show up in court on a specific date. Rest assured though, New York City has it covered. They will offer New York Mets and theater tickets to defendants if they show up for their court dates; what could go wrong there.
I’m reminded of my youth when I did something stupid and my father would ask, “What the hell were you thinking?” To our governor and our state legislature I ask, “What the hell were you thinking”?
The violent crime rate has consistently gone down over the last thirty years, and that has worked against the argument for more gun control. I’m beginning to think that gun control advocates want more crime, especially with guns, to help them advance their cause of controlling and disarming law-abiding Americans. I suppose that some might consider that cynical, but how else do you explain this insanity coming from Albany?
The governor’s plan becomes more obvious by the day, disarm law-abiding New Yorkers and put more criminals on the street. Thank you, governor, for not keeping us safe.
Effective January 1, 2020, crimes for which a defendant must be released from custody, without bail:
The measures are the latest this year by Cuomo and the state Legislature to bolster gun-control laws in New York and build on the SAFE Act, approved in 2013.
"For too long gun violence has plagued communities across our nation and while the federal government turns a blind eye, New York continues leading the way forward to protect our families and our children," Cuomo, a Democrat, said in a statement.
Expanding background waits
The expansion of the waiting period was among a half-dozen gun bills the Democrat-led Legislature approved in January.
The measure, supporters said, was spurred in part by a mass shooting in Charleston, South Carolina, in 2015, when the shooter was sold a gun through the system by error.
Current federal law requires gun dealers to conduct a National Instant Criminal Background Check System check on a potential purchaser prior to selling a firearm. The check immediately provides the dealer with one of three possible notifications: "proceed," "denied," or "delayed." The new law, which takes effect in 45 days, applies to the cases in which when a request is "delayed." State law had required a dealer to wait three days before completing the sale, even though the FBI may still have been conducting a review of the customer's records.
The problem, lawmakers said, is that a sale can sometimes be completed before a person's review is finished and before the FBI rules a person is ineligible for a gun.
"This law will build on our already strong gun laws by ensuring that law enforcement has sufficient time to complete a background check without impinging on the rights of law-abiding citizens," Paulin, the bill's sponsor, said in a statement.
Banning Bump Stocks
The ban on bump stocks gained prominence after the 2017 mass shooting in Las Vegas that killed 58 people. The shooter used the device.
The devices have been deemed dangerous because they can essentially make semi-automatic weapons into machine guns, allowing shooters to fire ammunition faster than they could otherwise.
Since machine guns are already banned in New York, Cuomo and state lawmakers agreed in January to also ban bump stocks.
The law bans the possession, manufacture, transportation, shipment and sale of any items that accelerates the firing rate of firearms, rifles or shotguns.
"There is absolutely no need for military-grade weaponry on the streets nor homes of New York," said Sen. Luis Sepúlveda, D-Bronx, the bill's sponsor.
By Bill Fox Chairman Genesee County SCOPE Chapter
It’s important to understand the mentality of those on the left who oppose the 2nd Amendment. Toward that end, on July 29th, Genesee County SCOPE members attended a town meeting sponsored by Congressman Joe Morelle, in Irondequoit. Two members were able to get inside while two more remained outside and were seen on TV. The crowd was heavily anti-2nd Amendment.
Joe Morelle is an anti-2nd Amendment Congressman who claims to have never shot a firearm, (which, of course, makes him an “expert” on the subject). He supports background checks, banning assault weapons, and red flag laws and is against concealed carry laws. It should be noted that there were seven police officers there; all armed. But, the hypocrisy of that was unmentioned by the congressman.
Morelle was asked if he knew what the 2nd amendment was about and he responded that the militia were from the 1700’s and currently not used. Obviously, he is not familiar with SCOTUS’ Heller and McDonald decisions.
Amazingly, he wants to bring back the expired assault weapons ban which was not renewed since it was shown to be ineffective. But hey, nothing like passing an ineffective law to get your anti-2A credentials punched.
Morelle wants to “Harden” gun shops with more inspections and hire more ATF agents. Presumably, he does not want any of the new hires going anywhere near our southern border with Mexico. Probably a good thing since there may be left over “Fast and Furious” guns from the Obama administration still around to be used against ATF agents.
Morelle said, “Even if you support the 2nd amendment, children should not be killed”; obviously looking for sympathy votes. Genesee County SCOPE chair Bill Fox responded, “Why are you murdering babies then?”.
A few of the pro 2A people shouted that the SAFE Act has made criminal felons of us.
It’s interesting that the forum was held in Irondequoit, rather than the city of Rochester, which is in Morelle’s district, and where the majority of the crime occurs. The new City of Rochester Police Chief was present, but questions were blocked regarding crime issues. There was an attempt to discuss the causes and effects of black crime but that was branded as “racist”; the usual way Democrats avoid discussing unpleasant (to them) issues.
A Monroe County SCOPE member offered to bring Morelle to a firing range to learn how to use a gun and shoot. No one is holding their breath until that occurs. The congressman would not want to become familiar with things about which he is legislating.
One woman commented that the common denominator is that the gun is the last one to ask questions. (Whatever that means?) She feels that all guns should be banned and none should be possessed. (That ol’ Constitution is such a hindrance to deep thinkers, like her, on the left.)
Joe feels that universal background checks will fix all the gun violence. Does he also believe that if he leaves a tooth under his pillow the Tooth Fairy will leave a dollar?
Monroe County chapter will continue to publicize Morelle’s (mis)understanding of gun laws.
It’s frightening to observe, first hand, the total lack of understanding about the 2nd Amendment and the hypocrisy of the left.
In the thirteen colonies, as in England, all free men were entitled to keep arms. All able-bodied men in the colonies were expected to use those arms as members of the local militia when mustered in defense of the community. Without that tradition of personal firearm ownership, the successful revolt for independence from Great Britain could not have been possible. It is true that much aid was supplied by France, Spain, and Holland. However, those nations resisted getting involved until colonial military success could be demonstrated on the battlefield. At the onset, colonial farmers may have lacked the skills of military drill but knew how to accurately fire their muskets, fowling pieces, and hunting “long rifles” against British regulars and hired Hessian mercenaries.
Having succeeded in winning independence from the British Empire, the leaders of the new nation wrote the Articles of Confederation as their constitution. Under it, during the “Critical Period” (1781-1789), the former colonies became sovereign states loosely cooperating in a confederation. The central government was given almost no power. In particular, it had neither the power to tax nor the power to raise an armed force to maintain “domestic tranquility.”
The states held government powers which in our present Constitution are delegated to the national government. Under the Articles of Confederation, only states taxed their people and could muster a state militia to put down threats to life, property, or the civil society.
Considering that British tax policies were a major cause of the Revolution, it is perhaps ironic that the first armed citizen revolt was triggered by taxes. Massachusetts farmers such as Daniel Shays were subsistence farmers growing basically just enough to provide enough annual family food with a little extra for use as payment for goods and services in a barter system.
Credit payments and state real estate taxes could only be paid with gold or silver coins. Shays and his neighbors were saddled with bank loans. In addition, Massachusetts took land taxes equaling about one-third of their total yearly income. State courts foreclosed on the farmers leaving many homeless and without any means of support. Many were still waiting for promised payment for their military service during the Revolution. Since they were now debtors for non-payment of bank loans or state taxes, they faced being sentenced to spend years in the hellish conditions of debtors’ prison.
In 1786, Daniel Shays, a former captain in the Revolutionary War, became a major leader in an armed revolt triggered by Massachusetts tax policies. Western Massachusetts farmers demanded tax policy reforms. After years of poor harvests and low crop prices, they wanted lower taxes and the printing of more state-issued paper currency. The state legislature had suspended tax collections for the previous year but now required immediate full payment of all owed taxes. Shays and his followers protested at state courthouses. Their actions prevented the collection of taxes.
News of the tax protests spread to other states. George Washington was disturbed by them and wrote to a friend that: “commotions of this sort, like snow-balls, gather strength as they roll, if there is no opposition in the way to divide and crumble them.” Under the Articles of Confederation the national government had no power to act.
In December, 1786, Massachusetts Governor James Bowdoin mobilized a 1,200-man militia paid for by private merchants to stop the tax revolt. In January, 1787, Shays’ band of farmers attacked the federal armory at Springfield. The attack on the armory failed due to the state militia’s use of artillery against the attackers. Four of the rebels were killed and twenty of them were injured.
Many of the rebelling farmers scattered into the countryside ending the tax rebellion. Four thousand men signed confessions stating their participation. They were given amnesty. Several hundred were indicted at a later date on charges related to the revolt. Most of those indicted were pardoned but eighteen, including Shays, were sentenced to death for treason. Two of them were hanged for thievery. The rest were pardoned, had their convictions overturned on appeal, or had their sentences commuted. Daniel Shays had fled to Vermont where he lived the life of a fugitive in a forest. He was pardoned in 1788, and moved to Conesus, New York, where he lived in poverty until his death in 1825.
The “threat” posed by Shays’ Rebellion convinced George Washington to leave retirement to get back into public service. According to Robert Longly of “Thought Co” which is part of the Dotdash publishing family, Thomas Jefferson was not frightened by the armed uprising. His belief was that it was important for liberty that there be a rebellion from time to time. Longly states that in a letter from Jefferson to U.S. Representative William Stephens Smith dated Nov.13, 1787, Jefferson wrote: “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.”
Although Shays’ Rebellion was easily ended, it was a catalyst which prompted men of wealth and property to push for a constitutional convention. Their goal was to create a stronger central government than what existed under the Articles of Confederation. They feared that asmaller state than Massachusetts might not have been able to stop such a revolt before it was able to spread to other states. From their perspective, the national government needed to be strong enough to protect order and stability for commerce as well as for protection of life and property.
Despite the fears raised by this grassroots rebellion against unfair court practices and high taxes (four times higher than New Hampshire), the Founders still believed that the right of free men to keep and bear arms was essential for the constitutional republic which they had created only months after the rebellion was quashed. Four years after this revolt by angry and scared farmers, the Second Amendment was enshrined in our Bill of Rights for the prevention of oppressive government and tyranny, as well as for personal defense. Today, an armed populace still has a better chance of remaining a free populace.
A 2nd Amendment Defense
Organization, defending the
rights of New York State gun
owners to keep and bear arms!
PO Box 165East Aurora, NY 14052
SCOPE is a 501(c)4 non-profit organization.
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