From the New York Law Journal, this decision from Justice Daniel Martin in Nassau County in Leto v. Mulvey, 007560/08, seems as if it’s almost out of a time warp. The petitioner, John Leto, is a private investigator who is trying to get his pistol license back, after a number of allegations by his ex-girlfriend of threats and menacing.
The decision recites at some length and detail the various threats that brought Leto the attention of the police. But ultimately, the former girlfriend, Donna Composto decided not to pursue prosecution and all charges against Leto were dropped. That didn’t mean, however, that the cops were going to give him his weapon back. And Leto claimed that without his gun, he would be at risk in the performance of his work as a PI.
One wrinkle in the case is that Leto was pro se. That being the case, it’s somewhat understandable that he wouldn’t be on top of the law. Normally, a pro se litigant with a colorable claim gets a bit of a helping hand from the judge, who is inclined to make sure that the pro se litigant doesn’t blow the case simply because he’s unrepresented. But this is Nassau County, New York, not a place where pro se litigants are looked upon kindly. Still, this isn’t an excuse for the Court to ignore the law in the process. Or is it?
Judge Martin ruled against Leto, notwithstanding the fact that the police lacked a witness to support their position that Leto did anything wrong, since Composto refused to testify or cooperate with either side. For the judge, the allegations were enough. But the Court’s view of the case was off base from the start. Judge Martin’s discussion of the law begins:
The possession of a handgun license is a privilege rather than a right. Sewell v. City of New York, 182 A.D.2d 469, Matter of Caruso v. Ward, 160 A.D.2d 540.
Two very fine decisions cited. Except for one problem. Justice Martin neglected to mention an intervening decision that’s made a bit of a splash since the two cited decisions were rendered. That would be D.C. v. Heller, and the problem is that Heller made possession of a handgun a right rather than a privilege.
The law in New York, pre-Heller, was pretty clear. As long as the police could come up with any rationale, and I mean any, that could justify pulling a gun license, they were free to do so. Courts gave unbelievable deference when it came to this decision, and almost never intervened with the police department’s decision. Over the years, a body of law developed that was rife with phraseology and explanations that upheld decisions based upon anything short of “there’s a hole in my tennis racket.”
But that was pre-Heller. This is post-Heller. Notice anything missing from the decision? That would be any mention of Heller.
While it would be arguable that Heller’s application to the states remains unclear, based upon the holes Justice Scalia left in the decision that are big enough to drive a Mack truck (carrying a load of AK-47s) through, it’s inconceivable that a decision could be issued that simply neglects to notice that the possession of a handgun is no longer a matter of governmental kindness, a privilege.
As argued following the issuance of the decision, Heller should have, could have, changed the Second Amendment world. It didn’t, courtesy of Justice Scalia’s wholesale give back of all the restrictions previously imposed without explanation of any sort, and it’s smack in the face to his primary holding, that there is a personal constitutional right to possess a weapon. But at least it seemed that the days of calling it a privilege were over, and that courts were going to have to work a bit harder to continue the cops hegemony over who was allowed to possess, and who was not, a handgun?
Didn’t anybody tell Justice Martin? Do the other judges know about this?
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As I may have mentioned before, I was unfond of the Scalia’s dicta (and, in my entirely amateur and only largely uninformed opinion, the “we’re not going to mess with this stuff” part was dicta) on that.
That said, I try to take the long view. While Justice Martin’s ignorance and/or arrogance is pretty awful, we’re still, post-Heller, at about the stage we were at just a few months post-Brown. Just as the Ink Fund went very strategically, tactically, and cleverly at the low-hanging fruit first (with, whenever possible, sympathetic plaintiffs), Gura and company have Chicago’s ban as the next target in their sites (so to speak). NYC will come sooner than later, I’d expect, once the issue of incorporation is settled. And it’s fair to guess that the plaintiffs in the NYC cases will be more sympathetic than Leto comes across in the decision.
A fair number of the full-auto folks were irritated with Gura over, in their opinion, throwing them and their favored devices under the bus in the Heller oral argument. His response, as I recall, was something to the effect of, “What would you prefer? A 5-4 favorable decision, or an 8-0 unfavorable one?” (I know what my preference is, even though I’m one of those one-bang-per-trigger-pull guys.)
That sort of stuff shouldn’t affect the careful, thoughtful deliberations by the robed classes, of course. But, then again, as you’ve pointed out from time to time, the deliberations by the robed folks (whether they’re wearing business dress or lingerie under the robes) is not always characterized by careful thought.
Defcon 3, Defcon 3, submerge, submerge…
Judge Martin’s decision is very ignorant, arrogant and without support. He completely ignored all the facts/law of the case, including the background of Ms. Composto’s past. Maybe he wanted to date her to? Nassau County and Suffolk County are the most currupt counties in the country, so it doesn’t surprise me about this decision. I support Mr. Leto and feel he should appeal this decision.
The judge’s decision is clearly very biased. The bottom line here, is there are no convictions, all charges were dismissed and even the complaintant, Composto told the Police Department to return his license. Why is it, that some(who have convictions on there records – like police officiers)are still entitled to this privilege. Why is it, that Police Departments/Prosecutors in Long Island can never admit when they are clearly wrong?The normal procedure, in other counties of NYS would be to re-instate the Pistol License. Justice is not for all, but for the influential few. I hope Mr. Leto appeals the decision and takes it as far as need be.
[Ed. Note: This comment, as the one above it by Steve W, is made by someone who works at Leto’s PI firm but fails to mention their direct interest in the case. While I have no problem with their expressing their views, it is less than forthright to neglect to mention their interest in the outcome.]