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SAFE Act court challenges set for new year


Mike Desmond | WBFO News – While New York’s SAFE Act has been in effect for just under six years, gun rights supporters are still pushing hard against the law and the state’s complicated system of issuing hand gun permits.


It was just over a week ago that Erie County District Attorney John Flynn decided to end prosecutions under a complicated SAFE Act provision controlling how many cartridges could be in a handgun magazine. That is because of federal court decisions going back to just after the law was passed in 2013.


It was a victory for the law’s opponents. Lawyer Jim Ostrowski says it is part of a long series of court cases fighting the law and the gun permit system. He represents an appeal on an individual convicted under another SAFE Act section.


“The district attorney is really saving law enforcement officials in Erie County from a lot of potential lawsuits where they could be sued and cost a lot of money for the taxpayers, for attorney’s fees, damages and so on,” Ostrowski said. “It’s absolutely the correct decision in a complicated landmine field of legal esoterica.”


In a separate case, Ostrowski will be in front of the Second Circuit federal appeals court seeking to end the state’s pistol permit system on a whole series of issues, including a U.S. Supreme Court decision that threw out most of Washington, D.C.’s pistol permit system as a violation of the Second Amendment.


Ostrowski said the Supreme Court decision should be legal backing for throwing out the state’s system, across the board.


“I don’t think you can really justify much but the New York State system goes way beyond that, really just gives the local licensing judge or a police officer down in the city tremendous discretion to deny a permit,” Ostrowski said. “So we believe that’s unconstitutional, goes far beyond what Heller and McDonald would allow.”


He said there is too much legal vagueness in the SAFE Act.


“The term assault rifle comes up. It’s not really a scientific term. It’s just somebody’s opinion about what an assault rifle is,” he said. “(His) case would strike down the stricter requirements of the SAFE Act, concerning various features of a rifle. The pistol permit case, depending on how it’s decided, could be fairly revolutionary.”


The SAFE Act case will be argued in front of the Appellate Division in Rochester Jan. 17. The challenge to the pistol permit system will be argued before the Federal Second Circuit Court of Appeals in February, with no date set.


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James Ostrowski, Esq. is a trial and appellate lawyer and libertarian writer from Buffalo, N.Y. He served as vice-chairman of the law reform committee of the New York County Lawyers Association (1986-88) and wrote two widely quoted reports critical of the law enforcement approach to the drug problem. Ostrowski has written several bar association reports and given continuing legal education lectures on habeas corpus, lawsuits against government officials and jury nullification. His policy studies have been published by the Hoover Institution, the Ludwig von Mises Institute and the Cato Institute. Ostrowski is the author of Direct Citizen Action (2010), Government Schools Are Bad for Your Kids (2009), Political Class Dismissed (2004), and other works.