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Recent SAFE Act non-enforcement decision in Erie County precedes major legal challenges to unconstitutional gun restrictions


BUFFALO, N.Y. – When four men were pulled over one evening earlier this month near Buffalo’s Alma Ave. and Olympic Ave., the weapons charges they received from police reignited a debate surrounding the handgun magazine capacity limit noted in the New York State SAFE Act.


Police found a handgun and two full 10-round magazines in the vehicle. The SAFE Act makes it illegal for magazines to be loaded with more than seven rounds of ammunition, with exceptions for gun ranges or shooting competitions. The vehicle occupants were charged with second-degree criminal possession of a weapon and unlawful possession of an ammunition feed device, among other violations.


The seven-round capacity limit remains unchanged in the SAFE Act, despite a 2013 decision by Chief U.S. District Judge William M. Skretny striking down the seven-round limit as unconstitutional, and a 2015 federal appeals court ruling affirming Chief Judge Skretny’s decision.


These rulings should have resulted in policies directing Western New York law enforcement officers not to enforce the SAFE Act seven-round capacity limit. The charges applied to the four Buffalo men pulled over earlier this month near Alma Ave. and Olympic Ave. indicate this has not occurred, and has forced Erie County District Attorney John Flynn to act.


The morning of November 19, The Buffalo News reported D.A. Flynn has decided to follow Chief Judge Skretny’s ruling. His office is dropping SAFE Act capacity violation charges tied to 23 open cases in Erie County, and will no longer prosecute the charge in Erie County under his administration.


“District Attorney Flynn’s wise decision to honor civil liberties by refusing to enforce the unconstitutional SAFE Act seven-round capacity limit is an early gift to Western New Yorkers this holiday season,” Attorney James Ostrowski said. “However, the most consequential gifts in this regard are coming shortly after the new year, with major legal challenges to New York’s unconstitutional gun laws in both State Supreme Court and the U.S. Court of Appeals.”


James Ostrowski, Esq. is rapidly progressing two major legal challenges to New York State’s unconstitutional gun laws that build upon D.A. Flynn’s appropriate SAFE Act non-enforcement decision. These cases include:


  • The People of the State of New York v. Benjamin Wassell – This case, expected to be argued in New York State Supreme Court in January 2019, seeks to reverse a SAFE Act conviction erroneously applied to a Western New York resident, based on the following grounds:
    • Unconstitutional
    • Void for vagueness
    • Due process violation
    • Lack of equal protection under the law
    • Jury instruction error
    • Lack of prosecutorial authority
    • Not supported by legally sufficient evidence


  • Libertarian Party of Erie County v. Cuomo – This case, expected to be argued before the U.S. Court of Appeals in February 2019 (one step away from U.S. Supreme Court review), seeks to nullify New York State’s pistol permit requirement based on the following grounds:
    • Unconstitutional – Second and Fourteenth Amendment rights violated
    • Overly subjective nature of “good moral character,” “good cause,” and “proper cause” requirements
    • Application of “intermediate scrutiny” to Second Amendment restrictions when “strict scrutiny” is most appropriate for this constitutionally enumerated right


To speak with James Ostrowski, Esq. about the key court challenges against New York State gun laws he’ll be leading in early 2019, and / or District Attorney Flynn’s decision to stop prosecuting violations of the SAFE Act capacity restriction in Erie County, please contact Stephen Felano at (518) 852-1863 or sfelano@2AWNY.com.


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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.