Admitting the affidavit that triggered gun seizure relied on hearsay, Allegany County Judge restores pistol permit and firearm to gun confiscation victim

August 28, 2019 – BELMONT, N.Y. – Just three days after New York State’s Red Flag Law officially went into effect, 2AWNY.COM has struck the first blow against this unconstitutional gun control edict with a victory in Allegany County Court. Conceding on Tuesday that the signed affidavit that forced Red Flag-style gun confiscation against former Town of Allen Justice Bridgette A. Tojek was based on hearsay and conjecture, Allegany County Judge Thomas P. Brown restored Ms. Tojek’s pistol permit, and directed Allegany County Sheriff Ricky L. Whitney to return the firearm his deputies forcefully seized from her on Thursday, June 13, 2019. Judge Brown came to this decision without holding a formal hearing, and is requiring Ms. Tojek to complete the firearms training course she was scheduled to attend just prior to her permit being unlawfully suspended.

“This court victory, masterfully crafted and executed by Attorney James Ostrowski, clearly demonstrates that Red Flag-style gun confiscation statues absolutely will result in abuse and overreach because they allow the subjective judgement of a single court official to unilaterally decide the fate of an individual’s civil rights,” 2AWNY.COM Civil Rights Advocate Steve Felano said. “As Ms. Tojek’s case illustrates in graphic detail, the subjective analysis of a judge falls victim to personal and political biases that result in annihilation of constitutional protections. This is unacceptable and will not stand.”

Through an illegal conspiracy and Red Flag-style gun confiscation progressed by Town of Allen and Allegany County officials, Ms. Tojek was denied her fundamental First, Second, Fourth, and Fourteenth Amendment civil rights under the U.S. Constitution. Between Tuesday, April 23, 2018 and present day, Ms. Tojek has suffered the following civil rights abuses, and others, at the hands of a cabal of autocratic government thugs clearly employing official power to secure personal and political revenge:

• Tuesday, April 23, 2018 – Threatened with unjustified pistol permit denial by Allegany County Judge Terrence M. Parker for “continually disparaging me and my family publicly in her Court and in Town meetings.” This groundless threat was forced on Ms. Tojek in retaliation for her actions of free speech protected by the First Amendment to the U.S. Constitution.

• Thursday, June 13, 2019 – Autocratically punished by Allegany County Judge Thomas P. Brown with preemptive and baseless pistol permit suspension in order to settle a personal and political score. This act of ex parte collusion between town and county officials was devoid of due process for Ms. Tojek, and violated her Second and Fourteenth Amendment protections under the U.S. Constitution.   

• Thursday, June 13, 2019 – Unjustifiably victimized by Allegany County Sheriff Ricky L. Whitney in an ill-founded firearms seizure executed at Ms. Tojek’s home, simply because she is disfavored by town and county government officials. Reminiscent of Venezuela’s 2013 Civilian Disarmament Act enabling government agents to form death squads, illegally enter homes, and murder at least 6,856 civilians between January 2018 and May 2019, this act of totalitarian gun confiscation and unreasonable search and seizure violated Ms. Tojek’s Second and Fourth Amendment protections under the U.S. Constitution.

Ahead of Ms. Tojek’s August 7, 2019 preliminary conference and August 27, 2019 appearance at the Allegany County Courthouse, Attorney James Ostrowski, Ms. Tojek’s attorney and the lawyer responsible for reversing the state’s first ever SAFE Act conviction, demanded a reply from the Court regarding how the aforementioned proceedings would be structured. The Court’s reply, authored by Court Attorney Michael Regan, provided substantial insight into how the New York State Unified Court System conspires with the state legislature to circumvent the Second Amendment civil rights of Ms. Tojek and all New Yorkers. Here are just a few examples:

• The Court claims Judge Brown had no ex parte contacts in relation to Ms. Tojek’s pistol permit suspension and firearms seizure. This defies logic. The very fact that Ms. Tojek had no advance knowledge of the fact that her firearms would be seized until law enforcement appeared at her front door proves that ex parte communication occurred at some level between Judge Brown and at least the County Sheriff, but likely others;

• The Court claims the Red Flag-style actions against Ms. Tojek were initiated in response to a letter received from Deputy Chief Administrative Judge Michael V. Coccoma, which referenced an administrative order and signed affidavit regarding Ms. Tojek. This makes no sense. Deputy Chief Administrative Judge Coccoma simply stated “I am referring this information to you [Judge Brown] for whatever action you deem appropriate.” He ordered no Red Flag-style actions against Ms. Tojek via his letter. Furthermore, neither the administrative order nor the signed affidavit referenced by Deputy Chief Administrative Judge Coccoma provide credible grounds for pistol permit suspension and/or firearms confiscation;

• The Court stated the other party in the court proceeding regarding Red Flag-style actions against Ms. Tojek would be the Allegany County Sheriff, and that he would be represented by Assistant County Attorney Ian M. Jones. It should concern law enforcement leaders across New York State that, when court officials are called to account for their unconstitutional gun confiscation actions, they will hide behind the law enforcement officials they originally ordered to carry out said actions, placing police at undeserved legal and financial risk. For this reason, law enforcement officers should refuse to carry out Red Flag-style gun confiscation orders on behalf of judges, citing constitutional, legal, and financial concerns;

• The Court claims the proceedings involving Ms. Tojek constitute “an administrative proceeding conducted by Judge Brown in his capacity as a licensing officer for Allegany County.” Given this, and based on State Advisory Committee on Judicial Ethics Opinions 17-166 and 18-57/17-166, which clearly contradict each other regarding the ethical and statutory requirements of judges acting as administrative licensing officials regarding pistol permit matters, judges serving in the distinct and separate role of administrative licensing officer are not immune to civil litigation. As a result, said administrative licensing officers can and should be personally sued for Second Amendment and other civil rights violations every single time they carry forward such unconstitutional actions;

• The Court admits “To the best of the Court’s knowledge, there are no special court rules or procedures that govern this [Ms. Tojek’s] proceeding.” This lack of any clear procedure to safeguard the Second Amendment civil rights of Ms. Tojek and all New Yorkers in the context of pistol permit suspension and firearms confiscation hearings is, of course, built into the court system by design of the progressive autocrats controlling the state. The central purpose of the state’s pistol permitting regime, Red Flag statute, and all other gun control imperial edicts is to further expand the state government’s civilian disarmament industrial complex by forcefully confiscating as many firearms as possible through the false appearance of legitimate legal processes;

• The Court claims the purpose of the proceeding involving Ms. Tojek is to determine if there is “good cause” to revoke Ms. Tojek’s pistol permit. “Good cause” is a completely subjective term, the meaning of which will vary from person to person, and administrative licensing officer to administrative licensing officer. For this reason, “good cause” is not a legitimate legal standard, as it allows a fundamental civil right to be stratified into various subcategories of weight and meaning based on the personal and political views of a single agent of the state (the judge acting as administrative pistol permit licensing officer). For this reason, the entire state pistol permitting regime is unconstitutional, and must be overturned;

• The Court claims a determination to revoke Ms. Tojek’s pistol permit can be based on hearsay. It is rather astonishing that the Court would admit this, and demonstrates very well why the state pistol permitting regime and Red Flag gun confiscation statute are unconstitutional, designed to deny New Yorkers their Second Amendment civil rights to the greatest extent possible, and must therefore be nullified via non-compliance, non-enforcement, and repeal;

• The Court claims that “Due process requires that your client [Ms. Tojek] be given notice of the charges and evidence against her and an opportunity to appear with an attorney and rebut the charges.” The Court misunderstands the meaning of due process, which would require the Court to first serve Ms. Tojek with notice of the charges and evidence against her, then hold a hearing allowing her to rebut the charges and evidence, and then arrive at a decision regarding her ability to retain her pistol permit and firearms. This is not what actually occurred. In reality, the Court took their cues from President Donald Trump – taking the guns first, and providing a caricatured form of due process second. This is unconstitutional and unacceptable; and

• The Court stated “Finally, the Court regrets the reference to ‘mental health evaluations’ in its letter to your client [Ms. Tojek] dated June 13, 2019. This is boilerplate language that is contained on the Court’s standard letter to pistol permit holders advising them that a hearing has been scheduled. There was no intent to imply that your client would have had occasion to undergo such an evaluation.” Be that as it may, the very fact that this boilerplate language is included in notices advising that a hearing has simply been scheduled clearly demonstrates the Court’s bias against pistol permit holders. Obviously, the Court believes that, if there is reason for a permit holder to be called to a hearing, this person must suffer from some mental deficiency for that reason alone. This ‘mental health evaluations’ language illustrates that the Court is incapable of offering pistol permit holders an impartial hearing because its agents habitually assume the pistol permit holder is mentally defective at the very outset of their legal matter, without hearing so much as a shred of rebuttal from the respondent.

Ms. Tojek’s case proves that those who have flatly rejected the claim that Red Flag-style gun confiscation statutes will immediately be abused by government agents to punish personal and political enemies are completely wrong. We now have proof that such statutes absolutely will result in abuse and overreach and, in fact, they already have. In the context of the deplorable ordeal suffered by Ms. Tojek, we see all the legally deficient and unconstitutional elements of the Red Flag-style gun confiscation statutes that Independence Institute Research Director Dave Kopel warned us about at the U.S. Senate Judiciary Committee’s ‘Red Flag Laws: Examining Guidelines for State Action’ hearing on Tuesday, March 26, 2019.

Specifically, in Ms. Tojek’s case, any objective observer will take note of:

• A confiscation petition initiated by an overtly malicious third party as opposed to a neutral member of law enforcement;
• Ex parte proceedings without compelling proof of necessity;
• Zero guarantees of all due process rights, including cross-examination;
• No civil remedy for false and deceptive confiscation petitions;
• Zero regard for safe and orderly firearms relinquishment procedures; and
• No option for responsible third parties to store relinquished firearms, among numerous additional issues.

As explained by Mr. Kopel in testimony submitted to the U.S. Senate, the above items are precisely the type of unconstitutional deficiencies that have led to nearly a third of red flag orders being improperly issued against innocent people, and later overturned. Furthermore, the ease with which a single county court judge acting as a licensing official has arbitrarily and unilaterally invalidated Ms. Tojek’s fundamental civil rights clearly demonstrates why the New York State pistol permitting regime must be overturned via Libertarian Party of Erie County v. Cuomo, a case now under review by the U.S. Court of Appeals, Second Circuit.

It must be stressed that New York State’s Red Flag Law, signed by Governor Cuomo on Monday, February 25, 2019, didn’t even officially go into effect until August 24, 2019. However, as this unconstitutional ordeal in Allegany County demonstrates, it had definitely gone into effect unofficially prior to August 24. As far back as April 23, 2018, Ms. Tojek was suffering under the type of kangaroo court oppression one would expect from a socialist dictatorship, like Venezuela, that is currently murdering its citizens at random after essentially outlawing firearms ownership in 2013.

While all of the above may sit well with the autocratic progressives currently holding a death grip on state government, it’s unacceptable to 2AWNY.COM. Therefore, the Tojek case will act as the first brick in the legal foundation that will reverse unconstitutional Red Flag Law statutes at the state and national level. Court officials across New York State should view yesterday’s victory in Allegany County Court as a warning that 2AWNY.COM will be closely watching any and all Red Flag gun confiscation actions they may choose to launch. We plan to scrutinize the actions of government agents in all instances of Red Flag firearms seizure, and respond aggressively through the courts until the Red Flag statute is nullified.

To learn more about any of the above, please contact Steve Felano at (518) 852-1863 or sfelano@2AWNY.com.

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2AWNY is a force multiplier for the numerous Second Amendment civil rights advocacy enterprises forming the backbone of Western New York’s vibrant gun culture. We act as a 2A news and information distribution, policy analysis, and organizational driver for the many interest groups seeking to defend and expand Second Amendment civil rights throughout the region. 2AWNY is dedicated to assisting in the organization, promotion, and funding of legal challenges to the unconstitutional New York State gun control regime. We seek to make Western New York the epicenter of New York State’s Second Amendment civil rights renaissance. Learn more at WWW.2AWNY.COM.