Unlikely Fans of Supreme Court Ruling on Guns: Public Defenders

In dozens of motions filed in courthouses across New York City, public defenders are arguing that a Supreme Court ruling last month that vastly expanded gun rights has left the government without a case against their clients.

The court struck down a New York law on the public carrying of handguns, and Justice Clarence Thomas wrote in his decision that the Second Amendment guarantees a general right to publicly carry handguns. That, the defenders have argued, renders New York laws that criminalize firearm possession — and the resulting charges against their clients — unconstitutional.

Their arguments mark the opening salvo of what is likely to be a protracted legal campaign to use the Supreme Court ruling to the benefit of those charged with carrying guns in New York City.

Experts say the arguments should not be dismissed out of hand.

“From a legal perspective, from an analysis of the Supreme Court’s decision, there is great merit to these motions,” said Steve Zeidman, a law professor at the City University of New York’s law school and the director of its criminal defense clinic.

“The Supreme Court case for sure has shifted the ground,” he added. “The question is, what’s its application to the day-to-day arrest, prosecution and adjudication in New York City and New York State. And, frankly, across the country.”

But thus far, judges have been unswayed. In the Bronx, one judge, Ralph Fabrizio, noted that a defendant charged with third-degree criminal possession of a weapon had not demonstrated or even claimed that he had applied for a license to carry a loaded 9 mm semiautomatic Smith and Wesson.

The Supreme Court, Justice Fabrizio wrote, “did not magically decriminalize the acts of individuals who chose to violate state law by arming themselves and carrying and concealing whatever firearms they wanted to conceal, whenever and wherever they wanted to do so, without bothering to apply for a license.”

Other judges have been more concise. Margaret Clancy, also of the Bronx, wrote in a one-page decision on a similar motion: “This is absolutely incorrect.”

Those cases can be appealed — and at least some are likely to be.

Many of the challenges were filed before New York passed a new law this month restricting the public carrying of guns. Most parts of that measure take effect in September and Mr. Zeidman said that motions challenging it in state criminal court “would be the ones to watch.”

The flurry of motions, first reported by the City, attests to the way the Court’s decision shifted the ground on gun laws even in the most liberal of cities.

The Legal Aid Society would not say how many motions citing the Supreme Court ruling it has filed. But the chief attorney of the organization’s criminal defense practice, Tina Luongo, said in a statement, “As we have always done, we will advance all valid and available legal arguments in defense of our clients and continue to urge policymakers to focus on real solutions to gun violence, which lie outside of the criminal legal system.”

Public defender organizations are primarily motivated by the interests of clients. That sometimes drives them to make unexpected alliances, as with gun rights organizations in the Supreme Court case. Forty years ago, they teamed up with the Police Benevolent Association of New York City to successfully fight a state law that would have stripped away some protections grand jury witnesses receive.

Aidan Johnston, director of federal affairs for Gun Owners of America, a lobbying group, said that he supported the goal of the defenders’ motions.

“Violent criminals should be punished to the fullest extent of the law,” he said. “But possessing a firearm, carrying a firearm in public, is not a crime. And New York has been violating the right of New Yorkers to carry firearms in public for decades.”

Racial equity is a key reason that the defenders supported two upstate residents’ successful challenge to the century-old gun law, which they said was too often applied in a discriminatory fashion. The law had mandated that those who wished to carry guns publicly in New York show a particularly pressing need. Justice Thomas wrote in the decision that the law offered local officials too much discretion and generally trampled on the second amendment.

In a brief filed with the court before it ruled, city defender groups, including Black Attorneys of Legal Aid, Bronx Defenders and the Brooklyn Defender Service, said they supported overturning the law. They argued that “New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities. That remains the effect of its enforcement by police and prosecutors today.”

But some prosecutors and elected officials, even when sympathetic to arguments about equity in enforcement, say that the court’s decision left the state with the rights to enforce reasonable gun regulations.

“More guns on our streets leads to more violence,” said the Manhattan district attorney, Alvin Bragg, in a statement. “New York’s strong gun regulations and strict licensing regime have been indispensable to keeping us safe, and it is imperative we uphold those laws.”

A spokesman for the Brooklyn district attorney, Eric Gonzalez, called the court’s ruling a “disaster” but said that the office did not believe it would affect people charged with illegal weapon possession who never applied for a license or were denied one.

“We will continue to take every step to protect the people of Brooklyn from illegal guns,” he said.

And Zellnor Myrie, a state senator who represents neighborhoods in Central and South Brooklyn, said that data should be kept on how gun regulations are applied to account for racial disparities.

But, he said, the state still must protect a residents from a flood of guns — particularly those wielded without a permit.

“The public safety imperative to keep guns off our streets is strong,” he said. “And my hope is that the courts will continue to look at it the same way.”

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