New York SAFE Act Victim’s Lawsuit Gets a Reply. NY Uses ‘Shaggy’ Defense.

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(Andrew Parsons/Pool via AP)

Back in April I reported on the New York SAFE Act. victim Isaac Richey. Richey got fouled up by provisions in the Mental Hygiene Law (MHL) 9.46 in the Empire State. Essentially the state has – and continues to – turned non-qualifying events without due process, into firearm possession disqualifications. Richey participated in getting voluntary mental health help. The only problem with this is that New York’s bureaucracy turns such mature and responsible acts of self-care into the equivalent to a felonious crime when it comes to exercising the Second Amendment. Richey sued on March 17, 2023 in his suit, Richey v. Sullivan, and the state just filed their response to his complaint.

Richey’s complaint seeks:

WHEREFORE, Plaintiff respectfully requests that this Court issue a judgment and order:

  • Declaring that being admitted for “emergency evaluation and observation” under MHL 9.39 does not cause the termination of Second Amendment rights;
  • Declaring that and that inclusion in the state’s reporting database(s) based on a MHL 9.39 admission violates the Second and Fourteenth Amendments;
  • Declaring that the actions and failures to act of Defendants Sullivan, Rosado, and/or the Does in failing to train, supervise and/or discipline their staff as set forth herein violates the Fourth Amendment;
  • Declaring that Defendants’ policies and procedures violate the Fourteenth Amendment right to Due Process;
  • Declaring that MHL 7.09(j)(1) is unconstitutionally overbroad;
  • Preliminarily and permanently enjoining Defendants’ inclusion and maintenance of Plaintiff’s records information in the state database;
  • Preliminarily and permanently enjoining Defendants’ reporting to NICS and any other database information concerning Plaintiff that identifies him as a person prohibited from possessing, purchasing, transferring, or receiving firearms in connection with his 2019 admission to Samaritan Hospital;
  • Preliminarily and permanently enjoining Defendants from collecting, retaining, modifying, and/or transmitting the records and personal identifying information to NICS, the FBI, or any other law enforcement agency and third party of individuals who have been admitted to a mental health facility for emergency evaluation and observation under MHL 9.39 and discharged without conversion to MHL 9.27 or 9.37;
  • Awarding Plaintiff compensatory and economic damages against the individual defendants in at least a nominal amount;
  • Awarding nominal damages against all Defendants;
  • Awarding Plaintiff punitive damages against the individual defendants;
  • A declaration that Plaintiff is the prevailing party of this action for purposes of an award of reasonable attorney’s fees under 42 U.S.C. § 1988;
  • Awarding reasonable statutory attorney’s fees under 42 U.S.C. § 1988;
  • Awarding costs and disbursements; and
  • Such other, further, and different relief as this Court may deem just and proper.

The 23 page complaint contains 125 paragraphs and the state essentially contested every single injury claim made. When Richey told me about the reply, I was excited to dig into it. Spoiler alert, Attorney General Letitia James’ arguments, written by Assistant Attorney General Shannan C. Krasnokutski, was a pile of lazy fecal matter. Krasnokutski deflected and used the “Shaggy” defense to every single point.

And that’s exactly what Krasnokutski did in a more polite and legal world friendly way. The reply used the word “deny” 122 times. The state is giving it to the citizens  “on the sofa,” and they’re just simply denying any wrongdoing, as we’re all standing by watching in disbelief.

Krasnokutski repeated the following defense 34 times in the brief:

As to the allegations contained in paragraph xx of the Complaint, respectfully refer the Court to the cited statute and regulation as the best evidence and most accurate version of their contents and deny the allegations contained in paragraph xx of the Complaint to the extent inconsistent therewith.

Krasnokutski repeated the following defense 30 times in the brief:

Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph xx of the Complaint.

85 times Krasnokutski used:

Deny the allegations contained in paragraph xx of the Complaint…

Basically this was a big middle finger to Richey and all the other victims of New York’s unconstitutional laws. The state accepted responsibility for the identification of defendants, mentioned that “involuntarily” committed people end up reported to NICS, and only a few other instances said “aye.” The Empire State concedes nothing!

After sifting through all the garbage the Attorney General’s office sent out, the most insulting replies were towards the end, after addressing Richey’s injury claims, paragraph by paragraph, in their “Affirmative Defense” statement:

The Defendants have not violated or deprived Plaintiff of any rights, privileges, or immunities under the Constitution or laws of the United States, the State of New York, or any political subdivision thereof.

The acts or omissions of the Defendants did not proximately cause any of the alleged deprivations, losses, or injuries of which Plaintiff complains.

The challenged statutes, laws and actions at issue in this case do not implicate the Second Amendment.

The challenged statutes, laws and actions are fully supported by law, history and Tradition.

It’s pretty brazen for any attorney to claim that the disqualification of firearm ownership of any individual can occur without due process and a criminal proceeding is okay, further stating it to be constitutional. Beyond the implications that even with due process, the taking of the Second Amendment from someone is probably also unconstitutional, there’s no doubt that New York’s law is not analogous with anything from the time of our founding.

For Krasnokutski to opine, “The challenged statutes, laws and actions are fully supported by law, history and Tradition,” she’s not entirely wrong…If she’s  referencing the laws of Nazi Germany, not a state of the United States of America.

Richey had a lot to say about the response, which we discussed a bit. He’s in accord about the cavalier nature of the state not taking responsibility for his injuries. Richey stated:

The defendants’ response in this case raises questions and inconsistencies. Their denial of knowledge regarding certain points, contradictory statements, and lack of specificity in addressing allegations invite further scrutiny. The denial of Commissioner Sullivan’s responsibility is particularly intriguing. It remains to be seen how the defendants will substantiate their claims and address these issues. Please note that these observations provided are purely personal and do not represent any official statement from the legal defense in this case. They are based solely on the arguments raised by the defendants and are intended to highlight inconsistencies for further consideration.

I have not spoken much with Richey about his defense or the team’s strategy. I don’t know their plan of attack or his attorney. What I can say though is that Krasnokutski gave the plaintiffs plenty of gifts in the way of a really awful reply to the injury claims. Even though Richey has the law on his side and that we’re seeing prohibitions on the ownership of firearms fall left and right, he still needs some luck and prayers.

What goes on in the Empire State are basic human rights violations. It’s New York that has liberated the citizens of the remaining “may issue” states, by keeping their heels dug in when challenged. New York and their hubris attitudes towards civil liberties is going to be their downfall. New York enabled Richey to battle them by trying to control the population and it backfired, giving him – and the rest of us – one of the strongest defenses ever.

Say it wasn’t you

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