New York Woman Files Suit for Due Process when Denied Second Amendment Rights

Skelos, Cuomo, Silver

On April 7, 2015, Donna L. McKay voluntarily admitted herself into mental health unit at the Soldiers and Sailors Memorial Hospital in Penn Yan, NY, for a variety of reasons, including taking some newly prescribed prescription medication and anxiety due to recent events that raised the stress level in her life. A doctor had suggested the possibility of a voluntary admission in the event of another panic attack. Some time after her admission, the treating physician, Dr. Marino, made an online report in compliance with the infamous "SAFE" act.
According to Dr. Marino, the online report did not state that Donna McKay was mentally defective, or that she had been involuntarily committed.

On April 13, 2015, the State Police sent a letter to Donna McKay stating that her pistol license, which she had possessed since 2008, was suspended, because of mental incompetence or involuntary commitment. All her firearms, including rifles and shotguns, had to be turned over to the Sheriff's department for safekeeping while the matter was being adjudicated.

A date of 19 May was set for McKay to appear to respond to the letter. The letter did not state the basis for the ruling. She appeared with counsel on 19 May. Over a year later, on 7 June, 2016, Donna McKay's pistol permit was ordered restored, and her firearms ordered returned. The routine report from her doctor had been the cause of the State infringing on her Second Amendment rights. In the court decision, the court noted that the state had considerable discretion when deciding whether a person should be allowed to exercise their Second Amendment rights. From justia.com:

A pistol license may be revoked and cancelled "for any good cause" [see, Mtr of Vale v Eidens, 290 AD2d 612, 613 (3rd Dept 2002)] at any time if the court determines that a licensee is no longer eligible or fit to continue to possess a firearm. PL §400.00(1) (n). This could include an inability to possess a pistol license due to mental illness (P.L. §400.00(1)(i), having been involuntarily committed to a mental health facility [P. L. §400.00(1)(j)] or having a guardian appointed for her [P. L. §400.00(1)(m)].

When exercising its discretion, the court must look to the underlying facts in the record before it and as they relate to the respondent's fitness and eligibility to hold a pistol license. And the court is not bound by a standard of proof beyond a reasonable doubt but rather "good cause" based upon "substantial evidence". Perlov v Kelly, 21 AD3d 270, 271 (2nd Dept 2005), citing Mtr of Abramowitz v Safir, 293 AD2d 352, noting that "our obligation is limited to insuring that respondent (court) met the very minimal evidentiary requirement necessary to uphold its determination', quoting Mtr of Scully v Safir, 282 AD2d 305, 308 (1st Dept 2001).

In this regard, "the State has a substantial and legitimate interest and indeed, a grave responsibility, in insuring the safety of the general public from the individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which [*5]should be present in one entrusted with a dangerous instrument." Dorsey v Teresi, 26 AD3d 635, 636, quoting Mtr of Pelose v County Ct. of Westchester, 53 AD2d 645 (2nd Dept 1976), app. dism. 41 NY2d 1008.

Consider what happened to Donna McKay. At no time did she do any thing that would have justified taking her Second Amendment rights from her.  A routine form, submitted by a doctor as a routine matter, that did not find that she was either involuntarily committed or mentally defective, was sent to the State Police. The police, without any further investigation or judicial process, issued the order that effectively deprived McKay of her rights for over a year. It is plausible that if she had not hired an attorney and vigorously defended her rights, they would have been taken forever.  Notice the asymmetry. It took the State less than a week and a few keystrokes, to take away McKay's rights. It took more than a year, and considerable treasure to restore them.

After winning the court case to restore her rights, her lawyer,  Paloma Capanna, has filed a lawsuit to require a more rigorous process in the future. From the timesunion.com:

By not having representation when police initially took her weapons she was deprived of due process, Capanna contends.

The suit, filed earlier in December in federal court in Rochester, seeks an injunction that would require the state to provide legal counsel in gun confiscation cases and notification to individuals who are facing confiscation.

State Police declined to comment since the matter was pending litigation.

An estimated 380,000 New Yorkers have been reported to the NCIC database. Capanna argues that those people should be notified.

In spite of having her pistol permit restored and her firearms returned, Donna McKay is still in the federal NICS system as a prohibited person. Her name was added to the prohibited person list when the State Police sent the the notice suspending her pistol license.

The New York Safe Act has numerous significant flaws. It is actively being challenged in several court cases. The act was passed as an "emergency" measure without regular debate or committee hearings, in one night, under pressure from Governor Cuomo.

Of the three men most responsible for the "SAFE" act, two have been convicted on corruption charges. Sheldon Silver, former Speaker, of the New York State Assembly, was convicted in 2015. Dean Skelos, the former leader of the Senate, was convicted in December of 2015.  Governor Cuomo, is being investigated on a number of corruption charges. The election of Donald Trump over Democrat Hillary Clinton, does not bode well for Governor Cuomo.

The lawsuit against the State of New York was only filed a few days ago. It will take months to work its way through the courts.

The lawsuit was filed in federal court. It may be appealed all the way to the Supreme Court. If the case travels that far, it may find a Court with one or more Donald Trump appointees.


©2016 by Dean Weingarten: Permission to share is granted when this notice is included.

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