Either New York Gov. Kathy Hochul is utterly clueless how the legal process works, or she’s intentionally misleading New Yorkers into thinking there’s something nefarious afoot with the Supreme Court and a challenge to her edict imposing background checks on ammo sales throughout the state.
On Tuesday, Hochul indignantly posted on X about Justice Clarence Thomas supposedly granting an “emergency conference” to a lawsuit taking aim at the state’s concealed carry laws.
Justice Clarence Thomas just granted a request for an emergency conference in a case trying to dismantle our concealed carry law.
I know the far-right is focused on placating the MAGA extremists. I'm focused on protecting New Yorkers.
— Governor Kathy Hochul (@GovKathyHochul) September 26, 2023
There’s just one problem for Hochul. As it turns out, almost every word of the governor’s post was incorrect.
— Rob Romano (@2Aupdates) September 26, 2023
The case that Hochul cited isn’t a direct challenge to the state’s carry laws. Instead, Gazzola v. Hochul, which is the case that Thomas distributed to his fellow justices for the regularly scheduled conference on October 6th, asserts that the state’s new background checks on ammunition sales are violating federal law. As attorney Paloma A. Capanna wrote in a supplemental filing to her request for an emergency stay:
The following key points support the likelihood of success of our claims and thus support the request for emergency stay. First, the NYS Police are actively violating federal law by abusing the FBI-NICS system to run ammunition background checks. NYSP employees are manually entering individual ammunition background check data from their new system, by hand, into the federal FBI-NICS system in violation of 28 CFR §25.11. Attached is the Declaration of Elijah Falkner, who is a Columbia County Sheriff’s Department Corrections Officer, concerning his attempted purchase of ammunition on September 14, 2023 and his subsequent telephone conversations with employees at the NYS Police about the “delay” notification. The officer at NYSP who provided the information to Mr. Falkner is one of the employees engaging in this illegal use of FBI-NICS.
28 CFR §25.11(b)(2) prohibits a state, expressly, from misuse of the FBI-NICS system for any purpose outside the federally-mandated firearms background check. The new (2022) statutes complained of includes express language of the state’s intention to attempt to use the FBI-NICS system for this illegal purpose. NY EXE §228(3). Our record is replete with arguments against this intended abuse of the FBI-NICS system by the state.
Second, the NYS Police paperless system undermines public safety, including federal prosecutions of illegal purchases of firearms. The NYSP failed to promulgate any paper form to be completed by the individual customer and attested to under penalties of perjury. NY EXE §228(4). NYSP is promoting a “paperless” system. By contrast, federal law requires the individual customer in a Brady state to complete the customer portions of the ATF Form 4473 and sign it under penalties of perjury. 18 U.S.C. §922(t) makes it illegal for an FFL to complete a transaction without completion of the form and a “proceed” or a 3-day delay without status change. The customer attestation provides the basis, e.g., for the U.S. Department of Justice to prosecute persons who commit “straw purchases” on behalf of a third party they know to be a disqualified person. This ATF Form 4473 with purchaser attestation allowed federal prosecutors to gain a conviction with maximum 10-year federal prison sentence against Dawn Nguyen, for her straw purchase of firearms o/b/o (deceased) mass murderer William Spangler, who shot and killed two responding firemen in Webster, New York on Christmas Eve 2012. The singular focus of the defendants to build a firearm owners’ registry is literally undermining the federal commitment, shared by plaintiffs and FFLs across New York, against a firearm being purchased to a disqualified person.
Third, the NYS Police “appeals” process violates individual civil rights. The NYS Police released mid-day yesterday a 1-page flyer and an on-line computer screen for a customer appeal of a denied transaction. The on-line screen does not allow attorney representation (the ATF administrative appeals process on line and on paper does so). The appeal does not function with the burden of proof upon the NYS Police to provide a record match to the denied customer. Instead, in order for an individual to file an on-line appeal he or she must answer additional, irrelevant and/or potentially self-incriminating responses from the customer (the ATF administrative appeals process on-line and on paper does not ask for additional information beyond identity verification).
As Rob Romano said in a subsequent post on X, it’s unlikely that the Supreme Court will grant Capanna’s request for an emergency stay, given that they’ve allowed New York’s post-Bruen carry restrictions to remain in effect while the various lawsuits challenging them proceed through the courts. SCOTUS also turned away an emergency request to enjoin Illinois’ ban on “large capacity” magazines and so-called assault weapons from being enforced, so even if the plaintiffs in Gazzola v. Hochul make a compelling case for emergency intervention, the odds are that the Court will turn away Capanna’s request without comment.
For better or worse the justices have adopted a “wait-and-see” approach in the wake of Bruen, allowing lower courts to debate, argue, and disagree at times over how the Bruen test should be applied. This is something that Hochul should be aware of, but she took a routine order from Clarence Thomas and turned it into some sort of conspiracy involving “MAGA extremists”.
As I said, either Hochul is supremely ignorant about the law (and the various lawsuits filed against her unconstitutional mandates) or willfully misleading New Yorkers about the action taken by Thomas. Either way, it’s not a good look for the gun-hating governor, but we’re happy to apply some cold, hard, facts to her blatant falsehoods.