A Bruen Defense For Gun Charges? Attys Say Not So Fast

By Marco Poggio | July 21, 2022, 12:37 PM EDT ·

The recent U.S. Supreme Court ruling declaring parts of New York's gun licensing regime unconstitutional gives people prosecuted for gun offenses new chances to shake their charges, but it's still unclear what legal strategies could ultimately succeed, experts say.

The majority in New York State Rifle & Pistol Association v. Bruen ruled the Empire State's requirements for obtaining a concealed carry permit were too stringent, but didn't scrap the licensing regime altogether. State approval is still required to own a gun.

Defense attorneys say the ruling, which expanded the right to carry guns in public spaces, could be used to help clients hit with gun charges since the decision came down — and possibly could retroactively impact those charged beforehand. But experts also warned the defense may be limited.

Brian Jacobs of Morvillo Abramowitz Grand Iason & Anello PC, a former federal prosecutor and a member of the New York City Bar Association's task force on mass incarceration, said Justice Clarence Thomas' majority opinion in Bruen, which subjects gun regulations to a historical test based on the nation's tradition of firearm regulation, gives defense attorneys a new line of argument to help clients.

"If you are a criminal defense lawyer whose client is facing gun charges, I think it's important to ask the question of whether the law your client is being charged under could potentially be challenged, either on its face or as applied to your client," Jacobs said. "It's a very important decision for criminal defense lawyers to be aware of."

People prosecuted or convicted of gun offenses could file motions to dismiss charges or habeas corpus petitions to challenge their detention, similar to the aftermath of 2008 Supreme Court decision in District of Columbia v. Heller , which established that individuals have a right to have firearms for self-defense in their homes. While U.S. courts of appeals largely upheld the constitutionality of those prosecutions, the high court's much broader ruling in Bruen could lead to outcomes more favorable to defendants, Jacobs said.

"It will be fascinating to see how this plays out," he said.

Andrew M. Stengel, a former Manhattan prosecutor who has his own criminal defense firm, said there seem to be two schools of thought on Bruen. One is that the decision is narrow and only addresses licensing issues, so it can't be used as a defense.

On the other end of the spectrum, however, is a school of thought that the decision obliterates Section 265 of New York's Penal Law, the statute dealing with firearms and other weapons. Under this view, a defendant charged with sole gun possession has simply engaged in a constitutionally protected activity and should not be prosecuted.

"I've heard it argued in court already," Stengel said. "I think that's a minority opinion, and I don't think judges have caught up."

Pending Criminal Weapons Possessions Charges in the NYS Unified Court System
County PL 265.01 - 4th deg. PL 265.02 - 3rd deg. PL 265.03 - 2nd deg. PL 265.04 - 1st deg. Grand Total
New York City 678 223 3,305 4 4,210
Kings (Brooklyn) 200 73 1,213
Bronx 194 44 1,013
Queens 130 33 622 4 789
New York (Manhattan) 120 46 369
Richmond (Staten Island) 34 27 88
Outside NYC 294 527 2,073 19 2,913
Erie 22 9 417 4 452
Suffolk 42 86 282 2 412
Westchester 25 29 224 4 282
Monroe 9 16 248
Nassau 54 62 152 1 269
Onondaga 42 41 172
Albany 5 18 112
Oneida 17 19 41
Niagara 7 5 55 1 68
Chautauqua 15 3 44
Broome 11 23 27
Orange 7 11 40
Rensselaer 4 7 34
Dutchess 5 5 32
29 10
Steuben 1 27 7 1 36
Jefferson 4 25 5
Schenectady 1 4 27
Rockland 1 6 22 1 30
Chemung 2 7 19
Ulster 3 3 20
7 11 1 19
12 4
5 9
Cortland 4 7 3
5 8
Saratoga 1 7 4
Madison 3 4 3
Clinton 1 7

Warren 1 2 5
Seneca 1 6 1
Fulton 1 5 1
5 1 1 7
1 5
3 3
3 2
1 4
1 4
St. Lawrence
1 2 2 5
1 4
Chenango 4

2 1
1 2
Livingston 1 1
1 3
1 1

1 1





Statewide 972 750 5,378 23 7,123
Data accurate as of July 19, 2022.
**Cases pending in the town and village courts are not included. Some Superior Court cases pending outside NYC may not be included depending on the individual court's conversion effort into the new case management system, UCMS.

Whether defendants have a viable challenge based on Bruen will depend on what they were charged with, attorneys say.

People with permits to keep a gun at home who get charged for taking it outside are more likely to succeed with a Bruen defense, experts say. They can point to the language in the ruling dissolving the difference between a residence and a public space to convince judges and juries that their conduct is protected by the Second Amendment.

"If you're caught in the street with a firearm doing nothing illegal, that's a great case," Stengel said. On the other hand, people who don't have carry permits at all are unlikely to be saved by Bruen, he said.

Jeremy Saland of Saland Law PC, a New York criminal defense lawyer who has represented dozens of gun offenders, said Bruen's beneficial effect "may be limited at best" and that attorneys should not overstate its impact. The success odds in cases involving illegally owned guns remain slim, he said.

"The law hasn't changed. You still need that permit," he told Law360. "If my client is pulled over for having a firearm with the serial number scratched off, or one that he purchased second- or third-hand, [the Bruen ruling] doesn't change the equation at all."

He added, "I don't see it as a defense as much as others may be touting."

Anna Sokol, a spokeswoman for the Queens District Attorney's Office, told Law360 in an email that since the Bruen decision, fewer than 10 defendants have filed motions to dismiss their gun charges or convictions. None of the cases involved guns that were owned lawfully.

Some of those defendants could not demonstrate that the New York provision the Supreme Court struck down prevented them from obtaining a license to carry a gun, and others were ineligible to obtain gun permits for reasons such as past convictions for gun possession.

"The Supreme Court's decision did not invalidate New York's licensing statute, and the defendants who have filed motions were not impacted by the provision that was recently found unconstitutional," Sokol said.

A mistaken perception that the Bruen decision allows people to freely walk around with firearms, or that penalties would be lighter because of it, is a public concern attorneys are well aware of.

Sherry Levin Wallach, the president of the New York State Bar Association, told Law360 that misinformation about the impact of the ruling would be "horribly detrimental" to public safety and could lead to the arrest of people who misunderstand the law.

"The best thing that we can do as a legal community is make sure that the facts that are being put out there are accurate, that the decision is being properly interpreted," she said.

Saland said prosecutors might even begin to more aggressively prosecute unlicensed gun owners or those who carry guns where they are prohibited, following the ruling.

Public defenders organizations in New York, including the Legal Aid Society, the Bronx Defenders, the Brooklyn Defender Services and Neighborhood Defender Service of Harlem, all declined to comment for this story. The American Civil Liberties Union and its New York affiliate also declined to comment.

New gun legislation passed in New York in the aftermath of Bruen has set up specific criteria for issuing concealed carry permits, including requiring applicants to complete a gun safety course and appear for in-person interviews. It also established public areas that are off limits for firearms. The law goes into effect Sept. 1.

Barry Kamins, a retired New York Supreme Court judge and founding partner of the criminal defense law firm Aidala Bertuna & Kamins PC, said defense lawyers can ask judges to dismiss gun possession charges against their clients in light of the ruling, or they can argue at trial that the gun was for self-defense, perhaps by letting defendants themselves persuade the juries during testimony that they had feared for their lives.

Sixth Amendment errors in important trial procedures, such as charging a jury, could arise from readings of Bruen, Kamins said.

"At the end of the case, the judge charges the law. Is he obligated to tell the jury 'Well, if you believe the defendant had that gun for self-defense, you must dismiss the charges'?" he said. "I don't know the answer to that."

It's also still unclear whether the Bruen opinion applies retroactively. Defense attorneys will argue that it does, but courts will have to decide the issue, which Justice Thomas' majority opinion didn't address.

"That will have to be decided by a lower court, and then it will go up on appeal and ultimately may be decided by the Court of Appeals in Albany," Kamins said.

Few high court rulings are applied retroactively.

Assuming that Bruen is not retroactive, it's unclear whether people charged with gun possession between the ruling and the day the new New York statute kicks in could successfully mount a defense under it.

"I'm sure that the defense bar is going to argue that these gun cases should be directly affected by Bruen," but prosecutors will argue otherwise, Kamins said. "You just can't go outside and start carrying a weapon — that's what the prosecution will say."

A second factor impacting defense strategies is whether the new legislation will pass constitutional muster. Challenges are expected on multiple fronts. One involves a provision in the new law that allows agencies issuing gun permits to screen social media activity of applicants, which some critics argue violates the First Amendment. Another could be that gun-free zones established by the new law — government buildings, schools, sports arenas, public transportation and establishments that serve alcohol — violate gun owners' constitutional rights.

Does Bruen Apply Retroactively?

Recent Supreme Court precedent could weigh heavily on an ongoing debate regarding whether the ruling can be applied to people already convicted or charged with gun offenses before June 23.

A doctrine established by the U.S. Supreme Court in 1989 in Teague v. Lane allowed for "watershed" decisions involving fundamental constitutional rights to be applied retroactively. But the court abandoned that doctrine last year when it ruled in Edwards v. Vannoy that its 2020 decision in Ramos v. Louisiana, which declared nonunanimous juries unconstitutional, did not apply to past convictions.

Justice Neil Gorsuch addressed the issue of retroactivity with specificity in his concurring opinion in Edwards.

"Sometimes this court leaves a door ajar and holds out the possibility that someone, someday might walk through it — though no one ever has or, in truth, ever will," he wrote. "Today, the court candidly admits what has been long apparent: Teague held out a 'false hope' and the time has come to close its door."

Challenges over the geographical and physical boundaries of sensitive places will play an important role in defense strategies, Kamins said.

"They list Times Square as a sensitive area. They don't define Times Square. So what does Times Square mean?" he said. "That will have to be worked out and determined in litigation."

In addition, some defense lawyers will argue that statutes presuming a criminal intent for simply possessing a gun are now unconstitutional under Bruen.

"The Supreme Court has said that a person now has a right to carry a gun for normal, self-defense reasons, and it's presumptively OK to do that," Kamins said. "Some of the statutes, I think, under the penal law may have to be rewritten."

Overall, the likelihood that a defense lawyer will mount a Bruen defense depends on the type of case, defense attorneys say.

Some of the people who are arrested and charged in New York are lawful gun owners who believe they are complying with the law. Somewhat common scenarios involve out-of-state tourists declaring their firearm at the airport before flying home, people leaving loaded guns in hotel rooms where they are later found by employees, motorists telling police officers there is a firearm in their glove compartment during a traffic stop, and people being arrested after informing security they have a weapon upon entering a location where signs indicate guns are not allowed, or after going through a metal detector.

Saland, whose clients are mostly firearm owners from states where gun laws are more relaxed, said their best bet is to argue they didn't know New York law or that they misunderstood it, assuming there are no other legal grounds to challenge their arrest, and they can avail themselves of a non-criminal disposition, rather than challenging it as unconstitutional and risk a violent felony record and imprisonment. On the other hand, offenders who could face years of prison time, such as predicate felons, are more likely to use Bruen to mount constitutional challenges, he said.

"There'll be people who are challenging [it], but they're going to be those who are probably in the most difficult situations facing the most in terms of incarceration," he said. "If I'm wrong, I'm wrong."

--Editing by Marygrace Anderson and Brian Baresch.

Update: The story has been updated to include additional comment from Jeremy Saland.

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