by Montgomery Blair Sibley, ©2020, blogging at Amo Probos

(Jan. 16, 2020) — I litigate like the Finnish approach the battlefield using the concept of Motitus — a double envelopment manoeuvre, using the ability of light troops to travel over rough ground to encircle enemy troops on a road. Heavily outnumbered but mobile forces could easily immobilize an enemy many times more numerous.

The main thrust of my Second Amendment litigation is the argument raised in my  Administrative Application for a Carry Concealed license proceeding that:

  • New York’s procedure for adjudicating applications to possess a handgun outside of the home violates federal procedural due process;
  • N.Y. Penal Law, §400.00.1 is void-for-vagueness, facially overbroad, violates the Equal Protection and Privileges and Immunities guarantees and encourages and permits, as in my case, prohibited arbitrary and discriminatory licensing.
On January 10, 2020, a hearing was held on those legal issues and my factual basis for requesting a license to carry handguns outside the home for purposes of: (i) self-defense and/or (ii) as part of my job-related duties as a New York licensed Nuisance Wildlife Control Operation to humanely “take”, i.e. kill, certain wild animals in certain situations for public health and/or safety reasons.  A decision from the Licensing Officer is pending.
However, employing the concept of Motitus, I have two other lawsuits pending in a bid to “encircle enemy troops” (the State of New York) all towards the end of crystallizing that which New York has intentionally kept legally indeterminate:  What is the required process due the termination or limitation on the fundamental right to self-defense inside and outside the home?
Of course, this arbitrariness of legal process has a historical precedent:

The qualitative shift in the legal treatment of the Jews can also be described in terms of the decreasing basis for an expectation on the part of the Jewish subject that he or she would be subject to predictable treatment by those in power. That is, the assumption by the SS of jurisdiction over many aspects of Jewish life lent an atmosphere of potential, if not actual, arbitrariness to the administration of these measures. . . . Indeed, the policy of extermination that shortly followed belonged to an extra-legal world of SS directives that remained, at all times, contingent on the whims of those who had the power to issue them.  


In New York, the licensing procedure rests solely upon the “whims of those who” have the power to issue carry concealed pistol permits.  Leaving aside the question (which I raise in these proceedings) whether New York has the authority to so limit carry concealed firearms, clearly that recognized right cannot be taken away so cavalierly.
Thus, I have filed a New York Freedom of Information Lawsuit (FOIL) to see who is and who is not getting carry concealed licenses and why or why not.  That litigation is set for a Motion to Re-argue on January 27, 2020, at 9:30 a.m. before Judge Nasca in Bath, New York.
Second, I have also filed a federal lawsuit in Rochester, New York against His Excellency Andrew Mark Cuomo and others seeking a legal declaration by the Judge assigned, the Honorable Frank Geraci, that:
  • New York’s criminal ban on my handgun possession in my home and cane sword possession both in my home and in public on its face and as applied violates my (i) Fundamental rights and (ii) Second Amendment rights;
  • New York’s administrative handgun licensing procedure as codified in N.Y. Penal Law §400.00 et seq. and N.Y. Admin. P. Act, §100 et seq. violates Sibley’s rights; and
  • The judicial review system of New York’s administrative handgun licensing procedure codified in N.Y. CPLR, Article 78  violates Federal and New York Due Process guarantees as failing to provide meaningful judicial review from an administrative process affecting Fundamental and Constitutional rights.

This suit is pending a response by the Defendants which should be filed later in January.

More, doubtlessly, will follow.  However, fuller background regarding these litigations can be found in the below Press Releases:
Press Release #1: Sibley Challenges New York State’s Handgun Law and Licensing Procedures in Federal Court
Press Release #2: Sibley’s Second Amendment FOIL/Red Flag Lawsuit Set for Hearing September 9, 2019, at Bath, N.Y.
Press Release #3: Sibley’s Second Amendment/Red Flag FOIL Lawsuit set for Hearing Monday, October 21, 2019 in Bath, New York
Press Release #4: Judge Threatens to Hold Steuben County in Contempt at Sibley’s Second Amendment/Red Flag FOIL
Lawsuit Hearing
Press Release #5: Is Steuben County Going to be Held in Contempt at Sibley’s November 18, 2019 Second Amendment/Red Flag FOIL Lawsuit Hearing?
Press Release #6: Hearing on Sibley’s Pistol Permit Application set for Friday, January 10, 2020 at 9:30 a.m. *** Sibley Sues Governor Cuomo Challenging Criminalization of Handgun Possession in the Home *** Judge Ignores Sibley’s First Amendment Argument and Dismisses Sibley’s Red Flag/FOIL Lawsuit

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