By Daniel Wiessner
ALBANY, N.Y., Jan 30 (Reuters) - Two gun owners have filed a
lawsuit seeking to overturn New York state's sweeping
gun-control law, enacted after the mass shooting at an
elementary school in Connecticut.
The lawsuit, an Article 78 petition filed on Tuesday in
Supreme Court in Erie County, is apparently the first to
challenge the crackdown on firearms championed by Governor
Attorney James Tresmond, who is representing the gun owners,
has asked Supreme Court Justice Diane Devlin to enjoin the law
pending the state's response.
The law was passed on Jan. 15, making New York the first
state to enact tougher gun regulations after a gunman shot dead
20 students and six staff members last month at the Sandy Hook
school in Newtown.
The law bans assault weapons and magazines that hold more
than seven rounds of ammunition, requires gun owners to register
most guns with the state and demands universal background
checks, among other provisions.
The law also authorizes law enforcement to confiscate guns
owned by a mentally ill person, if a mental health professional
believes the person poses a threat to himself or others.
"A number of constitutional rights were just tossed aside
here," Tresmond said on Wednesday in an interview.
Under the law, the failure to register a gun is a class E
felony. The petition claims that the provision violates the
Fifth Amendment right against self-incrimination because it
could force a gun owner who registers late to effectively admit
to committing a crime.
The U.S. Supreme Court in 1968 ruled in Haynes v. United
States that felons and others who are prohibited from possessing
guns could not be forced to incriminate themselves through
The petition claims the law also violates the Fifth
Amendment's ban on the taking of private property by the
government. The law requires people who own high-capacity
magazines to either sell them or surrender them to the state.
The petition lists as defendants Cuomo, Assembly Speaker
Sheldon Silver, Senate majority leaders Dean Skelos and Jeff
Klein and State Police Superintendent Joseph D'Amico.
At a press conference on Wednesday after the petition was
filed, Cuomo said he expected legal challenges to the new law
and that he believed courts would uphold it.
"The more (people) understand the law and the more they hear
about the law, the better they are going to feel because it has
nothing to do with the legitimate ownership of a gun," he said.
Tresmond is working with about a dozen other lawyers, he
said. He credited his son, Maximillian Tresmond, with crafting
the Fifth Amendment argument against the law. The younger
Tresmond is a University of Buffalo graduate who has not yet
attended law school, his father said.
Also on Tuesday, the New York State Rifle & Pistol
Association filed a notice of claim with the state, which gives
the group 90 days to file a suit challenging the gun law. The
association, which is the National Rifle Association's affiliate
in New York, claimed in its filing that the law violates the
Second and Fifth amendments, the Commerce Clause and
constitutional rights to privacy.
The case is Richard Dywinski v. New York, New York State
Supreme Court, Erie County, No. 290-2013.
For the plaintiffs: James Tresmond.
For the defendants: Not immediately available.
Follow us on Twitter @ReutersLegal | Like us on Facebook