STATE OF NEW YORK SUPREME COURT - ALBANY COUNTY ___________________________________________________ ROBERT L. SCHULZ, et al., Plaintiffs-petitioners, -againstIndex No.

RJI No:

STATE OF NEW YORK EXECUTIVE, ANDREW CUOMO, Governor; STATE OF NEW YORK LEGISLATURE, SHELDON SILVER, Speaker of the New York State Assembly; DEAN SKELOS, Temporary President and Republican Coalition Leader, JEFFREY KLEIN, Temporary President and Democrat Coalition Leader, Defendants-Respondents. _____________________________________________________________________________ BRIEF IN SUPPORT OF MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
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Based on the Verified Complaint-Petition and the exhibits annexed thereto, dated January 25, 2013, and the annexed Affidavit by Plaintiff Robert L. Schulz, dated February 26, 2013, this Memorandum of Law is submitted in support of Plaintiffs motion by Order to Show Cause for an order: a) declaring the NY SAFE Act, signed into law on Tuesday, January 15, 2013, to be repugnant to Article III, Section 14 of the New York State Constitution; and, b) declaring the NY SAFE Act, signed into law on Tuesday, January 15, 2013, to be repugnant to Article XII of the New York State Constitution; and, c) declaring the NY SAFE Act, signed into law on Tuesday, January 15, 2013, to be null and void and of no effect; and,
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d) preliminarily enjoining, restraining and prohibiting Defendants NEW YORK STATE

EXECUTIVE, ANDREW CUOMO, GOVERNOR; STATE OF NEW YORK LEGISLATURE, SHELDON SILVER, Speaker of the New York State Assembly; DEAN SKELOS, Temporary President and Republican Coalition Leader, JEFFREY KLEIN, Temporary President and Democrat Coalition Leader, their agents, and any agency or subdivision that arguably may act in this matter, from taking any action in furtherance of any provision of the NY SAFE ACT, signed into law on January 15, 2013, and directing the Governor to immediately notify all Departments, Divisions, agencies, and public corporations of the State of New York, by Executive Order or otherwise, of the preliminary stay of the implementation and enforcement of each and every provision of the NY SAFE ACT, until a final determination is issued by this court and any appeal there from; and,
e) giving the ruling on the constitutionality of the Governors Message of Necessity

prospective effect only; and f) expediting the determination of this action; and g) for such other and further relief as to the court may seem just and proper. Included in the Motion is a request for an order, temporarily enjoining, restraining and prohibiting defendants NEW YORK STATE EXECUTIVE, ANDREW CUOMO, GOVERNOR; STATE OF NEW YORK LEGISLATURE, SHELDON SILVER, Speaker of the New York State Assembly; DEAN SKELOS, Temporary President and Republican Coalition Leader,
JEFFREY KLEIN, Temporary President and Democrat Coalition Leader, their agents, and any agency or subdivision that arguably may act in this matter, from taking any action in furtherance of the NY SAFE ACT, signed into law on January 15, 2013, and directing the Governor to immediately notify all Departments, Divisions, agencies, and public corporations of the State of New York, by Executive 2

Order or otherwise, of the temporary stay of the implementation and enforcement of each and every provision of the NY SAFE ACT. In further support of the motion Plaintiff states: Likelihood Of Success On The Merits This relief is warranted as Plaintiffs are likely to succeed on the merits of their claims. The NY SAFE ACT was enacted in violation of Plaintiffs constitutionally protected Right to a Governor and State Legislature that do not enact into law any bill that has not been on the desks of the members of the Legislature for at least three days prior to passage, unless accompanied by a Message of Necessity from the Governor that includes the minimal statement of facts that compliance with the Constitution requires. Magee v State of N.Y., 4 N.Y.3d 415, 426. No bill shall be passed or become a law unless it shall have been printed and upon the desks of the members, in its final form, at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinion necessitate an immediate vote thereon, in which case it must nevertheless be upon the desks of the members in final form, not necessarily printed, before its final passage; nor shall any bill be passed or become a law, except by the assent of a majority of the members elected to each branch of the legislature; and upon the last reading of a bill, no amendment thereof shall be allowed, and the question upon its final passage shall be taken immediately thereafter, and the ayes and nays entered on the journal. New York State Constitution, Article III, Section 14. The Constitution requires the Governors statement of facts, at a minimum, to be truthful and consistent with the facts contained in the bill itself. Here, the Governors Message of Necessity included facts known to the Governor to be false for they directly contradicted provisions of his bill. The Governors Message of Necessity reads: Some weapons are so dangerous, and some ammunition devices so lethal, that New York State must act without delay to prohibit their continued sale and
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possession in the state in order to protect its children, first responders and citizens as soon as possible. This bill, if enacted, would do so by immediately banning the ownership, purchase and sale of assault weapons and large capacity ammunition feeding devices, and eliminate them from commerce in New York State. The Governors Message of Necessity is false on its face. The NY SAFE ACT does not prohibit possession of the estimated one million, newly defined and targeted by the ACT, assault weapons already in the possession of and legally owned by private citizens in the State of New York.1 The SAFE ACT does not ban the ownership of those assault weapons. In fact, under the provisions of the NY SAFE ACT the current owners of the estimated one million assault weapons may continue possessing and owning them until they die, provided they register them with the State between April 15, 2013 and April 15, 2014 and re-certify them with the County Clerks office every five years thereafter. In addition, the enactment of the NY SAFE ACT did not immediately ban the purchase and sale of assault weapons, or eliminate them from commerce in New York State. Under the provisions of the SAFE ACT, individuals may freely engage in commerce by purchasing a newly defined assault weapons from or selling a newly defined assault weapons to another individual in New York State, until January 14, 2014. After January 14, 2014, and in perpetuity, an individual can freely sell to and purchase a newly defined assault weapon from an immediate family member. After January 14, 2014, individuals may continue to engage in such commerce, purchasing and selling the newly defined assault weapons among themselves, provided they do so before a Federal Firearms Licensed Dealer who would perform a federal background check. In addition, the NY SAFE ACT does not immediately prohibit the possession or ownership of the estimated ten million, newly defined, and targeted by the ACT, large capacity
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On January 14, 2013, at his press conference held about one hour before the Senate voted on the SAFE ACT, the Governor estimated the number of assault weapons currently owned by citizens in New York State to be in the million range.

ammunition feeding devices (capable of holding more than seven rounds) already in the possession of and legally owned by private citizens in the State of New York. In fact, under the provisions of the NY SAFE ACT, the current owners of the estimated millions of large capacity ammunition feeding devices may continue possessing and owning them until January 14, 2014, one full year following the day the Governor signed the ACT. The plain language of the Message of Necessity is contradicted by the plain language of the NY SAFE ACT itself. The Governors Message of Necessity fails to meet the constitutional test; it fails to include the minimal statement of facts that compliance with the Constitution requires. Also missing from the minimal statement of facts that compliance with the NY Constitution requires was a factual statement of the legitimate need for speed that is, no need for immediate passage of the bill. The legislature was not scheduled to adjourn for the year, there was no natural disaster or emergency necessitating immediate passage, stated by the Governors Message or otherwise. The SAFE ACT could not, and certainly did not do anything to reduce gun violence in New York State between January 14, 2013 and January 18, 2013 and beyond. There is absolutely nothing in the NY SAFE ACT that assures the immediate, near-term or long-term prevention of gun violence whether caused by suicides, gang shootings, drug wars, other criminals, or by the mentally ill. There is nothing in the SAFE ACT that would prevent a Newtown, an Aurora, a Rochester/Webster, or any other mass shooting from happening in NY State in the future. In sum, Defendant Legislature did not have the bill on their desks for three days before final passage, and the Governors message of necessity did not satisfy the intent or the spirit of
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the Constitution that is, the inclusion of the minimal statement of facts that the Constitution requires. The Legislature and the People of New York State were misled by the Governors abuse of the power granted him by Article III, Section 14 of the New York State Constitution. Kings and their acquiescent Parliaments govern by whim and pure opinions. Not so with New Yorks Governors and their allies in the Legislature, who are meant and constrained to govern under the Rule of Law that is, by the letter and spirit of the will of the People according to the restrictions, prohibitions, mandates and underlying principles of the State and Federal Constitutions. In addition, the NY SAFE ACT was enacted in violation of Plaintiffs constitutionally protected Right to a Legislature that provides for the discharge of Plaintiffs obligation to defend the state of New York and the country through a well-organized and well-regulated State Militia. The defense and protection of the state and of the United States is an obligation of all persons within the state. The legislature shall provide for the discharge of this obligation and for the maintenance and regulation of an organized militia.NY Constitution, Article XII, Section 1. Plaintiffs Right to be armed with weaponry suitable for use by the militia in warfare and for the general defense of the community2 is enshrined in New York States Civil Rights Law, which quotes the Second Amendment to the U.S. Constitution but substitutes the stronger word cannot for the words shall not found in the federal Constitution. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed. NY Civil Rights Law, Article 2, Section 4. A well regulated militia, being necessary to the security of a free state, the Right of the People to keep and bear Arms, shall not be infringed. U.S. Constitution, Second Amendment.

Guida v Dier (1975) 84 Misc 2d 110, 375 NYS2d 826, mod on other grounds (1976, 3d Dept) 54 App Div 2d 86, 387 NYS2d 720.

The NY SAFE ACT infringes on Plaintiffs fundamental Right to be armed with weaponry suitable for use by the militia in warfare and for the general defense of the community, an individual, natural, unalienable Right guaranteed by the Constitutions of the State of New York and the United States of America, and by the NY Civil Rights Act. Irreparable Harm: Constitutional Claims Unless this Court issues a temporary restraining order and subsequent preliminary injunction barring Defendants from proceeding in furtherance of the NY SAFE ACT, Plaintiffs irreparable harm will continue and be compounded with each new dawn. Plaintiffs harm cannot be adequately compensated, monetarily. It is the alleged violation of a constitutionally protected Right that triggers the finding of irreparable harm. A violation of a constitutionally guaranteed Right, even for minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). When an alleged constitutional right is involved, no further showing of irreparable injury is necessary. This reasoning essentially collapses the likelihood of success on the merits and irreparable harm prongs of the injunctive inquiry where constitutional rights are at stake. An alleged constitutional infringement will alone constitute irreparable harm. Unlike monetary injuries, constitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm. The anxiety and stress of losing a constitutionally guaranteed Right constitutes irreparable injury. It is well-established that constitutional claims enjoy a special status in the law when it comes to demonstrating irreparable harm for purposes of preliminary injunctive relief. The U.S. Supreme Court and all federal circuits, including the Second Circuit, have consistently

made clear that constitutional violations constitute per se irreparable harm for purposes of preliminary injunctive relief. Here, the constitutional claims include: a. Defendants violation of Plaintiffs fundamental Right to Laws constrained by the terms and conditions of Article III, Section 14 of the NY Constitution. The enactment of the SAFE ACT violated the three-day rule. b. Defendants violation of Plaintiffs fundamental Right to Laws constrained by the terms and conditions of Article XII of the NY Constitution and the Second Amendment to the U.S. Constitution (and by Article 2, Section 4 of the N.Y. Civil Rights Act).The SAFE ACT violates the constitutional mandate that the Legislature provide for the discharge of Plaintiffs obligation to defend the State and Country through a well-organized, wellmaintained State Militia. c. Defendants violation of Plaintiffs Right to Speech and to Petition the Government for Redress of Grievances, guaranteed by Article I of the NY Constitution and by the First Amendment to the U.S. Constitution. Without an overriding state or public interest, Defendants prevented Plaintiffs from Speaking to and petitioning their elected State Representatives before the vote on the SAFE ACT. d. Defendants violation of Plaintiffs Property Rights. For example, the SAFE ACT requires plaintiffs to sell out of state or dispose of ammunition magazines capable of holding more than 10 rounds. e. Defendants violation of Plaintiffs fundamental Due Process interests. Irreparable Harm: Public Expenditures

In addition, Plaintiffs are experiencing irreparable harm each day by Defendants who in the course of their duties under the SAFE ACT have caused, are now causing, and are about to cause additional wrongful expenditures, misappropriations, misapplications, and other illegal and unconstitutional disbursements of state funds and state property. With 53 of the 56 operative provisions of the SAFE ACT to take effect on March 14, 2013, Defendants are expending state taxpayer funds to implement the unconstitutional NY SAFE ACT, including but by no means limited to preparing for the newly required registration and re-classification every five years of assault weapons, the newly required re-certification of all hand guns, the newly required reports on all ammunition sales, the newly required data bases to keep track of guns and all ammunition purchases, and so forth. Defendant Governor is obviously robbing Peter to pay Paul by expending public funds that are not in this years State budget, but are in the proposed State budget for next year.3 For example, under the SAFE ACT, public taxpayer funds are being spent to implement:
A new assault weapons registration, recertification and tracking

database, with cross-checking against other data bases, and

A new registration system and database for all dealers in ammunition,

complete with a state background check and transmission of a record of the sale to State Police, reports of loss of inventory and reports of internet sales, and

On January 22, 2013, the Governor presented to the Legislature a budget for 2013-14 that included $35.9 million to implement and administer his gun control law, including registration of assault weapons, re-registering of pistol permits and new data bases to keep track of guns [and all ammunition purchases] and safety measures at schools including their entrances. Source: Budget At A Glance, Michael Gormley, Associated Press, January 22, 2013.

 A new program to be administered by County Clerks for the re-

certification of all handgun licenses and assault weapons registrations, with cross-checking against other databases, and
A new system requiring all hand gun and assault weapons sales and

transfers in New York State between private parties, except immediate family, to be conducted through a federal firearms licensee and subject to a federal National Instant Criminal Background Check, and Other plans and programs, systems and procedures. Balancing Of The Equities The potential harm to Plaintiffs far outweighs any burden Defendants will face if the Court temporarily and preliminarily prohibits and enjoins Defendants and their agents from taking any steps in furtherance of the NY SAFE ACT until the underlying constitutional questions are finally determined. Plaintiffs irreparable, constitutional harm is clear when viewing the letter and intent of Article III, Section 14, and Article XII of the NY Constitution and the other provisions of the State and Federal Constitutions referred to above. On the other hand, Defendants burden would be non-existent or minimal in view of the fact that: a) the assault weapons as defined and targeted by the NY SAFE ACT are not so dangerous that under the language of the SAFE ACT itself, the current owners of the estimated one million assault weapons in existence in New York State cannot keep owning them (until those owners die); b) the large capacity ammunition feeding devices as defined and targeted by the NY SAFE ACT are not so lethal that under the language of the SAFE ACT itself, the current owners of the estimated ten million large capacity ammunition feeding devices in existence in New York State cannot own them
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until January 14, 2014 that is, for one full year following the day the Governor signed the Bill into law; and c) individuals can sell to and purchase assault weapons from federal firearms licensees. A temporary restraining order and eventual preliminary injunction will not disserve the public interest, but would affirmatively promote it. There is no indication that the waiver of the three-day rule of Article III, Section 14 and the restrictions imposed by the NY SAFE ACT that have imposed burdens on Plaintiffs constitutional Rights will tend to produce more than a deminimis reduction of any negative secondary effects associated with the ownership of the newly defined assault weapons and large capacity ammunition feeding devices. Standing and Expedited Proceeding In addition to Plaintiffs constitutional standing, plaintiffs have standing under State Finance Law Section 123. Defendants are disbursing state taxpayer funds to implement the unconstitutional NY SAFE ACT, including but by no means limited to preparing for the registration of assault weapons, re-certification of pistol permits assault weapon registrations and new data bases to keep track of guns and all ammunition purchases.4 It is the purpose of the legislature to recognize that each individual citizen and taxpayer of the state has an interest in the proper disposition of all state funds and properties. Whenever this interest is or may be threatened by an illegal or unconstitutional act of a state officer or employee, the need for relief is so urgent that any citizen-taxpayer should have and hereafter does have a right to seek the remedies provided for herein. State Finance Law, Section 123 Notwithstanding any inconsistent provision of law, any person, who is a citizen taxpayer, whether or not such person is or may be affected or specially aggrieved by the activity herein referred to, may maintain an action for equitable or declaratory
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On January 22, 2013, the Governor presented to the Legislature a budget for 2013-14 that included $35.9 million to implement and administer his gun control law, including registration of assault weapons, re-registering of pistol permits and new data bases to keep track of guns [and all ammunition purchases] and safety measures at schools including their entrances. Source: Budget At A Glance, Michael Gormley, Associated Press, January 22, 2013.

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relief, or both, against an officer or employee of the state who in the course of his or her duties has caused, is now causing, or is about to cause a wrongful expenditure, misappropriation, misapplication, or any other illegal or unconstitutional disbursement of state funds or state property, except that the provisions of this subdivision shall not apply to the authorization, sale, execution or delivery of a bond issue or notes issued in anticipation thereof by the state or any agency, instrumentality or subdivision thereof or by any public corporation or public benefit corporation. State Finance Law, Section 123-b.1. An action pursuant to this article shall be brought in the supreme court in any county wherein the disbursement has occurred, is likely to occur, or is occurring, or in the county in which the state officer or employee has his or her principal office. State Finance Law, Section 123-c.1. An action under the provisions of this article shall be heard upon such notice to such officer or employee as the court, justice or judge shall direct, and shall be promptly determined. The action shall have preference over all other causes in all courts. State Finance Law, Section 123-c.4. Conclusion Plaintiff respectfully requests a temporary restraining order and preliminary injunction. Respectfully submitted, DATED: February 26, 2013 ROBERT L. SCHULZ Pro Se 2458 Ridge Road Queensbury, NY 12804 Washington County (518) 656-3578 Bob@givemeliberty.org

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