Goldstein

The first motion in the Goldstein v. Hochul case asked for only one thing: a TRO/Preliminary Injunction against enforcement of the restriction against concealed carry in places of worship from the “Concealed Carry Improvements Act” (“CCIA”) of 2022.  Presiding Judge Broderick last week denied that request.  (Case 1:22-cv-08300)  Unfortunately, that wasn’t all he did.  Judge Broderick’s written decision contained at least three elements that evidence an agenda to help the State get back to SCOTUS to take a sizeable bite out of NYSRPA v. Bruen.

First, Judge Broderick took pains to mock decisions cited by SCOTUS in NYSRPA v. Bruen, including quotes to trigger negative reactions from readers.  For example, he quoted words from an 1871 decision out of Texas against firearm carry in

“…a church, a lecture, room, a ball room, or any other place where ladies and gentlemen are congregated together.” 

Judge Broderick uses such antiquated notions to support his own sweeping statements about the right of a state to limit concealed carry in state-determined locations. The out-of-context “quotes” mock the intelligence of the SCOTUS majority opinion.

Second, Judge Broderick – who hazed the Plaintiffs and their lawyers at the motion hearing – gave full credibility to Governor Hochul and NYS AG James based upon a 1-page “Press Release” he found on-line. 

Neither woman submitted an affidavit, nor did they appear for testimony or cross-examination by lawyers or the court. 

None-the-less, there’s Judge Broderick, using a publicity page as probative evidence of the good intention of Hochul and James for “public safety.” These women are defendants, and their motivations are put squarely at issue in the lawsuit.

Judge Broderick didn’t even get the facts right when he wrote on the last page of his decision “The New York State Legislature has acted in what they consider to be in the best interest of public safety.”  The CCIA bill originated from Governor Hochul, who signed an edict to pull the legislature into emergency session, where she kept them into the dark of night, until they passed her bill, which she publicly proclaimed was drafted with help from named lawyers who work for Everytown and Giffords.  There was no legislative bill, drafted by a member, numbered, put through committee hearings, published to the public for open comment, debated upon the floor, or subject to amendment.  Instead, the 3-day desk rule was suspended, the minority Republican conference received the printed bill less than two hours ahead of the vote, and there was no testimony whatsoever about “public safety” either at the legislative or the judicial level.

Third, Judge Broderick hinged his decision on a case widely acknowledged to be over-turned by NYSRPA v. Bruen.  Judge Broderick expressly relied upon and cited to NYSRPA v. Cuomo.  It’s sneaky how he does so.  In that same paragraph about the “Press Release,” Judge Broderick includes a citation written as “New York State Rifle & Pistol Ass’n, Inc., 804 F.3d at 261.”  You have to be a lawyer to recognize that the citation is not in conformance with Blue Book of Citations standards and that the “F.3d” signals “Second Circuit Court of Appeals.” 

The decision upon which Judge Broderick relies for his decision is NYSRPA v. Cuomo from 2015.  The legal standard used in that earlier decision (“strict scrutiny”) was over-turned by the 2022 decision in NYSRPA v. Bruen. 

It is legally incorrect to cite to the 2015 decision, one that used a “strict scrutiny” standard.  It is a signal of preference by Judge Broderick in favor of the reversal of NYSRPA v. Bruen.

Something went wrong with the Goldstein v. Hochul case from the onset of Judge Broderick’s hyper-active involvement in advance of the hearing on their TRO/PI request.  Prior to the hearing, Judge Broderick published pages of detailed and partially irrelevant questions for the Plaintiffs to answer.  At the hearing, he instructed the NYS attorney that he would not be permitted to ask questions – only the Judge would be asking questions.  The entire demeanor going into and at the hearing was Kafkaesque.

Put into the context of the eight other cases also suing against portions of the CCIA, Goldstein is (thankfully) the outlier.  The request for injunction against enforcement for those who concealed carry at places of worship was already ruled upon favorably by N.D.N.Y. Judge Glenn Suddaby and W.D.N.Y. Judge Sinatra in two other cases.  Those preliminary injunctions are already fully briefed and completed of oral arguments as of March 20, 2023, and awaiting written decision from the Second Circuit Court of Appeals.  Additionally, in April 2023, the places of worship provision was revised through a technical amendment during the budget process.  Everyone else involved in legal analysis of the “sensitive location” prohibition against concealed carry in places of worship is already miles down the road ahead of Goldstein.

Simply put, there was no reason for Judge Broderick to issue his Goldstein decision – at all.  Judge Broderick decided to issue a conflicting decision with errors of fact and law to give the State what Governor Hochul wants: power bigger than SCOTUS and the U.S. Constitution, as if the Fourteenth Amendment had never been ratified.

Sad to say, but… Goldstein is a lower court decision that is best left un-appealed.  When the Second Circuit rules (and I do believe it will uphold the preliminary injunction at least concerning places of worship), their decision will apply statewide and will take precedence over S.D.N.Y. Judge Broderick.  To now appeal Goldstein from district court to circuit court takes risk that it will further delay the already-pending appellate decisions in Antonyuk v. Nigrelli, Hardaway v. Nigrelli, and Spencer v. Nigrelli.  It could also create a problem if a different appellate panel is assigned, which then issues a conflicting ruling.

If you practice civil rights litigation enough, you end up with a decision or two at district court that you simply let lie.  Wrong plaintiffs.  Wrong judge.  Wrong interpretation by lawyers and/or judges.  Bad circuit to be in for an appeal.  Other decisions in the meantime that are better.

Civil rights litigation that succeeds is a team effort, even if the lawyers are blind dates among each other, because we’re all rowing in the same direction in choppier seas than Russell Crowe in “Master and Commander.”  You have even to be aware of decisions in other states, also working their way upwards, like Judge Bumb’s powerful preliminary injunction order out of New Jersey, now on appeal to the Third Circuit, it, too, concerning concealed carry in places of worship.

With so many “sensitive locations” of the NY CCIA untouched, as yet, through litigation, if we pull back the lens and look at the big picture, at least to my sensibilities, what are the options?  It is time to start filing more cases attacking individual “sensitive locations,” several of which are ripe for attack.  It takes a good 60-90 days to work up new cases, including identifying and bringing individuals into plaintiff status.  We could actually use more lawyers, and I’ve met more than one person ready and willing to raise their hand and add their name to a caption against Hochul, James, and the unconstitutionality of the CCIA.  Putting more planes on the deck to launch come September is where this Fourth of July week should take aim.