NEW YORK (Legal Newsline) - Plaintiffs challenging New York's ban on assault weapons have shown they would face criminal prosecution if they were to obtain such weapons without a license.
Federal judge Kenneth Karas on Jan. 4 rejected a motion to dismiss that argued plaintiffs J. Mark Lane and James Sears lacked standing to bring suit over the law. They are represented by the Second Amendment Foundation, FPC Action Foundation and the Buffalo firm Phillips Lytle.
Karas wrote that a "presumption of enforcement applies," giving Lane and Sears standing.
Citing another case, he wrote, "(T)here is [thus] reason to believe that the plaintiffs will be targets of criminal prosecution, and [as] there has been no disavowal of an intention to prosecute those individuals, the plaintiffs have adequately alleged a credible threat of prosecution."
The plaintiffs, who are Westchester County residents, allege that New York's "Semiautomatic Firearm Ban" enforces a "flat prohibition" on the manufacturing, possession, transport and disposal of semiautomatic weapons.
They claim the law makes it a criminal offense for "law-abiding" and "peaceful citizens" to exercise their right to keep and bear arms.
The plaintiffs further claim that New York's law mischaracterizes them as "assault weapons" and bans features including telescoping stocks and protruding grips. The suit says gun owners use the weapons for sport shooting, hunting and recreational target shooting.
Plaintiffs also claim there is "no constitutionally relevant" differences in semiautomatic handguns, shotguns and rifles and that the state's ban shuts out "ordinary, law-abiding citizens from exercising their constitutional rights in New York."
Defendants are Westchester County District Attorney Miriam Rocah and State Police Acting Superintendent Dominick L. Chiumento. The office of state Attorney General Letitia James represents Chiumento.