New Challenge to New York’s Stun Gun Bans

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From the Complaint in Calce v. City of New York (S.D.N.Y.), just filed today:

This §1983 action challenges New York State and City laws that flatly prohibit private citizens from possessing or using stun guns and tasers. In Caetano v. Massachusetts, 577 U.S. ___, 136 S. Ct. 1027 (2016), the Supreme Court vacated a conviction under a Massachusetts law that—like the New York State and City laws at issue here—flatly prohibited the possession of stun guns. Since then, most courts have found that bans on stun guns and tasers violate the Second Amendment and are unconstitutional. See, e.g., People v. Webb, 131 N.E.3d 93, 98 (Ill. 2019); Ramirez v. Commonwealth, 94 N.E.3d 809, 818 (Mass. 2018). In Avitabile v. Beach, 368 F. Supp. 3d 404 (N.D.N.Y. 2019) the court found the State’s ban on stun guns and tasers unconstitutional and enjoined the State Police from enforcing it, see id. at 421.

Notwithstanding this, the City of New York continues to enforce the State and City laws that prohibit the possession of stun guns and tasers. Among other things, the City and Commissioner Shea continue to train officers that stun guns and tasers are illegal under State and City law and to instruct them to bring charges against individuals found in possession of them. NYPD officers continue to arrest and/or summons individuals they find to be in possession of them. When the individual Plaintiffs—Nunzio Calce, Raymond Pezzoli and Shaya Greenfield—contacted their local NYPD precincts to inquire, NYPD officers to each of them that stun guns and tasers are illegal.

Cf. People v. Johnson (N.Y. City. Ct. 2019), which indeed refused to follow Avitabile, and allowed a stun gun prosecution to go forward. I think Avitabile is correct, and expect that this challenge will be successful as well; for an earlier article of mine on the subject, see Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life (Stan. L. Rev. 2009).

Note that the plaintiffs in this case include the Second Amendment Foundation and the Firearms Policy Coalition; I have often consulted for the Coalition, though I haven’t worked on this Complaint, which was filed by New York lawyer David Jensen.

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