I have automated searches that run once a week on Westlaw, looking for firearms-related cases. Most of the time, they turn up rather vanilla firearms cases, such as felons in possession. This week, though, something interesting came up: Avitable v. Beach, cited above. I'll have to read it thoroughly and digest it, but from what I can see: (1) the conclusion that NY's ban on stun guns and tasers is unconstitutional is good for us; but (2) the NDNY applies this intermediate scrutiny two-step that we've seen; and (3) even after concluding that the ban is unconstitutional, the judge goes so far as to suggest to the legislature that it should impose some restrictions on carry and possession of stun guns and tasers.
Some tidbits:
And, of course, the conclusion:
Some tidbits:
The Second Amendment applies to “the sorts of weapons” that are (a) “in common use” and (b) “typically possessed by law-abiding citizens for lawful purposes.” Avitabile, 277 F.Supp.3d at 333 (quoting N.Y. State Rifle I, 804 F.3d at 255).6 Importantly, though, Heller created “a rebuttable presumption that ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, ‘not just to a small subset.’ ” Maloney v. Singas, 351 F.Supp.3d 222, 232 (E.D.N.Y. 2018) (quoting N.Y. State Rifle I, 804 F.3d at 255-56).
Avitabile v. Beach, 368 F. Supp. 3d 404, 410 (N.D.N.Y. 2019)
Lacking further guidance, trial courts have expressed frustration about the difficulty of meaningfully evaluating “common use.” For instance, a district court recently lamented that determining common use is a “virtual impossibility” and concluded that the “typical possession” prong must perform the more important gate-keeping function at the first step. Maloney, 351 F.Supp.3d at 233 n.25, 237 n.16; cf. Friedman, 784 F.3d at 409 (“t would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so that it isn't commonly owned.”).
Avitabile v. Beach, 368 F. Supp. 3d 404, 411 (N.D.N.Y. 2019)
However, based on the limited data available, the parties agree there are at least 300,000 tasers and 4,478,330 stun guns owned by private citizens across the United States. Plaintiff contends these stipulated figures are more than sufficient to establish that tasers and stun guns are a class of bearable arms that are in “common use” by private citizens across the country.
The State's position on this issue is more muddled. In its cross-motion and opposition, defendant suggests that only stun guns, and not tasers, are in “common use.” Defendant analogizes the smaller number of tasers (300,000) to the relatively small number of civilian-owned machine guns that were sold prior to the 1986 federal ban on those weapons. As defendant points out, the Fifth Circuit has suggested that the number of those particular weapons believed to exist (176,000) would probably be insufficient to establish their “common use.” See Hollis, 827 F.3d at 450 (refusing to undertake the analysis given the dearth of record evidence).
Avitabile rejects the premise implicit the State's assertion: that tasers and stun guns are separable “classes” of arms for purposes of the Second Amendment. Plaintiff argues that the Supreme Court in Heller did not try to parse out which particular types of handguns (e.g., revolvers or semi-automatics) were entitled to constitutional protection but rather spoke more broadly about handguns as a “class” of bearable arms.
Avitabile argues the same sort of conclusion is appropriate here. Plaintiff emphasizes that tasers and stun guns have the same basic functionality; that is, both utilize an electric charge to incapacitate an attacker. In fact, plaintiff argues, a taser operated in “drive-stun” mode is functionally identical to a stun gun. According to plaintiff, these weapons are better understood as a single class of “electric arms” that, taken together, number in the millions.
In reply to this argument, the State reiterates its assertion that the 300,000 figure for tasers is insufficient to establish “common use” because that number almost certainly represents the entire domestic market. According to defendant, Axon (formerly TASER) enjoys a virtual monopoly on the domestic sale of tasers. However, defendant goes on to indicate that it is willing to concede for purposes of this motion practice that tasers and stun guns are both in “common use.”
Even if the State were to refuse to make such a concession, Avitabile would *412 still have the better of this argument. Whether or not the parties' agreed-upon figure for tasers is closer to the ceiling or the floor when it comes to the number of electronic dart guns sold in this country, at least one other court has found the “common use” requirement satisfied with a substantially lower figure. Maloney, 351 F.Supp.3d at 237-38 (finding same as to metal and wood nunchakus where at least 64,890 were sold to private citizens).
Avitabile v. Beach, 368 F. Supp. 3d 404, 411–12 (N.D.N.Y. 2019)
As a practical matter, an argument could be made that the present New York law banning tasers and stun guns actually increases the danger of death and injury, particularly in the home. A law-abiding citizen like Avitabile, if prevented from buying a taser or stun gun, would buy a handgun for protection in the home. This would result in more handguns in the home. A handgun in the home would be much more likely to result in injury or death than a taser or a stun gun. Fewer handguns in the home would result in fewer injuries or deaths. More handguns in circulation increase the likelihood of criminal activity causing injury or death, both in the home and out of it. Therefore, the complete ban on tasers and stun guns actually undermines public safety and crime prevention because it results in more crimes, injuries, and deaths.
24In short, a mere generalized appeal to public safety and crime prevention as the justification for a total and complete ban on a whole class of arms is precisely the kind of “shoddy reasoning” that even intermediate scrutiny forbids. Kachalsky, 701 F.3d at 97 (“[O]n intermediate scrutiny *421 review, the state cannot get away with shoddy data or reasoning.”).
Avitabile v. Beach, 368 F. Supp. 3d 404, 420–21 (N.D.N.Y. 2019)
And, of course, the conclusion:
New York's sweeping prohibition on the possession and use of tasers and stun guns by all citizens for all purposes, even for self-defense in one's own home, must be declared unconstitutional in light of Heller. To be clear, this conclusion does not foreclose the possibility that some restriction(s) on the possession and/or use of tasers and stun guns would be permissible under the Second Amendment. Other states have already done this. See, e.g., Wis. Stat. § 941.295(2g)(b) (permitting possession of “electric weapon” in home or place of business). New York might consider doing so as well.
Therefore, it is
ORDERED that
1. Plaintiff's motion for summary judgment is GRANTED;
2. Defendant's cross-motion for summary judgment is DENIED;
3. New York Penal Law § 265.01(1), as applied to “electronic dart guns” and “electronic stun guns,” is an unconstitutional restriction on the right to bear arms; and
4. Defendant, his officers, agents, servants, employees, and all persons in active concert or participation with the New York State Police are hereby ENJOINED from enforcing New York Penal Law § 265.01(1) as applied to “electronic dart guns” and “electronic stun guns.”
IT IS SO ORDERED.
Avitabile v. Beach, 368 F. Supp. 3d 404, 421 (N.D.N.Y. 2019)
