NYT.

It was 2:30 a.m. on Valentine’s Day last year when a detective watching a live camera feed from a major Queens thoroughfare spotted a man in a minivan who appeared to be holding a gun.

The police said they had quickly arrested the man, Robert Homer, and found a loaded Glock pistol in his pocket. When they checked his criminal record, they saw that he had a sex trafficking conviction. That made him ineligible for a gun license under federal law. He was indicted and pleaded not guilty to a charge of being a felon in possession of a firearm.

The case is now in jeopardy after a federal judge in Brooklyn ruled on Feb. 5 that the police did not have probable cause to stop Mr. Homer. In the ruling, the judge, Nicholas G. Garaufis, cited a 2022 Supreme Court decision that found U.S. citizens have a broad right to carry concealed firearms, overturning longstanding New York regulations. The case involving Mr. Homer is the latest test of gun laws in the state, where officials continue to grapple with how to square a legacy of strong gun control with the 2022 ruling.

Just nine days after Judge Garaufis’s decision in Mr. Homer’s case, a defense lawyer in a different gun case cited the ruling in state court in Manhattan, saying he understood it to mean that having a gun did not provide probable cause for a stop. The judge in the state case, Abraham Clott, said he disagreed with the federal judge’s conclusion.

The Supreme Court decision — in New York State Rifle & Pistol Association v. Bruen — “has really upended America’s laws,” said Adam Winkler, a professor at U.C.L.A. Law. That it has come up in connection with Fourth Amendment questions about probable cause in the Homer case “just shows the profound impact that Bruen is having,” he added.

Mr. Homer’s lawyer cited the Bruen decision in July when she moved to suppress evidence in the case. The lawyer, Marissa Sherman of the Federal Defenders of New York, argued that the police had not had probable cause to believe a crime was being committed when they searched Mr. Homer and found the gun.

If carrying a gun is not presumed to be illegal — as it might have been in New York before the Bruen decision, given the state’s tight regulations — then the simple sight of a gun would not be reasonable cause to stop someone, she argued.

Judge Garaufis agreed. The question after Bruen, he wrote, was whether a police officer who sees an unidentified person with a gun “has an objectively reasonable ground to believe that person is guilty of a crime.”

In Mr. Homer’s case, the judge concluded, the answer was no.

You see what the author of the article has done right out of the gate, yes? She has appealed to emotion and connected so-called “stop and identify” statutes with the only tangentially related Bruen decision. Let’s explore a bit more what I’m saying.

As I have said, I have about as much use for the Fourth Circuit as I do the toe-jam on my feet, but occasionally even they get things right. One of the few times in recent memory has to do with U.S. versus Nathanial Black. Very briefly, Black was observed carrying a firearm, and for that, the Charlotte-Mecklenburg Police stopped him, found out he was a convicted felon, and charged him for that (the story is actually a bit more complicated, in that Black was part of a group who had been stopped for open carry). Here is the problem: open carry is entirely legal in North Carolina. As stated in the ruling, “Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.”

Black’s case was thrown out. For the case in New York, the individual would never have been suspected of a crime had the state not fought Heller and Bruen so viciously. Another way of saying it is that this case seems to me similar to Black, in that the real issue in the New York case isn’t that he allegedly shouldn’t have been in possession of a firearm, but that there was no right to an investigatory detention (New York laws should long ago have been amended to reflect Bruen).

So this is a case about the (il)legality of stop and identify laws and their violation of the fourth amendment, not firearms. The writer has made this case about firearms. If that awful Bruen decision hadn’t been made, she’s implying, this would never have occurred. It’s hamstringing the police.

Let’s continue.

On the night of Mr. Homer’s arrest, Detective Nicholas Conte of the 113th Precinct was watching a video feed from the Argus surveillance system, which the police use in high-crime areas. Detective Conte testified last year at a hearing before Judge Garaufis that after a homicide, he had been assigned to a long-term investigation into a criminal gang whose members hung out on the stretch of Guy R. Brewer Boulevard where he saw Mr. Homer.

Raffaela S. Belizaire, a prosecutor, wrote in a court filing that Detective Conte saw Mr. Homer shoving a firearm into his pants pocket as Mr. Homer sat in the driver’s seat of a parked van with two passengers inside. The detective testified that he had recognized the van as one used by the gang’s members but that he could not see the license plate number.

Ms. Belizaire wrote in the filing that officers had gotten to the van within minutes of Detective Conte’s spotting the gun and had pulled Mr. Homer out, and that the episode had been captured on the officers’ body-worn cameras.

Judge Garaufis, who was appointed to the federal bench by President Bill Clinton, said in his ruling that although the detective had determined Mr. Homer had no “firearm discipline” given the way he put the gun in his pocket, he had not observed other suspicious behavior. Mr. Homer “could have plausibly been licensed to carry the firearm,” the judge wrote.

New York City’s history of strong gun control includes the issuing of few so-called concealed-carry licenses: just 7,384, a number equal to only 0.1 percent of the city’s adult residents, were active the day the Bruen case was decided, according to an affidavit filed by Sgt. David Blaize of the Police Department’s License Division along with a recent prosecutors’ motion. Applicants used to have to show that they faced “extraordinary personal danger” to obtain such a license, Judge Garaufis noted in his ruling.

After the Bruen decision, New York lawmakers passed new laws that directed officials to issue licenses to applicants who completed safety training, passed a firearms test and provided references to attest to their “good moral character.” Even so, the judge wrote, the state’s revised post-Bruen law was “broad enough that even alleged gang membership would not necessarily preclude the licensing officer from granting a firearm license.”

Felons still cannot possess guns in New York, and state law prohibits guns in sensitive areas, including on the subway, in Times Square and around schools. On the day Mr. Homer was arrested, eight months after the Bruen decision, the number of concealed-carry licenses had increased by just 237, according to the affidavit.

Judge Garaufis said in his ruling that the police could have stopped Mr. Homer, frisked him and run a license check to see whether there was probable cause to arrest him, but they arrested him immediately instead.

No, they could not have taken that approach. The judge is wrong. That relies on stop and identify statutes which are unconstitutional, and had I been his defense attorney that’s the defense I would have built.

Further, the judge wrote, a “reasonably cautious police officer” would not assume that an “unidentified alleged gang member was a felon.” He also found that the link between the van and the gang was “tenuous at best.”

Michael Alcazar, a professor at John Jay College of Criminal Justice in New York and retired New York City police detective, said the decision was at odds with the real-time assessments officers must make.

If an officer “believes this person is gang-affiliated and he has a gun, most police officers, most detectives, are not going to stop — their main goal is to protect the public and to protect themselves from a potentially deadly situation,” Professor Alcazar said.

No, the professor is wrong, and supremely so. Police are concerned about their own health and safety, even to the exclusion of those around them. He [should] know better than to think that it’s the role or duty of the police to protect the public. Courts have said not.

Castle Rock v. Gonzalez

Warren v. District of Columbia

DeShaney v. Winnebago County

A law or criminal justice professor should know these things. Let’s finish with this silly article.

In a March 1 motion asking Judge Garaufis to reconsider, prosecutors argued that his decision was “unworkable,” would create practical difficulties for the police and would put them and the public in danger.

The judge, they argued, had created “a new legal standard for probable cause” for New York gun arrests that would require officers to release people if they could not determine immediately whether they had a gun license. That would be particularly problematic in crowded places or with people who do not identify themselves, the prosecutors wrote.

[ … ]

Eric Ruben, a professor at Southern Methodist University’s Dedman School of Law in Dallas and a fellow at the Brennan Center for Justice at N.Y.U. Law, cautioned that it would take a long time to resolve the swirl of legal questions related to gun possession in light of the Bruen decision.

No, the professor is wrong. This isn’t a gun case. This is a stop and identify case. And Bruen was as clear as Heller was, as McDonald was, as Caetano was, and Staples was. There is nothing unclear about it – they just don’t like it, any more than Judge Frank Easterbrook on the seventh circuit will ever abide by those supreme court precedents.

So to sum up, the author has written an article based on appeal to emotion, the professors have turned this from a stop and identify case to a gun case, they’ve asserted that Bruen in unclear, All of that is wrong.

In order to provide at least a little bit of clarity, Heller was about a gun ban case (the seventh circuit seems to be relying on Bruen, when Heller is the relevant decision). If a law touches fingers with the second amendment, the burden shifts to the government to (a) come forward with historical analogue laws that show a history of bans, and (b) shows that the arms in question are NOT in common use (since an arm in common use cannot be both dangerous and unusual). Since there are no historical analogues, and since the arms in use today, including AR-15s, are commonly owned for lawful purposes, the government loses. The end.

Bruen was about the bearing and carry of those arms. Bruen didn’t revisit Heller. It relied on Heller (and Staples, and Caetano, and McDonald). Here is a great submittal to the SCOTUS by friend of The Captain’s Journal Stephen Stamboulieh. A better brief to the court you will never read. I will write more on this tomorrow.

Here is a good video by Mark Smith explaining all of this.

Here’s a note to the NYT. This is why people hate you. This is why the legacy media is going bankrupt.

Here’s a note to the attorneys to whom the author reached out. This is why you need to do more reading and study. You don’t get out enough. You are cloistered in your own little circles and refuse to hear opinions with which you disagree.

This is why America hates you.