368 F. Supp. 3d 404
N.D.N.Y.2019Background
- Plaintiff Matthew Avitabile, a law‑abiding New York resident, challenged New York Penal Law § 265.01(1) seeking to possess a taser or stun gun for in‑home self‑defense; he fears prosecution under the statute.
- § 265.01(1) criminalizes civilian possession of “electronic dart guns” (tasers) and “electronic stun guns”; legislative history shows additions in 1976 and 1990 responding to incidents and law‑enforcement concerns.
- Parties filed cross‑motions for summary judgment; the court considered sales/ownership data and other evidence about prevalence and use of conducted electrical weapons.
- The court applied the Second Circuit’s two‑step framework derived from Heller/McDonald: (1) whether the weapons fall within Second Amendment protection (common use/typical possession), and (2) appropriate level of scrutiny and fit to government interests.
- The court found tasers and stun guns (treated as a class of “electric arms”) are in common use and typically possessed for lawful self‑defense, thus protected by the Second Amendment.
- The court held New York’s total ban imposes a core right burden and—applying intermediate scrutiny—concluded the State failed to show the ban is substantially related to public‑safety interests; it enjoined enforcement as applied to these devices.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tasers/stun guns fall within Second Amendment protection | Avitabile: electric arms are widely owned and used for lawful self‑defense and form a single class of bearable arms | Beach: tasers (fewer units) may not be in common use; at most stun guns are common | Court: both tasers and stun guns are in common use and typically possessed for lawful purposes, so protected |
| Whether NY’s ban implicates the core Second Amendment right | Avitabile: total ban forbids possession for in‑home self‑defense, implicating the core right | Beach: alternatives (handguns, rifles, shotguns, pepper spray) remain available, so burden is not substantial | Court: ban reaches the home and implicates the core right; alternatives do not excuse a class‑wide prohibition |
| Appropriate level of scrutiny | Avitabile: ban substantially burdens the core right; strict scrutiny warranted | Beach: regulation leaves adequate alternatives; lesser scrutiny appropriate | Court: applied intermediate scrutiny (declined strict scrutiny but found heightened review required) |
| Whether the ban is substantially related to public‑safety interests | Avitabile: State failed to produce substantial evidence that a total ban is necessary; alternatives/regulation could address risks | Beach: legislative history and law‑enforcement testimony justify the ban as promoting public safety | Court: State did not meet its burden under intermediate scrutiny; complete ban is not substantially related to public safety and is unconstitutional as applied |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (individual right to bear arms; handguns as quintessential self‑defense weapon)
- McDonald v. City of Chicago, 561 U.S. 742 (Second Amendment incorporated against the states)
- N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242 (2d Cir.) (two‑step Second Amendment framework; common‑use analysis)
- N.Y. State Rifle & Pistol Ass’n v. City of N.Y., 883 F.3d 45 (2d Cir.) (scope of restriction and availability of alternatives relevant to burden)
- United States v. Jimenez, 895 F.3d 228 (2d Cir.) (laws placing substantial burdens on core rights trigger strict scrutiny; intermediate scrutiny for lesser burdens)
- United States v. Decastro, 682 F.3d 160 (2d Cir.) (availability of adequate alternatives can inform whether a regulation is a substantial burden)
- Maloney v. Singas, 351 F.Supp.3d 222 (E.D.N.Y.) (nunchaku case applying common‑use/typical possession analysis under § 265.01)
- Caetano v. Massachusetts, 136 S. Ct. 1027 (per curiam) (noting stun guns are widely owned and accepted for self‑defense)