HOME

Legislative

News

Civil

Search

Links

Rewards

JOIN

Cite as Citizens for a Safer Community v. City of Rochester, 627
N.Y.S.2d 193 (Supp. 1994)

CITIZENS FOR A SAFER COMMUNITY; The Genesee Conservation League,
Inc.; The Monroe County Conservation Council; The New York State
Rifle & Pistol Association, Inc.; The Shooters Committee on
Political Education, Inc. (Monroe County Chapter); Leadloader Arms,
Inc. d/b/a American Sportsman; Frederick Calcagno; Stephen C.
DeMallie; and Kurt Thomann, Plaintiffs,

                               v.

CITY OF ROCHESTER, NEW YORK; The Council of the City of Rochester,
New  York; Thomas Ryan, as Mayor of the City of Rochester, New
York; Louis Kash, as Corporation Counsel of the City of Rochester,
New York; Roy Irving, as Chief of Police of Rochester, New York;
John Curran, Maxine Childress Brown, Wade Norwood, Tim Mains,
Benjamin Douglas, Lois Giess, Nancy Padilla, & Robert Stevenson, as
members of the Council of the City of Rochester, New York,
Defendants. 

                  Supreme Court, Monroe County.

                         Sept. 16, 1994.

     Jeffrey Chamberlain, Albany, for plaintiffs.

     Linda S. Kingsley, Corp. Counsel, Rochester, New York, Jeffrey
Eichner, Mun. Atty., New York City, for defendants. 

                            DECISION

     CHARLES J. SIRAGUSA, Justice.

     This matter comes before the Court, on a motion for partial
summary judgment motion brought by the plaintiffs and on motion for
summary judgment brought by the defendants.  The plaintiffs
commenced this action with a complaint dated August 24, 1993,  
requesting that Ordinance # 93-62 be declared "invalid and illegal
. . ."  and further, that the defendants be permanently enjoined 
from  enforcing the law.  Ordinance # 93-62 concerns the possession
and sale  of semi-automatic rifles and shotguns, as well as the
possession and use of air guns and imitation weapons.

     It is the determination of the Court that Ordinance # 93-62's 
regulation of semi-automatic rifles and shotguns when possessed
with ammunition feeding devices permitting them to be loaded with
a combination of more than six rounds in the feeding device and
chamber, is a lawful exercise of police power on the part of the,
City of Rochester.  However, the Court finds that the Ordinance
violates the Equal Protection clause of the Fourteenth Amendment to
the United States Constitution, in so far as it attempts to make
the sale or the possession of certain guns of some manufacturers
while allowing the possession  of essentially identical guns made
by others.    Also, the Court finds that the definition of air
guns, as contained in the Ordinance, is vague and overbroad, and
that the-regulation of both air guns and imitation weapons is
preempted by state and federal law.  The remainder of the Ordinance
is, in the Court's judgment, lawful.

     The plaintiffs have alleged seventeen separate causes of
action. However, many of these overlap, and are more efficiently
analyzed in the categories enumerated below.

                      THE SECOND AMENDMENT

     Central to the plaintiffs contention that a municipality may
not limit the rights of individuals to possess such guns as they
choose, is the reliance on the words of the Second Amendment to the
United States Constitution: "A well regulated militia, being
necessary to the security of a free state, the right of the people
to keep and bear arms, shall not be infringed." Plaintiffs'
reliance on this language to support their position is at odds with
the weight of current legal authority.  In United States v. Warin,
530 F.2d 103 [6th Cir.1976], cert. den. 426 U.S. 948, 96 S.Ct.
3168, 49 L.Ed.2d 1185 (1976), the Sixth Circuit United States Court
of Appeals stated "the [Supreme] Court did not hold . . . that the
Second Amendment is an absolute prohibition against all regulation
of the manufacture, transfer and possession of a instrument capable
of being used in military action.  This language is perhaps most
significant because it has been universally held that the Second
Amendment guarantees no right to keep and bear a firearm if it does
not have some reasonable relationship to the preservation or
efficiency of a well regulated militia (see, eg., Lewis v. United
States, 445 U.S. 55, 65, 100 S.Ct. 915, 920-21, 63 L.Ed.2d 198
Footnote 8, [1980]). Moreover, as noted in the well reasoned
decision of the Ohio Supreme Court in Arnold v. Cleveland, 67 Ohio
St.Sd .35, 39, 616 N.E.2d 163 [1993], "the question of whether
individuals have a fundamental right to bear arms has, seemingly,
been decided in the negative under the Second Amendment to the
United States Constitution", [citations omitted] (see also, Justice
v. Elrod, 832 F.2d 1048 [7th Cir.1987]).

     The Second Circuit Court of Appeals has found "the right to
possess a gun is clearly not a fundamental one" (United States v.
Toner, 728 F.2d 115 at 128 [2d Cir.1984]).

     The Second Amendment limits only the power of Congress to
infringe upon the right to keep and bear arms necessary for the
Militia.  It creates no bar to State or local action.  "We note
that the Second Amendment has not yet been held applicable to the
States.  The Amendment has not been absorbed either directly, or
through selective incorporation in the Fourteenth Amendment".
(Arnold v. Cleveland, supra at 41, 616 N.E.2d 163, citing Malloy v. 
Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 [1964]). (See
also, Fresno Rifle and Pistol Club v. Van De Kamp, 965 F.2d 723
[9th Cir.1992]; Sklar v. Byrne, 727 F.2d 633 at 639 [7th Cir.1984];
Cases v. United States, 131 F.2d 916 [1st Cir.1942] cert. den'd 319
U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 [1943]; United States v.
Kozerski, 518 F.Supp. 1082, 1090 [D.N.H.1981] aff'd 740 F.2d 952
[1st Cir. 1984] cert. den'd 469 U.S. 842, 105 S.Ct. 147, 83 L.Ed.2d
86 [1984]; United States v. Hale, 978 F.2d 1016 [8th Cir.1992]
cert. den'd - U.S. -, 113 S.Ct. 1614, 123 L.Ed.2d 174 [1993]);
People v. Morrill, 101 A.D.2d 927, 475 N.Y.S.2d 648 [3d Dept.1984];
Moore v. Gallup, 267 A.D. 64, 45 N.Y.S.2d 63.[3d Dept.1943].)

     The Second Amendment does, of course, limit the power of
Congress to enact legislation effecting the possession of certain
types of weapons.  The holding in United States v. Miller, 307 U.S.
174, 59 S.Ct 816, 83 L.Ed. 1206 [1939] found that Congress was
prevented from banning guns which have "some reasonable
relationship to the ... well regulated militia".  As recently as
Lewis v. United States, supra, the United States Supreme Court has
recognized a need for this relationship between the actual weapon
sought to be possessed and the militia service.

     Congress is not limited, however, from regulating weapons
merely because they may have some theoretical or hypothetical mili-
tary use or merely because of some technical definition of the term
"militia", which includes all or substantially all the people in
the country:

     "Since the Miller decision, no federal court has found any
     individual's possession of a military weapon to be 'reasonably
     related to a well regulated militia.'  'Technical' membership
     in a state militia [e.g., membership in a 'unorganized' state
     militia] or membership in a non-governmental military
     organization is not sufficient.to satisfy the 'reasonable
     relationship' test".  United States v. Hale, 978 F.2d 1016 at
     1020 [8th Cir.1992] cert. denied - U.S. -, 113 S.Ct. 1614, 123
     L.Ed.2d 174, citing United States v. Oakes, 564 F.2d 384 [10th
     Cir. 1977] cert. den'd 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d
     521 [1979].

     The plaintiffs' challenge to the regulation of certain semi-
automatic weapons must fail for three additional reasons.  First,
all members of the military as well as military uses of firearms,
are exempted under the express terms of the Ordinance (section 47-
6[f]).  Second, as plaintiffs have repeatedly argued, the guns
subject to this law are not military weapons, but merely look like
military weapons, since they are identical in action to sporting
guns and are not capable of full automatic fire.  Third, the
plaintiffs have not alleged that they are members of the State or
Federal National Guard, nor that the banned weapons are in use by
these military groups. This Court is of the opinion, that at least
since 1933, the State and Federal National Guard, have been the
organized, and therefore, the "well regulated militia" of the
Second Amendment (see, Perpich v. Department of Defense, 496 U.S.
834, 110 S.Ct 2418, 110 L.Ed.2d 812 [1990]; Maryland v. United
States, 381 U.S. 41, 46, 85 S.Ct. 1293, 1297, 14 L.Ed.2d 205
[1965]).

                   New York's Civil Rights Law

     For many of the same reasons as stated above regarding the
Second Amendment, the plaintiffs' claim that the Ordinance is in
contravention of Civil Rights Law Article 2, section 4, must fail. 
The Courts of this State have concluded that the language of
federal law interpreting the Second Amendment (which is identical
in its language to Article 2, section 4 of the Civil Rights Law)
should be used  in interpreting the provisions of this state law. 
Therefore, as noted above, in order to fall within its protection,
the plaintiffs bear the burden of establishing that the gun itself
will be used for the purpose specified in Article 2, section 4, and
that they have more than a mere technical association with an
unorganized, reserve militia (United States v. Hale, 978 F.2d 1016,
1020 [8th Cir.1992], cert. denied - U.S. -, 113 S.Ct. 1614, 123
L.Ed.2d 174; Guidda v.  Dier, 84. Misc.2d 110, 375 N.Y.S.2d 826
[Sup.Ct, Saratoga County, 1975] modified on other grounds 54 A.D.2d
86, 387 N.Y.S.2d 720 [3d Dept.1976]).  The plaintiffs have failed
to meet this burden.

                       Ban vs. Regulation

     Plaintiffs have cited no authority for the proposition that
the State could not regulate possession of even military arms. 
Rather, relying on Darling v. Warden, 154 A.D. 413, 422, 139 N.Y.S.
277 [1st Dept, 1913] and People v. Raso, 9 Misc.2d 739, 170
N.Y.S.2d 245 [Co.Ct, Kings County, 1958], the plaintiffs' contend
that the possession of these guns cannot be banned.  The plaintiffs
urge that the current Ordinance constitutes a ban.  The plaintiffs
base their claim upon the affidavit of Peter Burke.  That affidavit
(para. 14) states that the definition of an assault rifle contained
in  section 47-5(a)(1) of the would "include virtually all semi-
automatic
rifles using detachable ammunition feeding devices commonly used
for hunting and target shooting, whether configured to look like
military style arms or not, and whether loaded with any ammunition
at all."  For the reasons set out more, particularly below, the
Court finds that the Ordinance constitutes not a ban, but rather a
reasonable regulation as to place and circumstances of possession
(see, United States v. Warin, 530 F.2d 103 [6th Cir.1976], cert.
den'd 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 [1976]

     Section 47-5(a)(1) of the Ordinance reads as follows:

     "Any center fire rifle or shot gun which employs the force of
     expanding gasses from a discharging cartridge to chamber a
     fresh round after each single pull of trigger and which is
     loaded or capable of being loaded with a combination of more
     than six (6), cartridges in the ammunition feeding device and
     chamber combined.  For the purposes of this section, a weapon
     is capable of being loaded if it is possessed by one who, at
     the same time, possesses:
     (a) in the case of a rifle, a fixed or detachable ammunition
     feeding device which is attached to or utilized or capable of
     being attached to or utilized with such rifle and which has a
     capacity of more than five (5) cartridges; of (b) in the case
     of a shotgun, an ammunition feeding device which is attached
     to or utilized with or capable of being attached to or
     utilized with such shotgun and which has a capacity of more
     five (5) cartridges."

     Section 47-5(a)(2) provides that the addition of certain
accessories to a semi-automatic center fire rifle or shotgun also
constitutes the creation of an assault weapon; and subsection 3
prohibits certain types of stocks or grips on shotguns; and
subsection 4 lists the 32 named rifles and shotguns.

     Clearly if the Ordinance merely limits the conditions or
circumstances under which certain weapons may be possessed, it does
not offend either the United States Constitution or Civil Rights
Law Article 2, section 4 (United States v. Warin, supra, People v.
Morrill, 14 101 A.D.2d 927, 475 N.Y.S.2d 648 [3rd Dept. 1984].  The
Colorado Supreme Court in Robertson v. City of Denver, 874 P.2d
325, 333 [Colorado Sup.Ct.1994], held that a statute that limits a
mere 40 guns out of the over 2,000 available, cannot be considered
to be a ban.  That Court, in considering an ordinance similar to
the one challenged one here, concluded that the law was a
reasonable exercise of police power.  More importantly, a plain
reading of Ordinance #93-62 evinces that guns, not particularly
named, fall within the authority of the law, only if they are
possessed at the same time as a magazine having a capacity of more
than five rounds.

     On oral argument, plaintiffs' counsel asserted that "with a
couple possible exceptions", semi-automatic rifles and shotguns
were not only sold with magazines larger than five rounds, but that
magazines of five rounds or less were virtually unavailable. This
assertion apparently reflects a misunderstanding on the part of the
plaintiffs regarding the availability of detachable box
magazines capable of holding no more than five rounds of
ammunition.

     In other arguments regarding the Civilian Marksmanship Program
(discussed below), the plaintiffs have referred to three weapons,
which they contend fall within the ban because of their magazine
capacity.  They are the M-1 Garand; the AR-15; and the M-1A. 
Plaintiffs have focused on those weapons because of their alleged
value to the militia.  Magazines capable of holding no more than
five rounds, are available for each of these weapons. [footnote 1]
Indeed the majority of semi-automatic rifles manufactured
commercially have been produced with magazines capable of holding
no more than five rounds. [footnote 2] Even military look-alike,
semi-automatic rifles which have become popular, such as the Chi-
nese SKS carbine, the American M -1 30 caliber carbine, the AK-47
and the AKS, are not banned by section 47-b(1) of the Ordinance,
since five round magazines are available for them. [footnote 3]

     The Ordinance, as drafted, does not even ban any particular
style of weapon.  For example, although it names the AR-15 A-2
carbine, AR-15 A-2 Delta H-bar and AR-15 A-2 H-bar, all
manufactured by Colt, it does not ban the possession of the
identical guns when produced by other manufacturers. [footnote 4]
it cannot be seriously argued that the present Ordinance
constitutes a ban on possession of all rifles and shotguns, all
semiautomatic rifles or shotguns, or all semi-automatic rifles
which appear to have mimicked the style of actual military rifles,
without regard to the circumstances of possession.

                       Federal Preemption

     The plaintiffs have alleged that the Ordinance is preempted
under the Supremacy clause of the United States Constitution
(Constitution, Article VI), because of actual conflicts with
legislation regarding the Civilian Marksmanship program (Title 10
U.S.C. sections 4307-4353; Title 32, CFR section 544.43), and
because it interferes with the federal imposition upon the states
of the duty to maintain an organized or well regulated militia. 
Certain principles guide the analysis of federal preemption of
local laws.  Absent a clear and manifest congressional purpose, a
local law cannot be assumed to be displaced by federal law (Rice v.
Santa Fe Elevator, 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447
[1947]).  In this regard, federal preemption can be found to occur
in a variety of ways: from the explicit term of the federal law
prohibiting states from adopting contrary legislation (Wisconsin
Public Intervenor  v. Mortier, 501 U.S. 597, 111 S.Ct. 2476, 115
L.Ed.2d 532 [1991]); from a pervasive scheme of federal regulation
making it a reasonable inference that Congress intended to dominate
the field (Wisconsin Public Intervenor v. Mortier, supra); from an
actual conflict which occurs when compliance with both state and
federal law is a physical impossibility (Florida Lime and Avocado
Growers v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248
[1963]); or where a state law stands as an obstacle to the
accomplishment and execution of the congressional purpose (Hines v.
Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 [1941]).  At
least one Federal Circuit Court has already held that a regulation
of semi-automatic rifles does not interfere with the purposes of
the Civilian Marksmanship Program, and further, that the
legislation creating the program did not intend federal preemption
(Fresno Rifle and Pistol Club v. Van De Kamp supra) see also Arnold
v. Cleveland, supra).  In a virtually identical case as the one
presented here, a Federal Magistrate concluded that no conflict
could exist where Civilian Marksmanship Program activities could
occur outside the limits of the City and weapons necessary to
participate in the program could be made available through or
stored at a location at which the authorized event occurs (Richmond
Boro Gun Club v. City of New York, District Court, Eastern District
of New York, Report of Magistrate, Defendant's Appendix # 3). The
enabling  legislation for the Civilian Marksmanship Program
demonstrates clear intent of cooperation and not conflict between
state and federal law.  For instance, provision of this legislation
permit gun clubs participating in the program to store and possess
items provided by the Director of the Civilian Marksmanship, so
long as they are stored in conformity with local law (32 CFR
543.17).

     The Court further finds that there is no conflict between the
stated purposes of the Civilian Marksmanship Program and the
challenged Ordinance.  In the Court's opinion, it cannot be
seriously argued that marksmanship can only be taught when a large
magazine is attached to a weapon.  The techniques of controlled
fire, timed fire, and combat reloading remain unchanged whether
five or twenty or thirty rounds are discharged. The plaintiffs have
not produced the slightest evidence to indicate that a weapon fires
differently, shoots less accurately, or is operated in a materially
different fashion depending on the number of rounds contained in
its detachable box magazine. Furthermore, as noted by the City in
its responding affidavits there are no licensed shooting galleries
or ranges within the City of Rochester.  Therefore, no competition
or training conducted under the auspices of the Program could occur
within the City limits, the only geographical area in which the law
is applicable.

                        State Preemption,

     Plaintiffs contend,that the ordinance is invalid and
unenforceable because the City is without authority to enact
legislation in the area of gun control. They contend the State
regulatory system evinces an intent to occupy the entire area, and
that the Ordinance conflicts with certain specific state statutes
(Article 6, section. 139-d of the.New York General Municipal Law,
Article 2 section 4 of the New York State Civil Rights Law, and
Articles 265 and 400 of the New York State Penal Law).

     The principles which guide a determination of the existence of
federal preemption find strong parallels in New York State Law. 
The power of the state legislature over municipal corporations is
of course, "supreme and transcendent" (Broum v. Hamptonburg School
District, 303 N.Y. 484, 488, 104  N.E.2d 866 [1952]; see, New York
Constitution, Article IX, section 2[c][ii][10]; Municipal Home Rule
Law section 10[1][ii][a][12]).  Local laws may be ruled invalid as
inconsistent with state law not only where an express conflict
exists but also where the state has clearly demonstrated a desire
to preempt the entire field, thereby precluding any further local
legislation (Jancyn Manufacturing v. Suffolk County, 71 N.Y.2d 91,
96-97, 524 N.Y.S.2d 8, 518 N.E.2d 903 [1987]). However, if the
State, by its legislative enactments, does not regulate the entire
area of activities, a local law is not preempted merely because it.
prohibits conduct permitted by state law (Robin v. The Incorporated
Village of Hempstead, 30, N.Y.2d 347, 334 N.Y.S.2d 129, 285 N.E.2d
285 [1972]; Incorporated Village of Nyack v. Daytop Village, 78
N.Y.2d 500, 508, 577 N.Y.S.2d 215, 583 N.E.2d 928 [1991].

     In the area of weapon regulation, the courts in this state
have upheld local laws limiting possession and use (see, e.g.,
People v. Judiz, 38 N.Y.2d 529, 381 N.Y.S.2d 467, 344 N.E.2d 399
[1976]; People v. Ortiz, 125 Misc.2d 318, 479, N.Y.S.2d 613,
[upholding knife control law despite the inclusion of knives as a
dangerous weapons under Article 265 of the Penal Law]; Grimm v.
City of New York, 56 Misc.2d 525, 289 N.Y.S.2d 358 [Sup.Ct., Queens
Co., 1968]). Clearly the State has not, either directly or
indirectly, regulated all aspects of gun possession and use as to
time, place and circumstance.

     Furthermore, the Ordinance does not conflict with the purpose
or language of General Municipal Law Article section 139-d.  That
statute has as its intent the regulation of commercial storage of
firearms and explosives.  It does not evince a legislative intent
to prohibit regulation by a municipality of the individual
possession of semi-automatic rifles or shotguns (see, Report and
Recommendation of the United States Magistrate Judge A. Simon
Chrein, dated February 23, 1994 in Richmond Boro Gun Club v. City
of New York, supra).

     On the other hand, the Court does find that 15 U.S.C. section
5001(g)(i) and (g)(ii) relating to air and spring guns and NYS
General Business Law section 870 et seq., establish an intent to
fully regulate at the state and federal level the manufacture, sale
and possession of air guns, spring guns, and imitation arms.  This
conclusion is drawn from the express preemption language contained
in 15 U.S.C. section 5001(g), (g)(i), and (g)(ii), and the
definition of "imitation weapon" contained in General Business Law
section 871(2), and the statement of legislative intent set forth
in General Business Law section 870.

                     Disposition of Weapons

     The plaintiffs contend that the limitation placed on an owners
right to sell his gun, constitutes a taking of property and an
unlawful interference with the dominion and control of a property
(New York State Constitution Article 1, section 6, section 7(a),
section 8 and United States Constitution Fifth and Fourteenth
Amendments).  However, the plaintiffs have mischaracterized the
Ordinance.  Section 475(b) does not prevent the sale of any gun
within the City of Rochester.  It does not in any way, seek to
control the disposition of a licensed firearms within the City, nor
does it seek to control intra-family transfer of any gun.  It
imposes no limits on gunsmiths or gun dealers, who are licensed to
sell guns.  It imposes no fees on the transfer of any gun.  It
places no limits at all upon City residents who wish to dispose of
their guns outside of the City.  It only limits an individual,
whether a resident or not, from selling a gun, except through a
licensed gun dealer, if such sale is to occur within the City of
Rochester.  The Ordinance, therefore, does not deprive anyone of
any property, and does not result in the taking of any property for
public purpose or otherwise.

     The plaintiffs contention that sections of the New York State
and Federal Constitution related to free speech are violated by the
limitation on the private advertisement for sale of guns within the
City is in error.  The United States Supreme Court has recognized
that commercial free speech regarding lawful activity can be
limited where substantial governmental interest is involved, and
where the regulation adopted is narrowly drawn, and where it
directly advances that governmental interest (Central Hudson Gas
and Electric v. Public Service Commission, 447 U.S. 557, 100 S.Ct.
2343, 65 L.Ed.2d 341 [1980]).  Conduct which is not
constitutionally protected, and is regionally or nationally illegal
cannot be solicited by public advertisement (see, Posadas de Puerto
Rico v.  Tourism Company, 478 U.S. 328,106 S.Ct. 2968, 92 L.Ed.2d
266 [1986]).  Where that regulation is narrowly tailored, as it is
here, to achieve the purpose of limiting the proliferation of
illegally possessed firearms, it is not violative of the First
Amendment (see, e.g., Ragin v. New York Times, 726 F.Supp. 953,
[S.D.N.Y.1989] aff'd 923 F.2d 995, distinguishing Bigelow v.
Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 [1975] and
holding that the First Amendment does not guarantee the right to
advertise for illegal conduct).

                      Right to Self Defense

     The plaintiffs allege that the Ordinance limits their
inalienable right to self defense.  Notwithstanding this claim,
municipalities routinely regulate the discharge of firearms within
their boundaries.  More importantly, the Ordinance does not
regulate in any significant way, the right to self defense.  The
right to self defense, is delineated in Article 35 of the New York
State Penal Law.  That law recognizes, as the defense of
justification, the use of certain kinds of force which would
otherwise be illegal.  No serious argument can be advanced that the
limitation of the kind of guns or the number of rounds available in
a single magazine, detailed in the Ordinance, is an important
component of self defense.  Therefore, the Ordinance has no impact
on the statutory right to defend oneself.

                    Drug and Alcohol Testing

     The plaintiffs have challenged the provisions of the Ordinance
contained in 49-5(k) regarding chemical tests for the alcohol and
drug content of the blood of individuals possessing firearms,
rifles, shotguns, air guns, in public places.  This challenge is
based on a claim that section 49-5(k) violates the Fourth and
fourteenth Amendments to the United States Constitution, and
parallel articles of the New York State Constitution.

     The plaintiffs, by their own account, advocate the safe use of
firearms.  None of the plaintiffs have argued in any document
before the Court that they would consider or condone using firearms 
or other dangerous instruments while they were under the influence
of drugs or alcohol.  In fact, they are the precise type of
individuals and corporate citizens who would be appalled and
offended by the use of guns or other weapons by intoxicated
persons.

     Declaratory judgment actions are designed to be a vehicle to
allow those who may be affected by a law, to challenge its validity
without having to violate it.  However, they do not eliminate "the
cases and controversies" element requisite for any justifiable
action.  As noted by the Fourth Department in Phelan v. City of
Buffalo, 54 A.D.2d 262, 264, 388 N.Y.S.2d 469 (4th Dept.1976):
     "Declaratory judgment is a proper remedy for determining legal
     relationships of parties to a justiciable controversy [CPLR
     section 3001].  Whether an individual has standing to seek,
     such  relief is largely determined by whether he has a
     matured, legally protectable interest in the outcome of the
     case, such as to assure concrete adversement in the
     presentation of issues (Baker v. Carr; 369 US 186 [82 S.Ct.
     691, 7 L.Ed.2d 663]).  One is not entitled to a declaratory
     judgment absent 'concrete legal issues, presented in actual
     cases, not abstractions' (United Public Workers v. Mitchell,
     330 US 75, 89 [67 S.Ct, 556, 564, 91.  L.Ed. 754]; Maryland
     CAS Company v. Pacific Company, 312 US 270 [61 S.Ct. 510, 85
     L.Ed. 826])."

     The plaintiffs in this case have shown no controversy
involving an immediate threat of injury arising from the obligation
to consent to blood or alcohol tests as required by this Ordinance.
They therefore lack standing to seek  declaratory relief relative
to this provision (Schmidling v. City of Chicago, 71 F.3d 494 [7th-
Cir.1993]); (cert. den'd - U.S.-, 114 S.Ct. 555, 126 L.Ed.2d 456
[1993]

         Delegation of Authority to the Chief of Police

     Section 47-5(m)(2) of the Municipal Code specifically provides
that the Chief of Police may grant permits.  That section limits
those permits to persons seeking to shoot clay pigeons or to target
shoot at ranges.  As noted by the federal magistrate in Richmond
Boro Gun Club v. City of New York:

     "Under New York Law, 'there is no prohibition against the
     delegation of power, with reasonable safeguards and standards,
     to an agency or commission to administer the law enacted by
     the legislature'.  Levine v. Whalen, 39 NY2d 510, 384 NYS2d 72
     [721, 349 N.E.2d 8201 [1976].  Such standards 'need only be
     described and so detailed to fashion as is reasonably
     practical in light of the complexity of a particular area to
     be regulated'".

This Ordinance grants the chief of police authority of a very
specific nature, reasonably limited, in relation to the complexity
of the particular area to be regulated.  The Ordinance does not,
therefore, create an invalid delegation of legislative authority to
the chief of police.

                        Equal Protection

    Section 47-5(b)(4) of the Ordinance lists several rifles and
shotguns by name, and defines them as assault weapons, without
reference to the capacity of the magazines associated with these
weapons.  For example, the Ordinance specifically names the Colt
AR-15A2 carbine, AR-15A2-Delta HBar; and AR-15A2H-Bar.  It does not
list the identical Eagle Arms EA-15, Olympic Arms AR-15 Service
Match; Olympic Arms AR-15 Heavy Match, Olympic Arms CA-15, Quality
Arms E-2, or the Stoner SR-25. [footnote 5] It further references
the Springfield Armory BM-59 without making reference to the iden-
tical Italian made Beretta BM-59.

     In People v. Walker, 81 N.Y.2d 661, 668, 603 N.Y.S.2d 280, 623
N.E.2d 1 [1993], the New York State Court of Appeals detailed the
guidelines to be used by New York courts in reviewing equal
protection challenges under the State and Federal constitutions. 
The Court there said

     "The equal protection clause does not mandate absolute quality
     of treatment but merely prescribes that, absent a fundamental
     or suspect classification, a legislative classification be
     rationally related to a legitimate State purpose". (People v.
     Parker, 41 N.Y.2d 21, 25, 390 N.Y.S.2d 837, 359 N.E.2d 348).

In their Memorandum in support of their motion for summary
judgment, defendants have urged the rational relationship to a
legitimate State purpose by claiming that "since the prohibitions
on various types of weapons are rationally related to a legitimate
State purpose of controlling violence and proliferation of
firearms, the Ordinance must be upheld" (Defendants Memorandum,
page 25).  While the regulation of various types of weapons may
indeed be related to a legitimate State purpose, the Ordinance does
not reference types of weapon, it references specific weapons by
name, ignoring other identical weapons of the same type.  It
further prohibits these weapons, without the regard to the
qualifications contained in section 47-5(b)(1) and (2) (magazine
capacity, etc.). As the Court noted in Robertson v. City of Denver,
supra, so often referred to and relied upon by defendants, "the
salient features of assault weapons which make them particularly
threatening are their capability for a rapid rate of fire and the
ability to fire many rounds without reloading" (Robertson, supra,
Footnote 16).

     If this portion of the Ordinance was permitted to stand, two
citizens could potentially be treated in a wholly unequal fashion
if they possessed identical AR-15's made by different
manufacturers.  One would be subject to imprisonment, fine and loss
of property; and the other would not be breaking the law. 
Moreover, two manufacturers, each producing identical weapons,
would be treated unequally because one would be able to sell his
weapons within the City of Rochester and the other would not.

     As has been conceded during oral argument by the City, the
inclusion of section 475(b)(4) does not aide the City in achieving
the stated goals of this legislation.  All weapons listed in that
section would be regulated under section 47-5(b)(1) if they had the
characteristics that justified the imposition of the prohibition in
the first instance (e.g., the possession of a magazine capable of
holding more than five rounds; see, Robertson v. City of Denver,
supra).  This concession was, of course, compelled by the contents
of Exhibits submitted by defendants which were the basis for City
Council's determination that the restrictions were necessary.     
While the Court is, of course, constrained to defer to the City
Council on any state of facts which were known or might be presumed
from known facts, here, the defendants have provided the basis for
legislative action through the submission of exhibits.  Careful
review of the exhibits reveal no support for the notion that there
is a difference in the danger posed to society by identical guns,
produced by different manufacturers, and no such distinction can be
found through an exercise of reason.  Therefore, to the extent that
section 47-5 names individual weapons, and excludes others that are
identical, it is a violation of the equal protection clause of the
United States Constitution, and it may not be enforced by the City.

                    The General Police Power

     The City contends that the Ordinance was adopted pursuant to
its police power (New York State-Constitution, Article 9, MHRL
section 10, GCL section 20[13], [22]).  Prior to determining the
substance of this contention, there is a procedural matter which
must be addressed.  Specifically, the plaintiffs have urged the
rule that summary judgment may be granted, or resisted, only upon
sworn affidavits of fact, and have contended that the defendants
have defaulted in this obligation.  However, the defendants have
submitted sworn proof.  This proof is in the form of the affidavit
of Lois Giess, which sets forth the items, facts, and primary
sources of information upon which the City Council relied in
adopting the legislation.  Contrary to plaintiffs' contention, City
Council was not limited to enacting legislation only upon sworn
evidence.

     Now turning to the substantive issue, the New York Court of
Appeals, in Lighthouse Shores Inc. v. the Town of Islip, 41 N.Y.2d
7, 11, 12, 390 N.Y.S.2d 827, 359 N.E.2d 337 [1976], articulated the
standard to be used by the Courts in determining whether or not an,
Ordinance adopted by a municipality, is a valid exercise of the
police power.

     "The exceedingly strong prescription of constitutionality
     applies not only to enactments of the Legislature but to
     Ordinances of municipalities as well.  While this presumption
     is rebuttable, unconstitutionality must be demonstrated beyond
     a reasonable doubt and only as a last resort should Courts
     strike down legislation. on the ground of unconstitutionality.
     The ordinance may not be arbitrary.  It must be reasonably
     related to some manifest evil of which, however, need only be
     reasonably apprehended.  It is also presumed that the
     Legislative body has investigated and found the existence of
     a situation showing or indicating a need for or desirability
     of the ordinance, and, if any stated facts known or to be
     assumed, justifies the disputed measure, this Court's power of
     inquiry ends.  It of course must be emphasized that this is
     not a review by the Courts of the wisdom of a particular piece
     of legislation nor of the likelihood that the legislation will
     achieves the ends sought by the legislative body" -[citations
     omitted] (see also, Matter of Rochester Gas and Electric v.
     The Public Service Commission, 71 N.Y.2d 313, 525 N.Y.S.2d
     809, 520 N.E.2d 528 [1988]; Exxon Corporation v. Governor of
     Maryland, 437 U.S 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 [1978];
     New York State Club Association v. City of New York, 487 U.S.
     1, 108 S.Ct. 2225, 101 L.Ed.2d 1 [1988]).

This standard is essentially the same for the review of an
Ordinance that places restrictions on individual conduct.

     "In order to be upheld as constitutional, a law which places
     some restrictions upon an individual's freedom of action in
     the name of the police power must bear some reasonable
     relation to the public good" [citations omitted].
     (People v. Lee, 58 N.Y.2d 491, 495, 462 N.Y.S.2d 417, 448
     N.E.2d 1328 [1983]).

     Even where substantial evidence in the record demonstrates
that the legislative objective will not be served by the local law,
the courts may not intervene and overturn this law, unless there is
no rational reason whatsoever for its adoption (Town of North
Hempstead v. Exxon Corporation, 53 N.Y.2d 747, 439  N.Y.S.2d 342,
421 N.E.2d 834 [1981]).

     This is the classic "rational basis test" often spoken of in
law.  This test, and not the "strict scrutiny test" must be
utilized when, as here, no constitutionally protected conduct or
fundamental right is sought to be regulated.  It requires that
there be some rational relationship between the statute and the
conduct it seeks to regulate.  The term "rational basis" requires
only that some rational lawmaker could logically believe that the
limitation could serve a legitimate public purpose that transcends
the harm to the individuals effected by the statute (City of
Cleburne v. Cleburne Living Center, 473 U.S. 432 at 452, 105 S.Ct.
3249 at 3260, 87 L.Ed.2d 313 [1985] concurring opinion, Justice
Stevens).  In coming to the conclusion that there is a rational
relationship between the conduct and the object of the Ordinance,
the lawmaker is free to rely not only on his own experiences and
the evidence revealed as a result of his direct investigation, but
also upon the experiences of other cities and localities which have
confronted the same problem at an earlier time (City of Renton v.
Playtime Theatres, 475 U.S. 41, 50-52, 106 S.Ct. 925, 930-31, 89
L.Ed.2d 29; [1986]).

     This Court is not the first to be called upon to judge the
rational relationship between the control of semi-automatic weapons
and a legitimate municipal interest.  In Robertson v.  City and
County of Denver, 874 P.2d 325 (Colo.Sup.Ct.1994), the Court
concluded that an assault rifle ban does not violate a fundamental
right and that the fact that assault weapons account for 1/2 of a
percent of crimes in which guns were used, made its control and
regulation rational.  The Ohio Court of Appeals in City of
Cincinnati v. Langan (1994 WL 09/11/76), similarly found that a
semi-automatic ban was within the legitimate exercise of police
power.  In Quilici v. Village of Morton Grove, Illinois, 695 F.2d
261 (7th Cir.1982), cert. den'd 464 U.S. 863, 104 S.Ct. 194, 78
L.Ed.2d 170 (1983) the Court found that, since there was evidence
that gun control might reduce accidental injuries, the ban of
handguns was justified.  Even those courts which have held that
there is a constitutional or fundamental right to possess guns,
have concluded that semi-automatic guns may be regulated or banned
(see, Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 [1993]; 
Rabbitt v. Leonard, 36 Conn.Supp. 108, 413 A.2d 489 [1979]).

     Our own state courts have upheld the New York City regulation
of rifles and shotguns in Grimm v. City of New York, 56 Misc.2d
525, 289 N.Y.S.2d 358 [Queens County, 1968] and in People v. Ortiz,
125 Misc.2d 318, 479 N.Y.S.2d 613, the Court held that the
regulation of knives of a certain length was a legitimate subject
of municipal control under the general police power.  Therefore,
the Court finds that the underlying investigation conducted by City
Council presented a state of facts from which a rational relation-
ship between the Ordinance and a legitimate municipal interest may
be resumed.

                            Vagueness

     The plaintiffs have raised a challenge to that portion of the
Ordinance dealing with, "air guns".  The plaintiffs claim that
Section 47-5(13), which contains a definition of "air guns" is
vague and overbroad.  They argue that the definition would include
and make criminal, not only traditional air guns, but also such
items as staple and nailing guns, sling shots, and many toys.

     In order to survive the challenge that it is vague, an
ordinance must give the average citizen notice of conduct which is
prohibited; it must exclude by its language discriminatory or
arbitrary enforcement; and it must insure that no constitutionality
protected conduct is criminalized (Papachristou v. City of
Jacksonville, 405 U.S. 156, 92 S.Ct 839, 31 L.Ed.2d 110 [1972]). 
As the Supreme Court noted in Grayned v. Rockford, 408 U.S. 104,
108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 [1972]:

     "Vague laws offend several important values.  First, we assume
     that man is free to steer between lawful and unlawful conduct,
     we insist the laws give the person of ordinary intelligence a
     reasonable opportunity to know what is prohibited so that he
     may act accordingly.  Vague laws may trap the innocent by not
     providing fair warning.  Second, if arbitrary and
     discriminatory enforcement is to be prevented, laws must
     provide explicit standards for those who apply them" (see
     also, People v. Smith, 44 N.Y.2d 613, 407 N.Y.S.2d 462, 378
     N.E.2d 1032).

An ordinance is overbroad when it sweeps within its reach
constitutionally protected as well as unprotected activities   
(People v. Ryan, 806 P.2d 935, 939, cert. den'd 502 U.S. 860, 112
S.Ct. 177, 116 L.Ed.2d 140; Village of Hoffman Estates v. Flipside,
455 U.S. 489, 494-498, 102 S.Ct. 1186, 1191-93, 71 L.Ed.2d 362).
     The definition of "air gun" in section 417-5(b) of the
Ordinance is both vague and overbroad.  When read as a whole, the
law does not give individuals within the City of Rochester
reasonable notice of prohibited conduct.  Those charged with
enforcement of the law would almost certainly be compelled to
discriminatory enforcement to avoid the otherwise unintended result
of arresting all housing contractors, handymen, and many of the
City's children for technical violations of the law.

                           Conclusion

     Therefore, the Court finds that the defendants have the right
to enforce Rochester City Ordinance # 93-62 to the extent that it
restricts the possession of semi-automatic rifles and shotguns,
possessed simultaneously with ammunition feeding devices, resulting
in a combined capacity of six rounds or more, and/or with the
accessories specified in section 47-5(b)(2) of that Ordinance.
Additionally, the defendants have the right to enforce all other
portions of the Ordinance, except those portions which seek to
regulate guns which are named by manufacturers and to regulate air
guns and imitation weapons.

     Consequently, the plaintiffs' motion for summary judgment and
the defendants' cross-motion are denied in part and granted in
part.

                            FOOTNOTES

1. See Springfield, Inc., M-1A Parts and Accessories Retail Price
List, Stock MA508 and MA509, described as five round box and
sporter magazines for the M-1A.  See also, Quertermous and
Quertermous, Modern Guns Identification and Values, Revised 9th
Edition, 1993, page 166 (Colt AR-15 in caliber 223, listed as
having a five round magazine, standard; see also, World Guide to
Gun Parts, Catalogue for the gun parts Corporation of West Hurley, 
New  York,  18th  Edition, page 596, Part # G 91 for the M-1
Garand, 30 caliber rifle "Garand Clips 5-shot, 5 at $12.50 ...
$3.50 each").

2. Modern Guns Identification and Values, Revised 9th Edition,
supra, see, e.g., page 158 (Browning BAR) page 166; (Colt AR-15)
page 173; (Harrington and Richardson, Model 308) page 279, (Rugar
[sic] Mini-14 and Rugar, Mini-30), etc.

3. See, "Gun List, The Indexed Firearms Paper Volume I 1, Number
18, September 9, 1994, page 9, Item # 27, "SKS Five Round Mags";
see also World Guide to Gun Parts, supra, pages 79-80; AK-47 and
AKS-five round magazines available for $19.95 and US M-1 carbine
five round magazines available for $6.95.

4. See, e.g., page 66, Firearms Assembly and Disassembly Guide,
Part IV, center fire rifles, Revised Edition, by J.B. Wood at page.
66; Eagle Arms EA-15, Olympic Arms AR-15 Match; Olympic Arms AR-15;
Heavy Match Olympic Arms, CAR-15 are identical guns.

5. See, Gun Digest Book of Firearms Assembly and Disassembly Part
IV, Center Fire Rifles, Revised Edition, J.B. Wood, page 66; Gun 
Digest 1995, 49th Edition, edited by Ken Werner, pages  328-332.

---

Other lawsuits involving SCOPE: SCOPE, SAF File Suit Against Mayors