Grauling v. Kennedy , 183 N.Y.S.2d 654 ( 1959 )

Samuel H. Hofstadter, J.

Petitioner seeks a review of the determination made on July 15, 1958 denying his application made in December, 1957 for renewal of a pistol license. The application is denied. It is desirable to uphold the hands of the Police Commissioner whenever possible; he is valiantly striving against desperate odds to protect an already lawless community from the incursion of further violence against the peace of our city — by enemies from within as well as from without.

Let me say at once that petitioner’s personal character is not in issue. But the respondent contends that denial of renewal of license is warranted because petitioner’s son who in March, 1958, Was 16 years of age, had been twice apprehended and charged with violation of law. Denial is rested on ‘ ‘ the situation as it exists in his home. ’ ’ Two pistols were burglarized from his home in his absence. The premises had been completely ransacked and the pistols discovered and taken despite their storage in apparently inaccessible locations. Petitioner secured the return of the pistols on January 30,1959, four days after the theft.

The pistols, it is said, could well be a temptation to a lad of tender years who has already been enmeshed in the toils of the law.

This is a serious consideration and action thereon must have respect, especially since it is not clear that the disappearance of the pistols was unrelated to the son. Cases are not decided in vacuo. We scan the record, therefore, not only in the context of the facts here but against the total background.

Violence in our society is no longer sporadic nor even episodic — but constant and continuous. Mo longer localized, its metastasis of taint has spread even into law enforcing agencies not only on the local scene but everywhere; consideration is given to “regulating the regulators”! For the nether world in expanding degree has permeated the upper world; it is no longer occasionally agent, but often the master — in trade and in business, in manufacture and in labor — with its own banking facilities and even its own “ kangaroo courts ”. Invisible government dares hold a regional crime conclave — attended not by ordinary thugs but by crime ‘‘ magnates ’ ’ — executives and administrators, including apparently a member of the Bar of another State.

The United States Attorney General’s Special Group to Prosecute Crime¹ reports that the pattern of lawbreaking in our country has undergone startling changes — that some of the most important crime syndicate leaders today are men of public reputation with no criminal records. They function on the basis of large gross volume of illicit activity and operate on inter- and intrastate levels as supplier, manufacturer, wholesaler and retailer. Making use of the techniques of high pressure public relations, they have infiltrated legitimate business to a fantastic degree. Their penetration has reached into widely disparate spheres — the trucking business, the garment industry, the produce market, the waterfront, the entertainment field, construction work, restaurants, real estate, beverages, insurance, securities, etc., ad infinitum. In the operation of these businesses they are often tied up with dishonest elements in labor to the detriment not only of the public but of working men and women and honorable trade unionists.

It is not an insignificant indication of the deep-seated nature of the national infection that the rise in the crime rate this year — an “ appalling ” 8% increase according to F. B. I. Director J. Edgar Hoover — was sharpest in the smaller and medium sized areas. Except for sporadic arrests, narcotics continue as big business for the mobsters; policy rackets and bookies know no recession; bribery, extortion, and racketeering are unabated.

How can our youth remain untouched? “ Crime is juvenile delinquency grown up ” is a slogan; but this is in fact, an inversion. It is the corruption of the elders which has spawned the delinquency of the young. The teenage gang on the street is but the pale image of the mob in the rackets.² The toy pistol too often becomes the zip-gun which in turn is transformed into the revolver and the shotgun. Parents arm their young with miniature arsenals almost from infancy. Thus they are conditioned that when they become teenagers they aspire (?) to lethal arms. It has been suggested in a proposed “ Decalogue for Parents ” that it include a commandment: Thou shalt not permit thy children to bear arms except in the service of their country.

What, after all, can our youngsters think when State and city officials quarrel over a “ proper ” division of race-track proceeds, while at the same time, they attempt to suppress book-malting, numbers games and other resultant rackets. On one hand Grand Juries and District Attorneys term gambling the key to gang crimes; on the other, it is sought to legalize off-track betting as a source of public income.³ It is the adult world which has turned pornography into a 500-million-dollar a year industry — the teenager is merely the consumer. And it is the adult who for profit seeks the widest audience by appealing to the lowest common denominator; it is he — not our young people — who produces the stream of violence and sadism that issues from our mass media — radio, TV, the movies and comic books — to trigger the imitative behaviour of unstable and disturbed young natures.

Through air waves and the television screen we open our hearth and expose our children to frenetic force, to questionable taste, to often doubtful characters, and to an engulfing stream of trivia. It is little wonder that bewildered, perplexed, bedeviled, youth’s errancy takes the form of violation of ordinance and statute. Their elders’ moral lapses are not always comprehended by the Penal Law. For as Msgr. McDonald, of the Catholic University of America, warned, “ It is not only that crime, as such, is increasing, but also there is a widespread disregard of law among apparently respectable citizens ”.

History thus repeats itself; our time is like the time of the Flood when “ the earth was full of violence ”. We, too, construct towers which rise to the skies but their builders do not seek Heaven. The result is that “ every prospect pleases and only man is vile ” — for as Father Abraham said to Abimelech concerning his beautiful and flourishing land: ‘ ‘ But there is no fear of the Lord in this place.” The gentle voice of religion has beseeched us to establish the brotherhood of man and we have succeeded only in spawning a ‘ ‘ brotherhood of evil ’ ’, the title of a terrifying presentation of the hoodlum empire with its invisible government of far-flung dominions.⁴

Must a civilized community continue a tacit acceptance of the pervasive spirit of lawlessness and force in its life? The war against violence must be waged on all levels and must start in the home and the community, with the individual father and his son. We have taken pains to place the blame where it primarily belongs — on adult society generally — because that raises a corresponding obligation on the part of the elders — including those who are themselves individually free of blame, as this petitioner is — to make a greater contribution of sacrifice than normally required to assist the growing generation.

In that view, petitioner should be willing to be deprived of his pistol in order to protect his son and the community. Stress of rights must often be balanced by public interest — even if there results an individual loss. There are important things which must replace personal consideration or there could be no human society worth living in. The progress of humanity has resulted more from the concept of duty than of right: ‘ ‘ acceptance or restraints in tune with the order of the world.”

The right to bear arms is a precious one, guaranteed by the United States Constitution. But while we are a society still pioneering in the realm of space and spirit, we are no longer a frontier community.⁵ The great master of the law correctly observed that “ Most rights are qualified ” (American Bank & Trust Co. v. Federal Bank, 256 U. S. 350, 358); and this right, too, is subject to regulation. (Penal Law, § 1897.)⁶

One of the obvious methods of combatting violence is to remove the weapons of violence. In the struggle against evil we need help — not to be tempted as we are prone to be in our daily lives. The means of avoidance of temptation is itself a weapon against evil. That is the prayer for grace uttered by many every day — the inward meaning, perhaps, of “ Lead us not into temptation ”.

In our community, beset with adult violence reflected in the delinquency of youth, the control of accessibility of firearms is a grave responsibility. The respondent-father’s character is not in issue, as I have already said; but his young son, living in his household, has, apparently, strayed from the accepted behavior pattern of the law-abiding citizen. It is altogether fitting and proper that the Police Commissioner who is vested with authority in this matter should deny petitioner’s application. His action in the circumstances may not be termed arbitrary or capricious. On the contrary, it demonstrates commendable concern for the individual family and the public at large.

Petition dismissed.

1 . This group was organized last April as a temporary body to proceed nationally against the country’s 100 top racketeers.

2 . Gangs are a natural part of adolescence. The insecure youth, displaced from childhood and still incapable of adulthood, seeks approval and status from his peers, and to this end joins the gang. Gang activity must be properly channeled. To do this we must meet the young people where they are — through neighborhood clubs, youth centers and even on the street corners. The work of the city, through its Youth Board and through neighborhood and street leaders, is to be encouraged and the program expanded.

3 . The argument that if betting is legal at the race course, it is right off-track, seems to many disingenuous and sheer casuistry. These believe it to he immoral anywhere as subversive of the well-being of individual citizens and their families and the good order of the community; and they point to Governor Hughes’ then successful effort to ban horse betting entirely, more than 50 years ago.

4 . Wéderic Sondern, Jr., “Brotherhood of Evil; the Mafia”, 1959,

5 . He [John Marshall] was convinced the new republic has passed that stage of its growth when it could advantageously employ either the appeal to heaven or the appeal to the people. The first, as John Locke taught and as the generation of the war of independence well remembered, meant the people’s resort to arms in defense of their threatened liberties. Appeal to heaven was the right to revolution. * * i? Appeal to the courts, rather than appeal to heaven or appeal to the people, would give the very fabric of government a steadying force. (“Amos versus Amazioh” — Shalom Spiegel).

6 . Under the present state of the law, licensing is required only for arms that may he concealed and not for larger weapons such as rifles and shotguns. It is to be questioned whether legislative action should not he taken to require permits for the use of all firearms. Recent events have seen the meaningless slaying of two young women by the shotgun of a frustrated and unbalanced misfit. Another tragedy occurred when a rejected suitor shot his former teenage fiancee with a .22-caliber rifle. Had there been stricter requirements for the possession of such weapons, three innocent lives might have been spared.