Lawyer Argues Waterford Arrest Violated Second Amendment

Perhaps Judge John Nazzaro summed it up best when he asked the state's prosecutor this question during Andrew Malerba’s court appearance on Friday: “Assuming he fired a round off, on (30.6) acres, at 2:19 a.m., can you tell me how that’s against the law?”

Friday, Malerba had his first court appearance since being arrested for beach of peace and unlawful discharge of a firearm on January 12th. Malerba, 25, was arrested after he allegedly shot his handgun five times at a coyote he felt was a threat to his dog on his 31-acre property at 6 Cinderella Lane in Quaker Hill at approximately 2:19 a.m.

Rachel Baird, Malerba’s attorney, said the arrest violated his Second Amendment rights. Baird said Malerba has the right to fire a gun on his property at a potential threat.

“What the state describes includes absolutely nothing involving illegal conduct,” Baird said. “You are taking away the right for people to defend their home.”

On Friday, Malerba pleaded not guilty to both charges and Baird successfully argued that the 25-year-old should have his gun permit returned. Baird also argued that seven guns seized from Malerba’s home should be returned, although Nazzaro denied the requested for now but said it could be revisited.

State Prosecutor Michael Kennedy said the guns should not be returned until “we know exactly what we are dealing with.” He said firing a gun in the middle of the night is “problematic” and shocked the neighbors.

“The defendant might have a valid defense,” Kennedy said. “But at this point I have a defendant who admits to discharging a firearm at approximately 2:15 in the morning. The gun made enough noise that people called the police. The police are at the house and they found a lot of firearms, some of them loaded.”

The Incident

On January 12th, Malerba allegedly fired at least five bullets from a 40-caliber Beretta handgun at a coyote on his property at 6 Cinderella Lane. The Waterford Police Department received several complaints from neighbors who heard the gunshots and arrested him for breach of peace and unlawful discharge of a firearm.

According to Baird, both Malerba and his wife – the only two people who live at the home – were handcuffed while the police searched the home. Kennedy said that seven guns were found in plain view in the house, several of which were loaded, and all were seized as part of the arrest, along with Malerba’s permit to carry a gun.

Baird said Malerba is “gainfully employed” as a lineman at Amtrak and has no criminal record. Baird said he legally owns all of his guns, has had a gun permit since he turned 21 and teaches an NRA instructor course.

Baird said that local police, such as the Waterford Police Department, do not have the right to revoke a person’s gun permit, as that function rests with the state police. The Waterford Police Department took the permit card Malerba needs to carry with him to carry a gun, but his gun permit has not been revoked, Baird said.

Nazzaro agreed to return the gun permit, saying the police department can just make a copy of it if they need it for evidence. He denied a request without prejudice by Baird for Malerba to have his seven guns returned, although said she could request a hearing and it could be decided then.

Crime?

Baird said Malerba is not guilty of illegally discharging a firearm because it wasn’t “likely” that his bullets would cause bodily harm or death to a person or domestic animal or destroy any property. She said he fired it on his own, 31-acre property.

She also said what he did was not a breach of peace because what he did was legal. Just because his gunshot scared his neighbors is no reason to be arrested, she said.

“When you are engaged in lawful conduct, just because somebody else is annoyed or alarmed by that conduct, does it result in your arrest for breach of peace?” Baird said.

Kennedy disagreed. He said firing a handgun early in the morning is “problematic.”

“The neighbors heard it,” Kennedy said.  “Discharging a handgun at 2:19 in the morning is problematic.”

Malerba's next court date is February 22nd.

State Statue

Here is the full state statute for breach of peace and unlawful discharge of a firearm.

Unlawful Discharge of a Firearm: Any person who intentionally, negligently or carelessly discharges any firearm in such a manner as to be likely to cause bodily injury or death to persons or domestic animals, or the wanton destruction of property shall be fined not more than two hundred fifty dollars or imprisoned not more than three months or both.

Breach of Peace: (a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person's property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do. For purposes of this section, "public place" means any area that is used or held out for use by the public whether owned or operated by public or private interests.