Over the last year I’ve documented the process of applying for a license to carry a handgun in New York City. Part I described the initial application process, requiring an incredible amount of paperwork, money, and time, and the scheduling of an in-person interview. Part II described the interview, as well as the eventual “NOTICE OF DISAPPROVAL” that ended up at my door, letting me know that there was no problem with my background, but I simply did not give a good enough “reason” for them to allow me to exercise my Second Amendment rights.
For Part III, I’m pleased to announce that I’ve taken up the fight in court with a lawsuit challenging the constitutionality of the City of New York’s interpretation of state laws that effectively allow the NYPD to deny a license whenever it wants. I’ve additionally challenged the NYPD’s refusal to fulfill a Freedom of Information Law request, as well as 3 of the most absurd questions on the application form.
Beginning where we left off in Part II, after receiving the rejection letter, I filed an appeal with the NYPD itself, asking them to reconsider the decision of the commanding officer of the licensing division, Deputy Inspector Michael Endall, to deny my license. I should really say the former commanding officer of the licensing division — about 2 weeks after he signed my rejection letter, he was removed from his post after a federal investigation uncovered that his subordinates were accepting bribes in exchange for approving gun license applications. At least one officer under D.I. Endall’s command has so far pled guilty to corruption charges, and another will face trial shortly.
Departmental drama aside, as you can guess, I received a reply to my administrative appeal by Director of Licensing Division Thomas M. Prasso telling me to pound sand. As best I can gather, the division has an officer head and a civilian head, and D.I. Endall was the former while Mr. Prasso was the latter. This letter sets the clock ticking for a state court challenge, giving me 4 months to file what New York calls an “Article 78 Petition,” so named after the section of the law that allows people to challenge the final decisions of administrative agencies, so long as they do so within 4 months. (Note that I could file in federal court directly, since my federal constitutional rights are in play, but let’s give the state a chance to correct itself first.)
Corbett v. City of New York IV – Petition & Complaint (.pdf), Case No. 158273/2016
There are 3 separate challenges within this lawsuit:
- First and foremost, NY Penal Law § 400.00(2)(f) specifies that a license should be issued when an applicant shows “proper cause.” The City of New York (as well as Westchester County, FWIW) interprets this to mean “a good reason that we approve of” rather than “filled out an application and is not disqualified.” In particular, the city requires that applicants show a greater need than that of the general public (!!), so “I want to defend myself” is not good enough while “I want to defend myself because I regularly carry around bags of diamonds” probably is. Virtually all of the rest of the state interprets this the other way, granting licenses to individuals who are U.S. Citizens with clean criminal records. The “proper cause” requirement, as interpreted by New York City, is not only unconstitutional (imagine having to convince the government that you had “proper cause” to speak freely, practice your religion, say “no” to a search without a warrant, etc.), it leads to decisions that are arbitrary at best, and influenced by corruption as we’ve seen above at worst.
- Second, I challenged 3 questions in particular. These three questions ask if you’ve ever been fired from a job, ever used painkillers or sedatives (under a doctor’s orders during/after surgery counts), and if you’ve ever testified under oath anywhere in the country. Saying “yes” to any of these questions extends the application process, requiring you to explain yourself. These three questions are highly invasive, not protected by, e.g, HIPAA confidentiality requirements, not evaluated by any professional qualified to do so (there are certainly no doctors in the NYPD Licensing Division qualified to say if your prescription regimen would make you unfit to have a gun), and are generally irrelevant for any purpose other than giving the NYPD an excuse — not a reason — to deny the license applications of good, qualified citizens.
- Third, after my application was denied, I sent the NYPD a Freedom of Information Law request (Exhibit C of the petition above), asking for every application for a gun license in a 3 month period with all personally identifying information redacted. My intent here was to see whether the NYPD was consistent when considering applications or was granting preference to VIPs. The NYPD said that they would not fulfill my request because doing so would be invasive to privacy and would interfere with law enforcement (Exhibit D of the petition). How releasing these records could possibly do either of those things is a mystery to me, and therefore I’ve asked the court to review it.
I’m hopeful that this petition may push the NYPD to a more reasonable licensing scheme. Despite people telling me that the NYPD’s rules are challenged all the time, I wasn’t able to find a challenge to the “proper cause” requirement in this state in the last 5 years, and never has the proper cause requirement been challenged in the context of the state’s ban on open carry + the Supreme Court’s decision that the right to bear arms is applicable to individuals and assertable against the states. Whether you think we need more or fewer guns in this country, I hope you’ll agree that the licensing scheme should at least be fair, and to that extent support my reform against the NYPD’s “licenses only if we want to give them” scheme.
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Professional Troublemaker ® 
Keep up the good work you old trouble maker. 🙂
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Were you not paying attention to the Kachalsky case? We had this fight already, took it to the Second Circuit, and lost. All you’re going to do is make more bad precedent.
Good luck my friend! Glad to see someone standing up for this.
What’s ironic about this, my State has Constitutional carry. No permit required. They do still sell them I think tho, for some reason.
FYI, http://iapps.courts.state.ny.us/iscroll/SQLData.jsp?IndexNo=158273-2016&Submit2=Search has the case docs for free. (Better than PACER!)
On Mon, Oct 3, 2016 at 8:53 AM, Professional Troublemaker wrote:
> Jonathan Corbett posted: ” Over the last year I’ve documented the process > of applying for a license to carry a handgun in New York City. Part > I described the initial application process, requiring an incredible amount > of paperwork, money, and time, and the scheduling of an in-pe” >
Better:
Apparently your RJI hasn’t actually been processed yet, which is why it’s not showing up in e-track searches.
– Sai
Determining the right level of restriction to allow on an individual’s constitutional right is no easy game (no yelling fire in a movie theater, etc., etc.). The Supreme Court described the core right of the second amendment as home protection, thus any regulation affecting the right to bear arms for home protection will be subject to strict scrutiny. The right to bear arms in public is also second amendment protected, but intermediate scrutiny has been applied. Constitutional scrutiny (whether strict for the core right, intermediate for the more general right, or lower) considers the government or public interest to be protected. Thus constitutional scrutiny should allow different regulations in different areas depending on the public interest it seeks to protect. Would it be a good thing if every person in New York City who could pass a background investigation had a concealed loaded handgun in their waistband? How many stressful circumstances would end in real tragedy, and how much harder would policing be in all the various neighborhoods of the City. It’s a far different question in other places, but I disagree with your criticism and I’m glad NYPD does careful investigations on the proper cause requirement before giving a full carry license in NYC.
I respect your well-reasoned argument, but where I feel it falls apart is that we’ve seen that the “proper cause” requirement breeds a system of corruption. There is simply no fair way for a government to decide whether you should be allowed to exercise your rights. Even if done completely in good faith, the result is that only the rich (and their servants) can have guns, because they’re the ones with the “I’m a target, therefore I need guns” justification. But we’ve seen that it has been, for decades, not done in good faith, and so some objective standard is needed, and yes, everyone who meets those standards should be able to carry a “concealed loaded [gasp!] handgun in their waistband” (hopefully, in a proper holster). I assure you that there are many stressful circumstances in Dallas, Miami, Atlanta, etc., where the right to carry is available for all citizens, and the number of times a concealed carry licensee choose to break the law in those circumstances is minute. New York City is not a special snowflake where it just wouldn’t work, and not a single person who’s made that argument (and it is made often!) can back that up with any evidence showing that population density, mass transportation, etc., makes concealed carry more dangerous.
From what I have read about the yelling fire in a theater, what the court found was that you can not yell fire in a theater, unless there is a fire. You have every right to yell fire in a theater when there is a real fire there. Also, same thing about saying something false about a person. You can say it but you can also be held accountable as well. The right to free speech isn’t limited as I can go and say anything I wish but I will be held accountable if what I say is false. The person that yelled fire in the theater did so when there was no fire and people were injured because of it. If there was a fire, he would have been fine, and maybe even a hero at that. It was the fact it was a lie and caused injury to others that got him in trouble.
The 2nd Amendment right is as absolute and even less limited. At the very end of the 2nd Amendment it says, “shall not be infringed”. Each and every law that has ever been passed violates that part. Unlike the 1st Amendment, it isn’t just a limit on the Federal Govt either. The 2nd applies to everyone from the top down. The 1st starts with “Congress shall pass no law” but the 2nd has no such limitation. It is actually much broader. As a example. the right to free speech doesn’t apply on say Facebook or the comment section of this blog. The 1st is only a limit on the Congress. The 2nd has no such limit.
In my State, as in several other States now, we have Constitutional Carry. As long as you are not a convicted felon, you can carry with no permit. The State still sells permits, I guess for people who travel to other States that recognize permits, but you don’t need one here.
So, there is not such thing as a “right level of restriction” because any restriction would infringe on the right.
While I am here. Jonathan, I been following your blog for several years now. While I don’t always agree with the logic, I’m grateful that you are fighting for what you are fighting for and making progress. For someone who started with limited experience fighting this sort of fight, you have at the very least been a thorn in the side of the Govt. We need a lot more thorns.
Any news on the status of the lawsuit? Other unconstitutional regulations that make NYC gun laws even more ridiculous is the fact that NYC does not even recognize concealed carry permits from NEW YORK STATE!! Many counties in upstate NY are “shall issue” counties for ccw for those with a clean background and others may require the permit holder to have a “restricted license ” for a few years before they can request an unrestricted full carry. But if someone with a full carry permit from upstate NY enters the city with a loaded firearm they are committing the same felony as someone who is carrying with an illegal gun purchased in the black market. How can the state of NY allow this? Is NYC not part of NYS or what? Unfortunately many New Yorkers have been brain washed by the anti-gun politicians and it would take a Supreme Court ruling to get our second amendment rights respected in NY. Good luck in what you are doing, keep up the good fight.
The way my State handles that is this. No city or county can pass any law that violates State law or the State Constitution. So, if say the county I live in wants to pass a gun law that restricts gun possession more than State law, then the State court would strike the law down. Basically, most laws are State wide. Cities can have things like noise ordinances and such but the big things are done on a State level.
I do find it weird that you can live just outside NYC, drive to NYC for work and not be able to take a gun with you even tho you have a permit for where you live. If you were going from one State to another, well, OK, maybe. Heck, in my State, your vehicle is a extension of your home. Anything you can legally have in your home you can also have in your car, which includes guns. I might add, it was that way even before we moved to Constitutional Carry.
Some of you who live in NYC may want to consider moving. From what I’ve read, a lot of gun manufacturing companies have already done so.
If a NYC resident has shown him or herself to be law abiding, it is unconstitutional to deny that individual the right to BEAR arms. Period. A person’s Constitutional rights are not dependent on what state or city he or she lives in. Kudos Jonathan. All constitutional rights are worth fighting for. We shouldn’t HAVE to fight for ANY constitutional right nor have to pay exorbitant license fees to exercise those rights.
Looks like they just dismissed his case! SMH! I think we have all been approaching this the wrong way. The reason why the gun laws are stricter in the larger cities like NYC, is because they don’t want minorities and people of color to have the same access to legally purchase guns as white citizens do in the suburbs. This should be taken up with the courts as a case of institutional discrimination.
Fear not, appeal pending. 😉
Hey Jonathan, to be honest with you, i’m not so hell bent on the right to carry as I am with the right to possess a firearm in one’s own home! Doesn’t NYC has the strictest gun laws in the country? You can’t even purchase a long gun for your own home without obtaining the blessing of the corrupt NYPD licensing division. You should be anle to protect your home without having to beg the NYPD for permission to do so. It’d be nice to see NYS become a must issue state for home defense and take away all of the local municipalities’ licensing rights; just a simple, uniform law accross the entire state. Carrying in public is another issue and maybe too much too soon. I would settle for a no bullshit right to bear arms in your own home, no permit, no application, just go to the gun store and buy your gun for your own home protection like almost every other state in America.
This NY Fox 5 News story seems telling: http://www.fox5ny.com/news/250578141-story
Hey man now that you have a right leaning supreme court, you think they will strike down NYC gun laws if taken all the way up? How long do you think this will take to get there?
Jonathan –
I enjoyed reading and appreciate you sharing your experience in applying for a pistol permit; Where does Corbett v. City of New York IV stand today? Has your appeal been filed? Separately, where can I find the judgement on the dismissal of your original complaint?
Thanks!
Hi Jake,
Notice of appeal filed, briefing coming soon. 🙂 You can find all docs using NY SCROLL or NYSCEF (court Web sites).
Thanks,
–Jon
Hey Jon, check out “SGUEGLIA v KELLY”. This was my Article 78 case and the appeal against the NYPD which was lost in 2015. This case was initiated to fight the restriction on NYC Premise Permits which prohibits us from shooting, training, and traveling outside of NYC with our handguns.
After reading the decisions for both the original case and the appeal you will see for yourself that the NYC/NYS judges ignore all the facts and make up their own insane logic to justify their obvious anti-gun based decisions.
I hope your appeal has a better outcome then mine.
Keep us posted.
Steve S.
Read your case: “…is rational and not arbitrary or capricious…” Matter of Sgueglia v. Kelly, 134 A.D.3d 443, 443 (1st Dept. 2015). If there’s one thing I hope to change, it’s that these rules stop being evaluated against this standard and start getting evaluated against intermediate scrutiny.
Thanks for sharing.
Someone earlier mentioned the irony of the state not needing a permit. The real irony of all this is that all responsible law abiding citizens are unable to have guns to protect themselves and other but all criminals can easily have guns.
Forget about concealed carry in lrge urban cities, not gonna happenand probably shouldn’t happen. What I can’t understand is why the NYPD is allowed to put you through a 6 month-1year process to obtain a home “premise” permit?? You can’t even protect your own home in this city?? Why has nobody challenged this all the way up the courts?? This is where we have solid ground and I would put money to this if somebody would challenge this because no matter how you read the second amendment, you will understand that at the very least, you have the right to keep a gun in your own damn home! People keep wasting their time thinking they’re going to allow everyone to carry guns in times square one day when we can’t even own guns in our own homes!