This is the fourth installment of a series documenting an ordinary New Yorker attempting to exercise his Second Amendment rights: Part I (license application), Part II (application rejected), Part III (the lawsuit).
After one hundred years of New Yorkers receiving gun licenses if and only if they gain the favor of the NYPD – often through cash payments – it is well past time for the courts of this state to step in and declare the NYPD’s implementation of the “proper cause” requirement to be unconstitutional…
We left off last fall with in Part III, where I filed suit against the NYPD for: 1) requiring that I provide them a “good reason” as to why I should be allowed to bear arms, 2) requiring that I answer entirely irrelevant questions (Have I ever been fired? Have I ever been prescribed a prescription painkiller?), and 3) refusing to fulfill a public records request that would shed light on their supposed process for deciding on license applications.
After receiving service of the complaint, the NYPD filed a motion to dismiss, alleging that: 1) it’s totally constitutional to require a reason before allowing a citizen to exercise his or her rights, 2) that these questions are totally rational to ask of one seeking a gun license, and 3) that releasing records would “interfere with a law enforcement investigation.” Judge Carol R. Edmead of the New York County Supreme Court granted this motion on February 7th, 2017, essentially rubber-stamping the NYPD’s arguments. Judge Edmead required the NYPD to make no showing, for example, as to why they needed to know answers to any of their obviously irrelevant questions, and required the NYPD to present no evidence — not even a sworn declaration — that releasing records would cause legitimate interference with law enforcement.
The most glaring of Judge Edmead’s errors were in 2 parts:
- She conceded that gun restrictions must be subject to “intermediate scrutiny” — that is, they must address an “important” governmental objective by means “substantially” related to that. She then went on to say that she was approving the NYPD’s actions because they were “rational.” But a finding of “rationality” is not the test that she just stated was appropriate. The NYPD’s tomfoolery must not be merely “rational” but be a substantially tight fit — asking not significantly more than is actually required to fulfill the “important” governmental objective of public safety.
- I’m actually somewhat shocked that she granted a motion to dismiss on the public records request given that, in deciding a motion to dismiss (the first opportunity a defendant has to get a case tossed out of court), a judge cannot yet weigh evidence because the plaintiff has not yet had a chance to present evidence. Yet she had no problem finding that releasing the records would definitely interfere with a law enforcement investigation, just because an attorney for the NYPD said so. In doing this, she cut off the case before allowing me a chance to argue the other side.
I immediately filed a notice of appeal, and today I “perfect” the appeal, as they say here in New York, by filing the “record” (a copy of everything that happened in the court below) and my appellate brief — given the requirement of 10 copies of everything (8 for the court and 2 for the opposing party), well over 2,000 pages had to be printed, bound, and delivered to make this happen (links to digital copies below). In it, I detail for the New York Supreme Court, Appellate Division the history of corruption in the NYPD’s licensing division. Some highlights from the last few decades, although the corruption goes back 100 years:
- In 1973, NYPD Capt. Salvatore Salmieri was suspended for issuing a gun license to a mafia chauffer. Exhibit C – Narvaez, Alfonzo. “Captain Suspended in Gun Authorization.” New York Times (Nov. 17th, 1973).
- In 1997, the head of the licensing division, Henry Krantz, was disciplined for, again, picking out individuals for whom the usual process did not apply: “Krantz was charged with providing ‘preferential treatment to individuals or entities,’ as well as ‘wrongfully directing’ other cops to grant the favors and failing to supervise his staff.” Exhibit D – Marzuli, John. “Gun Licensing Boss Suspended by NYPD.” Y. Daily News (Jan. 23rd, 1997).
- In 2002, a former head of the licensing division, D.I. Benjamin Petrofsky, was accused of (and later demoted for) helping famous rock-and-roll musicians receive a pistol permit in exchange for VIP concert tickets and after-party admission. Exhibit E – Messing, Philip. “NYPD Under Fire in Aerosmith ‘Got a Gun’ Scandal.” New York Post (Nov. 24th, 2002). He allegedly went as far as to fingerprint the musicians inside Madison Square Garden. Wiederhorn, Jon. “Janie’s Got A Gun Permit? Aerosmith Flap Lands Cop in Hot Water.” MTV (2002).
But of course, you’ve all probably heard of the more recent scandal that former U.S. Attorney Preet Bharara was investigating before Trump fired him:
According to court papers, the trading of gun licenses for bribes stretched from at least 2010 to 2016. Exhibit H – Neumeister, Larry. “Former NYC police, lawyer arrested in gun licensing probe.” Associated Press (Apr. 25th, 2017). In return for approval of gun licenses without meeting New York’s qualifications, D.I. Endall’s officers “solicited and accepted food, alcohol, parties, dancers and prostitutes.” Id. Several of the gun licenses bought through the corrupt members of D.I. Endall’s office caught in this sting went to street vigilantes who were known for beating a man on the street so badly he is permanently blind in one eye. In the meantime, the application by Corbett, who the NYPD concedes had no character issues, was denied.
Deputy Inspector Endall was, of course, the NYPD licensing division commander who denied my application not 3 weeks before being transferred to desk duty — err, lower desk duty — because several of his subordinates were arrested for literally taking hookers and cash for gun licenses.
I do hope the Appellate Division takes to heart that they are literally taking a blind eye to corruption if they do not take action. From here, I expect it to take several months to get an opinion from them. If it’s unfavorable, I can then ask the New York Court of Appeals, the highest court in the state, to hear the case, before moving onto the federal courts.
So “Is It *Really* Impossible To Get A Gun License in NYC?” Not sure yet, but so far:
- Money Spent: $1,365
- Time Spent: ~80 hours
Will look forward to updating with Part V as the Appellate Division takes a stand.
Corbett v. City of New York IV – Appellate Brief (.pdf – 7MB)
Corbett v. City of New York IV – Record on Appeal (.pdf – 38MB)
UPDATE: Mere hours before I was to file this brief, the U.S. Court of Appeals for the D.C. Circuit invalidated D.C.’s “good reason” requirement for carrying firearms. This is a major win, and so I updated my brief and re-printed it. The above documents now reflect that change.
“Jon Corbett is a civil rights advocate known for filing the first lawsuit against the deployment of TSA nude body scanners, as well as defeating the body scanners live in ‘How to Get ANYTHING Through TSA Nude Body Scanners.’ Presently a law student, he continues to advocate for travel and privacy rights. Twitter: @_JonCorbett, Web:https://professional-troublemaker.com/“
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No character flaws? Not knowing when to pay a bribe is a character flaw! 🙂
So, NY judges are stupid. SURPRISE! But it is the same story in most of the USA (and the world). There are a few good judges, and a few good lawyers, but they are really hard to find when you really need them. In North Dakota I am currently involved in a minor civil case. The court records clearly show the other side was off by at least $70 in the judgement. The clerk told me the only way to correct this obvious error in the court record was to make a motion to reopen the case. Which I did. At the hearing I pointed out clearly to the judge that a + b = $c. Simple math. Judge not only could not do simple math, but awarded the other side $1,700 in attorney fees in punishment for me even bringing this and many other errors to the court’s attention. So, ignore the facts. Ignore also that the law does not authorize attorney fees in this type of action. I of course could appeal this directly to the N.D. Supreme Court, but past experience shows they are not much better in math, and their whole purpose is to find excuses to uphold the lower court rulings by hook or crook. As for judicial competency, in the 120 year history of ND courts, not once, NEVER, has a judge ever been found incompetent or been removed from office. But, I guess God must make judges to come up with that good of a track record.
In a non-related matter, I recently discovered that the Master Record of the jury list must be kept by each county, and this record is open to review by the public. But when I checked with my county clerk, she knew of no such record so could not produce it. So, who keeps the jury list and how and who selects them seems to be a public record state secret?
I read a article earlier that a Fed court, in D. C. I think, ruled that the needing of a reason was unconstitutional. If you can find it, you may want to read what the court said and it may give you some pointers/ideas. I think it was recently done, today or yesterday, if that helps. If I run up on the article, I’ll post a linky. Thing is, State courts don’t matter much since the Fed court can overturn them. It’s when you get to the Fed court system that you change things. Most State courts in my opinion could care less about the 2nd.
This world we live in. NYC is so crooked. And also expensive. How dose one afford to live in that city?
It’s the American way that’s why this country is going down the drain. It starts with the current mayor of NYC.
Meanwhile, in the Commonwealth of Pennsylvania, approximately 13% of all adults (roughly 1 in 8) possess a License to Carry Firearms, valid statewide. Of course, getting such a license is a bit of a pain in that it involves forking over $20 and a one-page application. No blood samples, no psych evaluations, no written tests, no listing of what firearms you own, no permission needed from roommate or spouse, no letters of recommendation. Oh, there is a 45-day time limit between submitting the application and receiving the license, and in many cases it’s issued the same day by the county sheriff (no judges involved).
Somehow, for some strange reason, there are no shoot-outs at intersections, no blood running in the streets, no old ladies wetting their panties at the sight of someone grocery shopping with a handgun on one’s hip.
And, should National Reciprocity ever come to pass, my $20 license will be just as valid as your currently nonexistent $429.75 license. I can well imagine how well that will go over in New York City.
You are fighting an injustice. Keep up the good work.
NY State is not much better, except for a handful of counties upstate, 8-15 month wait for a “Target” permit, it’s ludicrous. They say “it’s the politics”, BS ! Every LEO that does the licensing feel they should be the only ones that possess firearms.
Meanwhile in the Commonwealth of Pennsylvania again, no license/permit is required to purchase or own a handgun, rifle or shotgun. You go in to the licensed gun dealer, handle all the firearms you want until you find the one you like, you plop down your cash or plastic, the dealer runs an instant check through the Pennsylvania State Police, and you walk out the door with your purchase. Can be done in as little as five minutes. You’re legal? The state is happy.
You are doing great work Jon. I’m very interested in seeing how this turns out for you. I am an upstanding citizen who is looking to exercise my rights and I know how much red tape this city forces you to sift through all too well. Thanks for fighting the good fight sir!
Thank you, Michael!
Corbett, although I admire your campaign, I regret your argument about the policy’s fostering corruption and the NYPD’s history of corruption. Although not an attorney, I think that this argument is tangential and of sociopolitical merit, but of nil relevance to the legal merit of the NYPD’s official gun-licensing policy. I think that your other arguments are relevant, but that the unconstitutionality of the NYPD requiring a ‘reason’ is far more debatable than the unconstitutionality of NYPD asserting the ‘general public’ to lack the right is bear arms.
Laws can be unconstitutional “on their face” or “as applied.” If a law looks like it will allow a reasonable use of discretion, but it turns out that discretion is abused, there is absolutely a constitutional challenge on that basis.
I have been looking into article 78 procedure for a long time now, and I can’t seem to find any sort of a fill in in document for article 78 petitions. So I was wondering how you drafted yours (like what software) and how you were able to draft a document in the appropriate court format? Also, are there any rules on what sections a petition has to have (preliminary statement vs introduction) of if writers can just choose to do what sections they want?
When I first started doing legal work, I too expected it to be filling out forms like virtually any other interaction with the government. But, most legal documents (including my petition) are just drafted manually in Word. Occasionally you can find templates and very rarely a fillable PDF for certain things, but usually you’re on your own.
Anyway, you can use my Word doc to create your own, but I highly recommend against it unless you’re ready to put serious time into learning how to make an effective Article 78 petition, and civil procedure in general. Some legal stuff you can do on your own pretty easily — you can probably sue for breach of contract pro se without much help — but when you’re coming against the government on an issue that many attorneys have attacked and failed, you’re probably wasting your time. I’ve already spent several dozen hours on this case, and that’s not counting any time I needed to spend learning how to write a petition.
I really applaud what you’re doing. This has been going on for waaaay too long.
I feel like you should have gone straight to the federal courts. You are not going to get any justice from anything to deal with New York state. Now that conservatives have a majority on the Supreme Court, this would actually be a great case federally to at least create precedent. In my opinion, you are just wasting your time. Getting a New York judge to recognize 2nd Amendment rights is not going to happen. I’d honestly like to see this case in federal court ASAP, though I think your failure to fill out the application properly could moot your case.
Why don’t you file the challenge your way? :-p
You’re doing an amazing job! Any updates recently?
thank you for doing this! i have been meaning to apply for a gun permit for many years now but every time i remind myself of the $500 the city will take just to tell you “no” i stop myself. i just got back from a 4 day training at Frontsight in Nevada and I would really hope for things to change around here. right now my hopes are in National Reciprocity. have you thought to reach out to the NRA for assistance both financially and legally?
The NRA is unfortunately too busy fellating Trump to want to help. I’ve contacted both national and regional.
You may want to see if you can get in touch with Gun Owners of America. They support a more stricter interpretation of the 2nd than the NRA. The NRA thinks it can be infringed while GOA say shall not, as is in the 2nd.
I’ve posted for them before, they take a bit to respond but they do get to it eventually.
Forgot this one. I think there is a 2nd Amendment Foundation too. I’ve read articles about them in the past but not recently. Not sure of current status or if they would assist.
I’m extremely interested in what you’re doing. I think it’s absolutely great and would love to pick your brain about it more if that’s at all possible.
Feel free to send an e-mail 🙂
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!
You know, I was going to fight for concealed carry all the way to the Supreme Court, but now that you’ve told me to forget about it, instead I’ll fight for concealed carry all the way to the Supreme Court. 🙂
Forget about concealed carry in large urban cities, not gonna happen and 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!
if you start a go fund me i will def donate and i am sure a ton of people would. it may allow you to speed things up with more lawyers involved in the process.
I thought about doing this route as well when i got rejected for a premise perm this april (application dated 03/17). I spoke to 2 laywers from BK and they both are in the same mind set when they stated how to correct this NYPD mess.
We have to file a suit on a federal level; almost a guarantee win. Their estimate was it will take 1-2 years to head to court, likely cost 7-13k (depends on how many court visits); however,even if there is a win on a federal level, the issue come to us NYC peeps is that we dont know how the NYS/NYC will apply it base on 10th amendment (states dont have to abide by fed laws to the letter) and the second BS we need to get rid of title 38. This is the cause that NYPD uses as a shield to challenge anyone’s “moral” character (which is super ironic coming from NYPD).
Hence, if you have to go and file a suit, I tots in and i can back several grand on mine/our behave. however, if we file for suit it make more sense to stand out and make a claim for a ton of money and go after the dudes in charge!
Glad to see you fighting back. We just got the decision on an article 78 denying a carry permit for a job where Homeland Security already approved and a gun was assigned expecting the carry permit approval. Technically, the carry permit was approved but the supervisors reversed the decision of the staff. We only learned that during the appeal process. Contemplating an appeal to a 5 judge panel in NY Supreme Court. This has already been $6,000 in legal fees and expenses to get the premise permit and then apply for the carry permit with another $5,000 – $7,000 estimated to appeal the article 78 to Supreme Court. Not sure about moving forward. No criminal record & an honorably discharged vet but they are using a 20-year-old dismissed self-defense case to deny the carry permit….for a job.