This is the fifth 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), Part IV (appeal filed).
We’re now at 15 months from the date I — just an ordinary citizen with no criminal record — applied for a license to carry a handgun in New York. My application was filed in December 2016, denied in April 2017, and the NYPD denied my administrative appeal in May 2017. My petition to have a lower court review the denial was filed in September 2016 and rubber-stamped by a judge in February 2017 who decided that the NYPD’s denial of the license was “rational” because I didn’t give them a good reason to approve it.
The appellate process in New York is a bit clunky. This is partially owing to the hodgepodge of trial courts — from local town courts that hear small matters, to city courts that hear more significant matters, to county courts that are the highest trial courts. It’s perhaps also partially owing to the odd naming system in place in this state: the original petition was filed in the “Supreme Court,” the appellate court I’m in now is called the “Supreme Court, Appellate Division,” and the next and last court it can go to is the “Court of Appeals.” There’s also the “Supreme Court, Appellate Term,” which is somewhere in between “Supreme Court” and “Supreme Court, Appellate Division,” which was skipped here. Compare this to California, for example, where there are Superior Courts for the trials, Courts of Appeals for the appeals, and their Supreme Court to appeal an appeal — and that’s it. It really shouldn’t take an hour of research just to figure out which court will hear your case.
It’s also clunky because they have very strict, archaic rules about how they want their documents. You can’t electronically file, unlike virtually every other court in the state. But you also must e-mail them a PDF copy, after you “bookmark” each section and subsection in the file (Have you ever used the bookmark feature in Adobe Acrobat? I hadn’t either!). You have to file 8 copies of everything, but you probably can’t just staple the hundreds of pages required per copy. Oh no, you must bind them, but not with comb-binding like you can find at Kinko’s — they only accept binding with metal fasteners or glue binding. If your fasteners are visible from the outside, you have to put tape over them, because we wouldn’t want any sharp edges in the judge’s chambers. Some documents must be double-sided while other documents must be single-sided. You also must use recycled paper for all your printing, because let’s be environmentally-friendly while failing to allow e-filing and requiring 8 copies. And finally, don’t even think about attaching exhibits to your brief (if you want to, say, cite a government document or a news article and provide the court with a copy), because that’s simply not allowed.
That aside, let’s take a walk through what the City says about my appeal (the contents of what they were responding to — my original appellate brief — are discussed in the previous post):
NYPD is tasked with the grave responsibility of protecting New York City’s 8.5 million residents and over 50 million annual visitors from senseless gun violence and accidental shootings.
Well that does sound like a very important task, but how many people are killed each year in New York with legally-owned handguns? They omit that statistic, but I’d bet more people are killed by the NYPD each year than by the 88,000 current license holders in New York.
“But if we increase the number of license holders, then there will be more victims!” Well, the State of Texas has 1.2 million licensees out of 28 million residents (4.3%) and they study how law-abiding those licensees are each year. Not surprisingly, Texas license holders in 2016 committed 0.35% of crimes in total and 0.40% of assaults with a deadly weapon despite being 4.3% of the population.
NYPD rationally denied Corbett’s application for an unrestricted permit to carry a concealed handgun. That determination is due considerable deference and should be affirmed.
In what sane world is a police department due “deference” when evaluating their decision to deny a constitutional right to the citizens? We don’t allow them “deference” when they violate 4th Amendment rights by arresting someone without probable cause — they have to prove that they did, indeed, have probable cause.
NYPD’s requirement that applicants complete a minimally invasive background
questionnaire is part of a presumptively lawful regulatory measure that
does not substantially burden Corbett’s right to bear arms.
The background check asks you to go through your prescription medication history, which I refused to do (no, it’s not limited to “prescriptions that get prescribed to crazy people”). They ask you to tell them any time you’ve ever lost a job. They ask you for everywhere you’ve lived so that they can talk to your neighbors. That’s not “minimally invasive” to me — that’s more like the background check one goes through for a government security clearance (unless you’re Jared Kushner, in which case you can flat-out lie and keep your job). And for those of you who don’t think it’s a big deal, the NYPD admits they would have denied my application even if I had bent over for the background check because I still don’t have a “good reason” for which I “need” a gun.
Corbett was disqualified from carrying a concealed handgun because he obstructed NYPD’s mandatory background investigation [by refusing to answer the most invasive questions]. … His belief that these questions were constitutionally impermissible reflects an absolutist view of the Second Amendment that is not grounded in the law.
In the NYPD’s view, challenging them on the constitutionality of their questions is “obstruction” and “an absolutist view of the Second Amendment.” Sorry, NYPD, the citizens do have a right to challenge you in the courts, nor is my view that there should be a procedure for an ordinary citizen to carry a gun “absolutist.” Keep in mind that I completed an application that contained several dozen pages, came in for an in-person interview, submitted to fingerprinting, and paid over $400 (original app process described here). “The Second Amendment is my gun license” is absolutist. Challenging their most invasive 3 questions and their “good reason” requirement is simply asking for reasonable access to my rights.
But the government’s opposition to my appeal was strangely silent on one issue: the continuing corruption within the NYPD Licensing Division which resulted in several arrests of police officers in 2016 and 2017 and the transfer of the commanding officer who denied my application to another unit. Apparently, the fact that one can buy a “good reason” from the NYPD was not an important enough issue to address.
Here’s hoping that the Court doesn’t ignore the elephant in the room like the City did in their opposition. From here, the Court may order oral arguments, or it may not. Either way, it will then rule on the appeal (sometime this year), which will either result in the case being sent back to the lower court to do something differently, or will result in the appeal being dismissed and my next appeal to New York’s highest court.
Corbett v. City of New York – Appellate Brief (.pdf – 7MB)
Corbett v. City of New York – Opposition Brief (.pdf)
Corbett v. City of New York – Reply Brief (Bookmarked) (.pdf)
Keep up the good work!! As an aside, I certainly hope the Concealed Carry Reciprocity Act passes Congress. Don’t you?
Definitely looking forward to the day Congress steps up and sorts this out. Every eligible citizen should be allowed to be armed in every state.
In North Dakota the court system is very simple. Lowest are small claims courts and municipal courts (for ordinance violations). Anything of value is in the State District Courts. If you loose in the District Court, the appeal is to the North Dakota Supreme Court.
Speaking of courts, was just reviewing the case of a woman in Devils Lake who is in jail for child support and an Order to Show Cause for failure to appear. Interestingly the notice of hearing was mailed to her, but court records show she never received it. But the court ignored that minor fact and ruled her in contempt for not showing up for a hearing she did not know about. Worse yet, the 2018 Order to Appear requires she appear on a 2013 date. So in ND, we now have time travel available for the courts?
I know nothing about N.D. courts, but that’s interesting to hear. 🙂
Hey Jonathan! First, I would like to thank you for doing this. You are standing up for ALL of us by going through this very costly and time consuming process. I came across your story and your blog today because I myself have been thinking of doing exactly what you are doing! However unfortunately I have no backround in law nor do I own a business, so I have a feeling I will end up denied and out of money. I currently have a Premise license for my home in queens NYC. However I really want to apply for a concealed carry license just to see the outcome…. what do you think? Is it worth me giving a try? Thanks again for doing this. If New York City ever changes their gun laws for the better, it will be because of people like you that challenged the system!
Hi Jeremy, unless you can get by the “proper cause” requirement or plan to fight it, there’s no use spending the $429 filing fee just to get denied.
I guess I’m a “absolutist” then. “Shall not be infringed” means just that.
That said, it’s interesting to read about you going through this process. It’s funny how you have to apply to exercise the 2nd but don’t for any of the others.
Damn! I want a gun permit and was doing research on how to obtain one when I ran into your posts. Now I’m seriously discouraged. I don’t want to, and can’t afford to spend $400 on an application that will for sure be denied. I look forward to your next update. Good luck!
Glad to see someone challenging the NYPD process. It appears NYPD is denying carry permits to a lot of people including those who have jobs that require carry permits. I found out that a few coworkers were denied carry permits in the last few months. Our management office said those who do not appeal their carry permit denial can also lose their existing premise permits. Not sure how true that is and didn’t ask for examples. It reads like certain jobs will be limited to only law enforcement who moonlight since they will be the only ones with carry permits in NYC.
24Karart, it’s like a security clearance. Failing any part of the process makes you a not-trusted person, but the lower tiers have lower requirements. People with security clearance jobs are sometimes coached not to apply for higher clearance if there is a chance they may not pass, since they will no longer be able to work at their current job. Often, someone can be, due to circumstances outside their control such as, for example, being an American citizen born in Syria with family that still live there.
Looks like comment editing is not enabled. I of course meant to say that circumstances like sending money to your foreign-born wife’s elderly mother who lives in her native country can be enough to disqualify you from TS-SCI but not for, let’s say, the security clearance for an Air Force fighter jet mechanic.
Jon, did you ever consider bringing your petition in Federal Court rather than as a CPLR Article 78 proceeding in state court? Also, any plans to appeal to the NY Court of Appeals? It might be a Quixotic endeavor, given how far left that court is, but who knows. For what it’s worth, I don’t think the Appellate Division fully addressed your points.
I wanted to hit the New York courts first. Federal next. 🙂
Keldoclock These people passed a months-long Federal background check. The only hold up is the NYC carry permit process. It’s a bit of a joke to pass the Federal background check & get a gun assigned but NYPD won’t issue a carry permit. Appeals were filed. Not sure how long that process takes & nobody ever picks up the phone. It’s almost like they don’t want anyone to have these types of jobs other than off-duty cops or retired cops.