This is the eleventh 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), Part V (appellate briefing complete), Part VI (N.Y. Appeals Court Not Interested in Ending NYPD Corruption), Part VII (Corruption? You Can’t Prove It!), Part VIII (appeal to N.Y. high court), Part IX (N.Y. Court of Appeals won’t hear), Part X (Federal Lawsuit Filed).
After half a year of deliberation, United States District Judge Katherine Polk Failla has dismissed the first installment of my federal court case challenging New York City’s law allowing the NYPD to determine whether or not the citizens may exercise their Second Amendment rights (spoiler: they say no unless you bribe them or you’re connected with the department).
I like Judge Failla. She seemed to be a thoughtful jurist, but my argument was for a change in the law that needs to be addressed by a federal appeals court. Presiding over a federal trial court, she was bound by appellate precedent, and dismissal by her was a required step to getting to the proper federal appeals court, the U.S. Court of Appeals for the Second Circuit, which serves New York, Connecticut, and Vermont, to consider the case.
For those interested in the legal nuances, as a preliminary matter, the dismissal was predicated on a procedural issue: that my complaint framed the issues as a challenge to my denial (how the laws were “applied”), and not a challenge to the way the laws are written (a “facial” challenge). Since my case was already decided by a state court, Judge Failla wrote that I may not have it re-heard by a federal court, an issue that only affects as-applied challenges.
Normally, this would just result in me filing an amended complaint re-framing the case as a facial challenge instead of an as-applied challenge. Knowing this, Judge Failla saved us the time required to file the amended complaint and deal with a new motion to dismiss by giving us an “even if this were a facial challenge” version, citing the Second Circuit:
In support of his argument, Plaintiff directs the Court’s attention to case law from the Ninth, Seventh, and D.C. Circuits. (Pl. Opp. 9-10). Those circuits, Plaintiff claims, have “[struck] down nearly identical ‘proper cause’ requirements.” (Id. at 9). However, this Court is bound by Kachalsky, which is still good law in this Circuit.
Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2nd Cir. 2012), is a case out of the Second Circuit and exactly what I intend to ask that appeals court to reconsider. In brief, Kachalsky stands for the proposition that the government may require you to give it a “good reason” to issue a gun license before doing so, even if the result is that ordinary citizens can’t exercise their gun rights. In light of the more recent precedent from other federal appeals courts, the Ninth, Seventh, and D.C. Circuits, where good reason laws were rejected, the Second Circuit will now get yet another chance to check itself when I file there shortly.
The U.S. Supreme Court prefers to hear cases whenever the federal appellate courts disagree with each other, and at this time, there is a substantial split among the circuits as to whether good reason laws are constitutional. Given that the Supreme Court is poised to strike down another New York City gun law, preventing home licensees from transporting their guns outside of the city to go to ranges under any circumstances, perhaps now they will also be ready to take up the “good reason” issue.
This is a lot of trouble to exercise a right that is so obvious. That is true even if there was no corruption in the application process itself which just adds yet another reason it shouldn’t take this much effort. It should be as simple as, buy a gun, learn to shoot and when and then carry a gun for those times when it is needed. Self defense is a good reason.
Jonathan, thank you for doing this!
How can I help? I live and NYC and their is so much crime here that is swept under the rugs. NYPD and and Political Counter Parts are Tyrants of the Constitution. It is time we end this practice as we have the right to defend ourselves with the same leathal force so many New Yorkers Face and Can’t defend ourselves. Law Enforcement think that their lives are the ones that matter the most and their families lives matter more than ours as we aren’t even able to defend our families either. What can I Do?
Living in New York City, there’s one thing in particular that you can do: contact your state reps!
These are the guys who can repeal the law that allows the NYPD to be the arbiter of who has a “good reason” to own a gun and who doesn’t.
I appreciate your efforts.
Contacting our state rep(s) isn’t going to do much for us here. This legislature is too busy pushing the most insane left field garbage imaginable.
Besides, they prefer us disarmed.
Keep up the good fight. And thank you for your hard work on this.
These are your reps. You and your neighbors voted for them. If they’re not serving you, let them know!
Any follow up? How’s the good fight going?
What’s the next step for this case? Waiting on the supreme court to grant cert? or is there a step before that?