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 Jonathan Corbett, Civil Rights Attorney

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Gun Rights

Court Denies Preliminary Injunction Against New N.Y. Gun License Requirements

In July, I filed suit against New York’s new social media, references, and training requirements for gun license applicants, created after the U.S. Supreme Court ruled that the state’s policy of allowing gun rights only to those whom the state believed had shown a “good reason” to exercise them. Four months later, the court today orally denied a motion to preliminarily enjoin those requirements. (A written opinion will be forthcoming.)

As to the social media and references requirement, the state argued that these requirements will not apply to those who submitted their applications before the law took effect, as I had done, thus negating my “standing” to sue. That is, the law doesn’t directly affect me (yet), so I can’t challenge it (yet). To be fair, assuming the government is going to process my pending application without giving effect to those requirements, the court got this one right. I am skeptical that they will process my application in this way, but the claims can be re-asserted if and when they “change their mind.”

As to the training requirement, the government needed to demonstrate a historical analog — in other words, a tradition of similar restrictions from the time the Second and Fourteenth Amendments were passed. The government argued that since everyone had to be in the state militia, and the militia had substantial training requirements, there is indeed an analog. The court was persuaded; however, on this issue, I believe the court made a mistake. Militia service and training requirements were not connected with gun ownership. One who was not male, or in the right age range, was not required to serve, but also not precluded from having a gun. Neither was one who simply disobeyed the service requirement. The Supreme Court has been clear that the rights conferred by the Second Amendment are not connected to militia membership, yet here we are with yet another ruling trying to connect them.

I intend to appeal the decision on the training requirement to the U.S. Court of Appeals for the Second Circuit. As almost 8 months has passed since I filed a license application without any indication of processing, I also intend to add a claim of unconstitutional delay to the case. I know that, for many, this ruling is disappointing, but it is a step towards the ultimate resolution, and sets up a scenario where the Second Circuit either upholds a law based on re-connecting the right to militia membership — something that the Supreme Court plainly will not tolerate — or fixes this issue. And, regarding the social media and references requirement, if you or someone you know has applied for a carry license in New York after August 2022 and they would like representation, please be in touch and perhaps we can get these issues back on the board sooner rather than later.

Court Asked for Preliminary Injunction of Social Media Disclosure Requirement for Gun License Applicants

Docket with Motion for Preliminary InjunctionOn July 11th, 2022, I sued Gov. Kathy Hochul over her new law designed to disenfranchise New Yorkers of their right to bear arms in the face of a U.S. Supreme Court ruling that they may not deny that right to the ordinary citizen. This law, S51001, requires gun license applicants to disclose all of their social media accounts, to gather four references, and to complete 18 hours of training. By my estimates, this raises the cost of obtaining a license to over $1,100 and about 35 hours of one’s time, not to mention the cost of missing work to make that happened. The intent is obvious: make it so difficult to get a license that the ordinary citizen, once again, is unable exercise their rights.

My case was assigned U.S. District Judge Lorna G. Schofield and not much has happened, other than the government asking for a lengthy extension of the time they have to respond, but today I got the ball moving by asking Judge Schofield to issue a preliminary injunction against these requirements:

Law-abiding citizens will be forced to relinquish their right to anonymous speech and Internet privacy, while the next mass shooter simply lies on the application and omits any incriminating social media accounts. Diligent investigators, of course, may find incriminating social media anyway, but they could do the same just as well without this law. In other words, the law only serves to punish law-abiding citizens who will be honest on their applications, with no benefit to public safety.

The government’s response will be due in 2 weeks, and the answer to their complaint (with extension) in 3 weeks. I have only some faith that the motion will be granted, but the nice thing about preliminary injunctions is they are immediately appealable. I would imagine the government would appeal if they win, so either way we’ll be in the U.S. Court of Appeals before end of year.


N.Y. Gov. Hochul Sued Over Requirement to Hand Over Social Media Accounts to Apply for Gun License

For the last century, New York’s “proper cause” requirement required gun license applicants to demonstrate a greater need than the average citizen in order to carry a gun. When last month, the U.S. Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ____ (2022), explicitly holding that the Constitution provides an individual right to carry firearms outside of the home and that the state may not ban the ordinary, law-abiding citizen from doing so, it overturned that proper cause requirement and made clear that the states cannot seek to disenfranchise its citizens en masse.

In response, New York Gov. Kathy Hochul convened a special session of the legislature to try to keep guns out of the hands of as many New Yorkers as possible, ignoring the Supreme Court’s mandate that the right to bear arms be respected, and among many other new requirements, the legislature passed a rule that requires all applicants to disclose every social media account they have used in the last 3 years.

This morning I filed suit against Gov. Hochul and this new law, explaining it in terms I think she can understand and, in fact, should make clear to anyone, regardless of what position they take on gun control, that this is the worst possible solution:

An applicant who has had an abortion and has used the anonymity of social media to seek comfort is now outed, as is the gay person struggling to come out to their family. An applicant with an “Only Fans” who sells nude pictures of themselves online would now be required to let police officers take a look at their body. The person who uses social media to document police misconduct, too, must de-anonymize themselves, as is the supporter of Black Lives Matter or any other marginalized political group.

In other words, the government has no business in our social media. My lawsuit also challenges a character reference requirement and a training requirement that are both designed not to ensure applicants are “good guys,” but simply to ensure that as few as possible are able to jump through enough hoops to get a license.

The case is Corbett v. Hochul, 22-CV-5867 in the U.S. District Court for the Southern District of New York.

Lawsuits are expensive! If this work seems valuable to you, donate!

Is It *Really* Impossible To Get A Gun License in NYC? (Part XIV — Supreme Court Strikes Down Proper Cause)

This is the fourteenth 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), Part XI (Federal Court Refuses Challenge), Part XII (U.S. Court of Appeals), Part XIII (No Help from Second Circuit). 

Total Time Spent So Far: 88 hours
Total Money Spent So Far: $2,744

Before the pandemic, I published 13 parts of a series on what it is like for an ordinary, law-abiding citizen to obtain a permit to carry a gun in New York City, in light of state law that requires one to demonstrate “proper cause” (in other words, a reason you need a gun greater than that of the average citizen) before such a license will issue. We left off with the U.S. Court of Appeals for the Second Circuit declining to reach the merits of my case because, they wrote, that a state court had already adjudicated the matter so they didn’t have to.

I had planned to re-apply and then re-file in federal court without starting in state court, but coronavirus happened and pandemic-related cases ended up dominating my time. In the meantime, however, I looked at how one could qualify for “proper cause.” Regularly carrying around large amounts of money was one way, so I started documenting whenever I had large amounts of cash. Running or working for a security company was another way, so I took and passed New York’s exam required as a prerequisite to starting such a company. I ended up re-filing my application earlier this year, but it appears we’ll never find out if I reached a level that would be sufficiently “proper” in the eyes of the NYPD Licensing Division, as today, the U.S. Supreme Court struck down the proper cause requirement in NYSPRA v. Bruen. The high court held, as was obvious, that you cannot parse the word “bear” in “the right to keep and bear arms” without concluding that the amendment provides for outside-of-home rights.

New York officials are predictably apoplectic. Gov. Kathy Hochul took to Twitter to call the decision “reckless.” Manhattan Borough President Mark Levine took to Twitter to flat-out lie, alleging that the decision struck down the requirement to get a permit. I’ve corrected Mark several times when he has made this statement in the past, and he continues to repeat it, possibly not understanding that if a citizen reasonably relies on that statement and carries a gun without a license, they may be able to use his post in defense of a gun charge. But the fact of the matter is that all of the criminals already have their guns, and law-abiding citizens with carry licenses are among the most crime-free group in the country, so there is no reason to expect an increase in violence.

I was told when I submitted my new app earlier this year that it would take 9 months (!!) to even assign my app to an officer. I will certainly update this series when I hear back.

Is It *Really* Impossible To Get A Gun License in NYC? (Part XIII — No Help from Second Circuit)

This is the thirteenth 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), Part XI (Federal Court Refuses Challenge), Part XII (U.S. Court of Appeals). 

Total Time Spent So Far: 79 hours
Total Money Spent So Far: $2,296

In July last year, I filed a notice of appeal of the U.S. District Court’s decision that New York City’s gun licensing scheme was constitutionally sound.  Federal court appeals are heard by the appellant filing a brief, the appellee filing an opposing brief, and the appellant gets an opportunity to file a reply brief.  Often, but not always, oral arguments are heard, wherein the parties get a short period of time (typically, 5 – 15 minutes each) to persuade the judges hearing the case and to answer their questions.

Oral arguments were ordered in this case and heard on June 3rd, 2020.  Getting the Second Circuit to overturn longstanding precedent regarding New York gun laws was always a long shot, so I prepared for a somewhat hostile reception.  The judges randomly assigned, however, were two Trump appointees and 1 Bush 43 appointee — a favorable selection for a gun rights case.  Because of coronavirus, the arguments were telephonic, and a recording is available from the court (.mp3).

Alas, despite the favorable panel selection, the judges apparently had made up their mind before hearing arguments, as they put out a  5-page opinion the next day (.pdf) affirming the judgment of the court below.  The judges did not reach the merits of the case (the constitutional issue).  Instead, they agreed with the city that because of the way I presented my case in state court, I could not challenge again in federal court.

Let me try to explain.  Some cases can be heard in both state and federal court — gun issues are one of them.  However, if your case is heard in state court, it generally can only be heard in federal court if the state court doesn’t provide the same type of remedy (in the legal world, we describe this issue using the Latin phrase “res judicata“).  Gun license challenges in New York courts (called “Article 78” proceedings) typically only come with the remedy of ordering the issuance of the license or a new administrative hearing, while in federal court I can ask for money for the infringement of my rights.  So, I should have been good.  The problem is that when I asked for the review of my gun license issue in state court, I also asked them to review their refusal to provide me with records I requested. The federal court held that this type of case allows for money damages also. In other words, if I had filed 2 separate cases — one challenging the gun license denial and the other challenging the records refusal — my case could be re-reviewed in federal court, but since I did both at once, no dice.

As far as I can tell, this is the first case in which such a distinction has been made, and in my opinion creates an unjust result: there should be no penalty for saving the courts time by asking them to hear two matters at once.  Needless to say, it leaves my court battle over my 2015 gun license application dead, as although I can appeal to the U.S. Supreme Court, it is highly unlikely that they have interest in hearing such a case.

But, the fight is not over.  Stay tuned for Part XIV over the next month or two, in which we explore the contours of New York’s “proper cause” requirement. 🙂

Is It *Really* Impossible To Get A Gun License in NYC? (Part XII — U.S. Court of Appeals)

This is the twelfth 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), Part XI (Federal Court Refuses Challenge). 

Total Time Spent So Far: 67 hours
Total Money Spent So Far: $2,286

appeal-brief-coverWe left off four months ago when the U.S. District Court for the Southern District of New York dismissed my federal challenge to New York’s gun licensing scheme.  After being denied leave to amend the complaint to fix a technical defect (because no matter what I fixed, the court would still dismiss my complaint, the court ruled), I immediately filed a notice of appeal to the U.S. Court of Appeals for the Second Circuit.  The Court of Appeals is the court directly below the U.S. Supreme Court.

Once you file a notice of appeal, the parties then file briefs — first the appellant, then the appellee, and then the appellant gets to reply.  Often the court will then allow for oral arguments.  There was one more odd requirement here, which is that the Second Circuit does not let attorneys file pro se appeals without being admitted to the court, and so I had to apply for admission and pay another $221 just to represent myself.  I know of no other court with this requirement, although I don’t particularly mind being admitted to that court for future work.  I’m happy to announce that I’ve been admitted to the bar of the Second Circuit.

With that small detour taken care of, I filed my opening brief earlier this week.  I asked the Court of Appeals to consider three main points:

  1. The requirement that an applicant show “need” greater than the average citizen before they may bear arms is unconstitutional. The district court had no choice but to rule against me on this matter since the appeals court has already set (bad) precedent, but now that we’re at the appeals court, they are free to modify their existing precedent by hearing the matter with the full court (“en banc“).
  2. Several application questions were challenged as invasive fishing expeditions.  The lower court failed to apply the proper test.  The test is whether the questions are substantially related to an important government interest, and the judge essentially deferred to the NYPD as to whether there was a “substantial relation” instead of conducting her own analysis of whether the government’s interest in preventing gun crime could be accomplished even if the application were toned down.
  3. Retired NYPD gets a free pass on the “proper cause” requirement, despite the city providing no evidence that as a general matter, all retired cops have a reason greater than the average citizen to carry a gun.  This seems like an equal protection violation to me, but the district court found, without explanation, that retired cops are legally dissimilar to me and that justifies the disparity.  The city should have been required to provide some evidence of the same.

My brief was not particularly long for an appellate brief raising three distinct points, mostly because the outcome of the case is less dictated by whether my writing is compelling and more based on the outcome of a case about to be heard in the U.S. Supreme Court in 6 weeks: N.Y.S. Rifle & Pistol Ass’n v. City of New York.  In NYSPRA, several NYC gun owners with “premise” licenses (allowing them to keep guns at home but not carry them) sued the city for preventing them from taking their guns to gun ranges outside the city or to second homes.  NYC is unique in the entire country for its law preventing premises owners from transporting their guns — even unloaded in a locked container in the trunk of their car — and whether such a law is constitutional turns on whether the way the Second Circuit has looked at gun rights cases is correct.  A win for NYSPRA would require the Second Circuit to take a new approach in my case, and most legal commentators expect the Supreme Court is likely to reverse the Second Circuit here, based on the addition of two conservative judges and based on the court’s slapping down of several pre-argument motions by the city begging them not to hear the case.

I’ve also asked the Second Circuit to withhold judgment until NYSPRA is decided.  This won’t delay the case too much, as the city still gets to file their brief and I get to reply after that, so it would be unlikely there would be a decision until 2020 anyway.  I will update you all once the opposition and reply have been filed.

Corbett v. City of New York – Appellant’s Brief (.pdf)

Is It *Really* Impossible To Get A Gun License in NYC? (Part XI — Federal Court Refuses Challenge)

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.

Corbett v. City of New York – Dismissal Order (.pdf)

Justice is Slow: TSA Case Waiting 2 Years, Gun Rights Case Now 5 Months

Fully Briefed in 2017

I have two significant cases pending at the moment:

My readers regularly ask me (in comments, on Twitter, by e-mail, etc.) for updates, and my answer is always the same: I’ll post them as soon as I have them.  The gun rights case above has had the government’s motion to dismiss pending before the court, fully briefed (that is, all parties have been completely heard and we are just waiting on a ruling), for 5 months.  Especially considering the government shutdown earlier this year, that’s not abnormal.

However, yesterday marked the 2 year anniversary of the TSA case being fully briefed before the U.S. Court of Appeals for the Eleventh Circuit, which has neglected the case for that amount of time.  This is not the usual amount of time to wait on an appeal, so I sent that court an anniversary card this afternoon.  I wouldn’t exactly say that courts “appreciate” reminders that they are taking too long, but at some point, the prejudice to my case and our rights outweighs the risk of offending a judge’s feelings.

There is no statutory limit to how long a court can take, although courts often rule within 6 months because they have to report to Congress when cases take longer.  Be patient with me — and I promise I’ll post updates as they come.

 

Is It *Really* Impossible To Get A Gun License in NYC? (Part X — Federal Lawsuit Filed)

This is the tenth 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). 


Federal Gun License ComplaintIn June, New York’s highest court refused to hear my challenge to New York City’s practice of giving gun licenses only to those with the right “connections” to the government — connections being bribe money, literally being a rock star, or just having friends in the right places.  Since the U.S. Supreme Court confirmed that Second Amendment rights are applicable to individuals without regards to “militia membership” in 2008, the New York Court of Appeals has plugged its ears to literally every case to come before it that asked the court to conform New York law to the Supreme Court’s mandate (as they must).

My state remedies now exhausted, I turn to the federal courts for help.  This morning, I filed a lawsuit in the United States District Court for the Southern District of New York against the City for its refusal to allow the ordinary, law-abiding citizen to arm themselves.

Full Complaint: Corbett v. City of New York – Complaint with Exhibits (.pdf)

If you’ve been following along, many of the arguments match up with those in the New York courts.  But, there’s a couple new things.

First, there have been some good decisions in other federal courts as of recent.  On the west coast, the 9th Circuit last month struck down Hawaii’s ban on citizen gun licenses in Young v. Hawaii (.pdf).  On the east coast, the D.C. Circuit struck down the same last year in Washington D.C. in Wrenn v. D.C.  These updates may or may not persuade the 2nd Circuit that covers New York, but they definitely make it more likely that the U.S. Supreme Court will hear the case.

Second, I’m adding a new equal protection claim that I don’t think has ever been brought here.  “Equal protection” is a part of the 14th Amendment to the U.S. Constitution that requires the government to treat everybody similarly unless there are really good reasons not to.  In this case, the main problem is New York’s “proper cause” requirement, which (in New York City and a handful of other counties in the state) demands that citizens show a reason greater than that of an ordinary citizen to get a license.  However, New York City exempts retired police officers from this proper cause requirement, even though there’s really no logical relationship between being a retired cop and “needing” a gun.  This brings up a classic equal protection scenario: if the NYPD wants to let its retired cops carry, it has to let me carry too.  If the court agrees, the City may have a choice between taking away guns from retirees or giving us plebs our constitutional rights — a political quagmire indeed.

The case is no. 18-CV-7022 and was assigned to U. S. District Judge Katherine Polk Failla, an Obama appointee.  The City will be served today and will have 3 weeks to craft a reply.  More updates then.

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