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 Jonathan Corbett, Civil Rights Attorney

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Gun Rights

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.

Is It *Really* Impossible To Get A Gun License in NYC? (Part VIII — Appeal to N.Y. High Court)

This is the eighth 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!).


 

Motion for Leave to Appeal to N.Y. Court of AppealsThe U.S. Supreme Court has made pretty clear that a “total ban” on any particular gun right is unconstitutional.  They seem to be pretty clear that it doesn’t matter whether the total ban is only on the carrying of weapons, or on all ownership, or even on certain classes of weapons.  No total bans.

But, what is a “total ban?”  According to the appellate court that denied my appeal last month, “New York’s handgun licensing scheme does not impose any blanket or near-total ban on gun ownership and possession.”  But if an ordinary citizen with no criminal record is denied a license, denied an administrative appeal, denied a court petition, and denied an appeal of that denial, how does that not amount to a total ban for me and for every other ordinary citizen with no criminal record?  What, exactly, would the state have to do to have a “total ban” in the eyes of N.Y. Supreme Court, Appellate Division?

Yesterday I asked the highest court in the state, the N.Y. Court of Appeals, to settle the matter.  The court appears to have passed on pretty much every gun licensing case sent its way since the U.S. Supreme Court declared in 2008 that gun ownership is an individual right that requires no militia membership, and clarified in 2010 that the Second Amendment applies to the states.  The Court of Appeals’ failure to consider the issue in about a decade, after important changes in constitutional law at the federal level, have resulted in a patchwork of decisions from the trial and appellate courts, all of which have invented their own rules.

Appealing to the high court of New York is actually a pleasant experience compared to New York’s intermediate appellate court, which requires 8 copies of every document with special tape binding, a PDF version with digital bookmarks, and a $315 fee, among other weird requirements.  And it’s a daydream compared to the U.S. Supreme Court, which requires 40 copies (!!) of everything, a $300 filing fee, and a garbage bag (really).  The Court of Appeals requires only 7 copies (double-sided ok), a $45 filing fee, and no choice of drawstring or twist-tie.

In the meantime, the federal criminal trials of several officers in the NYPD’s Licensing Division for taking bribes in exchange for gun licenses continues.  One officer has pled guilty and is testifying on behalf of the feds:

David Villanueva, an ex-supervisor in the NYPD’s License Division, said he and other cops — including officers Richard Ochetel and Robert Espinel and Lt. Paul Dean — were on the take for years from so-called gun expeditors.

In exchange, the officers doled out pistol permits like candy — even to people who should not have had them, Villanueva said.

One expeditor, he said, may have had ties to organized crime. Another got help with 100 gun permits over the years — “none” of which should have been approved.

Source: New York Post

Here’s to hoping that while the Court of Appeals clarifies New York law, it also takes up my invitation to end the corruption in the Licensing Division.

Corbett v. City of New York IV – Motion for Leave to Appeal (.pdf)

Is It *Really* Impossible To Get A Gun License in NYC? (Part VII — Corruption? You Can’t Prove It!)

This is the seventh 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).


Appellate Division: Affirmed.Yesterday the Appellate Division of the N.Y. Supreme Court affirmed the lower court’s ruling dismissing my challenge to New York’s corrupt practice of issuing gun licenses only to those whom the NYPD feels have a “good reason” to have a gun — a practice that has resulted in corruption for a century now.  This result is, of course, not surprising: as the landmark case District of Columbia v. Heller, 554 U.S. 570 (2008), approaches its 10 year anniversary, New York courts still petulantly resist the mandate that firearm ownership is a right — not a privilege, and not requiring membership in a “militia” — subject to intermediate scrutiny or higher.

In this case, the Appellate Division has finally used “intermediate scrutiny” by name, which is a slow step towards acceptance of Heller.  Intermediate scrutiny is the lowest level of scrutiny that the U.S. Supreme Court has allowed for gun laws since Heller, and it requires that a regulation be: 1) substantially tailored, 2) to an important government interest.

As should be obvious, that’s a 2-part test, and while the “important government interest” part is easily satisfied (it’s certainly reasonable for the government to want to protect its citizens from gun violence), the Appellate Division has plugged their ears to the second part of the test.  During oral arguments, I specifically asked the judges to require that the most vague, invasive, and irrelevant questions on the gun license application, all of which ask if you have ever done something (e.g., taken a prescription painkiller under doctor supervision) be narrowed by temporal or other boundaries:

Justice Sweeny: “[The disputed questions are] not the be all and end all.  It could very well be the basis for further investigation.  Why is that not relevant?”

Jon: “Right, because they could narrowly tailor it.  They could say, ‘have you used [prescription painkillers] for more than a week?’  Have you done it within the last 5 years?  Any of these things would allow them to more narrowly tailor it.”

[Watch Oral Arguments] [More Details About Oral Arguments]

Their decision, of course, is silent on the matter, stating that the rules “are justified because they serve to promote the government’s” interest without any thought to tailoring.  In affirming the court below, the Appellate Division has made it clear that they refuse to set any boundaries whatsoever on gun license restrictions in this state.

Further, the court continues to ignore the persistent corruption in the NYPD Licensing Division:

“Petitioner has not established that the denial of his application was the result of corruption or other impropriety”

This ignores the fact that my original case in the lower court was dismissed before I had a chance to gather or present any such facts.  I got no period of “discovery” or any other procedure by which I could demand the turning over evidence.  Meanwhile, officers literally in the office where and when I submitted my gun license application have pled guilty to federal corruption charges, admitting they accepted cash in exchange for approval of gun licenses.  Under these circumstances, due process is lacking whether I can prove that my individual case was affected or not.

I look forward to petitioning New York’s highest court, the Court of Appeals, to hear this case.

Is It *Really* Impossible To Get A Gun License in NYC? (Part VI — N.Y. Appeals Court Not Interested in Ending NYPD Corruption)

This is the sixth 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).


 

Courtroom at N.Y. Appellate Division, First Department
This is seriously the courtroom. Budget for stained glass dome? Yep. Budget to notify litigants when their cases are scheduled for oral arguments? Eh, that sounds pricey.

A few weeks ago, I checked the calendar of the N.Y. Appellate Division, First Department, and noticed my gun licensing case — challenging the constitutionality of allowing the NYPD to decline licenses for failing to provide a “good reason” to grant them amid a plague of cash-for-licenses corruption scandals — was scheduled for oral arguments.  In any other court, I’d have received an e-mail or a letter noting the request for my presence, but apparently the First Department doesn’t roll that way.

Oral arguments in appeals are a fun exercise.  Appeals are 95% done in writing (“briefs”), and oral arguments are usually at the discretion of the court.  By the time oral arguments, if granted, come around, both sides have had their full say on paper.  And, in theory you come prepared with an argument, but about 15 seconds after you open your mouth in front of the group of judges looking down on you, you’ll hear, “Counselor, …” followed by continuous questions for the rest of your allotted time.  And, these questions are no softballs: they almost exclusively ask you about the parts of your brief that they feel were, well, less than convincing.

So, while it is a surprise that the court has the technical capacity to live stream the arguments, it’s no surprise that they didn’t go easy on me.  But one thing I did find a bit unusual: the judges had no interest in hearing the corruption aspect of the case:

Jon: I’m asking for two things in this case: number one, for the court to end a 100-year tradition of corruption in the NYPD licensing division…

Justice Gesmer: I don’t see how that issue is before us.

Jon: Your Honor, the issue was thoroughly briefed.  Essentially…

Justice Gesmer: Well I understand it’s briefed, but there’s no factual record before us.

There’s no “factual record” — that is, evidence presented in the lower court — at all, because the lower court dismissed my petition before any fact gathering could take place.  The record from the court below is literally just the City’s motion to dismiss, my opposition to that, and the rubber-stamping of that motion in one of the most poorly written opinions I’ve personally had issued against me in nearly a decade of litigating civil rights issues.

The correct decision for the Appellate Division would be to remand my case to the lower court to develop that factual record.  I’ve properly alleged a denial of due process (an official who takes bribes clearly cannot adjudicate fairly), and I should be entitled to prove it, via a period of discovery where I can depose the officers of the licensing division.  But realistically, I don’t expect any relief from this court.  The decision from this court may take a couple of months, and then in all probability it’s on to New York’s highest court, the Court of Appeals.

Is It *Really* Impossible To Get A Gun License in NYC? (Part V — Filings Complete in Appeal in N.Y. Supreme Court, Appellate Division)

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).


Opposition to Corbett Gun License AppealWe’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)

Is It *Really* Impossible To Get A Gun License in NYC? (Part IV — An Appeal Amid Massive Corruption Scandal)

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…

gun-license-app-div-coverWe 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:

  1. 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.
  2. 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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