Search

Professional Troublemaker ®

 Jonathan Corbett, Civil Rights Attorney

Tag

article 78

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)

Blog at WordPress.com.

Up ↑