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 Jonathan Corbett, Civil Rights Attorney

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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)

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 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 II)

disapproval
Not so fast, Mr. Corbett…

In March I wrote Part I of my journey to see if the rumors are true that it’s impossible for the average citizen to get a license to carry a handgun in New York City.  Part I described the application, $430 filing fee, and then the follow-up where the City asked for more than 2 dozen additional pieces of documentation, all of which I provided but could not seem to get in touch with the NYPD officer assigned to investigate my application.

Well, just a day after posting and sharing on Twitter with a tag to NYPD’s official @NYPDnews account, which spiked traffic to the blog on the order of several thousands of viewers, I suddenly got an e-mail from the licensing officer saying that he noticed we had difficulty reaching each other and scheduling an interview.   I’ll never know if making it public was what did it, but I suspect it may have helped.  (BTW, if you don’t yet follow me on Twitter, add me!)

I met with Officer Barberio, who was a friendly guy and took only a few minutes of my time to tell me that my background was clear but my “reason” for wanting a license probably wouldn’t make it past the higher-ups that would have a look at the application.  You see, New York law requires people who want to exercise their right to bear arms to give a reason.  The reason can be self-defense, but the applicant, apparently, must show a need for self-defense greater than the average citizen.  Gun licenses in New York are issued by county, and many counties apparently are lenient on this requirement, but not those comprising New York city.

Officer Barberio also clarified a few anomalies regarding the paperwork.  He explained that despite the forms available from the NYPD stating that one must have a business reason for applying to carry a handgun, you can ignore that part and state a personal reason.  He explained that the requirement to have your roommate’s consent, if you live with someone else, isn’t a bar to getting a license, but would result in them interviewing your roommate.  And, he explained that reference letters are no longer required, even though his form letter to me weeks prior insisted that they are.

About 3 weeks later, a letter appears from the NYPD.  Its title was “NOTICE OF DISAPPROVAL,” and explained the NYPD’s position regarding the requirement of showing a need.  The letter cited Kachalsky v. Cacace, by which it really meant Kachalsky v. County. of Westchester, 701 F.3d 81 (2d Cir. 2012), wherein the U.S. Court of Appeals for the Second Circuit upheld the provision of New York law that allowed the state to demand a “reason.”

The only problem?  In the meantime, two other circuits of the Court of Appeals have ruled otherwise.   Middle America got its decision in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012, Posner, J.) and the west coast got it in Peruta v. San Diego, 742 F.3d 1144 (9th Cir. 2014).  Peruta is pending an en banc (larger set of judges) review that should be (re-)decided any day now.  I shall wait for that decision before I file suit, and in the meantime have filed an administrative appeal with the NYPD.

Stay tuned for Part III this summer… 🙂


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