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

We 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:

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“).
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.
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)

October 17, 2019 9

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.

March 19, 2018 14

$50K Judgment Awarded Against NYC Nightclub Security Firm for Groping During “Security Search”

A year ago yesterday, I filed suit against now-defunct New York nightclub “Flash Factory” and their security firm “Ward Security Inc.” (of New York, no apparent relation to same-name security firms in Florida and England) for an invasive door search policy that involved full-hand grabbing of the genitals of male attendees and inside-the-bra searches for female attendees, all with no advanced warning of the nature of the search. A girlfriend and I were shocked to encounter their “actually worse than TSA” pat-down on the way into a music event in December 2016 and were groped before we had a chance to refuse consent. A search of the Internet showed at least a dozen complaints about this by others and they refused our attempts to try and settle the matter with a policy change, so we took it to the courthouse.

Last week, N.Y. Supreme Court Judge Gerald Lebovits awarded my co-plaintiff and I a default judgment of $50,000 against Ward Security after they refused to show up in court despite repeated service and notice. The order, dated January 11th, 2018 but entered on February 8th, 2018, thanks to the efficiency of the New York court system, further orders that the case continue against Flash Factory itself, which has shown up to court and appears to be using the, “it’s not our fault what our own security did” defense. As I previously posted, this defense simply doesn’t work, even if you call your security “independent contractors” and shut your eyes to what they do. It doubly doesn’t work when you’re on notice that a dozen other people have complained about the same thing.

Our goal is to get these practices to stop, and the only tool at our disposal is a request for money damages, as an order requiring them to stop would require us to show potential future harm to us. But, money damages have the same effect, as once one party gets a judgment, the company knows that if it doesn’t stop, it will have more of the same.

“I’m thankful for this partial victory. It’s good to know that someone is listening to us, but we’re not done fighting by any means. These practices have to change, and venues like Flash Factory need to know that.”

~ Elise Domyan, Co-Plaintiff

A word to the wise: if your business gets sued and has any assets, including accounts receivable (that is, it’s still doing any business whatsoever), ignoring a lawsuit is a bad way to go. New York law allows a process for collection against businesses similar to the garnishment of wages against individuals, whereby I can require Ward Security’s clients to withhold payment for services, but the process against a business requires them to withhold 100% of the pay instead of a fraction as they do in wage garnishment. Security firms are also required to post a surety bond at the time they apply for a license — I’ll be taking that, thank you very much.

Corbett & Domyan v. Flash Factory – Default Judgment Granted against Ward Security, Inc. (.pdf)

February 15, 2018 9

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).

We’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)

February 12, 2018 24

Is It Really Impossible To Get A Gun License in NYC? (Part III — NYPD Sued Over Requirement that License Applications Give “Good Reason”)

nysupremecourt — New York County Supreme Court

Over the last year I’ve documented the process of applying for a license to carry a handgun in New York City. Part I described the initial application process, requiring an incredible amount of paperwork, money, and time, and the scheduling of an in-person interview. Part II described the interview, as well as the eventual “NOTICE OF DISAPPROVAL” that ended up at my door, letting me know that there was no problem with my background, but I simply did not give a good enough “reason” for them to allow me to exercise my Second Amendment rights.

For Part III, I’m pleased to announce that I’ve taken up the fight in court with a lawsuit challenging the constitutionality of the City of New York’s interpretation of state laws that effectively allow the NYPD to deny a license whenever it wants. I’ve additionally challenged the NYPD’s refusal to fulfill a Freedom of Information Law request, as well as 3 of the most absurd questions on the application form.

Beginning where we left off in Part II, after receiving the rejection letter, I filed an appeal with the NYPD itself, asking them to reconsider the decision of the commanding officer of the licensing division, Deputy Inspector Michael Endall, to deny my license. I should really say the former commanding officer of the licensing division — about 2 weeks after he signed my rejection letter, he was removed from his post after a federal investigation uncovered that his subordinates were accepting bribes in exchange for approving gun license applications. At least one officer under D.I. Endall’s command has so far pled guilty to corruption charges, and another will face trial shortly.

Departmental drama aside, as you can guess, I received a reply to my administrative appeal by Director of Licensing Division Thomas M. Prasso telling me to pound sand. As best I can gather, the division has an officer head and a civilian head, and D.I. Endall was the former while Mr. Prasso was the latter. This letter sets the clock ticking for a state court challenge, giving me 4 months to file what New York calls an “Article 78 Petition,” so named after the section of the law that allows people to challenge the final decisions of administrative agencies, so long as they do so within 4 months. (Note that I could file in federal court directly, since my federal constitutional rights are in play, but let’s give the state a chance to correct itself first.)

Corbett v. City of New York IV – Petition & Complaint (.pdf), Case No. 158273/2016

There are 3 separate challenges within this lawsuit:

First and foremost, NY Penal Law § 400.00(2)(f) specifies that a license should be issued when an applicant shows “proper cause.” The City of New York (as well as Westchester County, FWIW) interprets this to mean “a good reason that we approve of” rather than “filled out an application and is not disqualified.” In particular, the city requires that applicants show a greater need than that of the general public (!!), so “I want to defend myself” is not good enough while “I want to defend myself because I regularly carry around bags of diamonds” probably is. Virtually all of the rest of the state interprets this the other way, granting licenses to individuals who are U.S. Citizens with clean criminal records. The “proper cause” requirement, as interpreted by New York City, is not only unconstitutional (imagine having to convince the government that you had “proper cause” to speak freely, practice your religion, say “no” to a search without a warrant, etc.), it leads to decisions that are arbitrary at best, and influenced by corruption as we’ve seen above at worst.
Second, I challenged 3 questions in particular. These three questions ask if you’ve ever been fired from a job, ever used painkillers or sedatives (under a doctor’s orders during/after surgery counts), and if you’ve ever testified under oath anywhere in the country. Saying “yes” to any of these questions extends the application process, requiring you to explain yourself. These three questions are highly invasive, not protected by, e.g, HIPAA confidentiality requirements, not evaluated by any professional qualified to do so (there are certainly no doctors in the NYPD Licensing Division qualified to say if your prescription regimen would make you unfit to have a gun), and are generally irrelevant for any purpose other than giving the NYPD an excuse — not a reason — to deny the license applications of good, qualified citizens.
Third, after my application was denied, I sent the NYPD a Freedom of Information Law request (Exhibit C of the petition above), asking for every application for a gun license in a 3 month period with all personally identifying information redacted. My intent here was to see whether the NYPD was consistent when considering applications or was granting preference to VIPs. The NYPD said that they would not fulfill my request because doing so would be invasive to privacy and would interfere with law enforcement (Exhibit D of the petition). How releasing these records could possibly do either of those things is a mystery to me, and therefore I’ve asked the court to review it.

I’m hopeful that this petition may push the NYPD to a more reasonable licensing scheme. Despite people telling me that the NYPD’s rules are challenged all the time, I wasn’t able to find a challenge to the “proper cause” requirement in this state in the last 5 years, and never has the proper cause requirement been challenged in the context of the state’s ban on open carry + the Supreme Court’s decision that the right to bear arms is applicable to individuals and assertable against the states. Whether you think we need more or fewer guns in this country, I hope you’ll agree that the licensing scheme should at least be fair, and to that extent support my reform against the NYPD’s “licenses only if we want to give them” scheme.

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October 3, 2016 35

Is It Really Impossible To Get A Gun License in NYC? (Part II)

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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May 16, 2016 19

Tag: nyc