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).
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.