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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 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:

  1. 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.
  2. 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.
  3. 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.

 


Fighting for civil rights in court is expensive!  Want to contribute to the fight against government assholery? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

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… 🙂


Fighting for civil rights in court is expensive!  Want to contribute to the fight against government assholery? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

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