SEIBEL, District Judge.
Before the Court are the Motion to Dismiss of Defendants Susan Cacace, Jeffrey A. Cohen, Albert Lorenzo, and Robert K. Holdman (the "State Defendants"), (Doc. 30);
For purposes of deciding the Motions to Dismiss, I assume the facts (but not the conclusions) as alleged in the First Amended Complaint to be true, and for purposes of deciding the Motion and Cross-Motion for Summary Judgment, the following facts are undisputed, except where noted.
The instant case presents a facial and as-applied constitutional challenge to New York Penal Law ("NYPL") Section 400.00(2)(f), which provides that licenses to "have and carry concealed" handguns "shall be issued" to "any person when proper cause exists for the issuance thereof." Plaintiffs claim that the statute violates their rights under the Second Amendment to the U.S. Constitution as recognized in the Supreme Court case District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and made applicable to the states in McDonald v. City of Chicago, ___ U.S.___, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). To give proper context to Plaintiffs' claims, a brief
The NYPL provides for the licensed possession of handguns in New York State. Article 265 of the NYPL imposes a general ban on the possession of firearms, see N.Y. Penal Law § 265.01(1), which includes handguns, id. § 265.00(3)(a), but creates various specific exemptions from that ban, see id. § 265.20, including "[p]ossession of a pistol or revolver by a person to whom a license therefor has been issued as provided under [NYPL] section 400.00,"
The provision at issue in this case is Section 400.00(2)(f), which provides that a license "shall be issued to . . . have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof." Id. § 400.00(2)(f). There is no provision for a license to carry an unconcealed weapon, so for applicants who want to carry a weapon and do not fit in one of the occupational categories, the only way to obtain a license to carry a handgun—whether openly or not—is to meet the requirements, including "proper cause," of the licensing provision for concealed weapons. Though not defined in the NYPL, the term "proper cause" as used in Section 400.00(2)(f) has been interpreted by New York state courts to mean "a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." Bando v. Sullivan, 290 A.D.2d 691, 735 N.Y.S.2d 660, 662 (3d Dep't 2002) (internal quotation marks omitted); Kaplan v. Bratton, 249 A.D.2d 199, 673 N.Y.S.2d 66, 68 (1st Dep't 1998) (internal quotation marks omitted); Williams v. Bratton, 238 A.D.2d 269, 656 N.Y.S.2d 626, 627 (1st Dep't 1997) (internal quotation marks omitted); Klenosky v. N.Y. City Police Dep't, 75 A.D.2d 793, 428 N.Y.S.2d 256, 257 (1st Dep't 1980), aff'd, 53 N.Y.2d 685, 439 N.Y.S.2d 108, 421 N.E.2d 503
The application process for licenses under Section 400.00(2)(f), often called "full-carry permits," is administered locally. See N.Y. Penal Law § 400.00(3)-(4). Applications for full-carry permits in Westchester County request information concerning, for example, discharge from employment or the armed forces for cause, criminal history, treatment for alcoholism or drug use, history of mental illness, previous firearm licenses, and physical conditions that could interfere with safe and proper use of a handgun. (State Defs.' 56.1 ¶¶ 16-17; Pls.' Resp. 56.1 ¶¶ 16-17.)
Once the investigation is complete, an investigation summary is compiled and, along with the application, submitted to a County Police lieutenant, the Chief Inspector of Administrative Services, and the Commissioner or a Deputy Commissioner for review. (State Defs.' 56.1 ¶ 21; Pls.' Resp. 56.1 ¶ 21.) Based upon that review, the Chief Inspector and Commissioner or Deputy Commissioner generate a recommendation as to whether the full-carry permit should be approved or disapproved, (see, e.g., Pls.' MSJ Exs. C, E, G),
Individual Plaintiffs are all United States citizens who reside in Westchester County. (State Defs.' 56.1 ¶¶ 1-5; Pls.' Resp. 56.1 ¶¶ 1-5.) Plaintiff SAF is a non-profit membership organization incorporated
In May 2008, Plaintiff Kachalsky applied for a full-carry permit to be able to carry a concealed handgun while in public. (State Defs.' 56.1 ¶ 25; Pls.' Resp. 56.1 ¶ 25.) In his application, Kachalsky asserted that he believed he satisfied Section 400.00(2)(f)'s "proper cause" requirement because he was a U.S. citizen and therefore entitled to "the right to bear arms" under the Second Amendment, "we live in a world where sporadic random violence might at any moment place one in a position where one needs to defend oneself or possibly others," and he was "a law-abiding citizen" who had neither "been convicted of a crime" nor "assaulted or threatened to assault another person." (State Defs.' 56.1 ¶ 26; Pls.' Resp. 56.1 ¶ 26.) Upon reviewing Kachalsky's application and completing a corresponding investigation, the Department of Public Safety recommended that the permit be denied. (State Defs.' 56.1 ¶ 27; Pls.' Resp. 56.1 ¶ 27.) The application, investigation file, and recommendation were forwarded to Defendant Cacace, who, acting as licensing officer, reviewed those materials and issued a decision and order, dated October 8, 2008, denying Kachalsky's application. (State Defs.' 56.1 ¶¶ 28-29; Pls.' Resp. 56.1 ¶¶ 28-29.) Cacace observed that Kachalsky failed to state "any facts which would demonstrate a need for self protection distinguishable from that of the general public," and that "based upon all the facts and circumstances of this application, it is my opinion that proper cause does not exist for the issuance of an unrestricted `full carry' pistol license." (State Defs.' 56.1 ¶ 30; Pls.' Resp. 56.1 ¶ 30.)
In March 2009, Plaintiff Nikolov applied for a full-carry permit. (State Defs.' 56.1 ¶ 35; Pls.' Resp. 56.1 ¶ 35.) In her application, Nikolov asserted that she believed she satisfied Section 400.00(2)(f)'s "proper cause" requirement because she was a "law-abiding citizen," she possessed a concealed weapon permit in the State of Florida and had neither brandished nor discharged her weapon outside of shooting ranges there, she had completed three firearms safety courses with the National Rifle Association within the previous three years, her experience as a pilot and flight instructor gave her the "calm demeanor. . . essential when either involved in or a witness to a potentially dangerous situation," and she was a transgender female subject to a higher likelihood of being the victim of violence. (State Defs.' 56.1 ¶ 36; Pls.' Resp. 56.1 ¶ 36.) Upon reviewing Nikolov's application and completing a corresponding investigation, the Department of Public Safety recommended that the permit be denied. (State Defs.' 56.1 ¶ 37; Pls.' Resp. 56.1 ¶ 37.) The application, investigation file, and recommendation were forwarded to Defendant Cohen, who, acting as licensing officer, reviewed those materials and issued a decision and order, dated October 2, 2008, denying Nikolov's application. (State Defs.' 56.1 ¶¶ 38-39; Pls.' Resp. 56.1 ¶¶ 38-39.) Cohen observed that "[c]onspicuously absent" from Nikolov's application "is the report of any type of threat to her own safety," and "notwithstanding her accomplishments and unblemished record, it cannot be said that the applicant has demonstrated that she has a special need for self-protection distinguishable from that of the general public." (State Defs.' 56.1 ¶ 39; Pls.' Resp. 56.1 ¶ 39; see Tomari Decl. Ex. O.)
In June 2010, Plaintiff Nance applied for a full-carry permit. (State Defs.' 56.1 ¶ 47; Pls.' Resp. 56.1 ¶ 47.) At that time, Nance was licensed to have a handgun for the purpose of target shooting only. (State Defs.' 56.1 ¶ 46; Pls.' Resp. 56.1 ¶ 46.) In his application, Nance asserted that he believed he satisfied Section 400.00(2)(f)'s "proper cause" requirement because he was a "citizen in good standing in the community," he was "steadily employed and stable," he was "of good moral character," and the permit would facilitate his efforts to become involved with competitive shooting and gun safety instruction. (State Defs.' 56.1 ¶ 48; Pls.' Resp. 56.1 ¶ 48.) Upon reviewing Nance's application and completing a corresponding investigation, the Department of Public Safety recommended that the permit be denied.
As with Nance, in June 2010, Plaintiff Marcucci-Nance applied to amend her Pistol permit from a target-shooting permit to a full-carry permit. (State Defs.' 56.1 ¶¶ 54-55; Pls.' Resp. 56.1 ¶¶ 54-55.) In her application, she cited the same reasons as Nance for why she believed she satisfied Section 400.00(2)(f)'s "proper cause" requirement, (State Defs.' 56.1 ¶ 56; Pls.' Resp. 56.1 ¶ 56), and her application was similarly addressed: after an investigation, the Department of Public Safety recommended denial, and Holdman, to whom the application materials were forwarded, denied the application on September 9, 2010, citing the same concerns as he did with respect to Nance. (State Defs.' 56.1 ¶¶ 57-60; Pls.' Resp. 56.1 ¶¶ 57-60.)
Finally, in July 2010, Plaintiff Detmer applied for a full-carry permit. (State Defs.' 56.1 ¶ 41; Pls.' Resp. 56.1 ¶ 41.) Like Nance and Marcucci-Nance, Detmer was at that time licensed to have a handgun for the purpose of target shooting only. (State Defs.' 56.1 ¶ 40; Pls.' Resp. 56.1 ¶ 40.) In his application, Detmer asserted that he believed he satisfied Section 400.00(2)(f)'s "proper cause" requirement because he was a federal law enforcement officer with the U.S. Coast Guard who, while on duty, regularly carried a .40-caliber pistol, and, as part of his training, had completed various courses concerning the use of his pistol. (State Defs.' 56.1 ¶ 42; Pls.' Resp. 56.1 ¶ 42.) The Department of Public Safety reviewed Detmer's application, conducted its investigation, recommended denial, and subsequently forwarded the file to Defendant Lorenzo, who, acting as licensing officer, reviewed those materials and denied the application. (State Defs.' 56.1 ¶¶ 44-45; Pls.' Resp. 56.1 ¶¶ 44-45.) Lorenzo informed Detmer of this decision by letter dated September 27, 2010, in which he noted simply that there was "no justification" for issuing a full-carry permit. (State Defs.' 56.1 ¶ 45; Pls.' Resp. 56.1 ¶ 45.)
Individual Plaintiffs state that they have not re-applied for full-carry permits because they believe such acts would be futile, and that they would carry handguns in public but for their fear of arrest, prosecution, fine, and/or imprisonment. (Kachalsky Decl. ¶¶ 3-4; Nikolov Decl. ¶¶ 3-4; Nance Decl. ¶¶ 5-6; Marcucci-Nance Decl. ¶¶ 5-6; Detmer Decl. ¶¶ 6-7.)
As late as 2005, the Second Circuit, in rejecting a constitutional challenge to New York's handgun licensing scheme, held that the "Second Amendment's `right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts." Bach, 408 F.3d at 84. Three years
On July 15, 2010, less than a month after the Supreme Court issued its decision in McDonald, Kachalsky, Nikolov, and SAF filed the Complaint in the instant action. (Doc. 1.) On November 8, 2010, they joined Detmer, Nance, and Marcucci-Nance in filing a First Amended Complaint ("FAC"), (Doc. 18), the operative complaint for the purposes of the instant motions. In it, Plaintiffs assert claims under 42 U.S.C. § 1983 ("Section 1983") for violations of the Second Amendment and the Equal Protection Clause of the Fourteenth Amendment. Specifically, they claim that Section 400.00(2)(f)'s "proper cause" requirement violates the Second Amendment both facially and as applied to them, and that it classifies individuals on the basis of "irrelevant, arbitrary, and speculative criteria in the exercise of a fundamental right." (FAC ¶¶ 41, 43.) Plaintiffs seek to enjoin enforcement of Section 400.00(2)(f)'s "proper cause" requirement, as well as an order directing Defendants to issue Plaintiffs permits, declaratory relief consistent with the requested injunctive relief, costs, and fees. (Id. at 11.) Defendants filed Motions to Dismiss the First Amended Complaint, (Docs. 30, 33); Plaintiffs filed a Motion for Summary Judgment, (Doc. 39); and the State Defendants filed a Cross-Motion for Summary Judgment, (Doc. 42).
Defendants' Motions to Dismiss largely concern threshold issues. As such, I consider these motions first. While Defendants briefly touch upon the question of Section 400.00(2)(f)'s constitutionality in these motions, they address that issue in far greater detail in briefing submitted in connection with the Motion and Cross-Motion for Summary Judgment. I therefore consider Defendants' constitutional arguments in conjunction with those motions.
Defendants bring their Motions to Dismiss under Federal Rules of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim.
"A case is properly dismissed for lack of subject matter jurisdiction under Rule
To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration, citations, and internal quotation marks omitted). While Federal Rule of Civil Procedure 8 "marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 129 S.Ct. at 1950.
In considering whether a complaint states a claim upon which relief can be granted, the court may "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determine whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. Deciding whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `show[n]'—`that the pleader is entitled to relief.'" Id. (second alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)).
When deciding a motion to dismiss, the Court is entitled to consider the following:
Weiss v. Inc. Vill. of Sag Harbor, 762 F.Supp.2d 560, 567 (E.D.N.Y.2011) (internal quotation marks omitted); accord Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir.2002). A document is considered "integral" to the complaint where the plaintiff has "reli[ed] on the terms and effect of [the] document in drafting the complaint." Chambers, 282 F.3d at 153 (emphasis omitted). Such reliance
Article III, Section 2 of the U.S. Constitution restricts federal court jurisdiction to "Cases" and "Controversies." U.S. Const. art. III, § 2; Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 381 (2d Cir.2000). "Constitutional standing is the threshold question in every federal case, determining the power of the court to entertain the suit." Leibovitz v. N.Y. City Transit Auth., 252 F.3d 179, 184 (2d Cir. 2001) (internal quotation marks omitted). To establish standing within the meaning of Article III,
Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 175 (2d Cir.2006) (alterations in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
The ripeness doctrine "is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction." Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (internal quotation marks omitted). Its purpose is to "ensure that a dispute has generated injury significant enough to satisfy the case or controversy requirement of Article III" and "prevent[] a federal court from entangling itself in abstract disagreements over matters that are premature for review because the injury is merely speculative and may never occur." Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 90 (2d Cir.2002). In determining whether a claim that challenges a law is ripe for review, the Court must consider whether the issue is fit for adjudication as well as the hardship to the plaintiff that would result from withholding review. Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Marchi v. Bd. of Coop. Educ. Servs., 173 F.3d 469, 478 (2d Cir.1999). "Standing and ripeness are closely related doctrines that overlap `most notably in the shared requirement that the [plaintiff's] injury be imminent rather than conjectural or hypothetical.'" N.Y. Civil Liberties Union v. Grandeau, 528 F.3d 122, 130 n.8 (2d Cir.2008) (second alteration in original)
With respect to Individual Plaintiffs, Defendants' arguments as to standing and ripeness are essentially one and the same: they argue that because Kachalsky and Nikolov failed to apply for full-carry permits post—McDonald, and because Detmer, Nance, and Marcucci-Nance's claims precede any state court ruling interpreting New York's "proper cause" requirement post—McDonald, their purported injuries are speculative. That is, they argue that Individual Plaintiffs' injuries have not yet manifested themselves in post-McDonald permit denials and/or adverse court rulings. I therefore consider the ripeness arguments together with and as a part of the standing inquiry. See, e.g., Grandeau, 528 F.3d at 130 n.8; Brooklyn Legal Servs., 462 F.3d at 225-26. I find that Plaintiffs have standing and that their claims are ripe.
"As a general rule, `to establish standing to challenge an allegedly unconstitutional policy, a plaintiff must submit to the challenged policy.'" Prayze FM v. FCC, 214 F.3d 245, 251 (2d Cir.2000) (quoting Jackson-Bey v. Hanslmaier, ¶5 F.3d 1091, 1096 (2d Cir.1997)); see Bach v. Pataki, 289 F.Supp.2d 217, 223 (N.D.N.Y. 2003) ("In many cases, requiring litigants to actually apply for a license before challenging a licensing scheme prevent[s] courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also . . . protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.") (alterations in original) (internal quotation marks omitted), aff'd, 408 F.3d 75. Each of the Individual Plaintiffs have submitted to Section 400.00(2)(f), having applied for, and subsequently been denied, full-carry permits under the statute. (FAC ¶¶ 26, 30, 32-37.) Defendants' characterization of Individual Plaintiffs' injuries as "speculative" ignores the plain fact that these very permit denials constitute actual, ongoing injuries not contingent upon any future event. Recent caselaw in the area of handgun regulation is instructive. Notably, in Parker v. District of Columbia, 478 F.3d 370 (D.C.Cir. 2007), aff'd sub nom. Heller, 554 U.S. 570, 128 S.Ct. 2783, the D.C. Circuit observed that "a license or permit denial pursuant to a state or federal administrative scheme [constitutes] an Article III injury," id. at 376, and that by dint of the fact that Heller applied for and was denied a registration certificate to own a firearm, he had standing to challenge the D.C. firearm registration system:
Id.
The D.C. Circuit recently reaffirmed this view in Dearth v. Holder, 641 F.3d 499 (D.C.Cir.2011). There, the plaintiff, an American citizen who lived in Canada, challenged a federal regulation prohibiting people living outside the United States from lawfully purchasing firearms in the United States. Id. at 500-01. The plaintiff sought to purchase firearms to stow
Id. at 502 (citations and internal quotation marks omitted).
Defendants' attempt to shift the focus of this inquiry to future, contingent events in an attempt to describe the purported injuries as "speculative" is unavailing. Defendants' reliance upon Golden v. Zwickler, 394 U.S. 103 [89 S.Ct. 956, 22 L.Ed.2d 113] (1969), demonstrates how their focus is misplaced. In that case, the Court determined that a plaintiff seeking to challenge a New York statute criminalizing the distribution of anonymous election campaign literature did not have standing where he sought only to distribute literature criticizing a particular congressman who, at the time the case was heard, had left the House of Representatives to begin a 14-year term on the New York State Supreme Court. Id. at 109-10 & n.4. [89 S.Ct. 956] The Court held that because "the prospect was neither real nor immediate of a campaign involving the Congressman, it was wholly conjectural that another occasion might arise when [the plaintiff] might be prosecuted for distributing the handbills referred to in the complaint," and his "assertion in his brief that the former Congressman can be `a candidate for Congress again' is hardly a substitute for evidence that this is a prospect of `immediacy and reality.'" Id. at 109 [89 S.Ct. 956]. (emphasis added). In sharp contrast to Golden, there is no contingency here upon which Individual Plaintiffs' injuries are conditioned; Defendants' permit denials have actually prevented—and indeed continue to prevent—Individual Plaintiffs from being able to exercise their alleged constitutional right. See Dearth, 641 F.3d at 503 (distinguishing Golden on similar grounds).
Further, Individual Plaintiffs' injuries may not be labeled as speculative, as Defendants argue, simply because they have failed to submit post-McDonald applications for full-carry permits. That state licensing officers might grant Individual Plaintiffs' second full-carry permit applications were they to submit such applications at some point in the future does not suggest that their current injuries are speculative—at most, it suggests that the continuation of their injuries past that point
Nor were Individual Plaintiffs required to bring their post-McDonald federal constitutional challenge in state court before resorting to this Court. It is well-settled that "[w]hen federal claims are premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3)—as they are here—[a plaintiff is] not required [to] exhaust[] . . . state judicial or administrative remedies." Steffel v. Thompson, 415 U.S. 452, 472-73, 94 S.Ct. 1433, 10 L.Ed.2d 492 (1974) (citing McNeese v. Bd. of Educ., 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); see Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)). This rule reflects "the paramount role Congress has assigned to the federal courts to protect constitutional rights." Id. Defendants argue that Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008), compels a finding that the case is premature for adjudication, but that case does not speak to the situation here, where a plaintiff challenges existing state court
SAF asserts both organizational and representational standing. While it is true that organizations can have standing on their own behalf when they have suffered injuries, see Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), SAF has not sufficiently alleged an injury. It maintains that it "promot[es] the exercise of the right to keep and bear arms" and engages in "education, research, publishing and legal action focusing on the [c]onstitutional right to privately own and possess firearms," (FAC ¶ 6), but such activates, standing alone, are plainly insufficient to give rise to standing. SAF also maintains that it has "over 650,000 members and supporters nationwide." (Id.) An organization may sue on behalf of its members, but only if "[(1)] its members would have standing to sue in their own right, [(2)] the interests at stake are germane to the organization's purpose, and [(3)] neither the claim asserted nor the relief requested requires individual members' participation in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). SAF cannot meet the first requirement, as it fails to allege anywhere in the First Amended Complaint that it has any members who have applied for and been rejected full-carry permits under Section 400.00(2)(f). SAF alleges in conclusory fashion that the various Defendants have "enforced the challenged laws, customs and practices against . . . SAF's membership," (FAC ¶¶ 7-11), but it has neither identified particular members who have standing, nor specified how they would have standing to sue in their own right. It therefore fails to satisfy the first requirement identified above. See, e.g., FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 235, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990).
Defendants argue that this Court should abstain from deciding this case under the doctrines laid down in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), and/or Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). I find that none of these abstention doctrines apply.
In Younger v. Harris, the Supreme Court held that federal courts must abstain from exercising jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings. 401 U.S. at 43-44, 91 S.Ct. 746. "Although the Younger abstention doctrine was born in the context of state criminal proceedings, it now applies with equal force to state administrative proceedings." Diamond "D" Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir.2002) (citing Ohio Civil Rights Comm'n v. Dayton Christian Schs., Inc., 477 U.S. 619, 627, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986)). "Younger abstention is required when
Younger abstention does not apply here because there are no ongoing state proceedings. "The Supreme Court has clearly held that a would-be plaintiff who has been subjected to a state proceeding which he seeks to challenge in federal court must first exhaust all available state appellate remedies. . . ." Kirschner v. Klemons, 225 F.3d 227, 234 (2d Cir.2000) (citing Huffman v. Pursue, Ltd., 420 U.S. 592, 608, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975)). Here, Kachalsky initiated an Article 78 proceeding in state court to challenge the denial of his full-carry permit application, but he exhausted all available state court remedies, appealing the Appellate Division's decision to the New York Court of Appeals, where his appeal was summarily dismissed. See Kachalsky II, 14 N.Y.3d at 743, 899 N.Y.S.2d 748, 925 N.E.2d 80. Once the Court of Appeals dismissed Kachalsky's appeal, there ceased to be an ongoing state proceeding with which lower federal courts were capable of interfering. See, e.g., Aretakis v. Comm. on Prof'l Standards, No. 08-9712, 2009 WL 1905077, at *5 (S.D.N.Y. July 1, 2009) (where New York Court of Appeals denied plaintiff's application for leave to appeal Appellate Division's order suspending his license to practice law, court held that "no `pending state proceeding' exists, and the Younger abstention doctrine cannot be applied"); Ponterio v. Kaye, No. 06-6289, 2007 WL 141053, at *6 (S.D.N.Y. Jan. 22, 2007) ("[Plaintiff] has litigated and lost his state claims up to the New York Court of Appeals. As Younger requires, he appears to have exhausted his state-court remedies.").
Nor are there any ongoing state proceedings with respect to the remaining Individual Plaintiffs, as none of them commenced state court proceedings to challenge the denial of their full carry permit applications. See Coastal Distribution, LLC v. Town of Babylon, 216 Fed.Appx. 97, 102 (2d Cir.2007) (where plaintiff did not challenge zoning board of appeals' decision via an Article 78 proceeding, Younger did not apply; caselaw "gives no support to the proposition that the availability of an Article 78 action after the completion of state administrative proceedings renders them ongoing perpetually").
Pullman abstention applies when "difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided." Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984). In the Second Circuit,
Williams v. Lambert, 46 F.3d 1275, 1281 (2d Cir.1995) (internal quotation marks omitted). Abstention under this doctrine is limited to uncertain questions of state law because "[a]bstention from the exercise
As noted above, courts in New York have consistently interpreted Section 400.00(2)(f)'s "proper cause" requirement to mean "a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." See, e.g., Bando, 735 N.Y.S.2d at 662; Kaplan, 673 N.Y.S.2d at 68; Williams, 656 N.Y.S.2d at 627; Klenosky, 428 N.Y.S.2d at 257. Where, as here, state courts have settled upon an interpretation of the statute at issue, Pullman abstention is not warranted. See, e.g., Commack Self-Service Kosher Meats v. Rubin, 986 F.Supp. 153, 157-58 (E.D.N.Y. 1997) (Pullman abstention not applicable "[b]ecause there exist[ed] a well established interpretation of the . . . [l]aws by the New York state courts, and because the constitutional challenges raised by plaintiffs [were] not entangled in a skein of state law that must be untangled before the federal case can proceed") (internal quotation marks omitted).
The Burford abstention doctrine serves to "protect[ ] complex state administrative processes from undue federal interference." New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 362, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (internal quotation marks omitted). It does not, however, "require abstention whenever there exists such a process, or even in all cases where there is a potential for conflict with state regulatory law or policy." Id. (internal quotation marks omitted). A federal court should abstain under Burford
Id. at 361, 109 S.Ct. 2506 (internal quotation marks omitted); accord Dittmer v. Cnty. of Suffolk, 146 F.3d 113, 116 (2d Cir.1998). In evaluating whether the exercise of federal review would be disruptive of state efforts to establish a coherent policy, district courts should consider "(1) the degree of specificity of the state regulatory scheme; (2) the need to give one or another debatable construction to a state statute; and (3) whether the subject matter of the litigation is traditionally one of state concern." Hachamovitch v. DeBuono, 159 F.3d 687, 697 (2d Cir.1998).
Burford abstention does not apply here because Plaintiffs' claims do not present an "ambiguous state law issue," and do not seek to "involve federal courts in supervising, interrupting, or meddling in state policies by interfering in state regulatory matters"; instead, the claims present "a direct challenge to the constitutionality of a state statute, a controversy federal courts are particularly suited to adjudicate." Alliance of Am. Insurers v. Cuomo, 854 F.2d 591, 600-01 (2d Cir. 1988) (declining, on same grounds, to apply
Id. at *5 n. 6 (quoting Martin v. Stewart, 499 F.3d 360, 367 (4th Cir.2007)) (second, third, and fourth alterations, and emphases in original) (citations omitted). That rationale applies with equal force here and compels rejection of Defendants' arguments as to Pullman abstention.
Defendants argue that Kachalsky's Article 78 proceeding and the State Defendants' rejection of Individual Plaintiff's permit applications have claim preclusive effect on the Section 1983 claims currently before this Court. A federal court assessing the effect of a state court judgment looks to the law of the state in which the judgment was entered, Marrese v. Am. Acad. of Orthopedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985), here, New York. Under New York's res judicata doctrine,
In re Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 (2005) (citations and internal quotation marks omitted).
I find that Kachalsky's Article 78 proceeding does not bar him from bringing the instant as-applied and facial challenges to Section 400.00(2)(f). Whether a claim that was not raised in the previous action could have been raised therein "depends in part on . . . `whether the facts essential to support the second were present in the first.'" Marvel Characters, Inc. v. Simon, 310 F.3d 280, 287 (2d Cir.2002) (emphasis and internal quotation marks omitted). Consequently, res judicata "does not preclude litigation of events arising after the filing of the complaint that formed the basis of the first lawsuit." Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2d Cir.2000). Similarly, "[m]odifications in controlling legal principles could render a previous determination inconsistent with
Nor are the claims brought by Nikolov, Detmer, Nance, and Marcucci-Nance precluded because their applications for full-carry permits were denied. Res judicata applies to "give conclusive effect to the quasi-judicial determinations of administrative agencies, when rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law." Ryan v. N.Y. Tel. Co., 62 N.Y.2d 494, 499, 478 N.Y.S.2d 823, 467 N.E.2d 487 (1984) (citations omitted). A review of relevant authority and the materials submitted in connection with the Motions to Dismiss, however, does not support the conclusion that the procedures for applying for a full-carry permit in any way resemble those used in a court of law, see Shapiro v. N.Y. City Police Dep't, 157 Misc.2d 28, 595 N.Y.S.2d 864, 867 (Sup.Ct. N.Y.Cnty.1993) (only reference to judicial hearing in New York gun licensing regulations is in connection with suspension and revocation procedures), and, in any event, even were the State Defendants' actions to qualify as quasi-judicial, Individual Plaintiffs neither raised, nor had the opportunity to raise, arguments regarding the constitutionality of Section 400.00(2)(f) in submitting to the State Defendants their applications for full-carry permits. See generally Tomari Decl. Exs. G-J (Nikolov, Detmer, Nance, and Marcucci-Nance's permit applications).
Finally, Defendants argue that Kachalsky's claims are barred by the Rooker-Feldman doctrine. Rooker-Feldman is a limited doctrine aimed at "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review of those judgments."
Id. At a minimum, Defendants' argument fails because Kachalsky does not complain that he was injured by the state court judgment—i.e., by the decision rendered in the Article 78 proceeding—but rather that he was injured by Section 400.00(2)(f) and by Cacace's interpretation of the statute and application of it to Kachalsky in denying his application for a full-carry permit. See Skinner v. Switzer, ___ U.S. ___, 131 S.Ct. 1289, 1298, 179 L.Ed.2d 233 (2011) ("[Petitioner] does not challenge the adverse [Texas Court of Criminal Appeals] decisions themselves; instead, he targets as unconstitutional the Texas statute they authoritatively construed. . . . [A] state-court decision is not reviewable by lower federal courts, but a statute or rule governing the decision may be challenged in a federal action. [Petitioner's] federal case falls within the latter category.") (footnote omitted). Rooker-Feldman therefore does not bar Kachalsky's claims.
In its Motion to Dismiss, the County puts forth the separate argument that it is not a proper party to this lawsuit because it does not effectuate the grant or denial of full-carry permits and plays a limited role in the permitting process under applicable state law. The County notes that, although county law enforcement conducts the investigations that grow out of full-carry permit applications, the state's licensing officers (here, the State Defendants) make independent and ultimate determinations regarding such applications. As such, they argue, Plaintiffs have failed to allege that they were denied any constitutional right by the County, as required by Section 1983. See Dove v. Fordham Univ., 56 F.Supp.2d 330, 336 (S.D.N.Y. 1999) ("In order to hold a municipality liable as a `person' within the meaning of § 1983, [a plaintiff] must establish that the municipality itself was somehow at fault."). In response, Plaintiffs note that defendants sued under Section 1983 are "responsible for the natural consequences of [their] actions," and "may be held liable for those consequences attributable to reasonably foreseeable intervening forces, including the acts of third parties." Kerman v. City of N.Y., 374 F.3d 93, 126 (2d Cir.2004) (alteration in original) (internal quotation marks omitted). Here, Plaintiffs argue, it was reasonably foreseeable that the State Defendants would heed County law enforcement's recommendations to deny Plaintiffs' full-carry permit applications, and that this is sufficient to make the County a proper party.
In light of the disposition below, I need not decide whether the County is a proper party and assume for the sake of argument that it is. I now turn to the question of the as-applied and facial constitutionality of Section 400.00(2)(f), which I address in the context of Plaintiffs' Motion for Summary Judgment and State Defendants' Cross-Motion for Summary Judgment.
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "[T]he dispute
"A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials. . . ." Fed. R.Civ.P. 56(c)(1)(A). Where, as here, affidavits are used to support or oppose the motion, they "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008).
Plaintiffs claim that Section 400.00(2)(f) violates the Second Amendment, which reads, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. An evaluation of Plaintiffs' claim must necessarily start with a discussion of the Second Amendment right as recognized in Heller.
As noted above, Heller resolved the long-standing question as to whether the Second Amendment guarantees an individual right to keep and bear arms or merely a collective right to do so in connection with service in a militia, holding that "[t]here seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms." 554 U.S. at 595, 128 S.Ct. 2783. The Court observed that, like the First and Fourth Amendments, the Second Amendment "codified a pre-existing right," id. at 592, 128 S.Ct. 2783 (emphasis omitted), and that the amendment's prefatory clause, while not restricting the scope of the right, did "announce[ ] the purpose for which the right was codified: to prevent elimination of the militia," id. at 599, 128 S.Ct. 2783. The Court warned, however, that "[t]he prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly
As so many courts considering statutory challenges post-Heller have observed, the Heller Court, while not setting the outer bounds of the Second Amendment, explicitly stated that "[l]ike most rights, the right secured by the Second Amendment is not unlimited." Id. at 626, 128 S.Ct. 2783. Crucially, the Court observed, "From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id. (citations omitted). For example, the Court stated, "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues," and
Id. at 626-27, 128 S.Ct. 2783 (emphasis added). And as a footnote to this statement, the Court specified that it was "identify[ing] these presumptively lawful regulatory measures only as examples," and that the "list does not purport to be exhaustive." Id. at 627 n. 26, 128 S.Ct. 2783.
What very clearly did not fall within the ambit of presumptively lawful gun regulations were the District of Columbia's statutes banning the possession of handguns in the home and requiring that other lawful firearms be inoperable. The Court observed that "[t]he Constitution leaves the District of Columbia a variety of tools for combating [the] problem [of handgun violence], including some measures regulating handguns," "[b]ut the enshrinement of constitutional rights necessarily takes certain policy choices off the table. . . . includ[ing] the absolute prohibition of handguns held and used for self-defense in the home." Id. at 636, 128 S.Ct. 2783 (emphasis added).
This emphasis on the Second Amendment's protection of the right to keep and bear arms for the purpose of "self-defense in the home" permeates the Court's decision and forms the basis for its holding— which, despite the Court's broad analysis of the Second Amendment's text and historical underpinnings, is actually quite narrow. For example, in considering the statutes
The scope of the right guaranteed by the Second Amendment was not the only matter the Court left undefined in Heller; it also declined to articulate the level of scrutiny that applies to claims, such as Plaintiffs', challenging the constitutionality of statutes under the Second Amendment. Instead, the Court found that "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights," the District's regulations "would fail constitutional muster." Id. at 628-29, 128 S.Ct. 2783. The Court did, however, rule out rational-basis review,
Unsurprisingly, the parties in this case advocate for the application of different
Given the lack of a clear directive from the Supreme Court, lower courts have devised a range of approaches to constitutional challenges under the Second Amendment post-Heller. See Heller v. District of Columbia ("Heller II"), 698 F.Supp.2d 179, 185-86 (D.D.C.2010) (surveying various approaches). There is much support for Defendants' implicit argument that before determining the level of scrutiny to be applied, the court must first determine whether the statute at issue implicates a Second Amendment right as articulated in Heller. As the Third Circuit has held,
United States v. Marzzarella, 614 F.3d 85, 89 (3rd Cir.2010) (citation and footnote omitted); accord, e.g., United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.2010); United States v. Skoien, 614 F.3d 638, 639-43 (7th Cir. 2010); Heller II, 698 F.Supp.2d at 188. Defendants argue that the scope of the Second Amendment right in Heller does not extend to invalidate regulations, such as Section 400.00(2)(f), on carrying handguns. I agree.
As explained above, the language of Heller makes clear that the Court recognized "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose," 554 U.S. at 626, 128 S.Ct. 2783, but rather a much narrower right—namely the "right of law-abiding, responsible citizens to use arms in defense of hearth and home," id. at 635, 128 S.Ct. 2783. Indeed, Heller "warns readers not to treat [it] as containing broader holdings than the Court set out to establish: that the Second Amendment creates individual rights, one of which is keeping operable handguns at home for self-defense." Skoien, 614 F.3d at 640. In identifying
Various other courts have seized upon this language in Heller in concluding that concealed weapons bans and regulations are constitutional under the Second Amendment. See, e.g., United States v. Hart, 726 F.Supp.2d 56, 60 (D.Mass.2010) (rejecting defendant's motion to suppress firearm and ammunition recovered by police during Terry stop, and citing Heller language quoted above in holding that "Heller does not hold, nor even suggest, that concealed weapons laws are unconstitutional. . . . Therefore, it was not a violation of [defendant's] Second Amendment rights to stop him on the basis of the suspicion of a concealed weapon."); Swait v. Univ. of Neb., No. 08-404, 2008 WL 5083245, at *3 (D.Neb. Nov. 25, 2008) (rejecting plaintiff's challenge to fine for concealed weapon possession and citing to Heller for principle that "[S]tates can prohibit the carrying of a concealed weapon without violating the Second Amendment"); United States v. Hall, No. 08-006, 2008 WL 3097558, at *1 (S.D.W.Va. Aug. 4, 2008) (denying motion to suppress and citing Heller in concluding "that the prohibition, as in West Virginia, on the carrying of a concealed weapon without a permit, continues to be a lawful exercise by the state of its regulatory authority notwithstanding the Second Amendment"); State v. Knight, 42 Kan.App.2d 893, 218 P.3d 1177, 1190 (2009) ("[T]he Heller Court specifically mentioned prohibitions on concealed firearms in the sentence before its list of presumptively lawful prohibitions.
Plaintiffs' attempts to cast Heller as creating a broader Second Amendment right implicating Section 400.00(2)(f) are unavailing. Plaintiffs cite first to the Court's textual analysis of the phrase "keep and bear arms," (Pls.' Mem. at 8), wherein the Court stated that the phrase should be read as meaning "`wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose. . . of being armed and ready for offensive or defensive action in a case of conflict with another person,'" Heller, 554 U.S. at 584, 128 S.Ct. 2783 (alteration in original) (quoting Muscarello v. United States, 524 U.S. 125, 143, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998)). This textual interpretation does not stand on its own, however, but rather appears within the context of, and is provided solely to support, the Court's holding that the Second Amendment gives rise to an individual right, rather than a collective right connected to service in a militia. Indeed, the Court concludes that same paragraph by observing that the phrase "keep and bear arms" "in no way connotes participation in a structured military organization." Id. Nor does this textual interpretation somehow expand the Court's holding, as such a reading overlooks the opinion's pervasive limiting language discussed above. See, e.g., People v. Dawson, 403 Ill.App.3d 499, 343 Ill.Dec. 274, 934 N.E.2d 598, 605 (2010) ("The specific limitations in Heller and McDonald applying only to a ban on handgun possession in a home cannot be overcome by defendant's pointing to the Heller majority's discussion of the natural meaning of `bear arms' including wearing or carrying upon the person or in clothing."), cert. denied, ___ U.S. ___, 131 S.Ct. 2880, 179 L.Ed.2d 1194 (2011).
Plaintiffs also point to various nineteenth-century state court cases that they claim demonstrate that state concealed carry bans are constitutional only where the state provides for unconcealed, or open, carry as well. (Pls.' Mem. at 10-11.) Those cases' holdings, however, seem not to be premised on the existence of open carry provisions specifically, but rather on the existence of provisions for some other means of carry generally; in other words, they suggest that such statutes would fail to pass muster only if functioning as complete bans to carrying weapons outside the home under any circumstances. See, e.g., State v. Reid, 1 Ala. 612, 1840 WL 229, at *3 (1840) (regulation that amounted to total ban, i.e., "destruction of the right," would be "clearly unconstitutional"); Nunn v. State, 1 Ga. 243, 1846 WL 1167, at *5 (1846) (concealed weapons ban valid so long as it does not impair right to bear arms "altogether"); Andrews v. State, 50 Tenn. 165, 1871 WL 3579, at *11 (1871) (statute that forbade carrying "without regard to time or place, or circumstances,"
Moreover, other state court cases decided around that same time suggest that bans on carrying guns in both a concealed and open manner are constitutional. See, e.g., Fife v. State, 31 Ark. 455, 1876 WL 1562, at *4 (1876) (upholding statute prohibiting "the carrying, as a weapon, [of] `any pistol of any kind whatever,'" as a lawful "exercise of the police power of the State without any infringement of the constitutional right" to bear arms); Aymette v. State, 21 Tenn. 154, 1840 WL 1554, at *4 (1840) ("The Legislature . . . [has] a right to prohibit the wearing or keeping [of] weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence. . . . [A]lthough [the right keep and bear arms for the common defence] must be inviolably preserved,. . . it does not follow that the Legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed.") (cited in Heller, 554 U.S. at 613, 128 S.Ct. 2783); State v. Workman, 35 W.Va. 367, 14 S.E. 9, 11 (1891) (upholding conviction for carrying concealed weapon, and observing, "The second amendment of our federal constitution should be constructed with reference to the provisions of the common law upon this subject as they then existed. . . . As early as the second year of Edward III, a statute was passed prohibiting all persons, whatever their condition, `to go or ride armed by night or by day.' And so also at common law the `going around with unusual and dangerous weapons to the terror of the people' was a criminal offense."); see also Hill v. State, 53 Ga. 472, 1874 WL 3112, at *2 (1874) ("I have always been at a loss to follow the line of thought that extends the guarantee [of the right to keep and bear arms] to the right to carry pistols . . . and those other weapons of like character, which, as all admit, are the greatest nuisances of our day.").
Finally, Plaintiffs argue that Heller's discussion of the lawful use of arms for hunting demonstrates that the Court's holding is not limited to possession in the home. (Pls.' Mem. at 12.) This argument too is unavailing, as hunting does not involve handguns and therefore falls outside the ambit of the challenged statute. In any event, the NYPL provides for licenses
Unlike in this case, the bulk of cases that have applied the two-pronged approach to Second Amendment challenges have found, under the first prong, that the challenged law at issue imposed a burden on conduct falling within the amendment's scope because the restrictions in the challenged statute substantially overlapped with the core Second Amendment right articulated in Heller—namely the right to use arms for the purpose of self-defense in the home. The clearest, and most frequent, examples are challenges to various sections of the federal Gun Control Act that ban all gun possession by certain categories of individuals (e.g., felons, domestic violence misdemeanants) irrespective of the location of or purpose for such possession. See, e.g., United States v. Booker, 644 F.3d 12 (1st Cir.2011) (considering 18 U.S.C. § 922(g)(9), which bans possession of firearms by a person convicted of a misdemeanor crime of domestic violence); Chester, 628 F.3d 673 (same); Reese, 627 F.3d 792 (considering 18 U.S.C. § 922(g)(8), which bans possession of firearms while subject to a domestic protection order); Skoien, 614 F.3d 638 (18 U.S.C. § 922(g)(9)); see also Marzzarella, 614 F.3d 85 (considering 18 U.S.C. § 922(k), which bans possession of firearms with an obliterated serial number). As such statutes "permanently disarm[ ]. . . entire category[ies] of persons," Chester, 628 F.3d at 680, they ipso facto ban possession by such persons in their homes for the purpose of self-defense, and thus clearly raise red flags under Heller.
To the extent that Plaintiffs are attacking New York's statutory scheme as precluding open carry—and it is by no means clear that they are, given their concessions that each applied "to carry concealed handguns," (Pls.' Resp. 56.1 ¶¶ 25, 35, 41, 47, 55), their focus on Section 400.00(2)(f) in particular, (see, e.g., FAC ¶¶ 22, 41), and their seeming rejection of open carry as a reasonable alternative to concealed carry, (Pls.' Reply Mem. at 14)
Although it is admittedly a closer question, given the existence of some nineteenth-century state court cases upholding the right to carry openly, see, e.g., Chandler, 1850 WL 3838, at *1, according Second Amendment protection to the carrying of an unconcealed weapon outside the home would certainly go further than Heller did, and Defendants have pointed to no case decided after Heller that has done so. To the contrary, Williams v. State, 417 Md. 479, 10 A.3d 1167, 1169-70 (2011), considered a Maryland statute prohibiting any carrying outside the home without a permit, which could only be issued if the applicant, among other things, demonstrated a "good and substantial reason to wear, carry, or transport a handgun." Williams found that statute to be "outside of the scope of the Second Amendment," id. at 1169, because, like New York's statute, it "permitt[ed] home possession," id. at 1178; see id. at 1177 ("Heller and McDonald emphasize that the Second Amendment is applicable to statutory prohibitions against home possession, the dicta in McDonald that `the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home,' notwithstanding. Although [petitioner] attempts to find succor in this dicta, it is clear that prohibition of firearms in the home was the gravamen of the certiorari questions in both Heller and McDonald and their answers. If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.") (citation omitted).
Similarly, the court in People v. Dawson considered a challenge to Illinois's aggravated unlawful use of a weapon statute, which made it illegal for any person to carry "on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, . . . or other firearm." 343 Ill.Dec. 274, 934 N.E.2d at 604 (emphasis added). The court determined that the statute, under which the defendant challenging the law was convicted, was constitutional, as "Heller specifically limited its ruling to interpreting the [Second A]mendment's protection of the
In any event, even if the Second Amendment can plausibly be read to protect a right infringed upon or regulated by Section 400.00(2)(f), the statute passes constitutional muster for the reasons explained below.
As noted above, Heller left open the question of which form of means-ends scrutiny applies to evaluate statutes regulating conduct protected by the Second Amendment, ruling out only rational basis review and an "interest-balancing approach." Following closely on Heller's heels, some lower courts adopted a uniform level of scrutiny applicable to all Second Amendment challenges. See, e.g., Heller II, 698 F.Supp.2d at 186 (adopting intermediate scrutiny); United States v. Engstrum, 609 F.Supp.2d 1227, 1231-32 (D.Utah 2009) (adopting strict scrutiny);
Marzzarella, 614 F.3d at 96-97 (footnote and citations omitted); see Ezell, 651 F.3d at 706-07 (analogizing to the different First Amendment standards applied to restrictions on the content of speech, the "time, place, and manner" of the speech, political speech, adult bookstores, commercial speech, and the expressive association rights of voters, candidates, and parties in elections). I find this analogy persuasive and apply it in determining the proper level of scrutiny for Section 400.00(2)(f).
I therefore join the multitude of other cases applying intermediate scrutiny under this approach. See, e.g., Booker, 644 F.3d at 25; Masciandaro, 638 F.3d at 471; Chester, 628 F.3d at 683; Reese, 627 F.3d at 802; Skoien, 614 F.3d at 642; Marzzarella, 614 F.3d at 97; Osterweil, ___ F.Supp.2d at ___, 2011 WL 1983340, at *10; Peruta, 758 F.Supp.2d at 1117. As noted above, to the extent that Section 400.00(2)(f) overlaps at all with the core Second Amendment right as recognized in Heller, it decidedly does not overlap to the same extent as Gun Control Act provisions that ban certain categories of individuals from both in-home possession and public carry, and thus it may plausibly be argued that a more lenient standard of review is warranted here than in those cases. The application of intermediate scrutiny in two recent cases outside the Gun Control Act context, however, suggests that, if Section 400.00(2)(f) must be subject to constitutional review at all, intermediate scrutiny applies here as well. Specifically, intermediate scrutiny was applied in United States v. Masciandaro, where the federal regulation at issue banned possession of a loaded handgun in a motor vehicle within a national park area, 638 F.3d at 459-60, and in Peruta v. County of San Diego, where the state statute at issue, like Section 400.00(2)(f), required applicants for full-carry permits to demonstrate "a set of circumstances that distinguishes the applicant from other members of the general public and causes him or her to be placed in harm's way," 758 F.Supp.2d at 1110.
As noted above intermediate scrutiny requires that the law be substantially related to an important governmental interest. To satisfy this standard, Defendants need to show a "reasonable" "fit between the legislature's ends and the means chosen to accomplish those ends." Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) (internal quotation marks omitted). Defendants here claim that the law serves to promote public safety and prevent crime, (State Defs.' Mem. at 24), and this is supported by the history behind Section 400.00(2)(f), which the State Defendants have provided to the Court.
Report of the N.Y. State Joint Legislative Comm. on Firearms & Ammunition, Doc. No. 29, at 11-12 (1962) (Tomari Decl. Ex. S(9)). In a 1965 supplement to that report, the committee added,
Report of the N.Y. State Joint Legislative Comm. on Firearms & Ammunition, Doc. No. 6, at 12-13 (1965) (Tomari Decl. Ex. S(13)). Finally, in 1982, during a floor debate regarding substantive changes to portions of the state handgun licensing scheme, Senator Franz Leichter, speaking regarding Section 400.00(2)(f)'s "proper cause" requirement, observed,
N.Y. Senate Debate on Senate Bill 3409, at 2471 (June 2, 1987) (Tomari Decl. Exs. S(14)). Despite proposals to change the licensing scheme, Section 400.00(2)(f)'s "proper cause" requirement has remained. (State Defs.' 56.1 ¶ 77.)
The Supreme Court has repeatedly acknowledged that governments have an important, even compelling, interest in protecting public safety. See, e.g., United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (federal government has "compelling interests in public safety"); Tennessee v. Garner, 471 U.S. 1, 25-26, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (O'Connor, J., dissenting) (commenting, in Fourth Amendment context, that there is an "important public interest in crime prevention and detection"); Schall v. Martin, 467 U.S. 253, 264, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) ("The `legitimate and compelling state interest' in
Peruta, 758 F.Supp.2d at 1117 (citations omitted); see, e.g., Richards v. Cnty. of Yolo, No. 09-1235, ___ F.Supp.2d ___, 2011 WL 1885641, at *4 (E.D.Cal. May 16, 2011) (agreeing with defendants' assertion that "regulating concealed firearms is an essential part of [the] County's efforts to maintain public safety and prevent both gun-related crime and, most importantly, the death of its citizens"); People v. Yarbrough, 169 Cal.App.4th 303, 86 Cal.Rptr.3d 674, 682 (2008) ("Unlike possession of a gun for protection within a residence, carrying a concealed firearm presents a recognized threat to public order, and is prohibited as a means of preventing physical harm to persons other than the offender. A person who carries a concealed firearm on his person or in a vehicle, which permits him immediate access to the firearm but impedes others from detecting its presence, poses an imminent threat to public safety.") (citations, footnote, and internal quotation marks omitted).
Notwithstanding the emphasis placed on the interest in regulating concealed carry, the same rationales apply equally, or almost equally, to the regulation of open carry. See, e.g., Osterweil, ___ F.Supp.2d at ___, 2011 WL 1983340, at *10 ("[T]he harm caused by gun violence in this country has been well-documented, and government efforts to curtail this threat have a direct impact on domestic security. As such, the government objective promoted by these laws is not only `legitimate,' but also `important.'") (citations omitted); Miller, 604 F.Supp.2d at 1171 (same); City of N.Y. v. Bob Moates' Sport Shop, Inc., 253 F.R.D. 237, 240-41 (E.D.N.Y.2008) ("By enacting strong gun control laws to protect its citizens from gun-related crimes, New York City and State have expressed a special public policy interest in the subject matter of this litigation."); City of N.Y. v. A-1 Jewelry & Pawn, Inc., 501 F.Supp.2d 369, 429 (E.D.N.Y.2007) ("New York has a strong interest in the safety of its residents and territory from handgun violence . . . ."); People v. Marin, 342 Ill.App.3d 716, 277 Ill.Dec. 285, 795 N.E.2d 953, 958-959, 962 (2003) ("The overall purpose of the . . .
I also hold that Section 400.00(2)(f) is substantially related to that important government interest. The statute does not function as an outright ban on concealed carry, but rather calls for individualized, case-by-case determinations regarding whether full-carry permit applicants have an actual and articulable—rather than merely speculative, potential, or even specious—need for self-defense. As crafted, the statute seeks to limit the use of handguns to self-defensive purposes—a use which, although in this context existing outside the home, is nonetheless a hallmark of Heller—rather than for some other use that has not been recognized as falling within the protections of the Second Amendment. This purpose is furthered by the statute's directive that full-carry permits "shall be" issued where there exists proper cause—rather than directing merely that permits "may" be issued in such instances.
The other provisions of Section 400.00(2) create alternative means by which applicants may secure permits and highlight the emphasis the statute places upon self-defense: as noted above, it compels the issuance of handgun permits to merchants and storekeepers for them to keep in their places of business—where they may be subject to robberies—as well as the issuance of full-carry permits to messengers for banking institutions and express companies, who often carry sensitive communications or valuable parcels that others may covet, to state judges and justices, who may be the targets of criminal defendants or disgruntled litigants (or their associates), and to employees at correctional facilities, for whom protection from those being housed at such facilities is necessary. Surely, the legislature cannot be expected to enumerate every profession or circumstance that might give rise to an articulable need for self-defense, and so Section 400.00(2)(f) vests the responsibility for discerning such need in the capable hands of the state's neutral and detached licensing officers.
Id. (citations omitted). Plaintiffs here make the same argument as in Peruta, and the Court recognizes not only that many violent crimes are committed by those carrying handguns illegally, but also that most gun owners across the country are responsible, law-abiding citizens. The Court also recognizes the existence of contrasting studies and statistics concerning the relationship between handgun ownership and violent crime. But it is the job of the legislature, not the Court, to weigh the conflicting evidence and make policy choices (within constitutional parameters). See, e.g., Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (legislature is "far better equipped than the judiciary to `amass and evaluate the vast amounts of data' bearing upon legislative questions") (internal quotation marks omitted); City of Richmond v. JA. Croson Co., 488 U.S. 469, 544, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) ("Local officials, by virtue of their proximity to, and their expertise with, local affairs, are exceptionally well qualified to make determinations of public good within their respective spheres of authority.") (internal quotation marks omitted). As with the statute at issue in Peruta, Section 400.00(2)(f) may not be perfect, but it need not be to pass constitutional muster. Section 400.00(2)(f)'s limitations promote the government's strong interest in public safety and crime prevention, and are substantially related to it.
Section 400.00(2)(f) does not burden recognized protected rights under the Second Amendment. If Section 400.00(2)(f) could be read to implicate such rights, the statute, as applied to Plaintiffs, does not violate the Second Amendment under intermediate scrutiny. Accordingly, the Court a priori rejects Plaintiffs' facial constitutional challenge. "[A] plaintiff can only succeed in a facial challenge by `establish[ing] that no set of circumstances exists under which the Act would be valid,' i.e., that the law is unconstitutional in all of its applications." Wash. State Grange, 552 U.S. at 449, 128 S.Ct. 1184 (quoting Salerno, 481 U.S. at 745, 107 S.Ct. 2095); see Skoien, 614 F.3d at 645 ("[a] person to whom a statute properly applies [cannot] obtain relief based on arguments that a differently situated person might present"). As Section 400.00(2)(f) is constitutional as applied to Plaintiffs, it is therefore not unconstitutional in all its applications. See Heller II, 698 F.Supp.2d at 188 n.10.
Finally, Plaintiffs challenge Section 400.00(2)(f) as violative of the Equal Protection Clause. The "Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Equal protection claims are subject to a two-step analytical process. See Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir.2005). First, a plaintiff must "demonstrate that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination." Id. Second, he must show that "the disparity in treatment cannot survive the appropriate level of scrutiny." Id. The claim fails, as Section 400.00(2)(f) does not treat similarly situated individuals differently, but rather applies uniformly. Further, all full-carry permit applicants are not similarly situated because some can demonstrate "proper cause" for the issuance of a permit, while others cannot. See, e.g., Osterweil, ___ F.Supp.2d at ___, 2011 WL 1983340, at *11; Richards, ___ F.Supp.2d at ___, 2011 WL 1885641, at *6; Peruta, 758 F.Supp.2d at 1117-18; see also Ruston v. Town Bd., 610 F.3d 55, 59 (2d Cir.2010) (equal protection claim failed because plaintiffs did not allege "applications that were made by persons similarly situated").
For the reasons stated above, I hereby DENY the State Defendants' and the County's Motions to Dismiss, DENY Plaintiffs' Motion for Summary Judgment, and GRANT the State Defendants' Cross-Motion for Summary Judgment, Although the County has not cross-moved for summary judgment, I hereby GRANT it summary judgment sua sponte.
130 S.Ct. at 3047 (citations omitted). "[S]tate and local experimentation with reasonable firearms regulations," it observed, "will continue under the Second Amendment." Id. at 3046 (internal quotation marks omitted).
609 F.Supp.2d at 1231-32. Engstrum appears to be the only case post-Heller to adopt a one-size-fits-all strict scrutiny approach; indeed, Plaintiffs do not cite to other cases endorsing such an approach, (Pls.' Mem. at 19-24), and the Court is unable to locate any. The dissenting opinion in Heller, and various lower courts to consider the issue post-Heller, reject this approach as inconsistent with the Heller majority's reference to "presumptively lawful" statutes prohibiting firearm possession by felons, by the mentally ill, or in sensitive places, or imposing conditions and qualifications on the commercial sale of firearms. See, e.g., Heller, 554 U.S. at 688, 128 S.Ct. 2783 (Breyer, J., dissenting) ("the majority implicitly, and appropriately, rejects [strict scrutiny] by broadly approving a set of laws. . . whose constitutionality under a strict scrutiny standard would be far from clear"); Skoien, 587 F.3d at 812 ("We do not see how the listed laws could be `presumptively' constitutional if they were subject to strict scrutiny. . . ."); Heller II, 698 F.Supp.2d at 187 ("[A] strict scrutiny standard of review would not square with the majority's references to `presumptively lawful regulatory measures.. . .'"); United States v. Marzzarella, 595 F.Supp.2d 596, 604 (W.D.Pa.2009) ("[T]he Court's willingness to presume the validity of several types of gun regulations is arguably inconsistent with the adoption of a strict scrutiny standard of review."), aff'd, 614 F.3d 85.
Further to their "unbridled discretion" argument, Plaintiffs argue that licensing officers enforce Section 400.00(2)(f)'s "proper cause" requirement together with Section 400.00(1)(b)'s "good moral character" eligibility requirement. (Pls.' Mem. at 18-19; Pls.' Reply Mem. at 9.) The State Defendants' decisions denying Plaintiffs' applications, however, suggest the opposite, as they do not discuss or even refer to the "good moral character" requirement. (See Rotini Decl. Exs. A-E.) To the extent that Plaintiffs raise an independent objection to the "good moral character" requirement, I decline to consider that argument herein. Plaintiffs do not object to that requirement in their pleadings, and their claims target Section 400.00(2)(f) exclusively. (FAC ¶¶ 22, 41, 43.) See, e.g., Chapman v. City of N.Y., No. 06-3153, 2011 WL 1240001, at *7 n. 5 (E.D.N.Y. March 30, 2011) ("As this claim was not raised in [plaintiff's] complaint, it will not be considered by the Court [on summary judgment].") (citing Lyman v. CSX Transp., Inc., 364 Fed.Appx. 699, 701 (2d Cir.2010)). In any event, were the "good moral character" requirement subject to intermediate scrutiny (the standard I find applicable for reasons stated below), it would likely pass muster, as restricting handguns to those of good moral character would substantially relate to the government's strong interest in public safety and crime prevention in ways similar to those described below in connection with Section 400.00(2)(f).
Masciandaro, 638 F.3d at 474 (fourth alteration in original) (citations and internal quotation marks omitted).
Priestley v. Headminder, Inc., No. 09-4931, 2011 WL 3190307, at *6 (2d Cir. July 28, 2011) (citation and internal quotation marks omitted). The Court is satisfied that those standards have been met here. Although the County did not cross-move for summary judgment, the State Defendants did, on claims identical to those advanced against the County, and Plaintiffs had a full and fair opportunity to submit materials in opposition to that cross-motion—and indeed did submit such materials. See, e.g., Parks v. Town of Greenburgh, 344 Fed.Appx. 654, 655 (2d Cir.2009) (sua sponte grant of summary judgment in favor of remaining defendants not error where "[plaintiff] had the opportunity to submit evidence in opposition to [officer's] summary judgment motion" and "[plaintiff's] claim of selective treatment was identical as it related to the [officer] and the remaining defendants").
