701 F.3d 81 (2nd Cir. 2012), 11-3642 (Lead), Kachalsky v. County of Westchester

Docket Nº:11-3642 (Lead), 11-3962(XAP).
Citation:701 F.3d 81
Opinion Judge:WESLEY, Circuit Judge:
Party Name:Alan KACHALSKY, Christina Nikolov, Johnnie Nance, Anna Marcucci-Nance, Eric Detmer, Second Amendment Foundation, Inc., Plaintiffs-Appellants-Cross-Appellees, v. COUNTY OF WESTCHESTER, Defendant-Appellee-Cross-Appellant, Susan Cacace, Jeffrey A. Cohen, Albert Lorenzor, Robert K. Holdman, Defendants-Appellees.
Attorney:Alan Gura, Gura & Possessky, PLLC, Alexandria, VA, for Plaintiffs-Appellants-Cross-Appellees. Thomas G. Gardiner, Sr. Assistant County Attorney (James Castro-Blanco, Chief Deputy County Attorney, on the brief), for Robert F. Meehan, County Attorney for the County of Westchester, Westchester, NY, ...
Judge Panel:Before: KATZMANN, WESLEY and LYNCH, Circuit Judges.
Case Date:November 27, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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701 F.3d 81 (2nd Cir. 2012)

Alan KACHALSKY, Christina Nikolov, Johnnie Nance, Anna Marcucci-Nance, Eric Detmer, Second Amendment Foundation, Inc., Plaintiffs-Appellants-Cross-Appellees,

v.

COUNTY OF WESTCHESTER, Defendant-Appellee-Cross-Appellant,

Susan Cacace, Jeffrey A. Cohen, Albert Lorenzor, Robert K. Holdman, Defendants-Appellees.

Nos. 11-3642 (Lead), 11-3962(XAP).

United States Court of Appeals, Second Circuit.

November 27, 2012

Argued: Aug. 22, 2012.

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Alan Gura, Gura & Possessky, PLLC, Alexandria, VA, for Plaintiffs-Appellants-Cross-Appellees.

Thomas G. Gardiner, Sr. Assistant County Attorney (James Castro-Blanco, Chief Deputy County Attorney, on the brief), for Robert F. Meehan, County Attorney for the County of Westchester, Westchester, NY, for Defendant-Appellee-Cross-Appellant.

Simon Heller, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Richard Dearing, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Defendants-Appellees.

Before: KATZMANN, WESLEY and LYNCH, Circuit Judges.

WESLEY, Circuit Judge:

This appeal presents a single issue: Does New York's handgun licensing scheme violate the Second Amendment by requiring an applicant to demonstrate " proper cause" to obtain a license to carry a concealed handgun in public?

Plaintiffs Alan Kachalsky, Christina Nikolov, Johnnie Nance, Anna Marcucci-Nance, and Eric Detmer (together, the " Plaintiffs" ) all seek to carry handguns outside the home for self-defense. Each applied for and was denied a full-carry concealed-handgun license by one of the defendant licensing officers (the

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" State Defendants" 1) for failing to establish " proper cause" — a special need for self-protection— pursuant to New York Penal Law section 400.00(2)(f). Plaintiffs, along with the Second Amendment Foundation (" SAF" ), thereafter filed this action to contest New York's proper cause requirement. They contend that the proper cause provision, on its face or as applied to them, violates the Second Amendment as interpreted by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

The State Defendants moved for summary judgment. The district court granted that motion and granted Defendant County of Westchester summary judgment sua sponte. Kachalsky v. Cacace, 817 F.Supp.2d 235, 273-74 (S.D.N.Y.2011). The district court found that SAF lacked standing to sue on its own behalf or on behalf of its members. Id. at 251. Addressing the merits, the district court concluded that the concealed carrying of handguns in public is " outside the core Second Amendment concern articulated in Heller: self-defense in the home." Id. at 264. In the alternative, the district court determined that the proper cause requirement would survive constitutional scrutiny even if it implicated the Second Amendment. Id. at 266-72. For the reasons that follow, we affirm.2

I

A

New York's efforts in regulating the possession and use of firearms predate the Constitution. By 1785, New York had enacted laws regulating when and where firearms could be used, as well as restricting the storage of gun powder. See, e.g., Act of Apr. 22, 1785, ch. 81, 1785 Laws of N.Y. 152; Act of Apr. 13, 1784, ch. 28, 1784 Laws of N.Y. 627. Like most other states, during the nineteenth century, New York heavily regulated the carrying of concealable firearms. In 1881, New York prohibited the concealed carrying of " any kind of fire-arms." 1881 Laws of N.Y., ch. 676, at 412. In 1884, New York instituted a statewide licensing requirement for minors carrying weapons in public, see 1884 Laws of N.Y., ch. 46, § 8, at 47, and soon after the turn of the century, it expanded its licensing requirements to include all persons carrying concealable pistols, see 1905 Laws of N.Y., ch. 92, § 2, at 129-30.

Due to a rise in violent crime associated with concealable firearms in the early twentieth century, New York enacted the Sullivan Law in 1911, which made it unlawful for any person to possess, without a license, " any pistol, revolver or other firearm of a size which may be concealed upon the person." See 1911 Laws of N.Y., ch. 195, § 1, at 443 (codifying N.Y. Penal Law § 1897, ¶ 3); see also N.Y. Legislative Service, Dangerous Weapons— " Sullivan Bill," 1911 Ch. 195 (1911). A study of homicides and suicides completed shortly before the law's enactment explained: " The increase of homicide by shooting indicates ... the urgent necessity of the proper authorities taking some measures for the regulation of the indiscriminate sale and carrying of firearms." Revolver Killings

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Fast Increasing, N.Y. Times, Jan. 30, 1911 (quoting N.Y. State Coroner's Office Report). As a result, the study recommended that New York

should have a law, whereby a person having a revolver in his possession, either concealed or displayed, unless for some legitimate purpose, could be punished by a severe jail sentence.... [A] rigid law, making it difficult to buy revolvers, would be the means of saving hundreds of lives.

Id. (quoting N.Y. State Coroner's Office Report).

The Sullivan Law survived constitutional attack shortly after it was passed. People ex rel. Darling v. Warden of City Prison, 154 A.D. 413, 422, 139 N.Y.S. 277 (1st Dep't 1913). Although the law was upheld, in part, on what is now the erroneous belief that the Second Amendment does not apply to the states, the decision provides additional background regarding the law's enactment:

There had been for many years upon the statute books a law against the carriage of concealed weapons.... It did not seem effective in preventing crimes of violence in this State. Of the same kind and character, but proceeding a step further with the regulatory legislation, the Legislature has now picked out one particular kind of arm, the handy, the usual and the favorite weapon of the turbulent criminal class, and has said that in our organized communities, our cities, towns and villages where the public peace is protected by the officers of organized government, the citizen may not have that particular kind of weapon without a permit, as it had already said that he might not carry it on his person without a permit.

Id. at 423, 139 N.Y.S. 277 (emphasis added).

In 1913, the Sullivan Law was amended to impose a statewide standard for the issuance of licenses to carry firearms in public. 1913 Laws of N.Y., ch. 608, at 1627-30. To obtain a license to carry a concealed pistol or revolver the applicant was required to demonstrate " good moral character, and that proper cause exists for the issuance [of the license]." Id. at 1629. One hundred years later, the proper cause requirement remains a feature of New York's statutory regime.

B

New York maintains a general prohibition on the possession of " firearms" absent a license. See N.Y. Penal Law §§ 265.01-265.04, 265.20(a)(3). A " firearm" is defined to include pistols and revolvers; shotguns with barrels less than eighteen inches in length; rifles with barrels less than sixteen inches in length; " any weapon made from a shotgun or rifle" with an overall length of less than twenty-six inches; and assault weapons. N.Y. Penal Law § 265.00(3). Rifles and shotguns are not subject to the licensing provisions of the statute.3

Section 400.00 of the Penal Law " is the exclusive statutory mechanism for the licensing of firearms in New York State." 4

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O'Connor v. Scarpino, 83 N.Y.2d 919, 920, 615 N.Y.S.2d 305, 638 N.E.2d 950 (1994) (Mem.); see N.Y. Penal Law § 265.20(a)(3). Licenses are limited to those over twenty-one years of age, of good moral character, without a history of crime or mental illness, and " concerning whom no good cause exists for the denial of the license." N.Y. Penal Law § 400.00(1)(a)-(d), (g).

Most licenses are limited by place or profession. Licenses " shall be issued" to possess a registered handgun in the home or in a place of business by a merchant or storekeeper. N.Y. Penal Law § 400.00(2)(a)-(b). And licenses " shall be issued" for a messenger employed by a banking institution or express company to carry a concealed handgun, as well as for certain state and city judges and those employed by a prison or jail. § 400.00(2)(c)-(e).

This case targets the license available under section 400.00(2)(f). That section provides that a license " shall be issued to ... have and carry [a firearm] concealed ... by any person when proper cause exists for the issuance thereof." N.Y. Penal Law § 400.00(2)(f). This is the only license available to carry a concealed handgun " without regard to employment or place of possession." Id. Given that New York bans carrying handguns openly, applicants— like Plaintiffs in this case— who desire to carry a handgun outside the home and who do not fit within one of the employment categories must demonstrate proper cause pursuant to section 400.00(2)(f).

" Proper cause" is not defined by the Penal Law, but New York State courts have defined the term to include carrying a handgun for target practice, hunting, or self-defense. When an applicant demonstrates proper cause to carry a handgun for target practice or hunting, the licensing officer may restrict a carry license " to the purposes that justified the issuance." 5 O'Connor, 83 N.Y.2d at 921, 615 N.Y.S.2d 305, 638 N.E.2d 950. In this regard, " a sincere desire to participate in target shooting and hunting ... constitute[s] a legitimate reason for the issuance of a pistol permit." In re O'Connor, 154 Misc.2d 694, 585 N.Y.S.2d 1000, 1003 (Westchester Cty. Ct.1992) (citing Davis v. Clyne, 58 A.D.2d 947, 947, 397 N.Y.S.2d 186 (3d Dep't 1977)).

To establish proper cause to obtain a license without any restrictions— the full-carry license that Plaintiffs seek in this case— an applicant must "...

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