Abekassis v. New York City

• Citation: 477 F.Supp.3d 139
• Decision Date: 07 August 2020
• Docket Number: 19 Civ. 8004 (PAE)
• Parties: Ralph ABEKASSIS, Plaintiff, v. NEW YORK CITY, NEW YORK; Commissioner James O'Neill, in his official capacity as Police Commissioner, and all successors therein; Director Jonathan David, in his official capacity as Director, NYPD License Division; Commanding Officer Michael Barreto, in his official capacity as Commanding Officer of the License Division, Defendants.
• Court: U.S. District Court — Southern District of New York

477 F.Supp.3d 139

Ralph ABEKASSIS, Plaintiff,

v.NEW YORK CITY, NEW YORK; Commissioner James O'Neill, in his official capacity as Police Commissioner, and all successors therein; Director Jonathan David, in his official capacity as Director, NYPD License Division; Commanding Officer Michael Barreto, in his official capacity as Commanding Officer of the License Division, Defendants.

19 Civ. 8004 (PAE)

United States District Court, S.D. New York.

Signed August 7, 2020

Amy L. Bellantoni, The Bellantoni Law Firm, LLP, Scarsdale, NY, for Plaintiff.

Aimee Kara Lulich, NYC Law Department, New York, NY, for Defendants.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Plaintiff Ralph Abekassis, a New York resident, brings this action for declaratory and injunctive relief against the City of New York ("the City"), New York Police Department ("NYPD") Commissioner James O'Neill, NYPD License Division Director Jonathan David, and NYPD License Division Commanding Officer Michael Barreto. Abekassis applied for a license to possess a handgun in his home. Defendants denied his application, based on his prior arrests, criminal summonses, and driving history, including numerous moving violations and license suspensions. Abekassis seeks a declaration that portions of New York City's gun licensing scheme—specifically 38 RCNY § 5-10 (a), (h), (l), and (n)—violate the Second Amendment, facially and as applied, and asks the Court to enjoin defendants from enforcing those provisions.

Before the Court is defendants’ motion to dismiss the Complaint. For the reasons that follow, the Court grants that motion in full.

I. Background

A. Statutory and Regulatory Background¹

1. The New York State Statutory Scheme

New York State prohibits possession of "firearms," including handguns, without a license. Kachalsky v. County of Westchester , 701 F.3d 81, 85 (2d Cir. 2012) (citing N.Y. Penal Law §§ 265.01 – 265.04, 265.20(a)(3) ); see also Toussaint v. City of New York , No. 17 Civ. 5576 (NGG), 2018 WL 4288637, at *4 (E.D.N.Y. Sept. 7, 2018). In New York, individuals may apply for a "premises license" or a "carry license." See N.Y. State Rifle & Pistol Ass'n v. City of New York ("NYSRP v. City "), 883 F.3d 45, 52–53 (2d Cir. 2018) (internal quotation marks omitted) (citing N.Y. Penal Law § 400.00(2)(a), (f) ), vacated as moot , ––– U.S. ––––, 140 S. Ct. 1525, 1526–27, 206 L.Ed.2d 798 (2020). "A premises license is specific to the premises for which it is issued," such as a home. See id. at 53 ; see also 38 RCNY § 5-01(a) (defining premises license as "a restricted handgun license, issued for a specific business or residence location").

New York Penal Law § 400.00 provides "the exclusive statutory mechanism for the licensing of firearms in New York State." Kachalsky , 701 F.3d at 85 (quoting O'Connor v. Scarpino , 83 N.Y.2d 919, 920, 615 N.Y.S.2d 305, 638 N.E.2d 950 (1994) ). Under § 400.00, a licensing officer is to issue a firearm license "only after investigation and finding that all statements in a proper application for a license are true." N.Y. Penal Law § 400.00(1). To receive a license, § 400.00 requires that an applicant, inter alia , be at least age 21, lack convictions for felonies or serious offenses, be of good moral character, and be someone for "whom no good cause exists for the denial of the license." Id. § 400.00(1)(a)–(c), (n).

2. The New York City Regulatory Scheme

"To obtain a handgun license, an individual must apply to his or her local licensing officer." NYSRP v. City , 883 F.3d at 52. The N.Y. Penal Law specifies that, for New York City, that official is the Police Commissioner. See id. (citing N.Y. Penal Law § 265.00(10) ). The NYPD License Division exercises the Police Commissioner's authority in processing and issuing handgun licenses. Id. (citing 38 RCNY §§ 5-01–5-11). "Every application triggers a local investigation by police into the applicant's mental health history, criminal history, [and] moral character[.]" Kachalsky , 701 F.3d at 87. When considering the findings of such investigation, the licensing officer "has considerable discretion in whether to grant a license application." Toussaint , 2018 WL 4288637, at *4 (citing NYSRP v. City , 883 F.3d at 52 ).

The relevant grounds for denial of a handgun license are set forth in Title 38 of the Rules of the City of New York ("RCNY") at § 5-10. Section 5-10 states that an application "may be denied where it is determined that an applicant lacks good moral character or that other cause exists for the denial, pursuant to New York State Penal Law § 400.00(1)." 38 RCNY § 5-10. It then sets out 14 factors that a licensing official must consider when making a license determination. These factors assess whether:

(a) The applicant has been arrested, indicted or convicted for a crime or violation except minor traffic violations, in any federal, state or local jurisdiction[;]

(b) [t]he applicant has been other than honorably discharged from the Armed Forces of this country[;]

(c) [t]he applicant has or is reasonably believed to have a disability or condition that may affect the ability to safely possess or use a handgun, including but not limited to alcoholism, drug use or mental illness[;]

(d) [t]he applicant is or has been an unlawful user of, or addicted to, a controlled substance or marijuana[;]

(e) [t]he applicant made a false statement on her/his application, or failed to disclose her/his complete arrest history, including sealed arrests. Sealed arrests are made available to the License Division pursuant to Article 160 of the Criminal Procedure Law when an application has been made for a license to possess a gun[;]

(f) [t]he applicant is the subject of an order of protection or a temporary order of protection[;]

(g) [t]he applicant has a history of one or more incidents of domestic violence[;]

(h) [t]he applicant has a poor driving history, has multiple driver license suspensions or has been declared a scofflaw by the New York State Department of Motor Vehicles[;]

(i) [t]he applicant has failed to comply with federal, state or local law or with Police Department rules governing possession and use of firearms, rifles, shotguns or ammunition[;]

(j) [t]he applicant has been terminated from employment under circumstances that demonstrate lack of good judgment or lack of good moral character[;]

(k) [t]he applicant has demonstrated an inability to safely store firearms, such as through a history of lost/stolen firearms[;]

(l) [t]he applicant has failed to pay legally required debts such as child support, taxes, fines or penalties imposed by governmental authorities[;]

(m) [t]he applicant fails to cooperate with the License Division's investigation of her/his application or fails to provide information requested by the License Division or required by this chapter[; and]

(n) [there is] [o]ther information [that] demonstrates an unwillingness to abide by the law, a lack of candor towards lawful authorities, a lack of concern for the safety of oneself and/or other persons and/or for public safety, and/or other good cause for the denial of the license.

Id. § 5-10(a)–(n). Section 5-10 directs that the License Division "shall consider all relevant factors, including but not limited to the number, recency and severity of incidents and the outcome of any judicial or administrative proceedings." Id. § 5-10.

B. Factual Background²

1. The Parties

Plaintiff Abekassis is age 33 and resides in New York City.³ Compl. ¶¶ 4, 18–19.

Defendant O'Neill, at the time of the filing of the Complaint, was the NYPD Police Commissioner, and, in that role, also served as the "Pistol Licensing Officer" for New York City.⁴ Id. ¶ 5a. In that position, O'Neill set the customs, policies, and procedures for the NYPD units that address handgun licenses. Id. ¶ 6. Defendant Barreto, who works for the NYPD License Division, is authorized to approve or disapprove handgun license applications in the first instance. Id. ¶ 9. If Barreto denies an application, the applicant may file an appeal with the NYPD License Division's Appeals Unit within 30 days. Id. ¶ 12. Defendant David, as the director of the Appeals Unit, is authorized to make a final decision on handgun license applications that have been appealed. Id. ¶¶ 13–14.

2. Abekassis's Application for a Premises Handgun License

In 2018, Abekassis applied to the NYPD License Division for a premises handgun license. Id. ¶¶ 22–23. On January 24, 2019, Barreto denied the application. Id. ¶ 25. Barreto stated that the denial was based on Abekassis's two prior arrests (one for arson; the other for aggravated unlicensed operation of a motor vehicle in the third degree); five criminal summonses (for failure to pay commercial tax, improper license plates, improper registration, being in a park after dark, and operating a boat without registration numbers); and driving history, including 16 moving violations⁵ and six license suspensions.⁶ Id. ¶¶ 26, 30, 32.

On February 14, 2019, Abekassis filed an administrative appeal with the NYPD License Division's Appeals Unit. Id. ¶ 28. In the appeal, Abekassis noted that he had no criminal convictions. He also provided context for his arrests and summonses. See id. ¶ 30; see also id. ¶ 79. As to the two arrests, Abekassis stated that (1) on October 24, 2001, he was arrested at age 16 for arson when he and a friend were caught playing with a lighter in an apartment building, and he was not prosecuted for that charge; and (2) on July 11, 2006, at age 21, he was arrested for aggravated unlicensed operation of a motor vehicle in the third degree for failure to pay tickets, and he pled guilty to a reduced non-criminal offense. See id. ; see also id. ¶¶ 80–81. As to his driving history, he stated that he had received 14, not 16, moving violations over the course of 10 years, paid the fines for his unanswered tickets as soon as he had become aware of them, and completed an accident prevention course. See id. ¶ 30. Abekassis argued that on these bases, his application...