Avitabile v. Beach

• Decision Date: 28 September 2017
• Docket Number: 1:16–CV–1447
• Citation: 277 F.Supp.3d 326
• Parties: Matthew AVITABILE, Plaintiff, v. Lt. Col. George BEACH, in his official capacity as Superintendent of the New York State Police, and James Sacket, in his official capacity as District Attorney of Schoharie County, New York, Defendants.
• Court: U.S. District Court — Northern District of New York

277 F.Supp.3d 326

Matthew AVITABILE, Plaintiff,

v.Lt. Col. George BEACH, in his official capacity as Superintendent of the New York State Police, and James Sacket, in his official capacity as District Attorney of Schoharie County, New York, Defendants.

1:16–CV–1447

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

Signed September 28, 2017

STAMBOULIEH LAW, PLLC, OF COUNSEL: STEPHEN D. STAMBOULIEH, ESQ., Attorneys for Plaintiff Matthew Avitabile, P.O. Box 4008, Madison, MS 39130

ALAN A BECK LAW FIRM, ALAN ALEXANDER BECK, ESQ., Attorneys for Plaintiff Matthew Avitabile, 2692 Harcourt Drive, San Diego, CA 92122

HON. ERIC T. SCHNEIDERMAN, MICHAEL G. MCCARTIN, ESQ., Ass't Attorney General, New York State Attorney General, Attorneys for Defendant Lt. Col. George Beach, The Capitol Albany, NY 12224

LEMIRE, JOHNSON LAW FIRM, GREGG T. JOHNSON, ESQ. APRIL J. LAWS, ESQ., Attorneys for Defendant James Sacket, 2534 Route 9, Malta, NY 12020

EMERY CELLI BRINCKERHOFF & ABADY LLP, ILANN M. MAAZEL, ESQ., Attorneys for Amicus Everytown for Gun Safety, 600 Fifth Avenue, 10th Floor, New York, NY 10020

MEMORANDUM–DECISION and ORDER

DAVID N. HURD United States District Judge

I. INTRODUCTION

Plaintiff Matthew Avitabile ("Avitabile" or "plaintiff") has filed this 42 U.S.C. § 1983 official-capacity action against defendants New York State Police Superintendent George Beach (the "Police Superintendent") and Schoharie County District Attorney James Sacket (the "District Attorney") seeking a declaration that New York State's blanket ban on the possession of stun guns and other electronic weapons violates the Second Amendment to the U.S. Constitution.¹

The Police Superintendent has answered the operative complaint. However, there are three motions pending. First, the District Attorney has moved to dismiss under Federal Rule of Civil Procedure ("Rule") 12(b)(6), arguing that Avitabile's constitutional claim is not yet ripe or, in the alternative, that he is shielded from participation in this suit by various immunity principles. Second, plaintiff has moved under Rule 65 seeking a preliminary injunction against any continuing enforcement of the statewide ban. Third, "Everytown for Gun Safety," a gun violence prevention organization, has moved for leave to participate as amicus curiae.

The three motions have been fully briefed and oral argument was heard on March 24, 2017, in Utica, New York. Decision was reserved.

II. BACKGROUND

Avitabile is a resident of Schoharie County, New York who "desires to purchase a stun gun or Taser for self-defense and other lawful purposes in his home" because he believes this kind of device would "minimize the likelihood that he would have to resort to deadly force in the event he was forced to defend himself or his home from a violent criminal attack." Am. Compl. ¶¶ 1, 44, 51.

According to Avitabile, stun guns and Tasers offer a number of material advantages over other less-lethal means of self-defense, such as sprays or contact weapons like knives or clubs. Am. Compl. ¶¶ 26–34 (detailing alleged disadvantages of other methods).²

However, the current state of New York law renders illegal the object of Avitabile's desire, since a person is guilty of fourth degree criminal possession of a weapon when he or she possesses, inter alia, any "electronic dart gun" or "electronic stun gun." N.Y. Penal Law § 265.01(1).

New York's penal law defines an "electronic dart gun" as "any device designed primarily as a weapon, the purpose of which is to momentarily stun, knock out or paralyze a person by passing an electrical shock to such person by means of a dart or projectile," § 265.00(15–a), and an "electronic stun gun" as "any device designed primarily as a weapon, the purpose of which is to stun, cause mental disorientation, knock out or paralyze a person by passing a high voltage electrical shock to such person," § 265.00(15–c).

As relevant here, the Police Superintendent bears responsibility for enforcing New York State's customs, policies, practices, and laws regarding stun guns and other electronic firearms, Am. Compl. ¶ 6, while the District Attorney is charged with the duty "to conduct all prosecutions for crimes and offenses cognizable by the courts" in Schoharie County, including crimes under New York Penal Law § 265.00 et seq .Id. ¶ 7.

III. DISCUSSION

Before turning to Avitabile's request for a preliminary injunction, there are two threshold matters that must be resolved.

A. Amicus Curiae

First, Everytown has moved for leave to participate in this suit as amicus curiae "in support of the defendants' opposition to the plaintiffs' motion for a preliminary and/or permanent injunction."

The remaining parties have consented to Everytown's participation and an independent review of amicus's submission confirms that it satisfies the appropriate discretionary standard. Accordingly, Everytown's motion will be granted. See, e.g., Williams v. Conway, 236 F.Supp.3d 554, 571 n.8 (N.D.N.Y. 2017) (explaining that the usual rationale for permitting an amicus submission is that it aids the court by offering insights not available from the parties).

B. District Attorney's Motion to Dismiss

Second, the District Attorney offers three reasons he must be dismissed from this suit. According to him, Avitabile's constitutional claim is not yet ripe for adjudication because plaintiff fails to allege that he has yet purchased, attempted to purchase, or been prosecuted for possession of a Taser or stun gun.

"The ripeness doctrine is drawn from both 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). In other words, "the doctrine implicates two distinct conceptual jurisdictional criteria." Nat'l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 687 (2d Cir. 2013) (citing Simmonds v. INS, 326 F.3d 351, 356–57 (2d Cir. 2003) ).

The District Attorney's argument appears grounded in the first of these jurisdictional criteria; i.e., constitutional ripeness. As the Second Circuit has explained, "the best way to think of constitutional ripeness is as a specific application of the actual injury aspect of Article III standing." Walsh, 714 F.3d at 688.

"Constitutional ripeness, in other words, is really just about the first Lujan factor—to say a plaintiff's claim is constitutionally unripe is to say the plaintiff's claimed injury, if any, is not ‘actual or imminent’ but instead ‘conjectural or hypothetical.’ " Walsh, 714 F.3d at 688 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

With this body of law in mind, the District Attorney's argument must be rejected. "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).

As Avitabile's opposition memorandum explains, the Supreme Court's decision in Susan B. Anthony List v. Driehaus, ––– U.S. ––––, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014), confirmed that a plaintiff has standing to bring a pre-enforcement challenge like the one at issue here under circumstances that render the threatened enforcement imminent, a state of affairs that exists where a plaintiff alleges "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Id. at 2342 (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) ).

Some district courts in this Circuit have been reluctant to broadly apply the "more permissive" standing and ripeness rules bound up in this "credible threat of prosecution" standard. See Jones v. Schneiderman, 101 F.Supp.3d 283, 289 n.4 (S.D.N.Y. 2015) (observing that this "standard has been applied predominantly to First Amendment lawsuits seeking to enjoin the prospective application of statutory prohibitions to protected speech"); see also Nation v. Tanner, 108 F.Supp.3d 29, 33–34 (N.D.N.Y. 2015) (denying plaintiffs' motion to reconsider dismissal for lack of standing based on conclusion that only vague, generalized threats of future enforcement existed).

However, the Second Circuit has repeatedly determined that pre-enforcement challenges to criminal statutes, such as § 265.01, are cognizable provided the plaintiff's claim for relief does not rest wholly on a fear that is "imaginary or speculative." Knife Rights, Inc. v. Vance, 802 F.3d 377, 384 (2d Cir. 2015) ; cf. Cayuga Nation v. Tanner, 824 F.3d 321, 331 (2d Cir. 2016) (reversing dismissal for lack of standing where "there is reason to believe that the plaintiffs will be targets of criminal prosecution, and there has been no disavowal of an intention to prosecute those individuals").

Ripeness "is peculiarly a question of timing." Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). In this case, there is no indication that the District Attorney has articulated any specific policy positions regarding enforcement of New York's stun gun ban. Nor is there any indication that the District Attorney has made any specific statements that might be construed as targeting Avitabile's conduct in particular.

But Avitabile has publicly announced his own desire to purchase and possess such a weapon for self-defense purposes in his own home, Avitabile Decl. ¶¶ 5–6, conduct that would be likely to result in his prosecution under § 265.01.

And there is no question that it is the District Attorney who is charged with the duty "to conduct all prosecutions for crimes and offenses cognizable by the courts" in Schoharie County, where plaintiff resides. See N.Y. County Law § 700.

Indeed, it is hard to imagine what, if any, additional...