City of New York v. Job-Lot Pushcart

• Decision Date: 07 May 1996
• Docket Number: JA-R,A,JOB-LOT
• Citation: 643 N.Y.S.2d 944,88 N.Y.2d 163,666 N.E.2d 537
• Parties: , 666 N.E.2d 537, 64 USLW 2717 CITY OF NEW YORK, Respondent, v.PUSHCART et al., Defendants, andppellant.
• Court: New York Court of Appeals Court of Appeals

Page 944

643 N.Y.S.2d 944

88 N.Y.2d 163, 666 N.E.2d 537, 64 USLW 2717

CITY OF NEW YORK, Respondent, v. JOB-LOT PUSHCART et al., Defendants and JA-RU, Appellant.

Court of Appeals of New York.

May 7, 1996.

Certiorari Denied Oct. 7, 1996. See 117 S.Ct. 186.

[88 N.Y.2d 164] [666 N.E.2d 538] Locker Greenberg & Branin, P.C., New York City (Frederick B. Locker, of counsel), for appellant.

Paul A. Crotty, Corporation Counsel, New York City (George Gutwirth and Francis F. Caputo, of counsel), for respondent.

OPINION OF THE COURT

CIPARICK, Judge.

Since 1955, New York City has outlawed the sale, possession or use of any toy or imitation gun which substantially resembles an actual firearm because of the toy's potential for nefarious exploitation (see, Administrative Code of City of NY § 10-131[g]; Proceedings of NY City Council, at 24 [Jan 18, 1955]. Only toy guns that are not blue, black, silver or aluminum in color, bear an identifiable trade name or mark, and contain a solid plug in the barrel can be sold, possessed or used in New York City (see, Administrative Code § 10-131[g] ). At issue is whether these conditions are preempted by the 1988 Federal Toy Gun Law. We conclude that Congress has not expressly or impliedly preempted local regulation of the markings on toy guns, and that the conditions set forth in Administrative Code § 10-131(g) are not incompatible or inconsistent with those provided in the Federal Toy Gun Law in that compliance with both is not impossible. Indeed, compliance with the Administrative Code conditions furthers the public safety aim of the Federal statute. Therefore, we affirm the order of the Appellate Division and answer the certified question in the affirmative.

I.

The City instituted this action against defendants, entities that place toy guns into the New York City stream of commerce, to permanently enjoin the manufacture, distribution, transportation, sale and possession of toy weapons in violation of Administrative Code § 10-131(g). Evidently, the toy guns confiscated from defendants duplicate the semiautomatic assault pistols frequently used in the commission of crimes, are black in color, and do not bear any mark identifying the manufacturer. In opposition to plaintiff's order to show cause seeking a preliminary injunction, defendant-appellant JA-RU, Inc., a national distributor and marketer of toy guns, moved for a declaration that Administrative Code § 10-131(g) was preempted by the Federal Toy Gun Law (15 U.S.C. § 5001) and its implementing regulations (15 C.F.R. 1150.1 et seq.) (collectively, the Federal Toy Gun Law), arguing that the City's action contravened the Federal statute regulating toy weapons. JA-RU represented that it distributes toy guns that comply with the markings approved by the Secretary of Commerce, which require that the toy contain a "blaze orange solid plug permanently affixed to the muzzle end of the barrel and recessed no more than 6 millimeters from the muzzle end" (15 C.F.R. 1150.3[a].

Supreme Court preliminarily enjoined defendants from selling and distributing toy guns in violation of Administrative Code § 10-131(g), and denied JA-RU's motion by declaring that Administrative Code § 10-131(g) is not preempted by 15 U.S.C. § 5001. The Appellate Division affirmed, with two Justices dissenting (see, City of New York v. Job-Lot Pushcart, 213 A.D.2d 210, 623 N.Y.S.2d 851), and certified the question, "Was the order of the Supreme Court, as affirmed by this Court, properly made?"

On this appeal, JA-RU strenuously argues that Congress's intent to preempt all State and local laws relating to toy guns is plain on the face of 15 U.S.C. § 5001(g). According to JA-RU, Congress delineated a comprehensive scheme of identification and markings that cannot be superseded by a different State or local scheme. Because Administrative Code § 10-131(g) prohibits what is permitted under the Federal Toy Gun Law, JA-RU asserts, the Administrative Code provision is inconsistent with the Federal Toy Gun Law. JA-RU posits that preemption of the incompatible City law comports with "one of the [Federal statute's] essential purposes * * * a uniform scheme of national regulation." We disagree.

II.

The premise of JA-RU's argument is the well-settled rule that the Supremacy Clause of the United States Constitution (U.S. Const., art. VI, cl. [2] invalidates State or local laws that "interfere with, or are contrary to" Federal law (Gibbons v. Ogden, 9 Wheat [22 U.S.] 1, 211, 6 L.Ed. 23). However, the conclusion urged by JA-RU--that the Federal Toy Gun Law preempts Administrative Code § 10-131(g)--does not result from an application of traditional preemption principles but from the economic impact on JA-RU resulting from the ban on the distribution of its toy guns in New York City.

The threshold issue in the preemption analysis is whether the subject Federal legislation intrudes on traditional police powers reserved to the States (see, Cipollone v. Liggett Group, 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407). Historically, the regulation of health, safety and welfare has been the province of the States (see, Toy Mfrs. v. Blumenthal, 986 F.2d 615, 617). The United States Supreme Court has decreed that unless Congress manifestly and clearly intends to preempt the States' exercise of jurisdiction over matters relating to the welfare of their citizens, the States' police powers are not to be superseded by a Federal act (see, Rice v. Santa Fe El. Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447; see also, Fidelity Fed. Sav. & Loan Assn. v. de la Cuesta, 458 U.S. 141, 152-153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664; Auto Workers v. Wisconsin Bd., 351 U.S. 266, 274-275, 76 S.Ct. 794, 799, 100 L.Ed. 1162 ["States are the natural guardians of the public against violence * * * We would not interpret an act of Congress to leave them powerless to avert * * * emergencies without compelling directions to that effect"]; Florida Avocado Growers v. Paul, 373 U.S. 132, 146-147, 83 S.Ct. 1210, 1219-1220, 10 L.Ed.2d 248; N.Y. Const., art. IX, § 2[c][ii] ). Therefore, the "purpose of Congress is the ultimate touchstone" of preemption analysis (Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 223, 11 L.Ed.2d 179).

Because it is uncontroverted that Administrative Code § 10-131(g) represents a valid exercise of the police powers delegated to the City by the State Constitution and the Municipal Home Rule provisions (see, People v. Judiz, 38 N.Y.2d 529, 531, 381 N.Y.S.2d 467, 344 N.E.2d 399), the efficacy of the City ordinance turns on whether Congress has preempted all State and local regulation of toy guns pursuant to 15 U.S.C. § 5001(g) (see, Florida Avocado Growers v. Paul, 373 U.S., at 142, 83 S.Ct. at 1217, supra; see also, Consolidated Edison Co. v. Town of Red Hook, 60 N.Y.2d 99, 107, 468 N.Y.S.2d 596, 456 N.E.2d 487; People v. De Jesus, 54 N.Y.2d 465, 468, 446 N.Y.S.2d 207, 430 N.E.2d 1260; People v. Lewis, 295 N.Y. 42, 49-50, 64 N.E.2d 702).

As we summarized in People v. Pymm, 76 N.Y.2d 511, 519, 561 N.Y.S.2d 687, 563 N.E.2d 1, cert. denied 498 U.S. 1085, 111 S.Ct. 958, 112 L.Ed.2d 1046, there are three ways in which a Federal law can preempt a State or local law: one, by express provision in the Federal statute; two, by inference, where the Federal legislative scheme is so pervasive and the character of the obligations imposed leaves no room for the State or local government to legislate; and three, to the extent that the State or local law actually conflicts with the Federal law, for example where compliance with both is impossible or adherence to the State or local law would thwart the objectives of its Federal counterpart (internal citations omitted; see also, Barnett Bank v. Nelson, 517 U.S. ----, ---- - ----, 116 S.Ct. 1103, 1106-1109, 134 L.Ed.2d 237).

We turn first to a consideration of the specific language of preemption employed by Congress in the Federal Toy Gun Law.

A.

The preemption provision in the Federal Toy Gun Law provides that

"The provisions of this section shall supersede any provision of State or local laws or ordinances which provide for markings or identification inconsistent with provisions of this section provided that no State shall--

"(i) prohibit the sale or manufacture of any look-alike, nonfiring, collector replica of an antique firearm developed prior to 1898, or

"(ii) prohibit the sale (other than prohibiting the sale to minors) of traditional B-B, paint ball, or pellet-firing air guns that expel a projectile through the force of air pressure." (15 U.S.C. § 5001[g].)

The sweep of the Federal Toy Gun Law's preemption clause is not as far-reaching as JA-RU and the dissenters below contend by urging that the statutory language explicitly preempts the field and ends the inquiry (see, City of New York v. Job-Lot Pushcart, 213 A.D.2d, at 213, 623 N.Y.S.2d 851, supra ). Rather, the plain language employed by Congress demonstrates that only State regulation of replicas of antique collector firearms, B-B guns, paint ball guns, or pellet-firing air guns is expressly preempted under 15 U.S.C. § 5001(g), which bars any State from prohibiting the sale of such devices, and with respect to antique replicas of pre-1898 firearms, the manufacture of such devices (see, 15 U.S.C. § 5001[g][i], [ii]; Coalition of N.J. Sportsmen v. Florio, 744 F.Supp. 602, 608-609).

The clearly defined reach of this provision compels the conclusion that Congress did not intend to supersede all local regulation of markings on toy guns. Where "Congress has considered the issue of pre-emption and has included * * * a provision explicitly addressing that issue * * * 'there is no need to infer congressional intent to pre-empt [other] state laws from the substantive provisions' of the legislation. * * * Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted" (Cipollone v....