Grimm v. City of New York

• Decision Date: 19 February 1968
• Citation: 289 N.Y.S.2d 358,56 Misc.2d 525
• Parties: Edward GRIMM, Leonard Gruppuso, Mary Petrosa, Matthew Rothman, Lawrence, Morraco, Harold Billingy, David E. Graham, Frederick Manzke and Joseph Bertolini, Plaintiffs, v. The CITY OF NEW YORK, John V. Lindsay, as Mayor of the City of New York Frank D. O'Connor, as President of the Council of the City of New York, Howard R. Leary, as Police Commissioner of the City of New York and as a member of the Firearms Control Board of the City of New York, Herman Katz, as City Clerk of the City of New York and as a member of the Firearms Control Board of the City of New York, Joel J. Tyler, as Commissioner of Licenses of the City of New York and as a member of the Firearms Control Board of the City of New York, Mario Procaccino, as Comptroller of the City of New York and the members of the Rifle and Shotgun Purchase and Possession Permit Appeals Board of the City of New York, Defendants.
• Court: New York Supreme Court

Page 358

289 N.Y.S.2d 358

56 Misc.2d 525

Edward GRIMM, Leonard Gruppuso, Mary Petrosa, Matthew

Rothman, Lawrence, Morraco, Harold Billingy, David

E. Graham, Frederick Manzke and Joseph

Bertolini, Plaintiffs, v. The CITY OF NEW YORK, John V. Lindsay, as Mayor of the City

of New York Frank D. O'Connor, as President of the Council

of the City of New York, Howard R. Leary, as Police

Commissioner of the City of New York and as a member of the

Firearms Control Board of the City of New York, Herman Katz,

as City Clerk of the City of New York and as a member of the

Firearms Control Board of the City of New York, Joel J.

Tyler, as Commissioner of Licenses of the City of New York

and as a member of the Firearms Control Board of the City of

New York, Mario Procaccino, as Comptroller of the City of

New York and the members of the Rifle and Shotgun Purchase

and Possession Permit Appeals Board of the City of New York,

Defendants.

Supreme Court, Special Term, Queens County, Part I.

Feb. 19, 1968.

Frederick M. Reuss, Jr., Hollis, for plaintiffs.

J. Lee Rankin, Corp. Counsel, New York City, for defendants.

JAMES J. CRISONA, Justice.

In this action to declare unconstitutional and to permanently enjoin the enforcement of Local Law 106 of 1967 of the City of New York (Administrative Code of City of New York, §§ 436-6.0--436-6.16 (hereinafter referred to as the 'Gun Control Law'), the plaintiffs move for a temporary injunction. All the defendants cross-move to dismiss the complaint for failure to state a cause of action.

The papers and briefs submitted by both sides make it clear that the sole issue to be decided is the constitutionality of this statute. Accordingly, the defendants' cross motion, is in effect, a motion for summary judgment and is so deemed. (Cf. Joseph E. Seagram & Sons, Inc. v. Hostetter, 45 Misc.2d 956, 961, 258 N.Y.S.2d 442, 449, affd. 23 A.D.2d 933, 259 N.Y.S.2d 644, affd. 16 N.Y.2d 47, 262 N.Y.S.2d 75, 209 N.E.2d 701, affd. 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336.) As such, the cross motion is granted. Accordingly, plaintiffs' motion is, for reason of mootness, denied.

The Gun Control Law provides in essence that no person may purchase or possess a rifle or shotgun unless that person has first obtained a permit for that weapon. Under its terms, no person of good moral character and of good repute in the community may be denied a permit unless that person is subject to certain specified disabilities. Persons subject to the enumerated disabilities include those under the age of eighteen, convicted felons, mental defective, habitual drunkards, narcotics addicts and persons to whom the issuance of a permit would not be in the interests of public health, safety or welfare. The statute establishes the 'Firearms Control Board' and charges it with the function of issuing permits. An applicant for a permit must submit certain personal data, must state whether or not he suffers from any of the statutory disabilities and must submit to fingerprinting and pay a fee of three dollars. After an investigation, the board must, within thirty days, issue a permit or notify the applicant of the denial of his application and the reasons therefor. An appeal procedure for aggrieved applicants is provided.

The Gun Control Law also requires that each rifle and shotgun must be registered and that a certificate of registration be issued therefor. Persons in possession of such weapons at the effective date of the law are granted six months within which to register their weapons. At the time of registration, these individuals must also apply for permits. Plaintiffs are owners of rifles or shotguns and must comply with the provisions of the Gun Control Law or be subject to the penalties provided for violation thereof.

Plaintiffs raise virtually every conceivable constitutional objection to the Gun Control Law. They claim that it deprives them of liberty and property without due process; that it violates the Second Amendment of the United States Constitution; that the City lacked power to legislate in this area because the State of New York has preempted the entire field of firearms control and that the statute is vague and indefinite, unreasonable and arbitrary. There is, of course, a strong presumption of constitutionality. The burden of demonstrating unconstitutionality rests upon the one asserting it and only as a last unavoidable resort will the courts strike down a legislative enactment as unconstitutional. (Matter of Spielvogel v. Ford, 1 N.Y.2d 558, 562, 154 N.Y.S.2d 889, 891, 136 N.E.2d 856, 857, app. dsmd. 352 U.S. 957, 77 S.Ct. 362, 1 L.Ed.2d 316.) In the court's view, the plaintiffs have not met their burden.

Prior to the adoption of this statute by the New York City Council, its committee and subcommittee conducted hearings at which the testimony of numerous individuals was taken with respect to the need for this legislation. In its report recommending adoption of this measure, the Committee on City Affairs of the Council stated that there existed an evil in the misuse of rifles and shotguns by criminals and persons not qualified to use these weapons and that the ease with which the weapons could be obtained was of concern to the committee. It further stated that the committee had concluded that in order to meet the problems raised, this legislation should be enacted. The plaintiffs have not asserted any facts to dispute the findings of the Council that a problem exists. Plaintiffs do quarrel with the Council's conclusion that the Gun Control Law is the proper way to solve the problem.

The test for determining the constitutionality of a statute is to ascertain whether the legislative body had a reasonable basis upon which to act and whether the enactment is reasonably related to some actual manifest evil. (Matter of Spielvogel v. Ford, supra, at pp. 562--563, 154 N.Y.S.2d at pp. 891--892, 136 N.E.2d at pp. 857--858.) The question of the wisdom of the legislative enactment is not for the courts to decide. (Grossman v. Baumgartner, 17 N.Y.2d 345, 350, 271 N.Y.S.2d 195, 199, 218 N.E.2d 259, 262.) The courts seek only to determine that the relationship between the end sought and the means adopted is 'not wholly vain and fanciful, an illusory pretense'. (Chiropractic Association of New York, Inc. v. Hilleboe, 12 N.Y.2d 109, 114, 237 N.Y.S.2d 289, 291, 187 N.E.2d 756, 757.)

In applying this test, the court concludes that the Gun Control Law is reasonably related to an actual manifest evil, as found by the Council, and that the legislation represents a reasonable means for attempting to solve this problem. The Gun Control Law does not by its terms deprive the average citizen of the use and enjoyment of rifles or shotguns. On the contrary, it provides that no person shall be denied a permit unless he falls within the disabilities of the law. Can it be found to be unreasonable that mental defectives, habitual drunkards and convicted felons may be deprived of the opportunity to buy a shotgun? The court thinks not. An appellate court of the State of New Jersey recently adopted the same view of a similar statute. (Burton v. Sills, 99 N.J.Super. 459, 240 A.2d 432, decided by the Superior Court of New Jersey, Appellate Division, on January 9, 1968.) It is true that the average citizen will have to apply for a permit and comply with the application procedures of the Law. However, as was stated in a case sustaining the constitutionality of the Sullivan Law (presently Penal Law, Article 265), 'Legislation, which has for its object the promotion of the public welfare and safety falls within the scope of the police power and must be submitted to even though it imposes restraints and burdens on the individual.' (People ex rel. Darling v. Warden of City Prison, 154 App.Div. 413, at 423, 139 N.Y.S. 277, at 285.)

The City claims its authority to adopt this law resides in its police power, the power of local governments to adopt laws...