Juzumas v. Nassau Cnty.

• Decision Date: 30 September 2019
• Docket Number: 2:17-cv-03049 (AMD) (JO)
• Parties: Victor JUZUMAS, Plaintiff, v. NASSAU COUNTY, et al., Defendant.
• Court: U.S. District Court — Eastern District of New York

417 F.Supp.3d 178

Victor JUZUMAS, Plaintiff,

v.NASSAU COUNTY, et al., Defendant.

2:17-cv-03049 (AMD) (JO)

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

Signed September 30, 2019

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

Ralph J. Reissman, Nassau County Attorney's Office, Mineola, NY, for Defendant.

MEMORANDUM DECISION AND ORDER

ANN M. DONNELLY, United States District Judge:

On May 21, 2017, Victor Juzumas brought this action against Nassau County and five unidentified "John Doe" Nassau County police officers.¹ He alleges violations of his First, Second, Fourth, and Fourteenth Amendment rights under 42 U.S.C. § 1983, a Section 1983 conspiracy, and Monell liability. The parties cross-moved for summary judgment. I held oral argument on September 19, 2019. For the reasons that follow, the parties' motions are granted in part and denied in part.

BACKGROUND

I. The Law

New York State's firearm regulations define different types of guns. A "firearm" is a pistol, a revolver, a sawed-off² shotgun or rifle, or an assault weapon. N.Y. Penal Law § 265.00(3). A "rifle" is "a weapon ... intended to be fired from the shoulder [that] use[s] the energy of the explosive in a fixed metallic cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger." Id. at § 265.00(11). A "shotgun" is "a weapon ... intended to be fired from the shoulder [that] use[s] the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger." Id. at § 265.00(12). Rifles and shotguns are known as long guns or longarms. See Dudek v. Nassau Cnty. Sheriff's Dep't , 991 F. Supp. 2d 402, 407 n.7 (E.D.N.Y. 2013) (comparing longarms with other guns).

New York State prohibits the possession of a firearm without a license. N.Y. Penal Law § 265.20(a)(3). Section 400.00 of the New York Penal Law – "the exclusive statutory mechanism for the licensing of firearms in New York State" Kachalsky v. Cnty. of Westchester , 701 F.3d 81, 85-86 (2d Cir. 2012) (citation omitted) – provides licensing officers³ with "broad discretion in determining whether to issue or revoke a license to possess firearms." Weinstein v. Krumpter , 386 F. Supp. 3d 220, 231 (E.D.N.Y. 2019) (citation omitted). Applicants for firearm licenses must meet certain criteria, including:

• They must be twenty-one years old or older, and of good moral character.

• They must not have convictions for a felony or serious offense.

• They must not have a history of mental illness.

• There must be "no good cause ... for the denial of the license."

See N.Y. Penal Law § 400.00(1).

Longarms, on the other hand, "pose a unique legal issue because, unlike other firearms, ‘there is no license requirement for the purchase or possession of longarms.’ " Panzella v. Cnty. of Nassau , No. 13-CV-5640, 2015 WL 5607750, at *1 (E.D.N.Y. Aug. 26, 2015) (citing Razzano v. Cnty. of Nassau , 765 F. Supp. 2d 176, 180 (E.D.N.Y. 2011) ). Nevertheless, the possession of longarms is subject to some regulation in New York. See Kachalsky v. Cnty. of Westchester , 701 F.3d 81, 85 n.3 (2d Cir. 2012) (citing N.Y. Penal Law § 265.01(3) (prohibiting longarms on school grounds) and N.Y. Penal Law § 265.05 (prohibiting children less than sixteen years old from possessing longarms without a hunting permit)).

Firearm licensing and longarm regulation converge in Section 400.00's subsection on license revocation and suspension. See N.Y. Penal Law § 400.00(11). Section 400.00(11)(a) provides the following:

(a) The conviction of a licensee anywhere of a felony or serious offense or a licensee at any time becoming ineligible to obtain a license under this section shall operate as a revocation of the license. A license may be revoked or suspended as provided for in section 530.14 of the criminal procedure law or section eight hundred forty-two-a of the family court act. Except for a license issued pursuant to section 400.01 of this article, a license may be revoked and cancelled at any time in the city of New York, and in the counties of Nassau and Suffolk, by the licensing officer, and elsewhere than in the city of New York by any judge or justice of a court of record; a license issued pursuant to section 400.01 of this article may be revoked and cancelled at any time by the licensing officer or any judge or justice of a court of record. The official revoking a license shall give written notice thereof without unnecessary delay to the executive department, division of state police, Albany, and shall also notify immediately the duly constituted police authorities of the locality.

N.Y. Penal Law § 400.00(11) (emphasis added).⁴ Section 400.00(11)(c) governs the consequences of license suspension and revocation:

(c) In any instance in which a person's license is suspended or revoked under paragraph (a) or (b) of this subdivision, such person shall surrender such license to the appropriate licensing official and any and all firearms, rifles, or shotguns owned or possessed by such person shall be surrendered to an appropriate law enforcement agency as provided in subparagraph (f) of paragraph one of subdivision a of section 265.20 of this chapter. In the event such license, firearm, shotgun, or rifle is not surrendered, such items shall be removed and declared a nuisance and any police officer or peace officer acting pursuant to his or her special duties is authorized to remove any and all such weapons.

N.Y. Penal Law § 400.00(11)(c) (emphasis added).

II. Nassau County Policies

On May 22, 2014, the Nassau County Police Department published a legal bulletin that explained the consequences of a handgun license suspension or revocation. (ECF No. 31-1 ¶ 44.) According to the bulletin, "a person whose handgun license is suspended or revoked for any reason is not only required to surrender [his] license and handguns but also [his] rifles and shotguns to the licensing authority (Nassau County Police Department)." (ECF No. 27-5 at 3 (emphasis added).)

A separate Nassau County Police Department policy entitled "Removal and Disposition of Weapons – Domestic Incidents/Threats to Public Safety" ("OPS 10023" or the "policy") establishes a procedure for removing both firearms and longarms when necessary, and for returning them. (ECF No. 31 at 10.)⁵ The protocol distinguishes between the investigation required for the return of a pistol license and firearms and that for the return of longarms. (Id. at 2-3.) For example, unlike the "full pistol license incident investigation" required for firearm return, the longarm investigation begins with a review of "all incidents involving confiscation of rifles and shotguns as soon as possible." (Id. ) Confiscated longarms should be returned to the owner if the confiscation was inappropriate or if there is no other condition barring longarm possession.⁶ (ECF No. 31 at 13-14.)

The plaintiff says that under the County's policy, a "licensee would only be able to lawfully possess long guns after [the licensee] reapplied for, and w[as] issued, another pistol license." (ECF No. 26 at 16.)

III. The Facts⁷

The plaintiff, a customs broker⁸ and resident of Merrick, New York, obtained a pistol license from the Nassau County Police Department in January of 2003. (ECF No. 28 ¶¶ 2, 4, 5.) He maintained the license until May 28, 2008, when he was arrested for conspiracy to import controlled substances under 21 U.S.C. § 963. (ECF No. 28 ¶ 8.) The arresting officer confiscated the plaintiff's pistol license and two pistols. (Id. ¶ 10.)

About a week later, drug enforcement officers returned to the plaintiff's house and confiscated his six longarms – two shotguns and four rifles. (Id. ¶ 11, see also ECF No. 24 at 19.) An officer returned the longarms to the plaintiff six to eight weeks later. (ECF No. 28 ¶ 13.) The plaintiff stored the longarms at a neighbor's home. (Id. )

The plaintiff's pistol license was suspended on September 11, 2008 because of his May 2008 arrest. (Id. ¶ 12.)

On June 15, 2012, the plaintiff pleaded guilty to misdemeanor conspiracy to defraud the United States, 18 U.S.C. § 371, and was assessed a penalty of $25.00 (Id. ¶ 14; see also ECF No. 24 at 30.)

Over three years later, in November of 2015, Nassau County revoked the plaintiff's pistol license based on his "[a]rrest history, [c]onviction under 18 U.S.C. § 371, and [l]ack of good moral character." (ECF No. 28 ¶ 15.) In the revocation notice, the County informed the plaintiff that he was "prohibited from possessing firearms, rifles, [and] shotguns." (ECF No. 27-2 at 2-3.) The County instructed the plaintiff to "take appropriate action" to get rid of his guns, including longarms, within thirty days of receipt of the letter.⁹ (Id. at 3.) Shortly thereafter, the plaintiff's brother, an attorney, recommended that the plaintiff get rid of his longarms. (ECF No. 28 ¶ 20.) The plaintiff gave them to his son-in-law, a "hunting buddy," and a friend. (ECF No. 27-3 at 9.)

It is not clear whether the plaintiff would be able to buy new longarms at present. The plaintiff acknowledges that he has not tried to buy new longarms, but says that the County has "extinguished ... his ability to purchase other longarms for fear of arrest and criminal prosecution by Nassau County." (ECF No. 26 at 19.) In briefing and through their witness, Lieutenant Marc Timpano,¹⁰ the County took the position that "the plaintiff would be prohibited from possessing long guns for as long as a legal impediment existed prohibiting such possession." (ECF No. 31-2 at 3; ECF No. 31 at 7.) At oral argument, counsel for the County said that the County no longer uses the letter that the plaintiff received,¹¹ and that it is "now clear that someone whose pistol license has been revoked, and surrenders longarms at the time of the revocation, is free after the confiscation of his longarms to go out and purchase other longarms." The County did not explain how the plaintiff...