Kachalsky v. Cacace, No. 10-CV-5413 (CS)

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: CATHY SEIBEL
• Parties: ALAN KACHALSKY, CHRISTINA NIKOLOV, ERIC DETMER, JOHNNIE NANCE, ANNA MARCUCCI-NANCE and SECOND AMENDMENT FOUNDATION, INC., Plaintiffs, v. SUSAN CACACE, JEFFREY A. COHEN, ALBERT LORENZO, ROBERT K. HOLDMAN, and COUNTY OF WESTCHESTER, Defendants.
• Docket Number: No. 10-CV-5413 (CS)
• Decision Date: 06 September 2011

ALAN KACHALSKY, CHRISTINA NIKOLOV, ERIC
DETMER, JOHNNIE NANCE, ANNA MARCUCCI-NANCE
and SECOND AMENDMENT FOUNDATION, INC., Plaintiffs,
v.
SUSAN CACACE, JEFFREY A. COHEN, ALBERT
LORENZO, ROBERT K. HOLDMAN, and COUNTY OF
WESTCHESTER, Defendants.

No. 10-CV-5413 (CS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: September 6, 2011

OPINION AND ORDER

Appearances:

Alan Gura
Gura & Possessky, PLLC
Alexandria, Virginia
Vincent Gelardi
Gelardi & Randazzo LLP
Rye Brook, New York
Counsel for Plaintiffs

Anthony Tomari
Monica Connell
New York State Office of the Attorney General
New York, New York
Counsel for Defendants Susan Cacace, Jeffrey A. Cohen, Albert Lorenzo & Robert K. Holdman

Melissa-Jean Rotini
Westchester County Attorney's Office
White Plains, New York
Counsel for Defendant County of Westchester

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Seibel, J.

Before the Court are the Motion to Dismiss of Defendants Susan Cacace, Jeffrey A. Cohen, Albert Lorenzo, and Robert K. Holdman (the "State Defendants"), (Doc. 30);¹ the Motion to Dismiss of Defendant County of Westchester (the "County"), (Doc. 33); the Motion for Summary Judgment of Plaintiffs Alan Kachalsky, Christina Nikolov, Eric Detmer, Johnnie Nance, Anna Marcucci-Nance, (together, the "Individual Plaintiffs"), and Second Amendment Foundation, Inc. ("SAF"), (Doc. 39); and the State Defendants' Cross-Motion for Summary Judgment, (Doc. 42).

I. BACKGROUND

For purposes of deciding the Motions to Dismiss, I assume the facts (but not the conclusions) as alleged in the First Amended Complaint to be true, and for purposes of deciding the Motion and Cross-Motion for Summary Judgment, the following facts are undisputed, except where noted.

The instant case presents a facial and as-applied constitutional challenge to New York Penal Law ("NYPL") Section 400.00(2)(f), which provides that licenses to "have and carry concealed" handguns "shall be issued" to "any person when proper cause exists for the issuance thereof." Plaintiffs claim that the statute violates their rights under the Second Amendment to the U.S. Constitution as recognized in the Supreme Court case District of Columbia v. Heller, 554 U.S. 570 (2008), and made applicable to the states in McDonald v. City of Chicago, 130 S.

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Ct. 3020 (2010). To give proper context to Plaintiffs' claims, a brief description of New York's handgun licensing scheme is warranted.

A. New York's Handgun Licensing Scheme

The NYPL provides for the licensed possession of handguns in New York State. Article 265 of the NYPL imposes a general ban on the possession of firearms, see N.Y. Penal Law § 265.01(1), which includes handguns, id. § 265.00(3)(a), but creates various specific exemptions from that ban, see id. § 265.20, including "[p]ossession of a pistol or revolver by a person to whom a license therefor has been issued as provided under [NYPL] section 400.00,"² id. § 265.20(3); see Matter of O'Connor v. Scarpino, 83 N.Y.2d 919, 920 (1994) (§ 400.00 "is the exclusive statutory mechanism for the licensing of firearms in New York State"). Section 400.00(1) sets out the eligibility requirements for handgun permit applicants and provides, generally, that applicants must: be at least twenty-one years of age; be of good moral character; not have been convicted of a felony or a serious offense; not have suffered any mental illness or been confined to an institution for such illness; not have had a handgun license previously revoked or been the subject of a family court order; not exhibit "good cause . . . for the denial of the license"; and, for applicants in Westchester County, have "successfully completed a firearms safety course and test." N.Y. Penal Law § 400.00(1). Section 400.00(2) sets out the various types of licenses available, providing that "[a] license for a pistol or revolver . . . shall be issued" under various circumstances, including, for example, to "have and possess in his dwelling by a householder," to "have and possess in his place of business by a merchant or storekeeper," and to

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"have and carry concealed" by various city and state judges, bank or express messengers, and corrections officers. Id. § 400.00(2)(a)-(e).

The provision at issue in this case is Section 400.00(2)(f), which provides that a license "shall be issued to . . . have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof." Id. § 400.00(2)(f). There is no provision for a license to carry an unconcealed weapon, so for applicants who want to carry a weapon and do not fit in one of the occupational categories, the only way to obtain a license to carry a handgun—whether openly or not—is to meet the requirements, including "proper cause," of the licensing provision for concealed weapons. Though not defined in the NYPL, the term "proper cause" as used in Section 400.00(2)(f) has been interpreted by New York state courts to mean "a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." Bando v. Sullivan, 735 N.Y.S.2d 660, 662 (3d Dep't 2002) (internal quotation marks omitted); Kaplan v. Bratton, 673 N.Y.S.2d 66, 68 (1st Dep't 1998) (internal quotation marks omitted); Williams v. Bratton, 656 N.Y.S.2d 626, 627 (1st Dep't 1997) (internal quotation marks omitted); Klenosky v. N.Y. City Police Dep't, 428 N.Y.S.2d 256, 257 (1st Dep't 1980), aff'd, 53 N.Y.2d 685 (1981); see Bach v. Pataki, 408 F.3d 75, 80 (2d Cir. 2005).

The application process for licenses under Section 400.00(2)(f), often called "full-carry permits," is administered locally. See N.Y. Penal Law § 400.00(3)-(4). Applications for full-carry permits in Westchester County request information concerning, for example, discharge from employment or the armed forces for cause, criminal history, treatment for alcoholism or drug use, history of mental illness, previous firearm licenses, and physical conditions that could interfere with safe and proper use of a handgun. (State Defs.' 56.1 ¶¶ 16-17; Pls.' Resp. 56.1 ¶¶

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16-17.)³ An applicant must also provide four references to attest to his or her good moral character. (State Defs.' 56.1 ¶ 16; Pls.' Resp. 56.1 ¶ 16.) Applications are submitted to the Pistol Licensing Unit of the Westchester County Department of Public Safety for investigation consistent with NYPL Section 400.00(4). (State Defs.' 56.1 ¶¶ 15, 18; Pls.' Resp. 56.1 ¶¶ 15, 18.) See N.Y. Penal Law § 400.00(4) (outlining investigatory procedures). As part of this investigation, the Pistol Licensing Unit reviews the information provided and conducts a series of background checks with the New York State Department of Criminal Justice Services, the Federal Bureau of Investigation, the National Instant Criminal Background system, and the New York State Department of Mental Hygiene. (State Defs.' 56.1 ¶¶ 18-20; Pls.' Resp. 56.1 ¶¶ 18-20.)

Once the investigation is complete, an investigation summary is compiled and, along with the application, submitted to a County Police lieutenant, the Chief Inspector of Administrative Services, and the Commissioner or a Deputy Commissioner for review. (State Defs.' 56.1 ¶ 21; Pls.' Resp. 56.1 ¶ 21.) Based upon that review, the Chief Inspector and Commissioner or Deputy Commissioner generate a recommendation as to whether the full-carry permit should be approved or disapproved, (see, e.g., Pls.' MSJ Exs. C, E, G),⁴ and the file is submitted to a state licensing officer⁵ for a final determination, (State Defs.' 56.1 ¶ 22; Pls.' Resp. 56.1 ¶ 22). Licensing officers have considerable discretion in deciding whether to grant a license

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application, see, e.g., Vale v. Eidens, 735 N.Y.S.2d 650, 652 (3d Dep't 2002); Kaplan, 673 N.Y.S.2d at 68; Fromson v. Nelson, 577 N.Y.S.2d 417, 417 (2d Dep't 1991); Marlow v. Buckley, 482 N.Y.S.2d 183, 184 (4th Dep't 1984), particularly in determining whether an applicant has demonstrated "proper cause" under Section 400.00(2)(f), see Bach, 408 F.3d at 79-80 & n.8, and their decisions will not be disturbed unless determined to be arbitrary and capricious, O'Brien v. Keegan, 87 N.Y.2d 436, 439-40 (1996).

B. The Parties

Individual Plaintiffs are all United States citizens who reside in Westchester County. (State Defs.' 56.1 ¶¶ 1-5; Pls.' Resp. 56.1 ¶¶ 1-5.) Plaintiff SAF is a non-profit membership organization incorporated under the laws of the State of Washington, with its principal place of business in Bellevue, Washington. (State Defs.' 56.1 ¶ 6; Pls.' Resp. 56.1 ¶ 6.) It claims to have over 650,000 members and supporters nationwide, including in Westchester County, to engage in education, research, publishing, and legal action focusing on the Second Amendment, and to expend resources encouraging the exercise of the right to bear arms, as well as advising and educating its members, supporters, and the general public about policies relating to the public carrying of handguns in New York. (Pls.' 56.1 ¶¶ 25-26.)⁶ The State Defendants are judges on various courts within the New York State Unified Court System and, at the times of Individual

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Plaintiffs' full-carry permit applications, described below, served as handgun licensing officers under NYPL Section 265.00(10).⁷ (State Defs.' 56.1 ¶¶ 7-10; Pls.' Resp. 56.1 ¶¶ 7-10.)

C. Plaintiffs' Permit Applications

In May 2008, Plaintiff Kachalsky applied for a full-carry permit to be able to carry a concealed...