Kwong v. Bloomberg

• Decision Date: 09 July 2013
• Docket Number: Docket No. 12–1578–cv.
• Citation: 723 F.3d 160
• Parties: Shui W. KWONG, George Greco, Glenn Herman, Nick Lidakis, Timothy S. Furey, Daniela Greco, Nunzio Calce, Second Amendment Foundation, Inc., New York State Rifle & Pistol Association, Inc., Plaintiffs–Appellants, v. Michael BLOOMBERG, in his official capacity as Mayor of the City of New York, City of New York, Defendants–Appellees, Attorney General of the State of New York, Intervenor–Appellee, Eric T. Schneiderman, in his official capacity as Attorney General of the State of New York, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

723 F.3d 160

Shui W. KWONG, George Greco, Glenn Herman, Nick Lidakis, Timothy S. Furey, Daniela Greco, Nunzio Calce, Second Amendment Foundation, Inc., New York State Rifle & Pistol Association, Inc., Plaintiffs–Appellants,

v. Michael BLOOMBERG, in his official capacity as Mayor of the City of New York, City of New York, Defendants–Appellees,Attorney General of the State of New York, Intervenor–Appellee,Eric T. Schneiderman, in his official capacity as Attorney General of the State of New York, Defendant.

Docket No. 12–1578–cv.

United States Court of Appeals, Second Circuit.

Argued: Feb. 1, 2013.

Decided: July 9, 2013.

David D. Jensen, David Jensen PLLC, New York, NY, for Plaintiffs–Appellants.

Susan Paulson (Francis F. Caputo, Michelle Goldberg–Cahn, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendants–Appellees.

Simon Heller (Barbara D. Underwood, Richard Dearing, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Intervenor–Appellee.

Before: WALKER, CABRANES, and WESLEY, Circuit Judges.

Judge WALKER concurs in the judgment of the Court in a separate opinion.

JOSÉ A. CABRANES, Circuit Judge:

New York State Penal Law § 400.00(14) permits New York City (and Nassau County) to set and collect a residential handgun licensing fee that exceeds the maximum fee allowable under state law in other parts of New York State. Currently, the cost to obtain a residential handgun license in New York City is $340 for a license which lasts for three years. N.Y.C. Admin. Code § 10–131(a)(2); 38 RCNY § 5–28 (requiring renewal of handgun licenses every three years). In this appeal, which follows a grant of summary judgment dismissing the complaint in the United States District Court for the Southern District of New York (John G. Koeltl, Judge), we are asked to determine: (1) whether New York City Administrative Code § 10–131(a)(2), which sets the current residential handgun licensing fee in New York City at $340, violates the Second Amendment; ¹ and (2) whether New York State Penal Law § 400.00(14), which allows New York City and Nassau County to set and collect a residential handgun licensing fee outside the $3–10 range permitted in other jurisdictions in New York State, violates the Fourteenth Amendment's Equal Protection Clause.²

We hold that both statutes survive constitutional scrutiny, and therefore affirm the March 26, 2012 Opinion and Order of the District Court, which granted summary judgment in favor of the defendants and dismissed the complaint.

BACKGROUND

Plaintiffs are individuals who have been issued residential handgun licenses ³ in New York City, and two organizations, the Second Amendment Foundation and the New York State Rifle & Pistol Association (jointly, “plaintiffs”).⁴ They bring this action pursuant to 42 U.S.C. § 1983, asserting that: (1) New York City Administrative Code § 10–131(a)(2) (“Admin. Code § 10–131(a)(2)”) violates the Second Amendment by requiring New York City residents to pay $340 ⁵ to obtain a residential handgun license; ⁶ and (2) New York Penal Law § 400.00(14) ( “ Penal Law § 400.00(14)”) violates the Equal Protection Clause of the Fourteenth Amendment by allowing New York City and Nassau County to charge a higher handgun licensing fee than other jurisdictions in New York State.

A. Factual Background

In New York State, it is illegal to possess a handgun without a valid license, even if the handgun remains in one's residence. SeeN.Y. Penal Law §§ 265.01(1), 265.20(a)(3). In New York City, the New York City Police Department License Division (“License Division”) is responsible for processing and issuing residential handgun licenses, as well as verifying that each applicant is eligible to receive such a license. See id. § 400.00(1), (4); 38 RCNY §§ 5–01(a), 5–02.

Penal Law § 400.00(14)—one of the statutes challenged by plaintiffs—sets the range of permissible fees that may be charged by localities for firearm licenses in New York State. Although that statute sets the general range of fees at between $3 and $10, it allows the New York City Council and the Nassau County Board of Supervisors to set licensing fees outside of this range. SeeN.Y. Penal Law § 400.00(14). In relevant part, it provides:

In [New York City], the city council and in the county of Nassau the Board of Supervisors shall fix the fee to be charged for a license to carry or possess a pistol or revolver and provide for the disposition of such fees. Elsewhere in the state, the licensing officer shall collect and pay into the county treasury the following fees: for each license to carry or possess a pistol or revolver, not less than three dollars nor more than ten dollars as may be determined by the legislative body of the county....

Id. Pursuant to Admin. Code § 10–131(a)(2) the other statute challenged by plaintiffs New York City currently charges residents $340 for a residential handgun license, which lasts for three years.⁷

The New York City Council has been authorized by state law to set its own licensing fee since 1947, independent of the licensing fee range allowed in other parts of the State. In 1948, the New York City Council set the fee at $10 for an initial handgun license; the maximum fee allowed in other parts of New York State at that time was $1.50. Between 1962 and 2004, the licensing fee in New York City was increased six times. In 2004, Local Law 37 amended Admin. Code § 10–131(a)(2) to change the residential handgun license from a two-year permit with a fee of $170 to the current three-year permit with a fee of $340.⁸ In practical terms, the amendment to § 10–131(a)(2) increased the cost for residential license holders of owning a handgun by $28.33 per year.

The amendment to § 10–131(a)(2) also permitted New York City substantially to recoup the cost of processing license applications. In that regard, the New York City Office of Management and Budget (“OMB”) prepared a “User Cost Analysis” to accompany the introduction of Local Law 37, and this report showed that in Fiscal Year 2003 the average administrative cost for each handgun license application processed by the License Division was $343.49. See Joint App'x 370. The Committee on Finance of the New York City Council submitted a separate report detailing the costs and revenue associated with New York City's handgun licensing scheme. It stated that, although the costs associated with operating the licensing scheme exceeded $6 million per year, the fees collected only amounted to $3.35 million. See id. at 230. The report also estimated that the increased licensing fees (from $170 per two-year license to $340 per three-year license) would result in an additional $1.1 million in revenue, id. at 231, and concluded that the pre–2004 licensing fee “d[id] not reflect the actual costs of licensing,” id. at 234.

In 2010, the cost of New York City's licensing scheme again was studied by the New York Police Department (“NYPD”) in conjunction with the OMB. This most recent study concluded each initial residential handgun application cost the License Division $977.16 to process and that each renewal application cost $346.92. Id. at 337, 384, 389.

B. Procedural History

Plaintiffs filed this action on April 5, 2011, against, inter alia, Michael Bloomberg (in his capacity as Mayor of New York City) and the City of New York (jointly, “the City”). By a stipulation dated May 19, 2011, the New York Attorney General (“NYAG”) intervened to defend Penal Law § 400.00(14)'s constitutionality.

On June 23, 2011, plaintiffs moved for summary judgment prior to the completion of any discovery. The City and the NYAG cross-moved for summary judgment on July 28, 2011.⁹ On March 26, 2012, the District Court denied plaintiffs' motion for summary judgment and granted the cross-motions for summary judgment filed by the City and the NYAG. Judgment was entered on March 27, 2012.

With regard to Admin. Code § 10–131(a)(2), the District Court held that the $340 fee did not impermissibly burden plaintiffs' Second Amendment rights under the Supreme Court's “fee jurisprudence” because it was designed to defray, and did not exceed, the administrative costs of regulating an individual's right to bear arms. See Kwong v. Bloomberg, 876 F.Supp.2d 246, 253–58 (S.D.N.Y.2012). In particular, the District Court noted that “[t]he plaintiffs offer no evidence disputing or rebutting the City Defendants' evidence that the application fees imposed by Admin. Code § 10–131(a)(2) do not exceed the administrative costs attendant to the licensing scheme.” Id. at 257. The District Court also held that $340 fee was “permissible if analyzed under the means-end scrutiny applicable to laws that burden the exercise of Second Amendment rights.” Id. at 258. After determining that “intermediate scrutiny” was appropriate because “Admin. Code § 10–131(a)(2) does not effect a ban on handguns but only imposes a fee, [and therefore] the burden on the Second Amendment right is not severe,” id. at 259, the District Court upheld the fee, finding that it “is substantially related to the [ ] important governmental interests [of promoting public safety and preventing gun violence] because the fee is designed to recover the costs attendant to the licensing scheme,” id.

With regard to Penal Law § 400.00(14), the District Court rejected plaintiffs' Equal Protection challenge under so-called “rational basis” review. It held that rational basis review was appropriate inasmuch as this state statute (1) did not involve any suspect classification, and (2) did not burden plaintiffs' Second Amendment rights because it permitted, rather than required, New York City to set a licensing fee higher than most jurisdictions in New York State. Id. at 260. The District Court also noted that “[e]ven if Penal Law § 400.00(14) could be viewed as disparately burdening the Second Amendment right by imposing a higher fee on New York City...