Libertarian Party of Erie County v. Cuomo

18-386
Libertarian Party of Erie County v. Cuomo
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
------
August Term, 2018
(Argued: February 20, 2019 Decided: August 11, 2020)
Docket No. 18-386
____________________________________________________________
LIBERTARIAN PARTY OF ERIE COUNTY, MICHAEL KUZMA,
RICHARD COOPER, GINNY ROBER, PHILIP M. MAYOR, MICHAEL
REBMANN, EDWARD L. GARRETT, DAVID MONGIELO, JOHN
MURTARI, and WILLIAM A. CUTHBERT,
Plaintiffs-Appellants,
- v. -
ANDREW M. CUOMO, individually and as Governor of the State of
New York, LETITIA JAMES, individually and as Attorney General of
the State of New York *, JOSEPH A. D'AMICO, individually and as
Superintendent of the New York State Police, MATTHEW J. MURPHY,
III, individually and as Niagara County pistol permit licensing officer,
DENNIS M. KEHOE, individually and as Wayne County pistol permit
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Letitia James is automatically substituted for former Attorney General
Eric T. Schneiderman as a defendant in this case.
licensing officer, and M. WILLIAM BOLLER, individually and as Erie
County pistol permit licensing officer,
Defendants-Appellees.**
____________________________________________________________
Before: KEARSE, WALKER, and JACOBS, Circuit Judges.
Appeal from a judgment of the United States District Court for the
Western District of New York, Frank P. Geraci, Jr., Chief Judge, dismissing,
pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), plaintiffs' amended complaint
brought under 42 U.S.C. ' 1983 against various state officials, alleging that New
York State's firearm licensing laws, see N.Y. Penal Law ' 400.00, violate plaintiffs'
rights under the Second and Fourteenth Amendments to the Constitution. The
district court dismissed on grounds of mootness or lack of standing the claims of
all but two plaintiffs, against all but two defendants, for failure to plead
injury-in-fact or traceability of injury to other defendants; dismissed claims for
money damages against the two remaining defendants on grounds of judicial and
Eleventh Amendment immunity; dismissed individual-capacity claims against
those defendants for injunctive relief as barred by 42 U.S.C. ' 1983; and dismissed
the surviving claims on the grounds that the ' 400.00 licensing criteria of "good
** The Clerk of Court is instructed to amend the official caption to conform
with the above.
moral character," "good cause," and "proper cause" are not unconstitutionally
vague, and that the statutory scheme, while impacting Second Amendment rights,
does not burden those rights substantially, closely relates to the State's interests in
public safety, and thus survives intermediate scrutiny. On appeal, plaintiffs,
while expressly not seeking reversal of the dismissal as to Libertarian Party,
principally contend that in dismissing the claims of the individual plaintiffs, the
district court erred in its rulings on standing, mootness, and judicial immunity; in
applying intermediate scrutiny to the challenged licensing scheme; and in
concluding that the challenged statutory criteria for licensing are not
impermissibly vague. We have been informed by the parties of events that have
rendered the claims of certain plaintiffs moot, requiring dismissal of so much of
the appeal as concerns those claims; we otherwise affirm the rulings of the district
court principally for the reasons stated by that court, see 300 F. Supp. 3d 424 (2018).
Appeal dismissed in part and affirmed in part.
JAMES OSTROWSKI, Buffalo, New York, for
Plaintiffs-Appellants.
ANISHA S. DASGUPTA, Deputy Solicitor General,
New York, New York (Barbara D. Underwood,
Attorney General of the State of New York, Amit
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R. Vora, Assistant Solicitor General, New York,
New York, on the brief), for Defendants-Appellees.
Morrison & Foerster, New York, New York (Jamie
A. Levitt, Jayson L. Cohen, Rhiannon N.
Batchelder, New York, New York; Hannah
Shearer, San Francisco, California, J. Adam Skaggs,
David M. Pucino, Giffords Law Center to Prevent
Gun Violence, New York, New York, of counsel),
filed a brief for Amicus Curiae Giffords Law Center to
Prevent Gun Violence, in support of
Defendants-Appellees and Affirmance.
Clarick Gueron Reisbaum, New York, New York
(Nicole Gueron, Ashleigh Hunt, New York, New
York, of counsel), filed a brief for Amicus Curiae
Everytown for Gun Safety, in support of
Defendants-Appellees and Affirmance.
KEARSE, Circuit Judge:
Plaintiffs Libertarian Party of Erie County ("Libertarian Party") et al.
appeal from a judgment of the United States District Court for the Western District
of New York, Frank P. Geraci, Jr., Chief Judge, dismissing, pursuant to Fed. R. Civ.
P. 12(b)(1) and 12(b)(6), their amended complaint brought under 42 U.S.C. ' 1983
against several state officials, alleging that the firearm licensing laws of New York
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State (the "State" or "New York"), see N.Y. Penal Law ' 400.00, violate plaintiffs'
rights under the Second and Fourteenth Amendments to the Constitution. The
district court dismissed on grounds of mootness or lack of standing the claims of
all but two plaintiffs, against all but two defendants, for failure to plead
injury-in-fact or traceability of injury to other defendants; dismissed claims for
money damages against the two remaining defendants on grounds of judicial and
Eleventh Amendment immunity; dismissed the individual-capacity claims against
those defendants for injunctive relief as barred by 42 U.S.C. ' 1983; and dismissed
the surviving claims on the grounds that the ' 400.00 licensing criteria of "good
moral character," "good cause," and "proper cause" are not unconstitutionally
vague, and that the statutory scheme, while impacting Second Amendment rights,
relates substantially to the State's interests in public safety and thus survives
intermediate scrutiny. On appeal, plaintiffs, while expressly not seeking reversal
of the dismissal as to Libertarian Party, principally contend that in dismissing the
claims of the individual plaintiffs, the district court erred in its rulings on
standing, mootness, and judicial immunity; in applying intermediate scrutiny to
the challenged licensing scheme; and in concluding that the challenged statutory
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criteria for licensing are not impermissibly vague. For the reasons that follow, we
conclude that claims of certain plaintiffs have become moot, requiring dismissal of
so much of the appeal as pursues those claims; we otherwise affirm the challenged
rulings of the district court, principally for the reasons stated by that court.
I. BACKGROUND
The Second Amendment, which applies to the States through the
Fourteenth Amendment, see McDonald v. City of Chicago, 561 U.S. 742, 791 (2010),
provides: "A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed," U.S. Const.
amend. II. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court
held that the Second Amendment codified a pre-existing "individual right to
possess and carry weapons in case of confrontation," id. at 592.
New York State "maintains a general prohibition on the possession of
'firearms' absent a license." Kachalsky v. County of Westchester, 701 F.3d 81, 85 (2d
Cir. 2012) ("Kachalsky"). Section 400.00 of New York's Penal Law is the State's
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"exclusive statutory mechanism for the licensing of firearms," id. (internal
quotation marks omitted); other sections of the Penal Law provide criminal
penalties for possession of a firearm without a license, see N.Y. Penal Law
'' 265.00(3), 265.01 et seq., and 265.20(a)(3).
The State allows an application for a firearm license by a person who
resides in the State or whose principal place of business is in the State. See N.Y.
Penal Law ' 400.00(3)(a). The "[t]ypes of licenses" that may be issued include "[a]
license for a pistol or revolver" for "a householder" "to . . . have and possess in his
dwelling," N.Y. Penal Law ' 400.00(2)(a), and a license to "have and carry
concealed [a pistol or revolver], without regard to employment or place of
possession, by any person when proper cause exists for the issuance thereof," id.
' 400.00(2)(f). To be granted a license for at-home possession of a firearm, an
applicant principally must show "good moral character" and show that "no good
cause exists for denial of the license." N.Y. Penal Law '' 400.00(1)(b) and (n)
(emphasis added); id. ' 400.00(2)(a). To obtain a license to carry a concealed
firearm in public ("concealed-carry"), one must show, in addition, that "proper
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cause" exists for issuance of that license. Id. ' 400.00(2)(f). A concealed-carry
permit encompasses an at-home license. See id.
A. The Parties
The present action was brought by plaintiffs Libertarian Party and
several New York residents. According to the amended complaint ("Complaint"
or "Comp."), Libertarian Party is an association "whose platform includes support
for the right to bear arms" (Comp. & 3). The Complaint contains no other
allegations about Libertarian Party. The individual plaintiffs (collectively
"Plaintiffs") are Michael Kuzma, Richard Cooper, Ginny Rober, Philip M. Mayor,
Michael Rebmann, Edward L. Garrett, David Mongielo, John Murtari, and
William A. Cuthbert, who claim that various aspects of New York's firearm
licensing regime violate their rights under the Second and Fourteenth
Amendments to bear arms.
The defendants are Andrew M. Cuomo, Governor of the State; Letitia
James, the State's Attorney General; Joseph A. D'Amico, Superintendent of the
State Police; Matthew J. Murphy III, a judge who is the pistol permit licensing
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officer for Niagara County; Dennis M. Kehoe, a judge who is the pistol permit
licensing officer for Wayne County; and M. William Boller, an Acting State
Supreme Court Justice who is the pistol permit licensing officer for Erie County.
(See, e.g., Comp. && 14-22.)
B. The Complaint
Plaintiffs contend that the right to bear and carry firearms is a
"fundamental" Second Amendment right that the State has no authority to license
(Comp. && 33-62). The Complaint alleged principally that the New York
licensing scheme on its face (1) violates Plaintiffs' rights to possess firearms in
their homes (see id. & 137), (2) violates their rights to possess firearms in public (see
id. & 138), and (3) uses standards of "good moral character," "proper cause," and
"good cause" that are so vague as to violate the Due Process Clause of the
Fourteenth Amendment (id. && 139-141).
As to individual plaintiffs, the Complaint alleged that Mayor and
Cuthbert "have obtained . . . pistol permits but remain under constant threat of
having their licenses revoked based on application of the arbitrary and subjective
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criteria set forth in the statute." (Comp. & 77.) The license granted to Cuthbert
by Justice Boller was an at-home permit that allowed him to use the firearm for
hunting and target shooting; but Cuthbert was denied a concealed-carry permit.
(See id. & 94.) The Complaint alleged that Mongielo held a concealed-carry
permit which, after his arrest, was suspended by Judge Murphy. It alleged that
the suspension was "temporar[y]." (Id. & 81; see also Declaration of New York
State Assistant Attorney General William J. Taylor, Jr., dated April 29, 2016
("Taylor Decl."), Exhibit C (Niagara County Court Order signed by Judge Murphy,
ordering reinstatement of Mongielo's permit)).
The Complaint alleged that Murtari applied for a pistol permit
(Comp. & 96), but that his application was denied by Judge Kehoe (id. & 97). The
10-paragraph letter of denial stated, inter alia, that Murtari's record showed that
from 1998 through 2010 he had been arrested "approximately 50 times" and that
Murtari's "prior conduct in failing to obey lawful orders issued in the Federal
Court System, as well as in the State Family Court System, constitutes 'good cause'
for this Court to deny [his] application for a pistol permit at this time." (Id. & 98.)
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As to plaintiffs Kuzma, Cooper, Rober, Rebmann, and Garrett, the
Complaint contained no allegation that any of them had ever applied for a pistol
permit.
The Complaint principally sought "injunctive and declaratory relief"
(Comp. & 76) and "compensatory and punitive damages" (id. & 135). Murtari also
requested an order, pursuant to N.Y. C.P.L.R. Article 78, directing Judge Kehoe to
issue him a pistol permit. (See id. && 142-144.)
C. The District Court's Dismissal of the Action
Defendants moved pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) to dismiss the Complaint for lack of subject matter
jurisdiction and failure to state a claim. Under Rule 12(b)(1) they argued, inter
alia, (1) that Libertarian Party, Kuzma, Cooper, Rober, Rebmann, and Garrett lack
standing, having failed to apply for a firearm license or to allege that applying
would have been futile; (2) that Mayor and Mongielo lack standing because they
hold licenses, and that any fear of revocation is speculative; and (3) that Cuthbert
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lacks standing to challenge provisions governing at-home possession, because he
has a license for such possession.
Under Rules 12(b)(1) and 12(b)(6), defendants argued that Plaintiffs
could not obtain relief against Cuomo, James, and D'Amico because the
Complaint did not show that those defendants had any direct involvement in
administering the challenged statutory provisions. And under Rule 12(b)(6),
defendants argued that Cuthbert's claim with respect to the denial of his request
for a concealed-carry permit, and all of Murtari's claims, fail because the statutory
criteria governing the granting of permits are not impermissibly vague, and the
New York firearm licensing provisions substantially relate to the State's interests
in public safety, thus surviving intermediate scrutiny. Defendants also argued
that Justice Boller and Judges Murphy and Kehoe, as sued in their official
capacities, are entitled to Eleventh Amendment immunity from claims for
damages; and that because they act in a judicial capacity in ruling on firearm
license applications, they are, insofar as they are sued in their individual
capacities, entitled to judicial immunity from Plaintiffs' claims for damages or
injunctive relief.
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In a thorough opinion dated January 10, 2018 ("D. Ct. Opinion"),
reported at 300 F. Supp. 3d 424, relying principally on the Supreme Court's decision
in Heller and this Court's decisions in New York State Rifle & Pistol Association, Inc.
v. Cuomo, 804 F.3d 242 (2d Cir. 2015) ("NYSRPA"); Kachalsky, 701 F.3d 81; United
States v. Decastro, 682 F.3d 160 (2d Cir. 2012) ("Decastro"); and Jackson-Bey v.
Hanslmaier, 115 F.3d 1091 (2d Cir. 1997) ("Jackson-Bey"), the district court granted
defendants' motion in its entirety.
Because plaintiffs' response to defendants' motion to dismiss made no
argument with respect to Libertarian Party, the district court dismissed any claims
on behalf of Libertarian Party on the ground that they had been abandoned.
With respect to the three federal claims asserted in the Complaint, the court found
that most of the plaintiffs lacked standing to sue, either in general because of their
own inaction, or with respect to certain defendants to whom their asserted injuries
were not traceable. As to the plaintiffs who had standing, the court found that
the Complaint failed to state a claim on which relief can be granted.
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1. Standing
The court noted that, in order to have standing to sue in federal court,
a plaintiff must show
(1) injury-in-fact, which is a "concrete and particularized" harm
to a "legally protected interest"; (2) causation in the form of a
"fairly traceable" connection between the asserted injury-in-fact
and the alleged actions of the defendant; and (3) redressability,
or a non-speculative likelihood that the injury can be remedied
by the requested relief.
D. Ct. Opinion, 300 F. Supp. 3d at 432 (quoting W.R. Huff Asset Management Co. v.
Deloitte & Touche LLP, 549 F.3d 100, 106-07 (2d Cir. 2008) (emphasis in W.R. Huff));
see, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Further, each
plaintiff must establish standing with respect to each claim he or she asserts, see
D. Ct. Opinion, 300 F. Supp. 3d at 432; and standing must be maintained
throughout the proceeding, see, e.g., id. A federal court loses jurisdiction to
entertain a claim that has become moot. See, e.g., id.
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 In order to challenge the New York firearm licensing laws, a person
must either have applied for and been denied a license or make a "'substantial
showing'" that his or her application "'would have been futile,'" Decastro, 682 F.3d
at 164 (quoting Jackson-Bey, 115 F.3d at 1096). Mere objection or antipathy to the
law does not constitute a showing of futility. See, e.g., Decastro, 682 F.3d at 164;
D. Ct. Opinion, 300 F. Supp. 3d at 433.
The district court noted that the Complaint "contain[ed] no factual
allegations as to . . . Kuzma, Cooper, Rober, Rebmann, or Garrett." D. Ct.
Opinion, 300 F. Supp. 3d at 431. There being neither allegations that they had
applied for a license nor allegations to show futility, the court dismissed the claims
of those plaintiffs for lack of any alleged injury-in-fact. See id. at 433.
The court also found that Mayor, who had applied for and received
the permit for which he applied, lacked an injury-in-fact. Although the
Complaint alleged that Mayor was afraid his license would be arbitrarily revoked,
the court found such speculation insufficient to show injury-in-fact. See id. at 434.
Similarly, Mongielo, who was alleged to have been granted a license but had it
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"temporarily" suspended following his arrest, lacked standing because his license
had subsequently been reinstated. See id. at 434-35.
The court found that Cuthbert, who had applied for a concealed-carry
permit but had been granted only an at-home permit, lacked standing to complain
of the New York licensing scheme with respect to at-home licenses. His alleged
fear that his at-home permit would be revoked was merely speculative, failing to
show injury-in-fact. See id. at 435. However, Cuthbert sufficiently alleged
injury-in-fact as to his request for a concealed-carry permit, which had been
denied. See id.
Finally, as to Murtari, the court found that he had alleged
injury-in-fact because he had applied for a license and his application had been
denied. See id. at 436.
Although the court found that the Complaint was sufficient to show
that Cuthbert and Murtari asserted claims of injury-in-fact, it found that there was
no allegation that their claimed injuries had been inflicted by any persons other
than the defendants who had denied their respective license requests. Cuthbert's
request for a concealed-carry permit had been denied by Justice Boller; Murtari's
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license application had been denied by Judge Kehoe. Accordingly, the court
found that the claims of Cuthbert and Murtari--the only plaintiffs who asserted
injury-in-fact--were traceable only to Justice Boller and Judge Kehoe, respectively.
See id. The court therefore dismissed the Complaint against Cuomo, James,
D'Amico, and Murphy. See id.
2. Judicial Immunity
As to Boller and Kehoe, the remaining defendants, the district court
noted that judges performing judicial duties, when sued in their individual
capacities, are entitled to immunity both from claims for damages, see D. Ct.
Opinion, 300 F. Supp. 3d at 436-37 (citing Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir.
2009) ("Bliven")), and, by reason of the 1996 amendments to ' 1983, from claims for
"injunctive relief, unless a declaratory decree was violated or declaratory relief
was unavailable," D. Ct. Opinion, 300 F. Supp. 3d at 436 (internal quotation marks
omitted); see Pub.L. 104-317, Title III, ' 309(c), Oct. 19, 1996, 110 Stat. 3853;
42 U.S.C. ' 1983 ("in any action brought against a judicial officer for an act or
omission taken in such officer's judicial capacity, injunctive relief shall not be
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granted unless a declaratory decree was violated or declaratory relief was
unavailable").
Although Plaintiffs challenged the applicability of these principles,
contending that deciding firearms license applications is an administrative act, not
a judicial one, the court rejected that contention. It pointed out that except as to
New York City and Long Island, the State's statutory scheme places the authority
to decide "firearms license applications" in "state judges," D. Ct. Opinion, 300
F. Supp. 3d at 437 n.9; that "[t]he principal hallmark of the judicial function is a
decision in relation to a particular case," id. at 437 (internal quotation marks
omitted); see Bliven, 579 F.3d at 211; and that each of the decisions by Justice Boller
and Judge Kehoe "arose out of an individual case before them," D. Ct. Opinion,
300 F. Supp. 3d at 437. Concluding that those rulings had "all the hallmarks of
judicial acts," id., the court dismissed all claims asserted against Boller and Kehoe
in their individual capacities on the ground of judicial immunity.
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3. Eleventh Amendment Immunity
Finally as to the claims of Cuthbert and Murtari against Justice Boller
and Judge Kehoe in their official capacities, defendants moved to dismiss the
claims for damages, contending that those claims are barred by the Eleventh
Amendment. The court, noting that Plaintiffs had made no response to that
contention, dismissed those claims against Boller and Kehoe. See D. Ct. Opinion,
300 F. Supp. 3d at 438. Noting that defendants had made no similar Eleventh
Amendment motion to dismiss official-capacity claims against the judges for
injunctive relief, the court concluded that those claims by Cuthbert and Murtari
against Boller and Kehoe remained pending for consideration of whether the
Complaint stated a claim on which relief can be granted. See id.
4. The Due Process Vagueness Contention
Finding that Cuthbert and Murtari had standing to bring one or all of
their claims, the court turned to their claims of denial of due process. The
Complaint alleged that the New York licensing scheme is unconstitutionally
vague principally because ' 400.00 premises the grant of licenses on "good moral
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character" and on the absence of "good cause" for denial, and that those terms are
"not capable of definition in such a way that puts an applicant, a licensing officer
or a reviewing court on notice of the meaning of the terms." (Comp. && 139-141.)
The district court, stating that "[a] claim is as-applied if it is limited to a plaintiff's
particular case," but "is facial if it 'challenges application of the law more broadly,'"
D. Ct. Opinion, 300 F. Supp. 3d at 439 (quoting John Doe No. 1 v. Reed, 561 U.S. 186,
194 (2010)); see also NYSRPA, 804 F.3d at 249-50, found that the Complaint painted
with a broad brush and did not allege any facts to support an as-applied
vagueness claim. Thus, the court read the Complaint to assert that the statute is
facially invalid.
The court stated that "'[t]o succeed on a facial challenge, the
challenger must establish that no set of circumstances exists under which the [laws]
would be valid.'" D. Ct. Opinion, 300 F. Supp. 3d at 439 (quoting NYSRPA, 804
F.3d at 265 (emphasis in NYSRPA), and citing United States v. Salerno, 481 U.S. 739,
745 (1987)). The district court noted that defendants here provided compelling
examples of circumstances that would show an applicant's lack of "good moral
character," show "good cause" for the denial of a license, or show lack of "proper
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cause" for approval to carry a concealed firearm in public--to wit, an individual
suffers from dementia and paranoid schizophrenia; or an individual threatens to
harm others, or shoots himself, or has an alcohol or drug addiction and repeatedly
engages in reckless activity with his firearm while intoxicated. See D. Ct.
Opinion, 300 F. Supp. 3d at 440.
Referring to the observation in Heller that longstanding restrictions
such as "prohibitions on the possession of firearms by felons and the mentally ill"
are "presumptively lawful regulatory measures," 554 U.S. at 626 & n.26, the district
court concluded that Cuthbert and Murtari had obviously failed to show that no
set of circumstances exists under which the conditions imposed in ' 400.00 would
be valid. See generally Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 497 (1982) (in order to succeed in "challeng[ing a law] on its face as
unduly vague, in violation of due process," the plaintiff "must demonstrate that
the law is impermissibly vague in all of its applications").
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5. The Second Amendment Burden
As to Plaintiffs' claims that the New York licensing scheme is
unconstitutional under the Second Amendment purely because it limits their
rights to possess and carry firearms, the court noted that Heller established that the
Second Amendment codified an individual's right to possess and carry weapons
"in common use" by citizens for "lawful purposes like self-defense," Heller, 554 U.S.
at 624. See D. Ct. Opinion, 300 F. Supp. 3d at 440. While Heller neither purported
to make that right immune from all regulation nor attempted to lay out the
permissible scope of such regulation, the district court noted that a two-step
framework for analysis in this Circuit had been established by Decastro, Kachalsky,
and NYSRPA:
The Court must consider (1) whether the law burdens conduct
protected by the Second Amendment, and then (2) the
appropriate level of scrutiny. See NYSRPA, 804 F.3d at 254.
Of course, if the law does not burden conduct protected by the
Second Amendment, it stands. Id.
D. Ct. Opinion, 300 F. Supp. 3d at 441.
Finding, at step one, that New York's licensing laws unquestionably
place restrictions on the possession of firearms "in common use," as individuals in
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New York may not possess handguns, even in their own homes, without a license,
the court concluded that these laws burden law-abiding citizens' possession of
weapons typically kept for lawful purposes. Id. at 441-42.
In determining what level of scrutiny to apply to New York's firearms
licensing laws, the court considered (a) how close the law comes to the core of the
Second Amendment right, and (b) the severity of the law's burden on the right.
Id. at 442-43. In considering the latter factor, the court noted that heightened
scrutiny is appropriate only where the law burdens Second Amendment
protections "substantially," NYSRPA, 804 F.3d at 259, and that the burden is not
substantial "if adequate alternatives remain for law-abiding citizens to acquire a
firearm for self-defense," id. (quoting Decastro, 682 F.3d at 168). D. Ct. Opinion,
300 F. Supp. 3d at 442.
Accordingly, the district court inferred that "where a law does not
prevent law-abiding, responsible citizens from possessing firearms in defense of
hearth and home, it does not substantially burden the core Second Amendment
right." Id. (internal quotation marks omitted). The court concluded that "[w]hile
[the State's] firearms licensing laws implicate the core Second Amendment right,
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they do not substantially burden it. The licensing laws place no more than
'marginal[ or] incremental . . . restraint on the right to keep and bear arms.'" Id.
at 442-43 (quoting NYSRPA, 804 F.3d at 259; Decastro, 682 F.3d at 166). The
district court pointed out that, here,
[a]s Plaintiffs note, law-abiding, responsible citizens face
nothing more than time, expense, and questioning of close
friends or relatives. [Complaint] && 68-72. It is only the
narrow class of persons who are adjudged to lack the
characteristics necessary for the safe possession of a handgun
that face a substantial burden on the core Second Amendment
protection via [New York's] firearms licensing laws.
D. Ct. Opinion, 300 F. Supp. 3d at 443 (internal quotation marks omitted). The
court stated that
Plaintiffs' own experiences support the Court's
conclusion. It is only Murtari who was denied a license to
possess a firearm in his home. . . . Murtari plainly fits into the
narrow class of persons . . . [who have] shown repeated
indifference for laws at the state and federal level. See
[Complaint & 98 quoting] (letter from Judge Kehoe denying
Murtari's application for a firearms license in full because he
was arrested approximately fifty times, had received four jail
sentences totaling over four months in jail, and repeatedly
refused to make child support payments).
Id. at 443 (internal quotation marks omitted).
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Concluding that the New York licensing scheme does not impose a
burden that is substantial, the court determined that an intermediate level of
scrutiny was appropriate. Under that level of scrutiny, the question is whether
the laws are "substantially related to the achievement of an important government
interest." Id. (quoting NYSRPA, 804 F.3d at 261; Kachalsky, 701 F.3d at 96).
The district court found that New York "[u]nquestionably" has
"'substantial, indeed compelling, governmental interests in public safety and crime
prevention,'" D. Ct. Opinion, 300 F. Supp. 3d at 443 (quoting NYSRPA, 804 F.3d
at 261), and that the State's firearms licensing laws are substantially related to that
governmental interest. They are designed to allow only law-abiding, responsible
citizens to possess a firearm, and to ensure that classes of individuals who do not
have the necessary character and qualities are not. See D. Ct. Opinion, 300
F. Supp. 3d at 443-44.
6. Murtari's State-Law Claim
Finally, the district court noted that Murtari asked the court to
conduct a proceeding under New York law, N.Y. C.P.L.R. Article 78, and rule that
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Judge Kehoe was required to grant his application for a firearm license. Having
dismissed all of Plaintiffs' federal claims, and noting that it was questionable
whether federal courts had authority to conduct such a proceeding, the court
declined to exercise supplemental jurisdiction to entertain Murtari's Article 78
claim. See D. Ct. Opinion, 300 F. Supp. 3d at 444.
D. Post-Dismissal Developments
Shortly before oral argument of this appeal, Plaintiffs' counsel
informed this Court of developments since the inception of the action. Plaintiff
Rober has died; plaintiff Kuzma has obtained a firearm license; and plaintiff
Cuthbert has "moved out of New York State and now resides in Colorado" (Letter
from James Ostrowski dated February 15, 2019, at 1).
In light of the fact that, neither in this Court nor in the district court,
has any successor or representative sought to be substituted for Rober, we deem it
appropriate to dismiss as moot so much of this appeal as purports to pursue her
claims. See Fed. R. App. P. 43(a)(1) and (2); Fed. R. Civ. P. 25(a)(1). As to so
much of the appeal as pursues claims of Kuzma and Cuthbert, we conclude that
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their claims have become moot or untenable largely for reasons found applicable
to other plaintiffs, as discussed in Parts II.B. and C. below.
II. DISCUSSION
On appeal, the individual plaintiffs principally contend that the
district court erred in its rulings on standing, mootness, judicial immunity, and
traceability of their claims to the nonjudicial defendants; in concluding that the
challenged statutory criteria for licensing are not impermissibly vague; in
applying intermediate scrutiny to the challenged licensing scheme; and in
concluding that the statute survives such scrutiny. For the reasons that follow,
we conclude that these rulings of the district court were correct.
A. Standard of Review
To survive a motion to dismiss under Rule 12(b)(6) for failure to state
a claim, a complaint "must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662,
- 27 -
678 (2009) (internal quotation marks omitted). A written instrument that is
incorporated in the complaint by reference is deemed part of the complaint, see,
e.g., Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert.
denied, 503 U.S. 960 (1992); Goldman v. Belden, 754 F.2d 1059 (2d Cir. 1985);
5 C. Wright & A. Miller, Federal Practice and Procedure ' 1327 (4th ed. 2020), and
thus may properly be considered by the district court in ruling on a Rule 12(b)(6)
motion. Further, "when a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is
integral to the complaint, the defendant may produce the [document] when
attacking the complaint for its failure to state a claim." Cortec Industries, Inc. v.
Sum Holding L.P., 949 F.2d at 47; see, e.g., Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir.
2000).
In ruling on a motion to dismiss under Rule 12(b)(1) for lack of
statutory or constitutional power to adjudicate the action, the district court "may
refer to evidence outside the pleadings." Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). The burden of proving subject matter jurisdiction is on the
plaintiff. Id.
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 We review grants of Rule 12(b)(6) and 12(b)(1) motions to dismiss de
novo. See Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017); Katz v. Donna
Karan Co., 872 F.3d 114, 118 (2d Cir. 2017). To the extent that the Complaint was
dismissed for lack of subject matter jurisdiction, we may consider matters outside
the Complaint that were presented to the district court. See, e.g., Mitchell v.
Fishbein, 377 F.3d 157, 167-68 (2d Cir. 2004) ("Mitchell").
We review a district court's decision declining to exercise
supplemental jurisdiction over a state-law claim for abuse of discretion. See, e.g.,
Klein & Co. Futures v. Board of Trade of City of New York, 464 F.3d 255, 262 (2d Cir.
2006). In this case--without need for discussion--we see no abuse of discretion in
the district court's decision to decline to conduct a State-law Article 78 proceeding.
B. Subject Matter Jurisdiction: Standing, Mootness, and
Traceability
No principle is more fundamental to the judiciary's
proper role in our system of government than the constitutional
limitation of federal-court jurisdiction to actual cases or
controversies. . . . The concept of standing is part of this
limitation.
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Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37 (1976). As
recognized by the district court,
the irreducible constitutional minimum of standing contains
three elements. First, the plaintiff must have suffered an
"injury in fact"--an invasion of a legally protected interest which
is (a) concrete and particularized . . . and (b) actual or
imminent, not conjectural or hypothetical . . . . Second, there
must be a causal connection between the injury and the conduct
complained of--the injury has to be fairly . . . trace[able] to the
challenged action of the defendant . . . . Third, it must be likely, as
opposed to merely speculative, that the injury will be redressed
by a favorable decision.
Lujan, 504 U.S. at 560-61 (other internal quotation marks omitted) (emphases ours).
If, as to a claim, any of these three elements is missing, the federal court lacks
jurisdiction to entertain the claim. See, e.g., id. at 561.
Further, "[t]he usual rule in federal cases is that an actual controversy
must exist at stages of appellate or certiorari review, and not simply at the date the
action is initiated." Roe v. Wade, 410 U.S. 113, 125 (1973). Thus, a plaintiff must
show a "personal stake" in the outcome "throughout the life of the lawsuit." Cook
v. Colgate University, 992 F.2d 17, 19 (2d Cir. 1993). A matter that has become
moot is no longer a case or controversy, and a federal court loses jurisdiction to
entertain it. See, e.g., DeFunis v. Odegaard, 416 U.S. 312, 316 (1974).
- 30 -
"'As a general matter, to establish standing to challenge an allegedly
unconstitutional policy, a plaintiff must submit to the challenged policy.'"
Decastro, 682 F.3d at 164 (quoting Jackson-Bey, 115 F.3d at 1096; and citing Allen v.
Wright, 468 U.S. 737, 746 (1984), and Moose Lodge No. 107 v. Irvis, 407 U.S. 163,
166-68 (1972)). Accordingly, we have held that, absent a showing of futility, a
person who has "failed to apply for a gun license in New York . . . lacks standing
to challenge the licensing laws of the state," Decastro, 682 F.3d at 164.
Within this legal framework, the district court properly dismissed for
lack of standing (a) the claims of all plaintiffs who were not alleged to have
applied for a New York State firearm license, including Cooper, Rebmann, and
Garrett, and (b) the claims of Mayor who received a license. None of these
plaintiffs showed that they suffered injury-in-fact.
The court also properly dismissed the claims of Mongielo, who
received a license, which had been temporarily suspended when he was arrested
but then had been reinstated after all but one of the charges against him were
dismissed. Having had his license restored, Mongielo's challenges to the
licensing system were moot. Assertions that Mongielo, Mayor, and Cuthbert
- 31 -
feared their licenses would be revoked were speculative, such apprehensions
being insufficiently concrete to constitute injury-in-fact.
In addition, while the district court also dismissed the claims of
Kuzma on the ground that he had failed to apply for a license, we have been
informed, as indicated in Part I.D. above, that Kuzma has now obtained a license.
Kuzma's claims--nonexistent at the start of this action--have become moot, and we
dismiss so much of the appeal as challenges the district court's dismissal of his
claims.
Although the district court found that Cuthbert had standing to
challenge the denial of his application for a concealed-carry license, we are
informed that Cuthbert has moved out of New York and become a resident of
Colorado. As a nonresident of New York whose principal place of employment is
not in New York, he has thereby become ineligible to apply for a firearm license,
see N.Y. Penal Law ' 400.00(3)(a). Accordingly, any request by Cuthbert for
injunctive relief has become moot. To the extent that he asserted claims for
money damages with respect to the denial of a concealed-carry license, those
claims were properly dismissed for reasons discussed in Part II.C. below.
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Finally, we see no error in the district court's determination that as to
the surviving claims of Cuthbert and the claims of Murtari--the only two plaintiffs
as to whom there was any showing of injury-in-fact--the only defendants to whom
their alleged injuries were fairly traceable were the judges who denied their
respective applications. None of the other defendants was alleged to have had
any role in the licensing process or in the consideration of the applications of
Cuthbert or Murtari. The district court thus properly dismissed the claims
asserted against defendants Cuomo, James, D'Amico, and Murphy.
C. Eleventh Amendment and Judicial Immunities
An action against a state official in his official capacity is deemed an
action against the state itself, see, e.g., Hafer v. Melo, 502 U.S. 21, 25 (1991), which
possesses sovereign immunity under the Eleventh Amendment, see U.S. Const.
amend. XI. While the immunity conferred by that Amendment "is not
coextensive with the limitations on judicial power in Article III," it places "a
limitation on the federal court's judicial power." Calderon v. Ashmus, 523 U.S. 740,
745 n.2 (1998). Although the Eleventh Amendment does not bar a federal court,
- 33 -
in adjudicating federal claims against state officials in any capacity, from granting
prospective injunctive relief, see Pennhurst State School & Hospital v. Halderman, 465
U.S. 89, 105 (1984); Ex parte Young, 209 U.S. 123, 159-60 (1908), a state official sued
in his official capacity is entitled to invoke Eleventh Amendment immunity from a
claim for damages, see, e.g., Kentucky v. Graham, 473 U.S. 159, 166-67 (1985); Hafer,
502 U.S. at 25.
In the present case, defendants invoked the Eleventh Amendment in
moving to dismiss, inter alia, the claims against Justice Boller and Judge Kehoe in
their official capacities for money damages. Given the above principles, the
district court properly granted that motion.
The court also dismissed the claims of Cuthbert and Murtari against
Justice Boller and Judge Kehoe in their individual capacities for damages or for
equitable relief on the ground that judges are entitled to absolute immunity for
performance of judicial functions. See, e.g., Mireles v. Waco, 502 U.S. 9, 9-10 (1991)
(damages); 42 U.S.C. ' 1983 (injunctive relief). The court rejected Plaintiffs'
contention that, in ruling on firearm license applications, Boller and Kehoe
- 34 -
performed only an administrative function, not a judicial one. Plaintiffs pursue
this contention on appeal. We are not persuaded.
Absolute immunity for a judge performing his or her judicial
functions
is conferred in order to insure "that a judicial officer, in
exercising the authority vested in him shall be free to act upon
his own convictions, without apprehension of personal
consequences to himself."
Bliven, 579 F.3d at 209 (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871)).
Entitlement to absolute immunity does not depend on the
individual's title or on the office itself. See, e.g., Forrester v. White, 484 U.S. 219, 228
(1988). A judge may perform tasks that are not essentially judicial, such as
supervising and managing court employees, which do not warrant absolute
immunity, see, e.g., id. at 228-29; on the other hand, such immunity may be
warranted for a person who is not a judge but whose duties are quasi-judicial, see,
e.g., Butz v. Economou, 438 U.S. 478, 513-14 (1978). Further, other considerations
may prevent even persons who are deciding disputes from being accorded
absolute immunity. See, e.g., Cleavinger v. Saxner, 474 U.S. 193, 202-06 (1985)
(prison disciplinary committee, though adjudicating disciplinary accusations, held
- 35 -
not entitled to absolute immunity as quasi-judicial officers where, inter alia, the
committee members were prison officials who had an intertangled relationship
with the accusing prison officials, and, at the time of the events at issue, there were
few procedural safeguards for the accused). Nor does a determination as to
whether a proceeding is judicial in nature depend on the formality or informality
with it was conducted, or on whether the proceeding was adversary or ex parte.
See, e.g., Stump v. Sparkman, 435 U.S. 349, 363 & n.12 (1978).
Rather, the entitlement of a judge to absolute immunity depends on
the nature of the function being performed. Judges are entitled not to absolute
immunity, but to at most a qualified immunity, with respect to acts that are
administrative, such as employment decisions, see, e.g., Forrester, 484 U.S. at 228-29.
"Administrative decisions, even though they may be essential to the very
functioning of the courts, have not . . . been regarded as judicial acts." Id. at 228.
Judicial acts principally involve adjudication of particularized,
existing issues. Thus, some functions may be viewed as judicial acts when
performed in the context of a particular case but as administrative when
performed for the purpose of overall management in anticipation of future cases.
- 36 -
For example, empaneling a jury in a particular criminal trial is a quintessentially
judicial act, see White v. Bloom, 621 F.2d 276, 279-80 (8th Cir.), cert. denied, 449 U.S.
995 (1980) (judge held to have absolute immunity from a claim of conspiracy to
empanel an all-white trial jury), whereas compilation of an annual list of county
residents believed to be qualified for jury duty is an act that is ministerial, see Ex
parte Virginia, 100 U.S. (10 Otto) 339, 348 (1879) (no absolute immunity from claim
of racial discrimination in the compilation).
Similarly, the act of disbarring an attorney as a sanction for the
attorney's contumacious conduct in connection with a particular case is a judicial
act, see Bradley v. Fisher, 80 U.S. (13 Wall.) at 354-57 (judge entitled to absolute
immunity), whereas a committee, in making decisions as to additions to or
deletions from a roster of attorneys deemed qualified to represent indigent
defendants accused of crimes, unconnected to any particular criminal prosecution,
is not performing a quasi-judicial function, see, e.g., Mitchell, 377 F.3d at 172-74 (no
absolute immunity).
In determining a jurisdictional issue that depended on "whether a
particular proceeding before another tribunal was truly judicial," District of
- 37 -
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 n.13 (1983) (internal
quotation marks omitted) (emphasis ours), the Supreme Court stated that the form
of the proceeding is less significant than the proceeding's nature and effect, see id.
at 478. It concluded that where there was a petition for "a declaration on rights as
they stand," and in that context the court had "taken cognizance of the petition,"
had "considered the petitioner's petition on its merits," and had issued "an order
which [was] validated by the signature of the presiding officer," there was a
decision that was truly judicial. Id. (internal quotation marks omitted).
Here, the applications of those plaintiffs who requested a firearm
license were ruled on by the judge who was the licensing officer for the applicant's
county of residence. Actual rulings on such applications--referred to in the
Complaint, some of which have been submitted by defendants in support of the
motion to dismiss--directly addressed the specific applications, referred to
relevant requirements of ' 400.00, and decided the merits of the applicants'
requests. For example, in ruling on the application of Cuthbert, Justice Boller
caused to be entered a signed order of the "State of New York, Supreme
Court: County of Erie" (see Appendix hereto), stating as follows:
- 38 -
After a full review of the application for an unrestricted
firearms license pursuant to Section 400.00 of the New York
State Penal Law, the Court has determined that the applicant
has sufficient basis to be granted a firearms license for hunting
and target shooting. Applicant has not demonstrated
sufficient proper cause to be granted an unrestricted firearms
license as required by section 400.00-2(f) of the New York State
Penal Law.
A firearms license restricted to hunting and target
shooting as set forth above is therefore GRANTED to the
applicant.
SO ORDERED.
(Taylor Decl. Exh. D (emphasis added); see also id. Exh. C ("Order" of the "State of
New York, County of Niagara, Niagara County Court, In the Matter of the Pistol
Permit of David J. Mongielo," signed by Judge Murphy, stating that, "this Court
. . . having determined that no good cause exists to continue the suspension of said
Pistol Permit license; it is now ORDERED, that the Pistol Permit in question be
reinstated . . . ." (emphasis added) (reproduced in Appendix hereto)).)
While Judge Kehoe informed Murtari of the decision to deny his
application by way of a letter on a State of New York, Wayne County Court
letterhead rather than in an order (see Taylor Decl. Exh. E), the 10-paragraph letter
directly ruled on the application, referring in detail to the factual and statutory
basis for the denial. It recounted, inter alia, the Judge's examination of the
- 39 -
documents submitted by Murtari in support of the application and the Judge's
communicating with the United States Attorney for the Northern District of New
York pursuant to Murtari's request, along with the Judge's consideration of
Murtari's approximately 50 arrests, including four for trespasses in violation of a
federal court order, resulting in Murtari's being sentenced to a total of 142 days in
jail, and his six months of incarceration "on at least one occasion" for nonpayment
of child support--all leading to the conclusion that Murtari's prior conduct
provided "'good cause' for this Court to deny your application for a pistol permit at
this time." (Comp. & 98 (emphasis added).)
We conclude that the district court did not err in determining that the
rulings on firearm license applications were judicial decisions and that Justice
Boller and Judge Kehoe--the only defendants against whom traceable claims were
asserted by plaintiffs with standing to sue--are entitled to absolute immunity from
the claims asserted against them in their individual capacities.
The judicial-immunity-based dismissal of all of the
individual-capacity claims, along with the Eleventh Amendment dismissal of
official-capacity claims for damages, left pending only the official-capacity claims
- 40 -
of Murtari for injunctive relief against Judge Kehoe for the denial of any license
and the official-capacity claim of Cuthbert for injunctive relief against Justice
Boller for the denial of a concealed-carry license (Cuthbert having been granted an
at-home permit). However, while Cuthbert may have had standing at the time of
the district court's decision to pursue such injunctive relief against Justice Boller in
his official capacity, the fact that Cuthbert has now moved out of New York and
become a resident of Colorado, see Part I.D. above, makes him ineligible for a New
York firearm license, see N.Y. Penal Law ' 400.00(3)(a). Thus that claim has
become moot, and we accordingly dismiss so much of this appeal as pursues it.
The only remaining claims in the Complaint are those of Murtari
against Judge Kehoe in his official capacity seeking injunctive relief for denial of
Murtari's license application, on the grounds that ' 400.00 is facially void for
vagueness or unduly impinges on Murtari's Second Amendment rights.
D. The Due Process Void-for-Vagueness Claim
The Complaint alleged that New York Penal Law ' 400.00's uses of
the terms "good moral character" as a prerequisite for approval of a firearm
- 41 -
license, "proper cause" for the issuance of a concealed-carry permit, and "good
cause" for the denial of a license violate due process, arguing that "these terms are
not capable of definition in such a way that puts an applicant, a licensing officer or
a reviewing court on notice of the meaning of the terms" (Comp. && 139-140).
The district court correctly rejected this claim.
The "void-for-vagueness doctrine provides that no one may be
required at peril of life, liberty or property to speculate as to the meaning of penal
statutes." NYSRPA, 804 F.3d at 265 (internal quotation marks and alterations
omitted). It requires that statutes define regulated conduct with "sufficient
definiteness that ordinary people can understand"; but it does not demand
"meticulous specificity . . . , recognizing that language is necessarily marked by a
degree of imprecision." Id. (internal quotation marks omitted).
To sustain a facial vagueness challenge, a plaintiff "'must establish
that no set of circumstances exists under which the Act would be valid.'" NYSRPA,
804 F.3d at 265 (quoting Salerno, 481 U.S. at 745 (emphasis in NYSRPA)). Given
this standard, a "facial challenge . . . is 'the most difficult challenge to mount
successfully.'" NYSRPA, 804 F.3d at 265 (quoting Salerno, 481 U.S. at 745).
- 42 -
Plaintiffs' contention that ' 400.00 is unconstitutionally vague is based
on their argument that the Supreme Court in Heller ruled that a limitation on the
right to bear arms could properly be grounded "only [on] the commission of
felonies or an adjudication of mental disability" (Plaintiffs' brief on appeal at 34),
and that the ' 400.00 statutory phrases "'good moral character,'" "'proper cause,'"
and "'good cause'" go "beyond" those two grounds (id.). But Heller did not
purport to impose that limitation. The Heller Court stated that "nothing in our
opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government
buildings," 554 U.S. at 626; and it added that it was "identify[ing] these
presumptively lawful regulatory measures only as examples; our list does not
purport to be exhaustive," id. at 627 n.26. Indeed, Plaintiffs' brief itself states that
the Supreme Court set forth "grounds for denying" the Second Amendment right
to bear arms, "including mental illness and felonious criminality" (Plaintiffs' brief
on appeal at 34 (emphasis added)).
- 43 -
As the district court pointed out, defendants proffered examples of
several sound bases--in addition to mental illness and felony convictions--for
denying an applicant's request to possess a firearm, such as his threats to harm
others, or his addiction to drugs, or his repeatedly reckless conduct with a weapon
while intoxicated. Such examples are not beyond an ordinary person's
comprehension; nor are they rare, see, e.g., Robertson v. Kerik, 300 A.D.2d 90, 90-91,
751 N.Y.S.2d 469, 469-70 (1st Dep't 2002) (upholding firearm license revocation for
lack of "good moral character" due to the holder's "poor judgment and inability to
manage his anger" as shown by his "assault[ing] his girlfriend"); Broadus v. City of
New York Police Department (License Division), 62 A.D.3d 527, 528, 878 N.Y.S.2d 738,
739 (1st Dep't 2009) (determination of lack of "good moral character" was
supported by applicant's arrest for "driving while intoxicated" and possessing "a
loaded firearm when arrested").
That such circumstances have direct implications for determinations
of "good moral character," "proper cause," and "good cause" is easily
understandable. Indeed, despite the presence of those challenged terms in New
York's licensing regime for more than a century, see, e.g., Kachalsky, 701 F.3d at 85,
- 44 -
Plaintiffs have identified no "evidence of confusion"; and the "repeated use for
decades, without evidence of mischief or misunderstanding . . . suggests that the
language is comprehensible," NYSRPA, 804 F.3d at 267, 268.
The district court did not err in concluding that the Complaint failed
to set forth a plausible claim that ' 400.00 is impermissibly vague.
E. The Second Amendment Claim
Finally, the Complaint alleged that New York Penal Law '' 400.00
and 265.00 violate the Second Amendment (1) by conditioning the right to obtain
an at-home permit on "'good moral character,' integrity and the absence of 'good
cause' to deny a license" (Comp. & 137(b)); and (2) by requiring those conditions
plus a showing of "'proper cause'" in order to obtain a concealed-carry permit (id.
&& 138(a) and (c)). The challenge to the "'proper cause'" prerequisite for obtaining
a concealed-carry permit is foreclosed by this Court's decision in Kachalsky, 701
F.3d at 97-101. Although Plaintiffs contend that Kachalsky was wrongly decided,
it remains binding precedent.
- 45 -
The challenge to the "good moral character" and "good cause"
requirements for obtaining an at-home permit, on analysis, fares no better. As
indicated in Part II.D. above, the Supreme Court in Heller did not purport to find
that the Second Amendment right to bear arms was unlimited; rather, it noted that
certain longstanding restrictions on the right are "presumptively lawful," and that
its list of examples "d[id] not purport to be exhaustive," 554 U.S. at 626-27 & n.26.
As the district court noted, because Heller also did not attempt to define the
standard for assessing challenged restrictions on the right, this Court has adopted
a two-step analysis in which we first consider whether the challenged law burdens
the right and, if it does, we then determine the appropriate level of scrutiny. See,
e.g., NYSRPA, 804 F.3d at 254; Kachalsky, 701 F.3d at 93; Decastro, 682 F.3d at 165-68.
As to the first step of the analysis, we have interpreted the core
Second Amendment right identified in Heller to be the "'right of law-abiding,
responsible citizens,'" United States v. Jimenez, 895 F.3d 228, 234 (2d Cir. 2018)
("Jimenez") (quoting Heller, 554 U.S. at 635 (emphasis in Jimenez)), to use "'handguns
. . . for self-defense in the home,'" NYSRPA, 804 F.3d at 254 (quoting Heller, 554
U.S. at 628-29). "The Supreme Court . . . identified the core . . . protections by
- 46 -
reference not only to particular uses and particular weapons but also to particular
persons, namely, those who are law-abiding and responsible." Jimenez, 895 F.3d
at 234-35 (internal quotation marks omitted).
New York's at-home license regime, while affecting the core Second
Amendment right, imposes nowhere near the burden that was at issue in Heller.
In contrast to that "total[] ban[]" on "handgun possession in the home," which was
held to violate the Second Amendment, Heller, 554 U.S. at 628-29, the New York
regime allows at-home licenses for applicants who show "good moral character"
and show that "good cause" does not exist for denying a license, N.Y. Penal Law
'' 400.00(1)(b) and (n). The New York scheme further specifies that no firearm
license is to be allowed for inter alios, persons convicted of "serious offense[s]," id.
' 400.00(c), drug addicts, see id. ' 400.00(e), and "fugitive[s] from justice," id.
' 400.00(d). But the statute does not burden the ability of "law-abiding, responsible
citizens to use arms in defense of hearth and home," Heller, 554 U.S. at 635
(emphases added). Thus, the conditions placed on the core Second Amendment
right are not onerous, and the Complaint does not allege that any law-abiding,
- 47 -
responsible citizen who applied for a New York firearm license had been denied
an at-home permit.
As for the second step of the Second Amendment analysis, we have
not interpreted Heller as requiring that every
marginal, incremental or even appreciable restraint on the right
to keep and bear arms be subject to heightened scrutiny.
Rather, heightened scrutiny is triggered only by those restrictions
that (like the complete prohibition on handguns struck down in
Heller) operate as a substantial burden on the ability of
law-abiding citizens to possess and use a firearm for
self-defense (or other lawful purposes).
Decastro, 682 F.3d at 166 (emphasis added); accord New York State Rifle & Pistol
Ass'n v. City of New York, 883 F.3d 45, 56 (2d Cir. 2018). Laws that "place
substantial burdens on core rights are examined using strict scrutiny"; but laws
that "place either insubstantial burdens on conduct at the core of the Second
Amendment or substantial burdens [only] on conduct outside the core . . . can be
examined using intermediate scrutiny." Jimenez, 895 F.3d at 234. Given that the
impact of the New York licensing regime on law-abiding, responsible citizens is
modest, we conclude that intermediate scrutiny is the highest level of review
potentially appropriate in this case.
- 48 -
In applying intermediate scrutiny, we ask "whether the statutes at
issue are substantially related to the achievement of an important governmental
interest." NYSRPA, 804 F.3d at 261 (internal quotation marks omitted). As it is
"beyond cavil that . . . states have substantial, indeed compelling, governmental
interests in public safety and crime prevention," we consider only "whether the
challenged laws are substantially related to the achievement of that governmental
interest." Id. (internal quotation marks omitted). "To survive intermediate
scrutiny, the fit between the challenged regulation" and the government interest
"need only be substantial, not perfect." Kachalsky, 701 F.3d at 97 (internal
quotation marks omitted).
The Complaint's allegations with regard to Murtari reveal regulation
that easily meets--and surpasses--this standard. The Complaint quotes Judge
Kehoe's decision denying Murtari a pistol permit and does not dispute the
accuracy of any part of it. The decision stated that Murtari was being denied a
firearm license as a person who, for more than a decade, had not demonstrated
law-abiding temperament, given, inter alia, his frequently violating court orders,
his being arrested some 50 times, and his being jailed several times. (See Comp.
- 49 -
& 98.) Nonetheless, the letter informed Murtari that if he proceeded, "for an
extended period of time," to "remain compliant in the future with all lawful court
orders, as well as Federal and State statutory law," he could "make a new
application" for a license. (Id.)
The Complaint itself thus reveals a close relationship between the
licensing regime and the State's interests in public safety and crime prevention--as
well as solicitude for the Second Amendment rights of citizens who are
responsible and law abiding. The district court made no error in determining
that the New York licensing regime survives intermediate scrutiny and does not
unduly burden Murtari's Second Amendment right to bear arms.
CONCLUSION
For the reasons discussed above, we conclude that the appeal is
dismissed as to Libertarian Party, which expressly disclaimed any request for
appellate relief; is dismissed as moot insofar as it pursues relief on behalf of
plaintiff Rober, who is deceased with no successor or representative having been
- 50 -
substituted for her; is dismissed insofar as it pursues relief on behalf of plaintiff
Kuzma, whose acquisition of a firearm license has made moot any claim that was
pursued for him; and is dismissed insofar as it pursues injunctive relief on behalf
of plaintiff Cuthbert, whose relocation to Colorado has made him ineligible to
apply for a New York concealed-carry permit. We have considered all of the
other arguments that are properly before us and have found them to be without
merit.
For the above reasons, the appeal is dismissed in part; the judgment
of the district court is otherwise affirmed.
- 51 -