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CRISTINA v. DEPARTMENT OF NEW YORK

August 13, 1976

Salvatore J. CRISTINA, Plaintiff,
v.
DEPARTMENT OF STATE OF the STATE OF NEW YORK et al., Defendants



The opinion of the court was delivered by: WARD

ROBERT J. WARD, District Judge.

 Defendants Police Department of the City of New York ("N.Y.C.P.D."), Officer Peter Maloney and Lt. Anthony Luzzi move to dismiss the complaint pursuant to Rule 12(b)(1), Fed.R.Civ.P., for lack of subject matter jurisdiction and pursuant to Rule 12(b)(6), for failure to state a claim upon which relief can be granted, or in the alternative, for summary judgment pursuant to Rule 56 on the latter ground. In addition, the movants assert that this Court should abstain from exercising jurisdiction.

 Defendants Department of State of the State of New York, Investigator Dan Weiner and Investigator Murry Nadler similarly move for summary judgment pursuant to Rule 56, Fed.R.Civ.P., upon the grounds that the Court lacks subject matter jurisdiction, the complaint fails to state an actionable claim, and there is pending a state proceeding requiring abstention by this Court.

 For the reasons hereinafter stated, the Courts finds that, although it has subject matter jursdiction over plaintiff's claims, and therefore denies the portions of the motions seeking dismissal on this ground, it will abstain from exercising jurisdiction pending prompt state consideration of the issues. Inasmuch as the Court has concluded that it is appropriate to abstain, the portions of defendants' motions seeking to dismiss the complaint for failure to state an actionable claim, or alternatively, for summary judgment on that ground, are denied without prejudice.

 Plaintiff Salvatore J. Cristina d/b/a Company Security Force ("Cristina") brings this action to challenge the cancellation by the Licensing Division of the N.Y.C.P.D. ("the Licensing Division") of his license to carry a pistol. Cristina was issued a license to carry a pistol in New York City by the Licensing Division on April 17, 1974. In support of his application for a city pistol license, plaintiff had submitted a copy of his license to operate a Watch Guard and Patrol Agency ("Guard Agency") issued by the Department of State of the State of New York ("Department of State") on October 19, 1973, alleging that he needed a pistol in order to provide Guard Agency services. On October 3, 1975, after an investigation and hearing, the Licensing Division cancelled Cristina's pistol license for "lack of need," finding that he had no active Guard Agency accounts aside from his own beverage and mail order jewelry businesses, which the investigator found did not require armed protection.

 Plaintiff, however, argues that his possession of a state Guard Agency license automatically and continuously establishes the "need" requisite for a city pistol license. Moreover, he alleges that the procedures utilized in the revocation of his city pistol license and the subsequent investigation into his state Guard Agency license constitute a conspiracy to deprive him of his civil rights in violation of 42 U.S.C. § 1985 and of his alleged right to bear arms under the Second Amendment to the United States Constitution. He also alleges violations of the Fourteenth Amendment to the United States Constitution, because (1) as a result of a conspiracy by the defendants, his civil rights have been violated and his property has been taken from him without due process of law, in that, since the cancellation of his pistol license, he has been unable to engage in the Guard Agency business for which he has been licensed by the State of New York, and (2) the Department of State has deliberately fashioned a misleading license application whose sole purpose is to cause misstatements to be made by licensees which place them in jeopardy of losing their licenses.

 Plaintiff charges defendant Lt. Luzzi with manipulating the tape recording of his September 4, 1975 hearing on need, thus misrepresenting Cristina's testimony and provoking the cancellation of his pistol license. Additionally, he charges that because of his challenge to the cancellation of his city pistol license, city and state officials conspired to deprive him of his state Guard Agency license also, resulting in a hearing on April 26, 1976 concerning an alleged "material misstatement" on his state application. *fn1" Plaintiff states that at that hearing, N.Y.C.P.D. Sgt. Waldron admitted meeting with State Investigator Weiner and exchanging official papers; Investigator Weiner admitted meeting with Sgt. Waldron, denied "looking" at the papers, but admitted reading city transcripts; and State Investigator Nadler admitted meeting N.Y.C.P.D. Sgt. Daley and listening to tapes of the city hearing. Plaintiff also asserts that the actions of some or all of the defendants were arbitrary and capricious, were in furtherance of a conspiracy to interfere with his rights as a licensee of the State of New York and were in restraint of interstate commerce, violating the Sherman Act and the Clayton Act, 15 U.S.C. § 1, 15 U.S.C. §§ 12 et seq., respectively.

 28 U.S.C. § 1343 provides the district courts with original jurisdiction to hear claims for damages under 42 U.S.C. § 1985. *fn2" 28 U.S.C. § 1331(a) also gives this Court jurisdiction to hear the federal questions raised in plaintiff's complaint since the enforcement of rights arising under the Constitution and laws of the United States is basic to the relief he seeks, and the claims he alleges are neither insubstantial nor frivolous. Bell v. Hood, 327 U.S. 678, 683, 66 S. Ct. 773, 90 L. Ed. 939 (1945); Moore v. Central R. Co. of New Jersey, 185 F.2d 369, 371 (2d Cir. 1950). *fn3"

 The Court notes, without reaching the merits, that the fact that a wrong may have been suffered does not automatically insure entry into, and the granting of relief by, a federal court. The Supreme Court recently articulated factors relevant to a determination of the appropriate route to be taken by this court. In Colorado River Water Conservation District, et al. v. United States, 424 U.S. 800, 96 S. Ct. 1236, 1244, 47 L. Ed. 2d 483 (March 24, 1976), while acknowledging that "Abstention from the exercise of federal jurisdiction is the exception, not the rule," Mr. Justice Brennan wrote for the court:

 
(a) Abstention is appropriate "in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law." County of Allegheny v. Frank Mashuda Co., 360 U.S. [185] at 189, 79 S. Ct. [1060] at 1063, 3 L. Ed. 2d [1163] at 1166 (1959). See, e.g., Lake Carriers Assn. v. MacMullan, 406 U.S. 498, 92 S. Ct. 1749, 32 L. Ed. 2d 257 (1972); United Gas Pipeline Co. v. Ideal Cement Co., 369 U.S. 134, 82 S. Ct. 676, 7 L. Ed. 2d 623 (1962); Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). . . .
 
(b) Abstention is also appropriate where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar. Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S. Ct. 1070, 3 L. Ed. 2d 1058 (1959) . . . See also Kaiser Steel Corp. v. W. S. Ranch Co., 391 U.S. 593, 88 S. Ct. 1753, 20 L. Ed. 2d 835 (1968); Hawks v. Hamill, 288 U.S. 52, 53 S. Ct. 240, 77 L. Ed. 610 (1933). In some cases, however, the state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. [citing Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943)] . . ..
 
(c) Finally, abstention is appropriate where, absent bad faith, harassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings, Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) . . ..

 The third category, (c), of cases requiring abstention is not relevant to our discussion, but the first two do apply. Category (a) represents the traditional doctrine of abstention, "the Pullman doctrine," which mandates consideration of efficient alternatives to federal litigation, i.e., state proceedings:

 
If there was no warrant in state law for the Commission's assumption of authority there is an end of the litigation; the constitutional issue does not arise. The law of Texas appears to furnish easy and ample means for determining the Commission's authority. . . . Or, if there are difficulties in the way of this procedure of which we have not been apprised, the issue of state law may be settled by appropriate action on the part of the State to enforce obedience to the order. . . . In the absence of any showing that these obvious methods for securing a definitive ruling in the state ...

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