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Alfred G. Osterweil v. George R. Bartlett

May 20, 2011


The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:



Plaintiff pro se commenced this action challenging New York's statutory mechanism by which individuals apply for permits to carry or possess firearms. Plaintiff urges that the denial of his handgun permit application violated his rights under the United States Constitution, the New York State Constitution, and the New York State Civil Rights Law.

In a Memorandum-Decision and Order dated February 24, 2010, United States District Court Judge Gary L. Sharpe granted in part and denied in part defendant's motion to dismiss. See Dkt. No. 15. Specifically, Judge Sharpe dismissed Governor Paterson and Attorney General Cuomo as improper parties, and further dismissed plaintiff's "first three causes of action [which] seek to mount a Second Amendment attack against only state legislation," but permitted plaintiff's claims brought pursuant to the Fourteenth Amendment to proceed. See id. at 6-7. In light of the Supreme Court's subsequent decision in McDonald v. City of Chicago ___ U.S. ___, 130 S. Ct. 3020 (2010), which held that the Second Amendment applies to the states, Judge Sharpe granted plaintiff's unopposed motion for reconsideration and reinstated his Second Amendment claims. See Dkt. No. 26.

Currently before the Court are the parties' cross-motions for summary judgment.


Defendant, as a Schoharie County Judge, is the licensing officer in Schoharie County for pistol (firearm) permits. See Dkt. No. 33-2 at ¶ 1. On or about May 21, 2008, plaintiff submitted an application with the Schoharie County Sheriff's Department for a New York State pistol permit. See id. at ¶ 2. In this application, he listed his residence as Schoharie County, New York. See id.

Pursuant to New York Penal Law § 400.00, the Schoharie County Sheriff ("Sheriff") conducts investigations regarding pistol permit applications. See id. at ¶ 3. Part of the investigation involves verifying information set forth in the application, receiving information from the applicant's references, performing criminal background checks, and obtaining the applicant's fingerprints, which are submitted to the New York State Division of Criminal Justice Services ("DCJS") and the Federal Bureau of Investigation for further investigation into the applicant's background. See id.

By letter dated June 24, 2008, the Sheriff advised plaintiff that he needed to come into the Sheriff's office "to correct and/or complete some information" on his application. See id. at ¶ 4. In response, plaintiff sent a letter dated June 25, 2008, stating that since he applied for a permit, he had purchased a home in another state which he intended to use as his primary residence and to now use his Schoharie County property as a vacation home. See id. at ¶ 5. In the letter, plaintiff asked whether, under the circumstances he set forth, he was still eligible for a pistol permit. See id.

On or about August 13, 2008, the DCJS advised the Sheriff that, "[d]ue to the poor quality of the fingerprint impressions received, DCJS is unable to determine whether this individual has any other criminal record in New York State." See id. at ¶ 8. On or about July 31, 2008, plaintiff's fingerprints were rejected by the FBI because "the quality of the characteristics i[s] too low to be used." See id. at ¶ 9. On August 18, 2010, the Sheriff requested plaintiff to come into his office to be re-fingerprinted. See id. at ¶ 10. Thereafter, on September 8, 2008, plaintiff's fingerprints were again rejected by the FBI because of their poor quality. See id. at ¶ 11.

In a letter dated February 18, 2009, the Sheriff advised plaintiff that he was sending his application to defendant. See id. at ¶ 13. In a February 20, 2009 letter, defendant set forth what he felt were the issues regarding plaintiff's application, i.e., the lack of quality fingerprints that could be used by the FBI and the DCJS, as well as his residency. See id. at ¶ 14. Accordingly, defendant scheduled an appearance on March 24, 2009 to provide plaintiff and/or his attorney an opportunity to "present any arguments in support of [his] application." See id. at ¶¶ 14-15. Specifically, defendant advised plaintiff that he "would be interested in . . . any legal precedent in support of your position with regard to residency and in support of a fingerprint check waiver." See id. at ¶ 15. Moreover, defendant informed plaintiff that he would like the Sheriff to be present to explain the fingerprint situation and to answer any questions that plaintiff or his attorney may have. See id.

In a March 3, 2009 letter, plaintiff informed defendant of special steps that could be taken with respect to persons with "worn" fingerprints and further indicated that none of these "special steps" were used by the Sheriff in his case. See id. at ¶ 16. Following a series of letters between the parties, plaintiff indicated that he did not want to make a personal appearance and provided additional arguments regarding his concerns over New York's residency and fingerprint requirements. See id. at ¶¶ 17-24.

On May 29, 2009, defendant issued a written decision denying plaintiff's pistol permit application. See Dkt. No. 33-1 at Exhibit "21." In the decision, defendant rejected plaintiff's argument that, since more than six months had elapsed since he submitted his application, defendant was required to grant his application, finding "good cause" for the delay. See id. at 7-9. Although defendant found that the application was incomplete because the Sheriff was unable to perform the requisite investigation due to the poor quality of plaintiff's fingerprints, defendant held that issue in abeyance in order to address the threshold issue of whether New York law allows the issuance of a pistol permit to a nonresident in plaintiff's situation. See id. at 9-16. In denying plaintiff's application, defendant adhered to the long-standing New York precedent that a pistol permit may not be issued to nonresidents in plaintiff's situation; and, relying on both federal and New York State case law, rejected plaintiff's argument that New York's firearm licensing law is unconstitutional. See id. at 11-16. Defendant held that "'New York's licensing requirement remains an acceptable means of regulating the possession of firearms . . . and will not contravene Heller so long as it is not enforced in an arbitrary and capricious manner (see, District of Columbia v. Heller, 128 S. Ct. at 2819).'" See id. at 16 (internal citations and quotation omitted).

On July 21, 2009, pursuant to 42 U.S.C. § 1983, plaintiff filed the present action alleging violations of his constitutional rights stemming from the denial of his New York State pistol permit application. See Dkt. No. 1. Presently before the Court are the parties' cross-motions for summary judgment.


A. Summary judgment standard

A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at 36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).

In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").

"[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972)) (other citations omitted). "However, a pro se party's 'bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

B. Statutory framework

New York regulates handguns primarily through Articles 265 and 400 of the New York State Penal Law ("Penal Law"). Article 265 creates a general ban on handgun possession, see, e.g., N.Y. Penal Law §§ 265.01(1), 265.02(4), with specific exemptions thereto, see N.Y. Penal Law § 265.20. At issue here is the residency requirement set forth in Penal Law § 400.00(3)(a), which only allows New York residents and a narrow class of nonresidents to qualify for a handgun permit. See N.Y. Penal Law § 400.00(3)(a).

Article 400 of the Penal Law "is the exclusive statutory mechanism for the licensing of firearms in New York State." O'Connor v. Scarpino, 83 N.Y.2d 919, 920 (1994). Licenses are limited to persons over twenty-one years of age, of good moral character, without a history of crime or mental illness, and "concerning whom no good cause exists for the denial of the license." N.Y. Penal Law § 400.00(1). There are several types of pistol and revolver licenses, including licenses for household possession, see N.Y. Penal Law § 400.00(2)(a), for workplace possession, see N.Y. Penal Law § 400.00(2)(b), and to "have and carry concealed," see N.Y. Penal Law § 400.00(2)(f).

Licensing is a rigorous and principally local process that begins with the submission of a signed and verified application to a local licensing officer. See N.Y. Penal Law § 400.00(3). Applicants must demonstrate compliance with certain statutory eligibility requirements and provide any facts "as may be required to show the good character, competency and integrity of each person or individual signing the application." Id. Every application triggers a local investigation. See N.Y. Penal Law § 400.00(4). This investigation entails local police investigating the applicant's mental health history, criminal history, moral character, and, in the case of a carry license, representations of proper cause. See N.Y. Penal Law § 400.00(1)-(4). The investigating authority will also take the applicant's fingerprints and check them against the records of the New York State Division of Criminal Justice Services and the Federal Bureau of Investigation. See N.Y. Penal Law § 400.00(4). Upon completion of the investigation, the investigating authority reports its results to the licensing officer. See id.

Local licensing officers, often local judges,*fn1 have considerable discretion in deciding whether to grant a license application. See, e.g., Vale v. Eidens, 290 A.D.2d 612, 613 (3d Dep't 2002) (citation omitted); Kaplan v. Bratton, 249 A.D.2d 199, 201 (1st Dep't 1998) (citation omitted); Fromson v. Nelson, 178 A.D.2d 479, 479 (2d Dep't 1991) (citation omitted); Marlow v. Buckley, 105 A.D.2d 1160 (4th Dep't 1984) (citations omitted). The officer may deny an application for any "good cause," see N.Y. Penal Law § 400.00(1)(g); Brando v. Sullivan, 290 A.D.2d 691, 691-92 (3d Dep't 2002) (citation omitted); may deny a carry license for what the officer deems a lack of "proper cause," see N.Y. Penal Law ยง 400.00(2)(f); and may restrict a carry license "to the purposes that justified the issuance," O'Connor, 83 N.Y.2d at 921. Moreover, a licensing officer can deny applications where he finds the applicant's personal ...

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