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Shui W. Kwong, et al v. Michael Bloomberg

March 26, 2012

SHUI W. KWONG, ET AL., PLAINTIFFS,
v.
MICHAEL BLOOMBERG, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

OPINION AND ORDER

This lawsuit challenges the constitutionality of New York City's fee for a residential handgun license as well as the New York State statute that authorizes the City to collect that fee.

Plaintiffs Shui W. Kwong, George Greco, Glenn Herman, Nick Lidakis, Timothy S. Furey, Daniela Greco, and Nunzio Calce ("the individual plaintiffs"), as well as Second Amendment Foundation, Inc. and the New York State Rifle & Pistol Association, Inc. ("the organizational plaintiffs") (collectively "the plaintiffs"), bring this action against the City of New York and Michael Bloomberg, in his official capacity as the Mayor of the City of New York ("the City Defendants"). The Attorney General of the State of New York ("the Intervenor") has intervened in this action.*fn1

The plaintiffs bring this action pursuant to 42 U.S.C. § 1983, alleging that two statutes - New York City Administrative Code § 10-131(a)(2) ("Admin. Code § 10-131(a)(2)" or "the City Statute") and New York Penal Law § 400.00(14) ("Penal Law § 400.00(14)" or "the State Statute") - violate their rights under the Second Amendment as incorporated against the States by the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, respectively. Pursuant to the authority granted by Penal Law § 400.00(14), New York City has set the fee for a residential handgun license at $340. The plaintiffs claim that the fee is unconstitutional. The plaintiffs have now moved for summary judgment and the City Defendants and Intervenor cross-moved for summary judgment. For the reasons explained below, the license fee and the implementing statutes are constitutional.

I.

The following facts are undisputed unless otherwise noted. The individual plaintiffs are residents of New York City who all have paid a $340 fee to apply for a New York City "Premises Residence" handgun license, which allows license holders to possess handguns within a specified dwelling. (Pls.' R. 56.1 Stmt. ¶¶ 9-15; City Defs.' R. 56.1 Resp. ¶¶ 9-15; Intervenor's R. 56.1 Resp. ¶¶ 9-15); N.Y. Penal Law § 400.00(2)(a); 38 RCNY § 5-01. Each individual plaintiff holds a Premises Residence handgun license. (Pls.' R. 56.1 Stmt. ¶¶ 9-15; City Defs.' R. 56.1 Resp. ¶¶ 9-15; Intervenor's R. 56.1 Resp. ¶¶ 9-15.) Plaintiffs Second Amendment Foundation, Inc. ("SAF") and the New York State Rifle & Pistol Association, Inc. ("NYSRPA") are not-for-profit member organizations that aim to promote the exercise and preservation of Second Amendment rights. (Pls.' R. 56.1 Stmt. ¶¶ 17, 19, 22, 25; City Defs.' R. 56.1 Resp. ¶¶ 17, 19, 22, 25; Intervenor's R. 56.1 Resp. ¶¶ 17, 19, 22, 25.) Plaintiffs Lidakis and Calce are members of SAF, plaintiff Greco is a member of NYSRPA, and plaintiff Herman is a member of both organizations. (Pls.' R. 56.1 Stmt. ¶¶ 21, 26; City Defs.' R. 56.1 Resp. ¶¶ 21, 26; Intervenor's R. 56.1 Resp. ¶¶ 21, 26.) SAF and NYSRPA assert claims on their own behalf and on behalf of their members. (Compl. ¶¶ 49, 54.)

The plaintiffs bring this action pursuant to 42 U.S.C. § 1983 alleging a violation of their rights under the Second Amendment and the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs' challenge concerns the $340 fee that New York City imposes for the issuance or renewal of a Premises Residence handgun license that is valid for three years. New York State law makes it illegal to possess a handgun, including within the home, without a license. N.Y. Penal Law §§ 265.01(1), 265.20(a)(3). New York Penal Law Article 400 provides for several different types of licenses to carry or possess handguns in various places or circumstances, including the Premises Residence handgun license at issue here. N.Y. Penal Law § 400.00(2). The Premises Residence handgun license allows a license holder to "have and possess [a handgun] in his dwelling . . . ." N.Y. Penal Law § 400.00(2)(a).

In order to obtain or renew a Premises Residence handgun license, an individual must apply for the license. N.Y. Penal Law § 400.00(1). The License Division of the New York City Police Department ("NYPD") is the entity responsible for processing applications and issuing handgun licenses, including Premises Residence handgun licenses. (Decl. of Andrew Lunetta ("Lunetta Decl.") ¶¶ 2-3.) Under New York law, "[n]o license shall be issued or renewed . . . except by the licensing officer, and then only after investigation and finding that all statements in a proper application for a license are true."

N.Y. Penal Law § 400.00(1). Accordingly, in processing applications, a licensing officer must, among other duties, determine whether the applicant meets the eligibility requirements set forth under New York law; inspect mental hygiene records; and investigate the truthfulness of statements made in the application. (Lunetta Decl. ¶¶ 11-15); N.Y. Penal Law § 400.00(4). The licensing officer may not approve the application if "good cause exists for the denial of the license." N.Y. Penal Law § 400.00(1)(g).

The plaintiffs challenge two specific statutory provisions related to this licensing scheme. The first provision the plaintiffs challenge - New York Penal Law § 400.00(14) - authorizes the New York City Council ("City Council") to set the fees for the issuance and renewal of all handgun licenses issued in New York City. The statute also confers discretion on the Nassau County Board of Supervisors to set handgun licensing fees in Nassau County, although the plaintiffs do not challenge this portion of the statute.*fn2 Penal Law § 400.00(14) provides that:

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 . . . not less than three dollars nor more than ten dollars as may be determined by the legislative body of the county . . . .

N.Y. Penal Law § 400.00(14). Thus, while in New York State the license fee is generally capped at a $10 maximum, in New York City, the City Council may set the fee above this rate. Penal Law § 400.00(14) was amended in 1947 by the New York State Legislature to confer this discretion on the City Council to set fees outside the fee range applicable to the rest of the State ("the 1947 Amendment"). 1947 N.Y. Laws Ch. 147, attached as Decl. of Monica A. Connell ("Connell Decl.") Ex. F; Decl. of David D. Jensen ("Jensen Decl.") Ex. 18; Decl. of Michelle Goldberg-Cahn ("Goldberg-Cahn Decl.") Ex. A.

Since 1948, the City Council has enacted legislation establishing fees for the issuance and renewal of licenses to possess and carry handguns. In 1948, the fee in New York City was set at $10 for the initial license and $5 for each renewal license. Local Law No. 32 (1948), attached as Goldberg-Cahn Decl. Ex. B. This fee was increased several times, with the most recent fee increase in 2004. Local Law No. 47 (1962), Local Law No. 78 (1973), Local Law No. 42 (1979), Local Law No. 37 (1985), Local Law No. 51 (1989), Local Law No. 42 (1992), Local Law No. 37 (2004), attached as Goldberg-Cahn Decl. Exs. C, E, F, G, H, I, J. Local Law 37 of 2004 raised the fees from the $170 fee then applicable for a two-year handgun license to the $340 fee for a three-year handgun license that the plaintiffs now challenge.*fn3 Local Law 37 (2004), attached as Goldberg-Cahn Decl. Ex. J. The $340 fee is prescribed by Admin. Code § 10-131(a)(2), which provides:

Every license to carry or possess a pistol or revolver in the city may be issued for a term of no less than one or more than three years. Every applicant for a license to carry or possess a pistol or revolver in the city shall pay therefor, a fee of three hundred forty dollars for each original or renewal application for a three year license period or part thereof . . . .

N.Y.C. Admin. Code § 10-131(a)(2).

The plaintiffs contend that Admin. Code § 10-131(a)(2) violates the Second Amendment because it imposes an impermissible fee that unconstitutionally burdens the right to keep and bear arms. The plaintiffs also argue that Penal Law § 400.00(14) violates the Equal Protection Clause because it draws a classification between New York City residents and other citizens of New York State that results in a disparate burden on the exercise of New York City residents' Second Amendment rights. The plaintiffs do not challenge the requirement of a license to possess or carry a handgun, the performance of an investigation prior to the issuance of a license, or the imposition of a fee to apply for such a license. In addition, the plaintiffs' action is confined to Premises Residence handgun licenses and does not challenge the application of the $340 fee to other types of handgun licenses. The plaintiffs seek declaratory and injunctive relief. (Compl. ¶ 3.)

The plaintiffs moved for summary judgment in their favor pursuant to Rule 56 of the Federal Rules of Civil Procedure before any discovery in this action had taken place. The City Defendants and the Intervenor both cross-moved for summary judgment. The City Defendants' motion sought dismissal of all causes of action in this suit, while the Intervenor's motion sought dismissal of the second cause of action directed against Penal Law § 400.00(14).

II.

The standard for granting summary judgment is well established. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs. L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Behringer v. Lavelle Sch. for Blind, No. 08 Civ. 4899, 2010 WL 5158644, at *1 (S.D.N.Y. Dec. 17, 2010).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is inappropriate if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). The moving party has the initial burden of demonstrating the lack of a material issue of fact. If the moving party meets its burden, the nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the ...


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