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Panzella v. Sposato

United States Court of Appeals, Second Circuit

July 17, 2017

CHRISTINE PANZELLA, Plaintiff-Appellee-Cross-Appellant
v.
MICHAEL J. SPOSATO, Individually and in his Official Capacity, UNKNOWN SHERIFFS #2 THROUGH 4, NASSAU COUNTY, NASSAU COUNTY SHERIFF'S DEPARTMENT, ROBERT MASTROPIERI, Individually and in his Official Capacity, UNKNOWN SHERIFF, #1 WITH SHIELD #116, Defendants-Appellants-Cross-Appellees [*]

          Argued: June 12, 2017

          ROBERT JAMES LA REDDOLA, La Reddola, Lester & Associates, LLP, Garden City, New York, for Plaintiff-Appellee-Cross-Appellant

          ROBERT F. VAN DER WAAG, Deputy County Attorney, for Carnell T. Foskey, Nassau County Attorney, Mineola, New York, for Defendants-Appellants-Cross-Appellees

          Before: Calabresi, Pooler, Circuit Judges, Vilardo, [**] District Judge.

          GUIDO CALABRESI, Circuit Judge

         This case arose after the County of Nassau, the Nassau County Sheriff's Department, and various officers (collectively, the "Defendants") refused to return Plaintiff Christine Panzella's longarms[1] that had been seized in connection with a New York Family Court temporary order of protection issued against Panzella, even though the order was no longer in effect. Now before us are an appeal and a cross-appeal from the August 26, 2015 order of the United States District Court for the Eastern District of New York (Azrack, J.). The order granted Panzella an injunction that entitles her to a hearing to determine whether the County must return her longarms; it also gave the individual Defendants qualified immunity as to several claims, rejected various other claims by Panzella, and reserved ruling on two of Panzella's state-law claims until after the County affords her the hearing required by the district court's injunction.

         For the reasons set forth below, the order of the district court is AFFIRMED to the extent that it grants Panzella an injunction. The appeal is DISMISSED in all other respects.

         I. BACKGROUND

         Because this case involves the interplay between New York Family Court orders of protection and various state and federal laws, we first set forth an overview of the relevant legal framework.

         A. Article 8 of the New York Family Court Act

         Under Article 8 of the New York Family Court Act, an individual may file a petition in the Family Court to obtain an order of protection against a family member. N.Y. Fam. Ct. Act §§ 812, 821-22. The Family Court may then, upon a showing of "good cause[, ] . . . issue a temporary order of protection" prohibiting the respondent from engaging in various types of conduct. Id. § 828.

         The Family Court has on file a general "temporary order of protection" form, which lists conditions the court may impose upon a respondent. The form, reflecting § 842-a of the New York Family Court Act, provides a box the court can check to order the respondent to "[s]urrender any and all [firearms] owned or possessed" by the respondent, and to prohibit the respondent from "obtain[ing] any further . . . firearms." App. at 591. The bottom of the form notifies the respondent that "[i]t is a federal crime to . . . buy, possess or transfer a [firearm] while this Order remains in effect" (hereafter referred to as the "federal warning language"). Id. at 592. The federal warning language cites, inter alia, 18 U.S.C. § 922(g)(8), which states that it is unlawful for any person to possess firearms if that person:

is subject to a court order that-
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.

18 U.S.C. § 922(g)(8).

         If the Family Court issues the order ex parte, the Court must hold a hearing regarding the surrender within fourteen days of the date the order was issued. N.Y. Fam. Ct. Act § 842-a(7).

         "Although Section 842-a authorizes the Family Court to order the confiscation of . . . firearms, this provision does not authorize it to order their subsequent return."[2] Dudek v. Nassau Cty. Sheriff's Dep't, 991 F.Supp.2d 402, 406 (E.D.N.Y. 2013); accord Engel v. Engel, 24 A.D.3d 548, 549 (N.Y.App.Div. 2005); Blauman v. Blauman, 2 A.D.3d 727, 727-28 (N.Y.App.Div. 2003); Aloi v. Nassau Cty. Sheriff's Dep't, 800 N.Y.S.2d 873, 874 (N.Y. Sup. Ct. 2005) ("Aloi II"). New York courts have described this as "a legislative glitch." Aloi II, 800 N.Y.S.2d at 873 (internal quotation marks omitted). One way to request the return of seized firearms "is to make an application to the officer that currently has custody of the weapons." Blauman, 2 A.D.3d at 728. However, because "it can reasonably be anticipated that the officer that has custody of the firearms will refuse to return the firearms without a court order, " a respondent's next step would typically be to start an Article 78 proceeding in the New York Supreme Court seeking an order directing the custodian of the firearms to return them. Aloi II, 800 N.Y.S.2d at 874.

         The burden of deciding whether to return the firearms is thus principally put on the Supreme Court, "which does not have . . . comparable knowledge or background on cases litigated in the Family Court." Id. The determination, moreover, is left "to a judge who is not familiar with the history of the family, the parties, and any alleged violence that may have transpired resulting in the issuance of the order of protection and seizure of said firearms." Id. at 875. All this, quite apart from the cumbersome nature of Article 78 proceedings. See Razzano, 765 F.Supp.2d at 188-89 (discussing the time and expense of Article 78 proceedings).

         B. Factual Background

         On June 22, 2012, Panzella's ex-husband filed a petition under Article 8 in the New York Family Court. That same day, a Court Attorney Referee in the Family Court issued a temporary order of protection against Panzella ("the Temporary Order"), to remain in effect until December 21, ...


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