Argued: June 12, 2017
JAMES LA REDDOLA, La Reddola, Lester & Associates, LLP,
Garden City, New York, for Plaintiff-Appellee-Cross-Appellant
F. VAN DER WAAG, Deputy County Attorney, for Carnell T.
Foskey, Nassau County Attorney, Mineola, New York, for
Before: Calabresi, Pooler, Circuit Judges, Vilardo, [**] District Judge.
CALABRESI, Circuit Judge
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 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no longer in effect.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.
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.
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
Article 8 of the New York Family Court Act
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.
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
(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).
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
Section 842-a authorizes the Family Court to order the
confiscation of . . . firearms, this provision does not
authorize it to order their subsequent
return." 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.
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).
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, ...