United States District Court, W.D. New York
DECISION AND ORDER
P. GERACI, JR Chief Judge, United States District Court
22, 2015, Plaintiffs filed a Complaint alleging that New York
State's firearms licensing laws are unconstitutional.
See ECF No. 1. After several Defendants moved to
dismiss the Complaint, Plaintiffs filed an Amended Complaint
on December 23, 2015. ECF Nos. 6, 14, 17, 18. The Amended
Complaint alleges that Defendants violated Plaintiffs'
Second and Fourteenth Amendment rights by enforcing New York
State's firearms licensing laws. ECF No. 17, ¶¶
55-57, 137. Specifically, Plaintiffs claim that N.Y. Penal
Law §§ 265.00(3), 265.01-265.04, 265.20(a)(3), and
400.00 violate the Second and Fourteenth Amendments on their
face and as applied to Plaintiffs. See id.
Plaintiffs bring three claims (the
“constitutional claims”) against
Defendants: (1) NYS's firearms licensing laws on
their face and as applied to Plaintiffs violate their
Fourteenth and Second Amendment rights to possess firearms in
their homes; (2) NYS's firearms licensing laws on their
face violate Plaintiffs' Fourteenth and Second Amendment
rights to possess firearms in public; and (3) the standards
of “good moral character, ” “proper cause,
” and “good cause” outlined in N.Y. Penal
Law § 400.00 are vague and violate the Due Process
Clause of the Fourteenth Amendment. See ECF No. 17,
¶¶ 137-41. These claims seek relief pursuant to 28
U.S.C. §§ 2201-2202 and 42 U.S.C. § 1983. ECF
No. 17, ¶ 30. Finally, Plaintiff Murtari wishes to
institute an N.Y. C.P.L.R. Article 78 proceeding to determine
whether Defendant Judge Kehoe failed to perform a duty
enjoined on him by law when he rejected Murtari's
application for a firearms license. See ECF No. 17,
¶¶ 142-44. Plaintiffs sue all Defendants
individually and in their official capacities. ECF No. 17,
¶ 27. Aside from the Article 78 claim, all Plaintiffs
seek monetary damages and declaratory and injunctive relief.
ECF No. 17, at 20, 25-26.
before the Court is Defendants' Motion to Dismiss for
Failure to State a Claim and for Lack of Subject-Matter
Jurisdiction. ECF No. 25. For the reasons that follow,
Defendants' Motion to Dismiss is GRANTED and
Plaintiffs' Amended Complaint is DISMISSED.
NYS's Firearms Licensing Laws
regulates the possession of firearms through a licensing
scheme (N.Y. Penal Law § 400.00) and several criminal
statutes (N.Y. Penal Law §§ 265.01-265.04,
265.20(a)(3)). See Kachalsky v. Cty. of Westchester,
701 F.3d 81, 85-86 (2d Cir. 2012). Section 400.00 “is
the exclusive statutory mechanism for the licensing of
firearms in New York State.” Id. at 85 (citing
O'Connor v. Scarpino, 83 N.Y.2d 919, 920
(1994)). Generally, NYS prohibits possession of a
firearm without a license. Id.
obtain a firearms license under Section 400.00, applicants
must be over 21 years old, have “good moral character,
” have no history of crime or mental illness, and
demonstrate no “good cause” to deny the license.
Id. at 86 (citing N.Y. Penal Law §
400.00(1)(a)-(d), (g)). An applicant must receive a concealed
carry license when they show “proper cause” for
it. N.Y. Penal Law § 400.00(2)(f). Individuals may
obtain a license for at-home possession and/or concealed
carry in public. See Id. § 400.00(2)(a), (f).
in the Amended Complaint
make a series of general factual allegations for all
Plaintiffs followed by specific factual allegations for some
of the Plaintiffs. The Amended Complaint contains no factual
allegations as to Plaintiffs Libertarian Party of Erie
County, Kuzma, Cooper, Rober, Rebmann, or Garrett.
make two sets of general allegations. First, they allege that
the terms “good moral character, ” “good
cause, ” and “proper cause” in Section
400.00 are undefinable and therefore violate the Second and
Fourteenth Amendments. Second, they assert that the licensing
process is expensive, time-consuming, and unnecessarily
invades an individual's privacy.
Plaintiff Philip M. Mayor
Mayor alleges that, although he is licensed to own a firearm,
he remains “under constant threat of having [his]
license revoked . . . .” ECF No. 17, ¶ 77.
Plaintiff David Mongielo
Mongielo alleges that Defendant Judge Murphy suspended his
concealed carry license on July 3, 2013, without notice or
due process after police officers falsely arrested him.
Mongielo was later acquitted of all charges, except a minor
cell phone violation. Despite the acquittal, Judge Murphy did
not schedule a hearing regarding Mongielo's license until
February 18, 2016, over two-and-a-half years after
Plaintiff William A. Cuthbert
Cuthbert also maintains that he is under constant threat of
having his license revoked. Moreover, Cuthbert applied for
his license on July 19, 2013, but did not receive it until
May 18, 2015. Finally, Cuthbert alleges that Defendant Judge
Boller violated his Second Amendment rights when he limited
Cuthbert's license to hunting and target shooting.
Plaintiff John Murtari
November 24, 2015, Defendant Judge Kehoe sent a letter to
Plaintiff Murtari explaining his denial of Murtari's
firearms license application. Judge Kehoe found “good
cause” to deny the application because Murtari was
arrested approximately fifty times, had received four jail
sentences totaling over four months in jail, and repeatedly
refused to make child support payments. ECF No. 17, ¶
complaint will survive a motion to dismiss when it states a
plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555- 56 (2007)). A claim for
relief is plausible when the plaintiff pleads sufficient
facts that allow the Court to draw reasonable inferences that
the defendant is liable for the alleged conduct. Id.
In considering the plausibility of a claim, the Court must
accept all factual allegations as true and draw all
reasonable inferences in the plaintiff's favor. Faber
v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir.
2011). At the same time, the Court is not required to accord
“[l]egal conclusions, deductions, or opinions couched
as factual allegations . . . a presumption of
truthfulness.” In re NYSE Specialists Sec.
Litig., 503 F.3d 89, 95 (2d Cir. 2007) (quotation marks
outlining standing and mootness, the Court addresses whether
Plaintiff Libertarian Party of Erie County has standing to
maintain this action. The Court next considers standing for
Plaintiffs Kuzma, Cooper, Rober, Rebmann, and Garrett.
Finally, the Court analyzes standing for Plaintiffs Mayor,
Mongielo, Cuthbert, and Murtari individually.
III of the Constitution limits the subject-matter
jurisdiction of the federal courts to “cases” and
“controversies.” U.S. Const. art. III, § 2;
see Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62
(2d Cir. 2012). Courts require plaintiffs to establish
standing to meet the case-or-controversy requirement.
W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche
LLP, 549 F.3d 100, 106 (2d Cir. 2008). Standing is
“the threshold question in every federal case, ”
Ross v. Bank of America, N.A., 524 F.3d 217, 222 (2d
Cir. 2008), and must exist “throughout the course of
the proceedings” to maintain jurisdiction, Etuk v.
Slattery, 936 F.2d 1433, 1441 (2d Cir. 1991).
establish standing, the plaintiff must demonstrate three
(1) injury-in-fact, which is a “concrete and
particularized” harm to a “legally protected
interest”; (2) causation in the form of a
“fairly traceable” connection between the
asserted injury-in-fact and the alleged actions of the
defendant; and (3) redressability, or a
non-speculative likelihood that the injury can be remedied by
the requested relief.
W.R. Huff, 549 F.3d at 106-07 (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992))
(emphasis in original). The mootness doctrine ensures that
the plaintiff's standing “persists throughout the
life of a lawsuit.” Amador v. Andrews, 655
F.3d 89, 99 (2d Cir. 2011).
plaintiff must establish standing for each claim asserted and
for each type of relief sought, Carver v. City of New
York, 621 F.3d 221, 225 (2d Cir. 2010), “by a
preponderance of the evidence, ” Giammatteo v.
Newton, 452 F. App'x 24, 27 (2d Cir. 2011) (summary
order) (citing Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000)).
plaintiff lacks standing to challenge NYS's licensing
laws if he fails to apply for a firearms license in NYS.
United States v. Decastro, 682 F.3d 160, 164 (2d
Cir. 2012). There is an exception to this rule: a plaintiff
who fails to apply for a firearms license in NYS has standing
if he makes a “substantial showing” that his
application “would have been futile.”
Id. (citing Jackson-Bey v. Hanslmaier, 115
F.3d 1091, 1096 (2d Cir. 1997)). An unsupported claim of
futility, however, is insufficient to excuse a failure to
apply. Jackson-Bey, 115 F.3d at 1096.
Plaintiff Libertarian Party of Erie County Abandoned Its
argue that Plaintiff Libertarian Party of Erie County lacks
standing to bring this action. ECF No. 26, at 24-25.
Plaintiffs did not respond to Defendants' argument.
See ECF No. 29; ECF No. 30, at 9. The Court finds
that Plaintiff Libertarian Party of Erie County thus
abandoned its claims and they are hereby DISMISSED. See
Moreau v. Peterson, No. 7:14-cv-0201 (NSR), 2015 WL
4272024, at *4 (S.D.N.Y. July 13, 2015) (noting that
“[P]laintiff's failure to respond to contentions
raised in a motion to dismiss . . . constitutes an
abandonment of those claims” (citations omitted)).
Plaintiffs Kuzma, Cooper, Rober, Rebmann, and Garrett Lack
argue that Plaintiffs Kuzma, Cooper, Rober, Rebmann, and
Garrett do not have standing because (1) the Amended
Complaint does not allege that the named Plaintiffs applied
for a NYS firearms license; and (2) the named Plaintiffs made
no claim of futility as outlined in Decastro. ECF
No. 26, at 23-24; ECF No. 30, at 7-8. In response, the named
Plaintiffs argue that they object to NYS's firearms
licensing laws, and, thus, the futility exception in
Second Circuit rejected a similar argument in
Decastro. There, Decastro argued that NYS's
firearms licensing laws were constitutionally defective.
Decastro, 682 F.3d at 164. The Second Circuit held
that Decastro lacked standing to challenge the licensing laws
because he did not apply for a firearms license. Id.
When Decastro alleged that any firearms application license
would be futile, the Second Circuit weighed his argument and
rejected it. Id.
named Plaintiffs suffer the same fate. They may object to the
licensing laws, but the named Plaintiffs must apply for a
firearms license in NYS to have standing to challenge the
laws' constitutionality. Decastro, 682 F.3d at
164. Of course, the named Plaintiffs may avoid that
requirement by making a substantial showing that their
applications would be futile. Id. Here, however,
they do not allege futility in the Amended Complaint. As
noted above, unsupported claims of futility are insufficient
to excuse a failure to apply. Jackson-Bey, 115 F.3d
at 1096. Accordingly, the named Plaintiffs' arguments
fail and their claims are DISMISSED.
Plaintiff Philip A. Mayor Lacks Standing
argue that Plaintiff Mayor also lacks standing because he
currently holds an unrestricted NYS firearms license. ECF No.
26, at 25. Mayor argues that he has standing for several
reasons: (1) he is under constant threat of having his
license revoked and of being arrested if he does not carry
his permit at all times; (2) the process to add firearms onto
his license is ...