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Libertarian Party of Erie County v. Cuomo

United States District Court, W.D. New York

January 10, 2018

ANDREW M. CUOMO, et al., Defendants.


          FRANK P. GERACI, JR Chief Judge, United States District Court


         On July 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.

         All Plaintiffs[1] bring three claims (the “constitutional claims”) against Defendants[2]: (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.

         Currently 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.


         1. NYS's Firearms Licensing Laws

         NYS 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[3] without a license. Id.

         To 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).

         2.Allegations in the Amended Complaint[4]

         Plaintiffs 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.

         a. General Allegations

         Plaintiffs 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.

         b. Plaintiff Philip M. Mayor

         Plaintiff 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.

         c. Plaintiff David Mongielo

         Plaintiff 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 Mongielo's arrest.[5]

         d. Plaintiff William A. Cuthbert

         Plaintiff 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.

         e. Plaintiff John Murtari

         On November 24, 2015, Defendant Judge Kehoe sent a letter to Plaintiff Murtari explaining his denial of Murtari's firearms license application.[6] 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, ¶ 98.


         A 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 omitted).


         After 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.

         1. Standing

         Article 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).

         To establish standing, the plaintiff must demonstrate three elements:

(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).

         The 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)).

         A 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.

         a. Plaintiff Libertarian Party of Erie County Abandoned Its Claims

         Defendants 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)).

         b. Plaintiffs Kuzma, Cooper, Rober, Rebmann, and Garrett Lack Standing

         Defendants 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 Decastro applies.

         The 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.

         The 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.

         c. Plaintiff Philip A. Mayor Lacks Standing

         Defendants 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 ...

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