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The New York State Rifle & Pistol Association, Inc. v. City of New York

United States Court of Appeals, Second Circuit

February 23, 2018

The New York State Rifle & Pistol Association, Inc., Romolo Colantone, Efrain Alvarez, and Jose Anthony Irizarry, [*] Plaintiffs-Appellants,
v.
The City of New York and The New York City Police Department-License Division, Defendants-Appellees.

          Argued: August 17, 2016

         Plaintiffs New York State Rifle & Pistol Association, Inc., Romolo Colantone, Efrain Alvarez, and Jose Anthony Irizarry brought suit against Defendants City of New York and New York Police Department-License Division, challenging a provision of a New York City licensing scheme under which an individual with a "premises license" for a handgun may remove the handgun from the designated premises only for specified purposes, including going to a shooting range in New York City. Plaintiffs sought to remove licensed handguns from their licensed premises for other purposes, including going to shooting ranges outside New York City and transporting the handgun to a second home in upstate New York. The United States District Court for the Southern District of New York (Robert W. Sweet, J.) denied plaintiffs' motions for summary judgment and for a preliminary injunction, and granted defendants' cross-motion for summary judgment. The district court held that the restrictions in premises licenses do not violate the Second Amendment, the Commerce Clause, the fundamental right to travel, or the First Amendment. Plaintiffs appeal that judgment.

         We AFFIRM.

          Erin Murphy, Bancroft PLLC (Paul D. Clement, D. Zachary Hudson, Andrew N. Ferguson, Bancroft PLLC; Brian T. Stapleton, Matthew S. Lerner, Goldberg Segalla LLP, on the brief), Washington, D.C., for Plaintiffs-Appellants New York State Rifle & Pistol Association, Inc., Romolo Colantone, Efrain Alvarez, and Jose Anthony Irizarry.

          Susan Paulson, Assistant Corporation Counsel (Richard Dearing, Assistant Corporation Counsel, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, N.Y., for Defendants-Appellees City of New York and the New York City Police Department-License Division.

          Charles J. Cooper, David H. Thompson, Peter A. Patterson, Cooper & Kirk, PLLC, Washington, D.C., for Amicus Curiae National Rifle Association of America, Inc., in support of Plaintiffs-Appellants.

          Dan M. Peterson, Fairfax, VA; Stephen P. Halbrook, Fairfax, VA, for Amici Curiae Western States Sheriffs' Association, Law Enforcement Legal Defense Fund, Law Enforcement Action Network, CRPA Foundation, Law Enforcement Alliance of America, and International Law Enforcement Educators and Trainers Association, in support of Plaintiffs-Appellants.

          Before: Pooler, Lynch, and Carney, Circuit Judges

          GERARD E. LYNCH, CIRCUIT JUDGE.

         Plaintiffs New York State Rifle & Pistol Association, Romolo Colantone, Efrain Alvarez, and Jose Anthony Irizarry (collectively, "the Plaintiffs") brought suit against Defendants City of New York and the New York Police Department-License Division (collectively, "the City"), challenging a provision of a New York City licensing scheme, Title 38, Chapter Five, Section 23 of the Rules of the City of New York ("RCNY"), under which an individual with a "premises license" for a handgun may not remove the handgun "from the address specified on the license except as otherwise provided in this chapter." 38 RCNY § 5-23(a)(1). Under Rule 5-23 ("the Rule"), the licensee "may transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately." Id. § 5-23(a)(3).

         The New York Police Department-License Division ("License Division") has defined "authorized" facilities, among other requirements, to be "those located in New York City." App. 38. The Plaintiffs sought to remove handguns from the licensed premises for the purposes of going to shooting ranges and engaging in target practice outside New York City as well as, in the case of one Plaintiff, transporting the handgun to a second home in upstate New York. The United States District Court for the Southern District of New York (Robert W. Sweet, J.) denied the Plaintiffs' motions for summary judgment and for a preliminary injunction, and granted the City's cross-motion for summary judgment. The district court held that the restrictions in premises licenses do not violate the Second Amendment, the Commerce Clause, the fundamental right to travel, or the First Amendment. N.Y. State Rifle & Pistol Ass'n v. City of New York, 86 F.Supp.3d 249, 268 (S.D.N.Y. 2015). The Plaintiffs appeal that judgment.

         For the reasons that follow, we AFFIRM.

         BACKGROUND

         New York State law prohibits possession of "firearms" absent a license. N.Y. Penal Law §§ 265.01-265.04, 265.20(a)(3).[1] Section 400.00 of the Penal Law establishes the "exclusive statutory mechanism for the licensing of firearms in New York State." O'Connor v. Scarpino, 83 N.Y.2d 919, 920 (1994); see also Kachalsky v. Cty. of Westchester, 701 F.3d 81, 85 (2d Cir. 2012). Licenses can be held by individuals at least twenty-one years of age, of good moral character, and "concerning whom no good cause exists for the denial of the license, " among other requirements. N.Y. Penal Law § 400.00(1)(a)-(b), (n).

         To obtain a handgun license, an individual must apply to his or her local licensing officer. "The application process for a license is rigorous and administered locally. Every application triggers a local investigation by police into the applicant's mental health history, criminal history, [and] moral character." Kachalsky, 701 F.3d at 87 (internal citation and quotation marks omitted). The licensing officers "are vested with considerable discretion in deciding whether to grant a license application, particularly in determining whether proper cause exists for the issuance of a carry license." Id. (internal quotation marks omitted). The New York Penal Law specifies that in New York City, the licensing officer is the City's Police Commissioner. N.Y. Penal Law § 265.00(10). The License Division exercises the Commissioner's authority to review applications for licenses, and issues handgun licenses. See 38 RCNY §§ 5-01 - 5-11.

         The Penal Law establishes two primary types of handgun licenses: "carry" licenses and "premises" licenses. N.Y. Penal Law §§ 400.00(2)(a), (f). A carry license allows an individual to "have and carry [a] concealed" handgun "without regard to employment or place of possession . . . when proper cause exists" for the license to be issued. Id. § 400.00(2)(f).

"Proper cause" is not defined by the Penal Law, but New York State courts have defined the term to include carrying a handgun for target practice, hunting, or self-defense. When an applicant demonstrates proper cause to carry a handgun for target practice or hunting, the licensing officer may restrict a carry license "to the purposes that justified the issuance."

Kachalsky, 701 F.3d at 86, quoting O'Connor, 83 N.Y.2d at 921. Generally, a carry license is valid throughout the state except that it is not valid within New York City "unless a special permit granting validity is issued by the police commissioner" of New York City.[3] N.Y. Penal Law § 400.00(6).

         A premises license is specific to the premises for which it is issued. The type of license at issue in this case allows a licensee to "have and possess in his dwelling" a pistol or revolver. Id. § 400.00(2)(a). Under the RCNY, a "premises license - residence" issued to a New York City resident is specific to a particular address, and "[t]he handguns listed on th[e] license may not be removed from the address specified on the license except" in limited circumstances, including the following:

(3) To maintain proficiency in the use of the handgun, the licensee may transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, and in a locked container, the ammunition to be carried separately.
(4) A licensee may transport her/his handgun(s) directly to and from an authorized area designated by the New York State Fish and Wildlife Law and in compliance with all pertinent hunting regulations, unloaded, in a locked container, the ammunition to be carried separately, after the licensee has requested and received a "Police Department - City of New York Hunting Authorization" Amendment attached to her/his license.

38 RCNY § 5-23(a).

         Under Rule 5-23(a)(3), an "authorized small arms range/shooting club" is one that, among other requirements, is located in New York City, as the License Division notified Plaintiff Colantone in a letter dated May 15, 2012. App. 28. When this challenge was brought, there were seven such facilities in New York City, including at least one in each of the City's five boroughs.[4] The New York Police Department ("NYPD") also previously issued "target licenses" that allowed the licensee to take his or her handgun to shooting ranges and competitions outside New York City. These target licenses were not mandated by state law, but were issued by the NYPD in its discretion as the licensing agency for New York City. The NYPD received reports that licensees were using target licenses to carry weapons to many other locations, and not in the requisite unloaded and enclosed condition. In part because of these issues, the NYPD eliminated the target license in 2001.

         Plaintiffs Colantone, Irizarry, and Alvarez hold premises licenses issued by the License Division that allow them to possess handguns in their residences in New York City. They seek to transport their handguns outside the premises for purposes other than the ones authorized by Rule 5-23. All three Plaintiffs seek to transport their handguns to shooting ranges and competitions outside New York City.[5] In addition, Colantone, who owns a second home in Hancock, New York, seeks to transport his handgun between the premises for which it is licensed in New York City and his Hancock house. These plaintiffs, along with the New York State Rifle & Pistol Association, filed suit in the Southern District of New York, seeking a declaration that the restrictions imposed by the Rule were unconstitutional and an injunction against its enforcement.

         The Plaintiffs moved for summary judgment and for a preliminary injunction, and the City cross moved for summary judgment. The district court granted the City's cross-motion for summary judgment and dismissed the complaint. The district court determined that the Rule "merely regulates rather than restricts the right to possess a firearm in the home and is a minimal, or at most, modest burden on the right." N.Y. Rifle & Pistol Ass'n., 86 F.Supp.3d at 260 (brackets and internal quotation marks omitted). Accordingly, the district court held that the Rule did not violate the Plaintiffs' Second Amendment rights. Id. at 160-61. The district court also found that the Rule did not violate the dormant Commerce Clause, the First Amendment right of expressive association, or the fundamental right to travel. Id. at 263-66.

         DISCUSSION

         The Plaintiffs argue on appeal, as they did below, that by restricting their ability to transport firearms outside the City, Rule 5-23 violates the Second Amendment, the dormant Commerce Clause, the First Amendment right of expressive association, and the fundamental right to travel. We review a district court's decision on summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. New York State Rifle & Pistol Ass'n, Inc. v. Cuomo, 804 F.3d 242, 252 (2d Cir. 2015). "We also review de novo the district court's legal conclusions, including those interpreting and determining the constitutionality of a statute." Id. (internal quotation marks omitted). Pursuant to the Federal Rules of Civil Procedure, summary judgment is appropriate where "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). For the reasons explained below, we reject each of the Plaintiffs' arguments.

         I. Rule 5-23 Does Not Violate the Second Amendment.

         The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. In District of Columbia v. Heller, the Supreme Court announced that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation." 554 U.S. 570, 592 (2008). In McDonald v. City of Chicago, the Court held that this right is incorporated within the Due Process Clause of the Fourteenth Amendment, and therefore binds the States as well as the Federal Government. 561 U.S. 742, 791 (2010). However, the Court remarked that its holding should not "be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Heller, 554 U.S. at 626-27. "Neither Heller nor McDonald . . . delineated the precise scope of the Second Amendment or the standards by which lower courts should assess the constitutionality of firearms restrictions." N.Y. State Rifle, 804 F.3d at 254.

         A. Analytical Framework

         Following Heller, this Circuit adopted a "two-step inquiry" for "determining the constitutionality of firearm restrictions." Id. First, we "determine whether the challenged legislation impinges upon conduct protected by the Second Amendment, " and second, if we "conclude[] that the statute[] impinge[s] upon Second Amendment rights, we must next determine ...


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