D'Aureli v. Harvey

CARLO D'AURELI, Plaintiff, v. ROSE HARVEY,in her official capacity as Commissioner of the New York State Office of Parks,Recreation, and Historic Preservation, Defendant.

1:17-cv-00363 (MAD/DJS)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

February 2, 2018

APPEARANCES:

THE DENIGRIS LAW FIRM PLLC

P.O. Box 14643

Albany, New York 12212-4643

Attorney for Plaintiff

OFFICE OF ATTORNEY GENERAL

STATE OF NEW YORK - ALBANY

The Capitol

Albany, New York 12224

Attorney for Defendant

OF COUNSEL:

STEPHEN G. DENIGRIS, ESQ.

JOHN F. MOORE, ESQ.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On April 2, 2017, Plaintiff Carlo D'Aureli filed a complaint against Defendant Rose Harvey, the Commissioner of the New York State Office of Parks, Recreation and Historic Preservation, seeking declaratory and prospective relief under 42 U.S.C. § 1983 for violating the Law Enforcement Officers Safety Act. See Dkt. No. 1 at ¶¶ 54-55. On June 9, 2017, Defendant filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. No. 14. Currently before the Court is Defendant's motion to dismiss. For the following reasons, Defendant's motion is granted in part and denied in part.

II. Background

A. Law Enforcement Officers Safety Act

On July 22, 2004, Congress enacted the Law Enforcement Officers Safety Act ("LEOSA"), which subsequently was codified under 18 U.S.C. § 926B and § 926C. LEOSA was designed to "override State laws and mandate that retired and active police officers could carry a concealed weapon anywhere within the United States." H.R. Rep. No. 108-560 at 3 (2004). Prior to LEOSA, states had inconsistent laws with regards to allowing current and former law enforcement officers to carry concealed weapons within their borders. See id. at 11. While some states recognized conceal-carry permits of law enforcement officers from other states, many did not. See id. Supporters of the bill believed that LEOSA would allow retired law enforcement officers "to defend themselves outside their own State from criminals whom they have arrested." Id. at 4.

LEOSA establishes that qualified retired law enforcement officers are allowed to carry concealed firearms across state lines. LEOSA states that

(a) Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified retired law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b).

18 U.S.C. § 926C(a).

Under LEOSA, an individual is a qualified retired law enforcement officer if they separated in good standing after at least ten years as a law enforcement officer; met the standards for qualification in firearms training set forth by their former agency; were not under theinfluence of drugs or alcohol; were not prohibited by federal law; and did not have a mental health problem that would make then unqualified. See 18 U.S.C. § 926C(c).

As to identification, LEOSA allows separated officers to satisfy the identification requirement through one of two ways. Under § 926C(d)(1), a former officer can use a photographic identification issued by their former agency indicating that the person is a former law enforcement officer and that the individual has within the past year met the agency's qualifications for an officer to carry the same type of firearm as the concealed firearm. Alternatively, under § 926C(d)(2), a former officer can use a photographic identification issued by the agency that identifies them as a former officer and a certification establishing their firearms certification.

B. Carlo D'Aureli and Retirement Identification

Plaintiff Carlo D'Aureli ("Plaintiff") served as a state park police officer for the New York State Office of Parks, Recreation and Historic Preservation (the "OPRHP") for over twenty-one years. See Dkt. No. 1 at ¶ 30. On December 1, 2015, Plaintiff submitted his retirement documentation to Defendant Rose Harvey ("Defendant"), the Commissioner of the OPRHP to take effect on December 30, 2015. See id. at ¶ 39. After filing his retirement papers, Plaintiff began preparing the necessary documentation to obtain a "good guy" letter so he could obtain certification to carry a concealed weapon under § 926C(d)(2). See Dkt. No. 1-1 at 2. Plaintiff alleges that he was qualified under 18 U.S.C. § 926C(c). See Dkt. No. 1 at ¶¶ 32-36.

After filing his request, Plaintiff was told that the department would not issue him a "good guy" letter. His superior stated that because he had not served twenty-five years, he would not be issued a retired-law-enforcement identification card and, therefore, would not be eligible to carrya concealed firearm under LEOSA. See Dkt. No. 1-1 at 2. Plaintiff temporarily pulled his retirement paperwork hoping to resolve the issue. See id.

On January 4, 2016, Chief David Herrick of the New York State Park Police distributed Division HQ Memo: #2016-1 ("Memo 2016-1") to commanding officers promulgating a policy regarding the issuance of retirement identification. See Dkt. No. 1-2 at 2. The memorandum stated that

Retirement Identification Card & Shield will be issued to those members:

A. Who served continuously from their date of entrance and become eligible to retire after completing 25 years of service as a New York State Park Police Officer.

B. Who served continuously from their date of entrance and is facing mandatory retirement due to age.

C. Who served continuously from their date of entrance and whose service is terminated due to a permanent disability.

Id.

On January 31, 2016, after over twenty-one years of service, Plaintiff retired at the age of fifty-eight. See Dkt. No. 1-3 at 2. Chief Herrick affirmed that Plaintiff wold not be eligible for a retirement identification card as he was not facing mandatory retirement and served less than twenty-five years. See id.

On February 20, 2016, Plaintiff wrote a letter to Defendant appealing Chief Herrick's decision. See id. On March 22, 2016, Defendant denied the appeal. See Dkt. No. 1-5 at 2. Defendant stated that the standards set forth in sections A and B of Memo 2016-1 had been "in effect since 2002" and "provide[d] a reasonable cutoff for determining eligibility for receipt of the Retirement Identification Card and Shield." Id.

On December 14, 2016, Plaintiff's counsel wrote a letter to Defendant stating that OPRHP's policy, as described in Memo 2016-1, contravened LEOSA. See Dkt. No. 1-6 at 2-3.The letter requested that Defendant's "office undertake a review of the directive and have the Park Police issue [Plaintiff] his retirement member identification card and also issue his 'good guy' letter so he [could] exercise his rights under federal law." Id. at 4. On February 23, 2017, OPRHP denied the request, stating "LEOSA does not mandate that State officers modify existing policies or procedures to help implement the federal statute." Dkt. No. 1-7 at 2.

III. DISCUSSION

A. Standard of Review

1. Motion to Dismiss Under Rule 12(b)(1): Subject Matter Jurisdiction

When a party moves to dismiss a claim pursuant to Rule 12(b)(1), "the movant is deemed to be challenging the factual basis for the court's subject matter jurisdiction." Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993) (citations omitted). For purposes of such a motion, "the allegations in the complaint are not controlling . . . and only uncontroverted factual allegations are accepted as true. . . ." Id. (internal citations omitted). Both the movant and the pleader are permitted to use affidavits and other pleading materials to support and oppose the motion to dismiss for lack of subject matter jurisdiction. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citation omitted). "Furthermore, 'jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'" Gunst v. Seaga, No. 05 Civ. 2626, 2007 WL 1032265, *2 (S.D.N.Y. Mar. 30, 2007) (quoting Shipping Financial Services Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)); see also State Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007) (holding that, in a motion to dismiss for lack of subject matter jurisdiction, a court "may resolve disputed factual issues by reference to evidence outside the pleadings, including affidavits").

2. Motion to Dismiss Under Rule 12(b)(6): Failure to State a Claim

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007). In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although a court's review of a motion to dismiss is generally limited to the facts presented in the pleading, the court may consider documents that are "integral" to that pleading, even if they are neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).

To survive a motion to dismiss, a party need only plead "a short and plain statement of the claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is entitled to relief.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted). Under this standard, the pleading's "[f]actual allegations must be...