Henry v. Cnty. of Nassau & Nassau Cnty. Police Dep't

444 F.Supp.3d 437

Lambert HENRY, Plaintiff,

v.COUNTY OF NASSAU and Nassau County Police Department, former Acting Commissioner Thomas Krumpter, Commissioner Patrick Ryder, Lieutenant Marc Timpano, Sergeant Adam Fischer, Deputy Sheriff Stephen Triano, Deputy Sherriff Jeffery Kuchek, Deputy Sheriff Mark Simon and Deputy Sheriff Jeffrey Toscano, Defendants.

17-CV-06545 (DRH)(AKT)

United States District Court, E.D. New York.

Signed March 12, 2020

La Reddola, Lester & Associates, LLP, 600 Old Century Road, Suite 230, Garden City, New York 11530, By: Robert J. La Reddola, Esq., Steven M. Lester, Esq., for Plaintiff.

Nassau County Attorney, 1 West Street, Mineola, New York 11501, By: Ralph J. Reissman, Esq., for Defendant.

MEMORANDUM & ORDER

HURLEY, Senior District Judge:

Plaintiff Lambert Henry ("Plaintiff" or "Henry") brought this action against Defendants County of Nassau ("County"), Nassau County Police Department ("Police Department"), former Acting Commissioner Thomas Krumpter, Commissioner Patrick Ryder, Lieutenant Marc Timpano, Sergeant Adam Fischer, Deputy Sheriff Stephen Triano, Deputy Sheriff Jeffery Kuchek, Deputy Sheriff Mark Simon, and Deputy Sheriff Jeffrey Toscano (collectively, "Defendants"). Plaintiff seeks a declaratory judgment, monetary damages, and injunctive relief related to Defendants' alleged violation of Plaintiff's Second Amendment rights under 42 U.S.C. § 1983, including Monell liability, and alleged violation of 42 U.S.C. § 1981¹ "based upon Defendants' policy or practice to deter ownership of all firearms and with the intention and effect of reducing pistol license ownership, most especially in the non-white communities of Nassau County." Plaintiff seeks punitive damages under 42 U.S.C. § 1983 and legal fees under 42 U.S.C. § 1988(b). Presently before the Court is Defendants' motion to dismiss the Third Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the motion is granted.

BACKGROUND

The following allegations are taken from the Third Amended Complaint ("TAC"), including the documents attached thereto,² and assumed true for purposes of this motion, unless otherwise noted.

I. Confiscation of Plaintiff's Handguns

Plaintiff is an African American retired New York City Corrections Officer. (TAC ¶¶ 32, 88.) On October 20, 2014, Plaintiff's daughter, Brittany Janesse Henry, commenced an action against him in the Nassau County Family Court following an argument with him about her school grades. (TAC ¶¶ 22-23.) That same day, the Honorable Frank D. Dikranis of the Nassau County Family Court issued an ex parte temporary order of protection against Plaintiff to remain in full force and effect until and including April 19, 2015 ("Order of Protection"). (TAC ¶¶ 24, 26.) Though the Order of Protection contained form language ordering Plaintiff to refrain from certain activities, such as assaulting or harassing his daughter, it did not contain the form provision requiring Plaintiff to surrender his handguns, pistols, shotguns, and other firearms.³ (TAC ¶¶ 25, 27.)

Three days later, on October 23, 2014, between 9:30 and 10:00 p.m., "approximately four Nassau County Deputy Sheriffs⁴ served Henry with the Order of Protection at his home." (TAC ¶ 28.) Plaintiff alleges that the Deputy Sheriffs "did not have a search warrant to enter and search Henry's home" and "did not have authority to demand the production of any firearms or firearms license." (TAC ¶¶ 29, 30.) Plaintiff alleges upon information and belief that that "the Deputy Sheriffs were authorized only to serve the Order and related Family Court papers on Henry and they were to depart," and that they had "no other legal authority" in Plaintiff's home. (TAC ¶¶ 33, 34.) After the Deputy Sheriffs identified themselves as agents of the Nassau County Sheriff's Department, Plaintiff "opened the front door to his residence." (TAC ¶ 37.) "As soon as Henry opened the door, all of the Deputy Sheriffs entered Henry's home." (TAC ¶ 38.) Henry did not consent to the "intrusion by the Deputy Sheriffs into his home." (TAC ¶ 39.)

"The Deputy Sheriffs told Henry that he was being served with a Summons to appear in Family Court for a Temporary Order of Protection hearing and that he was to appear in Family Court on the return date indicated on the Summons." (TAC ¶ 40.) Henry then identified himself to the Deputy Sheriffs as a retired New York City Corrections Officer. (TAC ¶ 41.) "[T]he Deputy Sheriffs demanded that Plaintiff Henry produce for the Deputy Sheriffs all of his firearms for removal from Henry's residence." (TAC ¶ 43.) Henry complied with the request. (TAC ¶ 44.) "When the Deputy Sheriffs inquired as to whether Henry had any other weapons in his home, such as rifles or shotguns, he responded accurately that he did not possess or own any other firearms." (TAC ¶ 46.)

The Order of Protection was dismissed on the return date, March 12, 2015. (TAC ¶ 47.) "Henry's handguns were not returned to him at that time." (TAC ¶ 48.)

II. Nassau County Police Department's Alleged Misconduct Regarding Handguns

"Henry possessed a Penal Law § 400.00(2)(f)⁵ concealed carry license granted by the [County] and the Police Department." (TAC ¶ 49.) "On or about October 12, 2016, Henry received a Notice of Pistol License Revocation (the Revocation Notice) from the Police Department's Pistol License Section." (TAC ¶ 50; TAC Ex. 3 [ECF No. 45-3].) The Revocation Notice explains that the factors contributing to the revocation of Plaintiff's pistol license included "Violations of Pistol License Handbook [Chapter 1, Section I(1) and Section I(2)," "History of Domestic Violence Incidents," and "History of Multiple Orders of Protection." (TAC Ex. 3 [ECF No. 45-3] at 1.) Plaintiff alleges "[u]pon information and belief, the impetus of the revocation resulted from the service of the [Order of Protection]." (TAC ¶ 54.)

On or around November 16, 2016, Plaintiff appealed his pistol revocation to the Police Department. (TAC ¶ 51.) The Police Department upheld the revocation decision in a January 24, 2018, fourteen-page Decision on Appeal ("Revocation Appeal"). (TAC ¶ 52; TAC Ex. 6 [ECF No. 45-6].) The Revocation Appeal quotes relevant portions of the Pistol License Section Handbook, which states "[t]he policy of the Nassau County Police Department is to immediately suspend the pistol license of any licensee who violates the terms and conditions of the license or this Handbook and commence an investigation to determine whether or not the license should be revoked." (TAC Ex. 6 at 7) (emphasis in Revocation Appeal). Violations of the terms and conditions of the pistol license include "being named as a respondent in a proceeding for the issuance of an Order of Protection or Temporary Order of Protection," and a "[r]eport of any domestic situation involving a licensee where violence is threatened or alleged to have occurred or the existence of a volatile domestic situation." (TAC Ex. 6. at 7.)

The Revocation Appeal explains that "satisfactory evidence exists demonstrating that the Pistol License Section properly revoked Appellant's pistol license based upon a showing of ‘good cause’ in accordance with New York State Penal Law (‘NYPSL’) § 400.00. Specifically, the volatile domestic history between Appellant and his wife, the volatile familial environment at Appellant's residence, Appellant's history as a Respondent in Temporary Orders of Protection, and his multiple violations of the Pistol License Section Handbook notice requirements substantiate the Pistol License Section's determination." (TAC Ex. 6 at 1.) The Revocation Appeal goes on to describe the fourteen "incidents where law enforcement officers reported to Appellant's residence to assist with domestic incidents" between 2001 and 2016. (TAC Ex. 6 at 3-4.)

III. Plaintiff's Current Situation

On July 19, 2017, Plaintiff passed a National Instant Check System background check and "was able to purchase a pump action shotgun (a type of unlicensed long arm)." (TAC ¶¶ 89-90.) Plaintiff is concerned that he cannot take possession of the shotgun due to the language in his revocation notice and the County's "policy that the revocation of a County pistol license also results in a loss of all firearms rights." (TAC ¶¶ 91-94.)

IV. Nassau County's License Options

Plaintiff contends that "Nassau County residents who may not qualify for the Penal Law § 400.00(2)(f) pistol license ‘to have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof’ are excluded from consideration for the Penal Law § 400.00(2)(a) to ‘have and possess in his dwelling by a householder’ pistol license because the County and the Police Department do not allow such a license." (TAC ¶ 98.) The County's pistol license application provides for the following categories of pistol licenses: Target/Hunting; Business/Target/Hunting; Armored Car Guard; Armed Guard; Retired Fed LEO; Retired Peace Officer; Retired Police Officer; Other. (TAC ¶ 132.) Plaintiff alleges upon information and belief that "Other" refers to an unrestricted carry license under New York Penal Law ("NYPL") § 400.00(2)(f). (TAC ¶ 133.)

V. Alleged Disparate Impact on Minorities

Plaintiff alleges that the County's pistol license program has a disparate impact on minorities. Plaintiff attaches to the complaint maps showing the racial and ethnic geographic distribution of the County, as well as the distribution of pistol licenses. (TAC ¶¶ 146-148; TAC Exs. 11-13.) A comparison of the geographic concentration of pistol licensees with certain racial populations in Nassau County "shows a high level of pistol licensees in the County's White communities" and "a low level of pistol licensees in the County's predominantly Hispanic" and Black communities. (TAC ¶ 148.) On average, pistol license holders make up 20 of every 1000 people in Nassau County, whereas in certain non-white communities, the rate is 0-5 per 1000. (TAC ¶¶...