Kimelman v. Garland, Civil Action No. 21-675 (TJK)

588 F.Supp.3d 84

Michael KIMELMAN, Plaintiff,

v.Merrick B. GARLAND et al., Defendants.

Civil Action No. 21-675 (TJK)

United States District Court, District of Columbia.

Signed March 3, 2022

Amy L. Bellantoni, The Bellantoni Law Firm, PLLC, Scarsdale, NY, for Plaintiff.

Daniel Riess, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge Michael Kimelman was convicted of federal securities fraud in 2011. He now lives in New York and wants to purchase and possess firearms, but his status as a felon prevents him from doing so under federal law. See 18 U.S.C. § 922(d)(1) and (g)(1). Kimelman sued Defendants, the Attorney General and the Acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, seeking declaratory and injunctive relief from the application of these provisions against him. Kimelman claims that he is entitled to that relief either under a statutory exemption or because the provisions are unconstitutional as applied to him. Defendants moved to dismiss, arguing that he lacks standing because New York law independently bars him from purchasing or possessing firearms. For the reasons explained below, the Court agrees and will grant Defendants’ motion.

I. Legal Standard

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) "presents a threshold challenge to the court's jurisdiction." Haase v. Sessions , 835 F.2d 902, 906 (D.C. Cir. 1987). Federal courts are courts of limited jurisdiction, and it is "presumed that a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Thus, when faced with a motion to dismiss under Rule 12(b)(1), "the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence." Moran v. U.S. Capitol Police Bd. , 820 F. Supp. 2d 48, 53 (D.D.C. 2011) (citing Lujan v. Def. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). In reviewing such a motion, the Court is not limited to the allegations in the complaint and may consider materials outside the pleadings but must "accept all of the factual allegations in [the] complaint as true." Jerome Stevens Pharm., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005) (quoting United States v. Gaubert , 499 U.S. 315, 327, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) ).

II. Analysis

The jurisdiction of the federal courts extends only to cases and controversies "of the justiciable sort referred to in Article III" of the Constitution—that is, only to claims for which the plaintiff can show that he has "standing" to bring. Lujan , 504 U.S. at 560, 112 S.Ct. 2130. To establish standing, a plaintiff must show that (1) he has "suffered an ‘injury in fact’ that is ... concrete and particularized and ... actual or imminent"; (2) "the injury is fairly traceable to the challenged action of the defendant"; and (3) "it is likely," not just speculative, "that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Env't Servs. , 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Kimelman lacks standing because he has not satisfied the latter two requirements: traceability and redressability.

A. Traceability

Traceability looks at "the relationship between the alleged unlawful conduct and the injury." Mideast Sys. & China Civ. Constr. v. Hodel , 792 F.2d 1172, 1176 (D.C. Cir. 1986). "It requires that there be a causal connection between the challenged action and the injury alleged in the complaint." Fed'n for Am. Immigr. Reform v. Reno , 897 F. Supp. 595, 604 (D.D.C. 1995) (cleaned up). As relevant here, the injury must "be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court." NO Gas Pipeline v. FERC , 756 F.3d 764, 768 (D.C. Cir. 2014) (cleaned up).

Kimelman's traceability problem arises because federal law is not the only reason he cannot lawfully purchase or possess a firearm—New York law also prohibits him from doing so. More specifically, New York law prohibits those "convicted anywhere of a felony" from possessing a firearm.¹ N.Y. Penal Law §§ 400.00(1)(c) & 265.01. It also bars the "purchase[ ]" of "a firearm, rifle or shotgun" when the would-be purchaser knows that "he or she is prohibited from possessing a firearm, rifle or shotgun because of a prior conviction." Id. § 265.17(1). Kimelman was convicted of three federal felonies, so these prohibitions apply to him. See ECF No. 1 ¶ 18; Superseding Indictment & Judgment in a Criminal Case, United States v. Kimelman , No. 10-cr-56-RJS-6 (S.D.N. Y Apr. 7 & Oct. 13, 2011), ECF Nos. 167, 288.

New York law provides mechanisms through which individuals convicted of a felony can escape the applicability of these statutes, but Kimelman has not successfully employed them. A "Certificate of Relief from Civil Disabilities" from the New York Department of Corrections and Community Supervision, ECF No. 1 ¶¶ 35, 38; N.Y. Correct. §§ 701 & 703, can "remove" Penal Law § 400.00(1)(c) ’s "prohibition against holding a" firearm license, In re Crane , 68 Misc.3d 962, 129 N.Y.S.3d 653, 656 (N.Y. Co. Ct. 2020). And a "Certificate of Good Conduct" exempts a person convicted of a felony from the application of Penal Law § 265.01(4). N.Y. Penal Law § 265.20(a)(5) ; see People v. Navarro , 158 A.D.3d 1242, 71 N.Y.S.3d 297, 300 (2018). But Kimelman never says that he applied for or received a Certificate of Good Conduct. And while he did apply for a Certificate of Relief from Civil Disabilities, he was provided relief "except for [his] right to lawfully possess firearms."² ECF No. 1 ¶ 38 (emphasis added). As a result, the existence of these mechanisms does not change Kimelman's inability to lawfully purchase or possess a firearm under New York law. Thus, he cannot show that his alleged harm is fairly traceable to federal law.

B. Redressability

Traceability "and redressability are closely related[,] like two sides of a coin." West v. Lynch , 845 F.3d 1228, 1235 (D.C. Cir. 2017) (cleaned up). While traceability looks at the connection between the alleged harm and the challenged law, redressability looks at the connection between the alleged harm and the relief requested. "Redressability requires a litigant to demonstrate a likelihood that the requested relief will redress the alleged injury." Duberry v. District of Columbia , 924 F.3d 570, 581 (D.C. Cir. 2019) (cleaned up).

In short, because New York law would still prohibit Kimelman from purchasing or possessing firearms no matter how the Court resolves his claims, he has not shown that a favorable decision would redress his inability to do so.

First, Kimelman argues that a favorable decision by this Court would mean that his "firearm rights remained intact and unaffected by his federal convictions," making New York's prohibitions inapplicable. ECF No. 10 at 9. By way of background, federal law makes it "unlawful for any person who has been convicted ... [of] a crime punishable by imprisonment for a term exceeding one year ... [to possess] any firearm." 18 U.S.C. § 922(g)(1). Similarly, felons are barred from purchasing firearms under Section 922(d)(1). Kimelman points out that convictions for "offenses pertaining to antitrust violations, unfair trade practices, restraints of trade or other similar offenses relating to the regulation of business practices" and convictions for which a person has had his "civil rights restored under federal law" are exempted from these prohibitions. Beecham , 511 U.S. at 374, 114 S.Ct. 1669 ; see 18 U.S.C. § 921(a)(20). Thus, he argues, if this Court were to find that his securities offense was an "offense[ ] pertaining to antitrust violations, unfair trade practices, restraints of trade or other similar offenses relating to the regulation of business practices," or otherwise "restore" his federal firearms rights, Section 922(g)(1) would not apply, and so his firearms rights would be intact under New York law.

Unfortunately for him, Kimelman conflates his firearms rights under federal law with his firearms rights under state law. Under New York law, the definition of "conviction" does not turn on the type of offense (for example, whether the offense was an antitrust violation) or the status of an offender's civil rights.³ Nor, under New York law, does the definition of felony.⁴ N.Y. Penal Law § 10.00(5). Thus, even if federal law did not bar him from possessing a firearm for one of the reasons he suggests, his conviction of a federal felony would remain, and that conviction would bar him from possessing of a firearm under New York law. See In re Wasserman , 148 Misc.2d 851, 562 N.Y.S.2d 920, 921 (N.Y. Co. Ct. 1990) ("the Federal restoration of firearms privileges does not erase the felony conviction which is a statutory bar to the issuance of a" license under N.Y. Penal Law § 400.00(1) ); In re Alarie , 168 Misc.2d 329, 643 N.Y.S.2d 926, 927 (N.Y. Co. Ct. 1996) (abrogated on other grounds by Hecht v. Bivona , 306 A.D.2d 410, 761 N.Y.S.2d 485, 485 (2003) (Mem.)) ("Even the restoration of Federal firearms privileges by the Federal Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms pursuant to 18 USC § 925(c) does not erase the felony conviction which is a statutory bar to the issuance of a pistol permit under Penal Law § 400.00(1) in New York." (cleaned up)).

Second, Kimelman argues that the New York Department of Corrections and Community Supervision could reconsider its decision not to restore Kimelman's right to purchase and possess firearms, especially if this Court were to find in his favor. ECF No. 10 at 9. But under that logic, "any favorable impact" of this Court's decision would "depend[ ] utterly upon the actions of third parties not before the court, whose behavior is difficult to predict." Branton v. FCC , 993 F.2d 906, 911 (D.C. Cir. 1993) ...