Oquendo v. City of N.Y.

492 F.Supp.3d 20

Joseph OQUENDO, Plaintiff,

v.CITY OF NEW YORK, New York City Police Department, Raymond W. Kelly, William J. Bratton, James P. O'Neill, Jonathan David, Thomas Scollan, and John & Jane Does 1-3, Defendants.

19-cv-6352 (BMC)

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

Signed October 5, 2020

Filed October 6, 2020

Robert James La Reddola, La Reddola, Lester & Associates, LLP, Garden City, NY, for Plaintiff.

Aimee Kara Lulich, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

Plaintiff, a retired police detective, brought this action against defendants, the City of New York, the New York City Police Department ("NYPD"), and various senior officials from the department.¹ He seeks a declaratory judgment and monetary damages for the alleged violation of his Second and Fourteenth Amendment rights under 42 U.S.C. § 1983, including Monell liability. He also seeks legal fees under 42 U.S.C. § 1988(b). Presently before me is defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The question raised in this action is whether plaintiff had a constitutionally-protected property interest in a "retired police officer handgun license" and, by extension, his personal handguns, which he previously possessed as an active duty police officer. He does not. Because plaintiff fails to allege a violation of his rights, defendants’ motion is granted.

BACKGROUND

This case arises from the NYPD's License Division's determination denying plaintiff's application for a retired police officer handgun license. Had one been issued, plaintiff could have legally possessed a concealed handgun within New York City. His application was denied because, before his retirement from the force, plaintiff was arrested and charged with Driving While Intoxicated ("DWI"). He was criminally prosecuted, but a jury acquitted him at trial.

That was not the end of his troubles. Despite his acquittal, the NYPD opened an internal investigation into the circumstances of his arrest and considered preferring administrative disciplinary charges and specifications against him. After 30 years of service, plaintiff chose to retire from the NYPD, with an effective date of October 20, 2014. Before his retirement, however, on October 10, 2014, plaintiff received his Retirement Identification Card, stamped with the words "No Firearms".

His ID Card was stamped in this manner because the internal investigation into his DWI had not been closed. Due to this open investigation, plaintiff was not issued a Pistol License Inquiry Form (PD 643-155), also known as a "Good Guy Letter" within the NYPD, as he was not an officer in "good standing" upon his retirement. To obtain a retired police officer license, plaintiff was told that he needed this letter. He therefore commenced an Article 78 proceeding against the NYPD on August 2015, seeking to compel the department to issue him one.

By decision dated December 12, 2016, the Article 78 court dismissed plaintiff's petition without prejudice.² Since plaintiff had not formally applied for a handgun license in accordance with N.Y. Penal Law § 400.00, Justice Lucy Billings held that there was no denial or administrative record for the court to review. The court noted that plaintiff was "ineligible for [the Good Guy Letter] because he had separated from the Police Department before resolving disciplinary charges against him and that the Department advised him [that] he would be ineligible if he did not resolve [the charges] before his separation." The court also invited plaintiff to refile his petition upon submitting the handgun application and exhausting his administrative remedies.

Plaintiff then submitted his application for a retired police officer license.³ The NYPD License Division, however, denied this request because plaintiff did not submit the requisite Good Guy Letter. Plaintiff appealed this rejection through the NYPD's administrative process. On appeal, the NYPD License Bureau agreed that plaintiff did not require the letter to qualify for a "proper cause" license, so it instead offered him a business carry license on July 2018. This unrestricted license would have allowed plaintiff to carry a concealed handgun for the purposes of self-protection, but plaintiff declined the offer: he did not own a business and thus feared it would inevitably be revoked in the future. He also interpreted this gesture as a deliberate insult.

Plaintiff then commenced this instant action challenging the denial of his application for a retired police officer firearm license. The complaint contains four claims for relief. The first is under the Second and Fourteenth Amendments of the U.S. Constitution pursuant to 42 U.S.C. § 1983, in which plaintiff seeks a declaratory judgment that he is entitled to a retired police officer license and his personal handguns. The second claim seeks monetary damages for the alleged violation of his due process rights. The third alleges a Monell claim, in which plaintiff seeks to impose municipal liability on New York City for the allegations noted above. Finally, the fourth claim purports to assert a cause of action under 42 U.S.C. § 1988 for attorney's fees.

DISCUSSION

A complaint will survive a motion to dismiss when it states a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim for relief is plausible when the plaintiff pleads sufficient facts to allow the Court to draw all 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).

I. New York City Handgun laws

Before discussing the merits of the case, it would be helpful to briefly review the relevant handgun laws. New York regulates the possession of firearms through a licensing scheme, see N.Y. Penal Law § 400.00, and several criminal statutes, see id. §§ 265.01-265.04, 265.20(a)(3). The Penal Law establishes two primary types of handgun licenses: "premises" licenses and "carry" licenses. See id. §§ 400.00(2)(a), (f). Only the second one is at issue in this case. Under state law, 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). To establish proper cause, "an applicant must demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." Kachalsky v. Cty. of Westchester, 701 F.3d 81, 86 (2d Cir. 2012).

Generally, a carry license is valid throughout the entire state, except within New York City. New York City has promulgated its own rules concerning the issuance of licenses for possessing handguns within the city. See generally Rules of the City of New York ("RCNY"), Title 38. To carry a handgun within city limits, one must receive "a special permit granting validity ... issued by the police commissioner" of New York City. N.Y. Penal Law § 400.00(6). One handgun license available to New York City residents is a "Carry Business License," which "permits the carrying of a handgun concealed on the person." 38 RCNY § 5-01(b). Other than the retired police officer handgun license, the carry business license is the only unrestricted class of license permitting an individual to carry a concealed handgun at all times. Under 38 RCNY § 5-03, "proper cause" to obtain a concealed carry handgun license can be shown by either: (a) exposure of the applicant by reason of employment or business necessity to extraordinary personal danger requiring authorization to carry a handgun; or (b) exposure of the applicant to extraordinary personal danger, documented by proof of recurrent threats to life or safety requiring authorization to carry a handgun.

N.Y. Admin. Code § 10-131 empowers the NYPD's Commissioner to grant licenses for carrying pistols within New York City pursuant to § 400 of the Penal Law. Retiring police officers, for example, can apply for a Law Enforcement Retiree License (known as the "retired police office license") – the license at issue in this case. To qualify for this particular license, one must receive a Good Guy Letter. The letter is issued in accordance with a variety of internal NYPD statutes and regulations and requires that the individual retire from the NYPD in good standing.⁴ See NYPD Patrol Guide §§ 205-42, 205-44;⁵ see also Capul v. City of New York, No. 19-cv-4313, 2020 WL 2748274, at *5 n.2 (S.D.N.Y. May 27, 2020).

II. Procedural Due Process Claim

In this case, plaintiff challenges the NYPD's application of N.Y. Penal Code § 400.00(2)(f) when it denied him for a retired police officer license.⁶ Specifically, he claims that he had a protected property and/or liberty interest in a retired police officer handgun license and Good Guy Letter upon his retirement – which were both denied by defendants in violation of 42 U.S.C. § 1983. Plaintiff fails to state a claim.

A procedural due process claim is comprised of two elements: (1) the existence of a property interest that was deprived; and (2) deprivation of that interest without due process. See Bryant v. New York State Educ. Dep't, 692 F.3d 202, 218 (2d Cir. 2012). To establish deprivation of a property interest, a plaintiff must demonstrate an interest "in a benefit that is more than an abstract need or a desire for it ... [h]e must, instead, have...