Weinstein v. Krumpter

386 F.Supp.3d 220

Marc W. WEINSTEIN, Plaintiff,

v.Thomas C. KRUMPTER, Acting Police Commissioner, Nassau County, New York, Steven E. Skrynecki, Chief of Department, Nassau County Police Department, Daniel P. Flanagan, Commanding Officer, First Precinct, Nassau County Police Department, James B. Malone, Police Officer, First Precinct, Nassau County Police Department, John Does I-IV, Police Officers, First Precinct, Nassau County Police Department, Paul Cappy, Police Officer and Investigator, Nassau County Police Department, Pistol License Section, Nassau County Police Department, and County of Nassau, Defendants.

2:14-cv-7210 (ADS)(AKT)

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

Signed July 8, 2019

The Law Office of Robert T. Bean, Counsel for the Plaintiff, 3033 Brighton Third Street, Brooklyn, NY 11235, By: Robert T. Bean, Esq., Of Counsel

Nassau County Attorney, Counsel for the Defendants, One West Street, Mineola, NY 11501, By: Ralph J. Reissman, Esq., Deputy County Attorney

MEMORANDUM OF DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge

In this case, Marc W. Weinstein ("Weinstein" or the "Plaintiff") challenges the constitutionality of the Nassau County Police Department's (the "Department" or "NCPD") policy of confiscating firearms in the course of responding to domestic incidents. On December 10, 2014, the Plaintiff commenced this action against the Department, Acting NCPD Commissioner Thomas Krumpter ("Krumpter"), NCPD Chief Steven E. Skrynecki ("Skrynecki"), NCPD First Precinct Commanding Officer Daniel P. Flanagan ("Flanagan"), NCPD Officer James B. Malone ("Malone"), and NCPD Officer and Investigator Paul Cappy ("Cappy"). Weinstein originally asserted deprivations of his First, Second, Fourth, Fifth and Fourteenth Amendment rights as well as various state law causes of action. On January 8, 2015, the Plaintiff filed an amended complaint, which added the County of Nassau (the "County") (along with the Department, Krumpter, Skrynecki, Flanagan, Malone, and Cappy collectively referred to as the "Defendants") as a defendant.

On February 25, 2015, the Plaintiff filed a motion pursuant to Federal Rule of Civil Procedure (" FED. R. CIV. P. " or "Rule") 65 seeking a preliminary injunction. On April 11, 2015, Weinstein filed a second amended complaint. This Court denied the Plaintiff's motion seeking a preliminary injunction on August 17, 2015, because Weinstein failed to identify any actual and imminent harm that he would suffer if an injunction did not issue.

On September 7, 2017, the Plaintiff filed one of the instant motions, pursuant to FED. R. CIV. P. 56, seeking summary judgment in his favor. The other instant motion, filed on March 8, 2018 by the Defendants, seeks summary judgment pursuant to FED. R. CIV. P. 56 in their favor. In the Plaintiff's memorandum opposing the Defendants' cross-motion, Weinstein withdrew his First Amendment cause of action.

On March 1, 2019, this Court ordered that the parties file all Local Rule 56.1 statements and counter-statements with the Court and that each party submit supplemental briefing that addresses whether Nassau County's policy (1) complies with this Court's ruling in Razzano v. Cty. of Nassau , 765 F. Supp. 2d 176 (E.D.N.Y. 2011) (Spatt, J.); (2) complies with the Second Circuit's decision in Panzella v. Sposato , 863 F.3d 210 (2d Cir. 2017) ; and (3) satisfies the test set forth in Mathews v. Eldridge , 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) as applied in this Circuit. On April 3, 2019, the instant motions were fully briefed.

I. BACKGROUND

Unless otherwise noted, the following facts are undisputed and are drawn from the parties' Local Rule 56.1 statements.

A. THE FACTUAL BACKGROUND

1. The Incident

On February 25, 2014, Weinstein was at his residence, located at 781 Jefferson Street, Baldwin, New York. The Plaintiff's wife, Zoila Watson-Weinstein ("Zoila") and his 24-year-old son, Abraham Weinstein ("Abraham"), also resided at the home. Weinstein had previously obtained a license to own handguns from the NCPD and at that time owned nine handguns, all of which were located in his residence. The Plaintiff also owned 39 longarms, which he stored in a safe in the living room.

At approximately 1:30 p.m. that day, the Plaintiff got into a verbal argument with Abraham regarding the use of a washing machine in the basement. Weinstein was upset that Abraham overloaded the washing machine, which caused flooding on the basement floor. Abraham and Weinstein became engaged in a loud verbal dispute, which awoke Zoila in her bedroom. According to Zoila, "They were getting loud. And then I remember hearing something about, you just wait right here, wait right here. I'll get something for you. And then [Weinstein] ran upstairs.... He went up to our bedroom.... Then he rushed by me and went back downstairs. But I thought I saw a gun or – I said – it wasn't even that I saw a gun. I thought I saw something brown in his hands.... I know the two of them were still discussing loudly whatever the situation was[.]" Document Entry ("Dkt.") 73-5 at 65:19-67:12.

At 1:33 p.m. Zoila called 911. The following conversation ensued:

OPERATOR: "Nassau County Police 546."

ZOILA: "Hi, I'm calling – I – I – I have somebody that's just really out of control today, and it's my husband. And he even took out a gun to turn around and threaten us in the house. So I think I want to have the police come.

OPERATOR: "Okay, okay, he's not violent right now?"

ZOILA: "No, he's just yelling right now. But he took a gun out to go and –."

OPERATOR: "Took what kind of gun out?" [Zoila hangs up]

Id. at 88:16-89:18.

Malone, a NCPD detective, received an emergency radio dispatch at 1:41 p.m. while in his patrol vehicle to respond to a domestic incident "with a hysterical female caller, stating there was a male with a gun – being threatened with a gun[.]" Dkt. 73-7 at 8:14-9:24. When Malone arrived at the house, he knocked on the front door and rang the doorbell. Abraham cracked the door open and told Malone that "everything's fine." Malone responded that he needed to see what occurred and Abraham ultimately let him into the house. Upon entering, Malone observed Zoila standing on the second floor "hysterically crying, tears running down her face." Id. at 13:23-14:11. Malone discovered Weinstein in the basement sitting on the couch. The Plaintiff told Malone that although there was a fight, everything was fine. Malone reported that Weinstein looked "very lethargic, very calm, and kind of had like a thousand-yard stare, like looking through me." Id. at 14:17-23. While walking through the house, Malone observed guns and ammunition both inside the living room gun safe, and in various other locations. When Malone spoke to Zoila, she confirmed the 911 call but denied that Weinstein used a gun in the course of the argument.

After interviewing Weinstein, Zoila and Abraham, Malone determined, based on his interpretation of NCPD policy, that the event in question qualified as a "domestic incident." Malone testified:

They were upset. They lied about a couple of things telling me there was no argument, there was no fight, yet the 911 call said there was a gun. They were very upset. The mother was hysterical, the son was shaking, sweating. Something happened in that house. To this day I fully believe that there was a gun used in the house. Nobody would admit it. They wouldn't say anything about it. They denied it the entire time. I end[ed] up telling Marc, I said you're not being arrested. But we both know something happened in this house.

Id. at 28:23-30:7. The NCPD confiscated all 39 longarms, nine handguns and the Plaintiff's handgun license. The parties dispute whether the seizure was voluntary. The NCPD did not obtain a search warrant at any time during its investigation of the incident.

2. Applicable Laws & Regulations

A "firearm" includes (a) any pistol or revolver; or (b) a shotgun having one or more barrels less than eighteen inches in length; or (c) a rifle having one or more barrels less than sixteen inches in length. N.Y. Penal Law § 265.00(3). A rifle is a "weapon designated or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed metallic cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger." N.Y. Penal Law § 265.00(11). A shotgun is a "weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger." N.Y. Penal Law § 265.00(12). Rifles and shotguns are commonly referred to as longarms. The policy at issue is Police Department Procedure OPS 10023, entitled "Removal and Dispositions of Weapons – Domestic Incidents / Threats to Public Safety ("OPS 10023" or the "Policy"). The Policy establishes a framework for removing firearms, rifles, and shotguns and details the following procedure:

1. Confiscates illegally possessed firearms, rifles, and shotguns and

a. if present, arrests the offender, ...

b. processes the evidence.

2. Confiscates pistol licenses and licensed firearms when the licensee is:

a. arrested,

b. the subject of an order of protection,

c. involved in physical violence or the threat of violence.

* * *

3. Confiscates legally possessed firearms, rifles and shotguns when such firearms, rifles and shotguns create a threat of violence or threat to the public safety.

4. Accepts legally possessed firearms, rifles, and shotguns that are voluntarily surrendered by persons.

5. Renders firearms, rifles, and shotguns safe.

6. Prepares PDCN Form 41, Property Receipt, and a. gives a copy to the owner,

b. forwards a copy to the Precinct Domestic Incident Liaison Officer,

7. Invoices the confiscated property.

Dkt. 73-11 (...