Weinstein v. Ryder

MARC WEINSTEIN, Plaintiff, v. PATRICK RYDER, LT. MARK TIMPANO, INVESTIGATOR IMPERIALE,AND THE COUNTY OF NASSAU, Defendants.

19-cv-6236 (SJF)(AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 23, 2021

OPINION AND ORDER

FEUERSTEIN, U.S.D.J.:

I. INTRODUCTION

Plaintiff Marc Weinstein ("Plaintiff") brought this 42 U.S.C.A. § 1983 action against defendants Patrick Ryder, Lieutenant Mark Timpano, Investigator Imperiale, and the County of Nassau (collectively, "Defendants") for alleged violations of Plaintiff's and other similarly situated persons' constitutional rights including, inter alia, Plaintiff's right to: (1) free speech, (2) keep and bear arms, and (3) Due Process. (Docket Entry ("DE") 1.) Plaintiff also challenges the constitutionality of New York Penal Law ("NYPL") § 400.00(11)(c).¹ Pending before this Court is Defendants' motion for judgment on the pleadings ("Motion") pursuant to Fed. R. Civ. P. ("Rule") 12(c). For the below reasons, the Motion is GRANTED.²

II. BACKGROUND

A. Factual Allegations

In August 2018, Plaintiff received a letter from the Nassau County Police Department ("NCPD") advising him that his pistol license had been suspended. (DE 1 at ¶ 12.) On October 5, 2018, Plaintiff received a second letter ("Revocation Letter") from the NCPD advising him that his pistol license had been revoked based on his alleged "[l]ack of moral character" and "threats of violence communicated [by Plaintiff] via telephone to NY Rising personnel." (DE 1-2 at 2-3.) The Revocation Letter directed Plaintiff, within 30 days, to dispose of or transfer his pistols and long guns or longarms ("Longarms") to a licensed gun dealer, and that failure to do so would result in his arrest and charge for unlawful possession of guns and firearms. (DE 1 at ¶ 13, DE 1-2 at 3.) In response to the Revocation Letter, Plaintiff sold his guns to a licensed gun dealer allegedly at a loss. (DE 1 at ¶ 14.) The Revocation Letter states that "[u]pon receipt by a licensee of a revocation/downgrade letter from the Pistol License Section, the licensee MUST send a letter to the Pistol License Section via certified mail within ten (10) days, requesting an appeal of the revocation/downgrade. The licensee will then receive instructions regarding the appeal process." (DE 1-2 at 2-3.) Plaintiff instead wrote a letter to the NCPD demanding a prompt post-deprivation hearing; however, the letter is not dated and does not identify where it was mailed to. (Id. at ¶ 15; DE 1-1 at 2.) A post-deprivation hearing was never provided.

B. New York Penal Law § 400.00 Overview

"New York State maintains a general prohibition on the possession of firearms absent a license." Libertarian Party of Erie Cnty. v. Cuomo, 970 F.3d 106, 113 (2d Cir. 2020) (internal citations and quotations omitted). NYPL § 400.00 "is the exclusive statutory mechanism for the licensing of firearms in New York State." Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 85-86(2d Cir. 2012) (internal quotations and citations omitted). A person applying for a firearm license must demonstrate that they possess "good moral character" and that they have "not had a license revoked or [are] not under a suspension or ineligibility order issued pursuant to the provisions of section 530.14 of the criminal procedure law or section eight hundred forty-two-a of the family court act" and "concerning whom no good cause exists for the denial of the license." NYPL § 400.00(1); see also Fusco v. Cty. of Nassau, No. 19 cv 04771, 2020 WL 5820173, at *5 (E.D.N.Y. Sept. 30, 2020).

Various Courts in this District have addressed the distinction between and among pistols, handguns, and longarm guns as they relate to NYPL § 400.00. See Id at *5; see also Weinstein v. Krumpter, 386 F. Supp. 3d 220, 225 (E.D.N.Y. 2019). For the purposes of this case, the Court notes that longarms or long guns, which include most rifles and shotguns, are treated differently as compared to handguns and pistols in terms of licensing requirements under NYPL § 400.00. See Id at 225-227. Notably, longarms "pose a unique legal issue because unlike other firearms 'there is no license requirement for the purchase or possession.'" Panzella v. Cnty. of Nassau, No. 13 cv 5640, 2015 WL 5607750, at *1 (E.D.N.Y. Aug. 26, 2015) (citing Razzano v. Cnty. of Nassau, 765 F. Supp. 2d 176, 180 (E.D.N.Y. 2011)). However, when a person's handgun license is revoked pursuant to NYPL § 400.00(11)(c), the person is required to "surrender such license to the appropriate licensing official and any and all firearms, rifles, or shotguns owned or possessed by such person shall be surrendered to an appropriate law enforcement agency." NYPL § 400.00(11)(c). Plaintiff contends that this provision of the law, NYPL § 400.00(11)(c), is unconstitutional.

III. DISCUSSION

A. Standard of Review for a Motion for Judgment on the Pleadings

"The standard of review on a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is the same standard of review applied to a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)." Marte v. Safety Bldg. Cleaning Corp., No. 08 cv 1233, 2009 WL 2827976, at *1 (S.D.N.Y. Sept. 2, 2009). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662 (2009) (internal quotation marks and citations omitted). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a [d]efendant has acted unlawfully." Id. at 678 (internal citations omitted).

"[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 546 (2007). A court deciding a motion to dismiss must liberally construe the claims at issue, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d 166, 176 (2d Cir. 2013) (internal quotation marks and citations omitted).

1. Second Amendment Claim

Plaintiff's Second Amendment claim alleges that Defendants' "ordering prohibition of the possession arms by the Plaintiff, and other similarly situated persons, without hearing, without due process on the basis of secret 'evidence' abridged and infringed on the right of thePlaintiff [. . .] to keep and bear arms in violation of [the] U.S. Const., Amends. II, V and XIV." (DE 1 at 9.) Defendants argue that "[b]ecause there is no constitutional right to possess and retain some particular gun, such as a pistol, Plaintiff is unable to show that he has a specific constitutional right to a pistol license." (DE 20-4 at 11.) Defendants also argue that "[t]he Complaint fails to state a claim that the County Defendants are acting unconstitutionally by simply enforcing New York State Firearms regulations[.]" Id at 14.

The Second Amendment protects a citizen's right to possess a firearm in the home for self-defense. See District of Columbia v. Heller, 554 U.S. 570 (2008). "As the United States Supreme Court ruled in Heller, self-defense of the home constitutes a 'lawful purpose' and 'the central component of the right [to bear arms].'" Abraham v. Town of Huntington, No. 17 cv 03616, 2018 WL 2304779, at *12 (E.D.N.Y. May 21, 2018) (quoting Heller, 554 U.S. at 599).

However, as this Court held in Napolitano v. Ryder No. 18 cv 3607, 2019 WL 365710, at *8 (E.D.N.Y. Jan. 30, 2019), "[b]ecause there is no constitutional right to possess and retain some particular gun, such as a pistol," a citizen does not have a "specific constitutional right to a pistol license[.] [N]ew York law vests the License Division with broad discretion in determining whether to deny a handgun permit," Toussaint v. City of N.Y., No. 17-CV-5576, 2018 WL 4288637, at *7 (E.D.N.Y. Sept. 7, 2018), and because "[t]he presence of that discretion precludes any legitimate claim of entitlement," Spanos v. City of New York, No. 15-CV-6422, 2016 WL 3448624, at *2 (S.D.N.Y. June 20, 2016), a [citizen] does not have a specific constitutional right to a pistol license. See Toussaint, 2018 WL 4288637, at *7 (dismissing plaintiff's complaint because he could not show that he has a protected liberty or property interest in a possible future [handgun] license) (internal citations omitted)." See also Perros v. County of Nassau, 238 F. Supp. 3d 395, 400 (E.D.N.Y. 2017) (holding that a New York plaintiff did not have a protected interest in a pistolpermit) (internal citations omitted). Accordingly, to the extent Plaintiff claims a violation of his Second Amendment right based on revocation of his pistol license, the claim is dismissed with prejudice.

Plaintiff seems to allege in his Motion papers that his Second Amendment right was also violated because Defendants' actions forced Plaintiff to dispose of his Longarms; however, this claim is not alleged in the Complaint. Instead, Plaintiff's Second Amendment claim, two paragraphs in length, states generally that Plaintiff's rights were violated without any specificity as to how the rights were violated. Plaintiff's claim as to his Longarms is dismissed.

2. Fourteenth Amendment Due Process Claim

Defendants move to dismiss Plaintiff's procedural Due Process claim on the grounds that: (1) Plaintiff failed to exhaust his state administrative remedies, and (2) Plaintiff failed to properly plead a Due Process violation.³

Defendants' first argument is without merit. "[U]nder section 1983, plaintiffs are not required to exhaust administrative remedies." Waltier v. N.Y. Police Dep't, 856 F. Supp. 196, 199 (S.D.N.Y. 1994), aff'd, 52 F.3d 311 (2d Cir. 19...