SAF Sues NYC and Bloomberg Over Permit Fees

[Graystar]

Actually the judge is simply ignoring what was presented then saying it wasn't presented. If you or I lie in court it's called perjury, but when a judge lies it's called an opinion.

The judge can only rule on the complaint, and the complaint didn't address the legitimacy of the license (and its fee) in the first place. Right from the complaint...

"This lawsuit challenges only § 10 -131(a)(2) of the New York City Administrative Code, which requires applicants in New York City to pay an additional $340 fee, and § 400.00(14) of the New York Penal Law, which authorizes the City to charge different fees than the other licensing authorities throughout the State. This lawsuit does not otherwise challenge the laws of the City and State governing the issuance of handgun licenses."

Basically this suit is entirely an equal-protection claim based on different fees. But Jensen misunderstood equal-protection. It has always been the case that a person may be subject to different taxes and fees based on where they live. I live in NYC and I pay NYC income tax. This has been found to be constitutional because a person has chosen to live at that location and that implies acceptance of all the associated laws of that location. Equal-protection applies to a class of people where you suffer a permanent disability based on conditions beyond your control, such as the color of your skin.

The judge can't simply create his own issue to rule on from the complaint. That's what an activist judge does. Is that what you want?

[dove]

The judge can only rule on the complaint, and the complaint didn't address the legitimacy of the license (and its fee) in the first place. Right from the complaint...

"This lawsuit challenges only § 10 -131(a)(2) of the New York City Administrative Code, which requires applicants in New York City to pay an additional $340 fee, and § 400.00(14) of the New York Penal Law, which authorizes the City to charge different fees than the other licensing authorities throughout the State. This lawsuit does not otherwise challenge the laws of the City and State governing the issuance of handgun licenses."

Basically this suit is entirely an equal-protection claim based on different fees. But Jensen misunderstood equal-protection. It has always been the case that a person may be subject to different taxes and fees based on where they live. I live in NYC and I pay NYC income tax. This has been found to be constitutional because a person has chosen to live at that location and that implies acceptance of all the associated laws of that location. Equal-protection applies to a class of people where you suffer a permanent disability based on conditions beyond your control, such as the color of your skin.

The judge can't simply create his own issue to rule on from the complaint. That's what an activist judge does. Is that what you want?

Exactly right. However, I do think there was a possible middle road defense along the lines of the $10 cap being a protection from excessive burden on the right. Granted even that is weak, but it'd at least be an argument you could TRY to make. I think Jensen's argument wasn't even this.

Are you a member of SAF? Because I told the person I went with (recent lifetime member) to send them a complaint. When I get my lifetime membership I sure will. The members need to stand up and say something about this.

[Yellowfin]

Maybe more than stand up and complain, stand up and help. They need to borrow the best minds they can get to help out. Why not make your suggestions directly applicable by helping draft amicus briefs?

[Graystar]

I'm not a member of SAF, but in taking Bill's suggestion maybe you can pass this idea along...it might be something to work from (it's very rough though.)

(from the recent decision)
In Cox v. New Hampshire, 312 U.S. 569 (1941), the Court found that a state statute requiring marchers to obtain licenses and prepay fees with a permissible range of from a “nominal amount” to $300 a day to parade on public streets was permissible because the fee was “not a revenue tax, but one to meet the expense incident to the administration of the act and to the maintenance of public order in the matter licensed.” Id. at 577 (citation omitted). The Court stated that “[t]here is nothing contrary to the Constitution in the charge of a fee limited to the purpose stated.” Id.


In Murdock v. Pennsylvania , 319 U.S. 105 (1943), the Court invalidated a city ordinance that, as applied, required religious groups to pay a license fee of $1.50 a day before distributing literature. The Court found the ordinance to be “a flat tax imposed on the exercise of a privilege granted by the Bill of Rights[,]” id. at 113, because the license fee was “not a nominal fee, imposed as a regulatory measure to defray the expense of policing the activities in question[,]” id. at 113-14.




Is the handgun license fee used to defray the expense of regulating and policing the activity in question? (Murdock)

No. The protected activity in question is that of a person keeping a handgun in his home. The activity itself does not require the expenditure of resources by the government in order to be exercised. The government can show no expenditure incurred during the actual exercise of the protected activity.

Do fees intended to offset the cost of crime-related regulatory measures (ie firearm databases) qualify as fees permissible on the activity in question? (Cox)

No. The protected activity in question is that of a person keeping a handgun in his home. The protected activity does not include criminal activity. As criminal activity is not the protected activity being regulated or policed, no fee can be charged for its regulation and policing as a condition of exercising the protected activity.

It is possible that, upon being victimized by a burglary or robbery, a victim's handgun will be used by a criminal in the commission of a crime. However, the fee would constitute a fee on the unprotected activity of another unknown person, which is unprecedented. For example, the state does not charge more to register cars that are high on the most-stolen list as opposed to cars that are low on the most-stolen list. Neither do governments base income tax rates on the crime levels of the neighborhood a person lives in. Neither is a fee charged on prescription drugs that carry a risk of addiction. It is unprecedented to collect a fee, from a potential crime victim, based on the theorized criminal activities of another as a result of said potential criminal victimization.


So those are the lines I would follow to get the fee declared unconstitutional.

There's also this from the end of the Heller opinion...

"Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home."

Notice that the only disqualification allowed by the Court is of being a prohibited person. Does this mean that non-payment of a fee cannot be used to disqualify a person? (which is basically what the government is doing if they'll subject you to arrest for not having a license.)

[snk]

The city's position in the oral arguments was that the fees almost exactly cover the costs of background checks and administration of the permit process.

[Hinermad]

The city's position in the oral arguments was that the fees almost exactly cover the costs of background checks and administration of the permit process.

I know things are more expensive in The City, but just about every other county in New York manages to perform the background checks for about a third of what NYC is charging. And $95 for fingerprinting? The most I've ever paid was $15.

NYPD must be paying a whopping mortgage on their headquarters building to justify charging like that.

Dave

[dove]

The city's position in the oral arguments was that the fees almost exactly cover the costs of background checks and administration of the permit process.

Costs which they are free to make as expensive as they wish. Obviously this isn't an unlimitedly valid argument, the judge knew this. The cutoff point, of course, is when those costs become so expensive that they are a deterrent, and the issue was that no one presented any evidence that they had reached that level.



Now the above of course ignores the "any fee is unconstitutional" argument...but that argument wasn't even raised in this case.

[SubLo]

Does anyone have any information regarding the appeal? Dates? Arguments?

Thanks.

[Graystar]

Does anyone have any information regarding the appeal? Dates? Arguments?

Who cares? An appeal is made to address errors, and no errors were made in this decision. The only error here was the plaintiff's argument. That the Second Circuit will affirm is a certainty, and I'm about 99.999% sure the Supreme Court won't hear it. Practically speaking, this case is done.

Edit: Found this information...
Jensen's brief is in a post in this thread...
http://thefiringline.com/forums/showthread.php?t=447132

The arguments were set for 6/29/12.

Brief is terrible. Same argument will get the same result.