SAF Sues NYC and Bloomberg Over Permit Fees

[Yellowfin]

The case name is Kwong v. Bloomberg. Here's the official complaint: http://saf.org/legal.action/nyc.fees.../complaint.pdf

Plaintiffs SHUI W. KWONG; GEORGE GRECO; GLENN HERMAN; NICK LIDAKIS; TIMOTHY S. FUREY; DANIELA GRECO; NUNZIO CALCE; SECOND AMENDMENT
FOUNDATION, INC.; and THE NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., by and through their undersigned counsel, as and for their Complaint against Defendants MICHAEL BLOOMBERG ("Mayor Bloomberg"), the CITY OF NEW YORK (the "City"), and ERIC SCHNEIDERMAN, allege as follows:

1. This action for deprivation of civil rights concerns the City's $340 fee for issuance or renewal of a 3-year "Residence Premises" handgun license pursuant to § 400.00(14) of the New York Penal Law and§ 10-13l(a)(2) of the New York City Administrative Code. This fee is excessive and is not used to defray administrative costs, and hence, it impermissibly burdens the Second Amendment right to keep and bear arms.

2. This suit also challenges Penal Law § 400.00(14), which limits the maximum fee for issuing a New York State handgun license to $10, but exempts New York State citizens who happen to reside in New York City from its protection. The right to keep and bear arms is a fundamental civil right, and this disparate State law treatment violates the Equal Protection Clause.
3. Plaintiffs seek declaratory and injunctive relief and attorney’s fees and costs.

INTRODUCTION

4. It is illegal to possess or carry a handgun in the State of New York, including within one’s home, unless one holds a handgun license issued pursuant to § 400.00 of the New York Penal Law. See N.Y. Penal Law §§ 265.01(1), 265.20(a)(3).

5. The City issues Residence Premises handgun licenses to applicants who reside in the City of New York pursuant to § 400.00 of the Penal Law. See N.Y.C. Admin. Code § 10- 131(a)(1); 38 RCNY 5-02. A Residence Premises handgun license allows a person to possess and carry a handgun within a specified residence, and also to transport the handgun (locked, cased, and unloaded) directly to and from a target range. See 38 RCNY 5-23(a). A Residence Premises license is the only license that a private citizen living in New York City can obtain without showing special “need” or “cause.” See generally 38 RCNY 5-01.

6. A person applying for a handgun license anywhere in New York State must submit fingerprints for a background investigation that is conducted by the New York State
Division of Criminal Justice Services (“DCJS”). See N.Y. Penal Law § 400.00(4). DCJS notifies the licensing official (i.e. the City of New York, or elsewhere in the State, generally a designated county judge) of the results of the investigation. See id.

7. All applicants in New York State must pay a fingerprint and investigation fee to DCJS that is (presently) $94.25. See N.Y. Exec. Law § 837(8-a); 9 NYCRR 6051.3(a)-(b). This lawsuit does not challenge this fee.
8. 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.

JURISDICTION AND VENUE
9. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, 2201, 2202 and 42 U.S.C. § 1983.
10. This Court has personal jurisdiction over each of the Defendants because, inter alia, they acted under the color of laws of the City and/or State of New York and/or within the geographic confines of the State of New York.
11. Venue is proper pursuant to 28 U.S.C. § 1391.
PARTIES AND STANDING
12. Plaintiff Shui W. Kwong (“Mr. Kwong”) is a citizen and resident of the State of New York residing in Brooklyn.
13. Mr. Kwong is a 43 year-old Chinese-American who is married and has two children, and who is employed as a union electrical worker.
.....
17. Plaintiff George Greco (“Mr. Greco”) is a citizen and resident of the State of New York residing in Rockaway.
18. Mr. Greco is a 51 year-old man who is married and has 2 children. Mr. Greco is a principal of Midhattan Woodworking Co. Mr. Greco is a board member of Plaintiff New York State Rifle & Pistol Association.

22. Plaintiff Glenn Herman (“Mr. Herman”) is a citizen and resident of the State of New York residing in New York, New York.
23. Mr. Herman is a 43 year-old married man. Mr. Herman is a firearms safety instructor certified by the National Rifle Association of America.

27. Plaintiff Nick Lidakis (“Mr. Lidakis”) is a citizen and resident of the State of New York residing in Queens.
28. Mr. Lidakis is a 37 year-old single man who lives with his girlfriend. Mr. Lidakis is a paramedic who serves the people of the City of New York who require emergency medical assistance.

32. Plaintiff Timothy Furey (“Mr. Furey”) is a citizen and resident of the State of New York residing in Queens.

36. Plaintiff Daniela Greco (“Mrs. Greco”) is a citizen and resident of the State of New York residing in Rockaway.
37. Mrs. Greco is married and has two children. She is a New York City public
school teacher.

41. Plaintiff Nunzio Calce (“Mr. Calce”) is a citizen and resident of the State of New York residing in Bronx County.
42. Mr. Calce is a 37 year-old married man with children. He is a Certified Public Accountant and is first generation Italian-American.

46. Plaintiff Second Amendment Foundation, Inc. (“SAF”) is a non-profit member organization incorporated under the laws of the State of Washington with its principal place of business in Bellevue, Washington.
48. Members of SAF have paid the $340 fee required for a New York City Residence Premises handgun license, and members of SAF would apply for a Residence Premises handgun license but for the prohibitive $340 fee.
49. SAF brings this action on behalf of itself and its members.
50. Plaintiff The New York State Rifle & Pistol Association, Inc. (“NYSRPA”) is a non-profit membership corporation incorporated under the laws of the State of New York with its principal place of business in Troy, New York.

53. Members of NYSRPA have paid the $340 fee required for issuance or renewal of a Residence Premises handgun license, and members of NYSRPA would apply for a Residence Premises handgun license but for the prohibitive $340 fee.
54. NYSRPA brings this action on behalf of itself and its members.

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Continued...

55. Defendant Mayor Michael Bloomberg (“Mayor Bloomberg”) is sued in his official capacity as Mayor of the City of New York, responsible for executing and administering the laws of the City of New York, including New York City Administrative Code § 10-131.
56. Defendant City of New York (the “City”) is a municipal corporation incorporated under the laws of the State of New York.
57. Defendant Attorney General Eric Schneiderman is sued in his official capacity as the Attorney General of the State of New York, responsible for executing and administering the laws of the State of New York, including Penal Law § 400.00(14).

FIRST CAUSE OF ACTION
THE $340 FEE REQUIRED BY N.Y.C. ADMIN. CODE § 10-131(a)(2) IMPERMISSIBLY BURDENS THE RIGHT TO KEEP AND BEAR ARMS

64. The Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008).

65. If a state or municipality requires its citizens to obtain licenses or registrations in order to possess handguns, then it may not refuse to issue the requisite licenses and registrations to people who are otherwise qualified. See Heller, 554 U.S. at 635 (“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.”).

66. The $340 fee required for issuance or renewal of a 3-year Residence Premises handgun license – in addition to the $94.25 already charged for fingerprints and the DCJS background check – is unreasonable, burdensome, and prohibitive.

67. Furthermore, the fees obtained by the City for issuance of Residence Premises handgun licenses are not used to defray expenses related to the issuance of handgun licenses.

68. The $340 fee required by Defendants City and Mayor Bloomberg for issuance or renewal of a Residence Premises handgun license impermissibly burdens the exercise of Second Amendment rights.

69. The $340 fee requirement of § 10-131(a)(2) is invalid in that and to the extent that it pertains to private citizens seeking to obtain or renew Residence Premises handgun licenses.

SECOND CAUSE OF ACTION
N.Y. PENAL LAW § 400.00(14) DENIES EQUAL PROTECTION OF THE LAW TO CITIZENS OF NEW YORK STATE WHO RESIDE IN NEW YORK CITY

70. Section 400.00(14) of the Penal Law protects New York citizens who wish to obtain handgun licenses by limiting the fee that a licensing authority may charge to a maximum of $10. However, the statute exempts New York City (and Nassau County) and instead authorizes them to “fix the fee to be charged for a license to carry or possess a pistol or revolver and provide for the disposition of such fees.” N.Y. Penal Law § 400.00(14).

71. On June 28, 2010 the Supreme Court held that “the right to keep and bear arms [is] among those fundamental rights necessary to our system of ordered liberty.” McDonald v. Chicago, 130 S. Ct. 3020, 3042 (2010).

72. When state laws burden the exercise fundamental constitutional rights, “a State must establish that its classification is necessary to serve a compelling interest,” and it must “adopt the least drastic means to achieve [its] ends.” Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 185 (1979).

73. State laws that unequally burden the exercise of fundamental constitutional rights for citizens who live in a particular municipality can only be upheld where the disparate burden is itself narrowly tailored to serve a compelling government interest. See Illinois State Bd. of Elections, 440 U.S. at 186 (“appellant has advance no reason, much less a compelling one, why the State needs a more stringent requirement for Chicago”).

74. Section 400.00(14) of the New York Penal Law is invalid as applied to allow the imposition of a fee in excess of $10 for the issuance or renewal of a Residence Premises handgun license.

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for the following relief:

I. declaratory judgment that the $340 fee required by N.Y.C. Admin. Code§ 10-131 ( a)(2) is invalid in that and to the extent that it is applied to private citizens seeking Residence Premises handgun licenses;

II. a permanent injunction restraining Defendants City and Mayor Bloomberg, and their officers, agents, servants, employees, and all persons
in concert or participation with them who receive notice of this injunction, from enforcing N.Y. C. Admin. Code § 10-131 (a)( 2) so as to require
private citizens seeking to obtain or renew Residence Premises handgun license to pay the $340 fee set forth therein;

III. declaratory judgment that N.Y. Penal Law § 400.00(14) is invalid as applied to allow the imposition of a fee in excess of $10 for the issuance
or renewal of a Residence Premises handgun license under § 400.00 of the Penal Law;

IV. a permanent injunction restrammg Defendants City and Mayor Bloomberg, and their officers, agents, servants, employees, and all persons
in concert or participation with them who receive notice of this injunction, from requiring private citizens seeking Residence Premises handgun
licenses pursuant to N.Y. Penal Law § 400.00 to pay a fee in excess of $10 to issue or renew a Residence Premises handgun license;

V. such other and further relief, including injunctive relief, against all Defendants, as may be necessary to effectuate the Court's judgment, or as
the Court otherwise deems just and equitable; and

VI. attorney's fees and costs pursuant to 42 U.S.C. § 1988.

[Graystar]

III. declaratory judgment that N.Y. Penal Law § 400.00(14) is invalid as applied to allow the imposition of a fee in excess of $10 for the issuance or renewal of a Residence Premises handgun license under § 400.00 of the Penal Law;

That there is the problem. I wouldn’t be surprised if this gets dismissed out of federal court for lack of jurisdiction. Charging a fee to enjoy a federally protected right is a federal issue. But arguing that one fee is less fair than another fee is a state regulatory issue...not a constitutional issue.

Hopefully, with a few good judges who decide to do the right thing, this will work. It’s unfortunate, though, that it appears to be starting out of the gate with a self-inflicted shot in the foot. They should have simply said that the fee requirements imposed by Penal 400.00(14) are unconstitutional. It's so straightforward and has so much Supreme Court precedent that it would practically be a slam dunk.

[Yellowfin]

The reason the difference in one fee versus another is fit for federal court discussion is the 14th Amendment Equal Protection clause, that the law has to applied equally to all citizens subject to the same law rather than being discriminated against according to their zip code. That way the issue is simpler to prove that it's totally wrong because it says so right there in the law itself. Removing it altogether is another argument for another day--since this is a facial challenge to the law it has to be quick and simple to determine it's always wrong all the time because of the way it's written. State court challenge to this law would only result in the state court affirming the law because it's consistent with state law as written...which is of course deliberately written to let NYC get away with doing anything they want when they want because they want to.

Otherwise you're right, the challenge wouldn't be appropriate according to the Thibodaux Abstention doctrine.

Also notice the importance of using the 14th Amendment here. The law is being challenged because it unequally burdens people living in one part of the state for living there instead of somewhere else. Think about that. Think about what other laws also are unequal applications of sections 400 AND 265.

[Graystar]

I’ve read of cases like this before. It’s a losing position. The law *is* being applied equally to everyone, as it does not create a privileged class of citizen. It’s no different than income tax brackets or different property taxes (imposed by the same taxing authority) on similar houses based only on their location. A good example of a privileged class being shot down comes from SILVEIRA v. LOCKYER, where the 9th circuit said...

“As to the Equal Protection claims, we conclude that there is no constitutional infirmity in the statute's provisions regarding active peace officers.   We find, however, no rational basis for the establishment of a statutory exception with respect to retired peace officers, and hold that the retired officers' exception fails even the most deferential level of scrutiny under the Equal Protection Clause.”

I’m trying to locate the cases (it’s somewhere in Findlaw.com’s extensive discussion on the 14th,) but the argument, as I remember it, is that when a person moves to a certain area, he is electing to submit himself to the laws governing that area. If a person doesn’t want to pay 340 bucks for a license then that person can move out of New York City and pay a smaller fee. In this sense, the law is applied equally to all people because all people have the choice to submit or not submit themselves to paying it.

I'd bet that the equal-protection argument will not hold any water. It will come down to violating the second amendment...but if a 10 dollar fee is okay, would a 15 dollar fee be okay? What about $25? $50? What is the upper limit? That's the problem with the case, especially since they implicitly say they're okay with a 95 dollar charge for fingerprinting.

[Yellowfin]

The Silveira case failed because the lawyer was incompetent in executing what otherwise would have been a good idea had it not also been filed before having the Heller and McDonald (or Nordyke) decisions already in place.

The fingerprinting cost is an established administrative fee that goes towards the actual costs of doing it. As far as fees go, since it is tied to a fundamental right it cannot have a burdensome impact upon that right nor be especially burdensome upon those of lower incomes. (established case law on this). The equal protection argument that can be sustained is that it does not impact everyone equally: Donald Trump can pay $340 without thinking, but his waiter at a restaurant cannot, while their 2nd Amendment rights are equally needed by the both of them. As far as everyone being equally capable of leaving the city or not going there if they choose, economically that isn't so, as employment availability is not equally available everywhere and even less so to many specific skill sets, particularly in a downturn economy as the present.

[Graystar]

The Silveira case failed because the lawyer was incompetent in executing what otherwise would have been a good idea had it not also been filed before having the Heller and McDonald (or Nordyke) decisions already in place.

Yes, the majority of Silveira failed...except for the equal-protection issue, which was successful.

The fingerprinting cost is an established administrative fee that goes towards the actual costs of doing it.

Murdock says you can't do that...
"It is claimed, however, that the ultimate question in determining the constitutionality of this license tax is whether the state has given something for which it can ask a return. That principle has wide applicability. State Tax Commission v. Aldrich, 316 U.S. 174 , 62 S.Ct. 1008, 139 A.L.R. 1436, and cases cited. But it is quite irrelevant here. This tax is not a charge for the enjoyment of a privilege or benefit bestowed by the state. The privilege in question exists apart from state authority. It is guaranteed the people by the federal constitution."

If the states wants to fingerprint you, then they have to pay for it. I'm sure there's a privacy issue there in having to give up your fingerprints before you can exercise a fundamental right.

As far as fees go, since it is tied to a fundamental right it cannot have a burdensome impact upon that right nor be especially burdensome upon those of lower incomes.

According to Murdock, the fact that the fee is tied to a fundamental right is the reason why that fee cannot exist.

As far as everyone being equally capable of leaving the city or not going there if they choose, economically that isn't so, as employment availability is not equally available everywhere and even less so to many specific skill sets, particularly in a downturn economy as the present.

Yeah, but this is a free country (supposed to be, anyways)...your economic situation is your problem...not the governments.

The more I look into it, the steeper this hill gets. Don't get me wrong...I hope it succeeds. In fact I exchanged emails with Gura after the Heller decision offering myself for this very type of case (but McDonald was in the works.) I just think they've made things unnecessarily difficult for themselves.

[Yellowfin]

If the judge rules via Murdock that NO fee or licensing at all is the case, and that would be the right decision I agree, then so much the better. They're simply asking for the simplest remedy first.

Here's the docket link to check up on to see when new stuff is filed: http://ia600608.us.archive.org/24/it...35.docket.html

[Yellowfin]

UPDATE:

A timetable has been set by the judge for the various motions etc., after which we'll have a district level decision:

05/25/2011 10 SCHEDULING ORDER: No later than 6/22/2011, Plaintiffs will move for summary judgment, and Intervenor may move to dismiss.
No later than 7/29/2011, Defendants and Intervenor will respond to Plaintiffs' motion for summary judgment, Defendants and/or Intervenor may cross-move for summary judgment, and Plaintiffs will respond to Intervenor's motion to dismiss.
No later than 8/19/2011, Plaintiffs will file their reply in support of summary judgment and their opposition to any cross-motion for summary judgment, and Intervenor will file its reply in support of its motion to dismiss.
No later than 9/13/2011, Defendants and/or Intervenor will file their reply in support of any cross-motion for summary judgment.
(Motions due by 6/22/2011. Cross Motions due by 7/29/2011. Responses due by 8/19/2011. Replies due by 9/13/2011.) (Signed by Judge John G. Koeltl on 5/25/2011) (tro) (Entered: 05/26/2011)

So sometime after September. Stay tuned!

[Yellowfin]

Motion for Summary Judgement filed today, and as expected it's very good:

The only apparent purpose for this disparate State-law treatment is to permit the
City to use prohibitive license fees to discourage people from exercising their constitutional right to
keep and bear arms. However, the purpose of suppressing the exercise of a constitutional right is no
legitimate purpose at all. New York City’s $340 fee is unconstitutionally excessive in its own right,
and the New York State law that exempts City residents from its protection against prohibitive fees
violates the Equal Protection Clause.

It further proceeds to point out in vivid detail the excessiveness and absurdity of the Sullivan Law in total. The further this case goes the better, and will be GREAT as a platform for going after the rest of the law's wrongness later.

Link to full PDF: http://www.mdshooters.com/attachment...8&d=1308846505