6 F.4th 324
2d Cir.2021Background
- In Oct. 2014 an ex parte Family Court temporary order of protection (filed by Henry’s daughter) triggered Nassau County Police Department policy to immediately suspend Henry’s pistol license and confiscate all firearms.
- Five months later the temporary order was dissolved and the Family Court matter dismissed, but the County did not reinstate Henry’s license or return his firearms.
- In Oct. 2016 the County formally revoked Henry’s pistol license and prohibited him from possessing firearms; an appeals officer (Jan. 2018) upheld the revocation citing prior domestic incidents, multiple dissolved orders of protection, and alleged reporting failures. Henry denied abuse and submitted affidavits from his daughter and ex‑wife supporting reinstatement.
- County policy required a minimum five‑year wait to reapply for a pistol license; Henry therefore remained barred from firearms at least until 2023 (and may face the same substantive standard on any new application).
- The district court dismissed Henry’s complaint under Rule 12(b)(6), applying intermediate scrutiny and holding Henry failed to plead a Second Amendment core claim because he did not allege a countywide ban; it also dismissed his §1981 claim and some other claims.
- The Second Circuit reversed the dismissal of Henry’s Second Amendment and Monell claims and remanded for further proceedings; it affirmed dismissal of the §1981 claim, claims against the Nassau County Police Department, and punitive damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Henry alleged a "core" Second Amendment violation and thus which level of scrutiny applies | Henry argued the County’s indefinite bar on his firearm possession (at least 7 years) substantially burdened the core right of law‑abiding citizens to have arms for hearth and home | County argued Henry’s burden was non‑core because he did not allege a policy banning firearms for everyone in Nassau County; thus intermediate scrutiny applies | Court held Henry plausibly alleged a core burden; district court erred to require a countywide ban allegation; level of scrutiny depends on whether Henry is shown to be non‑law‑abiding, but complaint alleges a substantial burden |
| Whether the County’s actions survive intermediate scrutiny (i.e., were they supported by "substantial evidence") | Henry argued the County relied on ex parte and dissolved orders and untested allegations and did not perform a reliable inquiry—so no substantial evidence supports the prolonged ban | County relied on ex parte order, history of domestic incidents, dissolved orders, and alleged reporting failures as reasonable basis for suspension and revocation | Court held that, even under intermediate scrutiny, Henry pleaded that the County lacked "substantial evidence" (ex parte order and untested accusations) and therefore the dismissal on this ground was improper |
| Municipal liability under Monell (policy/custom) | Henry alleged the deprivation resulted from official County policy/handbook (Pistol License Section) and customs that led to the deprivation | County argued absence of a constitutional violation or absence of a municipal policy causing it | Court reversed dismissal of Monell claim because plaintiff alleged actions pursuant to official County policy and thus stated a municipal liability claim |
| Racial discrimination under 42 U.S.C. § 1981 | Henry alleged County policies had purpose/effect of deterring firearm ownership in non‑white communities | County argued allegations were conclusory and lacked facts showing intentional discrimination | Court affirmed dismissal: Henry failed to plead specific facts permitting an inference of intentional racial discrimination |
| Suability of Nassau County Police Department and punitive damages against County | Henry sued the Police Department and sought punitive damages | County argued the Police Department is a non‑suable municipal entity and punitive damages unavailable against the County | Court affirmed dismissal of claims against the Nassau County Police Department and punitive damages against Nassau County |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (recognizes an individual right to keep and bear arms and identifies the core right to possess arms for defense of hearth and home)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporation of the Second Amendment against the states)
- N.Y. State Rifle & Pistol Ass'n v. Cuomo, 804 F.3d 242 (2d Cir. 2015) (government must show reasonable inferences based on substantial evidence to satisfy intermediate scrutiny for regulations burdening the Second Amendment)
- Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2d Cir. 2012) (framework for assessing whether state action burdens the Second Amendment core)
- United States v. Decastro, 682 F.3d 160 (2d Cir. 2012) (use First Amendment analogies; measure burden by whether adequate alternatives remain to acquire arms)
- United States v. Jimenez, 895 F.3d 228 (2d Cir. 2018) (distinguishes when strict versus intermediate scrutiny applies depending on proximity to core and severity of burden)
- Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) (intermediate scrutiny requires reasonable inferences based on substantial evidence)
- Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978) (municipal liability where constitutional violation results from a government policy or custom)
- Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003) (intermediate scrutiny must be sufficiently probing to protect constitutional rights)