Kwong v. Bloomberg
876 F. Supp. 2d 246
S.D.N.Y.2012Background
- Plaintiffs challenge NYC’s $340 Premises Residence handgun license fee and the City-specific statute permitting higher city fees.
- Organizational plaintiffs SAF and NYSRPA sue on behalf of members; individual plaintiffs are NYC residents who paid the $340 fee.
- Statutes: NYC Admin Code § 10-131(a)(2) sets a $340 fee for a 3-year license; Penal Law § 400.00(14) allows NYC/Nassau to set licensing fees.
- Premises Residence license allows possession of a handgun in the license holder’s dwelling; NYPD License Division processes applications and conducts investigations.
- The fee history traces to 1947 amendment; local laws increased fees through 2004, culminating in Local Law 37 (2004) raising to $340.
- The court grants summary judgment for City Defendants and Intervenor; plaintiffs seek declaratory and injunctive relief; standing and merits are addressed in detail.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Admin Code § 10-131(a)(2) violates the Second Amendment. | Kwong et al. claim $340 burden is unconstitutional. | City argues fee defrays administrative costs and is not a ban or excessive. | Fee permissible; passes intermediate scrutiny as cost-recovery measure. |
| Whether Penal Law § 400.00(14) violates Equal Protection. | Cities distinguish NYC residents from others; burden on rights is unconstitutional. | Statute permits cost-based fee setting; rational basis supports disparity. | Rational basis review sustains § 400.00(14); no EP violation. |
| Whether organizational plaintiffs have standing to sue. | SAF/NYSRPA seek relief on behalf of members and own claims. | Representative standing under §1983 is limited; organizational standing questionable. | Individual standing found; organizational standing not necessary to reach merits. |
| Whether the case presents a live controversy given potential state-court avenues for relief. | Exhaustion not required for §1983; deference to state court remedies unnecessary. | State avenues might moot claims. | Not dispositive; court proceeds to merits and dismisses claims on the merits. |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (U.S. 2008) (recognizes individual right to keep and bear arms; applies to states via McDonald)
- McDonald v. City of Chicago, 130 S. Ct. 3020 (U.S. 2010) (incorporates Second Amendment against the states)
- Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123 (U.S. 1992) (rejects nominal-fee requirement; fee must relate to legitimate interest)
- Cox v. New Hampshire, 312 U.S. 569 (U.S. 1941) (parade license fee upheld as regulatory, not revenue-raising)
- Murdock v. Pennsylvania, 319 U.S. 105 (U.S. 1943) (held licensing fee must be tied to legitimate state interest)
- Nationalist Movement v. City of York, 481 F.3d 178 (3d Cir. 2007) (fee cases recognize cost-recovery as permissible under intermediate scrutiny)
- Abrams v. National Awareness Foundation, 50 F.3d 1164 (2d Cir. 1995) (costs attendant to regulation may justify fees above nominal)
- Giani v. American Target Adver., Inc., 199 F.3d 1241 (10th Cir. 2000) (fees need not be nominal if reasonably related to regulatory costs)
- Nordyke v. King, 644 F.3d 776 (9th Cir. 2011) (discusses scrutiny levels for Second Amendment challenges)