RAZZANO v. County of Nassau
2011 U.S. Dist. LEXIS 19133
| E.D.N.Y | 2011Background
- Razzano, a Freeport, NY resident and Minuteman member, sues Nassau County and police officials under §1983 for alleged due process violation arising from confiscation of longarms after a visit to Rep. McCarthy's office.
- Officers Mistretta and Lemieux investigated Razzano's fitness to possess handguns and confiscated fifteen handguns and nine longarms from his residence, with consent to enter the home.
- Nassau County revoked Razzano's pistol license on April 24, 2007, stating grounds based on past anti-immigration activity; longarms would be returned only if the license was reinstated or via a court order.
- Razzano requested a pistol license hearing (scheduled Oct. 7, 2007) and attempted to adjourn pending this lawsuit; he did not challenge the license revocation in the complaint.
- Plaintiff asserted four claims: §1983 due process, and state-law replevin and conversion; defendants moved for summary judgment on all claims.
- The court previously dismissed some claims in Razzano I; the remaining issues concern due process for return of longarms and potential Fourth Amendment claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nassau County violated due process by providing inadequate post-deprivation remedies for longarms | Razzano | Mistretta/County | Yes; due process violation established; requires prompt post-deprivation hearing |
| Whether Mulvey's personal involvement supports §1983 against him | Razzano | Mulvey | No triable issue; Mulvey dismissed from §1983 claim |
| Whether a putative Fourth Amendment claim should be allowed on summary judgment | Razzano | Mistretta/Lemieux | Plaintiff may amend to plead Fourth Amendment claim; set 20 days to amend |
| Whether Article 78 and pistol-license procedures satisfy Mathews due process requirements | Razzano | County/Defendants | Post-deprivation hearing required; not satisfied by Article 78 or pistol-license hearing alone |
Key Cases Cited
- McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972) (property seized at arrest must not be forfeited absent evidence of unlawful conduct)
- Butler v. Castro, 896 F.2d 698 (2d Cir. 1990) (post-seizure procedures must be constitutionally valid and adequately noticed)
- Alexandre v. Cortes, 140 F.3d 406 (2d Cir. 1998) (independent state relief does not defeat §1983 claim where state procedures cause deprivation)
- County of Nassau v. Canavan, 1 N.Y.3d 134 (N.Y. 2003) (post-seizure hearings routinely required when vehicle retained after DUI arrest)
- New York State Nat. Organization for Women v. Pataki, 261 F.3d 156 (2d Cir. 2001) (Article 78 vs. additional safeguards; not controlling here)
- Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458 (2d Cir. 2006) (distinguishes pre- vs post-deprivation process under Mathews)
- Spinelli v. City of New York, 579 F.3d 160 (2d Cir. 2009) (recognizes exigent circumstances may limit pre-deprivation process)
- Canavan (County of Nassau v. Canavan, 1 N.Y.3d 134), 1 N.Y.3d 134, 770 N.E.2d 616 (2003) (post-seizure hearings deemed necessary for property retained after arrest)