OPINION AND ORDER
This lawsuit challenges the constitutionality of New York City’s fee for a residential handgun license as well as the New York State statute that authorizes the City to collect that fee.
Plaintiffs Shui W. Kwong, George Greco, Glenn Herman, Nick Lidakis, Timothy S. Furey, Daniela Greco, and Nunzio Calce (“the individual plaintiffs”), as well as Second Amendment Foundation, Inc. and the New York State Rifle & Pistol Association, Inc. (“the organizational plaintiffs”) (collectively “the plaintiffs”), bring this action against the City of New York and Michael Bloomberg, in his official capacity as the Mayor of the City of New York (“the City Defendants”). The Attorney General of
The plaintiffs bring this action pursuant to 42 U.S.C. § 1983, alleging that two statutes — New York City Administrative Code § 10-131(a)(2) (“Admin. Code ■ § 10-131(a)(2)” or “the City Statute”) and New York Penal Law § 400.00(14) (“Penal Law § 400.00(14)” or “the State Statute”) — violate their rights under the Second Amendment as incorporated against the States by the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, respectively. Pursuant to the authority granted by Penal Law § 400.00(14), New York City has set the fee for a residential handgun license at $340. The plaintiffs claim that the fee is unconstitutional. The plaintiffs have now moved for summary judgment and the City Defendants and Intervenor cross-moved for summary judgment. For the reasons explained below, the license fee and the implementing statutes are constitutional.
I.
The following facts are undisputed unless otherwise noted.
The individual plaintiffs are residents of New York City who all have paid a $340 fee to apply for a New York City “Premises Residence” handgun license, which allows license holders to possess handguns within a specified dwelling. (Pis.’ R. 56.1 Stmt. ¶¶ 9-15; City Defs.’ R. 56.1 Resp. ¶¶ 9-15; Intervenor’s R. 56.1 Resp. ¶1¶ 9-15); N.Y. Penal Law § 400.00(2)(a); 38 RCNY § 5-01. Each individual plaintiff holds a Premises Residence handgun license. -(Pis.’ R. 56.1 Stmt. ¶¶ 9-15; City Defs.’ R. 56.1 Resp. ¶¶ 9-15; Intervenor’s R. 56.1 Resp. ¶¶ 9-15.) Plaintiffs Second Amendment Foundation, Inc. (“SAF”) and the New York State Rifle & Pistol Association, Inc. (“NYSRPA”) are not-for-profit member organizations that aim- to promote the exercise and preservation of Second Amendment rights'. (Pis.’ R. 56.1 Stmt. ¶¶ 17, 19, 22, 25; City Defs.’ R. 56.1 Resp. ¶¶ 17, 19, 22, 25; Intervenor’s R. 56.1 Resp. ¶¶ 17, 19, 22, 25.) Plaintiffs Lidakis and Calce are members of SAF, plaintiff Greco is a member of NYSRPA, and plaintiff Herman is a member of both organizations. (Pis.’ R. 56.1 Stmt. ¶¶ 21, 26; City Defs.’ R. 56.1 Resp. ¶¶ 21, 26; Intervenor’s R. 56.1 Resp. ¶¶21, 26.) SAF and NYSRPA assert claims on their own behalf and on behalf of their members. (Compl. ¶¶ 49, 54.)
The plaintiffs bring this action pursuant to 42 U.S.C. § 1983 alleging a violation of their rights under the Second Amendment and the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs’ challenge concerns the $340 fee that New York City imposes for the issuance or renewal of a Premises Residence handgun license that is valid for three years. New York State law makes it illegal to possess a handgun, including within the home, without a license. N.Y. Penal Law §§ 265.01(1), 265.20(a)(3). New York Penal Law Article 400 provides for several different types of licenses to carry or possess handguns in various places or circumstances, including the Premises Residence handgun license at issue here. N.Y. Penal Law § 400.00(2). The Premises Residence handgun license allows a license holder to “have and possess [a handgun] in his dwelling----N.Y. . Penal Law § 400.00(2)(a).
The plaintiffs challenge two specific statutory provisions related to this licensing scheme. The first provision the plaintiffs challenge — New York Penal Law § 400.00(14) — authorizes the New York City Council (“City Council”) to set the fees for the issuance and renewal of all handgun licenses issued in New York City. The statute also confers discretion on the Nassau County Board of Supervisors to set handgun licensing fees in Nassau County, although the plaintiffs do not challenge this portion of the statute.
In [New York City], the city council and in the county of Nassau the Board of Supervisors shall 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. Elsewhere in the state, the licensing officer shall collect and pay into the county treasury ... not less than three dollars nor more than ten dollars as may be determined by the legislative body of the county....
N.Y. Penal Law § 400.00(14). Thus, while in New York State the license fee is generally capped at a $10 maximum, in New York City, the City Council may set the fee above this rate. Penal Law § 400.00(14) was amended in 1947 by the New York State Legislature to confer this discretion on the City Council to set fees outside the fee range applicable to the rest of the State (“the 1947 Amendment”). 1947 N.Y. Laws Ch. 147, attached as Decl. of Monica A. Connell (“Connell Decl.”) Ex. F; Decl. of David D. Jensen (“Jensen Decl:”) Ex. 18; Decl. of Michelle Goldberg-Cahn (“Goldberg-Cahn Decl.”) Ex. A.
Since 1948, the City Council has enacted legislation establishing fees for the issuance and renewal of licenses to possess and carry handguns. In 1948, the fee in New York City was set at $10 for the initial license and $5 for each rеnewal license. Local Law No. 32 (1948), attached as Goldberg-Cahn Decl. Ex. B. This fee was increased several times, with the most recent fee increase in 2004. Local Law No. 47 (1962), Local Law No. 78 (1973), Local Law No. 42 (1979), Local Law No. 37 (1985), Local Law No. 51 (1989), Local Law No. 42 (1992), Local Law No. 37 (2004), attached as Goldberg-Cahn Decl.
Every license to carry or possess a pistol or revolver in the city may be issued for a term of no less than one or more than three years. Every applicant for a license to carry or possess a pistol or revolver in the city shall pay therefor, a fee of three hundred forty dollars for еach original or renewal application for a three year license period or part thereof....
N.Y.C. Admin. Code § 10-131(a)(2).
The plaintiffs contend that Admin. Code § 10-131(a)(2) violates the Second Amendment because it imposes an impermissible fee that unconstitutionally burdens the right to keep and bear arms. The plaintiffs also argue that Penal Law § 400.00(14) violates the Equal Protection Clause because it draws a classification between New York City residents and other citizens of New York State that results in a disparate burden on the exercise of New York City residents’ Second Amendment rights. The plaintiffs do not challenge the requirement of a license to possess or carry a handgun, the performance of an investigation prior to the issuance of a license, or the imposition of a fee to apply for such a license. In addition, the plaintiffs’ action is confined to Premises Residence handgun licenses and does not challenge the application of the $340 fee to other types of handgun licenses. The plaintiffs seek declaratory and injunctive relief. (Compl. ¶ 3.)
The plaintiffs moved for summary judgment in their favor pursuant to Rule 56 of the Federal Rules of Civil Procedure before any discovery in this action had taken place. The City Defendants and the Intervenor both cross-moved for summary judgment. The City Defendants’ motion sought dismissal of all causes of action in this suit, while the Intervenor’s motion sought dismissal of the second cause of action directed against Penal Law § 400.00(14).
II.
The standard for granting summary judgment is well established. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett,
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
III.
The Intervenor argues that neither the individual plaintiffs nor the organizational plaintiffs have standing to challenge Penal Law § 400.00(14). “Standing is a jurisdictional prerequisite; accordingly, the Court must initially determine whether [the plaintiff] has standing to invoke the jurisdiction of the federal courts to determine the merits of the underlying disputes.” Local 851 of Int’l Bhd. of Teamsters v. Thyssen Haniel Logistics, Inc., Nos. 95 Civ. 5179, 02 Civ. 6250,
First, the Intervenor contends that there is no live case or controversy because the individual plaintiffs have not suffered any concrete or actual injury as a result of the operation of Penal Law § 400^00(14). In order for the individual plaintiffs to establish standing on this motion for summary judgment, they must set forth, by affidavit or other evidence, specific facts demonstrating that: (1) they have suffered an actual or imminent injury in fact, that is concrete and particularized, and not conjectural or hypothetical; (2) this injury is fairly traceable to the defendants’ alleged actions; and (3) it is likely that a favorable decision in the case will redress the injury. Lujan v. Defenders of Wildlife,
The individual plaintiffs in this case have suffered a concrete and actual injury because they have all paid the $340 application fee that is challenged as unconstitutional. The Intervenor’s standing argument is thus better understood as an argument that the plaintiffs have failed to satisfy the causation element of standing, rather than the injury-in-fact element. Specifically, the Intervenor argues that the State Statute is not the cause of the plaintiffs’ injuries because it is the City Statute, rather than the State Statute,
While the Intеrvenor is correct that it is the City Statute, rather than the State Statute, that imposes the $340 fee at issue, there exists a sufficient causal nexus between the City Council’s actions and the State Statute to give rise to standing to challenge the latter. Without the exemption provided by the State Statute, the City Council would not have been able to set the handgun licensing fee at the current $340 rate; instead, it would have been confined to the $10 maximum fee governing the rest of the State. While it is true that standing is improper where “the injury complained of is the result of the independent action of some third party not before the court,” Bennett v. Spear,
The Intervenor next argues that the organizational plaintiffs lack standing to sue. An organizational plaintiff can assert standing either on its own behalf — when it has suffered injury in its own right — or on behalf of its members in a representative capacity, when certain requirements are met. Warth v. Seldin,
IV.
The plaintiffs argue that Admin. Code § 10-131(a)(2) violates the Second Amendment because the fee it imposes is excessive and impermissibly burdens the right to keep and bеar arms.
The Second Amendment provides: “A well regulated Militia; being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const, amend. II. In District of Columbia v. Heller,
A.
The plaintiffs first argue that the $340 fee is impermissible under the standards that govern the imposition of fees on the exercise of constitutionally protected aсtivities — here, the Second Amendment right to keep and bear arms.
The Supreme Court’s fee jurisprudence, which has addressed the imposition of fees on expressive activities protected by the First Amendment, makes clear that, while the Government may not tax the exercise of constitutionally protected activities, it may impose a fee designed to defray the administrative costs of regulating the protected activity. In Cox v. New Hampshire,
Subsequent cases have thus analyzed the permissibility of fees imposed on the exercise of expressive activities by examining whether those fees were designed to defray, and did not exceed, the administrative costs of regulating the protected activity.
This standard has also been applied by those few courts that have considered fees imposed on the exercise of Second Amendment rights. See Justice v. Town of Cicero,
1.
The City Defendants contend that the $340 fee is permissible under this standard because it is designed to defray, and does not exceed, the costs of administering New York’s handgun licensing scheme. However, the plaintiffs argue that, to be permissible, a fee must not only be designed to defray administrative costs but must also be a “nominal” amount. According to the plaintiffs, the $340 fee is too high to be nominal.
[t]his sentence [from Murdock ] does not mean that ... only nominal charges are constitutionally permissible. It reflects merely one distinction between the facts in Murdock and those in Cox. The tax at issue in Murdock was invalid because it was unrelated to any legitimate state interest, not because it was of a particular size.
Id. at 137,
While it is possible to conceive of fees that are impermissible because they are so exorbitant as to deter the exercise of the protected activity, see 729, Inc. v. Kenton Cnty. Fiscal Court,
The plaintiffs also argue that, because the fees at issue are imposed directly on the basic ability to possess handguns in the home for self defense, any fee must be “nominal” to be permissible. The plaintiffs contеnd that this situation is distinct from a fee imposed on gun use that is commercial in nature or involves the use of public resources. However, the fee cases do not hold that it is only permissible to impose a fee when the constitutionally protected activity itself involves the use of public resources or the conferral of a public benefit, as with a parade permit. Instead, these cases have held that fees may also be imposed to cover the costs of a regulatory scheme designed to combat potentially harmful effects of the constitutionally protected activity, such' as the potential for fraud arising from charitable solicitations, and have not required that fees imposed in this context be only “nominal.” See Giani,
Thus, the plaintiffs’ argument that the $340 fee imposed by Admin.Code § 10-131(a)(2) is impermissible because it is not “nominal” is without merit.
2.
The plaintiffs also argue that the $340 fee is impermissible because it is not designed to defray the administrative costs of New York’s handgun licensing scheme.
The plaintiffs contend that the legislative history of Local Law 37 of 2004, which increased the handgun licensing fee to $340, suggests that the objective of the fee increase was not to defray administrative costs. The plaintiffs emphasize that the Fiscal Impact Statement (FIS) for this law made no mention of the administrative costs attendant to handgun licensing. (Jensen Decl. Ex. 22.) However, the absence of any reference to administrative costs in the 2004 FIS is not meaningful, because the FIS only provided an estimate of the fiscal impact of the law, rather than purporting to describe the law’s purpose. See Jensen Decl. Ex. 22 (detailing impact on revenues and expenditures but providing no description of arguments in favor of or in opposition to the law). That Local Law 37 had the objective of recovering
Moreover, there is no genuine dispute that the $340 fee is less than the administrative costs of the licensing scheme. The User Cost Analysis performed by the OMB in 2003 indicates that the avеrage cost to the City at that time for each handgun license application was '$343.49, more than the $340 fee at issue. (Lunetta Decl. Ex. D at 3.) In addition, a User Cost Analysis performed by the OMB in 2010 indicates that the cost to the City for each Premises Residence handgun license application was $977.16 for each initial application and $346.92 for each renewal application. (Lunetta Decl. Ex. F at 3; Ex. G at 3.) Thus, as of 2010, the fee for each Premises Residence handgun license application — the only type of license at issue here — represented only 34.79% of the per-unit costs incurred by the City. (Lunetta Decl. ¶ 19.)
The plaintiffs offer no evidence disputing or rebutting the City Defendants’ evidence that the application fees imposed by Admin. Code § 10-131(a)(2) do not exceed the administrative costs attendant to the licensing scheme.
While the plaintiffs have submitted an affidavit purportedly in compliance with Rule 56(d), this affidavit does not make a specific proffer regarding what discovery thе plaintiffs seek, why that discovery would be reasonably expected to create a genuine issue of material fact, or what effort they have made to obtain discovery. The plaintiffs moved for summary judgment without seeking, any discovery. The affidavit states only that: “Plaintiffs submit that discovery is not necessary in light of the issues .presented. However, if the Court concludes that the ‘cost’ basis for the City’s $340 fee is a dispositive factor, then discovery regarding the basis for the City’s calculations will be essential to. oppose the City’s motion.” (Suppl. Decl. of David D. Jensen at ¶ 6.) The plaintiffs have therefore failed to show that they are entitled to discovery prior to summary judgment. The City Defendants have met their burden of demonstrating that the $340 fee defrays administrative costs attendant to the licensing scheme. Thus, the $340 fee is a permissible fee imposed on the exercise of constitutionally protected activities and does not violate the Seсond Amendment.
B.
The fee imposed by Admin. Code § 10-131(a)(2) is also permissible if analyzed under the means-end scrutiny applicable to laws that burden the exercise of Second Amendment rights.
The majority of courts considering Second Amendment challenges after Heller have adopted a two-pronged analysis, whereby the court first “ask[s] whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” If the challenged law does impose such a burden, the court “evaluate[s] the law under some form of means-end scrutiny. If the law passes muster under that standard, it is constitutional. If it fails, it is invalid.” United States v. Marzzarella,
In this case, assuming, at the first step, that the $340 fee burdens conduct falling within the scope of the Second Amendment, the fee would pass muster under means-end scrutiny at the second step. Neither Heller nor McDonald prescribed the standard of scrutiny applicable to Second Amendment challenges.
Courts applying intermediate scrutiny in the Second Amendment context have concluded that the asserted governmental objective must be substantial or important and that there must be a reasonable, but not perfect, fit between the challenged regulation and the asserted objective. See, e.g., Marzzarella,
Y.
The plaintiffs next assert that Penal Law § 400.00(14) violates the Equal Protection Clause because it imposes an unequal burden on the Second Amendment rights of New York City residents as compared with other citizens of New York State.
The guarantee of equal protection ... is not a source of substantive rights or liberties, but rather a right to be free from invidious discrimination in statutory classifications and other governmental activity. It is well settled that where a statutory classification does not itself impinge on a right or liberty protected by the Constitution, the validity of classification must be sustained unless ‘the classification rests on grounds wholly irrelevant to the achievemеnt of [any legitimate governmental] objective.’
Harris v. McRae,
Rational basis review is the appropriate standard of scrutiny to apply to Penal Law § 400.00(14) because the law involves no suspect classification
Moreover, the discretion Penal Law § 400.00(14) confers upon the City to set its own licensing fees is cabined by New York law, which requires that the amount of a license or permit fee not exceed “a sum reasonably necessary to cover the costs of issuance, inspection and enforcement” and not be “exacted for revenue purposes or to offset the cost of general governmental functions.... ” ATM One L.L.C. v. Vill. of Freeport,
Penal Law § 400.00(14) plainly passes constitutional muster under rational basis review. A classification will survive rational basis scrutiny “if there is a rational relationship between the disparity of treatment and some legitimate government purpose.” Heller v. Doe,
Permitting New York City to recover the costs incurred by the licensing scheme constitutes a rational basis for the classification drawn by Penal Law § 400.00(14). See Int’l Women’s Day,
However, the plaintiffs argue that, because all jurisdictions incur costs through licensing that are far higher than the $3-$10 fee range applicable elsewhere in New York State, the objective of cоst recovery cannot justify the disparate treatment of New York City in Penal Law § 400.00(14). However, there is no-evidence that other jurisdictions sought and were denied an exemption from the $10 maximum fee at the time Penal Law § 400.00(14) was amended or at any time thereafter. The only jurisdiction to have sought such an exemption is Nassau County, seemingly also because of the fact that fees were inadequate to defray administrative costs, and this exemption was also granted. See 1973 N.Y. Laws Ch. 546; Connell Decl. Ex. G at 2-4. The fact that other jurisdictions did not also seek the exemption granted to New York City and Nassau County does not demonstrate that the classification drawn by Penal Law § 400.00(14) is discriminatory or without rational basis. While the New York State Legislature could have chosen to raise fees uniformly across the State, it chose instead to allow the two jurisdictions who made showings of administrative costs to charge higher fees to offset partially those cоsts. That was a reasonable means of achieving the legitimate objective of cost recovery. Thus, Penal Law § 400.00(14) withstands rational basis scrutiny and does not violate the Equal Protection Clause. Accordingly, the Intervenor’s and City Defendants’ motions for summary judgment are granted and the plaintiffs’ second cause of action under the Equal Protection Clause is dismissed. The plaintiffs’ motion for summary judgment with respect to this claim is denied.
CONCLUSION
The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the reasons explained above,
SO ORDERED.
Notes
. Initially, the plaintiffs also sued Eric Schneiderman, in his official capaсity as Attorney General of the State of New York. He was subsequently dismissed from the litigation, and the Attorney General then intervened in the action to defend the constitutionality of New York Penal Law § 400.00(14).
. Nassau County currently charges a fee of $200 to apply for a license that is valid for five years. (Pis.' R. 56.1 Stmt. ¶ 48; City Defs.’ R. 56.1 Resp. ¶ 48; Intervenor's R. 56.1 Resp. ¶ 48.) The plaintiffs do not challenge the amount of this fee, nor the discretion conferred on Nassau County to set its own fees pursuant to Penal Law § 400.00(14).
. Handgun license applicants must also pay an additional fee of $94.25 for fingerprinting and background checks conducted by the New York State Division of Criminal Justice Services. (Pis.’ R. 56.1 Stmt. ¶ 30; City Defs.’ R. 56.1 Resp. ¶ 30; Intervenor’s R. 56.1 Resp. ¶ 30.) The plaintiffs do not challenge this fee.
. The City Defendants also contend that the plaintiffs’ challenge is not a constitutional one because the plaintiffs can seek redress in the New York State courts in a declaratory judgment action. However, "exhaustion is nоt a prerequisite to an action under § 1983” and thus this argument is without merit. Patsy v. Bd. of Regents of Fla.,
. The Supreme Court has also explained that the amount of the fee cannot vary based on the content of the speech in question. Forsyth Cnty., Ga. v. Nationalist Movement,
. Indeed, in Cox itself, the Supreme Court affirmed the imposition of a parade license fee that ranged from what it described as "nominal” up to $300. Cox,
. The plaintiffs contend that the decision of the Court of Appeals for the Second Circuit in Abrams supports the proposition that a fee must be "nominal” to be permissible. While it is true that the district court in Abrams separately analyzed the question of whether the fee was "nominal,” Nat’l Awareness Found. v. Abrams,
. The plaintiffs initially argued that the fees recouped from handgun licensing were deposited in their entirety into the NYPD Pension Fund rather than used to defray administrative costs. However, the statutory provision upon which the plaintiffs relied in support of this argument — New York City Admin. Code § 13-203(6) — was amended in 1995 to provide that all fees collected' from handgun licensing be paid into the City of New York’s General Fund rather than the NYPD’s Pension Fund. 1995 N.Y. Laws Ch. 503, attached as Goldberg-Cahn Decl. Ex. L; N.Y.C. Admin. Code § 13-213.l(3)(c). The plaintiffs do not dispute that this amendment had the effect of directing handgun licensing fees to the City’s General Fund, rather than to the NYPD Pension Fund. (City' Defs.’ R. 56.1 Counterstmt. ¶¶ 55-59; Pis.’ R. 56.1 Resp. ¶¶ 55-59.).
. Heller noted that the handgun ban it confronted would be invalid under any level оf scrutiny.
. In Nordyke v. King,
. The plaintiffs made it clear at oral argument that they challenged only the State Statute, Penal Law § 400.00(14), under the Equal Protection Clause and not Admin. Code § 10-131(a)(2) that actually sets the amount of the license fee. (Hr’g Tr., 13, Feb. 10, 2012.)
. The classification at issue distinguishes between New York City residents and other citizens of New York State. This does not constitute a suspect classification. See City of Cleburne, Tex. v. Cleburne Living Ctr., Inc.,
. Even if Penal Law § 400.00(14) could be viewed as disparately burdening the Second Amendment right by imposing a higher fee on New York City residents, the law would still pass constitutional muster. Several courts have declined to apply strict scrutiny when considering equal protection challenges to laws that disparately burden Second Amendment rights. While noting that strict scrutiny is generally applicable to equal protection challenges to laws that disparately burden fundamental rights, these courts have concluded that the Second Amendment analysis is sufficient to protect these rights and have either declined to conduct a separate equal protection analysis or have subjected the equal protection challenge to rational basis review. See Nordyke,