Christine PANZELLA, Plaintiff-Appellee-Cross-Appellant v. Michael J. SPOSATO, Individually and in his Official Capacity, Unknown Sheriffs #2 Through 4, Nassau County, Nassau County Sheriff‘s Department, Robert Mastropieri, Individually and in his Official Capacity, Unknown Sheriff, #1 With Shield #116, Defendants-Appellants-Cross-Appellees
Docket Nos. 15-2825-cv (Lead), 15-2891-cv (XAP)
United States Court of Appeals, Second Circuit
July 17, 2017
Argued: June 12, 2017; Amended: July 18, 2017
For the reasons set forth below, the order of the district court is AFFIRMED to the extent that it grants Panzella an injunction. The appeal is DISMISSED in all other respects.
ROBERT JAMES LA REDDOLA, La Reddola, Lester & Associates, LLP, Garden City, New York, for Plaintiff-Appellee-Cross-Appellant
ROBERT F. VAN DER WAAG, Deputy County Attorney, for Carnell T. Foskey, Nassau County Attorney, Mineola, New York, for Defendants-Appellants-Cross-Appellees
Before: CALABRESI, POOLER, Circuit Judges, VILARDO,** District Judge.
GUIDO CALABRESI, Circuit Judge:
This case arose after the County of Nassau, the Nassau County Sheriff‘s Department, and various officers (collectively, the “Defendants“) refused to return Plaintiff Christine Panzella‘s longarms1 that had been seized in connection with a New York Family Court temporary order of protec-
I. BACKGROUND
Because this case involves the interplay between New York Family Court orders of protection and various state and federal laws, we first set forth an overview of the relevant legal framework.
A. Article 8 of the New York Family Court Act
Under
is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.
If the Family Court issues the order ex parte, the Court must hold a hearing regarding the surrender within fourteen days of the date the order was issued.
“Although
The burden of deciding whether to return the firearms is thus principally put on the Supreme Court, “which does not have comparable knowledge or background on cases litigated in the Family Court.” Id. The determination, moreover, is left “to a judge who is not familiar with the history of the family, the parties, and any alleged violence that may have transpired resulting in the issuance of the order of protec-
B. Factual Background
On June 22, 2012, Panzella‘s ex-husband filed a petition under
Refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats or any criminal offense against [Panzella‘s ex-husband].
App. at 50. There is no dispute that a hearing was not held in connection with the issuance of the Temporary Order.
The Temporary Order contained the federal warning language, informing Panzella that, pursuant to
On June 27, 2012, four Deputy Sheriffs from the Nassau County Sheriff‘s Department, under the supervision of Sheriff Michael Sposato and Deputy Sheriff Robert Mastropieri, served the Temporary Order on Panzella, and, upon learning that she had firearms and longarms in her home, confiscated them.
On November 27, 2012, after a hearing at which Panzella appeared, the Family Court extended the Temporary Order to January 22, 2013. Subsequently, on March 6, 2013, her ex-husband withdrew his petition. The Court, then, dismissed the entire protection proceeding.
On several occasions thereafter, Panzella requested the return of her longarms. Defendants have thus far denied her requests, and have informed her that because her longarms were seized in connection with a lawful order under
C. Procedural History
On October 11, 2013, Panzella filed a “Class Action Complaint”4 against Defendants, alleging: (1) violation of her Fourteenth Amendment due process rights; (2) violation of her Second Amendment right to bear arms; and (3) a Monell claim against the County, Sheriff Sposato, and Deputy Sheriff Mastropieri. She also brought state law claims for replevin and conversion and sought punitive damages and legal fees. Along with her request for damages, Panzella asked the court, inter alia, to “[i]ssue temporary, preliminary and permanent injunctions” directing Defendants to conduct post-deprivation hearings pursuant to Razzano v. County of Nassau, 765 F.Supp.2d 176 (E.D.N.Y. 2011), for all longarms “owned by [Panzella] and Class Members that are currently in the possession of Defendant.” App. at 37-38.
On November 27, 2013, Defendants filed a motion to dismiss Panzella‘s suit pursuant to
The court first dismissed, with prejudice, Panzella‘s claims against the Nassau County Sheriff‘s Department, holding that “[a]s an administrative arm of Nassau County, the . . . Department is not a suable entity.” Panzella v. Cty. of Nassau, No. 13-CV-5640 (JMA)(SIL), 2015 WL 5607750, at *5 (E.D.N.Y. Aug. 26, 2015).5
The court then granted Panzella‘s motion for summary judgment as to her Fourteenth Amendment due process claim against the County. The court relied on Razzano, recognizing that although that case “addressed factually distinct circumstances,”6 it was nevertheless persuasive
The district court concluded that, after the Temporary Order expired, Panzella should have been afforded a hearing under the following conditions, as set forth in Razzano:
First, the post-deprivation hearing must be held before a neutral decision-maker.
Second . . . , the right to a prompt post-deprivation hearing only applies to seized longarms that are not (1) the fruit of a crime, (2) an instrument of crime, (3) evidence of a crime, (4) contraband, or (5) barred by court order from being possessed by the person from whom they were confiscated.
Third, at the hearing, Nassau County shall have the burden of showing that it is likely to succeed in court on a cause of action . . . to maintain possession of the seized longarms.
Fourth, if the person deprived of long-arms prevails at the hearing, the long-arms must be returned, barring an order to the contrary from a court to whom that finding is appealed. If, by contrast, Nassau County prevails at the hearing, Nassau County must timely commence a proceeding by which it seeks to maintain possession of the long-arms in question.
Id.; accord Razzano, 765 F.Supp.2d at 191.
Because no such hearing had been held, the district court granted Panzella‘s motion for summary judgment and ordered the County to hold a due process hearing, consistent with Razzano, within thirty days of the court‘s decision. Panzella, 2015 WL 5607750, at *7.
The district court then granted the individual Defendants qualified immunity, granted the Defendants’ motion for summary judgment as to Panzella‘s Second Amendment claim, denied Panzella‘s request for punitive damages, and denied both parties’ motions for summary judgment on Panzella‘s state law claims as “premature until the due process hearing ordered by the Court has been held.” Id. at *12.
II. DISCUSSION
A. Appellate Jurisdiction
Defendants argue that we have jurisdiction over this appeal because the district court‘s order “rejected the defense of immunity for the defendants as to the one claim not dismissed.” Appellants-Cross-Appellees’ Opening Br. at 1. By using the phrase “the one claim not dismissed,” the Defendants appear to refer to Panzella‘s due process claim on which the district court granted relief. But the district court granted injunctive relief as to this claim, and “[q]ualified immunity shields . . . defendants only from claims for monetary damages and does not bar actions for declaratory or injunctive relief.” Adler v. Pataki, 185 F.3d 35, 48 (2d Cir. 1999). Because the district court did not deny qualified immunity as to Panzella‘s damage claims, Defendants’ asserted ground for appellate jurisdiction is not present.7
Panzella argues that we have jurisdiction to review the district court‘s order under
We do, however, have jurisdiction under
B. Injunctive Relief: Due Process Hearing
“We review the district court‘s ruling on cross-motions for summary judgment de novo, in each case construing the evidence in the light most favorable to the non-moving party.” Nat. Res. Def. Council, Inc. v. U.S. Dep‘t of Agric., 613 F.3d 76, 83 (2d Cir. 2010); see also Clear Channel Outdoor, Inc. v. City of New York, 594 F.3d 94, 103 (2d Cir. 2010) (noting that the scope of review does not change in the context of cross-motions for summary judgment).
The facts relevant to this appeal are largely undisputed. Both parties agree that Defendants confiscated Panzella‘s longarms, and that the County, through the Sheriff‘s Department, has a policy of doing so even when an order of protection issued by the Family Court does not explicitly order the Defendants to confiscate firearms pursuant to
Panzella claims that the County‘s Retention Policy violates her Fourteenth Amendment due process rights because the County refused to hold a hearing regarding the return of her longarms after the order of protection against her was dismissed. The County, however, argues that the district court erred in requiring it to hold such a hearing. The County further argues that state law leaves it powerless to return firearms after they have been seized pursuant to an order from the Fam-
The County also claims that Panzella could bring an Article 78 Petition in the New York Supreme Court to obtain an order directing the return of her longarms. This, according to the County, provides adequate process under
The Fourteenth Amendment commands that “No State shall . . . deprive any person of . . . property, without due process of law.”
As to the first of these “Mathews factors,” there is no dispute that Panzella has a property interest in her longarms and that the County‘s retention of her longarms affected that interest.
As to the second factor, although Panzella could initiate an Article 78 proceeding in the New York Supreme Court, such a proceeding would be “likely to take a substantial amount of time.” Razzano, 765 F.Supp.2d at 188. Furthermore, Article 78 proceedings place the burden on the person whose property was taken, requiring that person to “give up not only time, but also money to initiate a lawsuit and [usually] retain an attorney.” Id.; cf. Alexandre v. Cortes, 140 F.3d 406, 409 n.5 (2d Cir. 1998) (“It seems to me a shocking thing that our police can seize a citizen‘s property and then when he seeks to get it back challenge him to prove his title to the satisfaction of a jury.” (citation omitted)). In light of the burdens an Article 78 proceeding places on the person whose longarms have been taken, we conclude there is a significant risk of erroneous deprivation of that person‘s interests in her longarms.9
Nor has the County provided any evidence that the type of hearing proposed by Panzella—a prompt post-deprivation hearing consistent with the conditions set forth in Razzano, id. at 191—would be overly burdensome. Indeed, as the district court noted, and as the County has not disputed, the County‘s police department routinely holds this kind of hearing, given that it is required to do so by the order in Razzano, and given the County‘s more general role in granting pistol licenses. There is no clear reason why the police department could not readily perform the same service in cases such as the one at bar.11
We conclude that Panzella‘s proposed alternative to an Article 78 proceeding—a prompt, post-deprivation hearing consistent with the conditions set forth in Razzano, id. at 191—would prevent the unjustified deprivation of a person‘s property interest, and would not be unduly burdensome or costly to the government. Such a hearing would provide Panzella with a timely and inexpensive forum to challenge the County‘s retention of her longarms and would avoid placing on Panzella the burdens that inhere in an Article 78 proceeding.
We therefore hold, consistent with the district court‘s decision in the instant case, and the decision in Razzano, that persons in Panzella‘s situation are entitled to a prompt post-deprivation hearing under the four conditions set forth by the district court in this case and in Razzano. See Panzella, 2015 WL 5607750, at *7; Razzano, 765 F.Supp.2d at 191.
III. CONCLUSION
For the reasons set forth above, the order of the district court is hereby AFFIRMED to the extent it grants Panzella