Case Information
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
MONTGOMERY BLAIR SIBLEY,
Plaintiff, Case # 19-CV-6517-FPG DECISION AND ORDER v.
CHAUNCEY J. WATCHES, solely in his
official capacity as a New York Consolidated
Laws, Penal Law 265.00(10) Licensing Officer;
ANDREW MARK CUOMO, solely in his official
capacity as the Chief Administrative Officer of the State
of New York; JAMES L. ALLARD, solely in his official
capacity as Sheriff of Steuben County, New York;
BROOKS BAKER, solely in his official capacity as
District Attorney of Steuben County; and KEITH M.
CORLETT, solely in his official capacity as
Superintendent of the New York State Police;
Defendants.
___________________________________
INTRODUCTION
Pro se Plaintiff Montgomery Blair Sibley brings this action under 42 U.S.C. § 1983 challenging the constitutionality of New York State’s handgun licensing laws. ECF No. 18.
Several motions are pending before the Court: (1) Defendant Chauncey J. Watches’ Motion to Dismiss the Amended Complaint (ECF No. 27); (2) Defendants Keith M. Corlett and Andrew Mark Cuomo’s Motion to Dismiss the Amended Complaint (ECF No. 32); (3) Sibley’s Motion for Partial Summary Judgment (ECF No. 38); (4) Defendants James L. Allard and Brooks Baker’s Cross Motion to Dismiss [1] the Amended Complaint (ECF No. 40); and (5) Sibley’s Motion for Oral Argument and Ratio Decidendi (ECF No. 47).
Because the substance of the motions substantially overlap, the Court considers all of the
parties’ arguments and motions together.
See Schreiber v. Friedman
, No. 15-CV-6861 (CBA)
(JO),
BACKGROUND The following facts are taken from the Amended Complaint unless otherwise noted. ECF No. 18. In November 2017, Sibley moved from Washington, D.C. to Corning, New York, and brought two handguns and a cane sword with him. On July 18, 2018, Sibley applied for a “carry concealed” handgun license in Steuben County, New York. Id. at 17-19. He disclosed the possession of his two handguns on the application. The application triggered an investigation, including a series of background checks. To the best of Sibley’s knowledge, these all came back negative for any criminal or mental health history.
On December 28, 2018, as part of the investigation, Sibley was interviewed by a Steuben County Sheriff’s Deputy. Following the interview, the Deputy told Sibley that possessing his handguns in his home without a license was illegal under N.Y. Penal Law § 265.01(1) and advised Sibley to get rid of them pending the application process. Accordingly, Sibley removed his handguns (and cane sword) from New York. In March 2018, he legally purchased a shotgun.
On May 29, 2019, Defendant Chauncey J. Watches, a Steuben County judge and handgun licensing officer, sent Sibley a letter denying his handgun license application. ECF No. 18 at 20.
The denial letter stated that “the decision [was] based upon concerns expressed in the Sheriff’s investigation,” specifically “concerns about your being sufficiently responsible to possess and care for a pistol” and concerns “that your history demonstrates that you place your own interest above the interests of society.” Id. The letter advised Sibley that he had the right to request a hearing at which he could testify and present witnesses. Id.
On June 14, 2019, Sibley requested a hearing. Id. at 21. He also requested copies of all reports and communications that Watches received in the course of the investigation and copies of any legal or educational authorities he used to guide his decision to deny Sibley’s application. Id .
On June 25, 2019, Watches set a hearing for July 31, 2019 but denied Sibley’s document requests as lacking a legal basis. Id. at 22.
Before the hearing could take place, on July 9, 2019, Sibley brought the instant action in this Court challenging Watches’ initial denial of his handgun license application and the constitutionality of New York’s handgun licensing laws. ECF No. 1. Sibley later filed an Amended Complaint, which is the operative pleading. ECF No. 18.
The hearing was continued until January 10, 2020. On December 17, 2019, Sibley moved for a preliminary injunction in this Court to stop the hearing. ECF No. 23. This Court denied his motion on January 6, 2020. ECF No. 29. The January 10, 2020 hearing went forward as scheduled.
While Sibley awaited Watches’ final decision after the hearing, the parties engaged in extensive motion practice before this Court. On March 26, 2020, Sibley filed a Supplemental Memorandum based on “changed circumstances,” informing the Court and the parties that Watches had denied Sibley’s handgun license application on March 9, 2020. ECF No. 44-1.
Sibley submitted Watches’ decision, in which Watches found that Sibley had failed to demonstrate “good moral character” as required by N.Y. Penal Law § 400.00(1)(b). His decision explained:
Western civilization has long recognized that good moral character is the ideal state of a person’s beliefs and values that provides the most benefit to a healthy and worthy society. Good moral character is more than having an unblemished criminal record. A person of good moral character behaves in an ethical manner and provides the Court, and ultimately society, reassurance that he can be trusted to make good decisions. Aldo Leopold said that “ethical behavior is doing the right thing when no one else is watching—even when doing the wrong thing is legal.” Given the nature of the responsibility involved with the handling of a dangerous weapon, the Court must be assured of the applicant’s ability to follow the law and abide by rules and regulations necessary to protect the safety of the individual and society. The Court must also have a basis to trust that the applicant’s character is such that he will behave in an ethical manner where there are no written rules. The evidence presented does not provide the Court with assurance that Mr. Sibley can follow specific laws, rules and regulations let alone behave in an ethical and responsible manner necessary to be granted a pistol permit. In short, Mr. Sibley has failed to demonstrate his good moral character.
The Court first notes that Mr. Sibley has been suspended from the practice of law in the State of Florida, the District of Columbia and the State of New York as well as various federal courts. This gives the Court pause in considering Mr. Sibley’s application. The Preamble to the New York Rules of Professional Conduct notes that a lawyer, as a member of the legal profession, is an officer of the legal system with special responsibility for the quality of justice. A lawyer has a duty to uphold the legal process and demonstrate respect for the legal system as well as further the public’s understanding of and confidence in the rule of law and the justice system. Because Mr. Sibley has failed to maintain these duties as an officer of the legal system, the Court lacks confidence that Mr. Sibley will follow both the explicit and implicit rules inherent in the responsibility of a pistol permit holder. Even assuming, arguendo, that Mr. Sibley has somehow rehabilitated himself from the circumstances that led to his disbarment, his testimony at the hearing belies any such notion. During his testimony, Mr. Sibley argued that although his actions as an attorney may have been vexatious and meritless they were not frivolous. This is a distinction without a difference and factually incorrect. In 2006, the Florida Supreme Court held that Mr. Sibley’s “frivolous and abusive filings must immediately come to an end” and found sanctions appropriate. Sibley v. Fla. Judicial Qualifications Comm’n ,973 So.2d 425 , 427 [2006]. Even after his disbarment, Mr. Sibley has continued to pursue frivolous litigation in various courts. As recently as 2018, Mr. Sibley was sanctioned by the United States District Court for the District of Maryland for his “frivolous and vexatious litigation strategy.” CarMax Auto Superstores. Inc. v. Sibley ,2018 U.S. Dist. LEXIS 169864 , *9 [Md. October 2, 2018].
Finally, this Court agrees with the Fourth Department’s assessment of Mr.
Sibley: “Respondent, by his conduct, has demonstrated his disregard and disrespect
for the judiciary as well as his absence of remorse.”
Based on Mr. Sibley’s application, the testimony presented to the Court, the evidence received and upon due deliberation, the Court confirms the denial of the pistol permit application of Montgomery Sibley. Upon his readmission to the bar of New York, Mr. Sibley may submit a new application for a pistol permit.
ECF No. 44-1 at 11-13.
LEGAL STANDARDS
I. Federal Rule of Civil Procedure 12(b)(6)
A complaint will survive a motion to dismiss when it states a plausible claim for relief.
Ashcroft v. Iqbal
,
II. Federal Rule of Civil Procedure 12(c)
“The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same
as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim.”
Cleveland v. Caplaw
,
III. Federal Rule of Civil Procedure 56
Summary judgment is appropriate when the record 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
,
Ins. Co.
,
DISCUSSION
I. New York’s Handgun Licensing Laws
“New York maintains a general prohibition on the possession of ‘firearms’
[2]
absent a
license.”
Kachalsky v. Cty. of Westchester
,
N.Y. Penal Law §§ 265.01(1) and 265.20(a)(3) criminalize the unlicensed possession of
handguns, while § 400.00 establishes “the exclusive statutory mechanism for the licensing of
firearms in New York State.”
Kachalsky
,
To obtain a handgun license under § 400.00, applicants must be over 21 years old, have “good moral character,” have no history of crime or mental illness, and demonstrate no “good cause” to deny the license. Id . at 86 (citing N.Y. Penal Law § 400.00(1)(a)-(d), (g)). The types of licenses available include “premises” licenses for at-home possession and “concealed carry” licenses for possession in public. See N.Y. Penal Law § 400.00(2)(a), (f). An applicant seeking a concealed carry license must show “proper cause,” i.e. , a special need for self-protection. Kachalsky , 701 F.3d at 86 (citing N.Y. Penal Law § 400.00(2)(f)).
The application process is administered locally and triggers a police investigation into the applicant’s mental health and criminal history, moral character, and, for concealed carry licenses, representations of proper cause. Id. at 87. The investigation includes a series of background checks whose results are reported to the local licensing officer. Id.
“Licensing officers, often local judges, are vested with considerable discretion in deciding whether to grant a license application[.]” Id. (citation and quotation marks omitted). “An applicant may obtain judicial review of the denial of a license in whole or in part by filing a proceeding under Article 78 of New York’s Civil Practice Law and Rules. A licensing officer’s decision will be upheld unless it is arbitrary and capricious.” Id.
II. Sibley’s Claims
Sibley raises five claims challenging New York’s handgun licensing laws and prohibition against cane swords.
First, although Sibley applied for a “carry concealed” license and not a “premises” license
(and was thus never denied a premises license), he claims that he should not have to apply for a
license
at all
to possess a handgun in the home. He maintains that under the Supreme Court’s
decisions in
District of Columbia v. Heller
,
Sibley’s second claim seeks an injunction to stop Defendants from enforcing N.Y. Penal Law § 265.01(1) against him so that he can possess a handgun at home, and a cane sword at home and in public, without a license. ECF No. 18 at 10.
Sibley’s third claim challenges N.Y. Penal Law § 400.00’s licensing criteria. Specifically, Sibley challenges §§ 400.00(1)(b) and (n), which require applicants to have “good moral character” and show no “good cause” to deny a handgun license. He seeks a judicial declaration that these provisions, both facially and as applied, are void for vagueness and overbroad; encourage arbitrary and discriminatory enforcement; and violate his First Amendment, Fourteenth Amendment, and Equal Protection rights, as well as his rights under the Privileges and Immunities clause.
Sibley’s fourth claim challenges N.Y. Penal Law § 400.00’s licensing process. He claims that § 400.00 improperly allows evidentiary hearings without any established procedures, ignores New York’s Administrative Procedures Act, and prohibits applicants from subpoenaing witnesses and documents. He also claims that the licensing process was deficient as applied to him because Watches considered ex parte information and communications, denied Sibley’s application before giving him a chance to submit evidence and legal argument in his favor, failed to sufficiently articulate the reasons for the denial of Sibley’s application, and failed to timely adjudicate Sibley’s application. He seeks a judicial declaration that N.Y. Penal Law §§ 400.00(1)(b) and (n), both facially and as applied to him, violate the due process guarantees of the Fifth and Fourteenth Amendments, the New York State Constitution, and New York administrative law. ECF No. 18 at 12-13.
Finally, Sibley’s fifth claim alleges that an Article 78 proceeding would be a “meaningless” avenue for review of Watches’ decision because it sets forth no objective standards against which to measure a licensing officer’s decision. He seeks a judicial declaration that Article 78, both facially and as applied to him, violates the Fourteenth Amendment due process guarantees, the New York Constitution, and New York administrative law. ECF No. 18 at 14-15.
III. Handgun Analysis
In this section, the Court addresses each of Sibley’s five claims as they relate to handguns.
The Court addresses Sibley’s claims related to cane swords in Section IV below.
A. First Claim: Constitutionality of N.Y. Penal Law § 256.01(1)
Sibley’s first claim challenges the constitutionality of N.Y. Penal Law § 265.01(1), which
criminalizes the unlicensed possession of handguns. This claim has multiple aspects. First, Sibley
argues that § 265.01(1) is unconstitutional because it requires licensure of handguns even for
possession at home, where the Second Amendment right to bear arms in self-defense is at its
“zenith.”
Kachalksy
,
1. Standing to Challenge N.Y. Penal Law § 256.01(1) as to In-Home Possession Defendants argue that Sibley lacks standing to challenge New York’s handgun licensing laws as they relate to in-home possession because he did not apply for a premises license. Indeed, this Court has held “[a] plaintiff lacks standing to challenge [New York State’s] licensing laws if he fails to apply for a firearms license in [New York].” Libertarian Party v. Cuomo , 300 F. Supp.
3d 424, 433 (W.D.N.Y. 2018). There is an exception to the rule, however, when a plaintiff makes a substantial showing that his application would have been futile. Id.
Sibley argues that this exception applies to him here: he claims that a premises application would be futile because his concealed carry application has already been denied based on his lack of “good moral character,” which is a requirement for both premises and concealed carry licenses.
The Court is not persuaded. The Second Circuit has recognized that home and public
possession of firearms are “very different context[s].”
Kachalsky v. County of Westchester
, 701
F.3d 81, 89 (2d Cir. 2012);
see also id
. at 94 (holding that “[t]he state’s ability to regulate
firearms . . . is qualitatively different in public than in the home” and that “the state’s ability to
regulate firearms [in the home] is circumscribed.”);
Toussaint v. City of New York
, No. 17-CV-
5576 (NGG) (VMS),
LEXIS 100657, at *2-3 (S.D.N.Y. June 17, 2019) (describing a “premises license” as “not difficult to come by,” in contrast with a “concealed carry” license). Thus, while the “good moral character” criterion applies to both premises and concealed carry licenses, it is not clear that Watches would find Sibley unfit to possess a handgun in his home just because he decided he is unfit to possess a handgun in public. Nevertheless, the Court considers Sibley’s arguments on the merits below.
2. Constitutionality of N.Y. Penal Law § 265.01(1)’s Licensure Requirement for Handgun Possession in the Home
Sibley claims that he “‘has a problem’ with New York’s licensing procedure” because it violates his Second Amendment right bear arms in his home, where the “need for defense of self, family, and property is most acute.” ECF No. 46 at 3 (quoting Heller , 544 U.S. at 628). He therefore argues that pursuant to Heller , “New York cannot unilaterally criminalize all handgun possession in the home . . . and then impose an obtuse licensing procedure that de facto denies possession of a handgun in the home.” ECF No. 46 at 3 (emphasis omitted). The Court understands this argument to suggest that New York may not require licenses at all for handgun possession in the home. The Court disagrees.
Heller and McDonald indeed held that the Second Amendment right to keep and bear arms is strongest when exercised for self-defense in the home. See Kachalsky , 701 F.3d at 93 (explaining that under Heller , “the ‘core’ protection of the Second Amendment is the ‘right of law- abiding, responsible citizens to use arms in defense of hearth and home’”).
However,
Heller
and
McDonald
also made clear that “the right is not unlimited” and does
not entitle citizens “to keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.’”
Heller
,
2016);
see also United States v. Jimenez
,
Further, as this Court previously observed in
Libertarian Party
,
Heller
and
McDonald
“did
not hold that a state’s firearms licensing laws were unconstitutional[.]”
Rather, in
Heller
, “the plaintiff conceded that licensure is constitutional, and the Court did not
question that concession.”
Berron
,
Moreover, other courts have rejected similar challenges to firearm licensure laws since
Heller
and
McDonald
were decided.
See, e.g.
,
United States v. Focia
,
2015). Thus, Sibley has not shown that N.Y. Penal Law § 256.01(1) is unconstitutional under Heller and McDonald merely because it requires a license for possession of handguns in the home.
3. Intermediate Scrutiny Applies to Challenges to N.Y. Penal Law § 265.01(1), and §265.01(1) Satisfies that Standard
Taking a different tack, Sibley also argues that N.Y. Penal Law § 265.01(1) violates the
Second Amendment because it fails strict scrutiny. ECF No. 38-1 at 10.
See Abrams v. Johnson
,
The Second Circuit and “district courts in this Circuit have continually chosen to apply
‘intermediate scrutiny’ to general challenges under the Second Amendment, even when reviewing
statutes or laws that may restrict the possession of [weapons] in the home.”
Avitabile v. Beach
,
Becker
,
This Court has likewise previously determined that intermediate scrutiny is appropriate to
analyze challenges to New York’s handgun licensing laws and has found that the laws satisfy that
standard.
See Libertarian Party
,
Supp. 3d at 443 (quoting
Aron
,
Sibley presents no reason for this Court to depart from its holding in Libertarian Party here. Accordingly, the Court finds that intermediate scrutiny applies to Sibley’s challenge to N.Y.
Penal Law § 265.01(1), and that §265.01(1) satisfies that standard. Sibley’s claim that strict scrutiny is required fails.
4. Due Process Finally, Sibley argues that N.Y. Penal Law § 265.01(1) is “akin to a complete ban without a scintilla of due process” because it “criminalizes the entire adult population of . . . New York without any prior notice or an opportunity to be heard from possessing a handgun in their home for self-defense.” ECF No. 38-1 at 10 (emphasis omitted). This argument also misses the mark.
Section § 265.01(1) does not deny citizens prior notice or an opportunity to be heard before criminalizing the unlicensed possession of handguns in the home. “When the legislature passes a law which affects a general class of persons, those persons have all received procedural due process – the legislative process. The challenges to such laws must be based on their substantive compatibility with constitutional guarantees.” Richmond Boro Gun Club v. City of N.Y ., 97 F.3d 681, 689 (2d Cir. 1996) (quoting 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 17.8 (2d ed. 1992)); see also id. (“Procedural due process has not been violated in this case because plaintiffs can (and do) challenge the legislative ordinance in federal or state court on the ground that it violates their substantive state or federal rights.”).
Accordingly, Sibley’s first claim regarding handguns is dismissed with prejudice. B. Second Claim: Injunctive Relief
Because the Court finds that N.Y. Penal Law § 265.01(1) does not violate the Second Amendment as to handguns, Sibley’s request for an injunction prohibiting the Defendants from enforcing it against him is denied and his second claim is dismissed with prejudice.
C. Third Claim: Constitutionality of N.Y. Penal Law § 400.00(1)(b) and (n) In his third claim, Sibley challenges N.Y. Penal Law §§ 400.00(1)(b) and (n), which provide that “no license shall be issued . . . except for an applicant . . . (b) of good moral character . . . and (n) concerning whom no good cause exists for the denial of the license.” He argues that these provisions are void for vagueness because they encourage arbitrary and discriminatory enforcement, are overbroad, and violate the First Amendment, the Equal Protection clause, and the Privilege and Immunities clause. All of these arguments fail.
1. Void for Vagueness “A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” Clavin v. Cty. of Orange , 620 F. App’x 45, 48 (2d Cir. 2015) (summary order) (quoting Hill v. Colorado , 530 U.S. 703, 732 (2000)). Here, Sibley argues that N.Y. Penal Law §§ 400.00(1)(b) and (n) permit arbitrary and discriminatory enforcement. ECF No. 38-1 at 14. He challenges these provisions both facially and as applied.
a) Facial Challenge
“A facial challenge is an attack on a statute itself as opposed to a particular application.”
City of L.A. v. Patel
,
2017) (quoting
Dickerson
,
Sibley argues that his case raises the “first impression” issue of whether N.Y. Penal Law §§ 400.00(1)(b) and (n) infringe upon his First Amendment rights. ECF No. 30 at 11-14. He asserts that, by denying him a handgun license based on his “ideas and viewpoints as expressed in his litigations and petitions,” Watches discriminated against Sibley in violation of his First and Fourteenth Amendment rights. ECF No. 30 at 11.
The Court finds that Sibley fails to state a First Amendment violation. Rather, Sibley’s
argument that Watches discriminated against him falls squarely under a Fourteenth Amendment
vagueness claim.
See Clavin
,
Indeed, Sibley does not allege or argue that the denial of a handgun license restrains or chills his
speech. And although Sibley suggests that Watches discriminated against him based on his
previously expressed viewpoints, he asserts no First Amendment retaliation claim in his Amended
Complaint.
See Aron
,
Accordingly, the Court finds that Sibley has not raised a First Amendment claim that would
permit him to assert a facial vagueness challenge to N.Y. Penal Law §§ 400.00(1)(b) and (n). Even
if he had, this Court and others in this Circuit have previously held that §§ 400.00(1)(b) and (n)
are not facially vague.
See, e.g.
,
Libertarian Party
,
b) As-Applied Challenge “[A]n as-applied challenge requires that a plaintiff show that the challenged statute is unconstitutional when applied to the particular facts of his or her case” Copeland , 230 F. Supp.
3d at 248;
see also Field Day, LLC v. Cty. of Suffolk
,
Unsurprisingly given this procedural posture, Sibley’s as-applied challenge has not been
sufficiently briefed. In an as-applied challenge, “[f]actual context and [the challenger’s]
circumstances are critical.”
United States v. Laurent
,
Penal Law § 400.00, the statute’s context indicates that the criterion is “clearly cabined by” public
safety concerns and “is not some esoteric standard devoid of parameters, but rather is a measure
used to assess the suitability of the applicant to gain licensure to possess a potentially deadly
weapon like a pistol. While the good moral character criteria is not defined with meticulous
specificity, the standard contains the flexibility and reasonable breadth necessary to achieve the
objective of N.Y. Penal Law Article 400.”);
see also Matter of Zedek v. Kelly
,
Accordingly, Sibley’s as-applied challenge to N.Y. Penal Law §§ 400.00(1)(b) and (n) is dismissed without prejudice.
2. Overbreadth, Equal Protection, and Privileges and Immunities While Sibley’s Amended Complaint conclusorily alleges that N.Y. Penal Law §§ 400.00(1)(b) and (n) are overbroad and violate his Equal Protection and Privileges and Immunities rights, these allegations are boilerplate and Sibley advances no argument on these claims. The Court finds that they are meritless.
“Under the First Amendment doctrine of overbreadth, a statute is invalid when it brings within its scope—and thus threatens to chill—conduct protected by the First Amendment.” U.S.
v. Sattar
, 314 F. Supp. 2d 279, 304 (S.D.N.Y. 2004). As discussed above, Sibley has not
established that N.Y. Penal Law §§ 400.00(1)(b) and (n) threatens to chill expressive conduct
protected by the First Amendment. Accordingly, his overbreadth claim is dismissed.
See
Libertarian Party
,
As for his Equal Protection claim, Sibley has not alleged that he was treated differently
than similarly situated individuals, or that he was discriminated against “based on impermissible
considerations such as ‘race, religion, intent to inhibit or punish the exercise of constitutional
rights, or malicious or bad faith intent to injure a person.’”
Mishtaku v. City of N.Y
., No. 14-CV-
839 (VSB),
Bloomberg
,
Finally, the Privileges and Immunities Clause deals with the right to travel from state to state. See Bach v. Pataki , 408 F.3d 75, 87 (2d Cir. 2005). Sibley makes no allegations or arguments addressing how N.Y. Penal Law §§ 400.00(1)(b) and (n) infringe on this right.
Accordingly, Sibley’s Overbreadth, Equal Protection, and Privileges and Immunities claims are dismissed without prejudice.
D. Fourth Claim: Procedural Due Process Challenge to N.Y. Penal Law § 400.00 In his fourth claim, Sibley argues that New York’s procedure for adjudicating handgun license applications fails to satisfy due process rights under the Fourteenth Amendment. ECF No.
38-1 at 19. He complains that New York’s procedure was deficient because Watches considered ex parte information and communications, denied Sibley’s application before giving him a chance to submit evidence and legal argument in his favor, failed to sufficiently articulate the reasons for the denial of Sibley’s application, failed to timely adjudicate Sibley’s application, and violated New York’s Administrative Procedure Act. ECF No. 38-1 at 19-26.
The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “To assert a claim under Section 1983 based on an alleged violation of procedural due process, plaintiff must plead (1) he possesses a liberty or property interest protected by the Constitution or a federal statute, and (2) he was deprived of that liberty or property interest without due process.” Clavin , 620 F. App’x at 47-48.
“A liberty interest may arise from the Constitution itself, by reason of guarantees implicit
in the word ‘liberty,’ or it may arise from an expectation or interest created by state laws or
policies.”
Wilkinson v. Austin
,
Here, Defendants argue that Sibley cannot show a liberty or property interest in a concealed carry license under the authority in this circuit.
As to property interests, “[c]ourts within this Circuit have held that because a New York
State government official’s issuance of a pistol permit is a discretionary act, an individual has no
property interest in holding such a permit.”
El ex rel. Letite v. DeProspo,
No. 1:19-CV-8426 (CM),
June 17, 2019) (finding no protectable interest in “business carry” license due to License
Division’s broad discretion);
Toussaint
, 2018 U.S. Dist. LEXIS 152985, *16 (dismissing case
because the plaintiff could not show a protected liberty or property interest in a possible future
handgun license);
Moore v. City of New York
, No. 15-CV-6600,
However, as to liberty interests, at least one court from this circuit has recognized that,
“[t]o the extent . . . that the Second Amendment creates an individual right to possess a firearm
unrelated to any military purpose, it also establishes a protectible liberty interest.”
United States
v. Arzberger
,
3d 197, 219 (E.D. Pa. 2019) (recognizing a protected liberty interest in the right to bear arms);
Doe
v. Wolf
, No. 16-6039,
The Court need not decide whether Sibley has a liberty or property interest protected by
the Fourteenth Amendment because in any event, “[w]hatever level of process was due in this
case, it was available in the form of an Article 78 proceeding before the New York State Supreme
Court.”
Montalbano v. Port Auth. of N.Y. & N.J
.,
Authority
,
Accordingly, Sibley’s fourth claim is dismissed with prejudice.
E. Fifth Claim: Constitutionality of Article 78 Proceedings For the reasons discussed directly above, the Court finds that an Article 78 Proceeding provides a constitutionally adequate avenue for Sibley to seek review of Watches’ decision. Sibley has not sought review of Watches’ decision in an Article 78 proceeding. However, his claim that he should not be required to do so because such a procedure would be meaningless is dismissed with prejudice.
IV. Cane Sword Analysis
In his first and second claims, Sibley asserts that the Second Amendment protects his right to possess a cane sword both at home and in public, and that N.Y. Penal Law § 265.01(1) unconstitutionally infringes on that right by completely banning the possession of cane swords.
The question is whether the Second Amendment protects the possession of cane swords.
“The Second Amendment protects only the ‘sorts of weapons’ that are (1) ‘in common use’ and
(2) ‘typically possessed by law-abiding citizens for lawful purposes.’”
N.Y. State Rifle & Pistol
Ass’n v. Cuomo
,
Singas
,
Here, Defendants ask the Court to dismiss Sibley’s claims as to cane swords because that weapon is not in common use today. ECF No. 40 at 9-10; ECF No. 50 at 9-10. Defendants argue that Sibley has failed to plead that cane swords are in common use today, and that he only asserts that cane swords were commonly used in the Eighteenth Century. Id. Neither party addresses whether cane swords are typically possessed by law-abiding citizens for lawful purposes.
Even if it were enough to simply show that cane swords are not in common use, that is an
issue of fact which is inappropriate for resolution on a motion to dismiss. And while Sibley filed
a motion for summary judgment and a Rule 56 statement asserting that cane swords are in common
use, he cites no objective evidence in support. Similarly, while “there is no defined analytical
standard for what constitutes ‘typical possession by law-abiding citizens for lawful purposes’ and
‘reliable empirical evidence’ of such possession is ‘elusive,’” Defendants must still prove this issue
by clear and convincing evidence.
Maloney
,
Accordingly, Defendants’ motions to dismiss Sibley’s claims as to the cane sword (claims 1 and 2) are denied. Sibley’s motion for summary judgment as to the cane sword claims are likewise denied.
V. Dismissal of Certain Parties
As a final matter, three of the Defendants seek dismissal of the claims against them for reasons independent of the merits of the claims.
First, Defendants Watches seeks dismissal of Sibley’s first and second claims against him because he has nothing to do with Sibley’s possession of a handgun or cane sword in the home.
The Court agrees. Watches only denied Sibley’s concealed carry license application. Sibley’s allegation that N.Y. Penal Law § 265.01(1) is unconstitutional because it criminalizes the unlicensed possession of handguns in the home and all possession of cane swords fails to state a claim against Watches.
Next, Defendant Allard, the Steuben County Sheriff, and Defendant Baker, the Steuben
County District Attorney, seek dismissal of all the claims against them. Sibley sued these
Defendants in their official capacities only. “A claim asserted against an individual in his official
capacity . . . is in effect a claim against the governmental entity itself[.]’”
Lore v. City of Syracuse,
Here, Sibley only alleges that Allard “is responsible for enforcing the State of New York’s customs, policies, practices and laws related to the enforcement of N.Y. Penal Law § 265.00” and that Baker “has a duty to conduct all prosecutions for crimes and offenses cognizable by the courts of Steuben County, including all crimes under N.Y Penal Law § 265.00” ECF No. 18 ¶¶ 6-7. He does not allege that any of Steuben County’s own policies caused him constitutional harm, that Steuben County had a meaningful choice as to whether it would enforce N.Y. Penal Law § 265.00, that Steuben County made a conscious choice to enforce it, or that Steuben County made a policy to enforce it in an unconstitutional manner. Vives , 524 F.3d at 353, 356; see also generally Schnitter v. City of Rochester , 556 F. App’x 5, 9 (2d Cir. 2014) (summary order) (affirming dismissal of claims against Monroe County and the City of Rochester where the plaintiff merely named Monroe County as a defendant without making specific allegations against it and only made “formulaic recitations that the city’s policies contributed to the illegal conduct that allegedly deprived [the plaintiff] of his rights”).
The Court accepts this argument with respect to Defendant Allard, the Steuben County Sheriff, and dismisses all claims against him with prejudice.
The Court rejects this argument, however, as to Defendant Baker, the Steuben County District Attorney. This is because, “[w]hen prosecuting a criminal matter, a district attorney in New York State, acting in a quasi-judicial capacity, represents the State and not the county.” Bellamy v. City of N.Y ., 914 F.3d 727, 757 (2d Cir. 2019)). “When a plaintiff mounts a constitutional challenge against a particular state statute, the proper defendant is typically the state official charged with enforcing the statute.” Aron , 48 F. Supp. 3d at 379 (citing Diamond v.
Charles
,
Courts in this Circuit have held that district attorneys are proper defendants in suits
challenging the constitutionality of state laws.
See, e.g.
,
Avitabile
,
Supp. 2d 205, 211 (E.D.N.Y. 2007) (dismissing claim challenging constitutionality of § 265.01(1) against the Attorney General and the Governor and citing Baez for the proposition that the district attorney alone decides whether to prosecute). [6] Accordingly, Baker’s motion to dismiss on this basis is denied.
CONCLUSION
For the foregoing reasons, the Court concludes as follows:
1. Defendants’ motions to dismiss (ECF Nos. 27, 32, and 40) are GRANTED except as otherwise stated herein. Sibley’s motion for summary judgment (ECF No. 38) is DENIED.
2. All of Sibley’s claims are dismissed with prejudice as to Defendant Allard. The Clerk of Court is directed to terminate Allard as a party.
3. Sibley’s first and second claims are dismissed with prejudice as to Defendant Watches.
4. Sibley’s first and second claims as to handguns are dismissed with prejudice as to all Defendants.
5. Sibley’s third claim is dismissed without prejudice as to Defendants Watches, Baker, Cuomo, and Corlett. [7]
6. Sibley’s fourth and fifth claims are dismissed with prejudice as to all Defendants. 7. Sibley’s Motion for Oral Argument and Ratio Decidendi (ECF No. 47) is GRANTED IN PART AND DENIED IN PART. Oral argument is denied. By way of this Decision and Order, the Court has granted the motion for Ratio Decidendi.
8. Sibley may file a second amended complaint by June 19, 2020.
IT IS SO ORDERED.
Dated: May 18, 2020
Rochester, New York
_________________________________________________ HON. FRANK P. GERACI, JR. Chief Judge
United States District Court
Notes
[1] This motion is styled as a Cross-Motion to Dismiss, but it cites Federal Rule of Civil Procedure 12(c), which governs motions for judgment on the pleadings.
[2] “Firearms” include pistols and revolvers (“handguns”), shotguns and rifles less than certain lengths, and assault weapons. Rifles and shotguns over certain lengths (“longarms”) do not require a license. N.Y. Penal Law § 265.01(3).
[3] N.Y. Penal Law § 265.01(1) criminalizes the possession of handguns (and cane swords), while § 265.20(3) provides an exemption from criminalization for those who obtain a handgun license. Sibley does not explicitly challenge § 265.20(a)(3) but the two sections work together to criminalize the possession of handguns without a license (and the possession of cane swords completely).
[4] Sibley’s first claim does not explicitly attack N.Y. Penal Law § 400.00; it only references § 265.01. But these laws
work together: § 265.01(1) criminalizes handguns, § 265.20(a)(3) provides an exemption to criminalization for those
who possess a license, and § 400.00 governs the licensing criteria and procedures.
See Aron
,
[5] Municipalities include counties.
See Silver Star Ass’n v. Cty. of Oswego
,
[6] For this reason, the Court is skeptical that Governor Cuomo is a proper party.
See Wang v. Pataki
, 164 F. Supp. 2d
406, 410 (S.D.N.Y. 2001) (dismissing Governor as a defendant in a suit challenging constitutionality of a state statute
where there were no allegations that the Governor had any connection with the enforcement of the statute “other than
the general duty to take care that the laws be faithfully executed”);
see also Warden v. Pataki
,
[7] It is not clear if Sibley brings this claim against all Defendants. If Sibley files a second amended complaint, he is directed to state within each claim the Defendants against which he seeks relief and include allegations of their personal involvement.