The New York State Rifle & Pistol Association, Inc. et al v. The City of New York et al

Filing 22

OPINION: re: 9 MOTION for Preliminary Injunction filed by Jose Anthony Irizarry, Romolo Colantone, The New York State Rifle & Pistol Association, Inc., Efrain Alvarez. Based on the conclusions set forth above, Plaintiffs' motion for a preliminary injunction is stayed pending the Court of Appeals' decision in Osterweil. (Signed by Judge Robert W. Sweet on 9/18/2013) (cd)

UNITED STATES DISTRI
COURT
SOUTHERN DISTRI
OF NEW YORK

- ---x
THE NEW YORK STATE RIFLE & PISTOL
ASSOCIATION, ROMOLO
, EFRAIN
ALVAREZ, and JOSE ANTHONY IRIZARRY,
Pia

iffs,

13 Civ. 2115(RWS)

-against-

OPINION

THE CITY OF NEW YORK and THE NEW YORK CITY
POLICE DEPARTMENT - LICENSE DIVISION,
De

s.

-x

[USDCSDNY
I

A P PEA RAN C E S:
Attorne

for Plaintiffs

GOLDBERG SEGALLA, LLP

11 Martine Avenue, Suite 750

White Plains, NY 10606

By:
Brian T. Stapleton,

DOCUMENT

I!
:1

q

I a :. II
II DATE FILED: g;20(3 d
t ELECTRON1CAILY n~ ~;')

I

Ii poe M:

Attorneys for Defendants
MICHAEL A. CARDOZO

CORPORATION COUNSEL OF THE CITY OF NEW YORK

100 Church Street, 5th Floor

New York, NY 10007

By:
Gabrielle Taussig, Esq.

Michelle Goldberg Kahn, Esq.

•

Sweet, D.J.

Plaintiffs New York State
("

), Romolo Colantone ("Colantone N
Jose Anthony I
lect

1 y,

Efain Alvarez

),

zarry ("IrizarryU and,

intiffsU) have moved for a preliminary

oining the enforcement of 38 RCNY § 5 23 (a)

injunct
23"), a regu
that governs

ion promulgated by de

cense Division (the "NYPD

Department

For

Is who have been
New York City Police
cense

reasons set forth below, t

ision

lf
)

•

motion is stayed

by the New York Court of

v. Bartlett, see 20 N.Y.3d 1058

("§5­

City of New York

t

use of handguns by indivi
license by defendant

granted a

pending a

"

& Pistol Association

f

als in Osterweil

(2013).

The Motion Is Stayed

Section 5 23(a) provides that with re
of handgun license known as a "premises license

ct to
ll

(3) To rna
in
ciency in the use of
the handgun, the licensee may transport
his/her
(s)
rectly to and from an
authori
1 arms range/shooting club,
1

type

unloaded, in a locked container,
ammunition to
carried separately.
(4) A licensee may transport his/her
handgun(s)
rectly to and from an
authorized area
signated by the New York
State Fish and
l i f e Law and in
compliance with all pertinent hunting
regulations, unloa
, in a locked
container, the ammunition to be carried
separately, after the licensee has
st
and received a "Police Department - City of
New York Hunting
rization" Amendment
attached to her/ s license.

38 RCNY § 5-23 (a) (3)

the NYPD

&

(4).

s language has

construed by

cense Division to mean that the holder of a

ses

license who possesses a handgun located in his New York City
is prohibited by law

res
outside
hunting.
~~

rom transporting that handgun

borders of New York City except for the pu

se of

See Affidavit of Romolo Colantone ("Colantone Aff.")

8, 11 12 & Exs. A & B.

Plaintif
right to

have contended that §5-23 violates

r arms under the Second Amendment because,

alia, it ef
protect themse
a secondary res
See Memorandum

ir
ter

ly precludes them from using a handgun to
s and their famil
that is locat

s if and when they reside at
outs

of New York C

Support of Plaintiffs' Motion for a

Preliminary Injunction ("Pl. Mem.") at 10 12.
2

According to

y.

Plaintiffs,

cause §5-23 proh

handgun outs
hunting,

of New York

rting a

any reason other than

y

regulation makes it illegal for a duly licensed New

York City resi
residence

its them from tran

to transport his handgun from his

imary

New York City to a second home that is located

outside of New York City.

The st

of Plaintif

' argument is

in

large part upon the construction of New York Penal Law § 400.00
("§400.00"), whi
licenses.

is the New York State law governing firearm

Subsection (a) (3) of §400.00 provides that an

application for a license to carry a firearm

shall
and renewed,
e case of a
license to carry or possess a pistol or
revolver, to the licensing officer in the
licant resides, is prine
lly
employed or has his principal place of
business as merchant or store
r.

N.Y. Penal L. § 400.00(a)(3)

rlined language

particularly the wo

rstood literally, and t
vidual to apply

(emphasis added).

fore read as

If the
"resides" - is
ting an

r a handgun license with the licensing

officer of the city or county

which he has a residence, the
3

cogency of Plaintiffs'

second-home argument suffers

considerably, as their complaint could be met with a rejoinder
to simply acquire a handgun license from the county in which the
second home is located, and keep a gun in that home for use when
it is being used as a residence.

See Memorandum in Reply and

Further Support of Plaintiffs' Motion for a Preliminary
Injunction ("Pl. Reply") at 6 & n.

However,

6.

if the underlined language above is

understood as creating a domicile requirement -

i.e., mandating

that an individual may only apply for a handgun license in the
city or county in which his primary residence is located - the
combined effect of §400.00(a) (3)

and §5-23 would be to preclude

an individual whose primary residence is in New York City from
applying for a handgun license from any licensing authority
other than the NYPD License Division, which as noted above only
grants licenses that are subject to the restrictions set forth
in §5-23, including the prohibition on transporting a handgun
outside of the city limits for reasons other than hunting.
Accordingly,

reading a domicile requirement into §400.00(a) (3)

would essentially render it impossible for a resident of New
York City to lawfully exercise what the Supreme Court has held
to be the "core" right protected by the Second Amendment - "the
4

ri

to self-defense in the home."

F.3d 139, 141 (2d Cir. 2013)

Osterweil v. Bartlett, 706
of Columbia v.

(cit - " ' ----

Heller, 554 U.S. 570 (2008)).

Under this statutory rubric, the

ation at issue in this case would
rigorous level of judicial scrutiny
the requirement were merely res

The question of whet

would be employed if
ial in nature.

r §400.00(a) (3) implicates an

individual's domicile or res

has

certified by the

Second Circuit to the New York Court of Appeals,
706 F.3d at 140-45, and t
accepted the certified

1 The precise question
Appeals is as follows:

r more

a

1

see Osterweil,

New York Court of Appeals has
st

, see Osterweil v. Bartlett, 20

has been certified to the Court of

Is an applicant who owns a part-time
residence in New York but makes his
permanent
ile elsewhere eligible for a
New York handgun license in the city or
county
re his
rt-time residence is
located?
Osterweil, 706 F.
at 145. While the circumstances in
Osterweil that
rise to this question are
fferent than
those present in
instant case, as the pIa
iff there is
domiciled
state, see id. at 140, rat r
an (as
here) in a
licensing jurisdiction, it
ars likely
that the Court of
Is' response to the question will entail
a determinat
of the question that is relevant to the
tant
case, namely whether or not §400.00(a) (3) pe
s an individual
to apply
a handgun license in the city or county where he
merely has a residence, even if he is not domicil
that
licensing jurisdiction.
5

N.Y.3d 1058 (2013), and the matter is schedul
argument on

for oral

r 12, 2013.

Since

Court of

Is' dete

ion of this

stion is likely to have a material effect upon the analysis
of

instant mot

, and since argument on the question is

scheduled for the near future,
mot

it is appropriate to stay the

pending a decision from the Court of

Osterweil.

See Cobalt Multifamil

857 F. Supp. 2d 419, 423-24

Is in

Investors I

(S.D.N.Y. 2012)

(fi

LLC v.
ng that

grounds for a stay existed where the Second Ci

t certified a

series of quest

Is in an

unrela

to the New York Court of

case, and

answers to

se questions "would impact

adjudication of the claims pending in this litigation"); Salcedo
v. Phill

, No. 04 C

. 7964

*1 (S.D.N.Y. Oct. 22, 2007)

(PAC)

(GWG) , 2007 WL 3097208, at

(same); cf. In re CSI Hal

ng Co.,

Inc., No. 01 Civ. 0131 (KMW) , 2010 WL 2287013, at **5-6 (denying
motion to stay despite
since it was unclear that
would

ing question to the Court
Court of

fact impact the case, and addit

Is' dete

0

Appeals
ation

lly "[tJhe Court

See Court of Appeals, State of New York
Certified
stions
(500.27), ht ://www.
s.gov/ctapps/certquest.htm (last
visited
t 19, 2013).
2

6

cannot

ermine when the New York Court of Appeals is likely to

rule on t

Certi

Questions) .

Conclusion

Based on the conclusions set forth above,

Plaintiffs'

motion for a preliminary injunction is stayed pending the Court
of Appeals' decision in Osterweil.

It is so ordered.

New York, NY
2013

I¥
U.S.D.J.

7