Thomas v. City Of New York et al

Filing 50

OPINION AND ORDER.....The defendants' July 20, 2018 motion to dismiss the FAC is granted. The Clerk of Court is directed to enter judgment for the defendant and close the case. (Signed by Judge Denise L. Cote on 10/24/2018) (gr) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
DEVON THOMAS,
:
Plaintiff,
:
-v:
:
THE CITY OF NEW YORK, THE NEW YORK
:
CITY POLICE DEPARTMENT, THE NEW YORK
:
CITY POLICE DEPARTMENT LICENSE
:
DIVISION, JAMES P. O’NEILL, Police
:
Commissioner of the City of New York, :
JONATHAN DAVID, Director of the New
:
York City Police Department License
:
Division, and Detective JOSEPH COOK
:
(Shield No. 6694),
:
Defendants.
:
:
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18cv2781(DLC)
OPINION AND ORDER

APPEARANCES:
For the plaintiff:
Cindy N. Brown
Peter H. Tilem
188 East Post Road, 3rd Floor
White Plains, New York 10601
For the defendants:
Zachary W. Carter
Corporation Counsel of the City of New York
100 Church Street
New York, New York 10007
Sheryl Neufeld
Mark Muschenheim
Darren Trotter,
of counsel
DENISE COTE, District Judge:
Plaintiff Devon Thomas (“Thomas”) alleges that his two
handgun licenses were revoked in violation of the Equal
Protection and Due Process Clauses of the U.S. Constitution.

The defendants have moved to dismiss the first amended complaint
(“FAC”).

For the reasons that follow, the motion is granted.

Background
The following facts are drawn from the FAC and attached
supporting documents.

Thomas is an African-American male who

has a history of dismissed arrests.

He was arrested in 1999 and

2008 by defendant New York City Police Department (“NYPD”), and
in 2011 in Nassau County.

All three of his arrests were

dismissed and sealed, and Thomas was paid substantial sums by
the NYPD to settle false arrest claims arising from the 1999 and
2008 arrests.
In 2013, Thomas was issued two handgun licenses -- a
Restricted Concealed Carry Guard license and a Gun Custodian
license -- by defendant NYPD License Division (“the License
Division”), in connection with his work as a security guard.
Information about his past arrests was available to the License
Division and appears to have been considered by the License
Division before Thomas’s license applications were approved.
On June 20, 2014, Thomas was observed by NYPD officers at a
political rally with his firearm exposed in a holster outside
his clothing.

He was wearing cargo pants and a tee shirt with

no visible insignia identifying him as a security guard.
officers advised him not to display his firearm.
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The

The terms of

Thomas’s Restricted Concealed Carry handgun license required
that the firearm was to be carried concealed and not visible to
the public.

This restriction is, however, not typically

enforced when a legally armed guard is on duty in full uniform
with his or her firearm carried in a holster worn as part of
that uniform.

These details were reported to the License

Division’s Incident Unit, and an investigation was commenced,
but no action was taken as a direct result of this incident
(“the 2014 incident”).
On April 21, 2016, Thomas was observed in the NYPD’s 25th
Precinct with his firearm again exposed outside his clothing.
He later testified that he had gone to the 25th Precinct after
work to visit a friend who was retiring.

Thomas’s Restricted

Concealed Carry Guard license is restricted to the days and
hours that he is actually engaged in employment as a security
guard and travel between work and his residence.

This incident

(“the 2016 incident”) was reported to the Incident Unit and an
investigation was undertaken.
On May 2, 2016, the License Division sent Thomas a
suspension notice which directed him to surrender his firearms
and forward his licenses to the License Division Incident
Section.
2016.

Thomas did not voucher his firearm until July 12,

On September 1, 2016, the License Division issued a

Notice of Determination informing Thomas that both of his
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licenses were revoked due to: 1) “The facts and circumstances
surrounding your incident on 4/21/16 for failure to follow rules
of the License Division (Title 38);” 2) “Failure to notify the
License Division that you were the recipient of a criminal court
summons and that an order of protection was issued against you;”
3) “Your history of arrests and incidents;” and 4) “Your failure
to abide by the Rules and Regulations governing your firearms
licenses.”
Thomas appealed, and on February 1, 2017, he was issued a
notice that a hearing would be held on his appeal on February
15, 2017.

That notice informed Thomas: “On the scheduled

hearing date you must be prepared to present all the relevant
information, documentation, and witnesses necessary to support
your case.”

A hearing was held on February 15, and on October

30, 2017, the License Division issued a Final Agency
Determination informing Thomas that his licenses were revoked.
The hearing report attached to the Final Agency Determination
cited his failure to voucher his firearms at his local precinct
after being directed in writing to do so “immediately” on May 2,
2016; his violation of the major restrictions of his Carry Guard
permit; his failure to inform the License Division that he had
been the subject of an Order of Protection; and his deliberately
false testimony at the hearing.

The hearing officer

specifically stated in her report that she “ma[d]e no finding
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about the 1999, 2008, and 2011 arrests.”

She further noted that

“such information of these arrests as was available in the
License Division files in 2013 appears to have been carefully
considered by the License Division director, who approved the
issuance of Mr. Thomas’ current CG permit after appeal.”
Thomas filed his initial complaint in this action on March
29, 2018.
2018.

Defendants moved to dismiss that complaint on June 8,

On June 29, 2018, Thomas filed the FAC.

Defendants’

renewed motion to dismiss was filed on July 20, 2018, and became
fully submitted on August 10.
In his FAC, Thomas asserts claims arising under the Second
and Fourteenth Amendments, Sections 1981 and 1983 of Title 42 of
the United States Code, and Title VI of the Civil Rights Act.
He principally alleges that the License Division has a “policy”
of considering dismissed arrests in making handgun license
determinations, that this policy disproportionately impacts
African Americans because they are statistically more likely to
have dismissed arrests, and that the policy is a result of
intentional discrimination against African Americans in
violation of the Equal Protection Clause of the Fourteenth
Amendment.
Thomas further alleges that the notice and hearing he
received with respect to the License Division’s revocation of
his handgun licenses did not comport with constitutional
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procedural due process standards.

Specifically, he alleges that

the September 1, 2016 Notice of Determination -- which listed
the four grounds supporting the license revocations -- did not
adequately apprise him of the grounds that the License Division
would ultimately rely upon in revoking his licenses, and that
the February 1, 2017 hearing notice did not adequately apprise
him that he would bear the burden at the hearing of proving that
his licenses should not be revoked.

Discussion
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”

Cohen v. Rosicki,

Rosicki & Assocs., 897 F.3d 75, 80 (2d Cir. 2018) (citation
omitted).

A claim to relief is plausible when the factual

allegations in a complaint “allow[ ] the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Progressive Credit Union v. City of New

York, 889 F.3d 40, 48 (2d Cir. 2018) (citation omitted).

A

court “must accept as true all of the allegations contained in a
complaint, though threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.”

Carlin v. Davidson Fink LLP, 852 F.3d 207, 212 (2d

Cir. 2017) (citation omitted).
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I.

Thomas’s Equal Protection Claims

“To state a discrimination claim under the Fourteenth
Amendment Equal Protection Clause and/or § 1981, plaintiffs must
sufficiently allege that defendants acted with discriminatory
intent.”

Burgis v. New York City Dept. of Sanitation, 798 F.3d

63, 68 (2d Cir. 2018).

Discriminatory intent need not be the

only motivation for the defendants’ conduct.

“A plaintiff can

establish a prima facie case of disparate treatment by showing
that animus against the protected group was a significant factor
in the position taken by the municipal decision-makers
themselves or by those to whom the decision-makers were
knowingly responsive.”

Mhany Management, Inc. v. County of

Nassau, 819 F.3d 581, 606 (2d Cir. 2016) (citation omitted).
Discriminatory intent may be inferred from statistical evidence,
but to show discriminatory intent in an “Equal Protection case
based on statistics alone, the statistics must not only be
statistically significant in the mathematical sense, but they
also must be of a level that makes other plausible nondiscriminatory explanations very unlikely.”

Burgis, 798 F.3d at

69.
As an initial matter, Thomas has not plausibly plead that
his dismissed arrests had any bearing on the License Division’s
final decision after appeal.

In the hearing report accompanying

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the Final Agency Determination, which Thomas attached to his
complaint, the hearing officer specifically stated that she was
not relying on the arrests in making her decision and that,
indeed, the License Division was aware of the arrests when
Thomas first applied for his licenses and those licenses were
issued.
The complaint does allege, however, that the dismissed
arrests were considered in the initial revocation decision
communicated in the Notice of Determination of September 1,
2016.

Even if it were relevant to consider this allegation

about an intermediate decision, Thomas has failed to plausibly
allege a violation of the Equal Protection Clause.

His

disparate impact claim fails because he does not plausibly
allege that the License Division acted with discriminatory
intent.

Thomas relies on broad, conclusory allegations of

intent for which he has plead no factual support.

In his

complaint, Thomas alleges that his “race was a motivating
factor” in the License Division’s decision, that the License
Division acted “with the purpose of depriving Plaintiff of the
equal protection and benefits of the law,” and that the License
Division’s policy of considering dismissed arrests “allows
Defendants to intentionally discriminate against AfricanAmerican applicants.”

Each of these are conclusory statements

that fall short of Thomas’ pleading burden.
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In support of his allegations of intentional
discrimination, Thomas additionally states in his complaint that
African-American handgun license applicants “are intentionally
discriminated against because African-Americans have a greater
number of arrests dismissed by percentage than Caucasians.”

The

fact of disparate impact cannot on its own establish
discriminatory intent.

This is not the sort of statistical

evidence of discriminatory intent that “makes other plausible
non-discriminatory explanations very unlikely.”
F.3d at 69.

Burgis, 798

Thomas also cites the long history of racism in the

United States, going back as far as Dred Scott v. Sanford.

This

has no bearing on whether these particular defendants acted with
discriminatory intent on this particular occasion.

Finally, he

cites to specific instances of corruption within the NYPD as
evidence of the License Division’s bad faith.

Again, these

general allegations offer no indication that the License
Division or any other defendant acted with racially
discriminatory animus in revoking Thomas’s handgun licenses or
in creating a “policy” of considering dismissed arrests.1

In

It is also unclear, based upon the information contained in the
FAC, whether a “policy” of considering arrests exists. In
support of this allegation, Thomas cites only one example of an
African-American whose handgun license application was denied in
part because of his history of dismissed arrests. But even if
the License Division does have such a policy, Thomas has not
plausibly alleged that it developed that policy as a result of
discriminatory animus.
1

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short, Thomas has failed to “specifically allege . . .
circumstances giving rise to a plausible inference of racially
discriminatory intent.”

Yusuf v. Vassar College, 35 F.3d 709,

713 (2d Cir. 1994).
II.

Thomas’s Due Process Claim

Thomas’s procedural due process claim is predicated upon
insufficient notice.2

“The touchstone of due process . . . is

the requirement that a person in jeopardy of serious loss be
given notice of the case against him and the opportunity to meet
it.”

Spinelli v. City of New York, 579 F.3d 160, 169 (2d Cir.

2009) (citation omitted).

The notice must describe the

misconduct with sufficient particularity.

Id. at 172.

The particularity with which alleged misconduct must
be described varies with the facts and circumstances
of the individual case; however, due process notice
contemplates specifications of acts or patterns of
conduct, not general, conclusory charges unsupported
by specific factual allegations.
Id.
Thomas alleges that he did not have adequate notice before
the hearing of the grounds on which the hearing officer would
ultimately recommend that his license be revoked.

Specifically,

Thomas, in his opposition to the motion to dismiss,
additionally predicates his due process claim on undue delay.
He does not plead this in the FAC, and it is not appropriately
considered at this stage.
2

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he alleges that he had no notice that he was charged with 1)
engaging in a pattern of violating the restrictions of his
license, 2) failing to voucher his firearm when directed, and 3)
providing false testimony in the hearing.

The hearing officer,

he argues, was thus precluded from relying on these grounds in
making her recommendation.

But the Notice of Determination from

which Thomas appealed does apprise him that his license was
revoked due to “the facts and circumstances surrounding your
incident on 4/21/2016 for failure to follow rules of the License
Division,” “your history of . . . incidents,” and “your failure
to abide by the Rules and Regulations governing your firearms
licenses.”

He was thus adequately apprised before the hearing

of the factual circumstances that precipitated the License
Division’s decision to revoke his licenses.

It was, of course,

impossible to give him advance notice that the hearing officer
would find his hearing testimony to be false.
Thomas also alleges that he was not notified that he would
bear the burden at the hearing of proving that his licenses
should not be revoked.

But the hearing notice that was issued

on February 1, 2017, specifically stated: “On the scheduled
hearing date you must be prepared to present all the relevant
information, documentation, and witnesses necessary to support
you case.”

Moreover, Thomas was represented by counsel at the

administrative hearing, and it is well-established New York law
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that the burden of proof in an administrative hearing is on the
party who initiated the proceeding.

See N.Y. A.P.A. § 306.

Thomas’s reliance on Spinelli, 579 F.3d 160, is misplaced.
In that case, as here, the regulations provided that a license
suspension “will result in the issuance of a Notice of
Determination Letter to the licensee, which shall state in brief
the grounds for the suspension or revocation and notify the
licensee of the opportunity for a hearing.”
38 R.C.N.Y. § 1-04(f)).

Id. at 172 (citing

The Second Circuit found that this

requirement had not been complied with, and the notice provided
to the licensee was constitutionally inadequate.

The court

specifically noted that, “[h]ad this regulation been complied
with, the notice might have been sufficient, depending on the
specificity of the grounds provided and the promptness of the
hearing.”

Id.

Thomas does not contend that the License

Division failed to comply with the notification requirements set
forth in the Rules of the City of New York, and indeed the
Notice of Determination that he received pursuant to the
regulation is attached to his complaint.

See 38 R.C.N.Y. § 5-

30(h) (“If her/his license is suspended or revoked, the licensee
shall be issued a written Notice of Determination Letter, which
shall state in brief the grounds for the suspension or
revocation of the license and notify the licensee of the
opportunity for a hearing.”)
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Additionally, as of the filing of this action, Thomas was
awaiting the outcome of an administrative appeal under Article
78 of the New York Civil Practice Law.

The Second Circuit has

“held on numerous occasions that an Article 78 proceeding is a
perfectly adequate postdeprivation remedy . . . .”

Hellenic Am.

Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881
(2d Cir. 1996) (collecting cases).

While “[p]laintiffs suing

under 42 U.S.C. § 1983 generally need not exhaust their
administrative remedies,” Roach v. Morse, 440 F.3d 53, 56 (2d
Cir. 2006), the availability of an Article 78 proceeding to
correct any alleged procedural errors is fatal to Thomas’s
procedural due process claim.
III. Thomas’s Second Amendment Claim
In his opposition to this motion to dismiss, Thomas cites
out of circuit precedent for the proposition that the Second
Amendment protects a right to carry a handgun outside the home.
Even if that precedent were binding on this Court, Thomas’s FAC
does not challenge the constitutionality of the New York State
and New York City laws governing the issuance of his handgun
license, and that issue is not appropriately raised at this
stage.

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Conclusion
The defendants’ July 20, 2018 motion to dismiss the FAC is
granted.

The Clerk of Court is directed to enter judgment for

the defendants and to close this case.
SO ORDERED:
Dated:

New York, New York
October 24, 2018

____________________________
DENISE COTE
United States District Judge

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