LOSS at CA2: Law suit against NYC fee

[Glenn E. Meyer]

http://www.nytimes.com/2011/04/06/ny...l?ref=nyregion

Interesting tactic - the fee for NYC is much, much higher than in other NY regions. Thus the 2nd Amend Foundation is suing that it is a deliberate impediment to obtaining such.

It is also interesting that the fee doesn't go to processing the application - which might be defensible if it could be proven. Instead it goes to the police pension fund (not that they shouldn't have a pension fund). It would seem that this would be a feel good ploy.

Fun to see what happens.

[Spats McGee]

I saw this, I think, in the 2A cases thread. It certainly is an interesting attack and appears to have some potential, at least at first blush.

[Al Norris]

Mayor Bloomberg may be many things, but a dummy, he ain't.

If you remember, last summer, he tried to get the city council to lower the fee ($25 to $110), and add several restrictions at the same time. He did this, because he could see the writing on the wall. See this article, from the Gothamist.

As a politician who might have his sights on the Whitehouse, he is very aware of what battles he must fight and which ones not to fight.

Spats, yeah, you saw my announcement over in the 2A thread. And while we can discuss things there, to a point, it is best to start a specific thread to discuss the specific case. There is just too much in that 2A thread to make much meaningful discussion of. So Glenn, knowingly or not, did the right thing.

[Spats McGee]

. . . . Spats, yeah, you saw my announcement over in the 2A thread. And while we can discuss things there, to a point, it is best to start a specific thread to discuss the specific case. There is just too much in that 2A thread to make much meaningful discussion of. So Glenn, knowingly or not, did the right thing.

Oh, I wasn't knocking Glenn's decision to start a new thread. I agree that each case really needs its own discussion thread, and that the 2A thread ought to remain a "status tracking" thread.

[Al Norris]

Thanks Spats. I guess I read implications in your post that weren't there... Which is to say, yeah, I mess-up, just like everyone else. My apologies.

The SAF has filed a first amended complaint today, adding 3 more people to the list of plaintiffs. I'll be going to PACER shortly, to see if the docket is available.

[44 AMP]

There is a potential win/win in this one, no matter which way it goes, if handled correctly, I think.

If the case gets the fee reduced, all well and good. If not, making widely known to the NYC POLICE that the permit fee helps fund their pension plan might not be a bad thing....

In these times of grasping at every possible dollar, might not the desire for funding...encourage them to allow more permits, and maybe even treat permit holders a little nicer?

Of course, that might not happen, but its a nice dream...

[Al Norris]

NYPD: Mr. Citizen, what is your "good cause" to submit this application to own and possess a gun in your home?

Citizen: I wanted to donate to your pension fund!

Oh Yeah.... I can just see that!

[Spats McGee]

@ Al -- No harm, no foul.

I'd love to hear about people using "want to donate to NYPD pension fund" as their good cause!

[Glenn E. Meyer]

I wanted to reference the NY Times story. But anyway, that's interesting. If 4% of NYC got a permit (not an unreasonable figure) for $50 it would add $16 million to the pension fund. So renew every three years. So the police should support a shall issue permit.

[Al Norris]

On Monday the 26th of March, Judge John G. Koeltl denied the Plaintiffs MSJ and granted the Defendants cross-MSJ. The Opinion and order are here: http://www.archive.org/download/gov....77535.45.0.pdf

In dealing with the claims for relief, the Judge uses a very low form of intermediate scrutiny to two-step the 2A claim of burden. Then the Judge uses rational basis to do away with the Equal Protection argument.

Footnote 8 (pp 25) is rather curious:

⁸ 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 § 13-213.1(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; Pls.’ R. 56.1 Resp. ¶¶ 55-59.).

To my tired old brain, this simply begs the question: If the funds were first deposited in a pension fund, then changed to the general revenue fund, why is this not a show of excessive fees? If it costs as much as the Defendants and Court says it does, there should be no excess fees to go anywhere.

For that matter, shouldn't such funds go directly to the Police to defray the costs (ala the CA fee scheme)?

On to the 2nd Circuit....

[ltc444]

It appears to me the Court has found firearms ownership to be a fundemental right like voting. If this is the case then excessive, fees would be equivelant to a poll tax. Would an argument following the poll tax cases be effective?

[KyJim]

From just a quick read-through, here is what I think is the core holding:

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, 515 F.3d 485, 503 (6th Cir. 2008) (concluding that the Supreme Court’s fee cases “created some limit on the amount the government could charge, based on the potential for a fee to deter protected speech”), there is no showing that the $340 handgun licensing fee qualifies as such a fee. The plaintiffs merely assert that the $340 fee is excessive, which is not sufficient to raise a genuine issue of material fact regarding the permissibility of the fee. See 729, Inc. v. Kenton Cnty. Fiscal Court, 402 F. App’x 131, 133 (6th Cir. 2010) (“Merely asserting that the fee is exorbitant, without evidentiary support, is insufficient to withstand the County’s motion for summary judgment.”). There is no evidence that the fee has deterred or is likely to deter any individual from exercising his or her Second Amendment rights; indeed, all of the plaintiffs have paid the fee and have not pointed to any particular hardship they faced in doing so.

Opinion at pp. 21-22.

The opinion then goes onto discuss some legislative history indicating the cost of administering the the program was as much as or more than the $340 fee.

The fact that the money goes into the general fund, rather than earmarked for a special account, is of little relevance. Most government programs are paid through the general revenue funds; e.g., prison operating costs. The bottom line is that the plaintiffs were unable to offer any proof that the $340 fee substantially burdened their rights.

Perhaps a better factual scenario may have made the difference; a poverty stricken war hero threatened by hooligans and unable to pay the $340 fee. We should remember the maxim, "Bad facts make bad laws."

[Spats McGee]

ltc444 asked about the poll tax issue, and it got me to thinking. Actually, I've been pondering that issue for a while. Unfortunately, I haven't really had the chance to go back and re-read the briefs to see exactly how this was argued below, but I do have a shooting-from-the-hip response.

First, I think there's a solid argument to be made there, but I'm not sure it's really been made. It looks like the judge in this NY fees case did some pretty serious mental contortions to reach the decision that he did. For example, he cited one of the Heller decisions for one of his points of law, but he did not cite the final Heller decision, at least for one of his points. I'll run his citations later to see exactly where it was, but it caught my eye yesterday. Anyway the judge cited one of the earlier Heller opinions that was vacated "on different grounds" than the proposition for which he cited the case. I have not had the chance to pinpoint whether or not the "on different grounds" issue is accurate, but when a judge does something like that, it begins to look like he cherry-picked the Heller decision that he wanted to use.

Second, I can't tell from reading the decision exactly what arguments were made below, and I haven't had time to go back and read the MSJ briefs. Now, bear in mind that some courts have rejected a First Amendment analysis in relation to a Second Amendment case, but I do think that there's a way to bootstrap a similar analysis to RKBA cases. The argument was clearly made in the NY fees case that the fees were excessive, but I can't tell if there's more to it than that. If the case is appealed (& I suspect it wil be), we'll know more when the appellate briefs come out. The judge looked at the argument and basically said, "Fees from 'nominal' up to $300 have been held constitutional for parade permits, so that didn't affect the First Amendment rights." Where I think the judge missed the boat was this:

1) In the parade cases, the permit fees only burdened one possible method of exercising the First Amendment right to free speech. No parade permit is required to vote, or to write to a member of Congress, for example. They're only for parades.
2) The permit fees were (probably) used to do things like: (a) pay officers overtime to stand by & maintain order; (b) clean up litter after the parade.
3) In the NY fees case, it looks like the fees are charged in relation to every possible exercise of the RKBA. I don't know anything about NY laws on long guns, so I can't tell you if you have to pay a fee in NYC to own a long gun. Given their overal statutory scheme, I'll bet that you do. (Edited to add: According to http://www.nyc.gov/html/nypd/html/pe...DoIGetRifleApp, there is a process for getting a rifle or shotgun permit)
4) The fees used to go to the police pension fund, and now go to the general fund. Those are used for everything from administering pistol permits to street sweepers to paying the city clerks. Using the $$ to administer pistol permit stuff may be related to the fee charged, but I have a hard time seeing how (for example) paying a CI to do an underage liquor purchase is related to regulating the RKBA. Where the funds go may or may not be of particular relevance.

So, based on those 4, there are some clear distinctions between the parade permits which the judge pointed out, and the RKBA argument. One of the problems is that I haven't sorted out what was argued below. If you don't argue it, the judge own't rule on it, and the appellate court won't consider it.

[KyJim]

The poll tax analogy is a bad one. Section 1 of the 15th Amendment says:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude . . .

The poll taxes, like literacy tests, were specifically intended to, and had the effect of, keeping African-Americans from voting. Therefore, the poll taxes clearly abridged the right to vote based on race and/or previous condition of servitude in violation of the 15th Amendment.

[JimPage]

KyJim:

I assume you mean just like the 2nd Amendment says "...shall not be infringed."

Licensing laws, purchase limits etc infringe on the right. Same deal?

[Spats McGee]

You may be right, KyJim. I haven't done a great deal of research on poll taxes in recent years. A quick SCOTUS search on Westlaw shows a number of cases invalidating poll taxes. Interestingly, none of the first few that I looked at (ranging from ca. 1965-75) said anything about the 15th Amendment, but rather the 14th and 24th Amendments, primarily the 24th. (I was approaching it from a 1st Amendment train of thought.) For those following along, the 24th Amendment says:

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

U.S. Const. amend. XXIV

So it looks like we have a more specific provision on poll taxes than the 15th. That's not to say that a proper plaintiff couldn't argue violations of both Amendments. Clearly, he or she could. While doing my admittedly brief research, I did find language that could be useful in an challenge to something like the NY fee structure:

Since, in general, only those who wish to vote pay the poll tax, the tax as administered by the State is equivalent to a charge or penalty imposed on the exercise of a fundamental right. If the tax were increased to a high degree, as it could be if valid, it would result in the destruction of the right to vote. . . .

It has long been established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution. . . . ‘Constitutional rights would be of little value if they could be * * * indirectly denied,’ . . . . ‘manipulated out of existence,’ . . .

United States v. State of Tex., 252 F. Supp. 234, 254 (W.D. Tex. 1966) aff'd sub nom. Texas v. United States, 384 U.S. 155, 86 S. Ct. 1383, 16 L. Ed. 2d 434 (1966)(internal citations omitted by Spats for brevity)

In US v. State of Texas the poll tax was a "voluntary" tax in that it was only paid by those who wished to vote. Texas took no other steps to enforce the tax. This is not so dissimilar from the NY fee situation that I would call the argument, that the NY fee is impermissible as a charge or penalty imposed on the exercise of a fundamental right, entirely untenable.

[hermannr]

I think you could argue that excessive pistol permit fees also are aimed directly at the poor, which means disproportionatly at the black citizens of NYC also.

As in DC, MD, NJ, NY and MA (and Alabama actually) The discression given to restrict permits was so that "undesirables" would not/do not have access. (You can translate "undesireables" in 19th century terms if you wish)

If Alabama were to excercize their "may issue" flexability in the manner the states in the NE do, you would hear screems of discrimination and Jim Crow from the same liberal sectors that want to restrict firearm ownership in the NE even though the purpose in the NE is exactly the same as it was in Alabama pre 1960.

[Al Norris]

I've had a problem, ever since Kwong v. Bloomberg was decided at district court last March 26th. That is, the appeal. RECAP does not seem to want to acknowledge anything past the 3/26 date. So when we look at the actual docket, we can find the following:

04/18/2012 47 NOTICE OF CHANGE OF ADDRESS by David Douglas Jensen on behalf of All Plaintiffs. New Address: David Jensen PLLC, 111 John Street, Suite 230, New York, NY, USA 10038, (212) 380-6615. (Jensen, David) (Entered: 04/18/2012)

04/18/2012 48 NOTICE OF APPEAL from 45 Memorandum & Opinion,,. Document filed by Nunzio Calce, Timothy S. Furey, Daniela Greco, George Greco, Glenn Herman, Shui W. Kwong, Nick Lidakis, Second Amendment Foundation, Inc., The New York State Rifle & Pistol Association, Inc.. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Jensen, David) (Entered: 04/18/2012)

04/18/2012 Appeal Fee Due: for 48 Notice of Appeal,. $455.00 Appeal fee due by 5/2/2012. (nd) (Entered: 04/18/2012)
04/18/2012 Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 48 Notice of Appeal,. (nd) (Entered: 04/18/2012)

04/18/2012 Appeal Record Sent to USCA (Electronic File). (nd) (Entered: 04/18/2012) (I have deleted the entire record that was transmitted, for brevity - I'm left wondering if this really long record is the problem with RECAP)

05/01/2012 USCA Appeal Fees received $ 455.00 receipt number 465401036927 on 05/01/2012 re: 48 Notice of Appeal, filed by Second Amendment Foundation, Inc., Daniela Greco, Shui W. Kwong, Timothy S. Furey, Glenn Herman, George Greco, The New York State Rifle & Pistol Association, Inc., Nick Lidakis, Nunzio Calce. (nd) (Entered: 05/01/2012)

But this never seems to make it into the Internet Archive (see my note on the transmittal of records).

A further problem was accessing the CA2 record at PACER. It now appears that neither PACER or Justia made the record, until after the fee was paid. sigh.

At any rate, I have finally found both the Justia summary and the PACER docket at CA2:

Kwong v. Bloomberg. CA2 #12-1578
Justia Summary at 2nd Circuit.

The docket at PACER.

Current CA2 docket:

05/03/2012 12 CAMP CONFERENCE ORDER: Type of Conference: In-Person, Scheduled Date of Conference: 06/05/2012, Start Time: 3:00 PM, endorsed by Vidya Kurella, FILED.[598135] [12-1578]

05/03/2012 13 NOTICE OF APPEARANCE AS SUBSTITUTE COUNSEL, on behalf of Eric T. Schneiderman, FILED. Service date 05/03/2012 by CM/ECF. [598704] [12-1578]

05/03/2012 14 PAYMENT OF DOCKETING FEE, on behalf of Appellant Nunzio Calce, Timothy S. Furey, Daniela Greco, George Greco, Glenn Herman, Shui W. Kwong, Nick Lidakis, New York State Rifle & Pistol Association, Incorporated and Second Amendment Foundation, Inc., district court receipt # 465401036927, FILED.[598786] [12-1578]

05/03/2012 18 NEW CASE MANAGER, Deborah Holmes, ASSIGNED.[599170] [12-1578]

05/14/2012 19 SCHEDULING NOTIFICATION, on behalf of Appellant Nunzio Calce, Timothy S. Furey, Daniela Greco, George Greco, Glenn Herman, Shui W. Kwong, Nick Lidakis, New York State Rifle & Pistol Association, Incorporated and Second Amendment Foundation, Inc., informing Court of proposed due date 06/29/2012, RECEIVED. Service date 05/14/2012 by CM/ECF.[608353] [12-1578]

05/14/2012 20 NOTICE OF APPEARANCE AS SUBSTITUTE COUNSEL, on behalf of Appellee Michael Bloomberg and City of New York, FILED. Service date 05/14/2012 by CM/ECF. [608629] [12-1578]

05/15/2012 22 ATTORNEY, Marta Soja Ross, [20], in place of attorney Michael A. Cardozo, SUBSTITUTED.[609550] [12-1578]

05/15/2012 24 SO-ORDERED SCHEDULING NOTIFICATION, setting Appellant Nunzio Calce, Timothy S. Furey, Daniela Greco, George Greco, Glenn Herman, Shui W. Kwong, Nick Lidakis, New York State Rifle & Pistol Association, Incorporated and Second Amendment Foundation, Inc. Brief due date as 06/29/2012;. Joint Appendix due date as 06/29/2012, FILED.[609728] [12-1578]

05/16/2012 25 NOTICE OF APPEARANCE AS SUBSTITUTE COUNSEL, on behalf of Appellee Michael Bloomberg and City of New York, FILED. Service date 05/16/2012 by CM/ECF. [611586] [12-1578]

05/17/2012 26 ATTORNEY, Susan Paulson, [25], in place of attorney Marta B. Ross, SUBSTITUTED.[613307] [12-1578]

As noted above, unless an extension is requested and approved, the opening brief will be submitted by Friday, June 29, 2012.

[Al Norris]

The opening brief is in and I'm half-way through it. David Jensen is the author.

So far, as I read it, the EP claim appears to be solid.

[graystar]

When I read the original complaint I knew it was going to fail. I even contacted Jensen about it but he had his own ideas. Now he's pursuing the same failed strategy on appeal. A surprise win would be nice, but as it stands with that horrible brief, I'd bet dollars to donuts that he loses.

The first problem is that he has built his primary argument as an equal-protection case...not a 2nd Amendment case. He only uses the 2nd Amendment to support the notion that the case should be reviewed under strict scrutiny. His major problem, however, is that even under strict scrutiny, the fees are permissible. Especially since he provided no evidence that the fees aren't used to cover the costs. That's why he lost at trial.

It does seem, however, the Jensen is waking up to the fact that his argument is completely invalid by the fact that he's introduced a new issue that wasn't used in the original trial...the fact that a fee on constitutionally protected activity is impermissible. This is the argument I had told him he needed to make originally.

All we could hope for is that the equal-protection argument doesn't taint his poorly-made 2nd amendment argument, and that the judges buy the 2nd-amendment argument (even though his argument still has problems.)

[vranasaurus]

Why does the plaintiff have to prove that the fees are excessive?

Under a heightened standard of review it is the government that must justify its actions.

The government must show what the government interest is and how the interest is furthered. (This is just generally, I know it's a little more complicated than that.

Assuming that the court would apply intermediate scrutiny using 1st amendment time, place, and manner decisions as a guide.

What is the important interest that NYC is asserting to justify the fee?

How does the fee substantially further that interest?

[graystar]

Why does the plaintiff have to prove that the fees are excessive?

Because that's what he's claiming.

Under a heightened standard of review it is the government that must justify its actions.

And they have...that's the problem. There's no argument against NYC's claims that the fees are used to offset costs.

The government must show what the government interest is and how the interest is furthered. (This is just generally, I know it's a little more complicated than that.

That's only if they're restricting a right. That's the second problem, is that the argument is framed as an equal-protection argument. Governments have long been able to charge different fees based on location. Taxes in NYC are higher than anywhere else in NY, but that's constitutional because a person chooses to live there. The same argument applies to the firearm fee. So the equal-protection claim is DOA in my opinion.

Assuming that the court would apply intermediate scrutiny using 1st amendment time, place, and manner decisions as a guide.

What is the important interest that NYC is asserting to justify the fee?

How does the fee substantially further that interest?

None of that matters because the existence of the fee was never challenged...only the fact that it was different between residents of NY and of NYC. THAT was the fatal flaw that I pointed out to Jensen from the very beginning.

And he STILL doesn't challenge the fee! He tries to do so as a second issue, but does so very poorly. He challenges the existence of a 340 reoccurring fee on the core 2nd Amendment right. But what the hell does THAT mean? Would a one-time fee be acceptable? Would a 10-dollar reoccurring fee be acceptable? Here's what he says...

Because a “residence premises” handgun license is a prerequisite to exercising the “core” of one’s SecondAmendment rights, the City many not charge anything more than a nominal fee as a condition of issuing this license.

He's basically paving the way to have fees collected for doing nothing more than having a gun at home, when he should be challenging the very existence of a fee just to have a gun at home. That's why he's going to lose. And his loss is going to make it harder to have the fees eliminated.

[vranasaurus]

It makes no sense to me not to challenge the fee as a violation of the 2nd amend, either in it's entirety or based on excessiveness.

I agree, an equal protection argument based on geography doesn't get very far.

I haven't read the brief and from the sound of it doing so would give me a headache. I have given myself enough of them this past week researching my law review comment topic that I have no desire for another.

[Al Norris]

While the Plaintiffs/Appellants gave their opening arguments back in late June, the Defendants/Appellees have finally filed their response.

Unless the appellants need more time, we should have the SAF reply on or about 10/12/2012.

The response essentially states that the licensing fees are not prohibitive and that the state statute does not set a ceiling for NYC and Nassau County, it merely removed the ceiling.

What is not addressed, by any of the parties, is that the construction of the licensing scheme itself, is what causes the fees to be excessive in the first place. It is the licensing scheme that is the primary cause of the cost (see "firearms friendly" Texas, as another example of a high licensing cost).

We have seen this in several other cases... Investigating the good moral character and/or good cause of the applicant(s), in lieu of a criminal background check, is precisely what causes such fees to be vastly greater than what would be normal in the majority of other States that license possession and/or carry (see Woollard).

Not being an attorney, I can only surmise that the Woollard case was an outlier in systematically attacking those aspects of the "scheme."

[Dead]

I have more than one friend in NYC that owned handguns, but sold them due to the fees involved with keeping the license valid. They make a good living, but the fees are completely outrageous.