LOSS at CA2: Law suit against NYC fee - Page 3

esqappellate · March 17, 2013, 08:26 PM

Perfect Thanks

esqappellate · March 18, 2013, 02:28 PM

BTW, the Judges here in Kwong are Judges: Jose A. Cabranes (appt. 94), Ralph Winter (appt 81) and John Walker (appt 94). Cabranes and Winter are both on senior status, Walker is still active and thus presided. These are all very reputable judges.

02/01/2013 81 CASE, before JAC*, JMW, RCW, C.JJ., HEARD.[833908] [12-1578]

Tymah123 · March 19, 2013, 02:32 PM

Didn't listen to the tapes but can someone tell me what was the outcome of the hearing? I'm very curious since we have to pay $400 iirc every 3 years for me, another fee for my wife and one for my long guns. It'd be nice not to pay that going forward. Thanks in advance!

esqappellate · March 19, 2013, 04:13 PM

No result yet. look for a decision in 3 months or so.

press1280 · March 19, 2013, 04:22 PM

Just as in the NJ CCW case, the judges are asking if the logic behind the law was nothing more than an attempt at restricting the right, and in this case keeping the poor from owning firearms. A statement from the law that passed in 1947(from the bill's sponsor): Another reason for the institution of this bill is the feeling that a
higher fee, if the City Council considers it wise to impose same, will tend to
discourage a great number of possible applicants who are better off, both as
concerns themselves and the welfare of this City as a whole, without the
possession of fire-arms. In this way the additional fee as well as covering the
costs of investigation, thereby insuring their continued high caliber, would, of
itself, eliminate a certain percentage of applications, principally in that class
where the possession of fire-arms is desired for reasons of bravado and like
dangerous reasons.

Tymah123 · March 19, 2013, 04:36 PM

Thanks for the summary!

Al Norris · July 9, 2013, 02:35 PM

In other news today, the CA2 has upheld the district court and says that the licensing scheme of NYC does not burden the 2A and that the City is allowed to recoup all costs of administering its licensing scheme.

The majority opinion used rational basis while the concurring opinion used "intermediate scrutiny."

The implications of this opinion are outrageous... Apply this to a scheme of voter licensing and registration.

press1280 · July 9, 2013, 04:30 PM

This opinion is an absolute disgrace. They almost seemed as if any fee would be acceptable as long as the plaintiffs paid it. Of course, you can be sure these same judges would also say someone who couldn't pay it wouldn't have standing to sue. The Federal courts, save CA7, are actively engaged in trying to smother the 2A.

csmsss · July 9, 2013, 04:30 PM

They keep repeating that the $340 fee doesn't exceed NYC's administration costs - but never ask the question why the NYC administration costs are 100 times higher than other parts of New York state.

Al Norris · July 24, 2013, 08:47 AM

Yesterday, 23 July, David Jensen filed a petition for rehearing and en banc hearing. The petition is very good, but don't expect the petition to be granted. This is preparatory to filing a petition for a grant of cert at the SCOTUS.

The petition includes the panel decision, only the first 19 PDF pages are the actual petition.

Al Norris · September 21, 2013, 10:34 PM

The request for rehearing has been denied.

Thanks to esqappellate at MDShooters for this.

press1280 · September 22, 2013, 08:01 AM

This leaves a pretty dangerous precedent. Now a locality can make an inefficient, burdensome permit system and charge thousands of dollars per year, and its just fine by CA2. What a joke that court is. I hope they get cert but I'm not holding me breath.

L2R · September 22, 2013, 08:13 AM

Sounds like a forced contribution but a contribution none the less.

At the very least, could they deduct it from their IRS/state taxes?

Luger_carbine · November 24, 2013, 07:50 AM

Some time has gone by and I haven't heard news of a writ of certiorari.

Jensen has until December 20th -23rd (somewhere in there) to file an appeal right?

Is there any indication that David Jensen will appeal?

Al Norris · November 24, 2013, 03:56 PM

To the best of my knowledge, the case will be appealed.

I haven't checked but the timeline you suggested seems to be about right.

Davey · November 25, 2013, 09:55 AM

I imagine a SCOTUS case would have to argue against the fee rather than anything related to a second amendment violation.

Al Norris · November 25, 2013, 02:23 PM

This case is about more than nominal fees, for permission, on the core right to keep arms in the home for "defense of hearth and home."

Yes, it is a direct and substantial burden on the exercise of the 2A. That is how it will be argued. The system in NYC was designed at the outset to hinder, as much as was possible, the citizens right to defend his home. Whether or not that point will be argued is probably foreclosed, as it was not really briefed either at District or at Appeals.

Al Norris · December 17, 2013, 10:09 PM

Time to file for cert has been extended by Justice Ginsburg. New date is Feb. 3, 2014.

Luger_carbine · December 22, 2013, 12:33 PM

I came across this blog on Kwong v Bloomberg which I thought was interesting:

Unpacking Kwong v. Bloomberg: How Constitutional Review May Be More Dangerous Than Guns Themselves

http://ramblingsonappeal.blogspot.co...mberg-how.html

Something that I totally missed before, which I think was initially found only in Judge Walker's opinion, that the fee helps keep the public safe.

But then repeated by Susan Paulson council for NYC:

Quote:

Susan Paulson, lead counsel for New York City, remarked in a public statement that she was pleased with the Second Circuit’s decision because it “properly recognized that the City’s licensing process is designed to promote public safety and prevent gun violence.”

I don't remember this being talked about in orals at all, and I only see this briefly mention in item 13 in the Statement of Undisputed Facts submitted by Attorney General of the State of New York, and the plaintiff's response:

http://www.archive.org/download/gov....77535.33.0.pdf

Quote:

In 1947, the law was amended to permit New York City to set its own fees, with the intention that licensing program would be “self-sustaining”. The legislative history demonstrates that the Legislature had received letters, including from the Mayor of the City of New York, William O’Dwyer, indicating that the then-current maximum fee of $1.50 was “inadequate to compensate for the administrative expense entailed in the issuance of such licenses”. The Mayor noted that before a license is issued, “the Police Department conducts an intensive investigation” to ensure that issuance of a license would not jeopardize the public safety and welfare. See Connell Decl., Ex. F, 1947 N.Y. Laws Ch. 147.

RESPONSE: Denied. New York City had the statutory power to set its own fees since 1938. Not disputed that the “Bill Jacket” contains a letter from the Mayor of New York City with the referenced statements, but disputed that this letter represents statements by the “Legislature” or even by an individual

My point being that the notion of the fee for the purpose of public safety slipped by me personally, and seemed to fly under the radar in general.

Luger_carbine · February 14, 2014, 01:24 PM

I just realized the deadline date for this passed.

I think it would be great for SCOTUS to hear this case now in light of Moore and Peruta.

Does anyone know if Jensen applied for writ of certiorari ?

Al Norris · February 14, 2014, 03:36 PM

As you can see below, David Jensen has until Feb. 17th to file. Since that is Presidents Day, and a Federal Holiday, that means Jensen has until the end of the next day, Feb. 18th.

Dec 2 2013 Application (13A567) to extend the time to file a petition for a writ of certiorari from December 19, 2013 to February 2, 2014, submitted to Justice Ginsburg.
Dec 4 2013 Application (13A567) granted by Justice Ginsburg extending the time to file until February 3, 2014.
Jan 27 2014 Application (13A567) to further extend the time to file a petition for a writ of certiorari from February 3, 2014 to February 17, 2014, submitted to Justice Ginsburg.
Jan 29 2014 Application (13A567) granted by Justice Ginsburg extending the time to file until February 17, 2014.

http://www.supremecourt.gov/Search.a...les/13a567.htm

Luger_carbine · February 14, 2014, 10:13 PM

Pretty crafty... getting extensions.

Like Lisa Madigan did in Moore to drag that case out.

Well now that CA9 has ruled in Peruta I think it is as good a time as any to appeal Kwong to the Supreme Court.

Luger_carbine · February 19, 2014, 05:06 PM

Will it take a while for a filing to show up on the docket?

I hope he filed.

I'm not sure how to track this down if David Jensen did file.

Al Norris · February 20, 2014, 12:11 AM

It sometimes takes the clerk a day or two to update the docket info.

OR

You could email David Jensen.

Luger_carbine · February 21, 2014, 03:39 PM

http://www.supremecourt.gov/Search.a...les/13-993.htm

Feb 17 2014 Petition for a writ of certiorari filed. (Response due March 24, 2014)

September 22, 2013, 08:13 AM	#63
L2R Senior Member Join Date: November 5, 2010 Location: North Carolina Posts: 358	100% goes to the NY pension fund Sounds like a forced contribution but a contribution none the less. At the very least, could they deduct it from their IRS/state taxes? __________________ L2R

February 14, 2014, 03:36 PM	#71
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	As you can see below, David Jensen has until Feb. 17th to file. Since that is Presidents Day, and a Federal Holiday, that means Jensen has until the end of the next day, Feb. 18th. Dec 2 2013 Application (13A567) to extend the time to file a petition for a writ of certiorari from December 19, 2013 to February 2, 2014, submitted to Justice Ginsburg. Dec 4 2013 Application (13A567) granted by Justice Ginsburg extending the time to file until February 3, 2014. Jan 27 2014 Application (13A567) to further extend the time to file a petition for a writ of certiorari from February 3, 2014 to February 17, 2014, submitted to Justice Ginsburg. Jan 29 2014 Application (13A567) granted by Justice Ginsburg extending the time to file until February 17, 2014. http://www.supremecourt.gov/Search.a...les/13a567.htm

March 17, 2013, 08:26 PM	#51
esqappellate Member Join Date: October 16, 2012 Posts: 69	Perfect Thanks

March 18, 2013, 02:28 PM	#52
esqappellate Member Join Date: October 16, 2012 Posts: 69	BTW, the Judges here in Kwong are Judges: Jose A. Cabranes (appt. 94), Ralph Winter (appt 81) and John Walker (appt 94). Cabranes and Winter are both on senior status, Walker is still active and thus presided. These are all very reputable judges. 02/01/2013 81 CASE, before JAC*, JMW, RCW, C.JJ., HEARD.[833908] [12-1578]

March 19, 2013, 02:32 PM	#53
Tymah123 Member Join Date: June 19, 2007 Location: NYC Posts: 39	Didn't listen to the tapes but can someone tell me what was the outcome of the hearing? I'm very curious since we have to pay $400 iirc every 3 years for me, another fee for my wife and one for my long guns. It'd be nice not to pay that going forward. Thanks in advance!

March 19, 2013, 04:13 PM	#54
esqappellate Member Join Date: October 16, 2012 Posts: 69	No result yet. look for a decision in 3 months or so.

March 19, 2013, 04:22 PM	#55
press1280 Senior Member Join Date: May 17, 2012 Posts: 228	Just as in the NJ CCW case, the judges are asking if the logic behind the law was nothing more than an attempt at restricting the right, and in this case keeping the poor from owning firearms. A statement from the law that passed in 1947(from the bill's sponsor): Another reason for the institution of this bill is the feeling that a higher fee, if the City Council considers it wise to impose same, will tend to discourage a great number of possible applicants who are better off, both as concerns themselves and the welfare of this City as a whole, without the possession of fire-arms. In this way the additional fee as well as covering the costs of investigation, thereby insuring their continued high caliber, would, of itself, eliminate a certain percentage of applications, principally in that class where the possession of fire-arms is desired for reasons of bravado and like dangerous reasons.

March 19, 2013, 04:36 PM	#56
Tymah123 Member Join Date: June 19, 2007 Location: NYC Posts: 39	Thanks for the summary!

July 9, 2013, 04:30 PM	#58
press1280 Senior Member Join Date: May 17, 2012 Posts: 228	This opinion is an absolute disgrace. They almost seemed as if any fee would be acceptable as long as the plaintiffs paid it. Of course, you can be sure these same judges would also say someone who couldn't pay it wouldn't have standing to sue. The Federal courts, save CA7, are actively engaged in trying to smother the 2A.

July 9, 2013, 04:30 PM	#59
csmsss Senior Member Join Date: October 24, 2008 Location: Orange, TX Posts: 3,078	They keep repeating that the $340 fee doesn't exceed NYC's administration costs - but never ask the question why the NYC administration costs are 100 times higher than other parts of New York state.

September 22, 2013, 08:01 AM	#62
press1280 Senior Member Join Date: May 17, 2012 Posts: 228	This leaves a pretty dangerous precedent. Now a locality can make an inefficient, burdensome permit system and charge thousands of dollars per year, and its just fine by CA2. What a joke that court is. I hope they get cert but I'm not holding me breath.

November 24, 2013, 07:50 AM	#64
Luger_carbine Senior Member Join Date: June 18, 2012 Posts: 389	Some time has gone by and I haven't heard news of a writ of certiorari. Jensen has until December 20th -23rd (somewhere in there) to file an appeal right? Is there any indication that David Jensen will appeal?

November 24, 2013, 03:56 PM	#65
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	To the best of my knowledge, the case will be appealed. I haven't checked but the timeline you suggested seems to be about right.

November 25, 2013, 09:55 AM	#66
Davey Senior Member Join Date: August 2, 2010 Location: Not far enough from Chicago Posts: 394	I imagine a SCOTUS case would have to argue against the fee rather than anything related to a second amendment violation.

November 25, 2013, 02:23 PM	#67
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	This case is about more than nominal fees, for permission, on the core right to keep arms in the home for "defense of hearth and home." Yes, it is a direct and substantial burden on the exercise of the 2A. That is how it will be argued. The system in NYC was designed at the outset to hinder, as much as was possible, the citizens right to defend his home. Whether or not that point will be argued is probably foreclosed, as it was not really briefed either at District or at Appeals.

December 17, 2013, 10:09 PM	#68
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	Time to file for cert has been extended by Justice Ginsburg. New date is Feb. 3, 2014.

February 14, 2014, 01:24 PM	#70
Luger_carbine Senior Member Join Date: June 18, 2012 Posts: 389	I just realized the deadline date for this passed. I think it would be great for SCOTUS to hear this case now in light of Moore and Peruta. Does anyone know if Jensen applied for writ of certiorari ?

February 14, 2014, 10:13 PM	#72
Luger_carbine Senior Member Join Date: June 18, 2012 Posts: 389	Pretty crafty... getting extensions. Like Lisa Madigan did in Moore to drag that case out. Well now that CA9 has ruled in Peruta I think it is as good a time as any to appeal Kwong to the Supreme Court.

February 19, 2014, 05:06 PM	#73
Luger_carbine Senior Member Join Date: June 18, 2012 Posts: 389	Will it take a while for a filing to show up on the docket? I hope he filed. I'm not sure how to track this down if David Jensen did file.

February 20, 2014, 12:11 AM	#74
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	It sometimes takes the clerk a day or two to update the docket info. OR You could email David Jensen.

February 21, 2014, 03:39 PM	#75
Luger_carbine Senior Member Join Date: June 18, 2012 Posts: 389	http://www.supremecourt.gov/Search.a...les/13-993.htm Feb 17 2014 Petition for a writ of certiorari filed. (Response due March 24, 2014)