Spinelli, et al v. The City of New York, et al, No. 1:2002cv08967 - Document 47 (S.D.N.Y. 2010)
Court Description: OPINION for the following reasons, the Court has determined that the post-deprivation hearing should have been given within 30 days of the NYPD's seizure of Plaintiffs' license. Therefore, Plaintiff's damages begin to accumulate from 11/9/01 onward. (Signed by Judge Robert W. Sweet on 10/26/10) (cd)
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Spinelli, et al v. The City of New York, et al Doc. 47 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------x ANGELA SPINELLI and OLINVILLE ARMS, INC., Plaintiffs, 02 Civ. 8967 - against OPINION CITY OF NEW YORK and PASQUALE CARABELLA, NEW YORK CITY POLICE SARGEANT, Defendants. x Sweet, D. J. This case arose from the New Department1s ("NYPD'sll) decision on October 9 licenses of Plaintiff Olinvil range. York 1 City Police 2001 to suspend the Arms to sell guns and manage a gun While the gun range 1 was restored the following daYI for 58 daysl the vending license was not and plaintiffs due process rights to a post-deprivation hearing were violated. See Ii v. Ci New York, 579 F.3d 160, 174 (2d Cir. 2009). In letters Plaintiffs and October 121 2010 and October 19, 2010 1 De Sl determine when deprivation s to respectively, moved the Court to should have given Plaintiffs a post determine the propriety of depriving Dockets.Justia.com 01 1 firearms. lle Arms of its license to For the following reasons, the Court has determined that the post-deprivation hearing should have been given within 30 days of the NYPD's seizure of PIa iffs' license. Discussion The when a determination should take place is .............. ....... ..... post-deprivation hearing on a case-by-case basis. . v. Mallen, 486 U.S. 230, 242 (1988). The Court .... must consider three factors in making its determination: "[1] the importance of the occasioned by Government for interest and the harm to this delaYi delay governmental sti decision may have Address [2 ] and and the justification its [3 ] relation the mistaken." to off by the the underlying likelihood that interim rd. the first Mallen factor, Plaintiffs contend that they were deprived of their ability to make a living when their licenses were suspended. pursuing one's I The liberty lihood is a strong one. (citing ------Mal st one has in ,486 U.S. at 243 481 U.S. 252, 263 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 Furthermore, interest in Second Circuit noted that the s case was significant. -=___ (1987) i (1985)). iffs' private 579 F.3d at 173 (" s case the private interest was strong t providing delay bus Spinelli with a prompt and the Ci tyt s hearing while s was closed threatened significant financial loss over an extended period. II) • However t Plaintiffs were not deprived of lity to run their entire store. Rathert the 1 revocation fected only the gun vending and t for a brief period t gun parts of their business. interest in one's Still, occupation, given the s this ficance factor Is in the favor of Plaintiffs. Turning to the second Mallen , Defendants justify their delay by invoking the September 11, 2001 t Those attacks affected the NYPD Licens conduct its inoperable regular for weeks sion's ability to business. after st attacks. sion's the attacks, reassigned to various locations, and its phones were officers were NYPD Headquarters, where it was located, were closed to public. NYPD would be justifiably in providing a post-deprivation 1 In this atmosphere, the hearing to Plaintif Regarding f Mallen factor t Plaintiffs claim that the NYPD's decision to seize Plaintiffs' "arbi trary" and deficient not that the store had license and goods was by an "ambiguous" and constitutionally Oct. 12, 2010 Letter at 3. Plaintiffs in the same condition for years without issue and that the NYPD suspended its gun range license only to reinstate it the next day. revoked Plaintiffs' manpower to program. Id. Plaintiffs also contend that the NYPD license so that it would not need to devote securing the store under the NYPD' s Omega Watch Defendants strenuously deny this allegation, as well as Plaintiffs' claims that the NYPD acted arbitrarily. In its opinion in this case, the Second Circuit noted that "the record demonstrates that the City had sufficient cause to take 'prompt action' to address the security infractions at Olinville observed by Officer McSherry. Spinelli, while downplaying these infractions, has never disputed them, and indeed, took strong measures to remedy them." Spinelli, 579 F.3d at 17l. This language suggests that the NYPD was not mistaken In its assessment of Olinville's security, but it is not conclusive as to the risk of a mistake by the police. The license revocations at issue were the result of an inspection by a NYPD officer made in a time of heighted security concerns (which may explain why the NYPD chose to act on security issues Plaintiffs claim had existed for some time). The facts indicate a small likelihood that the NYPD's decision may have been mistaken. There is no rule or regulation which provides the period of time within which the City must grant plaintiffs deprived of a gun vending license a post-deprivation hearing. Though 38 Rules New York City §§ must contest a thirty days, 1-04(i) and 1-04(1) provide that a suspension of his or her 1 within the Rules are silent as to when the NYPD cense Division must then provide a hearing. An analogous situation is found in Mal --officer was suspended without pay. 486 U.S. at 232. Court held that the impairment of Mallen's livelihood required the FDIC to hold a within 30 days. Id. at 242 43. a bank Supreme in pursuing his ion hearing t In another analogous situation, in which this Court addressed the seizure of rs' wares by the NYPD where no regulation or statute provided for a hearing, the Court the held that a post deprivation opportunity to confiscations must be held within 30 contest the seizure. Eagle v. Koch, 471 F.Supp. 175, 179-80 (S.D.N.Y. 1979). Conclusion Balancing administrative that a post deprivation iffs' right to be heard with the City's Court finds that due process requires should have been provided to Olinville within 30 days of the NYPD's October 9, 2001 suspension its license to sell firearms. Therefore, Plaintiff's damages begin to accumulate from November 9, 2001 onward. It is so ordered. New York, NY October r;" b' 2010 U.S.D.J.
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