Matter of Delgado v Kelly

[*1] Matter of Delgado v Kelly 2013 NY Slip Op 51656(U) Decided on October 11, 2013 Supreme Court, New York County Ling-Cohan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 11, 2013
Supreme Court, New York County

IN THE MATTER OF THE APPLICATION OF Carlos R. Delgado, Petitioner,

against

Raymond Kelly, as the Statutorily Designated Handgun Licensing Officer, As the New York City Police Commissioner, and His Successors in Office, Respondent.



104061/12



Petitioner:

John Skylar Chambers, Esq.

89 Fifth Avenue, Ste 801

New York, NY 10001

Respondent:

Corporation Counsel

100 Church Street, Room 4-313

New York, New York 10007

Doris Ling-Cohan, J.

PetitionerCarlos Delgado seeks an order pursuant to Article 78 of the CPLR directing respondent Raymond Kelly, as the New York City Police Commissioner, to: (i) issue a home protection handgun license to petitioner; and (ii) conduct a more thorough review of petitioner's fitness and character to possess a handgun.

Respondent joined issue by service of a Verified Answer alleging that the decision by the New York City Police Department's License Division (NYPD License Division) was rational, not arbitrary or capricious, and not an abuse of discretion.

BACKGROUND

Petitioner applied for a Premise Residence Handgun License in August 2011. It is undisputed that, in the application, petitioner answered Question 27, which states "[h]ave the police ever responded to a domestic incident in which you were involved?", in the negative. Verified Petition, Exh. A, Handgun License Application, p. 2. In October 2011, petitioner was interviewed as part of the application process. Nor is it undisputed that, during such interview, petitioner answered "no" when asked by the investigator, Police Officer Olivo, whether petitioner had ever been involved in any incidents of domestic violence. Thereafter, an investigation into petitioner's background was conducted, and a Domestic Incident Report was found. Such report was based on a complaint by petitioner's wife, Veronica Delgado, who stated that petitioner grabbed her arm and tried to choke her. According to the report, petitioner's wife stated that she wanted an order of protection.

The NYPD License Division issued a Notice of Disapproval, dated April 11, 2012, which disapproved petitioner's application for a handgun license for the following reasons: You were arrested 3 times in your youth for larceny related offenses. On 10/09/2006, police responded to your home and a Domestic Incident Report # 2006-106-003007 was filed based on a complaint by your wife, Veronica Delgado, stating you grabbed her arm and choked her, along with a request by her for an order of protection. On the written application question #27, you responded no to the question regarding the police responding to your home for domestic violence. During your interview with PO Olivo, you also stated you had never been involved in any domestic violence incidents. Based on your attempt to deceive the License Division investigator through omission, you have shown a lack of candor and poor moral character. You have proven that you have a tendency towards violence and it is inadvisable to allow you access to a firearm for fear of future incidents escalating with the presence of a handgun in the home.

Verified Petition, Exh. B, Notice of Disapproval. Petitioner appealed this determination to the Director of the NYPD License Division.

In support of the appeal, petitioner argued, through his counsel, that although a Domestic Incident Report was generated, this does not equate to domestic violence having taken place in the home. Petitioner emphasized that when the police responded to his home, there was a verbal argument, and "although there was touching, including grabbing, and pushing, there were no physical bruises or any other sign of brute force." Verified Petition, Exh. C, Administrative Appeal Affirmation, p. 4. Petitioner further argued that not all incidents wherein the police are called to the home, is an incident of domestic violence. Particularly, petitioner claims that the [*2]police remained in his home for less than five minutes, and that no arrest was made. Thus, petitioner maintains that he was never involved in any incident of domestic violence, and did not deceive Police Officer Olivo during his interview.

In a letter dated June 20, 2012, the Director of the NYPD License Division advised petitioner that his appeal was denied, based on petitioner's "failure to answer Q. 27 truthfully [which] demonstrates a lack of character and fitness for a license to possess firearms". Verified Petition, Exh. E, Notice of Disapproval After Appeal. Thereafter, petitioner commenced this Article 78 proceeding.

DISCUSSION

Here, petitioner argues that respondent's determination is: (1) in direct contradiction with the Second Amendment; (2) arbitrary and capricious; and (3) shocking to one's sense of fairness. Specifically, petitioner argues that two United States Supreme Court cases, District of Columbia v Heller, 554 U.S. 570 (2008), and McDonald v Chicago, 130 S. Ct. 3020 (2010), have shifted the burden, to the statutorily designated handgun licensing officer, to establish more than a mere rational basis for its reasons of disapproving handgun applications. Further, petitioner asserts that pursuant to Heller and McDonald, owning a gun in New York State under a license is no longer a privilege, rather, it is a right. Thus, according to petitioner, denial of his application for a handgun license for the single reason of failure to disclose an incident of domestic violence, or lack of candor, is shocking to one's sense of fairness, arbitrary and capricious, and disproportionate to the offense.

As a preliminary matter, this court must address petitioner's argument regarding the United States Supreme Court decisions in Heller and McDonald. According to petitioner, as a result ofthe Heller and McDonald decisions, respondent must now justify depriving someone of their basic right to keep and bear arms pursuant to the Second Amendment[FN1]. Respondent argues that the US Supreme Court in Heller and McDonald "explicitly recognized...that not all individuals are entitled to unfettered access to handguns." Respondent's Supplemental Memorandum of Law, p. 2. Further, respondent argues that the two US Supreme Court cases did not divest states of the power to regulate handgun possession, rather, such cases found specific regulations, which prohibited private handgun possession across the board, to be unconstitutional. According to respondent, intermediate scrutiny is the appropriate measure to apply to statutes regulating firearms.

In response, petitioner argues that respondent's "rationale is vague, ambiguous, and easily misused." Petitioner's Supplemental Reply Memorandum of Law, p. 7. Petitioner further argues that "non-disclosure of a single instance where law enforcement visited his home...and where previous and post incident behavior has apparently not been considered... [is] a flagrant abuse of power on the part of the Respondent." Id. Additionally, petitioner contends that he merely "did not disclose a single incident...wherein the police responded to his home." Id. at p. 12. However, petitioner's argument is inapposite. Significantly, while petitioner contends that his previous and post incident behavior has not been considered, petitioner fails to mention that in a [*3]previous application for a gun license, which was denied, petitioner also failed to disclose 3 juvenile arrests[FN2]. Thus, even if respondent was mandated to specifically consider petitioner's previous behavior (which it is not), it would appear that petitioner has a history of failing to disclose his past behavior, seemingly in an effort to conceal his transgressions.

Moreover, petitioner's reading of the case law is mistaken. While the US Supreme Court has made clear, from Heller and McDonald, that the Second Amendment applies to the states and grants an individual the right to keep and bear arms, as correctly argued by respondent, the US Supreme Court has also made clear that such a right is not absolute. The US Supreme Court in Heller specifically states that "[l]ike most rights, the right secured by the Second Amendment is not unlimited." 554 U.S. 570, 626 (2008). In fact, petitioner concedes that the Second Amendment has limitations.

While there appear to be no New York State court decisions discussing Heller and McDonald, with regard to gun licenses, subsequent to both cases being decided, the United States District Court, in the Northern District of New York, had the opportunity to review the status of New York State Penal Law § 400.00 in Osterweil v Bartlett, III, 819 F. Supp. 2d 72 (2011). Reviewing the residency requirement in Penal Law § 400.00, the Osterweil court held that "intermediate scrutiny is the appropriate level of scrutiny" to review limitations on the Second Amendment, such as the limitation at issue in this proceeding, as applied by the states. Osterweil, 819 F. Supp. 2d at 84. Thus, respondent is correct in arguing that intermediate scrutiny applies herein. "The intermediate scrutiny test...generally requires an analysis of whether the challenged law serves a substantial state interest and whether there is a reasonable fit between the objective and the law." Id. at 83. Here, it is undisputed that Penal Law § 400.00 serves a substantial state interest: "[T]he harm caused by gun violence in this country has been well-documented, and government efforts to curtail this threat have a direct impact on domestic security." Osterweil, 819 F. Supp. 2d at 85.

Penal Law § 400.00 clearly states, in pertinent part, that: 1. Eligibility. No license shall be issued or renewed pursuant to this section except by the licensing officer, and then only after investigation and finding that all statements in a proper application for a license are true.

(emphasis added). Following this sentence, Penal Law § 400.00 also sets forth additional requirements for the issuance or renewal of a handgun license, including that the applicant meet the age restriction, is of good moral character, and is free from mental illness. Limiting handgun licenses to individuals who provide only true statements on their application allows the government to ensure public safety by preventing the circumvention of any of the restrictions listed in Penal Law § 400.00 with a misstatement of the facts on such application. "Under intermediate scrutiny, the state's policy need not be perfect, only substantially related to a significant,' substantial,' or important' governmental interest." Osterweil v Bartlett, III, 819 F. Supp. 2d at 85. The state's general requirement that applicants for a handgun license provide only truthful information is substantially related to the government's interest in domestic security, and thus, does not deprive petitioner of his Second Amendment rights. [*4]

Moreover, the Osterweil court specifically held that an Article 78 proceeding, "to challenge the denial of [a] firearms license application...[is] a meaningful post-deprivation remedy under state law." Id. at 89. Thus, CPLR Article 78, and its corresponding case law, govern as to judicial review of the denial. Respondent correctly asserts that judicial review of the determination of the NYPD License Division is limited to ascertaining whether that determination "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion", based upon the record before the agency. See CPLR 7803(3). The New York City Police Commissioner has broad discretion to determine whether to issue a handgun license, in accordance with the provisions of Penal Law § 400.00 and Administrative Code of the City of New York § 10-131(a)(1). See Matter of Fondacaro v Kelly, 234 AD2d 173, 177 (1st Dept 1996), lv denied 89 NY2d 812 (1997). Judicial review is limited to determining whether the administrative decision to deny petitioner a handgun license is arbitrary and capricious or an abuse of discretion. See CPLR 7803(3); Matter of Pell v Board of Educ., 34 NY2d 222, 231 (1974). The Court of Appeals explained the "arbitrary and capricious" standard in Matter of Pell v Board of Educ., as follows:

The arbitrary or capricious test chiefly relates to whether a particular action should have been taken or is justified ... and whether the administrative action is without foundation in fact' (1 NY Jur., Administrative Law, § 184, p. 609). Arbitrary action is without sound basis in reason and is generally taken without regard to the facts.

Id. at 231. Courts have upheld the denial and revocation of handgun licenses, based upon the failure of applicants or licensees to report to the NYPD License Division that domestic incident complaints had been filed against them, even if the complaints were ultimately dismissed or resolved in their favor. See Matter of Trimis v New York City Police Dept., 300 AD2d 162 (1st Dep't 2002), lv denied 100 NY2d 503 (2003).

Here, after an investigation, respondents discovered that a Domestic Incident Report was issued, based on a complaint by petitioner's wife. Petitioner's claim that this incident did not rise to the level of an "incident of domestic violence" is misplaced as the question specifically asks for any responses "to a domestic incident in which you were involved." Despite this incident, where the police were called and responded to petitioner's residence, petitioner misrepresented the truth in his application for a handgun license by answering Question 27, in Section B of the application, in the negative. On the top of Section B, it states, in upper case letters, that "A FALSE STATEMENT SHALL BE GROUNDS FOR DENIAL OF A N.Y.C. HANDGUN LICENSE". Verified Petition, Exh. A, Handgun License Application, p. 2. It is clear, from the plain language of the handgun license application itself, and Penal Law § 400.00(1), that the failure to answer truthfully in such application is grounds for denial. In fact, respondent is well aware of the fact that a failure to disclose facts or answer truthfully is grounds for denial of the application. Although not mentioned by either petitioner or respondent, a review of petitioner's application reveals that he "previously applied for a NYC Premise Residence Pistol License, but was denied [for his] failure to disclose an old arrest". Order to Show Cause, Exh. A, Handgun License Application, Addendum to Pistol Application. While it appears that petitioner disclosed the old arrests in this current application, he has now failed to disclose a domestic incident, and failed to truthfully answer question 27 of Section B of the application. Thus, respondent's decision to deny petitioner's application is not arbitrary and capricious, and the petition must be [*5]denied.

Accordingly, it is

ORDERED that the petition is denied and the proceeding is dismissed; and it is further

ORDERED that within 30 days of entry, respondent shall serve a copy of this order upon all parties with notice of entry.

This constitutes the decision of this Court.

Dated:

DORIS LING-COHAN, J.S.C.

Check one:[ X ] FINAL DISPOSITION[ ] NON-FINAL DISPOSITION

Check if Appropriate: [ ] DO NOT POST Footnotes

Footnote 1: Pursuant to this court's order, dated April 19, 2013, both parties submitted supplemental memoranda of law with regards to such United States Supreme Court Cases, as it applies to the instant Article 78 proceeding.

Footnote 2: Such arrests, which were concealed in petitioner's previous application, were disclosed in the instant application.