“It’s like déjà vu all over again!” – Court Strikes New York Gun Licensing Law

Opinion

Within days of the United States Supreme Court’s landmark decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), holding that New York’s “proper cause” gun licensing requirement was unconstitutional, the state’s anti-gun legislators rushed to fill the vacuum. The many changes that followed included an equally subjective substitute for “proper cause” (“having the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others”) that was tacked onto the existing “good moral character” requirement, along with significantly expanded application criteria. As before, a failure to satisfy any of the listed requirements would result in denial, or the licensing authorities could deny based on any “other good cause.”

In New York City, the gun licensing law before and after Bruen kept its similar “good moral character” and “good cause” language, although the definition of “good moral character” was amended to follow the change in state law.

A federal court concluded on October 24 that the retention of the “good moral character” and “good cause” assessments in the NYC licensing law was unconstitutional under Bruen.

The case involved Brooklyn resident Joseph Srour, who applied to the New York City Police Department (NYPD) License Division for a permit to possess rifles and shotguns (and later, handguns) in his home for self-protection. In 2019, his applications were denied because licensing officials decided Srour lacked “good moral character” and that “good cause” existed for the denials.

At the time, factors that could be used in making these determinations included “a poor driving history,” a failure to disclose a complete arrest history, and “an unwillingness to abide by the law.” In Srour’s case, officials cited his “derogatory driving record” (which included two violations committed while on a jetski) as proof of “an inability to abide by laws and regulations, show[ing] a lack of moral character,” and his failure to disclose information about prior arrests (sealed arrests in 1995-96, where charges had been dismissed), as this “demonstrates a lack of candor and is a strong ground for disapproval of his applications.”

In 2022, Srour litigated the denials, alleging that the City’s licensing regime violated the Second Amendment and seeking monetary, declaratory, and injunctive relief. His court case was put on hold pending the outcome in the Bruen case and, following that decision, he moved for summary judgment.

United States District Judge John P. Cronan examined both versions of the law (pre- and post-Bruen) and found that, much like the “proper cause” standard at the heart of Bruen, the laws authorized a licensing official to “make a judgment call about the character, temperament, and judgment of each applicant without an objective process,” absent clear standards or definitions. Even when objective factors were listed (“the applicant has been arrested”), there was still “seemingly boundless” discretion, given that there was no direction on how a licensing official was to consider the factors, weigh them against one another, or whether any one factor was dispositive.

The “very notions of ‘good moral character’ and ‘good cause’ are inherently exceedingly broad and discretionary. Someone may be deemed to have good moral character by one person, yet a very morally flawed character by another. Such unfettered discretion is hard, if not impossible, to reconcile with Bruen.”

Turning to the historical inquiry analysis required under Bruen, the “fatal problem” of official discretion persisted here, as the defendants “have not identified any historical analogue for investing officials with the broad discretion to restrict someone’s Second Amendment right based on determining the person to ‘lack[] good moral character’ or for a vague and undefined notion of ‘good cause.’” Historical “surety” statutes, or laws that prevented a person perceived to be “dangerous or potentially dangerous” from possessing a firearm, were “hardly analogous” to denying someone their Second Amendment rights based on a discretionary determination that the person lacked good moral character or that “good cause” for doing so existed. “Presumably, there were plenty of people at the time of our country’s Founding who were considered to lack good moral character, but were not necessarily dangerous, yet Defendants have identified no law depriving such individuals of their right to possess firearms.”

In summary, the challenged laws allowed for the denial of a firearm permit “upon a City official’s determination of the applicant’s lack of ‘good moral character’ or upon the official’s finding of ‘other good cause’ – broad and unrestrained discretionary standards which Defendants have not shown to have any historical underpinning in our country. And because that unconstitutional exercise of discretion occurs every time a licensing official applies or has applied these provisions, they each are facially unconstitutional.” A permanent injunction was “plainly warranted in this case,” as was declaratory relief, although the injunction was stayed until midnight on October 26, 2023 to give the defendants time to consider appellate options and whether to seek a stay pending any appeal. The issue of damages and costs was to be addressed in future proceedings.

In his decision, Judge Cronan included some choice observations about the government defendants. First, they were “not particularly clear regarding what, if anything, they consider to be the ‘general societal problem’ addressed by both the [laws at issue] and our country’s historical tradition of firearm regulation.” In their briefing, the defendants “at times seem not to appreciate that it is their burden to come forward with evidence that the challenged regulations are consistent with our country’s historical tradition of firearm regulation… Bruen was clear that this is in fact Defendants’ burden.” Elsewhere, another endnote recorded that the defendants “additionally cite to what appears to be the entirety of the statutory law of Maryland from 1692 to 1839, without a pin-cite to identify any specific provision that they wish to bring to the Court’s consideration.”

The case is Joseph Srour v. New York City and Keechant Sewell, Case No. 1:22-cv-00003-JPC (S.D. N.Y. Oct. 24, 2023).

About NRA-ILA:

Established in 1975, the Institute for Legislative Action (ILA) is the “lobbying” arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess, and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution. Visit: www.nra.org