Expert: Robert P. Firriolo - 7/12/2010

Question
QUESTION: Back in 2008 a SCPD officer was trying to track down a girl that had run away from home. In the process of his investigation he spoke to some of her friends including my sixteen year old grandson who was living with me. I wasn't there to hear the conversation but I later learned that according to this officer my grandson was uncooperative. Somewhere along the line this officer found a picture of my grandson with some other area teenagers dressed in gang garb (red shirts) and posing while making gang signs. Also during this investigation (I'm assuming while running my address) he discovered that both my wife and I had pistol license's and the officer felt obligated to notify the Suffolk County pistol licensing division of my grandson's gang affiliation.

To make a long story short my wife gets a letter in the mail asking her to come to Yaphank to discuss a situation related to her pistol license. We had no idea what this was about and as requested my wife goes to Yaphank to meet with P.O. XXXX. The officer takes my wife to a computer and on the monitor is the picture of my grandson with his "gang". Backtrack, this picture was probably a year old, my wife and I were aware of it, and my grandson was instructed to remove it from his MySpace page. When the officer asked if my wife knew about the picture she said yes and told her that the picture was old and since then my grandson had gone through a year of counseling and vocational training.

A week later my wife receives a letter advising her that her license is pistol license is suspended (February 2009). The following week I receive a similar letter.

My options at the time were to spend thousands of dollars to fight the suspensions via an Article 78 or try to work with SCPD to eventually have the suspension lifted. Since at the time my employer was laying of workers and cutting everyones compensation, and given the fact that I was told that if my grandson stayed on the straight and narrow (continued in school, no gang activity or law enforcement contact) the suspension would be lifted, I made the decision not to proceed with the Article 78 (actually spoke to Murtha about it at the time).

P.O. XXXX asked me to keep in touch which I did providing updates on my grandson's progress academically and socially. In March of 2010 I made a formal request to have my license suspension lifted. After a number of attempts to contact P.O. XXXX we finally made contact via telephone. During that conversation a notarized letter was requested describing my grandson progress, stating that he had no gang involvement or law enforcement contact was requested. This letter was provided. In addition the name and contact information for the school my grandson was attending was provided. The final comment from P.O. XXXX was that if anything was discovered regarding recent gang involvement (P.O. XXXX was going to contact the Suffolk Gang unit) or any record of arrest was found the suspension would not be lifted.

A week later P.O. XXXX calls me to inform me that the suspension would NOT be lifted. When I asked why the suspension would not be lifted I was expecting to be told that unknown to me my grandson had been arrest, or there was some recent information regarding gang activity that I was not aware of. But that wasn't the case. For no apparent P.O. XXXX decide that as long as my grandson is living with me the suspension would not be lift. I questioned the officer about arrest and gang involvement and the only negative comment she had was that my grandson's teacher mentioned that he sometimes sends text messages in class!

There have never been any allegations that my grandson made threats or was involved in any acts of violence. No arrest or charges of weapons possession have occurred. The evidence of gang involvement comes down to a picture of a sixteen year old with friends dressed in the same colors, throwing up gang signs and P.O. XXXX claim that my grandson told a police officer he was part of a gang.

My question is whether or not there is a legal foundation to challenge the suspension in court (state or federal) given Heller and McDonald decisions with confirm that the right to own a handgun is an individual, fundamental right. The basis of the suspension (allegations about a third party minor) seem very overreaching on the part of the licensing authority with respect to sufficent cause for the denial of a fundamental Constitutional right.

Thanks in advance for your advise.

ANSWER: Thank you for asking a question and providing a great deal of relevant detail.

There is likely to be a sound legal foundation to challenge the suspension of your license. Before the Second Amendment question is even reached, it is apparent to me that the SCPD may well be exceeding its authority to continue the suspension of your license. While licensing agents are given broad discretion by New York courts to issue, suspend and revoke handgun licenses, the decisions have to be rationally based and neither arbitrary or capricious. From what you describe in your question, the decision has no rational basis and is probably capricious.

The question of review under the Second Amendment is a bit trickier because in neither Heller nor McDonald did the Supreme Court say what standard of review will be applied when courts review gun control laws to see if they are constitutional. The court did say that rational review--the lowest level, and the level used by New York state courts up until McDonald--was not permissible. The DC Circuit Court that reviewed DC's new gun control laws post-Heller chose intermediate review. That decision was based on a reading of Heller that said that the Second Amendment was not a "fundamental" right. But in McDonald, the majority opinion explicitly held it is a fundamental right. That second Heller case is now on appeal to the DC Circuit Court of Appeals. See here for more: http://www.thegunzone.com/TGZBlog/2010/07/12/heller2-likely-to-address-handgun-r

I think a good argument can be made that, under any standard of review allowed under Heller or McDonald, the refusal to restore your license violates your Second Amendment rights. On the specifics, you'd be in uncharted waters. No court has yet evaluated such a question (to my knowledge) post-McDonald. But I would not consider such a challenge to be a poor one, though I suspect it may require one or more appeals to be finally resolved.

Best of luck to you.

---------- FOLLOW-UP ----------

QUESTION: Thank you very much for taking the time to read and response. Two follow-up questions.

I never received a written denial to my request to have the suspension lifted. Administratively does my formal request have to be formally answer (more then just a phone call from officer XXXX stating the suspension won't be lifted)?

Since I am way beyond the time deadline for filing an article 78 with respect to challenging the original suspension would the challenge to the suspension be addressed through NYS or federal court?

Answer
On the first question, the issue is really whether you have any administrative remedies left to you. If so, you must exhaust them first before you can seek judicial review. The so-called exhaustion rule requires that a party must attempt to obtain whatever administrative relief might be available before proceeding to the courts.

You may want to write to the commanding officer of SCPD's license bureau and ask him or her to confirm that what Officer X told you informally over the telephone is the formal position of the Department, and if so, to tell you what are your options for an administrative appeal. If you are told you have no opportunity for an administrative hearing or other internal review of the determination not to lift your suspension, then you have satisfied the exhaustion rule.

Be forewarned that if you are told you are entitled to an administrative review, it is critically important that that case made in that review be as comprehensive as possible, raising all legal issues and introducing all relevant evidence. In an Article 78 proceeding, the court will only consider what was at issue in the administrative proceeding. Failing to raise a fact or issue there will generally preclude review of the issue or consideration of the fact by the court.

Regarding timing, the time to file an Article 78 is "four months after the determination to be reviewed becomes final and binding upon the petitioner...or after the respondent's refusal, upon demand of the petitioner ... to perform its duty..." (CPLR 217(1)). An argument may be made that the determination you want reviewed is the refusal to lift the suspension, which becomes final only when SCPD formally tells you they won't lift it because of your grandson, and after you exhaust any administrative appeal of that determination. Similarly, the time can be said to run from the department's refusal of your demand to lift the suspension since the circumstances used as a pretext for the original suspension have changed.

Nevertheless, a challenge on Second Amendment grounds alone would likely be better made in federal court. But the federal court will not be able to hear claims based on SCPD's failure to comply with its duties as licensing agent under state law, while a state court can hear such causes as well as a Second Amendment challenge. I will leave it up to you and your attorney, upon full consideration of the facts, issues, and circumstances, to determine which is the better forum for such a suit.