Petition for Writ of Certiorari — Ralph Abekassis, Petitioner v. City of New York, New York, et al.

No. _______

In The

Supreme Court of the United States

RALPH ABEKASSIS,

Petitioner,

v.

NEW YORK CITY, NEW YORK, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

AMY L. BELLANTONI

THE BELLANTONI LAW FIRM

2 Overhill Road, Suite 400

Scarsdale, New York 10585

(914) 367-0090

abell@bellantoni-law.com

Counsel for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond VA 23219 (800) 847-0477

i

QUESTIONS PRESENTED

In New York State Rifle & Pistol Ass’n, Inc. v. City of

New York, New York, 140 S. Ct. 1525 (2020), this

Court held that New York City’s postcertiorari

amendment to the challenged handgun regulations

mooted the petitioners’ claims.

Emboldened, the City continues to orchestrate the

manipulation of judicial review of unconstitutional

firearm regulations, in violation of the Second

Amendment. The City’s repeated and wrongful

conduct, and the Second Circuit’s disregard of it, give

rise to this petition, which cries out for an exercise of

this Court’s supervisory power.

The questions presented are:

Whether, based on this Court’s jurisprudence as

articulated in City of Mesquite and Honig, the

Second Circuit erred in dismissing this case as moot

where New York City’s calculated and repetitive

actions were designed to evade appellate review.

Whether New York City’s post-filing unsolicited

issuance of a firearm license moots the live

controversy where the licensee remains subject to

the challenged regulations.

ii

PARTIES TO THE PROCEEDING

Petitioner is Ralph Abekassis, a resident of New

York City, New York. He was the plaintiff in the

district court and plaintiff-appellant in the court of

appeals. Petitioner is an individual.

Respondents are the City of New York, Police

Commissioner James O’Neill, Jonathan David, and

Michael Barreto - the NYPD Licensing Division.

They were defendants in the district court and

defendants-appellees in the court of appeals.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

PARTIES TO THE PROCEEDING ........................... ii

TABLE OF AUTHORITIES ...................................... v

LIST OF ALL PROCEEDINGS ................................. 1

STATEMENT OF JURISDICTION .......................... 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ........................................ 2

STATEMENT OF THE CASE ................................... 2

REASONS FOR GRANTING THE PETITION ........ 8

I.

The Case In Controversy Is Not Moot .......... 13

II.

The City’s Practice of Preventing Review

Continues, and Will Continue ...................... 18

III. New York’s Disregard for Supreme Court

Extends Past the Second Amendment ......... 22

IV. New York Federal and State Courts

Reinforce Their Respective Disregard of

Second Amendment Jurisprudence ............. 25

CONCLUSION ......................................................... 31

iv

APPENDIX

Appendix A

Order of the United States Court of

Appeals for the Second Circuit, Abekassis v.

New York City, No. 20-3038, Dated March 4,

2021 ..................................................................... App-1

Appendix B

Order of the United States Court of

Appeals for the Second Circuit, Abekassis v.

New York City, No. No. 20-3038, Dated

March 26, 2021 .................................................... App-3

Appendix C

Opinion and Order of the United States

District Court for the Southern District of

New York, Abekassis v. New York City, 19cv-8004 (PAE) ...................................................... App-4

Appendix D

Constitutional and Statutory Provisions

Involved ............................................................. App-47

Appendix E

Email to Petitioner from NYPD License

Division, Dated December 17, 2020 ................. App-57

Appendix F

Email from New York City Law

Department, Dated August 9, 2021 ................. App-58

v

TABLE OF AUTHORITIES

Cases

Page(s)

Abekassis v. New York City, New York, 477 F. Supp.

3d 139 (S.D.N.Y. 2020), judgment vacated, appeal

dismissed, No. 20-3038, 2021 WL 852081 (2d Cir.

Mar. 4, 2021) ........................................................... 1

Aron v. Becker,

48 F. Supp. 3d 347 (N.D.N.Y. 2014) ............... 14, 17

Boss v. Kelly,

306 F. App’x 649 (2d Cir. 2009) ............................ 17

Caetano v. Massachusetts,

577 U.S. 411 (2016) ................................................. 9

Chafin v. Chafin,

568 U.S. 165 (2013) ............................................... 17

City of Mesquite v. Aladdin's Castle, Inc.,

455 U.S. 283 (1982) ........................................... 1, 16

District of Columbia v. Heller,

554 U.S. 570 (2008) ........................................passim

F.O v. New York City Dept. of Educ.,

899 F. Supp. 2d 251 (2012) ................................... 24

Fiallos v. New York City Dep’t of Educ.,

No. 19-CV-00334 (JGK) (S.D.N.Y. September 17,

2019) ...................................................................... 22

Fiallos v. New York City Dep’t of Educ.,

840 F. App’x 662, 663 (2d Cir. 2021) ................... 24

Floyd v. City of New York,

959 F. Supp. 2d 540 (S.D.N.Y. 2013) .................... 27

Fusco v. Cty. of Nassau,

492 F. Supp. 3d 71 (E.D.N.Y. 2020) ..................... 11

Gonzalez v. Lawrence,

36 A.D.3d 807 (2d Dep’t 2007) .............................. 28

vi

Gulotta v. Hart,

119 N.Y.S.3d 830 (N.Y. Sup. Ct. 2019) ................... 6

Honig v. Doe,

484 U.S. 305 (1988) ......................................... 14, 22

Kaplan v. Bratton,

249 A.D.2d 199 (1st Dep’t 1998) ............................. 6

Kuck v. Danaher,

600 F.3d 159 (2d Cir. 2010) .................................. 16

Libertarian Party of Erie County v. Cuomo,

70 F.3d 106 (2d Cir. 2020) ...................................... 7

McDonald v. City of Chicago,

561 U.S. 742 (2010) ........................................passim

Murphy v. Hunt,

455 U.S. 478 (1982) ............................................... 14

Nash v. Nassau Cty.,

150 A.D.3d 1120 (2d Dep’t 2017) .......................... 17

New York State Rifle & Pistol Ass’n, Inc. v. City of

New York, New York,

140 S. Ct. 1525 (2020). .................................... 13, 14

O'Brien v. Keegan,

87 N.Y.2d 436 (1996) ............................................. 14

Papaioannou v. Kelly,

14 A.D.3d 459 (1st Dep’t 2005) ......................... 6, 17

Pelose v. County Court of Westchester County,

53 A.D.2d 645 (2d Dept.1976) ............................... 17

People ex rel. Darling v. Warden of City Prison,

154 A.D. 413 (1st Dep’t 1913) ............................... 26

Peric v. New York City Police Dep't,

5 A.D.3d 142 (1st Dep’t 2004) ............................... 28

Perros v. Cty. of Nassau,

238 F. Supp. 3d 395 (E.D.N.Y. 2017).................... 16

Peterson v. Kavanagh,

21 A.D.3d 617 (3d Dep’t 2005) .............................. 26

Ramos v. New York City Dep't of Educ.,

447 F. Supp. 3d 153 (S.D.N.Y. 2020) .................... 24

vii

Rogers v. Grewal,

140 S. Ct. 1865 (2020) ............................... 11, 19, 20

Sewell v. City of New York,

182 A.D.2d 469 (1st Dep’t 1992) ............................. 6

Sibley v. Watches,

501 F. Supp. 3d 210 (W.D.N.Y. 2020)................... 12

Tate v. O'Neill,

187 A.D.3d 684 (1st Dep’t 2020) ........................... 27

Taveras v. New York City, New York,

2021 WL 185212 (S.D.N.Y. Jan. 17, 2021) ..10, 18, 19

Toussaint v. City of New York,

2018 WL 4288637 (E.D.N.Y. Sept. 7, 2018) ......... 16

Velez v. DiBella,

77 A.D.3d 670 (2d Dep’t 2010) .............................. 27

Ventura de Paulino v. New York City Dep't of Educ.,

959 F.3d 519 (2d Cir. 2020) .................................. 23

Winters v. New York,

2020 WL 6586364 (S.D.N.Y. Nov. 9, 2020) .......... 12

Statutes

20 U.S.C. 115(j) ........................................................ 24

28 U.S.C. § 1254(1)..................................................... 2

N.Y. Penal Law § 265.01-b ........................................ 4

N.Y. Penal Law § 400.00 ...................................passim

Regulations

38 RCNY 3-03 ....................................................passim

38 RCNY 3-05 ........................................................... 21

38 RCNY 3-06 ........................................................... 21

38 RCNY 5-10 ....................................................passim

38 RCNY 5-11 ................................................... 7, 9, 15

38 RCNY 5-28 ............................................................. 7

1

PETITION FOR WRIT OF CERTIORARI

______________________

Ralph Abekassis (“Petitioner”) respectfully petitions

for a writ of certiorari to review the judgment of the

Second Circuit of Appeals.

LIST OF ALL PROCEEDINGS

United States Court of Appeals for the Second Circuit,

No. 20-3038, Abekassis v. New York City, New York,

judgment entered March 4, 2021, and motion for

reconsideration denied March 26, 2021. App-1; App-3.

The Second Circuit order is unreported, but is

available at 2021 WL 852081, at *1 (2d Cir. Mar. 4,

2021) and reproduced at App-1.

United States District Court for the Southern District

of New York, No. 1:19-cv-08004-PAE, Abekassis v.

New York City, final judgment was entered August 7,

2020. App-4-17. The district court opinion is reported

at Abekassis v. New York City, New York, 477 F. Supp.

3d 139 (S.D.N.Y. 2020), judgment vacated, appeal

dismissed, No. 20-3038, 2021 WL 852081 (2d Cir.

Mar. 4, 2021) and reproduced at App-4.

2

STATEMENT OF JURISDICTION

The Second Circuit issued its judgment on

March 4, 2021. Petitioner filed a timely motion to

reconsider on March 18, 2021, which the court denied

on March 26, 2021. On March 19, 2020, this Court

extended the deadline to file any petition for a writ of

certiorari due on or after that date to 150 days. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Second Amendment to the United States

Constitution, and the relevant portions of the New

York State Penal Law and the Rules of the City of

New York are reproduced at App-47.

STATEMENT OF THE CASE

Thirteen years ago, the Court held that the Second

Amendment “conferred an individual right to keep

and bear arms” and that “self-defense…was the

central component of the right itself.” District of

Columbia v. Heller, 554 U.S. 570, 595, 599 (2008). In

June 2010, the Court held that the Second

Amendment applies in full force and effect to state

and local governments. McDonald v. City of Chicago,

561 U.S. 742 (2010).

Rather than bring its regulations into constitutional

compliance, just four months later1 New York City

1 See, “§ 5-10 Grounds for Denial of Handgun License”, The

City Record, Michael R. Bloomberg, Mayor, October 29, 2010 at

3

further restricted the Second Amendment right to

self-defense by expanding the grounds under which a

handgun license (home and carry) can be denied to

include, inter alia, dismissed charges; poor driving

history, driver’s license suspensions, being declared a

scofflaw; failing to pay legally required debts such as

child support, taxes, fines or penalties imposed by

governmental

authorities;

and/or

any

other

‘information demonstrating an unwillingness to abide

by the law, lack of candor toward lawful authorities,

lack of concern for safety, or other good cause for the

denial of the license’. 38 RCNY 5-10(a), (h), (l), (n).

App-49.

A license is not required to lawfully possess rifles and

shotguns outside of New York City. In the City,

however, not only is a permit required, but the City

employs the same “grounds for denial” to bar the

possession of rifles and shotguns for self-defense, as it

uses for handguns. 38 RCNY § 3-03. App-49.

The historically rooted, constitutionally guaranteed

individual “right” to self-defense does not exist in New

York City but languishes as a mere “privilege” in a

pre-Heller world. When its unconstitutional firearm

restrictions are challenged, the City manipulates

appellate review by attempting to moot the live

controversy.

Petitioner, age 34, is a resident of New York City.

Petitioner has no criminal convictions and no

historically recognized prohibitors to the purchase or

p. 3060.

https://www1.nyc.gov/assets/dcas/downloads/pdf/cityrecord/

cityrecord-10-29-10.pdf

4

possession of firearms. App-9-11. In 2018, Petitioner

applied to the NYPD License Division for a license to

possess a handgun in his home for self-defense. 2 App9.

Notwithstanding this Court’s holding in Heller, that

the right to possess handguns for self-defense is

absolute, barring the existence a longstanding and

accepted disqualifier to firearm possession (i.e., felons

and the insane), the License Division denied his

application. The License Division determined that

Petitioner was ‘ineligible’ to possess handguns due to

(i) his lack of good moral character and (ii) other ‘good

cause’ to deny the application under Penal Law §§

400.00(1)(b), (n). App-9-10.

In New York City, lack of good moral character and/or

‘good cause’ to deny a handgun license application is

determined by the enumerated “Grounds for Denial”

found in the Rules of the City of New York, Title 38 at

§ 5-10. App-51-53.

Relying on 38 RCNY 5-10(a), (h), (l), and (n),

Petitioner was deemed ineligible and unfit to possess

a handgun in his home for self-defense based on an

arrest at the age of 15, which the N.Y. City Law

Department declined to prosecute, untimely-paid

2 Mere possession of a loaded handgun in New York without a

license, whether at home or in public, is a felony offense,

punishable by incarceration, fines, and the forfeiture of one’s

Second Amendment rights. N.Y. Penal Law § 265.01-b. The

lawful possession of a handgun requires applying for and

obtaining a pistol license from a statutory licensing officer. N.Y.

Penal Law § 400.00. App-48.

5

fines, non-criminal infractions, and his driving

history. App-9-12.

Petitioner filed an administrative appeal with the

Appeals Unit of the License Division, which was also

denied. App-10-12.

Petitioner filed an action in the Southern District of

New York challenging 38 RCNY § 5-10 (a), (h), (l), and

(n)3 as unconstitutional, both facially and as applied.

App-12-13. Mere arrests, driving histories, nonpayment

of

fines,

and

general,

subjective

determinations that an individual lacks a ‘concern for

safety’ have no support in either the text or history of

the Second Amendment as disqualifiers to the

possession of firearms.

The district court granted the City’s motion to dismiss

for failure to state a claim. Appendix C. Rather than

analyze whether the § 5-10 factors violate the Second

Amendment, the court erroneously accepted the

factors as legitimate disqualifiers to firearm

possession in the first instance. From there, the

district court reasoned that, because Petitioner fell

into the category of individuals affected by the § 5-10

factors – an arrest with no resulting conviction; poor

driving history; and untimely payment of

government-imposed fines – Petitioner is not a “lawabiding”

individual.

As

a

“non-law-abiding”

individual, Petitioner was thus unentitled to the full

protections of the Second Amendment. App-22-25.

Applying a rational basis test, labeled as

“intermediate scrutiny”4 5, the court held that the § 53 Hereinafter, the “§ 5-10 factors”.

4 App.25-31.

6

10 factors are reasonably related to the City’s interest

in public safety and crime prevention – despite

Heller’s flat rejection of interest balancing tests.

App.32-46.

After Petitioner’s brief was fully submitted, detailing

the unconstitutional analysis conducted by the district

court, and just days before the City’s brief was due,

the License Division emailed Petitioner directly and

instructed him to pick up his handgun license at

Police Headquarters. App-57. At the time of the email,

there was no handgun license application pending, as

Petitioner did not reapply after the City found him

ineligible and unfit to possess handguns in 2019.

After sending an [unsolicited] handgun license to the

same Petitioner it deemed unfit to possess handguns

and dangerous, the City moved to dismiss the appeal

as moot. In opposing the City’s motion dismiss the

appeal on mootness grounds, Petitioner argued that

the regulations remain unchanged - the City did not

cease the challenged conduct. Petitioner remains

subject to the regulations. NYC handgun licenses are

temporary and required to be renewed every three

5 New York’s federal courts characterize Second Amendment

analysis as ‘intermediate scrutiny’ to bring their analysis in

line with a few other circuits depending on the Second

Amendment implications raised. In its application, however, the

scrutiny is the same ‘rational basis’ review conducted by the New

York state courts. See, e.g., Gulotta v. Hart, 119 N.Y.S.3d 830

(N.Y. Sup. Ct. 2019) (“Court’s function is limited to ascertaining

whether there is a rational basis for the agency’'s determination”

to deny handgun license application”) citing cases decided preHeller and McDonald - Papaioannou v. Kelly, 14 A.D.3d 459 (1st

Dep’t 2005); Kaplan v. Bratton, 249 A.D.2d 199 (1st Dep’t 1998);

Sewell v. City of New York, 182 A.D.2d 469 (1st Dept 1992).

7

years. 38 RCNY 5-28, App-53. Petitioner will be

subject to the same challenged “grounds for denial”

three years from now and every three years

thereafter. Handgun licenses are also revocable for

“any disqualification under this section”. 38 RCNY 511, App-53. Repetition of the harm is likely any time

Petitioner violates any rule or regulation, including

traffic infractions and failing to pay fines on time. If

Petitioner is merely ‘accused’ of violating a statute or

regulation while under the discretionary control of the

License Division, his handgun license can be

suspended or revoked.

In a three-sentence order, the Second Circuit

summarily granted the City’s motion to dismiss the

appeal as moot, without explanation, citing

Libertarian Party of Erie County v. Cuomo, 70 F.3d

106, 122 (2d Cir. 2020). The district court decision was

vacated and remanded with instructions to dismiss

the complaint. App-1.

Petitioner promptly filed a motion to reconsider.

Libertarian Party is an inapposite case in which the

actions of three of the plaintiffs, not the defendants’

actions, mooted the controversy. For two of the

plaintiffs, death and relocation out of state mooted the

controversy. The third plaintiff both applied for and

was issued a handgun license during the pendency of

the case. Unlike Libertarian Party, Petitioner neither

died, relocated, nor reapplied for a handgun license.6

6 In Libertarian Party, one plaintiff applied for a New York State

handgun license during the litigation to avoid a dismissal on

standing grounds because he had not subjected himself to the

licensing scheme he was challenging nor did he claim futility in

that regard. The judicial licensing officer issued the handgun

8

Rather, in an effort to forestall appellate review of its

unconstitutional policies, the City spontaneously and

unilaterally issued a handgun license to Petitioner in

order to moot the controversy.

Unlike Libertarian Party, the City’s post-filing

conduct had no effect on the live controversy;

Petitioner received none of the relief sought in his

complaint and continues to be subject to the

challenged regulations.

With even less content than its summary grant of the

City’s motion to dismiss the appeal as moot, the

circuit denied Petitioner’s motion to reconsider

without addressing the distinction between this case

and Libertarian Party. App-3.

The City’s conduct is not just capable of repetition and

likely to evade review, the City’s intentional

orchestration of conduct designed to evade review all

but guarantees it.

REASONS FOR GRANTING THE PETITION

The Second Circuit’s dismissal of Petitioner’s appeal

sanctions the City’s intentional interference with the

judicial system, shields the City’s “grounds for denial”

from review, and saves the City from having to

articulate a defense for its egregious Second

license to the plaintiff in response to the plaintiff’s application –

not sua sponte and in the absence of a pending application like

the City did here.

9

Amendment violations in

McDonald, and Caetano7.

the

face

of

Heller,

Without a reversal of the court’s determination of

mootness, the City’s unconstitutional infringements

will evade review ad infinitum. Every time a

challenge arises, the City need only mail a license to

the challenger and declare the controversy moot. This

case cries out for an exercise of this Court’s

supervisory power.

The controversy is capable of repetition because

Petitioner is required to renew his handgun license

every three years8 under the same discretionary

scenario the City relied on to deny his right to possess

a handgun at home in the first instance. There is

nothing to prevent the City from denying Petitioner’s

renewal three years from now.

Second, Petitioner remains subject to the § 5-10

factors as long as he has a license, which means that

“at disqualification” under the broad “grounds for

denial” of 5-10 creates a basis for suspending or

revoking Petitioner’s license – dismissed charges,

arrests with no disqualifying conviction, vehicle and

traffic infractions, another summons related to his

ownership/operation of his boat, failure to pay a fine

on time, and the like. Even jaywalking arguably

constitutes an “unwillingness to abide by the law”

giving rise to the denial of his renewal application,

suspension, or the revocation of his handgun license.

38 RCNY 5-10, App-51; 38 RCNY 5-11, App-53.

7 Caetano v. Massachusetts, 577 U.S. 411 (2016).

8 38 RCNY 28, App-53.

10

Third, it is clear from this case that the City issued a

handgun license to Petitioner to evade review of its

unconstitutional policies, as nothing has changed

relevant to Petitioner’s background and history since

the time of his original application.

As of the drafting of this petition, the City is

attempting to avoid review of a substantially similar

matter pending in the Second Circuit, Taveras v. New

York City, et al. Taveras challenges 38 RCNY 3-03 in

the context of the denial of a rifle/shotgun permit for

home possession. App. As noted above, if the City

merely mails Mr. Taveras a license, particularly

where the Second Circuit has already held such

conduct moots a live controversy, a controversy

capable of repetition will also evade review.

The Second Circuit’s tolerance of the City’s intentional

manipulation of the review process insulates the

City’s unconstitutional “grounds for denial” from bona

fide review by this Court.

Unlike NYSRPA v. City, where the City at least

amended its unconstitutional regulations, the City

has neither amended nor rescinded 38 RCNY 5, which

was the relief Petitioner sought in his complaint.

Petitioner received a handgun license, but he did not

receive any of the relief he sought in his complaint.

There has been no “voluntary cessation of the

challenged practice”. The § 5-10 factors – mere arrests

(even for non-criminal violations), poor driving

history, suspensions, inability to pay legally required

debts, or any “unwillingness to abide by the law, a

lack of candor towards lawful authorities, lack of

concern for the safety of oneself and/or other persons”

11

or any “other good cause” - remain in full force and

effect to deny the right to possess firearms for selfdefense and will continue to evade review if the

Second Circuit’s decision stands.

Despite the historically sound findings and precedent

of Heller, McDonald, and Caetano, courts in the

Second Circuit continue to perpetuate a rational basis

“public interest” analyses to Second Amendment

challenges to New York’s discretionary licensing

statutes. Seizing on this Court’s use of the phrase

“law-abiding” in Heller, the courts in the Second

Circuit continue to uphold the denial of the right to

possess firearm for self-defense – whether inside the

home or in public - based on mere arrests, unproven

accusations, violations of vehicle and traffic laws, and

similar events and conditions lacking any historical

roots as disqualifiers to gun possession. Even with the

benefit of Justice Thomas’ detailed and instructive

dissenting opinion in Rogers v. Grewal, 140 S. Ct.

1865 (2020) courts in the Second Circuit remain

entrenched in their pre-Heller analysis of the Second

Amendment - or are simply tone deaf.

Although the district court’s decision was vacated, the

district courts’ reference to and/or reliance on its

analysis and misapplication of the term “law-abiding”

will continue. See, Taveras v. New York City, New

York, No. 20 CIV. 1200 (KPF), 2021 WL 185212, at *7

(S.D.N.Y. Jan. 17, 2021) (citing Abekassis in upholding

City’s denial of rifle/shotgun permit for home

possession under 38 RCNY 3-03 “Grounds for

Denial”); Fusco v. Cty. of Nassau, 492 F. Supp. 3d 71,

75 (E.D.N.Y. 2020) (dismissing case where Nassau

County revoked handgun license and barred long gun

12

possession for five years in absence of criminal

conviction); Sibley v. Watches, 501 F. Supp. 3d 210,

229 (W.D.N.Y. 2020) (citing Abekassis

for the

proposition that, inter alia, mere allegations of

domestic violence are “paradigmatic ‘red flags’ often

cited as a basis for denying a firearms license”); and

Winters v. New York, No. 20-CV-8128 (LLS), 2020 WL

6586364, at *4 (S.D.N.Y. Nov. 9, 2020) (in a Second

Amendment challenge to the issuance of an Extreme

Risk Protection Order, the court cited Abekassis for

the proposition that the “moral character” factors in

New York State’s licensing scheme “do not implicate

the Second Amendment’s core, because they deny

such possession only to persons who are found not to

be ‘law-abiding and responsible’ ”).

Abekassis is further cited in at least 1 treatise: § 7.

Generally, 5B Ordinance Law Annotations Weapons §

7 (Provision of city’s gun licensing law that required

consideration of whether a license applicant had a

poor driving history, multiple driver license

suspensions, or had been declared a scofflaw was a

reasonable fit between the goals of public safety and

reduction of crime, on the one hand, and the

regulatory scheme, on the other, and thus did not

violate Second Amendment on its face; such data had

capacity, including when viewed alongside other

factors in other provisions of the law, to reveal

whether the applicant had complied with, or

disobeyed and disrespected, another state licensing

scheme aimed at assuring public safety.).

Petitioner is law abiding and responsible within the

meaning intended by the majority in Heller and

consistent with all historically accepted disqualifiers

13

to firearm possession, yet he and numerous untold

others will continue to be subject to unconstitutional

regulations if the City is not brought to heel.

I.

The Case In Controversy Is Not Moot

The standard for establishing mootness is

“demanding” and this Court has been “particularly

wary of attempts by parties to manufacture mootness

in order to evade review, as the City has done in this

case. NYSRPA v. City, 140 S. Ct. at 1533 (cases cited).

First, the case was not moot because Petitioner has

not been provided with any of the relief sought in the

complaint. Petitioner’s complaint did not seek the

issuance of a discretionary handgun license. Rather, it

sought to strike and enjoin the challenged portions of

§ 5-10 and a declaration from the court that the

regulations violate the Second Amendment and

Petitioner’s rights thereunder.

The § 5-10 factors remain unscathed by the City’s

issuance of a handgun license to Petitioner.9 In

The complaint also sought to enjoin certain N.Y. Penal Law

statutes criminalizing non-prohibited individuals for the ‘mere

possession’ of a handgun for self-defense in the home because the

exercise of a preexisting and protected right does not require

prior permission from the government. Rather than bring its

regulations into compliance after this Court’s decisions in Heller

and McDonald, the City and New York State became more

restrictive of their residents’ Second Amendment rights. Indeed,

even California does not criminalize the mere possession of a

firearm in the home for self-defense. The complaint below also

sought statutory attorney’s fees, costs, disbursements, and such

further and alternative relief as the court deemed just and

proper.

9

14

issuing Petitioner a license, Petitioner remains subject

to the same discretionary licensing scheme he has

challenged – a discretionary license over which the

licensing officer has “broad discretion”. Indeed, the

City has as much “broad discretion” to revoke the

license or deny its renewal as it had in granting the

license in the first instance. See, e.g., Aron v. Becker,

48 F. Supp. 3d 347, 371 (N.D.N.Y. 2014) citing,

O'Brien v. Keegan, 87 N.Y.2d 436, 439–40, 639

N.Y.S.2d 1004, 663 N.E.2d 316 (1996) (“A licensing

officer's decision will not be disturbed unless it is

arbitrary and capricious.).

The controversy is not moot because, relative to a

handgun license, the City can take or give as it sees

fit. “All that matters for present purposes is that the

City still withholds from petitioners something that

they have claimed from the beginning is their

constitutional right.” NYSRPA v. City, 140 S. Ct. at

1534 (Alito, J. dissenting). The City is withholding

Petitioner’s ability to exercise his preexisting right to

self-defense.

Second, this controversy is capable of repetition yet

evading review. Honig v. Doe, 484 U.S. 305, 318 (1988)

citing, Murphy v. Hunt, 455 U.S. 478, 482 (1982).

There is a “demonstrated probability” that the same

controversy will recur when Petitioner applies for

renewal of his license. Id.

Under N.Y. Penal Law § 400.00(1), “[n]o license shall

be issued or renewed” if the individual is ineligible

under the statute. App-47. Petitioner’s handgun

license application was denied because the License

Division deemed him ‘unfit’ to possess handguns.

15

Under the § 5-10 factors, the City deemed Petitioner

unfit to possess a handgun in his home for self-defense

because, inter alia, he was accused of a crime close to

20 years ago that the City itself declined to prosecute,

vehicle and traffic violations, paying traffic tickets

late, driver’s license suspensions for late payment of

tickets. Because of his history, the City feels that

Petitioner has “an unwillingness to abide by the law”,

“lacks concern for the safety of other persons and/or

for public safety”. 38 RCNY 5-10(n), App-53.

Nothing has changed since the License Division’s

denial of his application – Petitioner is the same

person he was when the City [wrongfully] deemed him

‘dangerous’ and ‘unfit’ to possess guns. The same

factors will still be present when it is time for

Petitioner to renew his license. Nothing will prevent

the same licensing officer or a new licensing officer

from denying his renewal application. In fact, given

the original denial the case law that has flown from

this litigation and its progeny, it is very likely that

Petitioner’s renewal will be denied. Even if Petitioner

is not denied based on his past, any similar

indiscretion between each renewal period forms the

basis for the City to deny his renewal. 38 RCNY 5-11,

App-51.

Yet, when the City’s disingenuous and generalized

‘public safety’ arguments, adopted without question by

the courts in the Second Circuit, are at risk of being

exposed and rejected, the City cuts and runs. The

City’s sole motivation for issuing Petitioner a handgun

license at the appellate level was to protect its

unconstitutional licensing scheme.

16

It is well settled that a defendant's voluntary

cessation of a challenged practice does not deprive a

federal court of its power to determine the legality of

the practice. City of Mesquite v. Aladdin's Castle, Inc.,

455 U.S. 283, 289 (1982). In City of Mesquite, this

Court wisely recognized that, where the city of

Mesquite repealed the objectionable language, nothing

prevented it from “reenacting precisely the same

provision if the District Court’s judgment were

vacated.” Ibid.

The City has not “ceased the challenged practice” –

voluntarily or otherwise. In three years, Petitioner

will be subject to the same “grounds for denial” when

his license expires and he is required to renew it;

nothing prevents the City from denying that renewal

and each future renewal every three years thereafter

under the same objectionable regulations.

Petitioner is continuously subjugated to the § 5-10

factors so long as he is a licensee. The City may use

the § 5-10 factors to suspend or revoke Petitioner’s

handgun license through the “broad discretion”10

10 In New York, possession of a handgun is a “privilege”, subject

to the “broad discretion” of a licensing officer, that can be

suspended or revoked at “any time”. Toussaint v. City of New

York, No. 17-CV-5576, 2018 U.S. Dist. LEXIS 152985, 2018 WL

4288637, at *7 (E.D.N.Y. Sept. 7, 2018) (dismissing case because

the plaintiff “cannot show that he has a protected liberty or

property interest in a handgun license; Perros v. Cty. of Nassau,

238 F. Supp. 3d 395, 401 (E.D.N.Y. 2017) (“Under New York law,

it is well-settled that the possession of a handgun license is a

privilege, not a right.” (internal citations omitted)); c.f., Kuck v.

Danaher, 600 F.3d 159, 165 (2d Cir. 2010) (suggesting that, while

a Connecticut plaintiff has a liberty interest in a firearm permit,

a New York plaintiff may not have one because New York

licensing officers have broader discretion in issuing firearm

licenses).

17

afforded licensing officers [Boss v. Kelly, 306 F. App’x

649, 650 (2d Cir. 2009) (quoting Papaioannou v. Kelly,

14 A.D.3d 459, 460 (1st Dep’t 2005)); Nash v. Nassau

Cty., 150 A.D.3d 1120, 1121, 52 N.Y.S.3d 670 (2017)

(affirming revocation of handgun license after

acquittal of criminal charges, which was supported by

a “rational basis”)], which New York courts routinely,

in cult-like fashion, affirm under a rational basis

review.

If the 5-10 factors are left intact, any violation of the

Vehicle and Traffic Law, unpaid government imposed

fine, and/or non-criminal summons Petitioner

experiences within the next three years, and at any

time thereafter, places him at risk of having his

license suspended, revoked, or not renewed because he

will be deemed ‘unfit’ and a ‘public danger’ for not

being ‘law-abiding’. See, e.g., Aron, 48 F. Supp. at 371

quoting Pelose v. County Court of Westchester County,

53 A.D.2d 645 (2d Dept.1976), appeal dismissed 41

N.Y.2d 1008 (N.Y.1977) (New York State “has a

substantial and legitimate interest and indeed, a

grave responsibility, in insuring the safety of the

general public from individuals who, by their conduct,

have shown themselves to be lacking the essential

temperament or character which should be present in

one entrusted with a dangerous instrument.”).

What the City giveth, the City remains free to taketh

away. This case is not moot. Petitioner’s ‘concrete

interest in the outcome of the litigation’ [Chafin v.

Chafin, 568 U.S. 165, 172 (2013)] remains unaltered.

18

II. The City’s Practice of Preventing Review

Continues, and Will Continue

The public policy ramifications of a denial of certiorari

are vast and exceed the harms to Petitioner. The § 510 factors continue to deprive hundreds of New York

residents of the right to self-defense. Not only is the

City likely to repeat its behavior relative to Petitioner,

if left unchecked the City will continue to engage in its

pattern and practice of enforcing unconstitutional

regulations, making public policy arguments in

defense of its regulations, and then abandoning such

arguments by issuing a license rather than risking a

bona fide appellate review.

As an example, the undersigned represents the

appellant in Taveras v. New York City, supra, which is

scheduled for oral argument in October 2021. In

Taveras, appellant applied to the City for a

rifle/shotgun permit to possess rifles and/or shotguns

in his home.11

Mr. Taveras, who has no criminal convictions, was

denied a rifle/shotgun permit12 under the “Grounds

for Denial” of a rifle/shotgun permit in 38 RCNY 3-03,

11 In New York City all firearms – handguns, rifles, and shotguns

– are subject to discretionary licensing, and the same “grounds for

denial”. Compare, 38 RCNY 5-10 and 38 RCNY 3-03. App-51;

App-49.

12 Mr. Taveras was arrested once and subject to an order of

protection in August 2011 based on allegations from a woman

who was his ex-girlfriend at the time the allegations were made.

The charge was dismissed on the merits and the order of

protection was vacated. In November 2011, the same ex-girlfriend

attempted to file a second complaint, which was investigated by

the NYPD and never resulted in an arrest or charges being filed.

19

which are the same factors enumerated in § 5-10.

App-49; 51. In denying his rifle/shotgun permit, the

City claimed Mr. Taveras was ‘dangerous’ and noted

the City’s strong interest in ‘public safety’,

notwithstanding the lack of a conviction or other

longstanding, historically recognized disqualifying

event.

Citing the district court’s decision in Abekassis and

implementing the same rational basis analysis

applied in Abekassis, the district court dismissed Mr.

Taveras’ complaint.13 Mr. Taveras’ appeal to the

Second Circuit followed.

Seeking to prevent review of its rifle/shotgun

regulations, on August 9, 2021 the City sent the

undersigned an email offer to issue Mr. Taveras –

previously deemed by the NYPD License Division a

13 The district court seemingly mocked Mr. Taveras for “rel[ying]

almost entirely on a dissenting opinion written by Justice

Thomas, joined by Justice Kavanaugh, in Rogers v. Grewal, 140

S. Ct. 1865 (2020)” when arguing that tiers of scrutiny and

‘interest balancing’ was ‘inappropriate’ therein because the § 303 factors could not survive any level of scrutiny. Taveras, at *8.

The court reiterated, “the Second Circuit has consistently held

that the Second Amendment's core protections apply only to

those who are “law-abiding and responsible... heightened

scrutiny is triggered only by those restrictions that...operate as a

substantial burden on the ability of law-abiding citizens to

possess and use a firearm for self-defense…although the

challenged rifle/shotgun licensing provisions apply to

rifle/shotgun ownership in the home, they do not implicate the

general populace. Instead, they are explicitly aimed at

identifying those applicants who, in the eyes of City lawmakers,

are not law-abiding or responsible.” (emphasis added). Ibid.

20

‘dangerous’ domestic abuser14 - a rifle/shotgun permit

‘in settlement of the case’. App-58.15 Once again, the

City attempts to manipulate the judicial process,

appellate review, and prolong the inevitable finding

that its regulations are unconstitutional. As with the

§ 5-10 factors, the City has neither amended nor

rescinded the “grounds for denial” under 38 RCNY 303.

While the possession of rifles and shotguns in New

York State does not require a license, a resident of the

City must obtain a license to possess any type of

firearm – handgun, rifle, or shotgun. All firearms are

subject to the same discretionary standards.

In Heller, this Court declared that there is an absolute

right of individuals with no longstanding, historically

recognized prohibitors to firearm possession to keep

and carry any weapon in common use for self-defense.

14 As with the plaintiff, Alan Taveras has no criminal convictions

and no disqualifiers to firearm possession.

15 The City’s email offering what is characterized as a

‘settlement’ of the appeal through the issuance of a rifle/shotgun

permit to Mr. Taveras was unsolicited, as was the City’s issuance

of a license to Petitioner herein. Intending that the City’s ‘public

safety’ defense – utterly transparent at this point - not be outed

as the pretext that it is, at the top of the City’s email was the

phrase “Confidential Communication under FRE 408.” Apart

from the inapplicability of Federal Rule of Evidence 408 outside

of trial, the issuance of a gun license does nothing to resolve the

unconstitutionality of the City’s firearm regulations in

settlement of the complaint. The City is plainly unwilling to

comply with the Constitution and this Court’s precedent and will

continue to take action to evade review. Indeed, all that is

necessary for the City to continue to evade review well into the

future is to mail a license to anyone seeking appellate review of

a decision that might result in an adverse ruling.

21

Heller, 554 U.S. at 626. The application of this Court’s

ruling to the states was confirmed in McDonald in

June 2010.

Just four months later, in October 2010, the City

created the § 5-10 factors to further restrict the ability

of its residents to exercise the right to self-defense. 16

At the same time that the City restricted access to

handguns, it also amended the rifle/shotgun

regulations, subjecting access to rifles and shotguns to

the same “moral character” and “good cause”

determinations that apply to handguns.17 As with

handgun licenses in the City, rifle/shotgun permits

may also be suspended or revoked at any time and are

subject to renewal every three years.18

There is no Second Amendment “right” in New York

City. The possession of any type of firearm – handgun,

rifle, or shotgun –is a “mere privilege” subject to the

discretion of the City to grant or refuse to issue at will.

The City stripped Petitioner and Mr. Taveras of the

Second Amendment right to self-defense based a

pretextual ‘public safety’ claim – the same claim it

made to this Court in NYSRPA v. City of New York,

until review was imminent.

16 See, amendments to Ҥ 5-10 Grounds for Denial of

Handgun License”, The City Record, Michael R. Bloomberg,

Mayor, October 29, 2010 at p. 3060.

https://www1.nyc.gov/assets/dcas/downloads/pdf/cityrecord/

cityrecord-10-29-10.pdf

17 See, amendments to “§ 3-03 Grounds for Denial of Permit”;

§ 3-05, The City Record, Michael R. Bloomberg, Mayor,

October 29, 2010 at p. 3060.

https://www1.nyc.gov/assets/dcas/downloads/pdf/cityrecord/

cityrecord-10-29-10.pdf

18 38 RCNY 3-05; 38 RCNY 3-06.

22

Apart from the fact that Heller flatly rejected public

safety “interest balancing”, whatever credibility the

City may have had at one point to make such an

argument, like the boy who cried wolf, their claims fall

on deaf ears. New York City’s policies and practices

require this Court’s review.

III. Disregard for Supreme Court Precedent

Extends Past the Second Amendment

The landscape of New York’s federal jurisprudence for

firearms-related issues exists under a dome through

which the Constitution and Supreme Court precedent

cannot penetrate. But the City’s disregard for the rule

of law is not limited to firearms-related issues.

In the areas of education law, the City engages in the

same type of manipulation that it does in this case

and the Second Circuit’s jurisprudence is similar.

For example, in Honig v Doe, 484 U.S. 305, 318 (1988),

this Court found that the educational claims of

respondent Jack Smith, then age 20, were not moot

despite the fact that he was not imminently faced with

expulsion or suspension proceedings and no longer

lived in the district, because the conduct he originally

complained of was capable of repetition, yet evading

review because he would remain subject to a

unilateral change in placement for conduct related to

his disabilities.

Notwithstanding Honig, in Fiallos v. New York City

Dep’t of Education, No. 19-CV-00334 (JGK) (S.D.N.Y.

September 17, 2019), the City Department of

Education (“DOE”) “stayed” its own obligations under

23

the IDEA to fund pendency placement, without

applying to any court for a stay, by disregarding a

valid administrative order to fund pendency under the

“stay put” provision of the IDEA.19

Only after the plaintiff filed a lawsuit to enforce the

administrative order did the City begin payment.

Upon the City’s motion, the district court dismissed

the case as moot, leaving open and unadjudicated the

issue of whether the City’s self-granted “stay” violated

the “stay-put” provision of the IDEA. The Second

Circuit affirmed the view that the controversy was

moot and not capable of repetition.

“for the injury in this case to recur,

[Fiallos] would have to unilaterally

remove her child from iBRAIN,

transfer her child to a new placement

without a showing that the new

placement was substantially similar,

... pursue another due process

proceeding seeking funding for the

new placement ... receive a favorable

IHO order directing [DOE] to provide

funding for the new placement [,] and

[DOE] would have to decline to

implement

the

order

while

contemplating

an

appeal…The

district court concluded that the

19 When IDEA proceedings are pending, the statutory “stay-put”

or pendency provision provides that the “child is entitled to

remain in his or her placement at public expense.” Ventura de

Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 (2d

Cir. 2020), cert. denied, 141 S. Ct. 1075 (2021), reh’g denied, 141

S. Ct. 1530 (2021).

24

possibility of all these steps occurring

was too remote to show a certainly

impending future injury. For the

reasons in the district court’s wellreasoned order, we affirm.”20

Fiallos 840 F. at 664.21

Without delving into the unusually narrow scope of

the events required to constitute ‘repetition’ of the

controversy, Fiallos represents another example of the

City’s modus operandi: ignore the rule of law until a

lawsuit is filed, then take whatever measures

required to avoid legitimate judicial review of its

conduct, then move to dismiss the action as moot.22

20 The Second Circuit’s holding in Fiallos signifies the Circuit’s

unreasonable view of the exception to the mootness doctrine,

which seems to require the repetition of the exact same factors,

events, which is rare or non-existent. This view creates a burden

that essentially eliminates the exception to the mootness

doctrine. As with Petitioner, in Fiallos the Circuit also made no

mention of the wrongdoer’s actions relevant to the dismissal of

the case as moot.

21 The student in Fiallos had unilaterally changed placement

from public school to iHOPE, from iHOPE to iBRAIN (the subject

of the pendency placement) and, after the Circuit’s affirmance of

the district court’s finding of mootness, the student unilaterally

changed placement back to iHOPE. With each move, the parent

filed a due process complaint and the issue of the City’s funding

of pendency placement under the “stay put” provision of the

IDEA was alive and well. Pendency placement funding continues

every year until the IDEA claim is finally resolved and every time

a child experiences a change in placement. 20 U.S.C. 115(j).

22 See also, F.O v. New York City Dept. of Educ., 899 F. Supp. 2d

251, 254 (2012) (finding the plaintiffs' claim to be moot because

the DOE provided the requested relief); Ramos v. New York City

Dep't of Educ., 447 F. Supp. 3d 153, 157 (S.D.N.Y. 2020)

25

The Circuit courts’ swift dismissal of cases upon the

City’s post-filing conduct signals the federal courts’

endorsement of future harms and frustrates the

administration of justice. The City will continue to act

with impunity because it relies on the courts’

unwillingness to hold it accountable.

Without a decision censuring the City’s actions, its

conduct will continue. Conversely, the Second Circuit

should be required to hold the City accountable for its

conduct, particularly the City’s enforcement of

unconstitutional

firearm

regulations.

Most

importantly, the Second Circuit must be forced to

adhere to this Court’s precedent.

IV. New York Federal and State Courts

Reinforce Their Respective Disregard of Second

Amendment Jurisprudence

Within the confines of New York State’s echo

chamber, its federal and state courts perpetuate

analyses and holdings that contravene this Court’s

precedent, specifically in order to preserve New York’s

pre-Heller Second Amendment landscape.

The New York State handgun licensing scheme under

N.Y. Penal Law § 400.00, et seq., to which the City’s

licensing officer must adhere and upon which 38

RCNY 3 and 38 RCNY 5 are modeled, is a permissive

(granting City’s cross-motion to dismiss case as moot because

DOE agreed to fund pendency placement).

26

and discretionary scheme created in 1911.23 The

factors determining “eligibility” before a license may

issue contain both per se disqualifiers (i.e., felony

convictions, adjudication as mentally defective) and

two subjective “catch-all” factors: “good moral

character” and “any good cause” to deny the

application (or suspend/revoke). § 400.00(1)(b), (n).

The § 5-10 factors are specific, enumerated examples

of events and/or conditions that constitute a “lack of

good moral character” or “good cause” to deny the

issuance of a handgun license. These factors are the

embodiment of a practice that existed before Heller

and continues today.

Citing the “moral character” and “any good cause”

factors of N.Y. Penal Law § 400.00(1)(b) and (n), New

York State courts24 have long held that mere arrests,

23 The Sullivan Law was enacted under the belief that the Second

Amendment (i) does not apply to the states and (ii) is a collective

right related to service in a militia, not an individual right.

Peterson v. Kavanagh, 21 A.D.3d 617, 618 (3d Dep’t 2005)

(“Absent evidence that possession of the pistol bears some

reasonable relationship to the preservation or efficiency of a wellregulated militia, no individual right to possess it is conferred”).

By refusing to accept and adopt Supreme Court jurisprudence

that the individual right to self-defense is protected by Second

Amendment, the courts in New York State continue to regard the

rights of the individual as subordinate to state rights. The view

expressed in People ex rel. Darling v. Warden of City Prison, 154

A.D. 413, 423 (1st Dep’t 1913), remains in full force and effect

today: “The rights of the individual are subordinate to the welfare

of the State.”

24 Under New York State’s handgun licensing scheme, superior

court judges are the statutory licensing officers outside of New

York City and Long Island. As part of the judicial branch of

government, judicial licensing officers interpret and apply the law

in the course of their duties and responsibilities as licensing

27

dismissed charges, and traffic offenses are sufficient

grounds to preclude handgun possession. See, Velez v.

DiBella, 77 A.D.3d 670 (2d Dep’t 2010) (under New

York’s state’s “arbitrary and capricious” standard of

reviewing the denial of a handgun license, applicant’s

prior arrests, despite the dismissal of all but one

charge and the absence of a criminal conviction,

constituted “good cause” to deny a handgun license

and were not arbitrary and capricious); Tate v.

O'Neill, 187 A.D.3d 684 (1st Dep’t 2020) (denial of

license to allow concealed carry for N.Y. State licensed

security guard upheld based on driving history, and

officers. In the five boroughs of New York City, the handgun

licensing officer is the New York City Police Commissioner. The

NYPD Police Commissioner, who is appointed by and serves at

the pleasure of the New York City Mayor, is the enforcer of the

Mayor’s political agenda. As noted above, § 5-10 and the

amendments to 38 RCNY 3 relative to the possession of rifles

and shotguns, were amended 4 months after this Court decided

McDonald. The restrictions for all firearms tightened under the

administration of Michael Bloomberg [FN 12, 13, supra], at or

about the height of its “stop-and-frisk” policy, later declared

unconstitutional. See, Floyd v. City of New York, 959 F. Supp. 2d

540, 589 (S.D.N.Y. 2013) (declaring the City’s “stop-and-frisk”

policy unconstitutional, accepting statistical evidence that “the

NYPD carries out more stops in areas with more black and

Hispanic residents…[t]hese findings are “robust,” in the sense

that the results persist even when the units of analysis are

changed from precincts to census tracts, or from calendar

quarters to months.”). Taken in conjunction with the thenMayor’s public disdain for the Second Amendment (see, e.g.,

“Commentary: Michael Bloomberg: NRA appeal to Supreme

Court puts gun laws at risk”, Chicago Tribune, December 1, 2019

https://www.chicagotribune.com/opinion/commentary/ctopinion-michael-bloomberg-president-gun-control-nra20191201-gz3j52jzdff4xnmc6e6v5zalim-story.html), the § 5-10

and § 3-03 factors, the City’s regulations bear out the calculated

intention to erect a wide barrier to exercise the protected and

individual right to self-defense.

28

‘arrest history’, including a dismissed charge for

injury he caused to a Rottweiler while defending

himself from being attacked by the dog); Gonzalez v.

Lawrence, 36 A.D.3d 807 (2d Dep’t 2007) (where

criminal charges were dismissed, denial of handgun

license deemed not arbitrary and capricious); Peric v.

New York City Police Dep't, 5 A.D.3d 142 (1st Dep’t

2004) (where criminal charges were dismissed, denial

of rifle/shotgun license deemed not arbitrary and

capricious).

In line with the City’s § 5-10 factors, judges outside of

New York City have begun to require individuals

applying for a handgun license to provide their driving

history for use in determining whether to grant or

deny the application for a handgun license, including

applications for home possession only.

If the § 5-10 factors are shielded from a bona fide

constitutional review that comports with the Second

Amendment and this Court’s findings in Heller,

McDonald, and Caetano, then “mere accusations”,

dismissed charges, traffic tickets, and other

unconstitutional barriers25 will continue to be used to

25 For example, the following information required to be disclosed,

which provides a basis to deny a handgun license:

https://suffolkpd.org/Portals/59/scpd_pdfs/formsandreports/PDCS4406n.pdf (Suffolk County: “Has anyone in your household

ever been arrested for a crime?; “Have you received a traffic

summons, or been arrested or convicted for any traffic infraction

in the last five (5) years?”; “Have you, or any member of your

household, ever been evaluated or treated for any mental health

issues?”);

https://putnamsheriff.com/sites/default/files/pistol

permit.pdf (Putnam County: “You must indicate all arrests

(including DWI and DWAI) whether convicted or not, sealed or

adjourned contemplating dismissal.”); https://www.pdcn.org/

29

DocumentCenter/View/112 (Nassau County: “You must obtain

and submit a NYS driving record history also called a “lifetime

abstract”; “Has anyone in your household been arrested for a

felony or serious offense?”; “If you have ever been arrested or

received a Field Appearance Ticket or Criminal Summons from

any law enforcement agency, you must…[a]nswer “Yes” on the

Pistol License Questionnaire, and…[s]ubmit a detailed statement

describing the circumstances surrounding each arrest and its

disposition... even if the case was dismissed, the record sealed, or

the case nullified by operation of law. The NYS Division of

Criminal Justice Services will report to us every instance

involving

the

arrest

of

an

applicant”);

https://publicsafety.westchestergov.com/images/stories/pdfs/2019

wcpdPistolLicense.pdf (Westchester County: “List ALL arrests

and criminal charges that occurred at any time during your

lifetime, including cases that were sealed, dismissed by the courts

or adjudicated youthful offender” (emphasis supplied); “Has

anyone in your household ever…[b]een arrested for a felony or

serious offense...[s]ought or undergone treatment for drug or

alcohol use…[s]ought or undergone treatment for any form of

mental illness, stress-related disorder or condition involving

emotion or behavior control…[h]ad an Order of Protection issued

for them or against them?”); https://www.dutchessny.gov

/Departments/Sheriff/Docs/Pistol-Permit-ApplicationCounty.pdf

(Dutchess County: applicant must provide “NYS DMV Abstract”;

“Copies of all police reports related to applicant arrests or any

report related to an appearance in criminal court. This report

must include a narrative detailing what occurred”; “All arrests

regardless of disposition must be disclosed in this application.

This includes arrests that were dismissed” (emphasis omitted);

character references are required to answer “Do you know of any

contacts that the applicant may have had with the criminal

justice system or of any unfavorable incident(s) involving the

applicant? Please explain (attachment if required)”);

https://www.monroecounty.gov/files/clerk/pistol-permit-apps/

City%20Pistol%20Permit%20Application%202021.pdf

(Monroe

County: “You must state all arrests regardless of whether or not

you were convicted. Sealed charges must also be listed”; “Have

you ever been interviewed by any police officer, sheriff’s deputy,

or any Law Enforcement official in relationship to any crime (if

so, state when, where and the circumstances why you were

questioned)”; “Do you consume alcohol (if so, provide the type of

30

prevent individuals from exercising their right to selfdefense based on events and conditions that have no

longstanding, historical basis as disqualifiers to

firearm possession - not only in New York City, but

throughout New York State.

The people of New York desperately seek an exercise

of this Court’s supervisory power.

alcoholic drink you consume, and how often you consume

alcohol)”; “Within the past 10 years did you have a significant

relationship (if so, list the name, DOB, and contact information of

that person)”; https://www2.erie.gov/ clerk/sites/www2.erie.

gov.clerk/files/uploads/pdfs/Full%20Application%20Packet%20for

%20Printing%2012172020.pdf (Erie County: “You must state all

arrests regardless of whether or not you were convicted. SEALED

charges must also be listed. Failure to disclose any criminal

charges including a dismissed or sealed charge will be sufficient

cause to deny this application.”); https://www.albany

county.com/home/showpublisheddocument/13462/6374666179064

70000 (Albany County: “Ex-spouse(s) or significant other(s)”,

including contact information”); https://www.cayugacounty.us

/DocumentCenter/View/15036/2021-Pistol-Permit-ApplicationPrintable (Cayuga County: “Arrests:... You must disclose any and

all arrests…including DWI/DWAI/Driving While Impaired by

Drugs or other forms of arrest for operating while

intoxicated/impaired (boating, snowmobiling, ATV), juvenile

arrests handled by Family Court, adjudicated as a Youthful

Offender, charges that were dismissed and sealed arrests. Arrests

can be in many different forms including summary

arrests/warrant arrests (taken into custody), and arrest by

appearance ticket or criminal summons directing you to appear

in court at a specified date. Failure to disclose will most likely

result in the denial of your application.”).

31

CONCLUSION

For the foregoing reasons, this Court should

grant the petition for certiorari.

Respectfully submitted,

AMY L. BELLANTONI

THE BELLANTONI LAW FIRM

2 Overhill Road, Suite 400

Scarsdale, New York 10585

(914) 367-0090

abell@bellantoni-law.com

Counsel for Petitioner

August 23, 2021