Supreme Court, Kings County, August 5, 2022

Justine M. Luongo, The Legal Aid Society, Criminal Defense Division, Brooklyn (Laurel Dick of counsel), for defendant.

Eric Gonzalez, District Attorney, Brooklyn (Aleena Peerzada of counsel), for plaintiff.

Defendant is charged in the indictment with criminal possession of a weapon in the second degree, a class C violent felony, under Penal Law § 265.03 and other related charges. Citing the United States Supreme Court decision in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US —, 142 S Ct 2111 [2022]), defendant moves to have his indictment dismissed.

Defendant asserts that Bruen rendered unconstitutional both New York's licensing scheme and the Penal Law sections criminalizing possession of a firearm without a license. Alternatively, defendant argues that this court should find the relevant Penal Law sections unconstitutional under Bruen's "historical tradition" test because the government cannot demonstrate that there was no blanket prohibition on carrying firearms outside the home at the time of the ratification of the Constitution (597 US at —, 142 S Ct at 2126). Citing Shuttlesworth v Birmingham (394 US 147 [1969]), defendant asserts that there is no requirement that he had previously applied for, or been denied, a license to challenge the constitutionality of the statute.

The prosecution asserts, first, that defendant misreads the holding in Bruen which did not find the entire gun licensing scheme, nor any of the Penal Law sections that criminalize gun possession, unconstitutional. Further, the People urge that defendant lacks standing because he has not shown that he had submitted to the challenged policy by applying for a license in the first instance (see United States v Decastro, 682 F3d 160, 164 [2d Cir 2012]). Nor can defendant make a "substantial showing that submitting an application would have been futile" as denial would have been based on the constitutionally defective provisions (id. [internal quotation marks and citations omitted]).

The Office of the Attorney General has informed this court and the parties by letter that they will not intervene in this challenge at this time.{**76 Misc 3d at 927}

This court joins the chorus of other judges in holding that the Bruen decision does not preclude the prosecution for unlawful possession of a firearm of a defendant who did not previously apply for, and was denied, a license (People v Brown, 2022 NY Slip Op 32290[U] [Sup Ct, Bronx County, July 15, [*2]2022, Fabrizio, J.]; People v Rodriguez, 76 Misc 3d 494 [Sup Ct, NY County, July 15, 2022, Mandelbaum, J.]; People v Monroe, Sup Ct, Bronx County, July 14, 2022, Clancy, J., indictment No. 232/2021). The court further finds that the Bruen decision has no bearing on the constitutionality of the statutes criminalizing possession of a firearm because, as expressly stated in Bruen, states maintain the right under the Federal Constitution to require gun licenses for lawful possession (Bruen, 597 US at — n 9, 142 S Ct at 2138 n 9; People v Duszka, Sup Ct, Queens County, July 27, 2022, Yavinsky, J., indictment No. 70499/21).

In Bruen, the Supreme Court held that "New York's proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms" (Bruen, 597 US at —, 142 S Ct at 2156). Specifically, the Court found too "demanding" the requirement that to carry a firearm outside one's home or place of business, the applicant must "demonstrate a special need for self-protection distinguishable from that of the general community" which "generally require[s] evidence of particular threats, attacks or other extraordinary danger to personal safety" (597 US at —, 142 S Ct at 2122-2123 [citations omitted]). Contrary to the 43 other states which are "shall issue" license jurisdictions, the Bruen Court found that New York, as well as six other states and the District of Columbia, are "may issue" license states which provide too much discretion to licensing officials and unconstitutionally hamper "the right of law-abiding, responsible citizens to use arms for self-defense" (597 US at —, 142 S Ct at 2131). Specifically, the Court struck down just that portion of the licensing statute that requires an applicant to show "proper cause exists" for an unrestricted license to "have and carry" a concealed pistol or revolver outside one's home or place of business (597 US at —, 142 S Ct at 2122-2123).

Most notably, the Bruen Court reiterated that nothing in the opinion should be interpreted to suggest that licensing requirements of the type used in the "shall issue" licensing regimes are unconstitutional as these regimes do not require applicants{**76 Misc 3d at 928} to "show an atypical need for armed self-defense"; thus they do not prevent "law-abiding, responsible citizens" from exercising their Second Amendment right to public carry (597 US at — n 9, 142 S Ct at 2138 n 9). To be sure, Justice Kavanaugh, in his concurring opinion, emphasized that the Bruen decision "does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense" (597 US at —, 142 S Ct at 2161). Citing both District of Columbia v Heller (554 US 570, 636 [2008]) and McDonald v Chicago (561 US 742, 786 [2010]), Justice Kavanaugh further stressed that the Second Amendment right is not the right to "keep and carry any weapon whatsoever . . . and for whatever purpose" and states can impose "prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" (597 US at —, 142 S Ct at 2162).

Turning then to the claims of the defendant here, it is clear to this court that Bruen did not strike down the entire licensing statute. The long-standing and constitutionally permissible prohibitions discussed in Bruen remain within New York State's licensing laws, namely that the defendant must be of "good moral character, [and] ha[ve] no history of crime or mental illness" among other items (597 US at —, 142 S Ct at 2122-2123). In fact, the Court left standing that part of the licensing statute related to possessing a firearm in the home or place of business, which requires, in addition to good moral character, a further finding that "no good cause exists for the denial of the license" and all of the eligibility requirements as listed in Penal Law § 400.00 (597 US at —, 142 S Ct at 2123; Penal Law § 400.00 [1]). The Court also left in place other procedural safeguards such as background checks, criminal history and fingerprinting (597 US at —, 142 S Ct at 2162; Penal Law § 400.00 [3], [4]). Because only that part of the New York licensing statute that requires a finding of "proper cause" was struck [*3]down, and a constitutionally permissible licensing provision remains, the Penal Law sections criminalizing the possession of firearms without a license remain constitutional. Therefore, this court need not engage in the "historical tradition" test.

Defendant does not assert that he ever applied for a license and was denied one based on the "proper cause" language at issue in Bruen. Rather, relying on First Amendment jurisprudence, the defendant asserts that he need not have applied for{**76 Misc 3d at 929} the license to challenge the constitutionality of the statute. However, the First Amendment cases relied on by the defense are distinguishable here as those cases involved ordinances that were unconstitutional on their face (Shuttlesworth v Birmingham, 394 US 147 [1969]; Staub v City of Baxley, 355 US 313 [1958] [ordinance requiring labor union to apply for a permit to solicit members unconstitutional on its face]; Jones v Opelika, 319 US 103 [1943] [ordinance requiring religious group to apply for a permit and pay taxes on the distribution of their religious materials unconstitutional on its face]).

For example, in Shuttlesworth, the petitioner challenged an ordinance making it an offense to participate in any parade or procession without first obtaining a permit (394 US 147, 148 [1969]). The ordinance in Shuttlesworth was found to be unconstitutional, on its face, because it gave the licensing officials a virtually unbridled and absolute power to prohibit any demonstration being "guided only by their own ideas of public welfare, peace, safety, health, decency, good order, morals or convenience" (394 US at 150 [internal quotation marks omitted]). It was in this context that the Shuttlesworth Court stated that "a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license" (id. at 151). Defendant's reliance on this statement, out of context, is misplaced.^[FN1]

This court agrees with the People that defendant lacks standing because he did not apply for a license and he has not made a "substantial showing" that submitting an application "would have been futile" (see United States v Decastro, 682 F3d 160, 164 [2d Cir 2012]). Defendant's reliance upon Plummer v United States (983 A2d 323 [DC Ct App 2009]) for the proposition that he need not have applied for a license to have standing is also misplaced. In Plummer, the defendant was convicted of carrying a pistol without a license in violation of Washington, D.C. statutes (id. at 323). The court had to determine whether Mr. Plummer had standing to challenge his conviction given that he never applied for a license to carry a concealed firearm. While not finding that the statutes at issue were facially invalid,{**76 Misc 3d at 930} the court agreed with Mr. Plummer that the carrying provision, as applied to him (an "ordinary citizen"), was "an invalid and unlawful outright ban on the registration [and licensing] of his handgun," similar to the provision of the D.C. licensing statute involving the total ban on handgun possession in the home for self-defense that was struck down in Heller (Plummer at 340-341). Further, the court found Mr. Plummer's futility argument compelling because the Chief of Police had no discretion under the then existing statute and regulations to grant Mr. Plummer a registration certificate, which was required to obtain a license for his handgun (id. at 341 n 18), a fact that the government had to concede (id. at 341 n 19). Unlike the court in Plummer, the Supreme Court in Bruen did not find the New York licensing provision to be a total ban but, rather, found the "proper cause" provision

"constitutionally problematic because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense. Those features of New York's regime—the unchanneled discretion for licensing officials and the special-need requirement—in effect deny the right to carry handguns for self-defense to many ordinary, law-abiding citizens," but clearly not all. (Bruen, 597 US at —, 142 S Ct at 2161 [Kavanaugh, J., concurring] [internal quotation marks omitted; emphasis added].)

Here, defendant, unlike in Plummer, did not make a substantial showing that applying would have been futile because the application would have been denied based on the allegedly constitutionally defective provision in the licensing scheme (Decastro, 682 F3d at 164).

Further, defendant has not shown that he could have overcome the constitutionally permissible restrictions in the licensing provisions reaffirmed as recently as McDonald in 2010 and Heller in 2008 and left standing by the Court in Bruen (see District of Columbia v Heller, 554 US 570, 636 [2008]; McDonald v Chicago, 561 US 742, 786 [2010]). In contrast, the petitioners in Bruen applied for the carry license and were denied based upon the "proper cause" requirement, as evidenced by the fact that the petitioners had already been granted a restricted license for purposes of hunting and target shooting (Bruen, 597 US at —, 142 S Ct at 2123). Having already been granted a license for that purpose, the petitioners{**76 Misc 3d at 931} in Bruen had already demonstrated that they were of "good moral character . . . and that no good cause exists for the denial of the license" (597 US at —, 142 S Ct at 2123 [internal quotation marks omitted]). To be sure, the applicants in Bruen, unlike the defendant here, challenged the denial of their unrestricted carry licenses through proper legal procedures, and not by violating any Penal Law provisions. So too, the plaintiffs in Heller and McDonald.^[FN2]

Accordingly, defendant's motion is denied.