Opinion
103560/2009
6-8-2009
In the Matter of the Denial of the Premise Pistol License of PORFIRIO LLANES, JR., Petitioner For a Judgment under Article 78 of the Civil Practice Law and Rules Granting Petitioner's Home Possession Handgun License, v. RAYMOND KELLY, as the Statutorily Designated Handgun Licensing Officer, and As the Police Commissioner of the City of New York, and His Successors in Office, Respondent.
MEMORANDUM DECISION
Petitioner Porfirio Llanes, Jr. ("petitioner") moves for an order and judgment pursuant to CPLR Article 78: (1) annulling the agency's determination of the respondent Raymond Kelly, as the statutorily Designated Handgun Licensing Officer, and As the Police Commissioner of the City of New York, and His Successors in Office ("respondent") to deny petitioner's simple home possession handgun license, based upon petitioner's right to keep and bear arms as conferred by the Second Amendment of the United States Constitution in accord with the decision in District of Columbia, et al., v Dick Anthony Heller, 128 S.Ct. 2783 (2008); (2) and for an order directing the respondent to conduct an administrative hearing on the issue of the denial of petitioner's constitutional right to possess a handgun within his home, with leave to reinstate the matter to this Court's calendar, if the respondent's determination after hearing is again to deny petitioner's simple home possession handgun license; and granting this Petition in its entirety and issuing an order annulling the agency's determination to deny petitioner's simple home possession handgun license, based upon the statutory considerations and petitioner's entire record, including but not limited to the fact that he carried a handgun as a member of law enforcement for over twenty years.
Background
By application sworn to on June 17, 2008, petitioner applied for a Premises Residence pistol license ("pistol license"). In response to question 23 of the application, which asks the applicant if he has ever been arrested, indicted, or summonsed, for any offense other than parking violations, petitioner marked "yes." Also, in response to question 24 of the application, which asks the applicant if he has ever had an Order of Protection issued against him, petitioner marked "yes." In addition, petitioner submitted an addendum to the June 17, 2008 application, purporting to explain the affirmative answers to questions 23 and 24.
In reviewing petitioner's case, P.O. Scott discovered through a New York State Division of Criminal Justice Services ("NYSDCJS") fingerprint response, dated July 9, 2008, that on April 8, 2005, petitioner was arrested and charged with violating Penal Law § 260.10(1) (Endangering the Welfare of a Child) and Penal Law § 240.26(1) (Harassment in the Second Degree). The fingerprint response further shows that on May 28, 2002, petitioner was arrested and charged with violating Penal Law § 120.14(1) (Menacing in the Second Degree: Weapon). In addition, the NYSDCIS fingerprint response provides that on September 26, 1998, petitioner was arrested and charged for violating Penal Law § 120.25 (Reckless Endangerment in the First Degree). Further, the fingerprint response provides that petitioner was arrested on May 7, 1988 and charged with violating Penal Law § 120.05(1) (Assault in the Second Degree: With Intent to Cause Serious Physical Injury), Penal Law § 195.05 (Obstructing Governmental Administration in the Second Degree), and Penal Law 205.30 (Resisting Arrest). Also, the fingerprint response shows that petitioner was arrested on July 9, 1984 and charged with violating Penal Law §120.05(3) (Assault in the Second Degree: With Intent to Cause Physical Injury to Officer/ Fireman/EMT), Penal Law §205.30 (Resisting Arrest), and Penal Law § 240.20(1) (Disorderly Conduct). The charges against petitioner for each of the above-referenced arrests were ultimately dismissed.
P.O. Scott's investigation further revealed that on April 20, 1999, an Order of Protection was issued against petitioner by a Kings County Family Court judge, based on a complaint filed by petitioner's then wife, Raquel Llanes. In addition, an NYPD Domestic Incident Report ("domestic incident report"), dated April 8, 2005 revealed the circumstances surrounding petitioner's April 8, 2005 arrest. The domestic incident report indicates that Jordan Llanes, petitioner's son, placed a complaint against petitioner for punching and pushing him. In the domestic incident report, the reporting Officer, Noah Molina, documented Jordan Llanes's allegations against petitioner as follows: "Father got up and punched me in the chest because of an argument. Also when I stepped back he put everything down and punched me in the jaw but I turned away so he did not hit me to [sic] bad.
On August 7, 2008, petitioner appeared at the NYPD License Division ("License Division") for an interview with P.O. Scott and submitted an Affidavit, sworn to on August 7, 2008, purporting to further explain the circumstances surrounding his arrests in 1976, 1984, 1988, 1998, 2002, and 2005. On September 10, 2008, after interviewing petitioner and reviewing his application, P.O. Scott recommended disapproval of petitioner's application for a pistol license. The basis of P.O, Scott's disapproval was due to petitioner's arrest history and the circumstances of each arrest.
By Notice of Disapproval dated October 9, 2008, the License Division informed petitioner that his application for a pistol license was disapproved because "you have five violent arrests that occurred [sic] from the year 1984 through 2005 and two of the incidents involved your use or display of a firearm. There was also an order of protection out against you in regards to a 2005 assault against your son. This type of behavior and lifestyle is not suitable for someone seeking a NYC handgun permit."
By an Administrative Appeal Affirmation dated November 4, 2008, John S. Chambers, counsel for petitioner, appealed the License Division's determination denying petitioner's application for a pistol license. In the Administrative Appeal Affirmation, petitioner's attorney requested an administrative hearing.
By Notice of Disapproval After Appeal dated December 4,2008, Thomas M. Prasso, Director of the License Division, informed petitioner that based on his review of the entire record, petitioner's appeal of the License Division's determination denying his application for a pistol license was denied.
By Order to Show Cause dated, March 16, 2009, and Verified Petition, dated March 10, 2009, petitioner seeks, inter alia, to annul the License Division's determination dated December 4, 2008.
Petitioner's Contentions
Petitioner is a 50 year old man who is a retired former member of law enforcement, having nobly and honorably served the City of New York for 22 years as a NYC Department of Correction Officer. Upon retirement as a Correction Officer, which bestows Peace Officer status, petitioner received his full pension, as well as his retiree law enforcement shield. Petitioner is also a licensed Armed Security Guard, having been licensed by the State of New York. Petitioner is also currently licensed to carry a concealed weapon in the State of Florida, which is honored in 28 states across America.
As the record indicates within the License Division, petitioner has no criminal convictions on his record. In fact, a review of his entire record will reveal that petitioner has no non-criminal convictions on his record either. Petitioner also has no history of mental illness whatsoever. He has never been institutionalized for any reason, and he has not been treated by a psychiatrist.
The Second Amendment of the United States Constitution has been interpreted by the U.S. Supreme Court to grant an individual right to "Keep and Bear Arms," rendering New York State's long-entrenched notion of gun ownership being a "privilege and not a right," obsolete.
The Court in Heller, supra, whilst not directly dealing with the issue of "licenses" for handgun possession, made it clear throughout that the Second Amendment grants a "right to keep and bear amis" in one's home for protection. Although the Heller case, supra, never addressed the "licensing requirement" at any length, the issue was indeed touched upon by the Court. The Court further delineated that the "right to keep and bear arms," does not change the "longstanding prohibition" against felons, and the mentally insane.
Petitioner herein in no way objects to the firearms "licensing requirement" within New York State. Petitioner does, however, assert that he is legally qualified for the issuance of a license for home possession of a handgun based upon his Second Amendment "right," as respondent's actions arc in direct conflict with the afore-mentioned Constitutional amendment.
Furthermore, the petitioner respectfully asserts that respondent's apparent unwillingness to recognize the dramatic change in the law following the Heller decision, supra, mandates that respondent tender reasonable legal fees in connection with petitioner's request to have his Second Amendment right finally recognized.
And, petitioner carried a gun as a member of New York City law enforcement for twenty years, submitted multiple character affidavits in connection with this application, and has no criminal convictions on his record. These facts should have been considered by the License Division in mitigation of the dismissed arrests which are at the heart of this denial.
Respondent's Opposition
In determining that petitioner lacked the necessary character and fitness to possess a pistol license, the License Division reviewed the documentation concerning petitioner's prior arrests, the Order of Protection issued against petitioner, the Domestic Incident Report involving a complaint against petitioner by his son, petitioner's pistol license application, and the entire administrative record. The circumstances of petitioner's multiple arrests from the period of 1976 to 2005, the Order of Protection issued against petitioner, and the violent domestic incident involving petitioner and his 14 year old son provided the License Division with a sufficient basis to rationally determine that petitioner lacked the requisite good moral character to be granted a pistol license, and that good cause existed for the denial of the license.
Petitioner's attorney argues in his Affirmation in Support that the License Division ignored the positive elements of petitioner's background, including his lifetime career in law enforcement, in deciding to deny petitioner's application for a pistol license. This argument is wrong. The License Division considered the entire administrative record in making its determination. As such, the License Division found that, despite petitioner's career at the Department of Correction, the above factors demonstrated a lack of character and fitness to possess a pistol license. Accordingly, the License Division's decision to deny petitioner's pistol license application was rational and reasonable and not arbitrary and capricious.
Petitioner erroneously argues in Point Two of the Verified Petition that the License Division's denial of petitioner's pistol license application violates the Second Amendment of the United States Constitution in light of the United States Supreme Court's recent decision in Heller. However, petitioner's understanding of the scope of the Heller decision is misguided.
Petitioner's Reply
Petitioner has only applied for a simple home possession handgun license. This is a very restrictive type of license issued by the respondent under the authority of the New York State Penal Law §400.00. Thus, even if this Court declines to find that the Heller case, supra, is applicable herein, it is respectfully asserted that the decisional law within this jurisdiction supports the granting of this petition.
Respondent has denied this license application based upon his " arrest history," which includes no convictions whatsoever.
Respondent, while holding these dismissed arrests against petitioner, has ignored the fact that petitioner served the City of New York as a member of law enforcement (Correction Officer/Peace Officer) for more than two decades.
Despite the pages and pages and pages that were both designed and devoted to making Mr. Llanes' character look absolutely terrible within respondent's answering papers, there can be no doubt that someone who, 1) has no convictions on his record, and 2) spent more th an two decades as a member of the NYC law enforcement community, possesses the necessary "moral character" to be licensed for home possession of a registered handgun.
Over the years, whilst great deference has always been given the NYC handgun licensing officer, the Courts have recognized that accountability, responsibility, and trustworthiness cannot simply be overlooked by the handgun licensing officer.
Analysis
CPLR 7803 states that the court review of a determination of an agency, such as License Division, consists of whether the 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, including abuse of discretion as to the measure or mode of penalty imposed. CPLR 7803(3) (see Windsor Place Corp. v New York State DHCR, 161 A.D.2d 279 [1st Dept. 1990]; Mazel v DHCR, 138 A.D.2d 600 [1st Dept. 1988]; Bambeck v DHCR, 129 A.D.2d 51 [1st Dept. 1987], lv. den. 70 N.Y.2d 615 [1988]). An action is arbitrary and capricious, or an abuse of discretion, when the action is taken "without sound basis in reason and ... without regard to the facts." Matter of Pell v Board of Education, 34 N.Y.2d 222, 231(1974). Rationality is the key in determining whether an action is arbitrary and capricious or an abuse of discretion. Mailer of Pell v Board of Education, 34 N.Y.2d, at 231. The court's function is completed on finding that a rational basis supports the License Division's determination (see Howard v Wyman, 28 N.Y.2d 434 [1971]). Where the administrative interpretation is founded on a rational basis, that interpretation should be affirmed even if the court might have come to a different conclusion (see Mid-State Management Corp. v New York City Conciliation and Appeals Board, 112 A.D.2d 72 [1st Dept.], affd 66 N.Y.2d 1032 [1985]).
It has been longstanding in New York State that the New York Penal Law, Article 4, and the New York City Administration Code, Section 10-131, authorize the NYPD to grant licenses for keeping and carrying pistols.
Under Penal Law § 400.00, the License Division has broad discretion to grant or revoke licenses, and the court has been required to give great weight to the decision in this regard, particularly when the public safety is at issue, and the court lacks the expertise required for such decision. The standard has been that even if the court could have reached a contrary conclusion if the case were actually brought before it for a determination, the court may not overturn the License Division determination without finding that the decision lacks a rational basis.
It has been consistently held that the issuance of license to carry gun is a privilege, not a right. In re Williams v Bratton, 238 A.D.2d 269, 656 N.Y.S.2d 626 (1st Dept.1997). NYPD may well consider a licensee's behavior and suspend or revoke a license if the licensee fails in any material way to comply with the regulations. RCNY Title 38, § 5-22 clearly provides "licensees shall cooperate with all reasonable requests by the Police Department" for information and assistance in this matter.
The issue herein is whether Heller has modified the above-outlined longstanding standard.
The issuance of a pistol permit for self-protection in one's home has recently been held by the U.S. Supreme Court to be a right protected by the Second Amendment of the United States Constitution: "There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms." (District of Columbia v Heller, 554 US ___, 128 S Ct 2783, 2799 [2008].) However, in so holding the Supreme Court also recognized that the individual right to bear arms is limited: "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.." (Heller, 554 US at ___, 128 S Ct at 2816 [citations omitted].)
In Heller, the Supreme Court narrowly ruled (5-4) that the District of Columbia's prohibition on the possession of usable handguns in the home violates the right to keep and bear arms secured by the Second Amendment. First, the Heller decision was based on a federal statute, and, therefore, the Supreme Court did not rule on whether the Second Amendment's protections apply to state and local laws. Second, the United States Court of Appeals for the Second Circuit issued a decision on January 28, 2009 stating that the Second Amendment applies only to limitations the federal government seeks to impose on the right to bear arms. Third, the Supreme Court's decision in Heller did not reach the issue of whether and under what circumstances a pistol licensing scheme is constitutional.
Thus, New York's pistol licensing procedures and the License Division's discretionary authority to issue or deny a pistol license stands even after the Heller decision.
As to petitioner's argument that the Licensing Division failed to consider that petitioner: (1) is a retired former member of law enforcement with Peace Officer status; (2)is a licensed Armed Security Guard, having been licensed by the State of New York; and (3) is also currently licensed to carry a concealed weapon in the State of Florida, which is honored in 28 states across America; where, as here, the agency's determination involves factual evaluation within an area of the agency's expertise and is amply supported by the record, the determination must be accorded great weight and judicial deference. See Flacke v Onondaga Landfill Systems, Inc., 69 N Y2d 355, 363, 514 NYS2d 689, 693 (1987). Courts arc required to "resolve [any] reasonable doubts in favor of the administrative findings and decisions" of the responsible agency. Town of Henrietta v Department of Envtl. Conservation, 76 A.D.2d 215, 224, 430 NYS2d 440, 448 (4th Dep't 1980). See also Jackson, 67 NY2d at 417, 503 NYS2d at 305; City of Rome v Department of Health Dept., 65 A.D.2d 220, 225, 441 NYS2d 61, 64 (4th Dep't 1978), lv. To app. denied, 46 NY2d 713, 416 NYS2d 1027 (1979).
And, "Where evidence conflicts, issues of credibility are the province of an administrative hearing officer, since `the decisions by an Administrative Hearing Officer to credit the testimony of a given witness is largely unreviewable by the courts.'" Wooten v Finkle, 285 AD2D 407, 408 (1st Dept 2001) (quoting Berenham v Ward, 70 NY2d 436, 443 (1987).
And the courts may not weigh the evidence or reject the conclusion of the administrative agency where the evidence is conflicting and room for choice exists (Berenhaus, 70 N.Y.2d at 444, 522 N.Y.S.2d 478, 517 N.E.2d 193; Matter of Stork Rest, v Boland, 282 N.Y. 256, 267, 26 N.E.2d 247 [1940]; Matter of Acosta v Wollett, 55 N.Y.2d 761, 447 N.Y.S.2d 241, 431 N.E.2d 966 [1981]; Matter of Verdell v. Lincoln Amsterdam House, Inc., 27 A.D.3d 388, 390, 813 N.Y.S.2d 68 [2006]).
Finally, the determination of the Licensing Division does not rise to the level of "shocking to one's sense of fairness."
Conclusion
Based on the foregoing, it is hereby
ORDERED and ADJUDGED that the application of Petitioner Porfirio Llanes, Jr. for an order and judgment pursuant to CPLR Article 78: (1) annulling the agency's determination of the respondent Raymond Kelly, as the statutorily Designated Handgun Licensing Officer, and As the Police Commissioner of the City of New York, and His Successors in Office to deny petitioner's simple home possession handgun license, based upon petitioner's right to keep and bear arms as conferred by the Second Amendment of the United States Constitution in accord with the decision in District of Columbia, et al., v Dick Anthony Heller, 128 S.Ct. 2783 (2008); (2) and for an order directing the respondent to conduct an administrative hearing on the issue of the denial of petitioner's constitutional right to possess a handgun within his home, with leave to reinstate the matter to this Court's calendar, if the respondent's determination after hearing is again to deny petitioner's simple home possession handgun license; and granting this Petition in its entirety and issuing an order annulling the agency's determination to deny petitioner's simple home possession handgun license, based upon the statutory considerations and petitioner's entire record, including but not limited to the fact that he carried a handgun as a member of law enforcement for over twenty years, is denied in its entirety and the instant Petition is hereby DISMISSED; and it is further
ORDERED that counsel for respondent shall serve a copy of this Order with notice of entry within twenty days of entry on counsel for petitioner.
This constitutes the decision and order of this court.