Opinion
09 Cr. 968 (RPP).
April 26, 2010
OPINION ORDER
On November 9, 2009 Defendant, Angel DeCastro ("Defendant") moved to dismiss the indictment against him on the grounds that 18 U.S.C. § 922(a)(3), as applied, violates the Second Amendment. Defendant relies on the Supreme Court's decision in District of Columbia v. Heller, ___ U.S. ___, 128 S. Ct. 2783 (2008), which held that Washington D.C.'s outright ban on handgun possession in the home violated the Second Amendment. Defendant argues that New York City's restrictive handgun licensing requirements leave no provision for a law-abiding citizen to lawfully possess a handgun for protection of home or business. Therefore, Defendant argues, he cannot be prosecuted for transporting a handgun purchased in Florida to New York for the purpose of exercising his constitutional right to possess a handgun pursuant to the Second Amendment and Heller.
Defendant's argument is premised on the assumption that New York City's restrictive licensing requirements are "tantamount to a ban." (Def. Mem. at 6; see also id. (arguing that in New York City "it is virtually impossible for the average law-abiding citizen to obtain a license for self-defense in a home or business"); id. at 7 ("New York City's law, in effect, imposes a substantial ban. The impact is similar to the total ban in Heller.") In support of his factual argument as to the restrictive nature of New York City's handgun licensing requirements, Defendant served a subpoena dated October 30, 2009, on the New York City Police Department ("NYPD") to determine whether New York City's handgun licensing regime was tantamount to a total ban on, and therefore unconstitutional. The subpoena sought:
The number of applications submitted to the New York City Police Department in 2004, 2005, and 2006 for each category of handgun license (premises license, carry business license, limited carry business license, special carry license, and carry guard license) and the number of applications approved and licenses issued in each of these categories for those years.
By order dated January 30, 2010, the Court denied the NYPD's motion to quash Defendant's subpoena. On March 18, 2010, the Court and counsel received the NYPD's response to Defendant's subpoena, which consisted of a one-page chart listing the number of new applications and the number of issued/approved licenses for eight different categories of handgun permit, for each of the calendar years 2004, 2005 and 2006. (See NYPD Chart attached to Letter from Philip L. Weinstein dated March 23, 2010.) For the category of handgun permit that would likely be most pertinent to Defendant — premises business — the NYPD chart shows the number of issued/approved licenses for 2004, 2005 and 2006 ranged from approximately 62% to 116% of new applications for those calendar years.
In a letter dated March 23, 2010, defense counsel argues that the chart is not useful for two reasons. First, the entries for business premises licenses in 2006 show more issued/approved licenses than new applications (43 new applications compared to 50 issued/approved licenses). Therefore, Defendant argues that each issued/approved entry on the NYPD chart must include renewals as well as approvals of new applications and that the chart does not show the true percentage of new applications that were granted for these years. Second, Defendant argues, citing a New York Times article, that handgun permits are valid for three years and as of December 2008 there were 872 current license holders for the premises business category. Defendant therefore argues that the numbers of the NYPD chart do not match the New York Times statistics.
As a threshold matter, the entry showing more approved licenses than new applications does not necessarily mean that renewals are included in the NYPD statistics. Another plausible explanation (that could be consistent with the New York Times statistics) is that the issued/approved category reflects the year a given application was approved not necessarily the year in which that approved application was initially filed. But regardless of whether the issued/approved category includes applications filed in prior years, renewals, or both, the routine issuance of handgun licenses in each of the eight listed categories does not support and tends to undermine Defendant's claim that New York City's licensing requirements are tantamount to a ban.
In his letter of March 23, 2010, defense counsel also claims that, "[e]ven if a license might have been obtainable by DeCastro, such availability does not overcome the Second Amendment's application to federal criminal provisions," and thus his "[f]ailure to seek a license might violate New York City regulations . . . but it does not violate federal laws." There is no question that the Court must consider "the Second Amendment's application to federal criminal provisions" and nothing in the NYPD statistics "overcome" the implications of the Second Amendment. But Defendant's argument that 18 U.S.C. § 922(a)(3) is unconstitutional as applied to him relies on the factual premise that he had to violate § 922(a)(3) in order to exercise his Second Amendment rights because it is virtually impossible for a law-abiding citizen to obtain a handgun permit in New York City. In light of the NYPD handgun permit statistics, Defendant's legal argument is premised on a factual argument that finds no support in the NYPD's records.
Because Defendant's motion to dismiss fails on the facts, the Court need not reach Defendant's legal argument, namely that under the Second Amendment and Heller, restrictions on handgun possession are only constitutional to the extent they pertain to risky people, risky weapons and risky places. For the foregoing reasons, Defendant's motion to dismiss the indictment is denied.
The parties shall appear for a pre-trial conference in this matter on May 3, 2010 at 9:30am.
IT IS SO ORDERED.