Opinion
No. 04 Civ. 9037 (SAS).
July 19, 2005
Abraham Fastag, Brooklyn, NY, for Plaintiff Pro Se.
Kristine D. Holden, Assistant Corporation Counsel, New York, NY, for Defendants.
OPINION AND ORDER
I. INTRODUCTION
Abraham Fastag, proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983 ("section 1983") against defendants Raymond Kelly, Thomas M. Prasso, and the New York City Police Department ("NYPD") following the revocation of his handgun license and several state court proceedings challenging that revocation. Fastag brings six claims, including five constitutional claims under the Fifth and Fourteenth Amendments to the U.S. Constitution, and seeks a reversal of the revocation of his handgun license, re-issuance of the license, costs and expenses associated with litigation, and any further relief that the Court deems proper. All defendants now move to dismiss the claims pursuant to Federal Rule of Civil Procedure 12(c). Plaintiff, in turn, cross-moves for summary judgment. For the reasons stated below, defendants' motion to dismiss is granted.
Raymond Kelly is the Police Commissioner of the City of New York and Thomas Prasso is the Deputy Commissioner of the Licensing Division of the Police Department of the City of New York. Because section 396 of the New York City Charter provides that, "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency," all claims against the NYPD are dismissed.
Because defendants' motion is granted, plaintiff's motion for summary judgment is moot.
II. FACTUAL BACKGROUND
Fastag is a manufacturer, dealer, and broker of diamonds and, in 1999, formed Blue Sky Diamond Co., Inc. ("Blue Sky"). Because he did not have a permanent office when he formed Blue Sky, Fastag brought up to one million dollars worth of diamonds and other precious stones to his home each night for analysis and appraisal. For his protection, he obtained a premises license permitting him to possess a handgun at his home. Fastag's license remained valid until April of 2001.
See Affirmation of Abraham Fastag in Support of Plaintiff's Motion for Summary Judgment Against Defendants ("Fastag Aff.") ¶¶ 1-3.
See Defendants' Memorandum of Law in Support of Their Motion for Judgment on the Pleadings ("Def. Mem.") at 3. A premises license for a residence or business is defined as a "restricted handgun license, issued for a specific business or residence location." A handgun possessed pursuant to a premises license cannot be removed from the address specified on the license, except to transport the handgun to an authorized shooting club or, with special permission from the NYPD, to an area authorized for hunting. See Rules and Regulations of the City of New York ("RRCNY"), Title 38, §§ 5-01, 5-23.
See Fastag Aff. ¶ 2.
On April 23, 2001, two years after he obtained his handgun license, Fastag was contacted by an associate regarding the sale of a diamond. Intending to stay at a hotel room overnight, Fastag immediately drove to a pawn shop in Atlantic City, New Jersey to look at the diamond. He took his unloaded handgun with him because he was carrying a significant amount of cash and diamonds. Upon arrival at the pawn shop, and after meeting with the pawn shop owner, Fastag began to feel that he had been "set up." Believing that he was in danger at the pawn shop, Fastag went to his car, loaded his gun, and drove away with the intent to return to New York City.
See 10/24/02 Petition of Plaintiff to the Supreme Court of the State of New York ("Sup. Ct. Pet."), Ex. A to Declaration of Kristine Holden, defendants' counsel ("Holden Decl."), ¶ 12.
Fastag argued that he was allowed to bring his gun to New Jersey based on his understanding of a New Jersey law that he thought permitted him to keep a handgun in his hotel room, as well as his understanding of certain provisions of the Firearm Owners' Protection Act ("FOPA"), 18 U.S.C. § 926A. See Fastag Aff. ¶¶ 5, 7, 8. FOPA states that, "[n]otwithstanding any other provision of any law or any rule or regulation of a State . . . any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle. . . ." 18 U.S.C. § 926A.
6/24/02 License Division Administrative Hearing Transcript ("Admin. Tr."), Ex. B to Holden Decl. at 83. (All references to page numbers in documents contained in Exs. B through J are to the sequential page number in the Exhibit.)
Shortly thereafter, Fastag was stopped by the New Jersey State Police for speeding. The officer who stopped Fastag observed a bullet in the ashtray of his car, and following a search, the loaded weapon was found in Fastag's waistband holder. Fastag was subsequently arrested for carrying a weapon without a permit and possessing hollow nose bullets without a permit.
See Sup. Ct. Pet. ¶¶ 12-13; see also Def. Mem. at 5.
III. PROCEDURAL BACKGROUND
A. Administrative Proceedings
As required by law, Fastag immediately advised the NYPD License Division ("License Division") about his arrest, and his handgun license was suspended pending an investigation of the facts and circumstances surrounding his arrest. On March 22, 2002, the License Division completed its investigation surrounding Fastag's arrest and issued a report recommending that Fastag's handgun license be revoked because Fastag held a restricted premises license and he knowingly took the gun into New Jersey without first obtaining a permit. On April 15, 2002, the License Division officially revoked Fastag's license by sending a Notice of Determination. The Notice also informed Fastag that he had the right to a hearing relating to the revocation.
On July 2, 2001, Fastag received a conditional discharge of the charges against him in New Jersey in exchange for his participation in a pre-trial intervention program, whereby Fastag agreed to complete forty hours of community service, forfeit his firearm and bullets, refrain from obtaining a firearm license while enrolled in the program, and pay fines totaling $125. See Def. Mem. at 5.
See 12/2/02 Verified Answer of Defendants to the Supreme Court Petition ("Sup. Ct. Answer"), Ex. B to Holden Decl. at 47-48.
See 4/15/02 Notice of Determination Letter to Plaintiff ("Notice"), Ex. B to Holden Decl. at 56.
Fastag subsequently participated in an administrative hearing with the Licensing Division on June 24, 2002. Although Fastag had an attorney, he chose to participate without the assistance of counsel. At the hearing, Fastag testified that he thought that he was allowed to take his gun outside of his residence as long as it was contained in a locked box. He further testified that based on conversations with Officer Sheila Brown of the NYPD, he thought that if he obtained a dismissal of the charges pending against him in New Jersey that his handgun license would be restored. However, on July 1, 2002, the Licensing Division notified Fastag that his license would remain revoked because he had failed to comply with the geographic and use restrictions of his residence premises license.
See Admin. Tr. at 63.
See id. at 87-88.
See id. at 91.
See 7/1/02 Final Determination Letter to Plaintiff ("Final Letter"), Ex. B to Holden Decl. at 109.
B. State Court Proceedings
Fastag next sought review of the Licensing Division's decision in state court, pursuant to Article 78 of the New York Civil Practice Law and Rules ("CPLR"). Fastag argued that the penalty assigned by the Licensing Division for violating his gun license was "draconian" and that the revocation of his license was "arbitrary and capricious and should be modified." He further argued that his actions in New Jersey had been "understandable under the circumstances" and that he possessed a good moral character. He reasserted that he had not been convicted of a crime in New Jersey, and again claimed that a handgun license was necessary for him to pursue his business as a diamond dealer. In response, on January 30, 2003, the New York State Supreme Court issued a decision, order and judgment dismissing Fastag's petition and holding that the revocation of the license was not without a rational basis and was neither arbitrary nor capricious.
See CPLR § 7801 et seq. The CPLR provides for only a limited review of the decisions of administrative agencies. Specifically, the only questions related to the prior proceedings that may be raised on appeal are whether the particular "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." CPLR § 7801 et seq. In addition, constitutional claims can be pursued in an Article 78 proceeding. See Palmieri v. Lynch, 392 F.3d 73, 78 (2d Cir. 2004). See also L.A.M. Recovery v. Dept. of Consumer Affairs, 345 F. Supp. 2d 405, 408 (S.D.N.Y. 2004); Beechwood Restorative Care Center v. Leeds, 317 F. Supp. 2d 248, 269 (W.D.N.Y. 2004).
Sup. Ct. Pet. ¶ 10.
See id. ¶¶ 8-10.
See 2/3/02 Final Disposition of the New York State Supreme Court ("Final Disp."), Ex. D to Holden Decl. at 135.
Fastag then appealed the decision of the New York State Supreme Court to the Appellate Division, First Department. In his brief to the Appellate Division, Fastag made the following arguments: (1) that he was "quite likely eligible for a full carry license" because of his professional situation; (2) that he needed the gun license to perform his trade; (3) that New Jersey law permitted him to have a gun with him in his hotel room; (4) that FOPA allowed interstate transport of a gun; (5) that he had been forced to flee from the pawn shop because the New York Penal Law self defense provisions requires retreat; (6) that the decision of the Supreme Court should be overturned because the License Division findings were an error of law, arbitrary, capricious, and an abuse of discretion (in part because the court did not properly consider his statement that he had been misled by the License Division regarding what he needed to do in order to retain his handgun license); and (7) that permanent revocation of his gun license was an excessive penalty for violating the rules of the License Division. On March 9, 2004, the Appellate Division unanimously affirmed the ruling of the Supreme Court and subsequently denied Fastag's request for reargument and/or reconsideration and, in the alternative, for leave to appeal to the Court of Appeals of New York. Fastag then moved before the Court of Appeals for permission to appeal the decision of the Appellate Decision. This motion was also denied.
See 11/3/03 Brief of Plaintiff to the Appellate Division ("App. Div. Br."), Ex. E to Holden Decl. at 136.
See id. at 153, 155-57, 160, 170.
See 3/9/04 New York Appellate Division Decision ("App. Div. Decision"), Ex. H to Holden Decl. at 214.
See 5/25/04 Appellate Division Denial of Plaintiff's Appeal ("App. Div. Denial"), Ex. I to Holden Decl. at 215.
See generally Plaintiff's Motion for Permission to Appeal to the Court of Appeals ("Motion to Appeal"), Ex. J to Holden Decl. at 216-38.
See In the Matter of Fastag v. Kelly, 3 N.Y.3d 605 (2004).
C. Federal Court Proceedings
Fastag filed the instant action on November 16, 2004. In this suit, Fastag alleges (1) that defendants violated provisions of FOPA; (2) that portions of the New York State Penal Law and Chapter 5 of Title 38 of the Rules and Regulations of the City of New York ("New York's handgun licensing laws") violate the Due Process Clause of the Fifth and Fourteenth Amendments because they are unconstitutionally vague and fail to provide adequate guidance regarding potential penalties; (3) that New York's handgun licensing laws violate the Equal Protection Clause of the Fourteenth Amendment as applied to Fastag (a business owner who needs a gun to pursue his profession); (4) that New York's handgun licensing laws violate the Due Process Clause of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth Amendment because Fastag was "defraud[ed] and entrapp[ed]" into incriminating himself in connection with a License Division investigation that led to the revocation of his handgun license; (5) that New York's handgun licensing laws violate the Fourteenth Amendment because they deprive Fastag of his right to liberty by denying him significant employment opportunities; and (6) that New York's handgun licensing laws violate the Fourteenth Amendment because they deprive Fastag of his right to interstate travel and the ability to live in the place of his choice. In response, defendants argue that this Court should dismiss Fastag's claims for lack of subject matter jurisdiction under the Rooker-Feldman doctrine and, in the alternative, that Fastag's actions are barred by issue preclusion and fail to state a cognizable claim.
See Fastag Complaint ("Compl."), 04 Civ. 9037 (SAS) at 1.
See Compl. at 1-10.
See generally Def. Mem.
IV. LEGAL STANDARDS
A. Rooker-Feldman Doctrine
Under the Rooker-Feldman doctrine, a federal district court lacks subject matter jurisdiction to hear an appeal from the judgment of a state court. The doctrine applies solely to "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Thus, a district court cannot "entertain constitutional claims attacking a state-court judgment, even if the state court had not passed directly on those claims, when the constitutional attack [is] 'inextricably intertwined' with the state court's judgment." Similarly, "[a] plaintiff . . . may not seek a reversal of a state court judgment simply by casting his complaint in the form of a civil rights action." "Indeed, 'if it were otherwise, every disgruntled state court litigant could avoid the Rooker-Feldman doctrine in this way.'"
See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust, Co., 270 U.S. 633 (1926).
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. 1517, 1523 n. 1 (2005) (citing Feldman, 460 U.S. at 482, n. 16). Both formal, direct appeals of prior state court judgments, as well as "de facto appeals" are barred by the Rooker-Feldman doctrine. See Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir. 2003).
Brooks-Jones v. Jones, 916 F. Supp. 280, 281-82 (S.D.N.Y. 1996) (internal quotation marks and citations omitted). Accord Hernandez v. City of New York, No. 98 Civ. 7237, 2000 WL 145749, at *3 n. 5 (S.D.N.Y. Feb. 7, 2000) (dismissing race discrimination claim pursuant to Rooker-Feldman, even though petitioner did not raise discrimination in his Article 78 petition, because the state court found the administrative board's determination was rational); Beharry v. M.T.A. New York City Transit Auth., No. 96 Civ. 1203, 1999 WL 151671, at *8 (S.D.N.Y. Mar. 17, 1999) (finding that a due process claim brought by plaintiff was barred by Rooker-Feldman after the state court determined that his dismissal from employment was rational, even though due process had not been specifically raised); Marden v. Dinin, 22 F. Supp. 2d 180, 185-86 (S.D.N.Y. 1998) (barring First Amendment claim under Rooker-Feldman because plaintiff argued in his Article 78 proceeding that his termination was retaliatory, arbitrary, and capricious).
Azumendi v. Roth, No. 99 Civ. 3663, 2002 WL 441283, at *7 (S.D.N.Y. Mar. 20, 2002) (quoting Dockery v. Cullen Dykman, 90 F. Supp. 2d 233, 236 (E.D.N.Y. 2000)).
A district court cannot exercise jurisdiction over a claim that is "inextricably intertwined" with a state court's judgment. While the Second Circuit has interpreted "inextricably intertwined" as co-extensive with the law of preclusion, the Supreme Court recently explained that the doctrines are in fact distinct, and endorsed the Ninth Circuit's interpretation of "inextricably intertwined" in the context of Rooker-Feldman:
The premise for the operation of the "inextricably intertwined" test in Feldman is that the federal plaintiff is seeking to bring a forbidden de facto appeal . . .
[T]he "inextricably intertwined" analysis of Feldman applies to defeat federal district court subject matter jurisdiction only when a plaintiff's suit in federal district court is at least in part a forbidden de facto appeal of a state court judgment, and an issue in that federal suit is "inextricably intertwined" with an issue resolved by the state court judicial decision from which the forbidden de facto appeal is taken.
See Moccio v. New York State Office of Court Admin., 95 F.3d 195, 199-200 (2d Cir. 1996).
See Exxon, 125 S. Ct. at 1521, 1527
Noel, 341 F.3d at 1155, 1165.
Accordingly, the Supreme Court recently held that the " Rooker-Feldman [doctrine] does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions." Thus, "[i]f a federal plaintiff 'presents some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party . . . then there is jurisdiction and state law determines whether the plaintiff will prevail under principles of preclusion.'"
Exxon, 125 S. Ct. at 1522.
Id. at 1527 (quoting GASH Assocs. v. Village of Rosemont, 995 F.2d 726, 728 (7th Cir. 1993)).
B. Issue Preclusion
The Full Faith and Credit Act, 28 U.S.C. § 1738, "requires federal court[s] to 'give the same preclusive effect to a state-court judgment as another court of that State would.'" When a section 1983 action is brought by "an unsuccessful Article 78 plaintiff," claim preclusion, or res judicata, does not apply, but issue preclusion, or collateral estoppel, may bar the plaintiff's claim. New York courts find an issue to be precluded where "'(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding.'" "A determination as to whether there has been a full and fair opportunity to litigate requires consideration of: the size of the claim in the prior proceeding, the forum of the prior proceeding, the extent of the prior litigation, and the availability of evidence now that was unavailable at the time of the prior proceeding." In addition, "[w]hile the party asserting collateral estoppel has the burden of showing that the identical issue was previously decided, the party resisting preclusion bears the burden of demonstrating that he was denied a full and fair opportunity to litigate the issue in the prior proceeding."
Id. (quoting Parsons Steel Inc., v. First Alabama Bank, 474 U.S. 518, 523 (1986)).
See Vargas v. City of New York, 377 F.3d 200, 205 (2d Cir. 2004). See also Davidson v. Capuano, 792 F.2d 275, 278-79 (2d Cir. 1986). Further, "[t]he doctrine of collateral estoppel can be relied on as a bar in section 1983 actions to preclude relitigating issues previously decided in an Article 78 proceeding." Stubbs v. de Simone, No. 04 Civ. 5755, 2005 WL 1079286, at *10 (S.D.N.Y. May 9, 2005) (citing cases).
Vargas, 377 F.3d at 205-06 (quoting Colon v. Coughlin, 58 F.3d 865, 870 n. 3 (2d Cir. 1995)). Accord Latino Officers Ass'n v. City of New York, 253 F. Supp. 2d 771, 783 (S.D.N.Y. 2003); Ryan v. New York Telephone Co., 62 N.Y.2d 494, 500-01 (1984).
Hernandez, 2000 WL 145749, at *4.
Crosland v. City of New York, 140 F. Supp. 2d 300, 309 (S.D.N.Y. 2001).
State administrative fact-finding is given the same preclusive effect in a federal action based on section 1983 as it would receive in a court of the same state. Whether or not a plaintiff specifically frames a claim in constitutional terms in an Article 78 proceeding, a later constitutional claim may still be precluded.
See Burkybile v. Board of Educ. of Hastings-on-Hudson Union Free School Dist., No. 04 Civ. 0905, ___ F.3d ___, 2005 WL 1400143, at *3 (2d Cir. June 15, 2005).
See Genova v. Town of Southampton, 776 F.2d 1560, 1561 (2d Cir. 1985) (holding that plaintiff was barred by issue preclusion from asserting a constitutional argument that he "apparently made . . . though not in constitutional terms" at an administrative hearing); Jessen v. Cavanaugh, 9 F. Supp. 2d 393, 397 (S.D.N.Y. 1998) (stating that although plaintiff did not assert a claim "precisely denominated as a First Amendment claim" in his Article 78 proceeding, he was still barred by issue preclusion from asserting that claim in federal court).
C. Motion to Dismiss Standard
In deciding a motion for judgment on the pleadings under Rule 12(c), the court applies "the same standard as that applicable to a motion under Rule 12(b)(6)." A motion to dismiss should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." The task of the court in ruling on a motion to dismiss is "merely to assess the legal feasability of the complaint, not to assay the weight of the evidence which might be offered in support thereof." When deciding a motion to dismiss, courts must accept all factual allegations as true, and draw all reasonable inferences in the nonmovants' favor.
Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (quotation omitted).
Weixel v. Board of Educ. of New York, 287 F.3d 138, 145 (2d Cir. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 176 (2d Cir. 2004) (quotation omitted).
See Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)).
Further, a complaint need not state the legal theory, facts, or elements underlying the claim in most instances. Pursuant to the simplified pleading standard of Rule 8(a) of the Federal Rules of Civil Procedure, a complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to relief." And, when a plaintiff is proceeding pro se, courts are instructed to construe the complaint liberally. This is particularly important when a pro se plaintiff alleges a civil rights violation.
See Phillips v. Girdich, No. 04-0347, 2005 WL 1154194, at *2-3 (2d Cir. May 17, 2005).
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Fed.R.Civ.P. 8(a)(2)).
See Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997).
See Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002).
Finally, while courts generally do not consider matters outside the pleadings, they may consider documents attached to the pleadings, documents referenced in the pleadings, or documents that are integral to the pleadings. The records of state administrative proceedings may be considered.
See Chambers, 282 F.3d at 152-53; see also In re Initial Pub. Offering Sec. Litig., 241 F. Supp. 2d 281, 331 (S.D.N.Y. 2003); Fed.R.Civ.P. 10(c).
See Thomas v. Westchester County Healthcare Corp., 232 F. Supp. 2d 273, 276 (S.D.N.Y. 2002) (quoting Evans v. The New York Botanical Garden, No. 02 Civ. 3591, 2002 WL 31002814, at *4 (S.D.N.Y. Sept. 4, 2002)).
V. DISCUSSION
Fastag alleges that defendants violated FOPA, New York's handgun licensing laws, a City regulation, and several of his constitutional rights when the License Division revoked his handgun license. Defendants, in turn, contend that all counts of Fastag's complaint are barred by the Rooker-Feldman doctrine or the rules of issue preclusion because all of Fastag's claims have been litigated in state court. Defendants further argue that even if Fastag's claims are not barred by one of these doctrines, they fail on the merits. Because a federal court may not "hypothesize subject-matter jurisdiction for the purpose of deciding the merits," the Court must first consider the applicability of the Rooker-Feldman doctrine to Fastag's claim.
Batista v. INS, No. 99 Civ. 2847, 2000 WL 204535, at *2 (S.D.N.Y. Feb. 22, 2000) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-95 (1998)).
A. The Court Lacks Subject Matter Jurisdiction Based on Rooker-Feldman
Fastag's claims present a typical example of a "state court loser" asking a federal court to overturn a state court judgment. His first claim alleges that defendants violated provisions of FOPA by revoking his handgun license, arguing that the Act permits a person to carry a handgun across state lines. Because Fastag raised the identical claim in his administrative hearing and appeal to the Appellate Division of the New York State Supreme Court, relitigation of this claim, which is in essence a direct appeal, is barred by Rooker-Feldman.
Even if the Rooker-Feldman doctrine did not divest the Court of jurisdiction over Fastag's first claim, it would be dismissed on the merits based on Fastag's admission that he carried a loaded handgun in a waistband holster. See Admin Tr. at 82. This is a clear violation of FOPA which requires that a handgun that is being transported be kept unloaded and inaccessible.
Further, Fastag's second claim, alleging that New York's handgun licensing laws are unconstitutionally vague and fail to provide adequate guidance regarding potential penalties, is barred by Rooker-Feldman as a de facto appeal of prior state court rulings. Fastag is asking this Court to adjudicate in an original action "'that a state court violated the Constitution by giving effect to an unconstitutional state statute.'" If the claim were allowed to proceed, this Court would be forced to assess the validity of the challenged laws, because consideration of claims previously decided in state court would be inevitable.
Exxon, 125 S. Ct. at 1524 (quoting Howlett v. Rose, 496 U.S. 356, 370, n. 16 (1990)).
Similarly, Fastag's fourth claim, that he was "defraud[ed] and entrapp[ed]" into incriminating himself in connection with a License Division investigation, is barred by Rooker-Feldman as a de facto appeal of his claims in prior state court proceedings. Fastag cannot seek a reversal of the state court's judgment "simply by casting his complaint in the form of a civil rights action." In the administrative hearing, Fastag argued that he was defrauded when the NYPD misinformed him that as long as he obtained a dismissal of the charges pending against him in New Jersey, his handgun license would be returned to him. He raised this argument again before the Appellate Division, but it was rejected by that court as well. Consequently, Fastag is barred from bringing the same substantive claim in this Court.
Brooks-Jones, 916 F. Supp. at 281-82.
Finally, this Court lacks subject matter jurisdiction over Fastag's three remaining claims because they are "inextricably intertwined" with "an issue resolved by the state court judicial decision from which [his] forbidden de facto appeal [was] taken." In his third, fifth, and sixth claims, Fastag argues that the application of New York's handgun licensing laws to him prevents him from pursuing his profession, thereby depriving him of his liberty and his right to interstate travel. However, these claims stem from Fastag's argument, made in his Article 78 proceeding and his appeal to the Appellate Division (albeit not in constitutional terms), that a handgun license is necessary for him to pursue his profession as a diamond dealer and that the revocation of his handgun license was arbitrary, capricious, and an error of law. The state courts found that the revocation of his license was not without a rational basis and was neither arbitrary nor capricious. In effect, the state courts found New York's handgun licensing laws to be constitutional as applied to Fastag. Consideration of Fastag's third, fifth, and sixth claims in this Court would therefore require readjudication of the state court's rulings. As a result, this Court lacks subject matter jurisdiction over these claims.
Noel, 341 F.3d at 1165.
B. Issue Preclusion and Failure to State A Claim
Even if Rooker-Feldman did not apply, and this Court could exercise subject matter jurisdiction over Fastag's claims, the Complaint would be dismissed in its entirety based on the doctrine of issue preclusion and because Fastag fails to state claims upon which relief can be granted.
1. Issue Preclusion
The first and fourth claims of Fastag's Complaint are barred by the doctrine of issue preclusion because they were actually and necessarily decided against him in state court, and he was provided with a full and fair opportunity to litigate his claims. Both issues were briefed, argued, and then decided against Fastag in his Article 78 proceeding. As noted earlier, the New York court held the revocation of Fastag's handgun license was not without a rational basis nor was it arbitrary or capricious. In order to make that decision, the New York court necessarily held that New York's handgun licensing laws do not violate the Constitution, and that Fastag was not misled into incriminating himself.
See Final Disp. at 135.
Further, there is no indication that Fastag was not given a full and fair opportunity to litigate his claims. Based on the record, Fastag was provided with the opportunity to fully brief all of his arguments, and was given the chance to participate in the litigation process with the assistance of counsel. There is no new evidence available now that was unavailable at the time of the prior proceedings, and Fastag's claims still center around his argument that the revocation of his handgun license was unfair under the circumstances. Accordingly, this Court must give preclusive effect to the state court judgments that have been rendered with respect to these claims.
2. Failure to State A Claim Upon Which Relief Can Be Granted
Fastag's remaining claims, which rely on the Due Process and Equal Protection Clauses of the Fourteenth Amendment and the fundamental right to travel, fail to state claims upon which relief can be granted.
Fastag also argues that his right to freedom of religion has been violated by New York's handgun licensing laws "because [he is] a Hasidic Jew and [his] specific community is integral to [his] religious practice" and he may be "force[d] out of New York" as a result of the revocation of his handgun license. See Fastag Aff. ¶ 18. However, because this claim was not raised in his Complaint, it is not properly before the Court and cannot be considered. See generally Chambers, 282 F.3d 147.
Fastag's second and fifth claims are brought under the Due Process Clause of the Fourteenth Amendment. "In order to prevail on a due process claim, a plaintiff must identify a constitutionally protected property or liberty interest and demonstrate that the state has deprived it of that interest without due process of law." However, "a benefit is not a protected entitlement [e.g., property interest] if government officials may grant or deny it in their discretion." As a result, Fastag's second claim fails because it is well settled that a handgun license is a privilege that the government "may grant or deny [at] their discretion." As such, Fastag cannot establish that he has a property interest in his handgun license.
John Gil Const., Inc. v. Riverso, 72 F. Supp. 2d 242, 251 (S.D.N.Y. 1999).
Town of Castle Rock, Colo. v. Gonzalez, No. 04-278, ___ S. Ct. ___, 2005 WL 1499788, *6 (June 27, 2005).
Id. at *6. Accord Papaioannou v. Kelly, 788 N.Y.S.2d 378, 379 (2005) (stating that "It is well settled that the possession of a handgun license is a privilege, not a right, which is subject to the broad discretion of the New York City Police Commissioner.")
"Liberty" is a more broadly defined notion under the Due Process Clause, and "one of the many freedoms it encompasses is the freedom 'to engage in any of the common occupations of life'" without unreasonable governmental interference. That said, Fastag's fifth claim is legally insufficient. Revocation of Fastag's handgun license in no way makes it impossible or even necessarily difficult for him to pursue his chosen profession. The fact that Fastag feels that he may no longer be able to bring diamonds to his home does not preclude him from being a diamond dealer. Further, although he argues to the contrary, Fastag has not "demonstrate[d] a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession," and there is no allegation that the acquisition of a handgun is a legal prerequisite to becoming a diamond dealer. In short, the revocation of Fastag's handgun license did not deprive him of a liberty interest recognized by the Fourteenth Amendment.
Donato v. Plainview-Old Bethpage Cent. School Dist., 96 F.3d 623, 630 (2d Cir. 1996) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).
See Conn v. Gabbert, 526 U.S. 286, 292 (1999).
Tartaglia v. Kelly, 626 N.Y.S.2d 156, 156 (1995).
See Conrad v. County of Onondaga, 758 F. Supp. 824 (N.D.N.Y. 1991) (holding that an applicant for a master plumber's license has a protected liberty interest in fair administration of master plumber's license examination).
Further, Fastag's third claim, brought under the Equal Protection Clause, also fails. The Equal Protection Clause states that "no State shall deny to any person within its jurisdiction the equal protection of the laws." This has been interpreted as a direction that "all persons similarly situated should be treated alike." The Supreme Court has explained that "[l]egislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. . . . The general rule gives way [and statutes are reviewed under strict scrutiny], however, when a statute classifies by race, alienage, or national origin." Because handgun licensees are not a protected class for purposes of Equal Protection analysis, and New York's handgun licensing laws are rationally related to the government's interest in regulating handgun possession, this claim fails as a matter of law.
U.S. CONST. amend XIV, § 1.
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).
Id. at 440.
Finally, Fastag's sixth claim, brought under the fundamental right to interstate travel, fails because Fastag's right to interstate travel has not actually been burdened. The constitutional right to travel is derived from the Privileges and Immunities Clauses of Article IV and the Fourteenth Amendment, and although "the word 'travel' is not found in the text of the Constitution . . . [the right] is firmly embedded in our jurisprudence." The Supreme Court has held that the right "embraces at least three different components":
It protects [1] the right of a citizen of one State to enter and to leave another State, [2] the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, [3] for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state.
Saenz v. Roe, 526 U.S. 489, 498 (1999).
Id. at 500.
Fastag's claim implicates the first of these components. However, because the acquisition of a handgun license is clearly not a prerequisite to entering or leaving any state, and has nothing to do with where Fastag may legally live, Fastag has failed to state a claim upon which relief can be granted.
VI. CONCLUSION
For the reasons set forth above, defendants' motion to dismiss is granted. The Clerk of the Court is directed to close this motion (#10) and this case.
SO ORDERED.