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holding that Article 78 proceeding afforded sufficient due process for pistol license revocation claims
Summary of this case from Sibley v. WatchesOpinion
15-cv-1791 (LDH) (GRB)
2019-03-31
Wayne TORCIVIA, Plaintiff, v. SUFFOLK COUNTY, NEW YORK; Police Officer James Adler; individually and professionally; Investigator Thomas Carpenter, individually and professionally; Captain William Scrima, individually and professionally; Police Officer Philip Halpin, individually and professionally; Police Officer Robert Verdu, individually and professionally; Police Officers "John Doe 3 & 4," individually and professionally, who confiscated Plaintiff's weapons from his home on April 6, 2014; Police Officers "John Doe 5-15," individually and professionally; Mary Catherine Smith, individually; Kristen Steele, individually; Bridget Walsh, individually; Michelle Sanchez, individually; Timothy Aiello, individually; Dianna D'Anna, individually; Adeeb Yacoub, M.D., individually; "John and Jane Does 1-10," individually, Defendants.
Amy L. Bellantoni, The Bellantoni Law Firm, LLP, Scarsdale, NY, for Plaintiff. Anthony M Maffia, Fumuso, Kelly, Swart, Farrell, Polin and Christesen LLP., Catherine Ann Brennan, Scott G. Christesen, Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Arlene S. Zwilling, Hauppauge, NY, Ralph Pernick, New York State Attorney General, Mineola, NY, Elyce Noel Matthews, New York, NY, for Defendants.
Amy L. Bellantoni, The Bellantoni Law Firm, LLP, Scarsdale, NY, for Plaintiff.
Anthony M Maffia, Fumuso, Kelly, Swart, Farrell, Polin and Christesen LLP., Catherine Ann Brennan, Scott G. Christesen, Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Arlene S. Zwilling, Hauppauge, NY, Ralph Pernick, New York State Attorney General, Mineola, NY, Elyce Noel Matthews, New York, NY, for Defendants.
MEMORANDUM OF DECISION AND ORDER
LaSHANN DeARCY HALL, United States District Judge
Plaintiff Wayne Torcivia brings the instant action against Defendants Suffolk County, New York (the "County"); Police Officer James Adler; Investigator Thomas Carpenter; Captain William Scrima, (together, with the County, the "County Defendants"); Kristen Steele; Dianna D'Anna; Dr. Adeeb Yacoub (together, the "CPEP" Defendants); Police Officer Philip Halpin; Police Officer Robert Verdu; Police Officers John Doe 3-15; and Mary Catherine Smith ("CPEP Intern Smith") (collectively "Defendants"). Plaintiff asserts, pursuant to 28 U.S.C. § 1983, that Defendants violated his rights under the First, Second, Fourth, and Fourteenth Amendments. Plaintiff also asserts that Defendants unlawfully imprisoned and defamed him in violation of New York state law.
Plaintiff sues all police officer Defendants in both their individual and professional capacities, while suing the CPEP Defendants and CPEP Intern Smith in their individual capacities only. County Defendants argue that Officers Halpin and Verdu are not proper parties to this action because Plaintiff failed to serve them. Notably, Officers Halpin and Verdu were named in Plaintiff's amended complaint filed on February 23, 2017. Moreover, Officers Halpin and Verdu were each deposed in this matter and are represented by the same attorneys as the County Defendants. And curiously, neither Officer Halpin nor Officer Verdu chose to raise this issue prior to summary judgment. The Second Circuit has found that such conduct can constitute waiver with respect to improper service. For example, in Datskow v. Teledyne, Inc., Continental Products Division , the Second Circuit found that a defendant's participation in a conference with a magistrate judge, scheduling discovery, and motion practice barred his complaint as to defective service. 899 F.2d 1298, 1303 (2d Cir. 1990) ; see also Subway Int'l B.V. v. Bletas , 512 F. App'x 82 (2d Cir. 2013) (affirming district court's determination that a plaintiff "forfeited her improper service defense by participating in a settlement conference and filing multiple motions without mentioning the defense.") This is particularly the case where neither Officers Halpin nor Verdu can claim that this court lacks personal jurisdiction. See Datskow , 899 F.2d at 1303 ("[T]his is not a case where a defendant is contesting personal jurisdiction on the ground that longarm jurisdiction is not available. We would be slower to find waiver by a defendant wishing to contest whether it was obliged to defend in a distant court.") Officers Halpin and Verdu are proper parties to this case.
By letter dated June 12, 2018, Plaintiff voluntarily withdrew his Second and Fourteenth Amendment claims against the CPEP Defendants, Fourth Amendment unlawful-seizure-of-property claims against the CPEP Defendants and Defendant Adler, and First Amendment retaliation claim against the County. (See ECF No. 126.)
The parties cross-move for summary judgment pursuant to Federal Rule of Civil Procedure 56. The County Defendants move for partial summary judgment with respect to Plaintiff's Monell claims related to the seizure of Plaintiff's weapons, § 1983 stigma-plus claims, and unlawful-imprisonment claims under New York state law. Plaintiff moves for partial summary judgment against the County Defendants with respect to his Monell claims arising from the seizure of his weapons and the County's pistol licensing and revocation policies, and his claims against Defendants Carpenter and Scrima arising from the revocation of his pistol license. The CPEP Defendants and CPEP Intern Smith move for summary judgment to dismiss all claims against them, specifically Plaintiff's Fourth Amendment claims pursuant to § 1983 and unlawful-imprisonment claims under New York law.
CPEP Intern Smith also moves under Rule 12(c) for judgment on the pleadings. For the reasons stated below, the Court does not reach this motion.
The following facts are undisputed unless otherwise noted.
I. Plaintiff's Arrest
County police officers James Adler, Robert Verdu, and Patrick Halpin were summoned to Plaintiff's home in the early morning hours of April 6, 2014. (Pl.'s 56.1 Counterstatement Opp'n State Defs.' Mot. Summ. J. ("State Defs.' 56.1") ¶ 3, ECF No. 110-1.) The officers were responding to a phone call placed by Plaintiff's then-minor daughter to a social services hotline, which in turn contacted the County police department. (State Defs.' 56.1 ¶ 4.) The officers were informed that there was a violent domestic dispute ongoing between "a 17-year-old female and an intoxicated father" shortly before 1:00 a.m. (Pl.'s 56.1 Counterstatement in Opp'n to Def. Smith's Mot. Summ. J. ("Smith's 56.1") ¶¶ 9, 10, ECF No. 108-1.) Plaintiff had consumed alcohol that evening. (Smith's 56.1 ¶ 7.) When Plaintiff's blood was drawn approximately two hours after this incident, he had a blood-alcohol content of twice the legal driving limit. (State Defs.' 56.1 ¶¶ 18-20.)
The parties dispute what occurred after the officers arrived at Plaintiff's home. The officers recall that Plaintiff was acting agitated, "yelling, walking back and forth, pacing and ranting." (Cty. Defs.' Reply Pl.'s. Additional Statement Material Facts Pursuant Local Rule 56.1 ("Cty. Defs.' Reply 56.1") ¶ 19, ECF No. 115.) The officers recall then instructing Plaintiff to sit down at the top of his stairs. (Id. ) According to the officers, Plaintiff proceeded to demand that they "taser him so he could die." (Id. ¶¶ 24, 25.) The officers' recollections are reflected in the incident reports prepared contemporaneously with Plaintiff's arrest. (State Defs.' 56.1 ¶ 5.)
Plaintiff paints a different picture of what occurred in his home. Plaintiff recalls that when the officers arrived, Officer Adler knocked down drapes in the foyer. (Cty. Defs.' Reply 56.1 ¶ 21.) When Plaintiff attempted to assist Officer Adler in extricating himself from the drapes, Officer Adler swore at Plaintiff. (Id. ¶ 23.) When Plaintiff asked Officer Adler why he was swearing, Officer Adler threatened to "TASE" him. (Id. ¶ 24.) Plaintiff then informed Officer Adler that he should not "TASE" him because he has a heart condition. (Id. ¶ 25.)
Following an interview with Plaintiff's daughter, the police officers determined to transport Plaintiff to Stony Brook University Hospital's Comprehensive Psychiatric Emergency Program ("CPEP") "because he appeared irrational and stated that he wanted to die." (Id. ¶ 30.) Plaintiff alleges that he was taken to CPEP in retaliation for informing the officers that "profanity is not allowed in [his] home." (Id. )
II. Plaintiff's Evaluation at CPEP and the Removal of Plaintiff's Weapons
Plaintiff was brought to CPEP at 2:12 a.m. on April 6, 2014. (State Defs.' 56.1 ¶ 12.) County police officers reported to CPEP staff that Plaintiff had "asked police to tase him so he would die," was intoxicated, and had acted threateningly and belligerently to his 17-year old daughter. (Id. ¶ 14.) This information was documented in Plaintiff's medical records. (Id. )
At CPEP, Plaintiff was evaluated by a team consisting of a nurse (Timothy Aiello), a nurse practitioner (Dianna D'Anna), one or more social workers (Kristen Steele and/or CPEP Intern Smith), and an attending doctor (Dr. Yacoub). (Id. ¶ 13.) D'Anna conducted an evaluation of Plaintiff at 2:20 p.m. (Id. ¶ 17.) D'Anna determined that there was "no indication for acute psychiatric admission," that Plaintiff was "not imminently dangerous" to himself or others, and signed an assessment to this effect at 3:21 p.m. (Id. ¶ 18.) At an unspecified time, D'Anna recommended to Dr. Yacoub, the attending psychiatrist, that Plaintiff be discharged. (Id. ¶¶ 18, 21.) After receiving D'Anna's recommendation, Dr. Yacoub conducted his own evaluation of Plaintiff and determined that Plaintiff could be discharged. (Id. ¶¶ 22-23.) It is not clear when Yacoub's evaluation occurred, except that it occurred after D'Anna conducted her evaluation of Plaintiff at 2:20 p.m. Notably, by the time Dr. Yacoub determined that Plaintiff could be medically discharged, Plaintiff's firearms had already been removed from his home. (Id. ¶¶ 22-24.) At or around 3:12 p.m., CPEP Intern Smith conducted an interview of Plaintiff, during which Plaintiff referenced the fact that he owned guns. (Id. ¶¶ 27-28; Matthews Decl., Ex. 5 at *54-55, ECF No. 98-7.)
While Plaintiff was being evaluated at CPEP, Plaintiff's daughter contacted Child Protective Services ("CPS") and reported that she was unhappy with and frightened by the fact that Plaintiff was going to be released from CPEP. (Smith's 56.1 ¶¶ 85, 87, 89, 90. 91.) During her discussion with CPS, Plaintiff's daughter indicated that Plaintiff kept guns in the home. (Smith's 56.1 ¶ 78.) CPS subsequently contacted CPEP and spoke to CPEP Intern Smith. (Smith's 56.1 ¶¶ 84, 85.) CPS informed Smith that Plaintiff's daughter was concerned that Plaintiff was going to be released and had called CPS four times. (Smith's 56.1 ¶¶ 90, 91.) CPS further informed Smith that it had advised Plaintiff's daughter to leave the home and stay with a friend overnight. (Smith's 56.1 ¶ 92.)
Following Plaintiff's transport to CPEP, Officer Adler learned that Plaintiff had a New York State pistol license. (Cty. Defs.' 56.1 ¶ 34.) According to Officer Adler, "[w]hen there is a domestic incident and somebody is transported to CPEP for evaluation that's standard procedure to safeguard weapons until whatever investigation is done." (Decl. Elyce N. Matthews Supp. State Mot. Summ. J. ("Matthews Decl."), Ex. 3 at 134:20-24, ECF No. 98-5.) Additionally, all paperwork involving a pistol licensee's transport to CPEP is forwarded to the Suffolk County Pistol Licensing Bureau for further investigation. (Cty. Defs.' 56.1 ¶ 38.)
Officer Adler informed his supervisor, Sergeant Lawler, of Plaintiff's pistol license. (Id. ¶ 35.) In response, Sergeant Lawler directed Officer Adler to safeguard Plaintiff's weapons. (Id. ¶ 36.) Officer Adler returned to Plaintiff's home in an attempt to secure Plaintiff's firearms, but could not do so because Plaintiff's wife did not have the combination to Plaintiff's gun safe. (Id. ¶¶ 39-40.) Officer Adler next went to CPEP to ask Plaintiff for the combination to the safe. (Id. ¶ 41.) Officer Adler claims that Plaintiff refused to speak with him, while Plaintiff claims that "he was non-responsive and possibly asleep." (Id. ¶¶ 41, 43.) Later that evening, police officers informed CPEP staff that they were attempting to remove firearms from Plaintiff's home and that Plaintiff's firearm permit was to be revoked. (State Defs.' 56.1 ¶ 16.) This information was also documented in Plaintiff's medical records. (Id. )
It is not clear at exactly what time Plaintiff was medically cleared to be discharged. (See State Defs.' 56.1 ¶¶ 18, 23; State Defs.' Resp. Pl.'s 56.1 Counterstatement ("State Defs.' Resp. 56.1") ¶¶ 53-56, ECF No. 116.) It is undisputed, however, that he was not discharged until after his wife surrendered his guns to County police officers. (State Defs.' Resp. 56.1 ¶¶ 64-65, 74.) It is not clear who, if anyone, made the determination that Plaintiff's guns had to be seized before he would be released. The County police department recalls that CPEP personnel contacted them and requested that they seize Plaintiff's weapons. (Cty. Defs.' Reply Pl.'s 56.1 ("Cty. Defs.' Reply 56.1") ¶ 56, ECF No. 115.) The CPEP Defendants and CPEP Intern Smith dispute this. (Smith's 56.1 ¶¶ 114-16; State Defs.' 56.1 ¶¶ 38-40.)
III. The Revocation of Plaintiff's Pistol License
On June 13, 2014, Plaintiff's pistol license was revoked. (Cty. Defs.' Reply 56.1 ¶ 60.) Plaintiff requested a post-revocation administrative hearing on June 30, 2014. (Id. ¶ 61.) The hearing was held on December 16, 2015, approximately one-and-one-half years later. (Id. ¶ 62.) To date, Plaintiff has not been provided with any determination as a result of that hearing. (Id. ¶ 63.) With respect to his longarms, Plaintiff has not been provided with any hearing whatsoever. (Id. ¶ 64.) He has, however, since repurchased his longarms from a licensed reseller who came into possession of the longarms. (Decl. of Amy L. Bellantoni Supp. Mot. Summ. J. ("Bellantoni Decl."), Ex. 1 at 205:18-206:11, ECF No. 101-1).
Plaintiff timely filed a Notice of Claim against Suffolk County with respect to his claims against them. (Cty. Defs.' 56.1 ¶ 15.) The County served a notice of examination on Plaintiff on July 24, 2014, and scheduled a hearing for October 24, 2014. (Cty. Defs.' Reply 56.1, Ex. B ¶ 3, ECF No. 115-2.) This hearing was twice adjourned by the County. (Id. ¶ 6.) No hearing has ever been held. (See generally id. ¶¶ 6-9.)
STANDARD OF REVIEW
Summary judgment must be granted when there is "no genuine dispute as to any material fact and the movant[s] [are] entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; accord Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. At summary judgment, the movants bear the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Feingold v. New York , 366 F.3d 138, 148 (2d Cir. 2004). Where the non-movants bear the burden of proof at trial, the movants' initial burden at summary judgment can be met by pointing to a lack of evidence supporting the non-movants' claim. Celotex Corp. , 477 U.S. at 325, 106 S.Ct. 2548.
Once the movants meet that burden, the non-movants may defeat summary judgment only by producing evidence of specific facts that raise a genuine issue for trial. See Fed. R. Civ. P. 56(c) ; Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ; Davis v. New York , 316 F.3d 93, 100 (2d Cir. 2002). The Court is to view all facts in the light most favorable to the non-movants, drawing all reasonable inferences in their favor. Anderson , 477 U.S. at 255, 106 S.Ct. 2505. To survive summary judgment, the non-movants must present concrete evidence and rely on more than conclusory or speculative claims. Quinn v. Syracuse Model Neighborhood Corp. , 613 F.2d 438, 445 (2d Cir. 1980) ("The litigant opposing summary judgment ... ‘may not rest upon mere conclusory allegations or denials’ as a vehicle for obtaining a trial." (quoting SEC v. Research Automation Corp. , 585 F.2d 31, 33 (2d Cir. 1978) ).
DISCUSSION
I. Plaintiff's Claims Against the County Defendants
The County Defendants move for summary judgment with respect to Plaintiff's Monell claims arising from the seizure of Plaintiff's weapons, § 1983 stigma-plus claim, and New York common-law unlawful-arrest claim. (See Mem. Law Supp. Cty. Defs.' Mot. Partial Summ. J. ("Cty. Defs.' Mem.") at 2-3, ECF No. 138-6.) Plaintiff cross-moves for summary judgment with respect to his Monell claims arising from the seizure of his firearms, the revocation of his pistol license, the failure to hold a post-deprivation hearing, as well as his claims relating to the County's pistol revocation and licensing policies. (See Pl.'s Mem. Law Opp'n Suffolk Cty.'s Mot. Summ. J. ("Pl.'s Cty. Opp'n") at 19-25, ECF No. 140.)
A. Plaintiff's Monell Claims Arising from the Seizure of his Weapons
A municipality can only be held liable for a violation under § 1983, known as Monell liability, where a plaintiff proves "(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Wray v. City of New York , 490 F.3d 189, 195 (2d Cir. 2007) (quoting Batista v. Rodriguez , 702 F.2d 393, 397 (2d Cir. 1983) ). Plaintiff maintains that the County had a formal policy of seizing the firearms of individuals who are transported to CPEP and that this policy, on its face, violated Plaintiff's Fourth Amendment rights. (Pl.'s Cty. Opp'n at 20-25.) The County Defendants principally argue that Plaintiff fails to establish the existence of such a policy. (Cty. Defs.' Mem. at 3-5.) While the Court finds that Plaintiff has adduced sufficient evidence to demonstrate the existence of a policy (or at least a custom), the policy or custom evidenced by Plaintiff is notably narrow than that proposed by Plaintiff.
A plaintiff may demonstrate a policy or custom in one of four ways: (1) a formal policy officially endorsed by the municipality, Monell, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question, See Bd. of Cty. Comm'rs v. Brown , 520 U.S. at 404–06, 117 S.Ct. 1382 ; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage, See Bd. of County Comm'rs , 520 U.S. at 403–04, 117 S.Ct. 1382 ; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees, See Bd. of County Comm'rs , 520 U.S. at 407, 117 S.Ct. 1382.
During his deposition, Officer Adler stated: "When there is a domestic incident and somebody is transported to CPEP for evaluation that's standard procedure to safeguard weapons until whatever investigation is done." (Matthews Decl., Ex. 3 at 134:20-24.) Officer Adler's testimony is supported by the undisputed facts related to Plaintiff's arrest. Following Plaintiff's transport to CPEP, Officer Adler learned that Plaintiff had a pistol license. (Cty. Reply 56.1 ¶ 34.) Officer Adler reported this to his superior officer, Sergeant Lawler. (Id. ¶ 35.) Sergeant Lawler instructed Officer Adler to safeguard Plaintiff's weapons. (Id. ¶ 36.) A reasonable juror could conclude from these facts that Plaintiff's weapons were seized pursuant to a formal County policy, particularly where Officer Adler explicitly stated that he acted pursuant to "standard procedure." (Matthews Decl., Ex. 3 at 134:20-24.) At the very least, a reasonable juror could find that this "standard procedure" constituted a County custom.
Plaintiff contends that the County maintains a broader policy than that described here. Specifically, Plaintiff claims that "[i]t is the policy of the Suffolk County Police Department that when an individual is transported to CPEP for an evaluation, the individual's firearms are seized." (Cty. Defs.' Reply 56.1. ¶ 37.) Plaintiff has not, however, provided any evidence to support this broader policy. Relatedly, County Defendants argue that the phrase "standard procedure" is ambiguous, and that Officer Adler could have been referring to "the procedure of his precinct, his command or his own personal procedure." (Cty. Defs.' Reply Mem. Law at 3, ECF No. 143.) But it is not for the Court to draw such conclusions at the motion for summary judgment stage. See Reeves v. Sanderson Plumbing Prod., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (directing courts at summary judgment stage to "draw all reasonable inferences in favor of the nonmoving party, and ... not [to] make credibility determinations or weigh the evidence").
The County Defendants argue that the statements and actions of Officer Adler cannot bind the County because Officer Adler is not a policymaker. The County Defendants are correct that the actions of an individual below the policy-making level are generally insufficient to show a municipal policy. See DeCarlo v. Fry , 141 F.3d 56, 61 (2d Cir. 1998) ("[A] municipality may be not be held liable in an action under 42 U.S.C. § 1983 for actions alleged to be unconstitutional by its employees below the policymaking level solely on the basis of respondeat superior. ") And if Plaintiff merely claimed that Officer Adler's seizure of Plaintiff's weapons on this single instance, in and of itself, constituted proof of a municipal policy, Plaintiff's claim would fail. But Plaintiff's claim does not rest solely on Officer Adler's actions with respect to Plaintiff's firearms. Instead, Plaintiff relies on Officer Adler's express statement that a municipal policy or custom existed.
The existence of a municipal policy or custom alone, however, is insufficient to establish Monell liability. Instead, where, as here, a plaintiff challenges a municipality's policy or custom as unconstitutional, the Court must still find that the policy or custom resulted in a violation of Plaintiff's constitutional rights. See Ricciuti v. N.Y.C. Transit Auth. , 941 F.2d 119, 122 (2d Cir. 1991). The purported policy or custom did not.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. The "general rule" is that "absent an ‘extraordinary situation’ a party cannot invoke the power of the state to seize a person's property without a prior judicial determination that the seizure is justified." United States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555, 562 n.12, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983) (quoting Boddie v. Connecticut , 401 U.S. 371, 378-79, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) ). "[I]n the ‘ordinary case,’ seizures of personal property are ‘unreasonable within the meaning of the Fourth Amendment,’ without more, ‘unless ... accomplished pursuant to a judicial warrant,’ issued by a neutral magistrate after a finding of probable cause." Illinois v. McArthur , 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (quoting United States v. Place , 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) ). The right to be free from a warrantless seizure is not, however, absolute.
Because the ultimate touchstone of a Fourth Amendment seizure is reasonableness, the Supreme Court has recognized certain exceptions under which a warrantless seizure may be considered "reasonable." McArthur, 531 U.S. at 330, 121 S.Ct. 946. These exceptions include (1) special law-enforcement needs, (2) an individual's diminished expectation of privacy, or (3) minimal or temporary seizures. Id. at 330-31, 121 S.Ct. 946. Of particular significance here, the special-needs exception applies where "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." New Jersey v. T.L.O. , 469 U.S. 325, 351, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). To trigger this exception, a search or seizure "must ‘serve as its immediate purpose an objective distinct from the ordinary evidence gathering associated with crime investigation.’ " MacWade v. Kelly , 460 F.3d 260, 268 (2d Cir. 2006) (quoting Nicholas v. Goord, 430 F.3d 652, 663 (2d Cir. 2005) (internal brackets omitted)).
The seizure at issue in this case indisputably did not have as its immediate purpose "the ordinary evidence gathering associated with crime investigation." Id. That is, there is nothing in the record to suggest that the seizure of Plaintiff's weapons was "undertaken for the investigation of a particular crime." Lynch v. City of New York , 737 F.3d 150, 158 (2d Cir. 2013). Indeed, because Plaintiff had a pistol license, and because a license is not required to possess longarms, his possession of firearms "provided no evidence of wrongdoing in and of [itself]." Id. Instead, as stated by Officer Adler, and as uncontroverted by Plaintiff, the seizure of Plaintiff's weapons was intended to safeguard them following his transport to CPEP following a domestic incident. (Matthews Decl., Ex. 3 at 134:18-24.) Therefore, the policy allegedly applied to Plaintiff—that is, a policy of temporarily seizing of an individual's firearms upon their transport to CPEP following a domestic dispute—qualifies as a special-needs seizure.
Still, the court must determine whether the seizure was reasonable. In assessing the reasonableness of the seizure at issue, the Court must balance: "(1) the weight and immediacy of the government interest, (2) the nature of the privacy interest allegedly compromised by the [seizure], (3) the character of the intrusion imposed by the [seizure], and (4) the efficacy of the [seizure] in advancing the government interest." MacWade , 460 F.3d at 269 (internal quotation marks and citations omitted). Considering these factors, the Court finds that the seizure in this case was reasonable.
First , as the Second Circuit found in Bach v. Pataki , "[t]he State has a substantial and legitimate interest 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." 408 F.3d 75, 91 (2d Cir. 2005) (quoting In re Pelose , 53 A.D.2d 645, 384 N.Y.S.2d 499 (1976) ), overruled on other grounds by McDonald v. City of Chicago , 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (holding that the Second Amendment applies to state regulations by virtue of the Fourteenth Amendment). see also Kachalsky v. Cty. of Westchester , 701 F.3d 81, 97 (2d Cir. 2012) (finding, in the context of firearm regulation, that "New York has substantial, indeed compelling, governmental interests in public safety and crime prevention"). This interest is particularly acute in circumstances involving mental health and domestic violence.
The World Health Organization has found that more than ninety percent of those who commit suicide had a diagnosed mental disorder. See Jose Manoel Bertolote and Alexandra Fleischmann, Suicide and Psychiatric Diagnosis: A Worldwide Perspective , World Psychiatry, Oct. 2002, at 181-85, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1489848/. And there is an epidemic of suicide by firearm in our country. From 2012 through 2017, more than 132,000 Americans committed suicide using a firearm—an average of more than 22,000 per year. See Fatal Injury Reports, National, Regional and State, 1981 - 2017 , Centers for Disease Control and Prevention, https://webappa.cdc.gov/sasweb/ncipc/mortrate.html (hereinafter "CDC Fatal Injury Reports Web Tool") (last visited March 20, 2019). This firearm suicide rate is eight times that of other high-income countries. Erin Grinshteyn & Davis Hemenway, Violent Death Rates: The US Compared with Other High-Income OECD Countries , 192 The Am. J. Med. 266-73 (2016). The problem is only getting worse: the U.S. firearm suicide rate increased by eleven percent from 2012 to 2017. See CDC Fatal Injury Reports Web Tool (calculating rates of suicide by firearm per 100,000 persons as 6.58 in 2012 and 7.32 in 2017). While less than five percent of those individuals who attempt suicide without a firearm are successful, eighty-five percent of those who attempt to do so with a firearm die. See Firearm Safety in the United States , Everytown for Gun Safety (Aug. 30, 2018), https://everytownresearch.org/firearm-suicide/. And studies suggest that having access to a firearm triples one's risk of death by suicide. Id. Indeed, a number of studies have demonstrated that the possession of a firearms increases the risk of suicide not just for the firearm owner, but for all individuals within the firearm owner's household. See Michael Siegel & Emily Rothman, Firearm Ownership and Suicide Rates Among US Men and Women, 1981–2013 , 106 Am. J. Pub. Health 1316-22 (2016), https://ajph.aphapublications.org/doi/full/10.2105/AJPH.2016.303182.
For these reasons, it is no surprise that the federal government, almost every single state, and the District of Columbia have laws limiting the possession of firearms by individuals who have been treated for mental health issues. See 18 U.S.C.§ 922(g) ; Ala. Code 1975 § 13A-11-72 ; Ariz. Rev. Stat. §§ 13-3101, 13-3102(A)(4) ; Ark. Code § 5-73-103 ; Cal. Welf. & Inst. Code §§ 8100, 8103 ; Conn. Gen. Stat. § 53a-217c ; Del. Code tit. 11 §§ 1448, 1448A ; D.C. Code § 7-2509.02(a)(3)(A) ; Fla. Stat. §§ 790.06, 790.065 ; Ga. Code § 16-11-129(b)(2)(J) ; Haw. Rev. Stat. § 134-7 ; Idaho Code § 18-3302(11) ; 720 Ill. Comp. Stat. §§ 5/24-3(A)(e), 3.1(a)(4); Kans. Stat. § 21-6301(a)(13) ; La. Rev. Stat. § 40:1379.3(C)(5) ; Me. Stat. tit. 15 § 393; Md. Code Pub. Safety § 5-133; Mass. Gen. Laws ch. 140, § 131(d)(iii) ; Mich. Comp. Laws § 28.422(3)(g) ; Minn. Stat. § 624.713 ; Miss. Code § 45-9-101(2)(h) ; Mo. Rev. Stat. § 571.070 ; Mont. Code § 45-8-321(2)(g) ; Neb. Rev. Stat. § 69-2433(6) ; N.J. Rev. Stat. § 2c:58-3(c)(3) ; N.M. Stat. § 29-19-4(A)(8) ; N.Y. Penal Law § 400.00(1)(h) ; N.C. Gen Stat. § 14-404(c)(4) ; N.D. Cent. Code § 62.1-02-01(1)(c) ; Ohio Rev. Code § 2923.125(D)(1)(i) ; Okla. Stat. tit. 21, §§ 21 -1289.10, 21 -1289.12 ; Or. Rev. Stat. § 166.250 ; 18 Pa. Cons. Stat. § 6105(c)(4) ; 11 R.I. Gen. Laws § 11-47-6 ; S.C. Code §§ 16-23-30(A)(1), 44-23-1080 ; Tenn. Code Ann. § 39-17-1351(c)(12) ; Tex. Gov't Code § 411.172(a)(7), (d), (e) ; Utah Code Ann. § 53-5-704(2)(a)(vii) ; Va. Code Ann. § 18.2-308.1:2, 1:3; Wash. Rev. Code § 9.41.040(2)(a)(vi) ; W. Va. Code § 61-7-7(a)(4) ; Wis. Stat. §§ 941.29(1m)(e) ; Wyo. Stat. § 6-8-404(c)(iii).
Moreover, domestic violence and gun violence are inextricably linked. Homicide is the leading cause of death in the United States among African-American women aged fifteen to forty-five, and the seventh leading cause of death among all American women. Jacquelyn C. Campbell et al., Risk Factors for Femicide in Abusive Relationships: Results from a Multistate Case Control Study , 93 Am. J. Pub. Health 1089-97 (2003), https://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.93.7.1089 (hereinafter "Campbell, Risk Factors "). And, almost half of women murdered in the United States were murdered by intimate partners. Id. Over the past twenty-five years, more intimate-partner homicides have been committed with firearms than with all other weapons combined. See April M. Zeoli & Shannon Frattaroli, Evidence for Optimism: Policies to Limit Batterers' Access to Guns, in Reducing Gun Violence in America: Informing Policy with Evidence and Analysis 53-63 (Daniel W. Webster and Jon S. Vernick eds., 2013). Every month, on average, approximately fifty women in this country are shot to death by an intimate partner. See Domestic Shooting Homicides , Associated Press, http://data.ap.org/projects/2016/domestic-gun-homicides/ (last visited March 20, 2019). Individuals with a history of domestic violence are five times more likely to subsequently murder an intimate partner when a firearm is in the home. Campbell, Risk Factors . Further, in fifty-four percent of mass shootings occurring from 2009 to 2016, the shooters killed intimate partners or other family members. See Everytown for Gun Safety, Mass Shootings in the United States: 2009-2016 , https://everytownresearch.org/reports/mass-shootings-analysis/. Moreover, these problems appear to be getting worse, not better. See Jacqueline Howard, Gun Deaths in US Reach Highest Level in Nearly 40 Years, CDC Data Reveals , CNN.com (Dec. 14, 2018, 2:13 PM), https://www.cnn.com/2018/12/13/health/gun-deaths-highest-40-years-cdc/index.html (noting that nearly 40,000 people died by guns in the United States in 2017, an increase of more than 10,000 deaths from 1999, with 23,854 of those deaths attributed to suicide).
Laws limiting the ability of those involved in domestic disputes or domestic violence to possess firearms are effective in reducing homicide rates. Researchers have found that states requiring that individuals subject to restraining orders relinquish firearms in their possession, had intimate partner-homicide rates fourteen percent lower than states that did not have such requirements. See Carolina Díez at al., State Intimate Partner Violence-Related Firearm Laws and Intimate Partner Homicide Rates in the United States, 1991 to 2015 , 167 Annals Internal Med. 536 (Oct. 17, 2017), https://annals.org/aim/fullarticle/2654047/state-intimate-partner-violence-related-firearm-laws-intimate-partner-homicide. They further found that there were seventy-five fewer intimate-partner homicides in the U.S. in 2015, than there would have been in the absence of such restrictions. Id. These researchers projected that if all fifty states had similar restrictions in place, there would have been an additional 120 fewer intimate-partner homicides in 2015. Id. The government has a compelling interest in ensuring that individuals involved in domestic disputes and suffering from mental health issues do not have access to firearms.
Second , while Plaintiff undoubtedly has a privacy interest in his firearms, that right is somewhat diminished because he was expressly made aware that his weapons could be seized at any time. In United States v. Biswell , the Supreme Court upheld as constitutional warrantless searches of licensed firearm dealers. 406 U.S. 311, 316, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). The Court found that the firearms dealers' privacy interests were diminished because "[w]hen a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection. Each licensee is annually furnished with a revised compilation of ordinances that describe his obligations and define the inspector's authority." Id ; see also United States v. Streifel , 665 F.2d 414, 419 n.8 (2d Cir. 1981) (noting that "gun dealers or liquor purveyers, have a greatly reduced expectation of privacy because they know that they are subject ‘to a full arsenal of governmental regulation’ ") (quoting Marshall v. Barlow's Inc. , 436 U.S. 307, 313, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978) ).
The same is true here. Pursuant to New York law, whenever an individual's pistol license is suspended or revoked, that individual is required to surrender "any and all firearms, rifles, or shotguns." N.Y. Penal Law § 400.00(11)(c) (emphasis added). That is, a pistol license holder, like Plaintiff, was on notice that his firearms were subject to seizure under specified conditions. Moreover, Plaintiff was expressly informed of this requirement by the County's Pistol License Guidelines, which state: "IF A POLICE OFFICER OR MEMBER OF THE PISTOL LICENSE BUREAU REQUESTS YOU TO SURRENDER YOUR LICENSE AND FIREARM(S), AND YOU REFUSE, ... YOU MAY BE ARRESTED." (Bellantoni Decl., Ex. 10 at 22, ECF No. 101-9.) Plaintiff chose to apply for a pistol license, subjecting himself to the requirements of New York Penal Law and the County's Pistol License Guidelines, aware that by doing so he would be subject to the seizure of all of his firearms. Because Plaintiff was expressly put on notice that his firearms could be surrendered upon the revocation of his pistol license, he had a diminished privacy interest in his firearms. See Palmieri v. Lynch , 392 F.3d 73, 83 (2d Cir. 2004) (finding a plaintiff's privacy interest in his own home diminished because he "was on notice" that his home could be inspected).
Third , the Court must examine the nature and extent of the intrusion. In examining this factor in the context of special-need seizures, the Supreme Court has highlighted the duration of the seizure, the length of interaction with police officers, and the degree to which police officers are permitted to exercise discretion in manners that could lead to harassment or discrimination. An examination of the facts here reveals that the nature and extent of the intrusion in this case was not minimal. The seizure of Plaintiff's weapons was not brief. Indeed, the seizure of Plaintiff's weapons persists to this day. Further, Plaintiff's weapons were seized from his home, taken from a locked safe, outside of his presence, and only after he directed his wife to provide the weapons to police officers. While the parties dispute whether Plaintiff's instruction to his wife was voluntary, the interaction between police officers and both Plaintiff and his wife extended over the course of several hours. Taken together, these facts support a finding that the intrusion here was not minimal.
By contrast, in Illinois v. Lidster , the Supreme Court found that the seizure of vehicles at a traffic stop was reasonable where "each stop required only a brief wait in line[,] ... [c]ontact with the police lasted only a few seconds[,] ... [p]olice contact consisted simply of a request for information and the distribution of a flyer ... [, and] there [wa]s no allegation ... that the police acted in a discriminatory or otherwise unlawful manner while questioning motorists during stops." 540 U.S. 419, 427–28, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004).
Fourth , the Court must consider the efficacy of the policy at issue, or the "degree to which the seizure advances the public interest." MacWade , 460 F.3d at 273 (citation omitted). In conducting this analysis, the Supreme Court has cautioned that courts are not "to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger." Michigan Dep't of State Police v. Sitz , 496 U.S. 444, 453, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). Instead, the Court need only satisfy itself that the policy at issue represents "a reasonably effective means of addressing" the government's interest in public safety. Bd. of Educ. v. Earls , 536 U.S. 822, 837, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002).
Here, the temporary seizure of an individual's firearms pending an investigation by the Pistol Licensing Bureau following that individual's transport to CPEP after a domestic dispute is a reasonably effective means of addressing the government's interest in public safety. The purported policy would permit the temporary seizure of an individual's firearms if (1) he is transported to CPEP, (2) following a domestic dispute. Notably, an officer is only permitted to transport an individual to CPEP where that officer finds that the individual "appears to be mentally ill and is conducting himself or herself in a manner which is likely to result in serious harm to the person or others." N.Y. Mental Hyg. Law § 9.41. Where an officer has made such a finding, particularly in the context of a domestic dispute, temporarily removing that individual's firearms pending an investigation is a reasonably effective means of furthering the government's interest in public safety.
Plaintiff contends that there are specific provisions of New York law providing a basis upon which firearms must be surrendered, and that, because none of these provisions apply here, the seizure of Plaintiff's firearms was necessarily unconstitutional. (Pl.'s Cty. Opp'n at 9-10.) But the fact that a County policy is not specifically authorized by state law does not mean that such a policy is unconstitutional. Indeed, Plaintiff fails to cite a single case in support of this proposition. This is not surprising because "[o]ur precedents have firmly established that the mere violation of a state law does not automatically give rise to a violation of federal constitutional rights." See Zahra v. Town of Southold , 48 F.3d 674, 682 (2d Cir. 1995). Plaintiff has brought a constitutional challenge against the County's policy, and therefore it is the Constitution, and not state law, that provides the relevant standard. Moreover, the fact that firearms are extensively regulated within New York State, see generally N.Y. Penal Law § 400.00 ; N.Y. Crim. Proc. Law § 33.20(2-a), only further supports the Court's conclusion that Plaintiff's privacy rights with respect to his firearms are somewhat diminished.
Weighing these factors together, the Court finds the purported policy or custom of temporarily seizing firearms under these circumstances is a reasonable one. While the intrusion imposed upon Plaintiff's privacy rights by the County's policy is not insignificant, Plaintiff's privacy rights are somewhat diminished, and the government has a compelling interest in limiting the ability of those potentially suffering from mental illness or involved in incidents of domestic violence to access firearms. Therefore, the Court finds that the County's purported policy or custom did not violate Plaintiff's Fourth Amendment rights. The Court's decision is based upon a temporary custom or policy of seizing weapons. If Plaintiff had adduced evidence of a policy or custom of permanently seizing firearms under these circumstances, its weighing of these factors might well yield a different result. Similarly, if Plaintiff had adduced evidence that the County had a policy of seizing firearms from individuals who had already been medically discharged from CPEP, the Court might weigh these factors differently.
Plaintiff challenges the County's policy both as applied to Plaintiff and on its face. It has long been established "that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivable be applied unconstitutionally to others, in other situations not before the Court." United States v. Decastro , 682 F.3d 160, 163 (2d Cir. 2012) (quoting Parker v. Levy , 417 U.S. 733, 759, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) ). Therefore, a party "who fails to demonstrate that a challenged law is unconstitutional as applied to [him] has ‘necessarily fail[ed] to state a facial challenge, which requires [him] to establish that no set of circumstances exists under which the statute would be valid.’ " Id. (quoting Diaz v. Paterson , 547 F.3d 88, 101 (2d Cir.2008) ). Because Plaintiff's as-applied challenge fails, so too does his facial challenge.
The record indicates that Dr. Yacoub only determined that Plaintiff could be medically discharged after Plaintiff's firearms had already been seized. (See State Defs.' 56.1 at ¶¶ 21-25.)
B. Plaintiff's Second Amendment Claims Against the County
Plaintiff contends that his Second Amendment rights were violated by certain County policies. (Pl.'s Cty. Opp'n at 20-22, 24-25.) Specifically, Plaintiff alleges that the County's Pistol License Policies requiring the revocation of a pistol license where (1) the licensee resides with an individual who has been treated for mental health issues, (2) the licensee has been transported to a mental health facility, and (3) the licensee fails to notify the Licensing Bureau that police responded to his home violated his Second Amendment rights. (Id. at 24-25.) Plaintiff also claims that the County's policy of temporarily seizing an individual's firearms when that individual is transported to CPEP and involved in a domestic dispute violated his Second Amendment rights. (Id. at 20-21.) The Court refers to these four policies collectively as the "Revocation and Seizure Policies." Additionally, Plaintiff alleges that certain policies which do not appear to have been applied to him also violate the Second Amendment, particularly policies (1) requiring the surrender of a pistol license and all firearms upon demand by a police officer or member of the Licensing Bureau; (2) requiring firearms to be kept unloaded and locked in a location separate from their ammunition; (3) requiring firearms to be kept unloaded with a locking device attached and hidden in a secure location. The Court refers to these policies collectively as the "Storage and Surrender Policies." (Id. at 25.)
1. The Revocation and Seizure Policies
The Second Amendment of the U.S. Constitution provides: "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. In Heller, the Supreme Court found that the Second Amendment guarantees "the individual right to possess and carry weapons in case of confrontation." 554 U.S. at 592, 128 S.Ct. 2783. While the Supreme Court recognized an individual right to "keep and bear arms," it made clear that this right "was not unlimited." Id. at 595, 128 S.Ct. 2783.
Following the Supreme Court's decision in Heller , the Second Circuit has applied a two-step inquiry in determining the constitutionality of firearm restrictions. First , a court must consider "whether the restriction burdens conduct protected by the Second Amendment. If the challenged restriction does not implicate conduct within the scope of the Second Amendment, our analysis ends and the legislation stands." N.Y. State Rifle & Pistol Ass'n, Inc. v. Cuomo , 804 F.3d 242, 254 (2d Cir. 2015). Second , where a restriction burdens conduct protected by the Second Amendment, a court must determine the level of scrutiny to apply to that restrictions. Id.
Plaintiff contends that Heller stands for the proposition that a complete ban on handguns is per se unlawful and the revocation of Plaintiff's pistol license and his inability to possess a handgun is therefore also unlawful. (Pl.'s Opp'n at 24-25.) The Court in Heller dealt with a city-wide ban on handguns for all individuals. 554 U.S. at 574, 128 S.Ct. 2783. The revocation provisions at issue here, however, provide guidelines based on which a licensing official may conclude that a specific individual is not qualified to possess a handgun. Such guidelines do not amount to a county-wide handgun prohibition for all individuals, and therefore do not raise the same Second Amendment concerns. Thus, Heller is of no avail to Plaintiff.
There can be no question that the Revocation and Seizure Policies implicated conduct within the scope of the Second Amendment. At least one of the Policies resulted in the revocation of Plaintiff's pistol license and the temporary seizure of Plaintiff's firearms, and limited Plaintiff's ability to possess handguns. That the seizure occurred in Plaintiff's home only bolsters the Court's conclusion. See Heller , 554 U.S. at 635, 128 S.Ct. 2783 (holding that the Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.") That said, the Court finds that the Revocation and Seizure Policies only moderately burden Plaintiff's Second Amendment right.
The Heller court noted that handguns can raise particular concerns with respect to the Second Amendment. See Heller , 554 U.S. at 629, 128 S.Ct. 2783 (observing that "the American people have considered the handgun to be the quintessential self-defense weapon").
While the Revocation and Seizure Policies prevent Plaintiff from possessing a handgun, they do not prevent him from possessing firearms altogether. Under New York law, no license is required to possess a shotgun with a barrel eighteen inches or longer, a rifle with a barrel sixteen inches or longer, or antique firearms. See N.Y. Penal Law §§ 265.00(3) (defining the term "firearm"), 400.00 (setting standards for firearms licensing). Indeed, as Plaintiff conceded at the May 30, 2018 pre-motion conference and at his deposition, he was able to repurchase his Remington Model 1100 3006 and his Para Ordnance P12 semiautomatic rifles and currently is in possession of both. (Bellantoni Decl., Ex. 1 at 205:18-206:11; Pre-Mot. Conf. Tr. 43, May 30, 2018 (rough draft on file with the court reporter).) The Second Amendment is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Heller , 554 U.S. at 626, 128 S.Ct. 2783. And it certainly is not a constitutionally guaranteed right to possess any weapon of Plaintiff's choice. Because Plaintiff currently lawfully possesses two firearms, he cannot plausibly claim that the Revocation and Seizure Policies pose a substantial or significant burden on his Second Amendment right. See, e.g. , Perros v. Cty. of Nassau , 238 F. Supp. 3d 395, 401 (E.D.N.Y. 2017) (dismissing Second Amendment claims where "Plaintiffs are still able to obtain a gun license to own a shotgun or a rifle"); Vaher v. Town of Orangetown , 916 F.Supp. 2d 404, 430 (S.D.N.Y. 2013) (dismissing Second Amendment claims where "there is no allegation that Defendants' actions have affected Plaintiff's ability to retain or acquire other firearms."); McGuire v. Village of Tarrytown , No. 8-cv-2049, 2011 WL 2623466, at *7 (S.D.N.Y. June 22, 2011) (holding that because "defendants did not prevent [plaintiff] from acquiring another weapon, they did not impede plaintiff's ‘right to bear arms’ ").
In the Second Amendment context, the Second Circuit has instructed that "heightened scrutiny is triggered only by those restrictions that (like the complete prohibition on handguns struck down in Heller ) operate as a substantial burden on the ability of law-abiding citizens to possess and use a firearm for self-defense (or for other lawful purposes)." United States v. Decastro , 682 F.3d 160, 166 (2d Cir. 2012). As the Second Circuit has explained, a "law that regulates the availability of firearms is not a substantial burden on the right to keep and bear arms if adequate alternatives remain for law-abiding citizens to acquire a firearm for self-defense." Id. at 168. Accordingly, the Second Circuit has applied intermediate, rather than strict scrutiny, to policies, like those here, that only moderately burden the Second Amendment right, by limiting the availability of some, but not all, firearms. See N.Y. State Rifle & Pistol Ass'n , 804 F.3d at 260–61 (applying intermediate scrutiny to assault-weapon and large-capacity-magazine ban because "[t]he burden imposed by the challenged legislation [wa]s real, but ... not ‘severe’ ").
In applying intermediate scrutiny, the Court must determine whether the Revocation and Seizure Policies are "substantially related to the achievement of an important governmental interest." Id. at 261 (quoting Kachalsky v. Cty. of Westchester , 701 F.3d 81, 96 (2d Cir. 2012) ). The Court easily concludes that they are.
For reasons similar to those set forth with respect to Plaintiff's Fourth Amendment claims, the Revocation and Seizure Policies substantially relate to the government's important interest in limiting the ability of those individuals who suffer from mental health issues or are involved in domestic incidents to access firearms. The fact that the pistol licensing provisions are discretionary, and not mandatory, only strengthens the Court's conclusion. By permitting a licensing official to make a case-by-case, individualized determination as to an individual's fitness to hold a license, these provisions permit the government to more narrowly prescribe the circumstances under which an individual's Second Amendment rights may be burdened. See Kachalsky v. Cacace , 817 F. Supp. 2d 235, 271 (S.D.N.Y. 2011) (upholding New York handgun licensing provisions under intermediate scrutiny based, in part, on the fact that "the statute does not function as an outright ban on concealed carry, but rather calls for individualized, case-by-case determinations regarding whether full-carry permit applicants have an actual and articulable—rather than merely speculative, potential, or even specious—need for self-defense."), aff'd sub nom. Kachalsky v. Cty. of Westchester , 701 F.3d 81 (2d Cir. 2012). Therefore, the Court concludes that the Revocation and Seizure Policies are consistent with the Second Amendment.
2. The Storage and Surrender Policies
The Storage and Surrender Policies are found in the County's Pistol License Information Handbook. That Handbook contains the following statement:
The following safety measures will be accepted as standard practice for the safeguarding of firearms:
i. UNLOADED and locked in a metal container.
ii. UNLOADED and secured in a safe.
iii. UNLOADED with a locking device attached and hidden in a secure location.
(Bellantoni Decl., Ex. 10 at 23.) The Handbook also contains the following disclaimer:
IF A POLICE OFFICER OR MEMBER OF THE PISTOL LICENSE BUREAU REQUESTS YOU TO SURRENDER YOUR LICENSE AND FIREARM(S), AND YOU REFUSE, SUCH CONDUCT WILL BE SUFFICIENT CAUSE FOR THE REVOCATION OF YOUR LICENSE, AND YOU MAY BE ARRESTED AND CHARGED WITH A VIOLATION OF SECTION 400.00, SUB. 11(c), A CLASS A MISDEMEANOR.
(Id. at 22.)
With respect to the Storage and Surrender Policies, Plaintiff lacks standing to challenge these policies because he has not adduced any evidence that he was harmed by these policies or that some of these policies even exist. "To establish Article III standing, an injury must be ‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’ " Clapper v. Amnesty Int'l USA , 568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (quoting Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139, 149, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010) ). As the Supreme Court has explained, "[a]lthough imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending." Id. at 409, 133 S.Ct. 1138 (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 564 n.2, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). Therefore, "threatened injury must be certainly impending to constitute injury in fact." Id. (quoting Whitmore v. Arkansas , 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) ). Importantly, the claim of a "possible future injury" is not sufficient to confer standing. Id. Where, as here, a plaintiff claims injury from the future threat of arrest and prosecution, the Supreme Court has instructed that a plaintiff may evidence "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, [with] ... a credible threat of prosecution thereunder." Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). A plaintiff may demonstrate a credible threat of prosecution by evidencing a "history of past enforcement." Susan B. Anthony List v. Driehaus , 573 U.S. 149, 164, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014). For example, in Knife Rights, Inc. v. Vance , the Second Circuit found that plaintiffs had demonstrated a credible threat of prosecution where a plaintiff "was officially charged, paid fines, surrendered property in purported violation of law, implemented a prosecution-approved compliance program, and entered into a deferred prosecution agreement that expressly threatened future charges if its terms were not satisfied." 802 F.3d 377, 385 (2d Cir. 2015) ; see also Steffel v. Thompson , 415 U.S. 452, 456, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (finding credible threat of prosecution where the parties stipulated that if the plaintiff failed to stop handbilling, a warrant would issue and he might be arrested and charged). Here, Plaintiff has failed to adduce any credible threat of prosecution based on the Storage and Surrender Policies.
The Handbook's storage and safeguarding provisions do not appear to constitute binding requirements. Instead, the phrase "[t]he following safety measures will be accepted as standard practice for the safeguarding of firearms" suggests that these provisions represent best practices rather than enforceable mandates. (Bellantoni Decl., Ex. 10 at 23.) Moreover, Plaintiff has failed to adduce any evidence that these provisions have been the basis for the revocation of his or anyone else's pistol license, the seizure of his or anyone else's weapons, or the arrest of Plaintiff or any other individual. That is, Plaintiff has failed to demonstrate any history of enforcement, or any credible threat of future enforcement. Notably, while Officer Adler claimed that Plaintiff initially refused to turn over his weapons, it is undisputed that Plaintiff was not charged with any crime and his purported refusal to surrender his weapons was not one of the grounds upon which his license was revoked. (See Bellantoni Decl., Ex. 14, ECF No. 109-15.) That is, Plaintiff expressly engaged in conduct that would purportedly cause him to be arrested or prosecuted and yet he was neither arrested nor prosecuted. Therefore, Plaintiff has failed to demonstrate a credible threat of future prosecution and lacks standing to prosecute these claims.
Plaintiff also claims that the Pistol Licensing Bureau has a "policy requiring firearms to be kept unloaded and locked in a location separate from their ammunition." (Pl.'s Cty. Opp'n at 25.) In addition to the deficiencies noted above, Plaintiff's only evidence of this policy is his own deposition testimony. Such testimony, however, would constitute inadmissible hearsay and therefore Plaintiff has failed to create a triable issue of fact with respect to this claim. See Raskin v. Wyatt Co. , 125 F.3d 55, 66 (2d Cir. 1997) ("[O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary judgment."); Edwards v. Castro , No. 16-CV-2383, 2018 WL 4680996, at *11 (S.D.N.Y. Sept. 28, 2018) (holding that plaintiff's own deposition statements constituted inadmissible hearsay on motion for summary judgment).
C. Plaintiff's Pistol License Due Process Claims
On June 13, 2014, Plaintiff's pistol license was revoked. (Cty. Defs.' Reply 56.1 ¶ 60.) Although Plaintiff was provided with a post-revocation hearing on December 16, 2015, today, more than three years later, he has still not been provided with any decision from that hearing. (Id. ¶¶ 61-63.) Plaintiff claims that the Fourteenth Amendment guaranteed him a right to a hearing prior to the revocation of his pistol license. (Pl.'s Cty. Opp'n at 23-24.)
In Spinelli v. City of New York , however, the Second Circuit rejected this very claim. 579 F.3d 160, 170 (2d Cir. 2009). There, the NYPD suspended a gun-shop owner's gun license and seized her firearms. Id. at 164-65. The gun-shop owner argued that she was entitled to notice and a hearing prior to revoking her license and seizing her firearms. Id. at 170. The Second Circuit found that, "although notice and a pre-deprivation hearing are generally required, in certain circumstances, the lack of such pre-deprivation process will not offend the constitutional guarantee of due process, provided there is sufficient post-deprivation process." Id. (alterations and citation omitted). As the Second Circuit explained, the "necessity of quick action by the State or the impracticality of providing any meaningful pre-deprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State's action at some time after the initial taking, can satisfy the requirements of procedural due process." Id. (alterations and citation omitted).
This reasoning applies with equal force here. The government has a compelling and pressing interest in quickly removing firearms, and the license permitting the carrying of firearms, from those whom it deems unqualified to carry firearms. By necessity, such seizures must be carried out quickly and, in the interest of the safety of all involved, without lengthy notice and debate. Here, the County has established a post-deprivation procedure which provides an individual notice and an opportunity to be heard. (See Cty. Defs.' 56.1 ¶¶ 66-67.) Indeed, Plaintiff took advantage of this very procedure. (Id. ¶¶ 68-69.) Therefore, under these circumstances, Plaintiff was not entitled to pre-deprivation process.
While the Court assumes that Plaintiff has a protected property interest in his pistol license, it is not clear that this is the case. "A procedural due process claim is composed of two elements: (1) the existence of a property or liberty interest that was deprived and (2) deprivation of that interest without due process." Bryant v. N.Y. State Educ. Dep't , 692 F.3d 202, 218 (2d Cir. 2012). "To establish deprivation of a property interest, a plaintiff must demonstrate an interest "in a benefit that is ‘more than an abstract need or desire for it ... [He] must, instead, have a legitimate claim of entitlement to it’ under state or federal law in order to state a § 1983 claim." Finley v. Giacobbe , 79 F.3d 1285, 1296 (2d Cir. 1996) (quoting Bd. of Regents v. Roth , 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ). "[A] benefit is not a protected entitlement if government officials may grant or deny it in their discretion." Town of Castle Rock v. Gonzales , 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). Under New York law, "[i]t is well-settled that the possession of a handgun license is a privilege, not a right." Papaioannou v. Kelly , 14 A.D.3d 459, 788 N.Y.S.2d 378, 378 (2005) (collecting cases). And pistol-licensing officers have fairly broad discretion in determining whether to issue or revoke a pistol license. See N.Y. Penal Law § 400.00(3)(a). Therefore, because it is a discretionary decision on the licensing officer's part whether to revoke a pistol license, Plaintiff may not necessarily have a protected property interest in the license.
Plaintiff next argues that the County's failure to render a decision in the three years following his December 16, 2015 license revocation hearing violates due process. (Pl.'s Cty. Opp'n at 23-24.) Plaintiff does not challenge the County's license-revocation-hearing procedures. Instead, Plaintiff complains that the County's procedures have not proceeded quickly enough. But where procedures exist under state law but simply have not proceeded expeditiously, the Second Circuit has found that such delays do not constitute a due process violation. See, e.g. , N.Y. State Nat'l Org. for Women v. Pataki , 261 F.3d 156, 168 (2d Cir. 2001) (finding no due process violation based on delays in processing discrimination claims because "[o]nce the delay in the processing of any claim ... became unreasonable, each [plaintiff] could have brought an Article 78 proceeding to mandamus ... to proceed expeditiously to resolve the discrimination claim."); Orange Lake Assocs., Inc. v. Kirkpatrick , 21 F.3d 1214, 1221, 1224 (2d Cir. 1994) (stating that zoning board's delay did not violate due process because Article 78 procedure constituted adequate process); C.C.S.com USA, Inc. v. Gerhauser , 518 Fed. App'x 1, 3-4 (2d Cir. 2013) (finding that plaintiff who "never inquired into the status of its application or pursued an Article 78 hearing to compel" a decision from a local entity could not demonstrate denial of due process based on delay). Instead, the Second Circuit has found that "an Article 78 proceeding is a perfectly adequate postdeprivation remedy" under these circumstances. Hellenic Am. Neighborhood Action Comm. v. City of New York , 101 F.3d 877, 881 (2d Cir. 1996) ; see also Alfaro Motors, Inc. v. Ward , 814 F.2d 883, 888 (2d Cir. 1987) (holding that "adequate state procedures," such as an Article 78 proceeding, were "sufficient to protect claimed property interest"). Here, Plaintiff can file an Article 78 mandamus proceeding to compel a decision. Because he has a constitutionally-acceptable avenue to challenge the delayed decision regarding his pistol license, his due process claim must be dismissed.
Moreover, concerns of federalism also warrant deference to the Article 78 procedures. New York State has designated a local agency with responsibility for making pistol license determinations. That local agency, with expertise in the relevant pistol licensing provisions, has already held a hearing. Deferring to that agency, and New York State's Article 78 procedures, "is more consistent with the ‘spirit’ of federalism than is unnecessarily subjecting [a] state agenc[y] to intrusive federal court intervention under the guise of § 1983." N.Y. State Nat'l Org. for Women , 261 F.3d at 169.
D. Plaintiff's Other Firearms Due Process Claims
Plaintiff similarly maintains that the seizure of his longarms without a hearing violated his due process rights. (Pl.'s Cty. Opp'n at 22-23.) Unlike with Plaintiff's pistol license and handguns, Plaintiff was provided with no hearing related to the seizure of his longarms. (Cty. 56.1 ¶ 71.) County Defendants argue that no hearing was required because Plaintiff consented to the County's seizure of his longarms by instructing his wife to provide them to police officers. (Cty. Defs.' Reply at 6.) In other words, County Defendants argue that if property is lawfully seized, it need never be returned.
County Defendants' argument is bunk. It confuses the legality of the initial seizure of Plaintiff's firearms with the legality of the County's continued withholding of those firearms. While the County was justified in temporarily seizing Plaintiff's firearms, this does not mean that the County is justified in forever retaining those firearms. Indeed, the Second Circuit has long found due process violations where an individual's property was lawfully seized, but later not returned. For example, in McClendon v. Rosetti , the Second Circuit found that the procedures governing the return of non-contraband property to arrestees was unconstitutional. 460 F.2d 111, 116 (2d Cir. 1972). At the time, the police required an arrestee to pursue a civil claim against the police department to have their property returned. Id. at 113. As the Second Circuit held, "[i]t seems plain enough that absent evidence of unlawful conduct, criminal sanctions may not be imposed, nor property forfeited." Id. at 115 (internal citation omitted).
The Second Circuit recently addressed a claim similar to Plaintiff's in Panzella v. Sposato , 863 F.3d 210 (2d Cir. 2017). In Panzella , the plaintiff's longarms were seized and held by the Nassau County Sheriff's Department following an order of protection entered against the plaintiff by New York Family Court. Id. at 214. After the Family Court order had been rescinded, the plaintiff repeatedly requested the return of her longarms. Id. In response, Nassau County instructed her that her only options were to seek a court order directing their return or appeal through an Article 78 proceeding. Id. at 214-15, 218. The Second Circuit found that the plaintiff's right to post-deprivation due process had been violated by the County's retention of her longarms. Id. at 219. In so finding, the Court employed the balancing test established by the Supreme Court in Mathews v. Eldridge , 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and weighed (1) the plaintiff's property interest, (2) the risk of erroneous deprivation based on Nassau County's procedures, and (3) the government's interest, including any additional burdens imposed on the government as a result of any supplementary procedures. Panzella , 863 F.3d at 218-19. The Second Circuit found that the plaintiff's property interest outweighed the government's interest in public safety, particularly because the plaintiff was permitted by law to purchase new longarms. Id.
Panzella is indistinguishable from the facts here. Plaintiff indisputably had a property interest in his longarms. It is undisputed that the County seized Plaintiffs' longarms and did not return them. The County has failed to articulate any government interest in keeping Plaintiff's longarms. Like in Panzella , Plaintiff's firearms were not contraband and were not the evidence of any crime. Indeed, it appears that the County simply gave the longarms away and Plaintiff has since repurchased them. Therefore, the County has no justification for refusing to hold a post-deprivation hearing or return Plaintiff's property. The Court orders that the County provide Plaintiff with a hearing that meets the following conditions: (1) held before a neutral decision-maker; (2) limited to longarms that were not related to the commission of a crime or otherwise could be held lawfully by the plaintiff; (3) the County will have the burden of proving that it is likely to succeed in court on a cause of action to maintain possession of the seized longarms; (4) if Plaintiff prevails at the hearing, the neutral decision maker will determine what, if any, relief to grant Plaintiff.
The Court notes that there is some tension between its determination that Article 78 provides adequate process for Plaintiff's pistol license claims but not for Plaintiff's longarms claims. Plaintiff's due process claim arising from his longarms are distinguishable in at least three ways from his due process claim arising from his pistol license. First , the Second Circuit appears to have drawn a distinction between cases in which a state has established procedures but has simply failed to expeditiously follow those procedures and those in which a state has not established procedures at all. Compare N.Y. State Nat'l Org. for Women , 261 F.3d at 168 (finding no due process violations arising from delays in state agency's claim processing given the availability of Article 78 procedures) with Panzella , 863 F.3d at 216 (finding Article 78 insufficient given the absence of any procedure for the return of longarms). Second , unlike pistols or handguns, no license is required to possess longarms like shotguns or rifles. See N.Y. Penal Law §§ 265.00(3), 400.00. Therefore, while the County's Pistol Licensing Bureau could ultimately determine that Plaintiff is not entitled to the restoration of his pistol license, and therefore the return of his handguns, the County does not appear to have any justification for failing to return his longarms. Third , the same federalism concerns are not implicated with respect to Plaintiff's longarms due-process claims, because unlike the County Pistol Licensing Bureau in Plaintiff's pistol-license claims, there is no state agency with which the court would be interfering.
E. Plaintiff's Stigma-Plus Claims
Plaintiff alleges that the County officers' false statements give rise to a stigma-plus claim under § 1983. (Pl.'s Cty. Opp'n at 12-13.) To succeed on a stigma-plus claim, "a plaintiff must show (1) the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiff's status or rights." Disability Advocates, Inc. v. McMahon , 124 F. App'x 674, 677 (2d Cir. 2005) (quoting Sadallah v. City of Utica , 383 F.3d 34, 38 (2d Cir. 2004) (internal quotation marks omitted)). "The state-imposed burden or alteration of status must be in addition to the stigmatizing statement." Sadallah , 383 F.3d at 38 (internal quotation marks omitted). This is commonly referred to as the "plus prong." As relevant here, "[b]urdens that can satisfy the ‘plus’ prong ... include the deprivation of a plaintiff's property." Id. (quoting Greenwood v. New York, Office of Mental Health , 163 F.3d 119, 124 (2d Cir. 1998) ).
Plaintiff points to two separate sets of allegedly derogatory statements in support of his stigma-plus claim. First , Plaintiff has adduced evidence that Officers Adler and Verdu informed CPEP employees that he was suicidal. Specifically, the officers reported to CPEP employees that Plaintiff had "asked police to tase him so that he would die." (State Defs.' 56.1 ¶ 5.) Second , Plaintiff has adduced evidence that the officers filed written reports, which were ultimately provided to the County Pistol Licensing Bureau, and which reflected that Plaintiff had "made suicidal statements[,] ... was highly irrational[,] and clearly a danger to himself." (Bellantoni Decl., Ex. 14.) Plaintiff claims that these allegedly defamatory statements resulted in his confinement in the CPEP unit, the revocation of his pistol license, and the seizure of his firearms. (Pl.'s Cty. Opp'n at 12-13.)
The County Defendants argue that Plaintiff's stigma-plus claim fails because the statements were privileged (because they were made for the purposes of medical treatment) and because none of these statements were publicly disseminated. (County Defs.' Mem. at 5, 7.) The Court is not persuaded by the County Defendants' arguments.
Although courts in this circuit have identified certain privileges sufficient to defeat a stigma-plus claim, this is not such a case. For example, courts have found that statements made in open court during judicial proceedings are absolutely privileged, without regard to falsity. See Sharpe v. City of New York , No. 11-cv-5494, 2013 WL 2356063, at *7 (E.D.N.Y. May 29, 2013), aff'd , 560 F. App'x 78 (2d Cir. 2014). Similarly, New York courts recognize a qualified privilege protecting "communication[s] made by one person to another upon a subject in which both have an interest," such as performance evaluations in the employment context. Albert v. Loksen , 239 F.3d 256, 272 (2d Cir. 2001) (quoting Stillman v. Ford , 22 N.Y.2d 48, 290 N.Y.S.2d 893, 238 N.E.2d 304, 306 (1968) ). Defendants cite to no precedent, however, for the proposition that false statements made to medical providers enjoy such a privilege, nor has the Court identified any.
Even assuming the officers' statements to CPEP could qualify for such treatment, this qualified privilege gives way where a plaintiff alleges that statements were made "with actual malice, which is defined as personal spite, ill will, or culpable recklessness or negligence." Friedman v. Ergin , 110 A.D.2d 620, 487 N.Y.S.2d 109, 111, aff'd , 66 N.Y.2d 645, 495 N.Y.S.2d 364, 485 N.E.2d 1029 (1985). Here, Plaintiff alleges that the officers knowingly and falsely claimed that Mr. Torcivia was suicidal and a danger to himself for the purpose of fabricating probable cause. (Am. Compl. ¶¶ 64-65.) Such an allegation, if ultimately proven at trial, would defeat any qualified privilege.
The County Defendants' argument that the allegedly defamatory statements at issue were not publicly disseminated is similarly lacking. While the Second Circuit has recognized that "a statement made only to the plaintiff, and only in private," is insufficient to support a stigma-plus claim, a statement need only "be sufficiently public to create or threaten a stigma." Velez v. Levy , 401 F.3d 75, 87 (2d Cir. 2005). Plaintiff has adduced evidence that the officers made these statements to CPEP employees and also incorporated these statements in documents transferred to the County Pistol Licensing Bureau. The statements did not merely reside in internal reports kept securely within the County police department's files. Instead, these statements were shared with medical staff and a separate County department. While this dissemination is somewhat limited, Plaintiff has adduced evidence that this dissemination caused Plaintiff stigma. Specifically, Plaintiff was confined overnight in CPEP and his pistol license and weapons were seized as a result.
The cases cited by Defendants in support of their contention that the statements at issue were not publicly disseminated are inapposite. For example, in Ingber v. New York City Department of Education , the district court noted, without deciding, that allegedly defamatory statements were likely not sufficiently public to support a stigma-plus claim where the plaintiffs alleged that "red flags" were placed in their personnel file but failed to allege that anyone outside a specific department could even access such "red flags." No. 14-cv-3942, 2014 WL 6888777, at *3 (S.D.N.Y. Dec. 8, 2014). Similarly, in Febres v. City of New York , the district court dismissed stigma-plus claims where the plaintiff failed to allege that any information had actually been disclosed outside of an internal NYPD report and therefore failed to allege that he was harmed by any disclosure. 238 F.R.D. 377, 388 (S.D.N.Y. 2006). And, in Petrone v. Hampton Bays Union Free School District , the district court dismissed stigma-plus claims where the statements at issue were made within a private board meeting and Plaintiff failed to evidence any harm resulting from these statements. No. 03-cv-4359, 2013 WL 3491057, at *35 (E.D.N.Y. July 10, 2013), aff'd , 568 F. App'x 5 (2d Cir. 2014). Here, where Plaintiff has cited evidence that the allegedly defamatory statements at issue were shared outside the police department and resulted in concrete harm to him, the Court cannot resolve Plaintiff's stigma-plus claim as a matter of law.
F. Plaintiff's False-Imprisonment Claim Against the County Defendants
Section 50-h permits a municipality to demand an examination of an individual who files a notice of claim. N.Y. Gen. Mun. Law § 50-h. If a municipality makes such a demand, no action may be commenced against the municipality until a plaintiff complies with the demand. Id. If the examination is not conducted within ninety days of service of the demand, however, a plaintiff may commence his action. Id. Section 50-h further provides that if a plaintiff fails to appear at the hearing or requests an adjournment or postponement of the hearing, that plaintiff may not commence the action until he complies with the demand, even if the hearing ultimately takes place more than ninety days after the service of the demand. Id.
The County Defendants argue that Plaintiff failed to appear for a hearing pursuant to § 50-h and never rescheduled that hearing, therefore he was not permitted to file in federal court. (Cty. Defs.' Mem. at 7.) The parties do not dispute that the County twice adjourned the scheduled § 50-h hearing, and that the hearing was never rescheduled. (Cty. Defs.' Reply 56.1, Ex. B ¶¶ 3-9; Pl.'s Cty. Opp'n at 13-14.) The County Defendants argue that Plaintiff had the burden to reschedule the hearing prior to filing in federal court. (Cty. Defs.' Mem. at 7). Plaintiff contends that because the County Defendants adjourned and ultimately never rescheduled the hearing, Plaintiff was excused from complying with § 50-h. (Pl.'s Cty. Opp. at 13-14.) Plaintiff is correct.
New York courts that have construed § 50-h under similar circumstances have found that a municipality's failure to promptly reschedule a hearing relieves a plaintiff of his burden under § 50-h. For example, in Southern Tier Plastics, Inc. v. County of Broome , a New York Appellate Division court excused a plaintiff's failure to attend a § 50-h hearing under strikingly similar circumstances. 53 A.D.3d 980, 862 N.Y.S.2d 175, 176 (2008). There, a plaintiff requested the adjournment of a § 50-h hearing. Id. While the municipality agreed to adjourn the hearing, it instructed the plaintiff to contact it "as soon as possible" to reschedule the hearing. Id. The plaintiff did not reschedule the hearing and the municipality made no attempt to do so. Id. On these facts, the Appellate Division found: "When the hearing has been indefinitely postponed and the municipality does not serve a subsequent demand, a plaintiff's failure to appear for a hearing will not warrant dismissal of the complaint." Id. see also Vargas v. City of Yonkers , 65 A.D.3d 585, 883 N.Y.S.2d 720, 721 (2009) (finding that where a plaintiff "adjourned the scheduled hearing date and no new hearing date was selected..., and the defendant did not serve a subsequent demand, the plaintiffs' failure to appear for a hearing did not warrant dismissal of the complaint"). Here, where it is undisputed that the County, and not Plaintiff, adjourned the § 50-h hearing, it was incumbent upon the County to reschedule the hearing or serve a subsequent demand. Therefore, Plaintiff's failure to be examined in a § 50-h hearing does not require the dismissal of Plaintiff's common-law claims. II. Plaintiff's Claims Against the CPEP Defendants and CPEP Intern Smith
County Defendants cite a number of cases in support of their contention that the burden was on Plaintiff to reschedule the § 50-h hearing. (Cty. Defs.' 8-9.) But, as Plaintiff notes, in every one of these cases, the plaintiff, and not the municipality, was the cause of the adjournment or postponement. See, e.g. , Przybyla v. County of Suffolk , No. 09-cv-5129, 2017 WL 1274051, *2 (E.D.N.Y. Mar. 3, 2017) (finding that where a plaintiff refused to answer questions at a 50-h hearing requiring its adjournment, it was plaintiff's responsibility to reschedule the hearing); Kemp v. Cty. of Suffolk , 61 A.D.3d 937, 878 N.Y.S.2d 135, 136 (2009) (finding that "where the plaintiff invoked his Fifth Amendment privilege against self-incrimination at the ... § 50-h [hearing], ... the plaintiff, not the County defendants, was obligated to reschedule"); Bernoudy v. Cty. of Westchester , 40 A.D.3d 896, 837 N.Y.S.2d 187, 188 (2007) (affirming dismissal "since the hearing pursuant to General Municipal Law § 50-h was adjourned at the plaintiff's request, and he commenced this action without rescheduling a new hearing date after the last adjournment").
Plaintiff asserts two claims against the CPEP Defendants and CPEP Intern Smith arising from Plaintiff's confinement in CPEP: (1) a § 1983 claim based on alleged violations of the Fourth Amendment, and (2) an unlawful imprisonment claim under New York common law. (See Am. Compl. ¶¶ 217-18, 235-36; June 12, 2018 Ltr., ECF No. 126 (identifying remaining claims)). The CPEP Defendants and CPEP Intern Smith argue that summary judgment should be granted because none of the CPEP Defendants or CPEP Intern Smith were personally involved in any violation of Plaintiff's rights, there is no evidence that any of the CPEP Defendants or CPEP Intern Smith conditioned Plaintiff's discharge on the surrender of his firearms, and even if Plaintiff's release were conditioned on the surrender of his firearms, his detainment would not violate the Fourth Amendment. (See Mem. Law Supp. Def. Mary Catherine Smith's Mot. Summ. J. ("Smith Mem.") at 9-21, ECF No. 129; State Defs.' Mem. Law Supp. Their Mot. Summ. J. ("State Defs.' Mem.") at 9-16, ECF No. 137.) The CPEP Defendants and CPEP Intern Smith also argue that they are entitled to qualified immunity. (Smith Mem. at 21-25; State Defs.' Mem. at 16-20.) Even assuming that the CPEP Defendants and CPEP Intern Smith were personally involved in any false arrest or imprisonment of Plaintiff, the Court finds that they are entitled to qualified immunity under federal and state law.
A. Qualified Immunity Under Section 1983 for the CPEP Defendants
"The doctrine of qualified immunity entitles public officers to be shielded from liability for damages unless their conduct violates clearly established constitutional rights of which a reasonable person would have known, or unless it was objectively unreasonable for them to believe that their acts did not violate those rights." Gomez v. Pellicone , 986 F. Supp. 220, 226 (S.D.N.Y. 1997) (internal citations omitted). "This standard is ‘forgiving and protects all but the plainly incompetent or those who knowingly violate the law.’ " Burgess v. Town of Wallingford , 569 F. App'x 21, 22 (2d Cir. 2014) (summary order) (quoting Amore v. Novarro, 624 F.3d 522, 530 (2d Cir. 2010) ). Public officers are even entitled to qualified immunity if "officers of reasonable competence could disagree on the legality of the action at issue in its particular factual context." Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (internal quotation marks omitted). The Supreme Court has "repeatedly ... stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant , 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991).
Courts in the Second Circuit apply a two-pronged analysis to claims of qualified immunity: "whether the facts shown ‘make out a violation of a constitutional right,’ and ‘whether the right at issue was clearly established at the time of defendant's alleged misconduct.’ " Taravella v. Town of Wolcott , 599 F.3d 129, 133 (2d Cir. 2010) (quoting Pearson v. Callahan , 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). "Only Supreme Court and Second Circuit precedent existing at the time of the alleged violation is relevant in deciding whether a right is clearly established." Moore v. Vega , 371 F.3d 110, 114 (2d Cir. 2004). The Supreme Court has repeatedly instructed courts "not to define clearly established law at a high level of generality." Mullenix v. Luna , ––– U.S. ––––, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) (citation omitted). Instead, this inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. (citation omitted). This is especially true "in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine ... will apply to the factual situation the officer confronts." Kisela v. Hughes , ––– U.S. ––––, 138 S. Ct. 1148, 1152-53, 200 L.Ed.2d 449 (2018) (quoting Mullenix , 136 S. Ct at 308 )). Further, "even if the right was ‘clearly established,’ " a court must consider, "whether it was ‘objectively reasonable’ for the officer to believe the conduct at issue was lawful." Gonzalez v. City of Schenectady , 728 F.3d 149, 154 (2d Cir. 2013) (quoting Taravella , 599 F.3d at 133–34 ).
Plaintiff argues that the CPEP Defendants unlawfully detained him in violation of the Fourth Amendment for "more than three hours" to permit the seizure of Plaintiff's weapons after determining that he was not in need of care or treatment and was not a danger to himself or others. (Pl.'s Mem. Opp'n State Defs.' Mot. for Summ. J. ("Pl.'s State Opp'n") at 24, ECF No. 142.) Plaintiff contends that "it has been clearly established that the State cannot involuntarily confine a person unless it has probable cause to believe that the person poses a danger to themselves or to others." (Id. at 16.) But even taking the facts in a light most favorable to Plaintiff, and even assuming that the conduct at issue violated the Fourth Amendment, the Court cannot conclude that the CPEP Defendants violated clearly established constitutional law, or at least that the CPEP Defendants' conduct was unreasonable under the circumstances.
Notably, there is evidence in the record that the CPEP Defendants did not condition Plaintiff's discharge on the removal of his firearms. Specifically, it is undisputed that Dr. Yacoub made the final determination as to Plaintiff's medical discharge and that by the time Dr. Yacoub conducted his evaluation of Plaintiff, Plaintiff's firearms had already been removed. (State Defs.' 56.1 at ¶¶ 21-25.)
As an initial matter, Plaintiff points to no Second Circuit or Supreme Court precedent that would have clearly established that, under the circumstances, the CPEP Defendants' conduct violated the Constitution. Instead, Plaintiff cites to generalized standards governing the confinement of individuals in hospitals. (Pl.'s State Opp'n at 16.) For example, Plaintiff cites to O'Connor v. Donaldson , in which the Supreme Court found the confinement for almost 15 years of a mentally ill but harmless individual who was capable of living independently to be unconstitutional. 422 U.S. 563, 564, 576, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). This decision, however, would not put the CPEP Defendants on notice that the confinement of an individual for three hours while police officers seized his firearms was unconstitutional. Nor would Glass v. Mayas , where the Second Circuit found that hospital defendants were objectively reasonable in continuing to hospitalize an individual whom they believed to be dangerous. 984 F.2d 55, 58 (2d Cir. 1993). This finding would not indicate to the CPEP Defendants that their conduct here was not objectively reasonable. Indeed, to rely on these cases would violate the Supreme Court's clear instruction "not to define clearly established law at a high level of generality." al-Kidd , 563 U.S. at 742, 131 S.Ct. 2074.
The same is true for Anthony v. City of New York , another case cited by Plaintiff, in which the Second Circuit found that police officers' seizure of an individual who was sitting calmly and quietly based on a 911 call was objectively reasonable. 339 F.3d 129, 137-38 (2d Cir. 2003). Plaintiff also cites to a variety of district and state court cases. But "[o]nly Supreme Court and Second Circuit precedent existing at the time of the alleged violation is relevant in deciding whether a right is clearly established." Moore , 371 F.3d at 114. Therefore, the Court need not consider these cases.
By contrast, the CPEP Defendants point to the Second Circuit's decision in Kia P. v. McIntyre , 235 F.3d 749, 762–63 (2d Cir. 2000). There, a newborn infant was withheld from the custody of her parents by a hospital after a toxicology test indicated the presence of methadone in her urine. Id. at 751. The hospital held the child against the stated wishes of the mother for a total of ten days, notwithstanding the fact that the hospital no longer had a medical reason for doing so after the eighth or ninth day. Id. During the day or two that followed, the hospital debated what to do with the child out of an apparent concern for parental abuse. Id. at 762-63. The Second Circuit found that this one-or two-day detention did not violate the Fourth Amendment because it was reasonable. Id. As the Second Circuit explained, to hold otherwise "would have put the Hospital defendants in an impossible position to have required them to decide whether further action and its attendant legal proceedings were advisable without allowing them some time in which to make that decision." Id. Kia P. is admittedly not on all fours with this matter, particularly because it involves the detainment of a newborn child. But it is certainly closer than the general principles of law cited by Plaintiff. In the absence of Supreme Court or Second Circuit precedent indicating otherwise, the CPEP Defendants did not violate a clearly established right.
Plaintiff also argues that the CPEP Defendants' failure to immediately release Plaintiff upon a determination that he was not a danger to himself or others violated New York Mental Hygiene Law § 9.40(d), and therefore was objectively unreasonable in violation of the Constitution. (Pl.'s State Opp'n at 3-5.) Even if the CPEP Defendants and CPEP Intern Smith violated New York state law, it does not mean that they violated the federal constitution. To the contrary, the Second Circuit's "precedents have firmly established that the mere violation of a state law does not automatically give rise to a violation of federal constitutional rights." Zahra v. Town of Southold , 48 F.3d 674, 682 (2d Cir. 1995).
Moreover, at the time that the CPEP Defendants purportedly determined to detain Plaintiff to allow his weapons to be seized they were aware of the following information: (1) County police officers had made a determination to transport Plaintiff to CPEP; (2) County police officers had reported that Plaintiff had acted suicidal; (3) County police officers reported that Plaintiff had acted belligerently and threateningly to his 17-year old daughter; (4) Plaintiff had been intoxicated; (5) Plaintiff's daughter reported to CPS that she was unhappy and frightened that Plaintiff was going to be released from CPEP; (6) Plaintiff's daughter referenced the fact that Plaintiff kept firearms in his home; (7) Plaintiff's daughter had called CPS four times; (8) CPS had advised Plaintiff's daughter to leave home and stay with a friend overnight; and (9) Plaintiff's daughter had previously been transported to CPEP on a few occasions. (State Defs.' 56.1 ¶¶ 2-5, 7, 14, 15, 16, 30; Smith's 56.1 ¶¶ 68-69, 75-78, 85, 87, 89-93.) Under these circumstances, state hospital employees could reasonably believe that they were not violating the Fourth Amendment by detaining Plaintiff for an additional three hours to allow County police officers to seize his weapons.
For all of these reasons, the Court finds that the CPEP Defendants are entitled to qualified immunity.
B. Qualified Immunity Under § 1983 for CPEP Intern Smith
While it is undisputed that the CPEP Defendants are state actors, and therefore can benefit from qualified immunity, the parties dispute whether CPEP Intern Smith is a state or private actor, and whether she qualifies for immunity. (See Smith Mem. at 12-13, 21-24; Pl.'s Mem. Opp'n Def. Smith's Mot. Summ. J. ("Pl.'s Smith Opp'n") at 18-21.) To the extent that CPEP Intern Smith is a state actor, she is entitled to qualified immunity for the same reasons as the CPEP Defendants. Even if CPEP Intern Smith is a private actor, however, she nonetheless is entitled to qualified immunity. Courts have extended qualified immunity to private actors where their conduct was: "isolated, taken at the specific direction of the government, or done without profit or other marketplace incentive." Estiverne v. Esernio-Jenssen , 833 F. Supp. 2d 356, 377 (E.D.N.Y. 2011). For example, in Pani v. Empire Blue Cross Blue Shield , the Second Circuit found that private administrators of federal Medicare claims could benefit from qualified immunity because their efforts to detect Medicare fraud were required by law and they had no personal interest in the pursuit of such fraud. 152 F.3d 67, 73 (2d Cir. 1998). These considerations apply with equal force here.
Plaintiff argues that CPEP Intern Smith is a state actor, and therefore can be held liable under § 1983, but is not entitled to qualified immunity for the same reasons as the CPEP Defendants. (Pl.'s Smith Opp'n at 18-21.) CPEP Intern Smith argues that she is not a state actor, but at the same time should benefit from qualified immunity. (Smith Mem. at 12-13, 21-24.)
CPEP Intern Smith interned at CPEP for approximately 8 months. (Def. Smith's Reply Pl.'s 56.1 Counterstatement ("Def. Smith's Reply 56.1") ¶ 173, ECF No. 117.) It is undisputed that, on April 7, 2014, when Plaintiff was brought to CPEP, CPEP Intern Smith did not have the ability to diagnose Plaintiff. (Def. Smith's 56.1 ¶ 121.) It is similarly undisputed that Smith did not have the authority to discharge Plaintiff or any other patient. (Id. ¶¶ 117-18.) Indeed, CPEP Intern Smith had "no role with regards to the medical aspect or medical decisions related to patients." (Id. ¶ 136.) Instead, the final decision to discharge a patient would rest with Dr. Yacoub, a state official. (Id. ¶¶ 123-24.) And if Dr. Yacoub decided to discharge a patient, his staff, including CPEP Intern Smith, were supposed to follow such an order. (Id. ¶ 125.) Therefore, with respect to Plaintiff and any other patient, CPEP Intern Smith only acted at the specific direction of state officials, like Dr. Yacoub and others. She had little to no discretion in carrying out her instructions. Moreover, as a medical intern, CPEP Intern Smith's conduct was done without monetary or market incentives. That is, CPEP Intern Smith would not be compensated based on how well or how poorly she treated a patient like Plaintiff. Therefore, based on these factors, the Court finds that CPEP Intern Smith is entitled to qualified immunity. Indeed, it would be incredibly unjust under the circumstances to find that a student intern could not qualify for qualified immunity while her supervisors—at whose direction she worked—could. Because CPEP Intern Smith qualifies for immunity either as a state or private actor, for the reasons stated above, she is also entitled to qualified immunity for any violation of Plaintiff's rights.
C. Qualified Immunity under New York Law
New York state common law provides parallel immunity to "public employees ‘from liability for discretionary actions taken during the performance of governmental functions’ and ‘is intended to ensure that public servants are free to exercise their decision-making authority without interference from the courts.’ " United States v. City of New York , 717 F.3d 72, 94 (2d Cir. 2013) (quoting Valdez v. City of New York , 18 N.Y.3d 69, 75-76, 936 N.Y.S.2d 587, 960 N.E.2d 356 (2011) ). Courts have observed that New York common-law immunity "affords public officials considerably greater protection from individual capacity suits than the federal doctrine of qualified immunity." Hirschfeld v. Spanakos , 909 F. Supp. 174, 180 (S.D.N.Y. 1995). Determining whether immunity applies under New York common law, "requires analysis of the functions and duties of the actor's particular position and whether they inherently entail the exercise of some discretion and judgment." Mon v. City of New York , 78 N.Y.2d 309, 574 N.Y.S.2d 529, 579 N.E.2d 689, 691 (1991). If the functions and duties at issue are essentially "clerical or routine, no immunity will attach." Id. , 574 N.Y.S.2d 529, 579 N.E.2d at 692. On the other hand, when "official action involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial, a municipal defendant is generally not answerable in damages for the injurious consequences of that action." Id. (quoting Haddock v. City of New York , 75 N.Y.2d 478, 554 N.Y.S.2d 439, 553 N.E.2d 987, 991 (N.Y. 1990) ).
Courts have previously found that state and city doctors can qualify for this type of immunity. E.g. , Newton v. City of New York , 738 F. Supp. 2d 397, 411-12 (S.D.N.Y. 2010) (finding that laboratory scientist was entitled to immunity); Babi-Ali v. City of New York , 979 F. Supp. 268, 278-79 (S.D.N.Y. 1997) (finding that a doctor conducting a medical examination was absolutely immune from claims of malicious prosecution); Newkirk v. Allen , 552 F. Supp. 8, 11 (S.D.N.Y. 1982) (finding that Veterans Administration hospital employees were absolutely immune from state law claims).
The CPEP Defendants' conduct here was indisputably discretionary in nature. The CPEP Defendants each met with and evaluated Plaintiff, relying on their respective expertise as a nurse practitioner, social worker, or attending physician. Following these evaluations, these subject-matter experts exercised their judgment and discretion in determining that retaining Plaintiff for an additional few hours to permit County police officers to seize his firearms would be reasonable under the circumstances. In other words, the CPEP Defendants "made a decision based upon [their] interpretation of the facts as presented." Babi-Ali , 979 F. Supp. at 278. In doing so, they "exercised [their] medical discretion." Id.
CPEP Intern Smith did not have the authority to diagnose or discharge Plaintiff. (State Def.'s 56.1 ¶¶ 117-18, 121, 136.) Therefore, she necessarily exercised less discretion that the CPEP Defendants. At the same time, however, the Court cannot say that a social work intern assisting a licensed social worker in treating an individual is engaged in purely ministerial tasks. CPEP Intern Smith conducted an interview of Plaintiff, took notes during the interview, and entered notes from that interview into Plaintiff's treatment plan. (Def. Smith's 56.1 ¶¶ 47-53; State Defs.' 56.1 ¶ 27-28.) Conducting an interview for the purposes of medical treatment and determining the salient information from that interview to include in a patient's treatment plan undoubtedly requires the exercise of expertise and discretion. And, as noted above, it would be incredibly inequitable to grant CPEP Intern Smith's supervisors qualified immunity while not granting her the same immunity for substantially similar tasks.
In determining whether to apply common law immunity, the Second Circuit has posited the following question: "[I]s the act complained of the result of a judgment or decision which it is necessary that the Government official be free to make without fear or threat of vexatious or fictitious suits and alleged personal liability?" Ove Gustavsson Contracting Co. v. Floete , 299 F.2d 655, 659 (2d Cir. 1962). Here, the answer to that question is an unqualified yes. For these reasons, the Court grants the CPEP Defendants and CPEP Intern Smith qualified immunity.
CONCLUSION
For the foregoing reasons, the County Defendants' motion for summary judgment is denied in part and granted in part. Plaintiff's Monell claims arising from the seizure of Plaintiff's weapons, Second Amendment claims, and all claims against Thomas Carpenter and William Scrima are dismissed. Plaintiff's motion for summary judgment is denied in part and granted in part. The Court finds that the County Defendants deprived Plaintiff of post-deprivation due process under the Fourteenth Amendment by failing to hold a hearing with respect to his longarms. All of Plaintiff's remaining Fourteenth Amendment due process claims are dismissed. The CPEP Defendants' and CPEP Intern Smith's motions for summary judgment are granted in full and all claims against them are dismissed.
SO ORDERED: