The Volokh Conspiracy

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The Second Amendment and Vacated Ex Parte Domestic Protection Orders


From Henry v. County of Nassau, decided today by the Second Circuit, in an opinion by Judge Steven Menashi, joined by Judges John Walker and Susan Carney:

In 2014, the daughter of Plaintiff-Appellant Lambert Henry commenced an ex parte proceeding against Henry in Nassau County Family Court. {Henry's daughter alleged that she and Henry were having a discussion when Henry blocked her from leaving a room and "put [her] in a headlock and squeezed," causing her to "fear for [her] safety." Henry, for his part, characterizes the case as arising out of an argument about his daughter's grades in school.}

The Family Court issued a temporary order of protection against Henry that, under the policies of the Nassau County Police Department, triggered an immediate suspension of his pistol license. Members of the Nassau County Police Department subsequently arrived at Henry's residence to confiscate his pistol license. They also confiscated all firearms in Henry's possession.

Five months later, the temporary order of protection was dissolved and the Family Court matter was dismissed, but the County did not reinstate Henry's pistol license or return his firearms. The Nassau County Police Department then formally revoked Henry's pistol license and informed Henry that he is prohibited from possessing any firearms.

Henry appealed the revocation. Approximately a year and a half later, Henry was informed that his appeal was rejected based on a record of domestic incidents at his home, including allegations by his ex-wife that Henry had been violent with her; his having been the subject of other, since-dissolved orders of protection; and his failure to report to the Police Department the domestic incidents, the protective orders, and his son's diagnosis of depression and admission to a medical center, as the appeals officer understood to be required by Nassau County's Pistol License Section Handbook.

Henry denied all allegations of domestic violence and included with his appeal affidavits from his daughter and ex-wife in support of the reinstatement of his pistol license and ability to possess firearms. Henry will become eligible to apply for a new pistol license in 2023, seven years after his license was suspended, but the standard for granting a new license appears to be the same as the standard under which the County revoked his existing license. In any event, Henry remains barred from owning any firearms at least until that time….

Henry sued, and the District Court held his "claims did not lie at the core of the Second Amendment and therefore were subject to intermediate scrutiny because Henry did not 'actually alleg[e] in his complaint that Nassau County has implemented a policy banning all firearm ownership for all people.'" The Second Circuit disagreed:

As an initial matter, the district court's scrutiny analysis was flawed because "the Second Amendment confer[s] an individual right to keep and bear arms." Henry was therefore not required to allege "a policy banning all firearm ownership for all people" to state a claim at the core of the Second Amendment…. We would never hold that a plaintiff failed to state a claim at the "core" of the First Amendment because the plaintiff alleged only that the government prohibited him from speaking but did not ban "all" speech for "all" people. Because the Second Amendment—no less than the First—secures an "individual right" that "the Framers and ratifiers of the Fourteenth Amendment counted … among those fundamental rights necessary to our system of ordered liberty," the district court erred in holding that Henry failed to state a claim at the core of the Second Amendment merely because he does not allege that the County enacted a complete ban on firearm ownership for all people.

Moreover, contrary to the district court's assertion that "the restrictions [Henry] complains of … are not as severe a burden on the [Second Amendment] right as [Henry] makes them out to be," there is no doubt that Henry has alleged a substantial burden on his Second Amendment rights…. Here, Henry—who has not been convicted of any crime—alleges that the County has left him with no means of acquiring firearms for any purpose for a period of at least seven years….

Because Henry has alleged a substantial burden on his Second Amendment rights, whether strict or intermediate scrutiny applies to Henry's claims depends on whether he has stated a claim at the "core" of the Second Amendment. That determination turns on whether there is a reliable basis for concluding that Henry is not law-abiding and responsible. As we discuss below, the complaint plausibly alleges that the evidence on which the County based its decisions was not reliable. Therefore, we cannot determine at this stage whether strict or intermediate scrutiny applies. Even assuming that intermediate scrutiny applies to Henry's claims, however, we conclude that Henry has stated a claim for a violation of the Second Amendment.

"To survive intermediate scrutiny" under the Second Amendment, the government "must show 'reasonable inferences based on substantial evidence' " indicating "that the [state action is] substantially related to the governmental interest" in "public safety and crime prevention." The County's alleged confiscation of Henry's firearms and revocation of his license do not meet that standard….

The complaint alleges that the County immediately suspended Henry's pistol license and confiscated all of Henry's firearms based on the issuance of an ex parte order of protection and that Henry has since been barred from owning any firearms.

It may be that the issuance of an ex parte order justifies a temporary license suspension and firearm confiscation to allow the County to investigate whether the subject of the order poses a threat to the safety of others. But Henry alleges that the County's ban on his right to own firearms persisted even after the court that issued the order of protection allowed it to expire. In fact, the County continued to prohibit Henry from owning firearms for a year and a half after the order's dissolution without providing any justification for the prohibition besides the prior issuance of the ex parte order of protection.

Such actions do not withstand intermediate scrutiny because ex parte orders of protection issue without adversarial testing. The Family Court's order against Henry was based solely on his daughter's allegations. Under New York law, the order did not constitute "a finding of wrongdoing." And because the order was issued ex parte, Henry had no opportunity to contest his daughter's allegations in the Family Court proceeding or to demonstrate to the Family Court, before the order issued, that he was not dangerous. In light of these procedural limitations, the ex parte order of protection did not provide the "substantial evidence" that intermediate scrutiny requires to support the conclusion that barring Henry from owning firearms for an extended period is "substantially related to the achievement of governmental interests in public safety and crime prevention." …

The complaint also plausibly alleges that the County's eventual revocation of the pistol license and the appeals officer's decision to uphold that decision do not withstand intermediate scrutiny. According to the allegations of the complaint, the County revoked Henry's license without conducting a bona fide inquiry into whether "substantial evidence" supported a finding that Henry was too dangerous to possess firearms.

Henry plausibly alleges that the County relied on evidence—including the prior issuance of dissolved orders of protection against Henry, unsubstantiated allegations of abuse, and Henry's purported failure to report potential disqualifications to the police—that had limited probative value in establishing Henry's dangerousness. With respect to the dissolved orders of protection, such orders—even if numerous—do not necessarily provide substantial evidence that Henry poses an ongoing danger to his family. In revoking Henry's license, the County did not explain why it found Henry's evidence and arguments responding to its concerns to be unpersuasive, and, at this stage of the litigation, it is not even clear that the County considered Henry's evidence at all.

With respect to Henry's failure to report the alleged incidents of domestic violence, the issuance of orders of protection, or the fact that his son was diagnosed with and received treatment for depression, the complaint plausibly alleges that Henry again did not have an opportunity to respond to the allegations that he failed to meet reporting conditions of his pistol license. Moreover, these alleged reporting failures, standing alone, do not necessarily provide "substantial evidence" that barring Henry from owning any firearms is "substantially related to the achievement of [the County's] interests in public safety and crime prevention," such that the issue can be decided on a motion to dismiss.

The County's review, leading to its decision to revoke Henry's right to own firearms, was allegedly conducted without affording Henry the opportunity to submit evidence in support of his position. And even when he took his appeal, it is plausible that, as Henry alleges, the appeals officer did not conduct a genuine inquiry into whether Henry actually posed a danger to others.

According to the complaint, the appeals officer credited Henry's ex-wife's allegations and failed to consider whether the evidence—including the ex-wife's more recent affidavit in favor of his ability to own firearms—supported a finding of dangerousness. Because Henry plausibly alleges that the County's decision was not based on a reliable determination that he posed a danger to others, Henry has stated a claim for a violation of the Second Amendment even if his claims are subject only to intermediate scrutiny….

The court concluded, though, that Henry had not introduced enough evidence that he was discriminated against because he was black, and thus affirmed the dismissal of the discrimination claim:

"A plaintiff alleging racial … discrimination … must do more than recite conclusory assertions. In order to survive a motion to dismiss, the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent." While Henry has alleged that the County's firearm policies have a discriminatory purpose and effect, he has not pleaded any facts supporting an inference of discriminatory intent. Henry alleges only that "White communities" within Nassau County appear to have a higher rate of pistol ownership than "Hispanic" or "Black" communities. But Henry does not allege facts supporting the inference that these purported disparities are the result of discrimination….