Guns

The Second Amendment and Vacated Ex Parte Domestic Protection Orders

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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….

NEXT: "The Trump Lawsuits, the Biden Administration’s Misinformation Advisory and the Thorny First Amendment Problem of Jawboning"

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  1. I certainly suspect a discrimination claim would be a stretch here as it seems likely this sequence would have occurred regardless.

    1. He should have alleged sex-based discrimination instead.

  2. Did I read it right that a court held that a total ban on this man possessing firearms was not “a severe burden on his second amendment rights”?

    1. This is Greater New York; next question?

      BTW, I am shocked that a panel of the 2nd Circuit ruled unanimously in support of individual rights under 2A.

    2. It’s been well established for years that the judiciary does not act in good faith with respect to Second Amendment claims. This is not even the worst of it.

  3. The push to put more guns in the hands of serial wife-beaters is part of the reason conservatives have lost the culture war in America.

    I just hope the modern American mainstream’s backlash against gun nuttery does not diminish the right to possess a reasonable firearm for self-defense in the home.

    1. In any event, I can see no justification for violating an Inherent Right with no due process or conviction. Accusations and ex parte conversations do not equal due process as as far as I know there is no exception clause for the 2nd or any other Amendment in the Bill of Rights.

      Regardless what weapons I chose to own and for what purpose I chose to own them for is certainly no one’s business, particularly government.

      1. Oops. Meant to type “and as far as I know”. Fingers faster than brain.

    2. As always I dislike your extreme rhetoric, but I do think that the laws disarming domestic abusers may be the absolute fulcrum point of the Second Amendment debate.

      Not to put a fine point on it, but the NRA crowd includes a fair number of people who have abused their partners in the past. And DV is, of course, an underenforced crime- the usual situation in these vacated TRO cases is not that the husband/boyfriend was innocent, but that the victim, out of some combination of fear, love, and not wanting to break up their family, withdrew the allegation or did not cooperate in a prosecution.

      So there’s a whole bunch of people in the gun rights movement who either (1) know they have been violent towards women, and fear losing their guns as a result of it or (2) actually have been arrested or been subject to a TRO. Indeed, there are even going to be some folks who own guns in part because of the implicit or explicit threat they carry towards the woman in their life.

      The result of all of this is this has been a litigation and lobbying priority of the gun rights movement. Its members want to make it more difficult to take guns away from domestic abusers. And specifically, they would love a legal rule that would allow them to threaten their wives, get them to drop a prosecution or vacate a TRO, and be able to get their guns back.

      I don’t know how this all shakes out under intermediate scrutiny or whatever test SCOTUS might announce. But I do know that we should require a VERY strong factual showing for anyone credibly accused of domestic violence to get their guns back. Maybe such people should be required to go to some classes, take counseling, be limited to one gun in their house or in their personal possession, be subject to storage and trigger lock requirements, have their gun privileges subject to revocation if there’s another 911 call, etc.

      I am very fearful for any woman who lives with a man who is desperate to get his guns back after beating her.

      1. What would you call a “fair amount of people”? More than the national average? More than non-NRA members?

        Incidentally, when a TRO is granted against a LEO [or an actual indictment issued against an FBI agent for DV], do they lose their carry/ownership privileges?

        1. A fair amount of people. We don’t know how many. But it’s enough to make this issue a priority for the gun rights movement.

          Police officers credibly accused of domestic violence should be fired. The fact that they are not is a national scandal. It also has nothing to do with whether we should do more to protect women whose abusive husbands or boyfriends are desperate to get their guns back.

          1. “Police officers credibly accused of domestic violence should be fired.”

            Sounds good, as long as there is sufficient process to ensure that the accusation in credible. It doesn’t sound like there was such a process here.

          2. A “credible accusation” is a very low bar.

            Should we apply that to all government jobs?

            Should a female college student who is “credibly accused” of failing to get consent before performing a sex act on a male be forever barred from teaching in public K-12 schools — even if she was never actually convicted of a sex crime?

            After all, she could have taken advantage of a guy who was drunk enough not to be able to give consent. Would just one person saying that “Yep, Joe was really drunk before Jane took him upstairs” be enough? What if two people said that?

            (Which always brings to mind the question of… If two very drunk people have sex and neither could give informed consent, should both be charged and convicted? Does it matter if they are two males, two females, or one male and one female? Does it matter if either party doesn’t want to press charges if there is compelling video and/or third party evidence of their actual non-consensual sexual interactions?)

          3. So “I don’t know how many” justifies violating an enumerated right.

          4. “Police officers credibly accused of domestic violence should be fired”

            Well, I guess this tells us everything we need to know about Dilan.

            If you are “credibly accused” of a crime he doesn’t like (note that murder, rape, child molestation, etc are ok), not convicted, just “credibly accused”, you should have your life destroyed.

            No due process for you, when Dilan is upset

          5. “A fair amount” are abusive? Really? So with 5.5 million dues paying NRA members you want to give us your estimate on a percentage basis, or work with absolute numbers?

            Bigger than a breadbox? More than the average big money Democrat donor? More than Joe Biden’s immedfiate family members?

            Freakin’ Dumnbass

            1. I am relying on guys like you and arguments like these to ensure that conservative preferences continue to have no future in modern America. Thank you for your service.

              1. Ahh, you declared your pathetic self the “winner”.

                That must explain why Loopy Lefties like you, have been totally impotent (in so many ways) on passing any new Federal legislation for gun control for almost 30 years. Now you think Sleepy Joe and the “Giggler” are going to rescue you in 2 years?

                Keep up the good work sparky. Record high concealed carry permits, record high gun sales to first time owners. Yeah, you have us on the ropes Sparky.

                1. No. I believe gun nuts will be dragged down with the rest of the right-wing electoral coalition. Gun nuts tied their political fate to the losing side of our culture war. The consequences will be relatively predictable. Most Americans are not bigoted, backward, backwater clingers; most gun absolutists are. The demographic trends are easy to perceive. Even a dullard should be able to connect those dots.

              2. Conservatives keep America afloat. You people only use your power that we were stupid enough to give you to vote yourselves our money. What happens when you run out?

          6. “We don’t know how many,” but somehow we know that it constitutes “a fair amount.” And because we somehow know that some such amount of men make up part the membership of the NRA, we know, with absolute certainty, that the chief goal of that organization is to allow men with guns to beat up their women while keeping their guns (which guns, apparently, they’ve never actually use on their women since no one would dispute that the government can take away the guns of those who use their guns to commit crimes). Who could argue with such impeccable logic?

        2. I can’t believe you are taking the bait on this.

          There is zero evidence for the “fair amount” claim.

          Know how many Floridians had their CCW revoked for committing crimes? Know how many of Bloomberg illegal mayors against guns have been convicted of, or pleaded guilty to, assorted crimes that include embezzlement, perjury, bribery, extortion, fraud, money laundering, attempted child molestation and child pornography, DUI, assaulting a police officer, accepting bribes, wire fraud, money laundering and furnishing a minor with alcohol?

          So many of Bloomberg’s supporters went to jail, he had to hire a white liberal corporate elitist and change the name of the .org.

      2. I don’t hit women. Never have, never will. Never been arrested for anything in my life. Over the last almost 40 years of driving I’ve had maybe 4 or 5 traffic tickets. So there is no personal stake in this for me. Maybe your projection of DV onto gun owners says more about you than it does gun owners.

        For me it is just a matter of fairness. The law banning firearms ownership for anyone convicted of or pled guilty to misdemeanor DV in the future OR in the past is grossly unfair. If it wasn’t about guns the left would be screaming about it. You have people who may have pled guilty to a misdemeanor and sentenced to a few days of community service who retroactively can no longer own guns. (This doesn’t apply to felony DV because a felon can’t own guns with only a few exceptions.) So if someone made the strategic decision to plead guilty to a misdemeanor and get sent home instead of pleading not guilty and kept locked up for trial their rights were taken away after the fact. This is wrong and unfair. Future people convicted of DV losing their RKBA don’t bother or concern me. The law is now known and someone can make an informed decision based upon current law.

        1. I can even accept the convictions, if it’s not retroactive.

          What I cannot accept is banning people from owning guns based on mere accusation. Accusing your husband of domestic violence is a routine tactic in getting child custody in nasty divorces. It’s a no-brainer tactic, as women are almost never prosecuted for false domestic violence claims, no matter how clearly they are fabricated. However, men can lose their jobs, livelihoods, and all custody based on the mere accusation.

          1. How do you feel about people being jailed on mere accusation?

            1. You mean like if they’re accused of having been at the Capitol on January 6?

          2. I’ve long said that violence against women should be punished harshly. But any woman who makes a false claim of assault should get the death penalty.

      3. Hey, as long as we’re speculating, I’m sure there’s lots of people in the gun control movement that have abused their partners in the past as well.

        I suppose they don’t want their victims to be armed.

      4. lol, there is no evidence for this outlandish claim.

        There is however a lot of evidence that Bloombergs group of illegal mayors against guns get convicted of crimes more often than the typical concealed carry holder.

      5. And DV is, of course, an underenforced crime- the usual situation in these vacated TRO cases is not that the husband/boyfriend was innocent, but that the victim, out of some combination of fear, love, and not wanting to break up their family, withdrew the allegation or did not cooperate in a prosecution.

        [Citation needed]

        The result of all of this is this has been a litigation and lobbying priority of the gun rights movement. Its members want to make it more difficult to take guns away from domestic abusers. And specifically, they would love a legal rule that would allow them to threaten their wives, get them to drop a prosecution or vacate a TRO, and be able to get their guns back.

        Do you know what we call a person accused of domestic abuse whose prosecution was dropped? Innocent. The “legal rule” you’re looking for is called “due process.”

        1. They may be innocent in the sense of not going to jail, but that doesn’t mean everyone has to pretend in every situation they are non-violent.

          1. Of course not. But it kind of does mean that the government has to do so.

      6. “Not to put a fine point on it, but the NRA crowd includes a fair number of people who have abused their partners in the past.”

        So does the police department.

        1. So does any group of several million people.

          1. I’ve seen reports that rates of domestic violence among police are significantly higher than among the general population.

      7. Sorry. Under very basic, standard Due Process principles, the state has the burden of proof to show that circumstances meriting removing an accepted constitutional right exist, not the other way around.

        Whether it was corrct or not to have applied this framework to a 2nd Amendment individual right, once the Supreme Court made the decision to apply it, I think lower courts are duty bound to treat it like other Due Process Rights including notice, a hearing before a neutral decider, and a meaningful opportunity for the accused to prepare a defense, present evidence, and challenge the state’s evidence.

        You can’t simply take away people’s due process rights because you personally think women are always telling the truth when they accuse men and always lying if they retract. We wouldn’t accept a judicial system that always believes white people whenever they accuse black people. And this nation’s horrifying history of lynching all too clearly evidences that innocent men who are merely suspected of trouble-making or considered social outcasts, or merely try to exercise their putative rights, can sometimes be falsely accused of misconduct, including sexual misconduct, By women.

    3. “diminish the right to possess a reasonable firearm for self-defense in the home.”

      It does in places, and then the rest of America keeps going without violating others civil rights. Sadly those on the left have taken up the totalitarian banner with Artie as one of their cheerleaders.

      1. Open wider, buckleup. And hope your betters are magnanimous..

    4. Artie… can you say tedious? I knew you could.

    5. Kirkland, what you fail to understand is that the alternative becomes “kill the dumb cunt” and is that what you *really* want?!?

      Because it already has started happening….

      1. I hope so. There’s nothing that would make me happier than real patriotic conservative men taking the law into their own hands, not just against lying women, but leftist judges, legislators, lawyers, and anyone else.

    6. Fuck off, you disgusting piece of shit.

      1. Does Prof. Volokh still claim to be enforcing civility standards when he censors non-conservative comments at this blog?

    7. The gun owner in this case was never convicted of anything. If you were a legitimate legal scholar, you would know there is already a FEDERAL statute that bans anyone convicted of domestic violence, even misdemeanor level, from owning firearms and ammunition.

      Also, in a free society, you do not get to decide what is “reasonable” for other folks to own, especially when they are exercising a fundamental constitutional right.

      And if you don’t like it, you can suck my Glock.

      1. Which Glock? I really like the single stack models.

  4. Just another trick for the jews to take guns away from the goy, any reason, is good enough….goy can’t have guns as marxism won’t work when the peasants have more than pitchforks. How would the ruling elite get everyone into the box car and off to the gulag if they were all packing heat. a true jewish dilemma.

    1. project much?

    2. I still maintain that Pavel is false flag…

      And not really good false flag….

  5. A discrimination claim would be a stretch here since this is greater New York, Nassau county hates all gun owners that aren’t celebrities or former NYPD.

    I am very surprised to see this decision come from the 2nd circuit. Carney is an Obama appointee.

    Maybe the threat of Supreme Court review is finally sinking in.

  6. “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….”

    The district court judge, Samuel James Otero, pulled a similar stunt in my California Open Carry lawsuit — Charles Nichols v. Gavin Newsom, et al.

    Judge Otero said that I am not allowed to challenge California’s Open Carry bans both facially and as-applied. He held that I can only challenge the bans facially. The old cases he cited held the exact opposite. Those old cases held that one cannot bring a facial challenge, only an as-applied challenge.

    Prior to his final judgment in my lawsuit, I cited Jackson v. San Francisco in my brief in opposition to the state’s motion for a judgment on the pleadings. Jackson v. San Francisco is a published opinion that held one can bring a Second Amendment challenge that is both facial and as-applied.

    Ironically, I never stated a “Salerno” facial challenge in my Complaint. My facial challenge excluded persons prohibited from possessing firearms, firearms I am not allowed to possess under both state and Federal law, and I excluded “sensitive places.”

    Notwithstanding that, under California law, only people who fall within the scope of the Second Amendment, and who are openly carrying firearms in places where the possession of firearms is not prohibited can be punished for violating California’s Open Carry bans.

    The reasons are California Penal Code section 654, and under California law limited laws are controlling over laws of general prohibition. Not to mention lesser included offenses.

    One of the issues I raised on appeal is the error of the district court that held I am prohibited from challenging California’s Open Carry bans as-applied to me.

    The State of California never did explain in its Answering brief on appeal how California’s Open Carry bans are constitutional as-applied to me.

    I am told that appellees are just as subject to “waiver” as are appellants.

    We shall see.

    My notice of appeal was filed on May 27, 2014. My appeal was argued before a three-judge panel on February 15, 2018.

    My eleventh year of litigation begins on November 30th.

  7. “informed Henry that he is prohibited from possessing any firearms”

    Is this a consequence of revoking a license or a separate order? In Massachusetts it used to be the case that you could have a gun at home with little regulation but you needed a difficult permit to go armed outdoors.

    1. In New York, you need a permit to possess any handgun, even at home. Outside of the 5 boroughs, you can keep a long gun at home with no permit. In NYC, you need a permit for either.

  8. Surprised to see that Carney, a woman appointed by Obongo, didn’t dissent.

  9. In certain places a raised voice by a man is considered “domestic violence”, while a woman hitting a man with a piece of firewood is not. The Domestic Violence goalposts are always moving. Have you noticed that every single instance here has a man listed as the aggressor? In the early 90’s I worked as an armed guard for a facility that hid battered spouses and sometimes their children who had a proven threat against them. All most two thirds of them were MEN that we were protecting. One was recovering from stab wounds inflicted on him by his wife. The only reason that there was a threat against him was that the DA didn’t want to get involved. I ended up having her face down on the ground at the point of a shotgun. When she was searched she had a .357 pistol. I’m not soft on domestic violence I’m the eldest with three Sisters, a Niece and a couple of Great Nieces. If I find out that they are being abused, the abuser better surrender to the cops before I find them.

    By the way, with our modern society, what happens when two married women face off against each other?

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