The Volokh Conspiracy
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Second Amendment Roundup: New York's "Good Moral Character" Requirement for Gun Permits
New York City requires a showing of "good moral character" to be issued a rifle and shotgun permit. In Srour v. New York City (2023), the Southern District of New York enjoined the enforcement of the "good moral character" requirement and a separate "good cause" requirement. I posted on the decision here.
After filing its appeal, the City adopted definitions of those previously-undefined terms, Srour reapplied, and the City granted the permit. On September 9, the Second Circuit held that he was granted the relief he sought, rendering the case moot and removing jurisdiction to hear the merits.
The City had based Srour's denial on his prior arrests (without convictions) and "derogatory" driving record. On the same day that Srour moved for summary judgment, the City adopted a definition of "good moral character" as "having the essential character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others." It also repealed the "good cause" requirement.
Following the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen (2022), the district court found the character requirement facially unconstitutional, as the City had "not identified any historical analogue for investing officials with the broad discretion to restrict someone's Second Amendment right based on determining the person to lack good moral character." Srour then reapplied for a permit. Meanwhile, the City appealed.
However, as the Second Circuit says, "nothing in life is certain." After the opening and response appeal briefs were submitted, Srour's rifle and shotgun application was granted, and he was issued his permit. That rendered his claims for prospective relief moot and deprived him of Article III standing, according to the Second Circuit. And the court declined to exercise pendent appellate jurisdiction over his claims for retrospective relief (damages), which were not yet final.
The voluntary cessation of a disputed action, the court explained, renders a case moot if (1) there is no "reasonable expectation" the action will recur, and (2) "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." The action will not recur here because the permit automatically renews in three years, it is subject to investigation only if the status of the permitee has changed, and at oral argument the City reaffirmed that Srour's character "is not reassessed" at the time of renewal.
Nor was there any evidence, the court continued, that Srour's application was granted "to seek vacatur of the permanent injunction." His application was reviewed under the new regulations that defined "good moral character."
So Srour's claims for declaratory and injunctive relief were moot. While the district court had not calculated his damages for the allegedly unconstitutional denial of his firearm permits, the Second Circuit declined to exercise pendent jurisdiction on that issue.
When a case becomes moot during an appeal, the court went on, the practice is to vacate the judgment below and remand with a direction to dismiss. "Vacatur is not warranted, though, when an appellant acts in bad faith to purposefully moot a case."
Here, the court found no indication that the City granted the permit intentionally to moot the case. Srour himself initiated the outcome by reapplying for the permit, which the City granted without any indication that it was granted to moot the case. "Thus, we find that the standard practice of vacating the district court's judgment is appropriate in this case."
Does that sound a bit naive, given that the City resisted until the bitter end? The district court issued its opinion and order finding the old rule unconstitutional and ordering a discovery plan to be filed on the issue of liability and damages on October 24, 2023. The City filed a notice of interlocutory appeal the next day. Srour reapplied for a permit and filed a separate complaint against the City three days later. It was not until after the appellate briefs were filed that the permit was granted on March 21, 2024.
It is particularly concerning that the City can voluntarily destroy jurisdiction in this way, given that plaintiffs lack adequate tools to fight back. In other circuits, for instance, the presence of a membership organization alongside Srour as a plaintiff could have prevented mooting the issue, but the Second Circuit—alone among courts of appeals—has held (for example, in American Psychiatric Association v. Anthem Health Plans, Inc.) that membership organizations cannot file suits on behalf of their members under Section 1983.
Srour reminds one of New York State Rifle & Pistol Association v. City of New York (2020), in which the Supreme Court heard a challenge to the City's ban on taking a handgun outside of one's home. While the case was pending, the City changed the rules to allow narrow exceptions. Finding the case moot, the Court vacated the judgment below and remanded the case for the district court to decide the scope of the new rule and to decide whether plaintiffs may still add a claim for damages regarding the old rule.
Justice Alito, joined by Justice Gorsuch and Justice Thomas, dissented. "By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced." The City energetically defended its law until certiorari was granted, which "apparently led to an epiphany of sorts, and the City quickly changed its ordinance." And yet that did not render the case moot, both because the issue of damages remained and because the new ordinance continued to violate the Second Amendment.
What happened to the case in the district court on remand? The last entry for docket No. 13-cv-2115-RWS shows the case reassigned to Judge Edgardo Ramos on June 9, 2020. There were no further entries, not even an order of dismissal. Perhaps it was settled.
It remains to be seen whether a case remains in the district court in Srour. The judgment has been vacated, but the district court may still have jurisdiction over the liability and damages claims. The City will likely argue that the case is entirely moot.
And then there's the issue of attorney's fees under 42 U.S.C. § 1988(b). In Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & Human Resources (2001), the Supreme Court held that one is not a "prevailing party" if one "failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result." A government defendant may see what's coming and change a rule to preclude an adverse judgment and thus not be liable for attorney's fees.
In McDonald v. Chicago (2010), after the Supreme Court invalidated the handgun bans of Chicago and Oak Park, those jurisdictions repealed their handgun bans before the case was remanded to the district court. The district court then denied attorney's fees purportedly under Buckhannon because no relief was left to be ordered. In NRA v. Chicago (2011), the Seventh Circuit reversed, commenting: "The district court was right to observe that plaintiffs did not receive a favorable judgment from it. But they did better: They won in the Supreme Court, which entered a judgment in their favor. When the Supreme Court rendered its decision, the controversy was live." (Disclosure: I was counsel for NRA in the case, which was joined with McDonald.)
While Srour is in a completely different situation, the above illustrates how some courts may misapply Buckhannon. If Srour is to be found to have "prevailing party" status, it will only be if the district court grants him damages or other relief.
As to "good moral character," the Second Circuit rejected a separate facial challenge to that criterion for a permit to carry a firearm, albeit allowing that "'good moral character' is a spongy concept susceptible to abuse, but such abuses, should they become manifest, can still be vindicated in court as they arise." But that was in Antonyuk v. Chiumento (2023), which the Supreme Court vacated and remanded for reconsideration in light of Bruen. The cert petition in Antonyuk did not raise that issue, so it's likely the Second Circuit will reaffirm use of the term.
The bottom line then is that the only Second Amendment challenge to the "good moral character" requirement in the Second Circuit that would likely be viable is an as-applied challenge. Given the history of New York abusive gun licensing practices, that scenario would come as no surprise. If it ever gets to the Supreme Court, given its discretionary nature, "good moral character" might be found to be facially invalid.
