On August 18, the Second Circuit decided Kellogg v. Nichols, a suit under 42 U.S.C. § 1983 against a New York state judge who denied applications by two individuals for firearm licenses. The court affirmed the district court's dismissal of their individual-capacity claims as barred by absolute judicial immunity and then dismissed their official-capacity claims for injunctive and declaratory relief as lacking an Article III case-or-controversy.
As Kellogg explains, the state judge denied applicant Kellogg's permit based on his "criminal arrest history and inadequate explanations for failing to disclose that history." The reasons for the arrests are not stated. He also "ruled that [applicant] Harmon's criminal history, including a youthful-offender adjudication for first-degree robbery, likewise demonstrated that he lacked the requisite maturity or responsibility to have a license." The applicants then filed suit in the U.S. district court alleging violation of their Second and Fourteenth Amendment rights.
Unlike some counties, the sitting judge is the licensing officer in Columbia County where the plaintiffs resided. As plaintiffs pointed out, under New York state law, acting on a gun permit application is an administrative function. Kellogg mentions none of the state precedents on point, but earlier this year, in In re Guthman, the Appellate Division, 4th Dept., held: "The appropriate procedure for the review of a determination of a County Court Judge, acting in [their] administrative capacity as the firearms licensing officer for the County of [Onondaga] under Penal Law § 400.00 (11) and § 265.00 (10), is not a direct appeal, but the commencement of a CPLR article 78 proceeding in this Court." (Bracketed items in original.) For that proposition, the court quoted In re Shuler (A.D., 2d Dept. 2009), which applied that rule to the County Court Judge of Westchester County. Other New York precedents consistently characterize the proceeding as administrative.
While not mentioned in the Kellogg decision, for some unexplained reason the plaintiffs did not file an article 78 proceeding in the Appellate Division to appeal the denial of the firearm license. If the ruling there was negative, they could have then filed their constitutional claims in the federal district court.
But Kellogg would recognize no construction of New York state law by New York state courts. Under prior Second Circuit precedent, New York state court judges act in a judicial capacity when denying gun permits. Libertarian Party of Erie Cnty. v. Cuomo (2d Cir. 2020), abrogated on other grounds by the Supreme Court's decision in Bruen. That decision likewise failed to cite any of the New York state court decisions that construe their own law on that point. Whatever happened to "recognition of the role of state courts as the final expositors of state law," as the U.S. Supreme Court has often reminded us? E.g., England v. La. State Bd. of Medical Examiners (1964).
According to Kellogg, no Article III case or controversy exists between a judge who decides gun permit applications and a litigant who attacks the constitutionality of the statute. That is why a litigant "seeking to enjoin the enforcement of a statute on constitutional grounds ordinarily sues the enforcement official authorized to bring suit under the statute," not "the court or judges who are supposed to adjudicate the merits of the suit that the enforcement official may bring."
The court added that the judge acts in a judicial role, not an administrative role, in part because: "New York State, acting through various law enforcement officers, and not the judge who adjudicates a firearms license, is authorized to enforce the licensing regime by prosecuting the unlicensed possession of a concealed firearm." But the same could be said for the appeals board that hears appeals of license denials from non-judicial licensing officers such as sheriffs. (See 9 NYCRR 6059.1). Consisting of officials from state law enforcement agencies whose proceedings are purely administrative, the appeals board also would have no role in prosecuting offenders, yet it could be sued in a § 1983 action.
However, Kellogg did not "decide whether Article III would bar a similar action brought against a New York state police commissioner or county sheriff, say, who denies a firearms license application, … where those officers possess both the authority to adjudicate such applications and the power to enforce violations of New York's firearms licensing laws." It certainly would not bar such action, as we know from the lead respondent in the caption of a certain familiar Supreme Court decision: "Kevin P. Bruen, in his official capacity as Superintendent of New York State Police." As that decision notes, "Respondents are the superintendent of the New York State Police, who oversees the enforcement of the State's licensing laws, and a New York Supreme Court justice, who oversees the processing of licensing applications in Rensselaer County."
When what became Bruen was in the Second Circuit, styled New York State Rifle & Pistol Ass'n v. Beach, no absolute immunity or Article III impediment was held to preclude resolution on the merits. That decision summarily affirmed Kachalsky v. County of Westchester (2d Cir. 2012),
which similarly raised no such defenses, instead holding on the merits that the New York "proper cause" requirement for licenses did not violate the Second Amendment. While not mentioned in the appellate decision, the district court in the case (then styled Kachalsky v. Cacace (S.D. N.Y. 2011)) noted: "The State Defendants are judges on various courts within the New York State Unified Court System and, at the times of Individual Plaintiffs' full-carry permit applications … served as handgun licensing officers under NYPL Section 265.00(10)." Again, no qualified-immunity or Article III issue there.
It is interesting that Kachalsky was authored by Judge Richard Wesley, who was also on the Kellogg panel. Another panel member was Senior Judge Reena Raggi, who I encountered as the district judge in Richmond Boro Gun Club v. City of New York (E.D. N.Y. 1995), which upheld the City's "assault weapon" ban (albeit we raised no Second Amendment issue). Author of Kellogg was Judge Raymond Lohier, who was on the panel that upheld the "assault weapon" bans of Connecticut and New York in New York State Rifle & Pistol Ass'n v. Cuomo (2d Cir. 2015).
It goes without saying that the Second Circuit is a tough place to litigate Second Amendment claims. One could at least hope for a consistent application of the law by federal and state courts when the same state law is at issue, and in particular for deference to state courts for construction of state law. The Second Circuit should reconsider whether New York judges assigned to engage in the administrative function of considering applications for gun permits are really engaging in a judicial function, which entails a neutral arbiter who decides cases argued by adversarial parties.
