THE CITY OF NEW YORK LAW DEPARTMENT ZACHARY W. CARTER Corporation Counsel RICHARD DEARING Assistant Corporation Counsel (212) 356-2500 rdearing@law.nyc.gov 100 CHURCH STREET NEW YORK, NY 10007 Honorable Scott S. Harris Office of the Clerk Supreme Court of the United States 1 First Street N.E. Washington, DC 20542-0001 Re: July 3, 2019 N.Y. State Rifle & Pistol Ass’n, et al. v. City of N.Y., et al. No. 18-280 Dear Mr. Harris: Petitioners in this case have sued respondents, the City of New York and the New York Police Department, License Division. In their complaint and in subsequent filings (including in this Court), petitioners have argued that 38 RCNY § 5-23 violates several constitutional provisions to the extent it prohibits people who have “premises licenses” for handguns from transporting their guns from their homes in the City to second homes, or to firing ranges or shooting competitions beyond municipal borders. 1 Petitioners seek only declaratory and injunctive relief enabling them to undertake those activities. See J.A. 48 (complaint); Pet. App. 7 (relief sought in court of appeals); Pet. for Cert. i (question presented in this Court). The Second Circuit rejected petitioners’ claims, and several months ago, the Court granted certiorari to review the Second Circuit’s decision. I write to notify the Court of two recent developments that we submit render this litigation moot. First, on June 21, 2019, the City of New York finalized amendments to the Rules of the City of New York to allow holders of premises licenses to transport In this Court, petitioners do not separately break out their contention regarding shooting competitions, presumably because the competitions they have in mind are held at firing ranges. 1 their handguns to and from various locations previously forbidden or not expressly authorized. Among the new locations to which premises licensees may now transport their handguns are (a) “[a]nother residence” inside or outside New York City “where the licensee is authorized to possess such handgun”; and (b) “[a] lawful small arms range/shooting club or lawful shooting competition … within or outside New York City.” 38 RCNY § 5-23(a)(3). The final regulation, which is attached for the Court’s convenience, will take effect by operation of law on July 21, 2019. See N.Y.C. Charter § 1043(f)(1)(c). Second, on June 19 and 20, 2019, the New York State Assembly and Senate, respectively, passed Bill A7752, which is also attached. This new legislation, set to take effect immediately upon the Governor’s signature, amends the section of the New York Penal Law regulating handgun licenses. As explained in the sponsor’s memorandum, the amendments allow holders of premises licenses “to transport their pistol or revolver from one location where they may legally possess such weapon directly to another location where they may legally possess such weapon, including another dwelling or place of business where they have a license, an indoor or outdoor shooting range, or a shooting competition.” These new amendments will also operate notwithstanding any inconsistent state or local law—though, of course, they are consistent with the newly revised city regulation. 2 When an intervening change in law entitles plaintiffs to everything they seek, the Court has long recognized that the litigation is rendered moot. See, e.g., U.S. Dep’t of Treasury v. Galioto, 477 U.S. 556, 559-60 (1986) (holding claim moot in light of new legislation); Hall v. Beals, 396 U.S. 45, 48, 50 (1969) (per curiam) (same); United States v. Alaska S.S. Co., 253 U.S. 113, 116 (1920) (same). 3 It does not matter whether the defendant previously defended the now-defunct law. Nor does it matter whether this Court’s grant of review contributed to the government’s decision to take a fresh look at its legal regime. See, e.g., Fusari v. Steinberg, 419 There is no set timetable for the Governor to act. In an abundance of caution, respondents are sending this letter now. See, e.g., Tr. of Oral Arg. at 18-19, Decker v. Nw. Envtl. Defense Ctr., 568 U.S. 597 (2013) (No. 11-338). 2 For other examples, see Bowen v. Kizer, 485 U.S. 386 (1988) (per curiam) (new legislation enacted after case was briefed and argued mooted case); U.S. Dep’t of Justice v. Provenzano, 469 U.S. 14, 1516 (1984) (per curiam) (new law enacted after grant of certiorari rendered case moot because requests for injunctive relief must be “judged under the law presently in effect”); United Bldg. & Constr. Trades Council v. Mayor and Council of City of Camden, 465 U.S. 208, 213-14 (1984) (repeal, after grant of certiorari, of municipal residency requirement “moot[ed] appellant’s equal protection challenge based on that durational requirement”); Diffenderfer v. Cent. Baptist Church, 404 U.S. 412, 414 (1972) (per curiam) (intervening legislation rendered lawsuit seeking injunctive relief moot because availability of such relief turns on the “law as it now stands, not as it stood when the judgment below was entered”); see also Honig v. Doe, 484 U.S. 305, 341-42 (1988) (Scalia, J., dissenting) (referencing settled rule that a case is moot where, after a grant of certiorari, “the law has been changed so the basis of the dispute no longer exists”). 3 2 U.S. 379, 385 & n.9 (1979) (remanding case without reaching merits where “this Court’s notation of jurisdiction” may have contributed to state legislature’s decision to amend the law at issue). Nor, further still, does it matter whether the plaintiffs would like to keep litigating to obtain guidance from this Court regarding the meaning of one or more constitutional provisions. The operative principles are absolute: Article III jurisdiction must exist at all stages of appellate review, and “a dispute solely about the meaning of a law, abstracted from any concrete actual or threatened harm, falls outside the scope of the constitutional words ‘Cases’ and ‘Controversies.’” Alvarez v. Smith, 558 U.S. 87, 92-93 (2009); see also CampbellEwald Co. v. Gomez, 136 S. Ct. 663, 678, 683 (2016) (Roberts, C.J., dissenting) (“[T]he federal courts exist to resolve real disputes, not to rule on a plaintiff’s entitlement to relief” simply because it “won’t take ‘yes’ for an answer.”). 4 These precedents control here. There is no longer an Article III case or controversy because the new city regulation gives petitioners everything they have sought in this lawsuit. The new state law, upon signature by the Governor, will make the case doubly moot. We recognize that when intervening circumstances deprive petitioners of an ability to challenge an adverse ruling below, this Court’s customary practice is to “vacate the judgment below and remand with a direction to dismiss,” eliminating any precedential effect of the prior decision. U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 22-23 (1994) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950)). Accordingly, we respectfully submit the proper course is for this Court to vacate the decision below and send the case back to the lower courts with instructions to dismiss—or, at the very least, with instructions to apply Article III principles in light of the new laws in the first instance. If, however, this Court prefers to allow briefing (and potentially oral argument) to play out, respondents will file a brief on the designated due date maintaining in greater detail that the case is moot. Respondents do not intend to address whether the Constitution entitles petitioners (or any other residents of New York City with premises licenses) to transport their handguns from their homes in the City to second homes, or to firing ranges or shooting competitions beyond municipal borders, where they have a legal right to possess them. Respondents no longer have any stake in that legal question. Petitioners were also wrong in a previous letter to suggest that the “voluntary cessation” doctrine might apply to the City’s decision to change its law. Ltr. from Paul D. Clement, Esq., dated Apr. 19, 2019, at 3. This Court has never applied that doctrine where a governmental entity has changed its law to fully address plaintiffs’ alleged injuries and, as here, has expressed no intention to revert to its old law. At any rate, the new state law, when signed, will prevent the City from reinstating the restrictions petitioners challenged here. 4 3 Cc: Paul D. Clement, Esq. Kirkland Ellis LLP 655 Fifteenth Street N.W. Washington, DC 20005 RBSpectfulIy submitted, ?ow/.3 Richard Dearing Attachment 1: Notice of Adoption of Final Rule New York City Police Department Notice of Adoption NOTICE OF ADOPTION relating to transport of handguns by premises license holders pursuant to Chapters 5 and 16 of Title 38 of the Rules of the City of New York. NOTICE IS HEREBY GIVEN PURSUANT TO THE AUTHORITY VESTED IN the Commissioner of the New York City Police Department (“Police Department”) by Section 400.00 of the Penal Law, Sections 435 and 1043 of the New York City Charter, and Section 10-131 of the Administrative Code of the City of New York, and in accordance with the requirements of Section 1043 of the New York City Charter, that the Police Department hereby amends Sections 5-01, 5-22 and 5-23 of Chapter 5, and Section 16-02 of Chapter 16, of Title 38 of the Rules of the City of New York. This rule was first published on April 12, 2019 (the “Proposed Rule”), and a public hearing was held on May 17, 2019. Statement of Basis and Purpose of Final Rule As the firearms-licensing officer for the City of New York, the Police Commissioner has promulgated rules governing the possession, carry, and transport of handguns by licensees. Section 5-01 of Title 38 of the Rules of the City of New York defines the types of available handgun licenses in the City and generally describes the restrictions imposed by the different types of licenses. Section 5-01(a) defines a premises license as a restricted handgun license issued for a specific business or residence. Section 5-23 sets forth in greater detail the restrictions and conditions imposed by the different types of handgun licenses available in the City. Section 523(a) governs the possession and transport of handguns by holders of a premises license. Subdivision a provides that any handguns listed on a premises license may not be removed from the address specified on the license except as provided in Chapter 5 of Title 38 of the Rules of the City of New York. Section 5-23(a) authorizes a premises licensee to remove a handgun from the premises listed on the license to take it directly to and from one of the following destinations, provided that the handgun is transported unloaded, in a locked container, with the ammunition carried separately: • An authorized small arms range/shooting club, to maintain proficiency in the use of a handgun, where all such authorized ranges/clubs are located within New York City; or • An authorized area for hunting, provided that the licensee requested and received an appropriate amendment to the handgun license from the Police Department. Separately, section 5-22(a)(16) authorizes a licensee to transport the handgun to a gunsmith, with written authorization of the Police Department’s License Division, provided that the handgun is transported unloaded, in a locked container. Additionally, Chapter 16 of Title 38 of the Rules of the City of New York generally governs the transport or delivery of weapons into or within the City. Chapter 16 applies to circumstances described in that chapter not otherwise addressed by the Rules, including the transport of handguns by premises licensees. The requirement that premises licensees keep at their premises the handguns listed on their licenses, along with the above two exceptions to that requirement, sought to balance public safety against the interests of licensees in maintaining proficiency in the use of their handguns and in using their handguns for hunting. Two legal developments occasioned a reexamination of the balance struck by these rules. The first was the New York Court of Appeals’ decision in Osterweil v. Bartlett, 21 N.Y.3d 580 (2013), which held that the New York Penal Law permits the owner of a parttime residence in the state to apply for a handgun license in the jurisdiction of that residence, although the owner may be domiciled outside the state. Prior to the decision, the statute had been interpreted to require the applicant for a handgun permit to show that he or she was a domiciliary of the county (or city) where the application was filed. See, e.g., Matter of Mahoney v. Lewis, 199 A.D.2d 734 (3d Dep’t 1993). Following the Osterweil decision, a New York City resident who owns a second home elsewhere in the state apparently may apply to the licensing officer in that jurisdiction for a license to possess a handgun at the second home. The former rules, however, did not authorize a premises licensee to transport a handgun listed on a New York City premises license to another premises where the licensee resides and is authorized to possess a handgun. The second development was the New York State Rifle and Pistol Association, Inc. v. City of New York (NYSRPA) lawsuit, which challenges the former transport restrictions for premises licensees on Second Amendment and other constitutional grounds. One plaintiff in the case alleges that the former rules improperly prevented him from transporting a handgun listed on the premises license for his New York City residence to a second home upstate. Several plaintiffs allege that the former rules improperly prevented them from transporting their handguns to small arms ranges/shooting clubs outside of New York City for purposes of firearms training or competitions. See New York State Rifle & Pistol Association, Inc. v. City of New York, 883 F.3d 45 (2d Cir. 2018). The case is currently pending in the United States Supreme Court. The Osterweil decision suggests that an accommodation of licensees who own second homes is warranted as a matter of New York law, and the ongoing NYSRPA case raises questions about the constitutionality of the former transport rules. The Police Department accordingly reviewed the rules and determined that it was possible to modify them to reflect a carefully considered accommodation to the interests of -2- licensees while also ensuring the safe transport of handguns by licensees. In furtherance of this determination, the Police Department announced the Proposed Rule. The Proposed Rule would have allowed a premises licensee to transport the handgun(s) listed on her/his premises license directly to and from any of the following locations, in addition to the locations authorized under the former version of section 5-23(a), provided that the handgun was transported unloaded, in a locked container, with the ammunition carried separately: • Another residence or place of business where the licensee was authorized to have and possess a handgun; • A small arms range/shooting club authorized by law to operate as such, whether located within or outside New York City; or • A shooting competition at which the licensee was authorized to possess the handgun consistent with the law applicable at the place of the competition. In addition to clarifying and otherwise adopting the transport authorizations found in the Proposed Rule, the Final Rule authorizes a premises licensee to transport the handgun(s) listed on her/his license as follows: • When purchasing a handgun in accordance with 38 RCNY § 5-25, directly from the place of purchase to the address specified on the license, provided that the handgun is transported unloaded, in a locked container, with the ammunition carried separately; • Directly to or from the offices of the License Division, or the licensee’s local police precinct, as authorized by applicable rules, provided that the handgun is transported unloaded, in a locked container, without ammunition; or • Directly to or from a dealer in firearms with written authorization of the License Division, provided that the handgun is transported unloaded, in a locked container. This authorization supplements the existing authorization of transport to a gunsmith. The additional authorizations added in the Final Rule were included to codify existing practice in the interest of clarity. Toward that end, the Police Department further confirms that the authorization in 38 RCNY § 5-23(a)(3)(i) to transport a handgun to another residence or place of business of the licensee authorizes the licensee to transport a firearm when moving to a new premises in accordance with 38 RCNY § 5-27 or 5-29. Moreover, references in Chapter 5 of Title 38 of the Rules of the City of New York to an “authorized small arms range/shooting club,” as -3- applied to premises licenses, are intended to include any lawful small arms range, shooting club, or shooting competition, whether within or outside New York City. The Final Rule continues to recognize the importance of public safety. It requires that (1) a handgun possessed pursuant to a premises license be kept at the premises when not being transported directly to or from, or possessed at, an authorized location; (2) any such handgun be transported unloaded, in a locked container, with the ammunition carried separately (or, in certain cases, without ammunition); and (3) transport of any such handgun within New York City be continuous and uninterrupted. These requirements ensure that a person who has not obtained a carry license will continue to be unauthorized by a premises license to transport a firearm in operable condition in public. New material is underlined. [Deleted material is in brackets.] Section 1. Subdivision (a) of section 5-01 of Chapter 5 of Title 38 of the Rules of the City of New York is amended to read as follows: § 5-01 Types of Handgun Licenses. * * * (a) Premises License – Residence or Business. This is a restricted handgun license, issued for a specific business or residence location. The handgun shall be safeguarded at the specific address indicated on the license, except when the licensee transports or possesses such handgun consistent with these Rules. [This license permits the transporting of an unloaded handgun directly to and from an authorized small arms range/shooting club, secured unloaded in a locked container. Ammunition shall be carried separately.] § 2. Subdivision (a) of section 5-23 of Chapter 5 of Title 38 of the Rules of the City of New York is amended to read as follows: § 5-23 Types of Handgun Licenses. (a) Premises License – Residence or Business. This is a restricted handgun license, issued for the protection of a business or residence premises. (1) The handguns listed on this license may not be removed from the address specified on the license except as otherwise provided in this chapter. (2) The possession of the handgun [for protection] is restricted to the inside of the premises which address is specified on the license or to any other location -4- to which the licensee is authorized to transport such handgun in accordance with these Rules. (3) [To maintain proficiency in the use of the handgun, the] The licensee may transport the handgun(s) listed on her/his [handgun(s) directly to and from an authorized small arms range/shooting club] license, unloaded, in a locked container, the ammunition to be carried separately, directly to and from the following locations: (i) Another residence, or place of business, of the licensee where the licensee is authorized to possess such handgun. Such residence or place of business may be within or outside New York City. (ii) A lawful small arms range/shooting club or lawful shooting competition. Such range, club, or competition may be within or outside New York City. (4) A licensee may transport her/his handgun(s) directly to and from an authorized area designated by the New York State Fish and Wildlife Law and in compliance with all pertinent hunting regulations, unloaded, in a locked container, the ammunition to be carried separately, after the licensee has requested and received a "Police Department – City of New York Hunting Authorization" Amendment attached to her/his license. (5) A licensee may transport her/his handgun(s), unloaded, in a locked container, without ammunition, to or from the offices of the License Division, or the licensee’s local police precinct, as authorized by these Rules. (6) When purchasing a handgun in accordance with 38 RCNY § 5-25, a licensee may transport the handgun, unloaded, in a locked container, the ammunition to be carried separately, directly from the place of purchase to the address specified on the license. (7) Transport within New York City pursuant to paragraph (3), (4), (5), or (6) of this subdivision shall be continuous and uninterrupted. § 3. Paragraph (16) of subdivision (a) of section 5-22 of Chapter 5 of Title 38 of the Rules of the City of New York is amended to read as follows: (16) Except for licensees with unrestricted Carry Business licenses or Special Carry Business Licenses, a licensee wishing to transport her/his handgun to a gunsmith or a dealer in firearms shall request permission in writing from the Division Head, License Division. Authorization shall be provided in writing. The licensee shall carry this authorization with her/him when transporting the handgun to the gunsmith or the dealer in firearms, and shall transport the handgun directly -5- to and from the gunsmith or the dealer in firearms. The handgun shall be secured unloaded in a locked container during transport. § 4. Section 16-02 of Chapter 16 of Title 38 of the Rules of the City of New York is amended by adding a new subdivision (c) to read as follows: § 16-02 Applicability. This chapter shall apply to all persons who transport or deliver one or more weapons into or within any location in the City of New York, except that it shall not apply to: * * * (c) transport pursuant to 38 RCNY § 5-23(a)(3), (4), (5), or (6). -6- Attachment 2: NY State Assembly Bill A7752 and Sponsor?s Memorandum STATE OF NEW YORK ________________________________________________________________________ 7752 2019-2020 Regular Sessions IN ASSEMBLY May 20, 2019 ___________ Introduced by M. of A. DINOWITZ -- read once and referred to the Committee on Codes AN ACT to amend the penal law, in relation to the transport of pistols or revolvers by licensees The People of the State of New York, represented in Senate and Assembly, do enact as follows: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Section 1. Subdivision 6 of section 400.00 of the penal law, as amended by chapter 318 of the laws of 2002, is amended to read as follows: 6. License: validity. Any license issued pursuant to this section shall be valid notwithstanding the provisions of any local law or ordinance. No license shall be transferable to any other person or premises. A license to carry or possess a pistol or revolver, not otherwise limited as to place or time of possession, shall be effective throughout the state, except that the same shall not be valid within the city of New York unless a special permit granting validity is issued by the police commissioner of that city. Such license to carry or possess shall be valid within the city of New York in the absence of a permit issued by the police commissioner of that city, provided that (a) the firearms covered by such license have been purchased from a licensed dealer within the city of New York and are being transported out of said city forthwith and immediately from said dealer by the licensee in a locked container during a continuous and uninterrupted trip; or provided that (b) the firearms covered by such license are being transported by the licensee in a locked container and the trip through the city of New York is continuous and uninterrupted; or provided that (c) the firearms covered by such license are carried by armored car security guards transporting money or other valuables, in, to, or from motor vehicles commonly known as armored cars, during the course of their employment; or provided that (d) the licensee is a retired police officer as police officer is defined pursuant to subdivision thirty-four of section 1.20 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11086-02-9 A. 7752 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 2 of the criminal procedure law or a retired federal law enforcement officer, as defined in section 2.15 of the criminal procedure law, who has been issued a license by an authorized licensing officer as defined in subdivision ten of section 265.00 of this chapter; provided, further, however, that if such license was not issued in the city of New York it must be marked "Retired Police Officer" or "Retired Federal Law Enforcement Officer", as the case may be, and, in the case of a retired officer the license shall be deemed to permit only police or federal law enforcement regulations weapons; or provided that (e) the licensee is a peace officer described in subdivision four of section 2.10 of the criminal procedure law and the license, if issued by other than the city of New York, is marked "New York State Tax Department Peace Officer" and in such case the exemption shall apply only to the firearm issued to such licensee by the department of taxation and finance. A license as gunsmith or dealer in firearms shall not be valid outside the city or county, as the case may be, where issued. Notwithstanding any inconsistent provision of state or local law or rule or regulation, the premises limitation set forth in any license to have and possess a pistol or revolver in the licensee's dwelling or place of business pursuant to paragraph (a) or (b) of subdivision two of this section shall not prevent the transport of such pistol or revolver directly to or from (i) another dwelling or place of business of the licensee where the licensee is authorized to have and possess such pistol or revolver, (ii) an indoor or outdoor shooting range that is authorized by law to operate as such, (iii) a shooting competition at which the licensee may possess such pistol or revolver consistent with the provisions of subdivision a of section 265.20 of this chapter or consistent with the law applicable at the place of such competition, or (iv) any other location where the licensee is lawfully authorized to have and possess such pistol or revolver; provided however, that during such transport to or from a location specified in clauses (i) through (iv) of this paragraph, the pistol or revolver shall be unloaded and carried in a locked container, and the ammunition therefor shall be carried separately; provided further, however, that a license to have and possess a pistol or revolver in the licensee's dwelling or place of business pursuant to paragraph (a) or (b) of subdivision two of this section that is issued by a licensing officer other than the police commissioner of the city of New York shall not authorize transport of a pistol or revolver into the city of New York in the absence of written authorization to do so by the police commissioner of that city. The term "locked container" shall not include the glove compartment or console of a vehicle. § 2. Severability. If any clause, sentence, paragraph, section, or part of this act shall be adjudged by any court of competent jurisdiction to be invalid and after exhaustion of all further judicial review, the judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section, or part of this act directly involved in the controversy in which the judgment shall have been rendered. § 3. This act shall take effect immediately. A07752 Memo: NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f) BILL NUMBER: A7752 REVISED 6/18/2019 SPONSOR: Dinowitz TITLE OF BILL: An act to amend the penal law, in relation to the transport of pistols or revolvers by licensees PURPOSE: The purpose of this bill is to clarify when a pistol or revolver may be legally transported by a license holder, as well as set a statewide standard for the safe transportation of firearms. SUMMARY OF PROVISIONS: Section one of this bill allows for a license holder to transport their pistol or revolver from one location where they may legally possess such weapon directly to another location where they may legally possess such weapon, including another dwelling or place of business where they have a license, an indoor or outdoor shooting range, or a shooting competition. During transport for the holder of a license with a premises limitation, the pistol or revolver must be kept in a locked container and separate from the ammunition. Individuals who do not have a special permit issued by the Commissioner of the New York City Police would still be required to receive written authorization from the New York City Police Commissioner if they wish to transport a firearm to a destination in the City of New York. Section two of this bill is a severability clause. Section three is the effective date. JUSTIFICATION: Premise licenses for firearms in New York State allow a license holder to possess a firearm in a specific location, either their home or place of work, the address of which is specified on the license. Recognizing that premise license holders may have a legitimate reason to transport their firearms to another location, either another premise where they have a license to possess a firearm, a shooting range to practice their marksmanship, or a shooting competition, this bill seeks to clarify the ability of premise license holders to transport their firearms to and from locations where they may legally possess such firearm. In order to ensure that any transportation of firearms that occurs is done safely and responsibly, this bill requires that, during transport, such firearms must be kept in a locked container separate from the ammunition. As provided for under existing law, properly licenses individuals would not be prohibited from transporting a pistol or revolver through the City of New York in a continuous and uninterrupted manner and would not be required to obtain specific written authorization to do so. LEGISLATIVE HISTORY: New Bill. FISCAL IMPLICATIONS: None to the State. EFFECTIVE DATE: This act shall take effect immediately.