Henry v. Nassau County ( 2021 )

20-1027-cv
Henry v. Nassau County
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2020
No. 20-1027-cv
LAMBERT HENRY,
Plaintiff-Appellant,
v.
COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT,
THOMAS KRUMPTER, ACTING COMMISSIONER PATRICK J. RYDER,
MARC TIMPANO, LIEUTENANT, ADAM FISCHER, SERGEANT, STEPHEN
TRIANO, DEPUTY SHERIFF, JEFFERY KUCHEK, DEPUTY SHERIFF, MARK
SIMON, DEPUTY SHERIFF, JEFFREY TOSCANO, DEPUTY SHERIFF,
Defendants-Appellees,
JOHN DOES 1-3, JANE DOES 1-3, SAID NAMES BEING FICTITIOUS, BUT
INTENDED TO DESIGNATE CERTAIN UNKNOWN EMPLOYEES OF THE
COUNTY OF NASSAU IN THE PISTOL LICENSE SECTION OF THE
NASSAU COUNTY POLICE DEPARTMENT,
Defendants.
On Appeal from the United States District Court
for the Eastern District of New York
ARGUED: OCTOBER 14, 2020
DECIDED: JULY 26, 2021
Before: WALKER, CARNEY, and MENASHI, Circuit Judges. *
In 2014, Nassau County confiscated the pistol license and all
firearms in the possession of Plaintiff-Appellant Lambert Henry
because an ex parte temporary order of protection had been issued
against him by the Nassau County Family Court. 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 County then formally
revoked Henry’s pistol license and informed Henry that he is
prohibited from possessing any firearms. Henry sued, alleging, inter
alia, that the County violated his rights under the Second
Amendment.
The district court (Hurley, J.) concluded that Henry failed to
state a claim lying at the core of the Second Amendment right because
he alleged only that the County had barred him from owning firearms
but did not allege that the County had enacted a ban on firearm
ownership for all people. Applying intermediate scrutiny, the district
court held that Henry failed to state a claim for a violation of the
Second Amendment. We disagree. The complaint plausibly alleges
that the County did not have substantial evidence that Henry is a
danger to the safety of others. Because these allegations, accepted as
true, would mean that the County’s actions were not substantially
related to its interests in public safety and crime prevention, the
complaint should not have been dismissed for failure to state a claim
under intermediate scrutiny. Accordingly, we reverse the district
* Judge Ralph K. Winter, originally a member of the panel, died on
December 8, 2020. Subsequently, Judge Susan L. Carney was added to the
panel. See 2d Cir. IOP E(b).
2
court’s dismissal of Henry’s claim for a violation of the Second
Amendment and remand for further proceedings consistent with this
opinion.
ROBERT J. LA REDOLLA (Steven M. Lester, on the brief), La
Redolla Lester & Associates, LLP, Garden City, New
York, for Plaintiff-Appellant.
ROBERT F. VAN DER WAAG (Jared A. Kasschau, on the
brief), Nassau County Attorneys, Mineola, New York, for
Defendant-Appellees.
MENASHI, Circuit Judge:
In 2014, the daughter of Plaintiff-Appellant Lambert Henry
commenced an ex parte proceeding against Henry in Nassau County
Family Court. 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
3
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 filed a lawsuit against Nassau County, the Nassau
County Police Department, and several officials affiliated with the
Nassau County Police Department in the United States District Court
for the Eastern District of New York. Henry asserted a claim against
the defendants under 42 U.S.C. § 1983, alleging that the defendants
violated his rights under the Second Amendment to the Constitution
of the United States. Additionally, Henry asserted a claim for
municipal liability under Monell v. Department of Social Services of the
City of New York, 436 U.S. 658 (1978). He also sought a declaratory
judgment that the defendants had violated the Second Amendment
and injunctive relief directing the return of his license and firearms.
Henry, who is African American, further alleged that the County’s
firearm policies had the purpose and effect of discriminating against
4
minorities in violation of 42 U.S.C. § 1981. Henry sought punitive
damages and legal fees from Nassau County and the Nassau County
Police Department based on these claims.
The district court (Hurley, J.) granted the defendants’ motion to
dismiss, holding, inter alia, that Henry’s 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.” Henry v. Cnty. of Nassau, 444 F. Supp. 3d
437, 447 (E.D.N.Y. 2020). Applying intermediate scrutiny, the district
court concluded that Henry failed to state a claim for a violation of
the Second Amendment because the County’s actions were
“substantially related to the important government interest of
preventing domestic violence.” Id. at 447-49. The district court also
dismissed Henry’s claim under § 1981, holding that Henry’s
allegations of discrimination were too conclusory to survive a motion
to dismiss. Id. at 449-51. Finally, the district court dismissed Henry’s
claims for punitive damages and legal fees. Id. at 451. Henry appealed.
We reverse the district court’s judgment, identifying error in its
holding that Henry failed to state a claim for a violation of the Second
Amendment. As an initial matter, the district court’s scrutiny analysis
was flawed because the Second Amendment secures an individual
right to keep and bear arms; accordingly, Henry was not required to
allege a complete ban on firearm ownership for all residents of
Nassau County to state a claim at the core of the Second Amendment.
But even assuming that intermediate scrutiny applies to Henry’s
claim, his complaint still states a claim for relief under the Second
Amendment because the complaint plausibly alleges that the County
did not have “substantial evidence” that Henry is a danger to the
5
safety of others. N.Y. State Rifle & Pistol Ass’n v. Cuomo (NYSRPA), 804
F.3d 242, 264 (2d Cir. 2015) (emphasis omitted). Because these
allegations, accepted as true, would mean that the County’s actions
were not “substantially related” to the County’s “interests in public
safety and crime prevention,” the complaint should not have been
dismissed for failure to state a claim even if intermediate scrutiny
applies. Id. at 261, 264.
We accordingly hold that Henry has stated a claim for a
violation of the Second Amendment and reverse the district court’s
dismissal of Henry’s claim under 42 U.S.C. § 1983 as well as his claims
for declaratory and injunctive relief and for legal fees. We also reverse
the district court’s dismissal of Henry’s Monell claim because the
complaint alleges that the County acted pursuant to official policy.
We affirm the district court’s dismissal of Henry’s claim under 42
U.S.C. § 1981 because Henry fails to allege specific facts supporting
an inference of intentional discrimination. We also affirm the district
court’s dismissal of Henry’s claims against the Nassau County Police
Department and his claim for punitive damages. The case is
remanded for further proceedings consistent with this opinion.
BACKGROUND
I
We review a district court’s grant of a motion to dismiss de novo,
“accepting as true all factual claims in the complaint and drawing all
reasonable inferences in the plaintiff’s favor.” Fink v. Time Warner
Cable, 714 F.3d 739, 740-41 (2d Cir. 2013). We therefore rely on the
factual allegations in Henry’s third amended complaint (the
“complaint”) and the exhibits attached thereto. See Nechis v. Oxford
Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
6
On October 20, 2014, Henry’s daughter Brittney commenced a
case against him 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.” J. App’x 116. Henry,
for his part, characterizes the case as arising out of an argument about
his daughter’s grades in school. On the same day, the Family Court
issued an ex parte temporary order of protection against Henry,
ordering Henry to “[r]efrain from … coercion or any criminal offense
against Brittney Janesse Henry.” Id. at 70. After the order issued, the
Nassau County Police Department’s Pistol License Section
“immediately suspended [Henry’s] pistol license.” Id. at 136.
Three days after the order issued, a group of Nassau County
Deputy Sheriffs arrived at Henry’s home, confiscated his pistol
license, and demanded that he turn over all of his firearms. These
actions were taken pursuant to a policy set forth in the Nassau County
Police Department’s Pistol License Section Handbook, which
provides that the County will “immediately suspend the pistol license
of any licensee” who is “named as a respondent in a proceeding for
the issuance of a … Temporary Order of Protection.” Id. at 141. The
licensee must surrender his “firearm(s) as well as rifles and
shotguns,” the Handbook explains, “until the Order expires or is
vacated by the issuing court, and a thorough investigation is
completed.” Id. at 143. The County’s policy purportedly follows from
New York Penal Law § 400.00(11). 1
1Under New York Penal Law § 400.00(11)(c), “[i]n any instance in which a
person’s license is suspended or revoked under paragraph (a) … of this
7
On March 12, 2015—five months after the County suspended
Henry’s pistol license—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. Two
months later, Henry wrote to the Pistol License Section and requested
the reinstatement of his license. A year and five months after that, on
subdivision, such person shall surrender such license to the appropriate
licensing official and any and all firearms, rifles, or shotguns owned or
possessed by such person shall be surrendered to an appropriate law
enforcement agency.” The County argues that this provision required the
confiscation of all firearms in Henry’s possession. See Appellees’ Br. 3, 7-11.
It is not obvious that the County is correct. Under paragraph (a) of
§ 400.00(11), “[a] license may be revoked or suspended as provided for in
… section eight hundred forty-two-a of the family court act.” Section 842-a
of the New York Family Court Act, in turn, provides in relevant part that
“[w]henever a temporary order of protection is issued pursuant to section
eight hundred twenty-eight of this article … the court shall where the court
finds a substantial risk that the respondent may use or threaten to use a
firearm, rifle or shotgun unlawfully against the person or persons for whose
protection the temporary order of protection is issued, suspend any such
existing [pistol] license possessed by the respondent, order the respondent
ineligible for such a license, and order the immediate surrender … of any
or all firearms, rifles and shotguns owned or possessed.” N.Y. Fam. Ct. Act.
§ 842-a(1)(b). The ex parte temporary order of protection in this case was
issued pursuant to Section 828 of the Family Court Act, but nothing in the
order of protection shows that the Family Court found “a substantial risk
that the respondent may use or threaten to use a firearm, rifle or shotgun
unlawfully against the person or persons for whose protection the
temporary order of protection [was] issued.” Id.; see J. App’x 38-39.
Accordingly, Henry’s license was not revoked pursuant to the Family Court
Act, and therefore it is unclear whether it was revoked under paragraph (a)
of § 400.00(11). We need not resolve this question of state law, however,
because Henry alleges that the actions of the County violated the Second
Amendment regardless of whether those actions were required by state
law.
8
October 12, 2016, the Nassau County Police Department issued a
notice formally revoking Henry’s pistol license. In addition to
revoking Henry’s pistol license, the notice informed Henry that he
was “prohibited from possessing firearms, rifles, [and] shotguns.”
J. App’x 119.
Henry promptly appealed the revocation. On January 24, 2018,
a Police Department appeals officer issued a written decision
upholding the revocation based on (1) a history of “domestic
incidents” involving Henry and his wife and daughter, including
three “physical altercations” in which Henry was alleged to have been
“the aggressor,” as well as a history of “incidents” between Henry’s
wife and son “that required police intervention,” id. at 145-46; (2) five
since-dissolved orders of protection entered against Henry, id. at 146;
and (3) Henry’s purported failure to notify the Police Department,
under the rules of the Pistol License Section Handbook, of “his
involvement in any domestic incident” in which police were called,
of the entry of an order of protection against him, and of his “son’s
diagnosis with depression” or his related admission to a medical
center, id. at 147-48. The appeals officer concluded that this evidence
established “good cause to revoke [Henry’s] pistol license.” Id. at 148.
In his submissions to the Pistol License Section, Henry denied all
accusations of domestic violence. He also included affidavits from his
wife and daughter, who stated that they supported the reinstatement
of Henry’s pistol license and ability to possess firearms. His daughter
stated further that she did not fear him.
The Nassau County Police Department’s written policies
provide that when the revocation of a pistol license is upheld by an
appeals officer, “the licensee must wait a minimum of five (5) years
from the date of revocation or from the appeal decision upholding
9
revocation, whichever is later, before submitting a new, full
application for a pistol license.” Id. at 44. Henry therefore cannot
apply for reinstatement of his pistol license—or possess any
firearms—until 2023 at earliest. 2 Even at that point, Henry may not
be able to obtain a new license. 3
II
Henry filed a lawsuit in the United States District Court for the
Eastern District of New York against the County of Nassau, the
Nassau County Police Department, and several officials affiliated
with the Nassau County Police Department. In the complaint, Henry
2 We note that counsel for the County announced a change in the County’s
position at oral argument by claiming that Henry is free to purchase
longarms. Oral Argument Audio Recording at 16:08-17:55. The County’s
reversal at oral argument does not affect our decision in this appeal because
Henry plausibly alleged that the County’s policy was to forbid firearm
ownership completely after the revocation of a pistol license, and the case
was litigated on that assumption in the district court and before this court.
Because our review is limited to determining whether the district court
erred in its assessment of the legal sufficiency of the complaint’s allegations,
we evaluate the district court’s decision with respect to the allegations in
the complaint and leave consideration of the County’s apparent change in
position to the district court for proceedings following the motion-to-
dismiss stage.
3 Although Henry may apply for a new pistol license after the five-year
term expires, it is not apparent from the record before us that his application
could be granted. In the appeals officer’s decision upholding the revocation
notice, the Nassau County Police Department concluded that “good cause”
exists for the revocation of Henry’s pistol license. J. App’x 148. Unless the
Police Department changes its view, that “good cause” may remain an
obstacle to any new application for a pistol license that Henry might file.
N.Y. Penal Law § 400.00(1)(n) (noting that “good cause” may require “the
denial of the license”).
10
asserted a claim under 42 U.S.C. § 1983 for a violation of his Second
Amendment rights, alleging individual liability and municipal
liability under Monell. He also sought a declaratory judgment that the
County had violated his Second Amendment rights and injunctive
relief requiring the return of his license and firearms. Additionally,
Henry asserted a claim under Title VII of the Civil Rights Act of 1964
and a claim for discrimination in violation of 42 U.S.C. § 1981. Henry
sought punitive damages from the County and the Nassau County
Police Department as well as legal fees from all defendants. Henry
subsequently withdrew his Title VII claim.
The defendants moved to dismiss the complaint under Federal
Rule of Civil Procedure 12(b)(6), arguing that the Nassau County
Police Department is not a suable entity; that the complaint failed to
state a claim under the Second Amendment, Monell, and 42 U.S.C.
§ 1981; and that punitive damages are not recoverable against Nassau
County.
The district court granted the motion, concluding that the
allegations of the complaint, accepted as true, did not state a claim for
a violation of the Second Amendment. Henry, 444 F. Supp. 3d at 447-
49. The district court explained that Henry’s complaint alleges that
“Nassau County revoked his license following the Order of Protection
against him, which has resulted in a total ban on firearm ownership
for him.” Id. at 447. Yet, 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 district court concluded that
“the restrictions [Henry] complains of do not come close to the core
of the Second Amendment right and are not as severe a burden on the
right as [Henry] makes them out to be.” Id. Having concluded that
Henry’s claims did not lie at the core of the Second Amendment, the
11
district court applied intermediate scrutiny to Henry’s claims and
held that the County’s policy was constitutional because it bore a
substantial relationship to the government’s interest in preventing
domestic violence. Id. at 448-49. Because it held that Henry failed to
state a claim under the Second Amendment, the district court also
dismissed Henry’s claim for municipal liability under Monell. Id. at
449.
Additionally, the district court dismissed Henry’s claim against
the Nassau County Police Department on the ground that the Nassau
County Police Department is not a suable entity. Id. at 442. The district
court similarly dismissed Henry’s discrimination claim under 42
U.S.C. § 1981, explaining that Henry’s “allegations are conclusory and
do not support an inference of discriminatory intent.” Id. at 451.
Finally, the district court denied Henry’s claims for punitive damages
and legal fees. Id.
Henry timely appealed.
DISCUSSION
When reviewing a decision to dismiss a complaint under Rule
12(b)(6), we ask whether the complaint’s allegations, taken as true and
afforded all reasonable inferences, state a plausible claim for relief.
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). In this
case, Henry’s allegations state a claim for relief for a violation of the
Second Amendment.
I
In assessing a claim under the Second Amendment, “we
consider two factors: (1) ‘how close the [challenged state action]
comes to the core of the Second Amendment right’ and (2) ‘the
12
severity of the [action’s] burden on the right.’” NYSRPA, 804 F.3d at
258. “[T]he ‘core’ protection of the Second Amendment is the ‘right of
law-abiding, responsible citizens to use arms in defense of hearth and
home.’” Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 93 (2d Cir. 2012)
(quoting District of Columbia v. Heller, 554 U.S. 570, 634-35 (2008)).
When state action imposes a “substantial burden” on the core of the
Second Amendment right, we apply strict scrutiny; when that action
burdens non-core aspects of the right or burdens the core of the right
in an “insubstantial” manner, we apply intermediate scrutiny. United
States v. Jimenez, 895 F.3d 228, 234 (2d Cir. 2018).
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.” Heller, 554 U.S. at 595 (emphasis added).
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. Henry, 444 F. Supp. 3d at 447 (emphasis added).
In deciding otherwise, the district court failed to treat the right to keep
and bear arms as an individual right and treated the Second
Amendment in a way that was not “consistent with jurisprudential
experience analyzing other enumerated rights.” Kachalsky, 701 F.3d at
93-94. 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,”
McDonald v. City of Chicago, 561 U.S. 742, 777-78 (2010), the district
court erred in holding that Henry failed to state a claim at the core of
13
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,” Henry,
444 F. Supp. 3d at 447, there is no doubt that Henry has alleged a
substantial burden on his Second Amendment rights. In United States
v. Decastro, we explained that, “[i]n deciding whether [state action]
substantially burdens Second Amendment rights, it is … appropriate
to consult principles from other areas of constitutional law, including
the First Amendment.”682 F.3d 160, 167 (2d Cir. 2012). Drawing an
analogy to First Amendment principles governing the
constitutionality of time, place, and manner restrictions on speech, we
said that one measure of the burden on Second Amendment rights is
whether the challenged state action leaves “adequate alternatives …
for law-abiding citizens to acquire a firearm for self-defense.” Id. at
168; see also id. (“[U]nder the First Amendment, we ask whether the
challenged regulation ‘leave[s] open ample alternative channels for
communication of the information.’”) (quoting Clark v. Cmty. for
Creative Non-Violence, 468 U.S. 288, 293 (1984)). 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. J. App’x 17; see id. at 43 (letter from the Nassau
County Police Department to Henry, attached as an exhibit to the
complaint, informing him that he is “prohibited from possessing
firearms, rifles, [and] shotguns”). Applying the framework set forth
14
in Decastro, we have no difficulty concluding that Henry has alleged
a substantial burden on his Second Amendment rights. 4
II
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. Jimenez, 895 F.3d at 234. That
determination turns on whether there is a reliable basis for
4 State law provides that “[i]n any instance in which a person’s license is
suspended or revoked under paragraph (a) or (b) of this subdivision, such
person shall surrender such license to the appropriate licensing official and
any and all firearms, rifles, or shotguns owned or possessed by such person
shall be surrendered to an appropriate law enforcement agency.” N.Y.
Penal Law § 400.00(11)(c). In Henry’s case, at least until oral argument, the
County apparently understood the requirement that “any and all firearms,
rifles, or shotguns owned or possessed by such person shall be
surrendered” to mean that a person with a revoked license may not own
any firearms, and the County informed Henry that he was prohibited from
owning any firearms. See J. App’x 43. In Fusco v. County of Nassau, No. 19-
CV-4771, 2020 WL 5820173 (E.D.N.Y. Sept. 30, 2020), which was the subject
of a Rule 28(j) letter filed by Henry, the County took the position that this
provision requires the ex-licensee to surrender whatever firearms were in
his possession at the time of the revocation but allows the ex-licensee
immediately to purchase new rifles or shotguns. Id. at *10. The County also
took that position at oral argument in our court—despite having failed to
clarify before the district court or in its briefs to this court that Henry could
lawfully purchase longarms. See supra note 2. Because we are evaluating
only the sufficiency of the allegations in the complaint, we need not decide
in this appeal whether New York law permits an individual whose pistol
license is suspended and whose firearms are confiscated to subsequently
acquire longarms. On remand, the district court may assess how any change
in the County’s policy or its interpretation of state law bears on Henry’s
claims.
15
concluding that Henry is not law-abiding and responsible. Kachalsky,
701 F.3d at 93. 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.” NYSRPA, 804 F.3d at 261, 264 (quoting Turner
Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997)). The County’s alleged
confiscation of Henry’s firearms and revocation of his license do not
meet that standard.
A
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
16
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. 5 Under New York law, the order did not
constitute “a finding of wrongdoing.” N.Y. Fam. Ct. Act § 828(2). 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.” NYSRPA, 804 F.3d at 261, 264.
Henry’s complaint plausibly alleges that the County barred
him from owning any firearms for almost two years relying solely on
an earlier ex parte order of protection. That is sufficient to state a claim
under the Second Amendment, even if Henry’s claims are subject
only to intermediate scrutiny. See Ramos v. Town of Vernon, 353 F.3d
171, 181 (2d Cir. 2003) (noting that intermediate scrutiny must be
“sufficiently skeptical and probing to provide the rigorous protection
that constitutional rights deserve”).
5 Henry’s daughter subsequently expressed her support for the
reinstatement of Henry’s license. See J. App’x 141 (statement from Henry’s
daughter that she “is not concerned with, and is not in fear of, Appellant
and she supports the reinstatement of his pistol license”).
17
B
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. NYSRPA, 804 F.3d at 264. 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. 6 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.
6 Indeed, Henry denies the allegations of abuse. See J. App’x 139
(“Appellant states that he cannot respond to the allegation that he has a
history of domestic violence because he does not have one; he only has a
history of being in Family Court due to his divorce and ‘unsubstantiated
allegations’ made by his wife.”). Moreover, Henry’s ex-wife stated in an
affidavit that she “feels safe with Appellant having access to firearms, as he
has demonstrated that he is safe with them and he needs them for work and
personal protection.” Id. at 141.
18
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,” NYSRPA, 804 F.3d at 261, 264,
such that the issue can be decided on a motion to dismiss. 7
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
7 Whether the alleged reporting failures justify the County’s rescission of
Henry’s license and/or its ban on gun ownership for Henry are issues that
the district court should address after considering Henry’s evidence and
argument on remand. See infra Part V.
19
claim for a violation of the Second Amendment even if his claims are
subject only to intermediate scrutiny.
We accordingly reverse the district court’s judgment
dismissing Henry’s claim under 42 U.S.C. § 1983 alleging a violation
of his Second Amendment rights as well as his claims for declaratory
and injunctive relief and legal fees. Because Henry alleges that “the
violation of his constitutional rights resulted from a municipal custom
or policy,” Costello v. City of Burlington, 632 F.3d 41, 49 (2d Cir. 2011),
we also reverse the district court’s dismissal of Henry’s claim for
municipal liability under Monell.
III
We affirm the district court’s dismissal of Henry’s claim under
42 U.S.C. § 1981. “[T]o state a claim under … Section 1981 … a plaintiff
‘must allege facts supporting a defendant’s intent to discriminate
against him on the basis of his race.’” Francis v. Kings Park Manor, Inc.,
992 F.3d 67, 80 (2d Cir. 2021) (en banc) (alterations omitted). In his
complaint, Henry, who as mentioned above is African American,
alleges that the County’s policies were intended to “deter ownership
of all firearms and with the intention and effect of reducing pistol
license ownership, most especially in the non-white communities of
Nassau County.” J. App’x 66-67. He further alleges that the County’s
purported policy to deter firearm ownership is unconstitutional
because the policy “[d]isregard[s] the discriminatory effect of the
impact of the Policy in the non-white community.” Id. at 94.
“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
20
rise to a plausible inference of racially discriminatory intent.” Yusuf v.
Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994). 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. J. App’x 92. But
Henry does not allege facts supporting the inference that these
purported disparities are the result of discrimination. Henry even
notes that white pistol owners appear to be disproportionately likely
to have their pistol licenses revoked, which undercuts an inference of
intentional discrimination. Id. at 93.
Henry accordingly has not “offer[ed] more than conclusory
allegations that he was discriminated against because of his race” and
has therefore failed to state a claim under § 1981. Mian v. Donaldson,
Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087-88 (2d Cir. 1993). We
accordingly affirm the district court’s dismissal of Henry’s claim
under 42 U.S.C. § 1981.
IV
We also affirm the district court’s dismissal of Henry’s claims
against the Nassau County Police Department and his claim for
punitive damages. As the district court noted, the Nassau County
Police Department is a non-suable agency of Nassau County. Henry,
444 F. Supp. 3d at 442. Henry’s claims against the Nassau County
Police Department were therefore properly dismissed. See Jenkins v.
City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007). Dismissal of
Henry’s claim for punitive damages was also proper because Henry
sought such damages from the Nassau County Police Department,
21
which cannot be sued, and Nassau County, which cannot be held
liable for punitive damages under 42 U.S.C. § 1983. See DiSorbo v. Hoy,
343 F.3d 172, 182 (2d Cir. 2003). We therefore affirm the district court’s
dismissal of Henry’s claims against the Nassau County Police
Department and his claim for punitive damages.
V
On remand, the district court should first reexamine whether
strict or intermediate scrutiny applies to Henry’s claims. Because
Henry has alleged a substantial burden on his Second Amendment
rights, that determination will depend on whether there is a reliable
basis for concluding that Henry is not law-abiding and responsible.
Kachalsky, 701 F.3d at 93. 8 The district court should undertake this
inquiry with respect to each relevant time period of deprivation
alleged in the complaint because the County made different findings
at each stage: the deprivation was initially based on the dissolved ex
parte temporary order of protection, then on the official revocation of
Henry’s his pistol license, and then on the decision of the appeals
officer. The County’s burden may be different with respect to Henry’s
pistol license and his right to own longarms.
CONCLUSION
We hold that Henry has stated a claim for a violation of the
Second Amendment and accordingly reverse the district court’s
judgment dismissing Henry’s claims under 42 U.S.C. § 1983 and
Monell, as well as his claims for declaratory and injunctive relief and
8 If the district court were to determine that the County’s actions do not
satisfy even intermediate scrutiny, it may not be necessary to decide at the
outset the level of scrutiny that applies.
22
for legal fees. We affirm the district court’s dismissal of Henry’s other
claims and remand this case to the district court for further
proceedings consistent with this opinion.
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