Kimelman v. Garland ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL KIMELMAN,
Plaintiff,
v. Civil Action No. 21-675 (TJK)
MERRICK B. GARLAND et al.,
Defendants.
MEMORANDUM OPINION
Michael Kimelman was convicted of federal securities fraud in 2011. He now lives in New
York and wants to purchase and possess firearms, but his status as a felon prevents him from doing
so under federal law. See 18 U.S.C. § 922(d)(1) and (g)(1). Kimelman sued Defendants, the At-
torney General and the Acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explo-
sives, seeking declaratory and injunctive relief from the application of these provisions against
him. Kimelman claims that he is entitled to that relief either under a statutory exemption or be-
cause the provisions are unconstitutional as applied to him. Defendants moved to dismiss, arguing
that he lacks standing because New York law independently bars him from purchasing or pos-
sessing firearms. For the reasons explained below, the Court agrees and will grant Defendants’
motion.
I. Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) “presents a threshold
challenge to the court’s jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987).
Federal courts are courts of limited jurisdiction, and it is “presumed that a cause lies outside this
limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Thus, when
faced with a motion to dismiss under Rule 12(b)(1), “the plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence.” Moran v. U.S. Capitol Police Bd., 820 F. Supp.
2d 48, 53 (D.D.C. 2011) (citing Lujan v. Def. of Wildlife, 504 U.S. 555, 561 (1992)). In reviewing
such a motion, the Court is not limited to the allegations in the complaint and may consider mate-
rials outside the pleadings but must “accept all of the factual allegations in [the] complaint as true.”
Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (quoting United States
v. Gaubert, 499 U.S. 315, 327 (1991)).
II. Analysis
The jurisdiction of the federal courts extends only to cases and controversies “of the justi-
ciable sort referred to in Article III” of the Constitution—that is, only to claims for which the
plaintiff can show that he has “standing” to bring. Lujan, 504 U.S. at 560. To establish standing,
a plaintiff must show that (1) he has “suffered an ‘injury in fact’ that is . . . concrete and particu-
larized and . . . actual or imminent”; (2) “the injury is fairly traceable to the challenged action of
the defendant”; and (3) “it is likely,” not just speculative, “that the injury will be redressed by a
favorable decision.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 U.S. 167, 180–81
(2000). Kimelman lacks standing because he has not satisfied the latter two requirements: tracea-
bility and redressability.
A. Traceability
Traceability looks at “the relationship between the alleged unlawful conduct and the in-
jury.” Mideast Sys. & China Civ. Constr. v. Hodel, 792 F.2d 1172, 1176 (D.C. Cir. 1986). “It
requires that there be a causal connection between the challenged action and the injury alleged in
the complaint.” Fed’n for Am. Immigr. Reform v. Reno, 897 F. Supp. 595, 604 (D.D.C. 1995)
(cleaned up). As relevant here, the injury must “be fairly traceable to the challenged action of the
2
defendant and not the result of the independent action of some third party not before the court.”
NO Gas Pipeline v. FERC, 756 F.3d 764, 768 (D.C. Cir. 2014) (cleaned up).
Kimelman’s traceability problem arises because federal law is not the only reason he can-
not lawfully purchase or possess a firearm—New York law also prohibits him from doing so.
More specifically, New York law prohibits those “convicted anywhere of a felony” from pos-
sessing a firearm.1 N.Y. Penal Law §§ 400.00(1)(c) & 265.01. It also bars the “purchase[]” of “a
firearm, rifle or shotgun” when the would-be purchaser knows that “he or she is prohibited from
possessing a firearm, rifle or shotgun because of a prior conviction.” Id. § 265.17(1). Kimelman
was convicted of three federal felonies, so these prohibitions apply to him. See ECF No. 1 ¶ 18;
Superseding Indictment & Judgment in a Criminal Case, United States v. Kimelman, No. 10-cr-
56-RJS-6 (S.D.N.Y Apr. 7 & Oct. 13, 2011), ECF Nos. 167, 288.
New York law provides mechanisms through which individuals convicted of a felony can
escape the applicability of these statutes, but Kimelman has not successfully employed them. A
“Certificate of Relief from Civil Disabilities” from the New York Department of Corrections and
Community Supervision, ECF No. 1 ¶¶ 35, 38; N.Y. Correct. §§ 701 & 703, can “remove” Penal
Law § 400.00(1)(c)’s “prohibition against holding a” firearm license, In re Crane, 129 N.Y.S.3d
653, 656 (N.Y. Co. Ct. 2020). And a “Certificate of Good Conduct” exempts a person convicted
1
Defendants argue, and Kimelman does not contest, that New York law bars him from purchasing
and possessing all types of firearms, even if it does so in a less-than-straightforward way. New
York requires a license to purchase or possess firearms other than longarms. See Kachalsky v.
Cnty. of Westchester, 701 F.3d 81, 85 (2d Cir. 2012); Weinstein v. Ryder, No. 19-cv-6236
(SJF/AKT), 2021 WL 1108679, at *2 (E.D.N.Y. Mar. 23, 2021); see also N.Y. Penal Law §
265.00(3). And New York law proscribes the issuance of a license to anyone who has been “con-
victed anywhere of a felony.” N.Y. Penal Law § 400.00(1)(c). That New York law does not
require a license for longarms, though, does not mean that a felon is free to purchase or possess
them. New York law also prohibits the possession of “a rifle, shotgun, antique firearm, black
powder rifle, black powder shotgun, or any muzzle-loading firearm,” i.e., longarms, by anyone
who “has been convicted of a felony or serious offense.” Id. § 265.01(4).
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of a felony from the application of Penal Law § 265.01(4). N.Y. Penal Law § 265.20(a)(5); see
People v. Navarro, 71 N.Y.S.3d 297, 300 (N.Y. App. Div. 2018). But Kimelman never says that
he applied for or received a Certificate of Good Conduct. And while he did apply for a Certificate
of Relief from Civil Disabilities, he was provided relief “except for [his] right to lawfully possess
firearms.”2 ECF No. 1 ¶ 38 (emphasis added). As a result, the existence of these mechanisms
does not change Kimelman’s inability to lawfully purchase or possess a firearm under New York
law. Thus, he cannot show that his alleged harm is fairly traceable to federal law.
B. Redressability
Traceability “and redressability are closely related[,] like two sides of a coin.” West v.
Lynch, 845 F.3d 1228, 1235 (D.C. Cir. 2017) (cleaned up). While traceability looks at the con-
nection between the alleged harm and the challenged law, redressability looks at the connection
between the alleged harm and the relief requested. “Redressability requires a litigant to demon-
strate a likelihood that the requested relief will redress the alleged injury.” Duberry v. District of
Columbia, 924 F.3d 570, 581 (D.C. Cir. 2019) (cleaned up).
In short, because New York law would still prohibit Kimelman from purchasing or pos-
sessing firearms no matter how the Court resolves his claims, he has not shown that a favorable
decision would redress his inability to do so.
2
Kimelman argues that his firearms rights were excluded from the relief afforded him under this
state law procedure because federal law would have still barred him from purchasing or possessing
firearms. ECF No. 10 at 7 n.2; ECF No. 1 ¶ 38. But that is sheer speculation. Of course, New
York cannot restore Kimelman’s right to purchase and possess a firearm under federal law. See
Beecham v. United States, 511 U.S. 368, 374 (1994). But that does not suggest why the New York
Department of Corrections and Community Supervision decided not to restore his rights under
state law. Thus, a traceability problem remains. See Double R Ranch Tr. v. Nedd, 284 F. Supp.
3d 21, 31 (D.D.C. 2018) (finding that the plaintiffs could “[]not establish traceability to the chal-
lenged action” since “even the last link in the causal chain remain[ed] somewhat speculative”).
4
First, Kimelman argues that a favorable decision by this Court would mean that his “fire-
arm rights remained intact and unaffected by his federal convictions,” making New York’s prohi-
bitions inapplicable. ECF No. 10 at 9. By way of background, federal law makes it “unlawful for
any person who has been convicted . . . [of] a crime punishable by imprisonment for a term
exceeding one year . . . [to possess] any firearm.” 18 U.S.C. § 922(g)(1). Similarly, felons are
barred from purchasing firearms under Section 922(d)(1). Kimelman points out that convictions
for “offenses pertaining to antitrust violations, unfair trade practices, restraints of trade or other
similar offenses relating to the regulation of business practices” and convictions for which a person
has had his “civil rights restored under federal law” are exempted from these prohibitions. Bee-
cham, 511 U.S. at 374; see 18 U.S.C. § 921(a)(20). Thus, he argues, if this Court were to find that
his securities offense was an “offense[] pertaining to antitrust violations, unfair trade practices,
restraints of trade or other similar offenses relating to the regulation of business practices,” or
otherwise “restore” his federal firearms rights, Section 922(g)(1) would not apply, and so his fire-
arms rights would be intact under New York law.
Unfortunately for him, Kimelman conflates his firearms rights under federal law with his
firearms rights under state law. Under New York law, the definition of “conviction” does not turn
on the type of offense (for example, whether the offense was an antitrust violation) or the status of
an offender’s civil rights.3 Nor, under New York law, does the definition of felony.4 N.Y. Penal
Law § 10.00(5). Thus, even if federal law did not bar him from possessing a firearm for one of
3
In New York, a “conviction” is “the entry of a plea of guilty to, or a verdict of guilty upon, an
accusatory instrument other than a felony complaint, or to one or more counts of such an instru-
ment.” N.Y. Crim. Pro. § 1.20(13); see also N.Y. Correct. Law § 700(2)(c).
4
“Felony” is defined under New York law as “an offense for which a sentence to a term of im-
prisonment in excess of one year may be imposed.” N.Y. Penal Law § 10.00(5).
5
the reasons he suggests, his conviction of a federal felony would remain, and that conviction would
bar him from possessing of a firearm under New York law. See In re Wasserman, 562 N.Y.S.2d
920, 921 (N.Y. Co. Ct. 1990) (“the Federal restoration of firearms privileges does not erase the
felony conviction which is a statutory bar to the issuance of a” license under N.Y. Penal Law
§ 400.00(1)); In re Alarie, 643 N.Y.S.2d 926, 927 (N.Y. Co. Ct. 1996) (abrogated on other grounds
by Hecht v. Bivona, 761 N.Y.S.2d 485, 485 (N.Y. App. Div. 2003) (Mem.)) (“Even the restoration
of Federal firearms privileges by the Federal Department of the Treasury, Bureau of Alcohol, To-
bacco and Firearms pursuant to 18 USC § 925(c) does not erase the felony conviction which is a
statutory bar to the issuance of a pistol permit under Penal Law § 400.00(1) in New York.”
(cleaned up)).
Second, Kimelman argues that the New York Department of Corrections and Community
Supervision could reconsider its decision not to restore Kimelman’s right to purchase and possess
firearms, especially if this Court were to find in his favor. ECF No. 10 at 9. But under that logic,
“any favorable impact” of this Court’s decision would “depend[] utterly upon the actions of third
parties not before the court, whose behavior is difficult to predict.” Branton v. FCC, 993 F.2d 906,
911 (D.C. Cir. 1993) (cleaned up). Redressability cannot rest on mere speculation about what a
third party might do. See ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989) (plaintiff lacked
standing because the possibility of the court’s decision alleviating the harm depended “on the un-
fettered choices made by independent actors not before the courts and whose exercise of broad and
legitimate discretion the courts cannot presume either to control or to predict”).
* * *
Other courts have found that plaintiffs lacked standing in similar circumstances. For ex-
ample, in Daogaru v. United States Attorney General, 683 F. App’x 824 (11th Cir. 2017), the
6
plaintiff challenged the constitutionality of Section 922(g)(1). But the Eleventh Circuit found that
the complaint was “nonjusticiable because [the plaintiff] failed to satisfy at least two of the thresh-
old requirements for standing: causation and redressability.” Id. at 825. As here, laws where the
plaintiff resided precluded him from “possessing a firearm.” Id. at 826. Thus, he “would still face
prosecution” in that state “for possessing a firearm even if the district court issued an order that
enjoined federal officials from prosecuting him under [S]ection 922(g)(1).” Id. Likewise, in Sher-
lund v. Sessions, No. 18-cv-1126 (PHX/DGC), 2018 WL 5982602, at *2 (D. Ariz. Nov. 14, 2018),
the court dismissed the plaintiff’s complaint for lack of standing because the plaintiff “challenge[d]
only the federal statute prohibiting his gun possession when an Arizona statute also independently
prohibit[ed] approval of his concealed carry permit.” The Court explained that a decision on the
plaintiff’s challenge to Section 922 would “not change the state laws which prohibit Plaintiff from
possessing a gun. Nor [did] Plaintiff show[] that it w[ould] make a change in state law ‘substan-
tially likely.’” Id. at *3. So too here.5
Kimelman claims that these cases help, not hurt, his argument. According to him, Daogaru
and Sherlund support the notion that a restoration of firearms rights by the jurisdiction in which
the felon was convicted renders other states’ firearm bans inapplicable. ECF No. 10 at 11. And
under that rationale, New York would “be bound by the federal court’s declaration of the intact
status of Plaintiff’s firearm rights.” Id. Kimelman misreads Daogaru and Sherlund, and again
conflates his firearms rights under federal and state law. What both cases show is that a plaintiff’s
5
In Medina v. Sessions, 279 F. Supp. 3d 281, 286 (D.D.C. 2017), the court rejected the Govern-
ment’s argument that the plaintiff lacked standing to challenge the applicability of Section
922(g)(1), even though Plaintiff’s state of residence, California, “independently preclude[d] [the
plaintiff] from owning, possessing, or purchasing a firearm.” But in that case, the plaintiff also
sought to possess a firearm in New Mexico, where he also owned residential property and “could
lawfully possess a gun.” Id. Kimelman has not suggested that he wants to purchase or possess a
firearm in a state other than New York.
7
firearms rights in his state of residence state turn on the laws of that state. True, in both cases, the
courts noted that a plaintiff would not be prohibited from possessing a firearm in his state of resi-
dence under that’s state law if his “right to possess a firearm” had been fully “restored.” Sherlund,
2018 WL 5982602, at *2; Daogaru, 683 Fed. App’x at 825. But that was because the law of the
plaintiff’s state of residence so provided. Nothing in these cases supports Kimelman’s argument
that a favorable ruling by this Court would bind New York as to his firearms rights under that
state’s laws.
III. Conclusion
For all these reasons, the Court will grant Defendants’ motion to dismiss. A separate Order
will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: March 3, 2022
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