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Thread: Spinelli v. New York Second Circut Court Decsion 8.31.2009

  1. #1
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    HOT OFF THE PRESS FROM THE 2ND CIRCUIT



    Google and read Spinelli v. New York.

    Due process and the right to have a hearing and claim damages for the period of time between revocation and reinstatement.

    This case was rendered yesterday and sent to Attorney Baird who will be arguing similar circumstances on Due Process in the Kuck and Goldgerg cases before the Second Circuit on September 17, 2009.

    More to follow after discussions and research.

    Edward Peruta



    Notice and Opportunity to Be Heard

    Plaintiff-appellant operates a gun shop and range in the Bronx. An administrative search of her shop following the 9/11 attacks showed her security to be “grossly inadequate.” As a result, the NYPD seized her firearms and suspended her license. In doing so, the NYPD did not provide appellant with notice that she was entitled to a hearing, as required by 38 RCNY § 1-04(f) (Rules of the City of New York). The district court dismissed plaintiff’s Fourth Amendment, due process, and state law tortious interference claims. The Second Circuit reverses as to the due process claim.

    The district court properly dismissed plaintiff’s challenge to the administrative search under the Fourth Amendment. The licensing regulations expressly provide that the NYPD has a right to inspect a gun dealer’s premises at all times without prior notice, and it would subvert the purpose of such inspections (to discovery possible security infractions) to require prior notice. Accordingly, the warrantless search of the gun shop was objectively reasonable and did not violate the Fourth Amendment.

    The district court erred, however, in dismissing the due process claim[/b]. Plaintiff has a protected property interest in her gun dealer license. Although she was not entitled to a hearing before her license was suspended, she was entitled to notice and an opportunity to be heard after the suspension,[/b] and the City’s policy of delaying any such notice and hearing until after a police investigation is completed, which can take years, does not comport with due process[/b]. “[O]nce the City took possession of [the dealer's] property pending investigation, it was incumbent upon the City to provide a prompt hearing.”[/b] Slip Op. at 27.

    In this case, because plaintiff hired a lawyer familiar with the bureaucracy, she was able to get her license back after only 58 days[/b]. She still has a right to recover damages for the due process violation. “Because she never received the process that she was due, defendants must still answer for any damages they may have caused with their suspension of her license without due process.”[/b] Slip Op. at 31 (quotation citation and edits omitted). Accordingly, the district court’s dismissal of the due process claim is vacated, and the case is remanded with instructions to enter judgment for plaintiff and to provide her an opportunity to prove damages caused by the seizure and suspension “from the time the City should have provided a prompt post-deprivation hearing.” [/b]Slip Op. at 31. The remand court should also consider whether to entertain the tortious interference claim under its supplemental jurisdiction. Id.






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    IANAL, so help me with the laymen version.

    The District Courts dismissed both claims. The 2nd tells them to revisit the issue WRT due process. That means the district is forced to rehear the case and actually make a ruling?

    If they rule against the plaintiff, the plaintiff can re appeal to the 2nd again?

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    Here is the short version in answer to your post:

    Spinelli was a dismissal on summary judgment after the evidence had been established – therefore the court was able to remand with decision in favor of Plaintiffs.


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    For anyone who cares to read it, the decision: http://www.ca2.uscourts.gov/decision...237-cv_opn.pdf

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    After you read the decision in Spinelli v. New York, (and please pay attention to the delay factors), take the time to listen to the audio recording posted at:

    http://www.ourrockyhill.com/BOFPE%20...03.13%20SPEED%


    IF THE LINK DOES NOT WORK, PLEASE VISIT WWW.OURROCKYHILL.COM AND CLICK ON THE TEXT FOR THE LINK AT:

    "March 2008 Firearms Meeting AUDIO FILE"

    Lt. Fox of the State Police who is an attorney, made his case and clearly stated his legal opinion and position that a delay of 14 months is NOT a violation of DUE PROCESS. What wasn't stated was the fact that Goldberg had already waited 10 months. The backlog was 24 months when Goldberg was revoked.

    Then go back and read the Spinelli v. New Yorkdecision again and have a good laugh at his incorrect beliefs.

    The Spinelli decision clearly sets forth together with other factors, the court's belief that 58 days without a hearing was a violation of Ms. Spinelli's DUE PROCESS.

    With the Kuck and Goldberg appealsscheduled for oral argument before The Second Circuit Court of Appeals on September 17, 2009, confirmation of my beliefs will be forthcoming in a very short time.







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    Regular Member Lenny Benedetto's Avatar
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    ED

    When I click the link I get this

    Bad Request Your browser sent a request that this server could not understand.

    Additionally, a 404 Not Found error was encountered while trying to use an ErrorDocument to handle the request.
    [line] Apache/2.0.63 (Unix) mod_ssl/2.0.63 OpenSSL/0.9.8e-fips-rhel5 mod_auth_passthrough/2.1 mod_bwlimited/1.4 FrontPage/5.0.2.2635 PHP/5.2.5 Server at www.ourrockyhill.com Port 80
    The Connecticut Citizens Defense League is a non-partisan, grassroots organization devoted to advocating rights affirmed by the Constitutions of the United States of America and the State of Connecticut. We are especially dedicated to protecting the unalienable right of all citizens to keep and bear arms, for the defense of both self and state, through public enlightenment and legislative action.
    Join Here: http://www.ccdl.us/membership

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    I will work on the link to see what can be done to make it work.

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    It looks like this is the link he was pointing to: http://www.ourrockyhill.com/BOFPE%20...EED%2028.8.wmv

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    Regular Member Lenny Benedetto's Avatar
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    It works...I did find it earlier and listened...long listen!
    The Connecticut Citizens Defense League is a non-partisan, grassroots organization devoted to advocating rights affirmed by the Constitutions of the United States of America and the State of Connecticut. We are especially dedicated to protecting the unalienable right of all citizens to keep and bear arms, for the defense of both self and state, through public enlightenment and legislative action.
    Join Here: http://www.ccdl.us/membership

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    Long listen, and I plan to edit it down to the very important statements, but did you make the connection between what Lt. Fox told the board and the findings in the Spinelli case?

    And what about his statement about the local District Court's dealy??

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    Ed,
    Don't know if you've seen this in the other (New Mexico) section but here's some absolutely GREAT case law just came out.

    http://opencarry.mywowbb.com/forum39/31252.html

    This seems to be the hammer that will nail the coffin shut on O/C seizures.

  12. #12
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    I just want to remind everyone that the decision from New Mexico (10th Circuit/District) is not a binding precedent in Connecticut (2nd Circuit/District). It is still possible, and maybe likely, that the 2nd Circuit/District and lower courts in CT could find similar cases were not violations of the 4th amendment.

    However, because the case is so expertly decided, it should be very strong persuasive precedent. We can only hope the the 2nd Circuit and Supreme Court would find similar logic in the 10th's decision.

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