Edward Peruta
Regular Member
imported post
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.
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.
