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NYSRPA v. City of New York Decision
NYSRPA v. City of New York Decision
____ (2020) 1
Per Curiam
No. 18–280
_________________
PER CURIAM.
In the District Court, petitioners challenged a New York
City rule regarding the transport of firearms. Petitioners
claimed that the rule violated the Second Amendment. Pe-
titioners sought declaratory and injunctive relief against
enforcement of the rule insofar as the rule prevented their
transport of firearms to a second home or shooting range
outside of the city. The District Court and the Court of Ap-
peals rejected petitioners’ claim. See 883 F. 3d 45 (CA2
2018). We granted certiorari. 586 U. S. ___ (2019). After
we granted certiorari, the State of New York amended its
firearm licensing statute, and the City amended the rule so
that petitioners may now transport firearms to a second
home or shooting range outside of the city, which is the pre-
cise relief that petitioners requested in the prayer for relief
in their complaint. App. 48. Petitioners’ claim for declara-
tory and injunctive relief with respect to the City’s old rule
is therefore moot. Petitioners now argue, however, that the
new rule may still infringe their rights. In particular, peti-
tioners claim that they may not be allowed to stop for coffee,
2 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
Per Curiam
It is so ordered.
Cite as: 590 U. S. ____ (2020) 1
No. 18–280
_________________
No. 18–280
_________________
firing ranges in the City, all but one of which were largely
restricted to members and their guests.
In the District Court and the Court of Appeals, the City
vigorously and successfully defended the constitutionality
of its ordinance, and the law was upheld based on what we
are told is the framework for reviewing Second Amendment
claims that has been uniformly adopted by the Courts of
Appeals.1 One might have thought that the City, having
convinced the lower courts that its law was consistent with
Heller, would have been willing to defend its victory in this
Court. But once we granted certiorari, both the City and
the State of New York sprang into action to prevent us from
deciding this case. Although the City had previously in-
sisted that its ordinance served important public safety
purposes, our grant of review apparently led to an epiphany
of sorts, and the City quickly changed its ordinance. And
for good measure the State enacted a law making the old
New York City ordinance illegal.
Thereafter, the City and amici supporting its position
strove to have this case thrown out without briefing or ar-
gument. The City moved for dismissal “as soon as is rea-
sonably practicable” on the ground that it had “no legal rea-
son to file a brief.” Suggestion of Mootness 1. When we
refused to jettison the case at that early stage, the City sub-
mitted a brief but “stress[ed] that [its] true position [was]
that it ha[d] no view at all regarding the constitutional
questions presented” and that it was “offer[ing] a defense of
the . . . former rul[e] in the spirit of something a Court-
appointed amicus curiae might do.” Brief for Respondents 2.
A prominent brief supporting the City went further. Five
United States Senators, four of whom are members of the
bar of this Court, filed a brief insisting that the case be dis-
——————
1 See Brief for Second Amendment Law Professors et al. as Amici
Curiae 8–9.
Cite as: 590 U. S. ____ (2020) 3
missed. If the Court did not do so, they intimated, the pub-
lic would realize that the Court is “motivated mainly by pol-
itics, rather than by adherence to the law,” and the Court
would face the possibility of legislative reprisal. Brief for
Sen. Sheldon Whitehouse et al. as Amici Curiae 2–3, 18 (in-
ternal quotation marks omitted).
Regrettably, the Court now dismisses the case as moot.
If the Court were right on the law, I would of course approve
that disposition. Under the Constitution, our authority is
limited to deciding actual cases or controversies, and if this
were no longer a live controversy—that is, if it were now
moot—we would be compelled to dismiss. But if a case is
on our docket and we have jurisdiction, we have an obliga-
tion to decide it. As Chief Justice Marshall wrote for the
Court in Cohens v. Virginia, 6 Wheat. 264, 404 (1821), “[w]e
have no more right to decline the exercise of jurisdiction
which is given, than to usurp that which is not given.”
Thus, in this case, we must apply the well-established
standards for determining whether a case is moot, and un-
der those standards, we still have a live case before us. It
is certainly true that the new City ordinance and the new
State law give petitioners most of what they sought, but
that is not the test for mootness. Instead, “a case ‘becomes
moot only when it is impossible for a court to grant any ef-
fectual relief whatever to the prevailing party.’ ” Chafin v.
Chafin, 568 U. S. 165, 172 (2013) (emphasis added). “ ‘As
long as the parties have a concrete interest, however small,
in the outcome of the litigation, the case is not moot.’ ” Ibid.
(emphasis added).
Respondents have failed to meet this “heavy burden.”
Adarand Constructors, Inc. v. Slater, 528 U. S. 216, 222
(2000) (per curiam) (internal quotation marks omitted).
This is so for two reasons. First, the changes in City and
State law do not provide petitioners with all the injunctive
relief they sought. Second, if we reversed on the merits, the
District Court on remand could award damages to remedy
4 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
City. D. Gaquin & M. Ryan, County and City Extra: Special Decennial
Census Edition 607 (2012).
Cite as: 590 U. S. ____ (2020) 7
or clubs were ones “located in New York City.” App. 50, 63.
At the relevant time, there were only seven such ranges in
the entire City: two in Staten Island, two in Queens, one in
Brooklyn, one in Manhattan, and one in the Bronx. See id.,
at 92–93. All but one generally admitted only members and
their guests, and the only range open to the public was
closed for a time during the pendency of the case below.
B
1
In 2013, three individuals and one organization repre-
senting New York gun owners brought suit under Rev. Stat.
§1979, 42 U. S. C. §1983, against the City and the NYPD
License Division, contending that the restrictive premises
license scheme, 38 N. Y. C. R. R. §5–23, violated their rights
under the Second Amendment and other provisions of the
Constitution.
One of the individual petitioners, Romolo Colantone, has
held a New York City firearms license since 1979. App. 28–
29, 51. Colantone currently has a premises license for his
residence and wishes to take his handgun to ranges and
competitions outside the City and to his second home in
Hancock, New York. He refrained from doing so because of
the ordinance prohibiting such travel. Id., at 32, 53–54.
For example, Colantone registered to participate in the
2012 World Class Steel Northeast Regional Championship
in Old Bridge, New Jersey—about 20 miles from his home
in the City. Plaintiffs’ Memorandum in Support of Cross-
Motion for Summary Judgt. in No. 13–cv–2115 (SDNY),
Doc. No. 44 (Plaintiffs’ Memo). But after the hosts of that
competition alerted him that his premises license did not
allow him to transport his handgun to New Jersey—and af-
ter Inspector Andrew Lunetta, the commanding officer of
the NYPD License Division, confirmed this—Colantone
pulled out of the competition. App. 32, 49–50, 55.
8 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
2
The City vigorously defended its law. The ordinance did
not impinge on petitioners’ Second Amendment right, the
City told the lower courts, and even if it did, the law sur-
vived heightened scrutiny. That was so, the City main-
tained, because the travel restrictions were “necessary to
protect the public safety insofar as the transport of firearms
outside the home potentially endangers the public.” City of
New York’s Memorandum in Support of Cross-Motion for
Summary Judgt. & Opposition to Plaintiffs’ Motion for Pre-
liminary Injunction in No. 13–cv–2115, Doc. No. 36, p. 10.
To support this assertion, the City relied on the declara-
tion of Inspector Lunetta, which attempted to explain why
the restrictions were “necessary to address . . . public safety
concerns.” App. 76. Lunetta justified the law in three ways.
First, he maintained that the restriction on out-of-city
transport promoted public safety by causing “premises li-
cense holders [to] bring their firearms into the public do-
main less frequently.” Id., at 78; see also id., at 77.
Second, he claimed that the transport restriction helped
to prevent the gun violence that might occur if a licensee
became involved in an altercation while on the way to an
out-of-city range or competition. Lunetta asserted that
licensees are “as susceptible as anyone else” to “stress-
inducing circumstances” that can lead to violence. Ibid.
Finally, he claimed that the travel restriction made it
simpler for a patrol officer to check whether the holder of a
premises license who is found in possession of a gun outside
the home is really headed for a range or is simply using that
as a pretext for carrying a gun. Id., at 78–79. He declared
that “there were several reported cases where [holders of
premises or target licenses] were charged with criminal
possession of a weapon when found with their firearms
while not en route to a range.” Id., at 89. He cited five
cases, id., at 88–89, but not one of the opinions indicates
10 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
and therefore this case is not moot. This is so for the fol-
lowing reasons.
A
First, this case is not moot because the amended City or-
dinance and new State law do not give petitioners all the
prospective relief they seek. Petitioners asserted in their
complaint that the Second Amendment guarantees them,
as holders of premises licenses, “unrestricted access” to
ranges, competitions, and second homes outside of New
York City, App. 36, and the new laws do not give them that.4
The new City ordinance has limitations that petitioners
claim are unconstitutional, namely, that a trip outside the
City must be “direc[t]” and travel within the City must be
“continuous and uninterrupted.” 38 N. Y. C. R. R. §§5–
23(a)(3), (a)(7). Exactly what these restrictions mean is not
clear from the face of the rule, and the City has done little
to clarify their reach. At argument, counsel told us that the
new rule allows “bathroom breaks,” “coffee stops,” and any
other “reasonably necessary stops in the course of travel.”
Tr. of Oral Arg. 36, 64. But the meaning of a “reasonably
necessary” stop is hardly clear. What about a stop to buy
groceries just before coming home? Or a stop to pick up a
friend who also wants to practice at a range outside the
City? Or a quick visit to a sick relative or friend who lives
near a range? The City does not know the answer to such
questions. See, e.g., id., at 65–66.
——————
4 Contrary to the City’s suggestion, see Reply to Suggestion of Moot-
ness 5, petitioners have not softened their stance over the course of this
litigation. At summary judgment, petitioners asked that the District
Court declare 38 N. Y. C. R. R. §5–23 unconstitutional and enjoin its en-
forcement “in any manner that prohibits or precludes [petitioners] from
traveling” with their handguns to a range, competition, or second home
outside the borders of New York City. Notice of Cross-Motion for Sum-
mary Judgt. in 13–cv–2115, Doc. No. 43, p. 1; Plaintiffs’ Memo, at 32; and
Plaintiffs’ Reply Memorandum, Doc. No. 53, p. 9 (emphasis added); see
also Motion for Preliminary Injunction, Doc. No. 9, p. 1.
14 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
Based on all this, we are left with no clear idea where the
City draws the line, and the situation is further complicated
by the overlay of State law. The new State law appears to
prevent the City from penalizing any “direc[t]” trip to a
range or competition outside the City, but the State law
does not define that limitation. The petitioners wanted to
enter competitions in upstate New York more than a five
hour drive from the City. Could they stop along the way?
And if so, for how long? The State has not explained its
understanding of this limitation, and in any event, prosecu-
torial decisions in New York are generally made by the
State’s 67 elected district attorneys. See Haggerty v. Hime-
lein, 221 App. Div. 2d 138, 144–145, 644 N. Y. S. 2d 934,
940 (1996). The bottom line is that petitioners, who sought
“unrestricted access” to out-of-city ranges and competitions,
are still subject to restrictions of undetermined meaning.
These restrictions may not seem very important, but that
is beside the point for purposes of mootness. Nor does it
matter whether, in the end, those restrictions would be
found to violate the Second Amendment. All that matters
for present purposes is that the City still withholds from
petitioners something that they have claimed from the be-
ginning is their constitutional right. It follows that the case
is not moot. It is as simple as that.
The situation here resembles that in Knox, 567 U. S. 298.
The issue in that case was whether a public sector union
had provided nonmembers the sort of notice that our case
law required before they could be forced to pay a fee to
subsidize certain union activities. We granted certiorari to
review the Ninth Circuit’s holding that the notice that the
union had provided was sufficient, but before we could de-
cide the case, the union sent out a new notice and moved to
dismiss the case as moot. The employees objected that the
new notice was inadequate, and we refused to dismiss. In
so doing, we did not opine on the adequacy of the new notice
but simply held that the case was not moot because “there
Cite as: 590 U. S. ____ (2020) 15
——————
6 A single Circuit has held that a claim for nominal damages alone does
trict Court could allow amendment. See Zenith Radio Corp. v. Hazeltine
Research, Inc., 401 U. S. 321, 331 (1971); 6 Wright & Miller §1474 (3d ed.
2010).
18 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
Circuit held that a prisoner could seek damages for various deprivations
suffered during punitive segregation imposed in retaliation for the exer-
cise of his free speech rights. Id., at 1270. These injuries included loss
of visiting and phone privileges, recreation rights, and access to the law
library.
In Young v. Little Rock, 249 F. 3d 730 (2001), the Eighth Circuit af-
firmed a jury award of compensatory damages for wrongful detention
that caused psychological harm. Id., at 736.
In Drake v. Lawrence, 524 N. E. 2d 337 (1988), the Indiana Court of
Appeals affirmed a compensatory damages award for, among other
things, the embarrassment of a false arrest in front of an employee and
customer and the anxiety associated with pending charges. Id., at 342.
In Watseka v. Illinois Public Action Council, 796 F. 2d 1547 (1986),
aff ’d, 479 U. S. 1048 (1987), the Seventh Circuit affirmed an award of
damages for “specific compensable, non-abstract harm” resulting from an
unconstitutional ordinance restricting door-to-door solicitation. That
harm included the organization’s inability to recruit new members, dis-
seminate its views, and encourage others to support its positions. 796
F. 2d, at 1558–1559; see also, e.g., King v. Zamiara, 788 F. 3d 207, 213–
214 (CA6 2015) (affirming compensatory damages award for injury
caused by transfer of inmate in retaliation for filing lawsuit, when trans-
fer impeded his ability to participate in litigation).
20 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
3
One final point about damages must be addressed. We
have warned in dicta that a claim of damages, “asserted
solely to avoid otherwise certain mootness, [bears] close in-
spection.” Arizonans for Official English v. Arizona, 520
U. S. 43, 71 (1997). But if, after close inspection, we con-
clude that the stringent test for mootness is not met, we
have no authority to dismiss on that ground.
Nothing in Arizonans for Official English suggests other-
wise. In that case, the plaintiff, who was an employee of
the State of Arizona when she filed her complaint, sued the
State under §1983, claiming that a state constitutional
amendment declaring English the official language of the
State unconstitutionally prevented her from using Spanish
to perform her job. Her requests for declaratory and injunc-
tive relief became moot when she left state employment for
the private sector, and we held that her request for nominal
damages from the State did not save her case from moot-
ness since a State may not be sued under §1983. 520 U. S.,
at 67–69, 71. The situation here is different because noth-
ing blocks an award of nominal damages from a city.9
C
Relief would be particularly appropriate here because the
——————
9 The per curiam refuses to decide whether petitioners have a live claim
for damages, claiming that the lower courts should determine in the first
instance whether any effort to recover damages has come “too late.”
Ante, at 2. But as previously discussed, see supra, at 15–16, prejudice is
the critical factor in determining whether to permit a late request for a
form of relief not expressly demanded in a complaint, and the per curiam
does not identify any reason why allowing petitioners’ request for dam-
ages at this juncture would prejudice the City. Under the Court’s deci-
sion, allowing damages will not prolong this litigation, because the case
is being remanded anyway, and there is no suggestion that the City
would have litigated the case any differently if it had been on express
notice that petitioners were seeking the sort of modest damages dis-
cussed in this opinion.
Cite as: 590 U. S. ____ (2020) 21
——————
10 Attorney’s fees are specifically requested in the amended complaint.
App. 48.
22 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
State replaces its old law with a new one requiring certifi-
cation by three physicians. Would the court be required to
dismiss the woman’s suit? Suppose the court, following the
precedent set by today’s decision, holds that the case is
moot, and suppose that the woman brings a second case
challenging the new law on the same ground. If the State
repeals that law and replaces it with one requiring certifi-
cation by two doctors, would the second suit be moot? And
what if the State responds to a third suit by enacting
replacement legislation demanding certification by one
doctor?
Mootness doctrine does not require such results. A chal-
lenge to an allegedly unconstitutional law does not become
moot with the enactment of new legislation that reduces but
does not eliminate the injury originally alleged. And that
is the situation here.
The Court cites one case in support of its holding, Lewis
v. Continental Bank Corp., 494 U. S. 472, 482–483 (1990),
but that decision is wholly inapposite. The situation in
Lewis was complicated, but the critical point for present
purposes is that, by the time the case reached this Court,
the enactment of new legislation meant that the plaintiff no
longer had Article III standing to assert its original claim.
Id., at 478–479. But instead of simply ordering that the
case be dismissed, the Court remanded to give the plaintiff
the opportunity to assert a different claim and, if necessary,
to amend the complaint or “develop the record” to show it
had standing to pursue this new claim. Id., at 482.
The situation here is entirely different. It is not disputed
that petitioners have standing to contest the City’s re-
strictions on trips to out-of-city ranges and competitions,
and as a result of those restrictions, petitioners have suf-
fered and will continue to suffer injury that is concrete,
traceable to actions taken by the City, and remediable by a
court. See Spokeo, Inc. v. Robins, 578 U. S. ___ (2016).
They are not asserting a new claim. Their original claim—
Cite as: 590 U. S. ____ (2020) 25
licenses, ibid., does not suggest that the City regards viola-
tions as presenting a particularly significant threat to pub-
lic safety.
When all that is irrelevant is brushed aside, what re-
mains are the three arguments noted earlier. First, Inspector
Lunetta asserted that the travel restrictions discouraged li-
censees from taking their guns outside the home, but this
is a strange argument for several reasons. It would make
sense only if it is less convenient or more expensive to prac-
tice at a range in the City, but that contradicts the City’s
argument that the seven ranges in the City provide ample
opportunity for practice. And discouraging trips to a range
contradicts the City’s own rule recommending that licen-
sees practice. Once it is recognized that a reasonable op-
portunity to practice is part of the very right recognized in
Heller, what this justification amounts to is a repudiation
of part of what we held in that decision.
Second, Inspector Lunetta claimed that prohibiting trips
to out-of-city ranges helps prevent a person who is taking a
gun to a range from using it in a fit of rage after an auto
accident or some other altercation that occurs along the
way. And to bolster this argument, Inspector Lunetta as-
serted that persons who have met the City’s demanding re-
quirements for obtaining a premises license are just as
likely as anyone else to use their guns in a fit of rage. App.
77. If that is so, it does not reflect well on the City’s inten-
sive vetting scheme, see supra, at 4–6, and in any event, the
assertion is dubious on its face.
More to the point, this argument does not explain why a
person headed for a range outside the City is any more
likely to engage in such conduct than a person whose desti-
nation is a range in the City. There might be something to
the argument if ranges in the City were closer than those
just outside its borders, but the City never attempted to
show that. The courts below were incurious about the va-
Cite as: 590 U. S. ____ (2020) 29
——————
12 Two of the seven City ranges (28%) were located in Staten Island
(home to under 6% of the City’s residents), and the trip there from the
other boroughs is not quick. Another range (the only one open to the
public) was located in the north Bronx. See Brief for Appellants in No.
15–638, p. 32 (CA2) (explaining that, for plaintiff Colantone, “traveling
from his home in Staten Island to the authorized range Olinville Arms
in the Bronx[ involves] a far longer drive” than to a shooting club in New
Jersey).
30 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
——————
13 Inspector Lunetta also expressed concern that officers in other juris-
dictions might detect and report fewer license violations. App. 80. But
Inspector Lunetta did not support this prediction, and his declaration
gives reason to doubt whether a decrease in referrals will actually occur.
Lunetta explains that the NYPD License Division already receives “re-
ports from [the New York State Division of Criminal Justice System] re-
garding all arrests made within the State of New York for which an ar-
restee is fingerprinted.” Id., at 86. But “[n]o formal report is forwarded
to the License Division for summonses and other arrests and incidents
for which a detainee is not fingerprinted.” Ibid. “[T]he License Division
may be, but is not always, notified of an arrest” made by the Federal
Government or authorities in another State. Ibid. By Lunetta’s own
account, the NYPD already appears reliant on the State fingerprinting
database to detect violations in other jurisdictions. There is no reason to
expect that database to be any less effective today in alerting the License
Division to potential violations than it was under the old ordinance.
Cite as: 590 U. S. ____ (2020) 31