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Defendant Has Standing To Contest Connecticut's Ban On Carry in State Parks - Second Circuit Ruling Nastri Dykes
Defendant Has Standing To Contest Connecticut's Ban On Carry in State Parks - Second Circuit Ruling Nastri Dykes
Nastri v. Dykes
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 29th day of March, two thousand twenty-four.
PRESENT:
DENNIS JACOBS,
PIERRE N. LEVAL,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
DAVID J. NASTRI,
Plaintiff-Appellant,
v. No. 23-1023
Defendant-Appellee.
_____________________________________
For Plaintiff-Appellant: CAMERON L. ATKINSON, Atkinson Law,
LLC, Harwinton, CT.
Appeal from a judgment of the United States District Court for the District
ADJUDGED, AND DECREED that the August 22, 2023 judgment of the district
court is VACATED and REMANDED for further proceedings consistent with this
order.
David Nastri appeals from a judgment of the district court dismissing for
lack of standing his claim alleging under 28 U.S.C. § 1983 that Connecticut’s ban
§ 23-4-1(c) – because he could not show a credible threat that Connecticut (“the
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State”) would enforce the law against him. We assume the parties’ familiarity
of standing. See Rajamin v. Deutsche Bank Nat’l Tr. Co., 757 F.3d 79, 84–85 (2d Cir.
2014). The plaintiff bears the burden of establishing standing under Article III.
See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). To do so, the plaintiff must
show (1) “an injury in fact,” (2) “a sufficient causal connection between the injury
and the conduct complained of,” and (3) “a likelihood that the injury will be
redressed by a favorable decision.” Susan B. Anthony List v. Driehaus, 573 U.S. 149,
challenge the constitutionality of a law before it has been enforced against him.
See id. at 159. In these pre-enforcement challenges, the plaintiff must show that
Id. This imminence showing requires the plaintiff to demonstrate that (1) he
law”; and (3) “there exists a credible threat” that he would be “prosecut[ed]” for
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violating that law. Vitagliano v. County of Westchester, 71 F.4th 130, 136 (2d Cir.
involve a threat of criminal prosecution, the “fear of civil penalties” can likewise
be sufficient. Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000);
see also Susan B. Anthony List, 573 U.S. at 165 (“[A]dministrative action, like arrest
review.”).
The parties do not dispute that Nastri has established the first two
Thus, the central issue in this appeal is whether Nastri has demonstrated a credible
threat that he would be cited for violating section 23-4-1(c) if he were to engage in
that conduct.
Since the district court’s ruling in this case, we had occasion to clarify the
Second Amendment. 89 F.4th 271, 336 (2d Cir. 2023). We explained that “‘the
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a ‘low threshold’ for a plaintiff to surmount.” Id. at 334 (quoting Hedges v. Obama,
724 F.3d 170, 197 (2d Cir. 2013)). Indeed, we do “not place[] the burden on the
plaintiff to show an intent by the government to enforce the law against [him] but
presume that a credible threat of enforcement exists, and require the government
to “rebut” that inference by “disavowing” its intent to enforce the statute, id. at 353
intent exist[s],” Tweed-New Haven Airport Auth. v. Tong, 930 F.3d 65, 71 (2d Cir.
stated threat of future prosecution is, of course, relevant to assessing the credibility
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credible threat of enforcement – whether or not a plaintiff points to additional
evidence – and require the government to show otherwise. Hedges, 724 F.3d at
197.
Nastri has shown that it is “apparent” that section 23-4-1(c) proscribes him from
23-4-1(c) explicitly prohibits the “carrying of firearms . . . in any state park except
Protection (“DEEP”)],” and DEEP has not authorized possession of handguns for
self-defense. Conn. Agencies Reg. § 23-4-1(c). Nor does the State seriously
dispute that the provision covers Nastri’s conduct. Dykes Br. at 15 (“It is a
generally applicable law that prohibits weapons in all State parks and forests
without authorization from DEEP.”). We thus presume that the State intends to
reason” demonstrating no such intent exists. Tweed-New Haven Airport Auth., 930
F.3d at 71. The State falls short of either showing. Far from disavowing
Conservation Police testified at a deposition that his department (1) receives calls
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about persons with firearms in state parks, (2) responds to those calls by sending
officers to investigate, and (3) would take enforcement action if its officers found
a person with an unauthorized firearm. That easily distinguishes this case from
would enforce a federal drug law against him if he used narcotics for religious
At best, the State offers a variety of reasons why Nastri’s fear of enforcement
is too “[s]peculati[ve],” such as the fact that Connecticut parks are sparsely
patrolled, that Nastri has not run into any officers in the parks, and that Nastri
does not believe anyone noticed he was carrying a handgun in the past. Dykes
that would lead to a citation. Antonyuk, 89 F.4th at 335; id. at 353 (explaining that
enforcement threat is credible even if officers are not “proactive[]” and generally
only respond to “complaint[s]” (internal quotation marks omitted)); see also App’x
at 183 (testimony from the park police director that people who carry concealed
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Simply put, Nastri is “‘not without some reason in fearing prosecution,’ and [his]
fears are neither ‘imaginary nor wholly speculative.’” Antonyuk, 89 F.4th at 336
(alterations omitted) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S.
Finally, the State suggests that the law at issue is moribund – and thus not
firearms in parks in 1918). But no matter the law’s “origins,” the State’s own
regulatory database indicates that section 23-4-1 was enacted in 1993 and amended
30. So while it is not certain whether subsection 1(c) itself was amended as
recently as 2017, it was enacted only three decades ago, and it is hard to see how
that would make it so outdated as to suggest the State is no longer enforcing it.
See Cayuga Nation v. Tanner, 824 F.3d 321, 331 (2d Cir. 2016) (finding that an
event, Antonyuk places the burden on the State, not Nastri, to show a lack of intent
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to enforce the law, and the State has not offered any enforcement statistics (or other
evidence) indicating that section 23-4-1(c) has been enforced so rarely as to render
1 Although Nastri also challenges on appeal the district court’s denial of his motion for
reconsideration, we need not reach that issue here, because we find that Nastri has standing to
bring this pre-enforcement challenge even without the enforcement statistics of section 23-4-1(c).