20‐0086-cv Juzumas v. Nassau County

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________

August Term 2020

No. 20-0086-cv ______________

VICTOR JUZUMAS, Plaintiff-Appellant,

v.

NASSAU COUNTY, NEW YORK, Defendant-Appellee,

“JOHN DOES 1-5” Defendants. ______________

On Appeal from the United States District Court for the Eastern District of New York ______________

ARGUED: DECEMBER 10, 2020 DECIDED: MAY 12, 2022

Before: POOLER, WESLEY, CARNEY, Circuit Judges.

Victor Juzumas sued Nassau County (the “County”) and five “John Doe”

law enforcement officers (the County and the individuals together, “Defendants”) for alleged constitutional violations arising from their enforcement of New York

Penal Law § 400.00(11)(c). Juzumas alleges that the County’s policy interpreting

and applying § 400.00(11)(c) is broader than the law itself, and unconstitutional as

it was applied to him. The United States District Court for the Eastern District of

New York (Donnelly, J.) disagreed, finding that the County acted to enforce a

mandatory provision of state law and as a result was not a proper defendant under

Vives v. City of New York,

(2d Cir. 2008). It granted Defendants’ motion

for summary judgment on Juzumas’s First, Second, and Fourth Amendment

claims, related Monell claims, and Section 1983 conspiracy claim. Juzumas appeals

the district court’s order. We AFFIRM the order of the district court in part, except

to the extent that it failed to reach an adequate determination on the County’s

longarms possession policy. We VACATE and REMAND in part for the district

court to address that aspect of Juzumas’s Second Amendment and Monell claims.

______________

AMY L. BELLANTONI, The Bellantoni Law Firm, PLLC, Scarsdale, NY, for Plaintiff-Appellant.

JARED A. KASSCHAU, Nassau County Attorney, Mineola, NY (Robert F. Van der Waag, Deputy County Attorney, on the brief), for Defendant-Appellee.

______________

2 PER CURIAM:

Victor Juzumas sued Nassau County (the “County”) and five “John Doe”

law enforcement officers (the County and the individuals together, “Defendants”)

for alleged constitutional violations arising from their enforcement of New York

Penal Law § 400.00(11)(c). Juzumas alleges that the County’s policy interpreting

§ 400.00(11)(c) is broader than the law itself, and unconstitutional as it was applied

to him. The United States District Court for the Eastern District of New York

(Donnelly, J.) disagreed, finding that the County acted in large part to enforce a

mandatory provision of state law and was not a proper defendant under Vives v.

City of New York,

(2d Cir. 2008). Juzumas v. Nassau Cty.,

(E.D.N.Y. 2019). It granted Defendants’ motion for summary judgment on

Juzumas’s First, Second, and Fourth Amendment claims, related Monell claims,

and Section 1983 conspiracy claim. We affirm the order of the district court in part,

except to the extent that it failed to reach an adequate determination on the

County’s longarms possession policy. We vacate and remand in part for the

district court to address that aspect of Juzumas’s Second Amendment and Monell

claims.

BACKGROUND

I. Statutory Framework

New York Penal Law creates a licensing regime for the possession of pistols,

revolvers, and certain other handguns, which it refers to as “firearms.” See

(3). This regime makes it unlawful in New York to possess a

firearm without a license. See

§§ et seq. 265.20(3), 400.00(2). Eligibility for a

license is governed by Penal Law § 400.00(1), which provides that “[n]o license

3 shall be issued or renewed except for an applicant” who meets several enumerated

requirements. Among those requirements are that the applicant be “of good moral

character,” id. § 400.00(1)(b), and that there be “no good cause . . . for the denial of

the license,” id. § 400.00(1)(n). Under the state law, licenses—colloquially referred

to as either pistol, handgun, or firearm licenses—are generally issued and

administered by local governmental units or officers. In Juzumas’s case, Nassau

County was charged with the licensing responsibility.

The State maintains no similar licensing scheme for long-barrel rifles and

shotguns (“long guns” or “longarms”). 1 However, the Penal Law speaks to

continued long gun possession by a person whose pistol license has been revoked,

as we describe below. Pistol license revocation may occur in several different

circumstances. Among them is that described by Penal Law § 400.00(11)(a), which

provides that a license holder’s conviction of a “felony” or “serious offense,” or

the license holders “at any time becoming ineligible to obtain a license under this

section,” “shall operate as a revocation of the license.” See also

(17) (defining “serious offense”). In addition, § 400.00(11)(b) requires

licensing officers to suspend or revoke the license of any person about whom a

report of mental disturbance has been made pursuant to New York Mental

Hygiene Law § 9.46.

The tethering between longarm possession and pistol licenses occurs in

subsection (c) of Penal Law § 400.00(11). Subsection (c) provides that in “any

1 Rifles and shotguns whose barrels have been sawed off, however, are treated by the Penal Law as “firearms” and are subject to the licensing regime. See

(3).

4 instance in which a person’s license is suspended or revoked under paragraph (a)

or (b) of this subdivision, such person shall surrender such license to the appropriate

licensing official and any and all firearms, rifles, or shotguns owned or possessed by such

person shall be surrendered to an appropriate law enforcement agency.”

(11)(c) (emphasis added).

Nassau County adopted a policy implementing this part of the state

statutory framework. In May 2014, it published a legal bulletin declaring that “a

person whose handgun license is suspended or revoked for any reason is not only

required to surrender [his] license and handguns but also [his] rifles and shotguns

to the licensing authority (Nassau County Police Department).” JA 268–73. 2 The

written policy does not state whether an individual in Nassau County whose pistol

license has been revoked and weapons have been surrendered may possess long

guns again before being issued another pistol license. As Juzumas describes the

County policy, however, that individual may lawfully possess long guns again

only after he applies for, and the County issues him, another pistol license. See

Juzumas, 417 F. Supp. 3d at 182.

2The County’s written policy interpreting state law is also published in Nassau County Police Department Procedure OPS 10023, entitled “Removal and Disposition of Weapons—Domestic Incidents/Threats to Public Safety.” Special App’x 4. As summarized by the district court, “[u]nder OPS 10023, longarm possession may be prohibited if (a) the owner is prohibited from possessing rifles or shotguns under the Federal Gun Control Act, (b) the owner has a relevant pending court disposition, (c) the owner is a subject of an order of protection, (d) the owner has a relevant Nassau County arrest history, (e) domestic incidents have occurred since the time of the confiscation or voluntary surrender, or (f) there are other extenuating circumstances that indicate that the longarms should not be returned.” Juzumas, 417 F. Supp. 3d at 182 n.6.

5 II. Facts 3

Juzumas, a customs broker and resident of Nassau County, applied for and

received a pistol license from the County in January 2003. In May 2008, Juzumas

was arrested for conspiring to import controlled substances. The arresting officer

confiscated his pistol license and pistols. In September 2008, the County

suspended Juzumas’s pistol license based on the May arrest. Soon after his license

suspension, law enforcement officers collected Juzumas’s long guns, but returned

the long guns to him a few weeks later. Almost four years later, in June 2012,

Juzumas pleaded guilty to a misdemeanor conspiracy to defraud the United

States, in violation of

, in connection with his 2008 arrest.

In November 2015, three years after his guilty plea and seven years after his

initial license suspension, the County sent Juzumas a letter stating that his pistol

license had been revoked. It identified three bases for the revocation: (1) “[a]rrest

history,” (2) “[c]onviction of violation title 18 USC 371 [sic],” and (3) “[l]ack of

good moral character.” Joint Appendix (“JA”) at 58. It further advised that, as

“directed by New York State Penal Law section 400, and the New York State

Secure Ammunitions and Firearm Enforcement Act [SAFE Act], you are

prohibited from possessing firearms, rifles, shotguns.”

The County’s letter

informed Juzumas of several options for disposing of his weapons: “a transfer of

ownership to a properly licensed individual as mandated by the NY Safe Act, sale

3The facts are taken from the district court’s decision. Except as noted, they are undisputed.

6 to a New York State licensed gun dealer; or request the destruction of the

firearm(s).”

After receiving the letter, Juzumas made gifts of his long guns to his son‐in‐

law, to a “hunting buddy,” and to a friend. Special App’x 6. (In light of the 2008

pistol license suspension, he no longer possessed a pistol.) He then unsuccessfully

attempted to appeal the pistol license revocation using County administrative

processes. He represented to the district court that he had not tried to buy long

guns since his license was revoked.

III. Procedural History

In May 2017, Juzumas sued Defendants in the United States District Court

for the Eastern District of New York. He alleged that they violated his First,

Second, Fourth, and Fourteenth Amendment rights by requiring the surrender of

his long guns upon revocation of his pistol license, by conditioning his

reacquisition of long guns upon the issuance to him of a new pistol license, and by

denying his application for a new license on the ground that his misdemeanor

conviction was a “serious offense” within the meaning of Penal Law § 265.00(17).

Issue was joined and the parties cross-moved for summary judgment. 4

The district court granted judgment to the County on Juzumas’s Second

Amendment claim, finding that the County did not infringe Juzumas’s right to

bear arms in any way not required by the state law, whose constitutionality

Juzumas had not challenged. The district court reasoned that, through its policy

4While the cross-motions were pending, Juzumas abandoned his First Amendment and conspiracy claims against the County.

7 requiring surrender of the license and longarms, the County was merely enforcing

Penal Law § 400.00(11). The district court dismissed Juzumas’s Fourth

Amendment claim, finding no governmental seizure because Juzumas voluntarily

“gave away” his long guns. Juzumas, 417 F. Supp. 3d at 187–88. It agreed with

Juzumas, however, on his Fourteenth Amendment claim, concluding that he

should have received a hearing before being required to permanently cede

possession of his long guns. 5

The district court granted summary judgment to the County on Juzumas’s

Monell claims arising from his Second and Fourth Amendment allegations. It

briefly addressed Juzumas’s claim that the County’s open-ended prohibition on

his possession of longarms contravened his Second Amendment rights by

commenting that “[a]t oral argument, counsel for the County said that the County

no longer uses the [revocation] letter that the plaintiff received, and that it is now

clear that someone whose pistol license has been revoked, and surrenders

longarms at the time of the revocation, is free after the confiscation of his longarms

to go out and purchase other longarms.” Juzumas, 417 F. Supp. 3d at 183 (internal

footnote and quotations omitted). The court noted that, apart from the statement

made at oral argument, “[t]he County did not explain how the plaintiff would

have learned of the policy change, or the extent to which a background check,

which would have alerted a gun dealer that the plaintiff’s license had been

revoked, would have been an impediment to purchasing a longarm.” Id. It further

observed that “[a]t oral argument, counsel for the County conceded that the

5 The parties later settled this Fourteenth Amendment claim and the district court dismissed it with prejudice before entering final judgment.

8 plaintiff’s continued possession of his longarms did not pose any danger to the

community.” Id. at 190.

Juzumas appeals the district court’s grant of summary judgment to the

County on his Second and Fourth Amendment claims.

DISCUSSION 6

I. Second Amendment Claims

Juzumas argues that Nassau County’s policy regarding the surrender and

reacquisition of long guns is homegrown and not merely an enforcement of state

law. First, he reads state law to require the surrender of long guns only when the

revocation of a pistol license is based upon the factors specifically mentioned in

Penal Law § 400.00(11), and not when based on any of the other reasons set forth

in the rest of Penal Law § 400.00. In other words, he would limit the tethering

provision to the reasons for revoking a pistol license that are specifically

enumerated (and not merely referred to) in Penal Law § 400.00(11). He urges that

the County’s policy extends beyond the mandates of state law and in doing so

violates his right under the Second Amendment to possess long guns. Second, he

contests the County’s position—in effect when the County required the surrender

6 The standard of review here is well known. “We review de novo a district court’s order granting summary judgment, construing the evidence in the light most favorable to the non‐moving party. As relevant here, we also review de novo the district court’s legal conclusions, including those interpreting and determining the constitutionality of a statute. Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate where there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” New York State Rifle & Pistol Ass’n, Inc. v. Cuomo,

(2d Cir. 2015) (internal quotation marks and citations omitted).

9 of his longarms in 2015 but now perhaps abandoned—that, despite the absence of

a state licensing regime for longarms, he is prohibited from possessing a longarm

unless and until he applies for and obtains a new pistol license. We address each

contention in turn.

A. Does state law require surrender of longarms upon revocation of pistol license?

As to his first argument, we conclude that Juzumas misreads Penal Law

§ 400.00. The subsection of Penal Law § 400.00 that addresses long gun surrender

provides that in “any instance in which a person’s license is suspended or revoked

under paragraph (a) or (b) of this subdivision . . . any and all firearms, rifles, or

shotguns owned or possessed by such person shall be surrendered.”

(11)(c). Thus, by the statute’s express terms, when an individual’s

pistol license is suspended or revoked for any reason set forth in Penal Law

§ 400.00(11)(a) or (b), the licensee must surrender his long guns.

Penal Law § 400.00(11)(a) does the work in Juzumas’s case: it covers the

reasons Juzumas’s pistol license was revoked. It provides that “a licensee at any

time becoming ineligible to obtain a license under this section shall operate as a

revocation of the license.” Id. § 400.00(11)(a) (emphasis added). In other words,

under subsection (a), any change in the licensee’s life that would have resulted in

the denial of her application for a pistol license (had she applied at the time of the

change) effects a revocation of the license. Thus, the question presented by

Juzumas turns on the meaning of the phrase “under this section” in Penal Law

§ 400.00(11)(a). If that phrase refers to the whole of Penal Law § 400.00 and any of

the reasons stated in § 400.00 that a person may be ineligible to obtain a handgun

10 license, then the County’s policy is congruent with state law. Juzumas contends,

however, that “this section” refers to Penal Law § 400.00(11) only, and not to Penal

Law § 400.00.

It takes no leap of logic to realize that the County is correct in arguing that

the phrase “this section” refers to the whole of Penal Law § 400.00 and not merely

its subsection (11). In reaching that conclusion, we look first to the text of the

statute. Matter of Peyton v. N.Y.C. Bd. of Standards & Appeals,

, 279

(2020). The first hint occurs in the title of § 400.00, which is identified by the

symbol “§,” a mark well understood to mean “section.” The second indication is

found in the language of the Penal Law: Section 400.00(11)(c) refers to itself as a

“subdivision.” It states, “[i]n any instance in which a person’s license is suspended

or revoked under paragraph (a) or (b) of this subdivision, such person shall surrender

such license to the appropriate licensing official and any and all firearms, rifles, or

shotguns owned or possessed by such person shall be surrendered.”

(11)(c) (emphasis added). We take these words and symbols for their

plain meaning: the legislature intended the word “section” as used in § 400.00(11)

to refer to Penal Law § 400.00. See People v. Pabon,

(2016).

The structure and legislative history of Penal Law § 400.00 also support the

County’s reading. See Nadkos Inc. v. Preferred Constr. Ins. Co. Risk Retention Grp.

LLC,

, 7–11 (2019) (looking at the plain text, statutory structure, and

legislative history when interpreting a statute). The various reasons why a person

may be ineligible for a pistol license appear throughout § 400.00. The operative

clause in Penal Law § 400.00(11)(a)—“or a licensee at any time becoming ineligible

to obtain a license under this section”—was added in 2013 by the New York State

11 Secure Ammunition and Firearms Enforcement Act (the “SAFE Act”). The other

reasons for losing a pistol license that are enumerated in the same subsection (that

is, being convicted of a felony or serious offense and becoming subject to a

protective order) were already in place when the SAFE Act was passed. The

operative language added by the SAFE Act would thus be superfluous if it did not

refer to the additional grounds for ineligibility enumerated in other subsections of

Penal Law § 400.00. Cf. Leader v. Maroney, Ponzini & Spencer,

(2001) (“meaning and effect should be given to every word of a statute”). 7

In requiring Juzumas to surrender his longarms after his conviction, Nassau

County was reasonably applying state law, not crafting its own independent

firearm surrender policy untethered to the Penal Law. As the district court noted,

our opinion in Vives establishes the framework for assessing asserted

constitutional violations arising from municipal enforcement of state law. See

. There, we set out a two-part test that looks generally to the amount of

7We have not located a case in which a plaintiff asserted claims against a county that are analogous to those made by Juzumas. Previous decisions made in related contexts, however, lend support to the County’s position. For example, New York courts appear to frequently affirm pistol license revocations under Penal Law § 400.00(11) without referencing the reasons for revocation that are specifically mentioned in that subdivision. See, e.g., Matter of Derry v. Fufidio,

(2d Dep’t 2021) (upholding revocation of a pistol license where the licensee’s 11-year-old son posted on social media a video of himself brandishing a pistol); Matter of Nash v. Nassau Cty.,

(2d Dep’t 2017) (upholding revocation of a pistol license after licensee was acquitted of criminal charges). These decisions imply an understanding of the phrase “or a licensee at any time becoming ineligible to obtain a license under this section,”

(11)(a), that encompasses the other reasons that may render a person ineligible under Penal Law § 400.00 to obtain a pistol license. These include, for example, failure to meet the requirement of “good moral character,” id. § 400.00(1)(b), and the existence of “good cause . . . for the denial of the license,” id. § 400.00(1)(n).

12 autonomy enjoyed by the municipality in effectuating the policy in question. See

id. First, we ask whether the municipality had a “meaningful choice” as to whether

it would enforce the law. Id. If it did, then we ask whether the municipality

adopted a “discrete policy” to enforce the law that represented a “conscious

choice” by one of its policy makers. Id. If both conditions are met, then the

municipality exercises a sufficient degree of autonomy to face liability for its policy

choices.

In Vives, we remanded for further fact-finding on the question whether the

municipality had a “meaningful choice” as to whether it would enforce the statute.

We cautioned that the statute in question did “not constitute such a mandate

because it simply defines an offense without directing municipal officials to take

any steps to act when the statute is violated.” Id. That is far from the case here:

Penal Law § 400.00(11)(c) directs that long guns “shall be removed and declared a

nuisance” in the event that they are not surrendered upon the suspension or

revocation of a pistol license. The language following “shall” in a statute is

“mandatory, not precatory.” See Mach Mining, LLC v. EEOC,

(2015). This mandatory language ends our inquiry. Juzumas’s dispute rests with

the state law, whose constitutionality he has not challenged.

B. Is the County’s alleged policy conditioning lawful longarm possession on reinstatement of a pistol license consistent with the Second Amendment?

Juzumas also challenges the County’s policy, as described in its 2015

revocation letter, that the revocation of his pistol license entails the loss of his right

to possess longarms again until the County issues him a new pistol license. The

13 state law, he submits, speaks only to the prompt surrender of longarms that are in

the possession of a person whose pistol license is suspended or is revoked “at the

time” of the suspension or revocation. Reply Br. at 2. As explained above, Penal

Law § 400.00(11) provides that a person whose pistol license has been revoked for

any of the reasons provided in § 400.00 “shall surrender such license to the

appropriate licensing official and any and all firearms, rifles, or shotguns owned

or possessed by such person shall be surrendered to an appropriate law

enforcement agency.”

(11)(c). The state law does not by

its terms prohibit such a person from ever possessing a longarm thereafter, nor

does it expressly condition renewed longarm possession on the issuance of a new

pistol license. To the extent that Juzumas accurately interprets the County’s policy

as effecting an enduring ban on longarm possession by a person whose pistol

license was revoked, we agree with him that the policy goes beyond what state

law requires. The district court did not address this aspect of Juzumas’s challenge,

however, and determined only that it was “not clear” whether Juzumas was

permitted to possess long guns again under the County’s policy. Juzumas, 417 F.

Supp. 3d at 182 n.5, 183.

Throughout this litigation, the County has offered inconsistent declarations

about its policy on post–license revocation longarm possession. As described

above, the County advised Juzumas in November 2015 that he was precluded

from possessing longarms until his license was reinstated, an event that cannot

occur until at least five years after the revocation. At deposition, a Nassau County

14 Police Department (“NCPD”) lieutenant testified variably on the question. 8 The

NCPD Procedure OPS 10023, “Removal and Disposition of Weapons—Domestic

8 Lieutenant Timpano testified as follows in response to questioning by Juzumas’s counsel: Q. Is it the position of the Nassau County Police Department then that if any individual has a pistol license that is suspended or revoked, that they automatically lose their right to possess shotguns or rifles? A. That’s correct. Q. It doesn’t matter what the ground was for the suspension or the revocation of their pistol license; is that correct? A. That’s correct. JA 153. And then he testified, somewhat confusingly: Q. And they can only—the individual would only be able to lawfully possess long guns after they reapplied for their pistol license and that application was granted? A. That is correct. Q. And what criteria does the pistol license unit use to determine whether an individual’s long guns are returned to them once they reapply for the pistol license? A. I don’t understand the question. Q. In other words, the five years—someone’s pistol license is revoked and five years goes by and they reapply for their pistol license, then is it the case that the pistol license division is making a determination of whether the individual can lawfully possess handguns or long guns based on the same criteria? A. If at any point they no longer become ineligible to be in possession of a firearm, they can be in possession of long guns, as well as a handgun, if they get a pistol permit. You don’t need a pistol permit by itself to get a—to have a long gun. However, if your pistol license is revoked, then during that revocation period, you can be in

15 Incidents/Threats to Public Safety,” see supra note 2, describes a process for a

“Rifles and Shotguns Investigation” to be conducted by a “Precinct Domestic

Incident Liaison Officer” after surrender of rifles and shotguns. 9 JA 295. It

provides that the officer’s job is to “[i]nitiate[] an administrative review to

determine if a legal impediment exists not to return confiscated rifles and

shotguns.” Id. (emphasis in original). It does not define “legal impediment,” but

it cites

(the Federal Gun Control Act), Penal Law § 265 (“Firearms

and other dangerous weapons”), 10 and Penal Law § 400 (“License to carry”) as

relevant. It elsewhere places a duty on the officer to “[d]etermine[] if any of

[certain listed] conditions exist” as part of the inquiry on which the return of

firearms depends. Id. at 294, 296. It then lists these conditions as bearing on the

return of rifles and shotguns:

a. the owner is prohibited from possessing rifles or shotguns under the Federal Gun Control Act, b. the owner has a relevant pending court disposition, c. the owner is a subject of an order of protection, d. the owner has a relevant Nassau County arrest history,

possession of a long gun. If a person reapplies and they get their pistol license back, then they can be in possession of a long gun. Id. at 186–87.

9The stated effective date of OPS 10023 is “5/11/2012,” before the SAFE Act was enacted, but in this litigation the County appears to have relied on it without qualification.

10Penal Law § 265.01, “Criminal possession of a weapon in the fourth degree,” makes it a crime for persons who have been “convicted of a felony or serious offense” to possess such guns. Id. § 265.01(4); see also

(17) (defining “serious offense”). It also criminalizes possession by persons who are “certified not suitable to possess a rifle or shotgun.”

(6).

16 e. domestic incidents have occurred since the time of the confiscation of voluntary surrender, f. other extenuating circumstances which indicate that rifles and shotguns should not be returned.

. Perhaps this list can be read as setting forth the relevant “legal

impediments,” but the phrasing of condition (f), “other extenuating

circumstances,” is so broad as to make it hard to call it a “legal impediment.” If

no legal impediment exists, however, then the written NCPD policy does not

appear to prohibit a licensee from acquiring new long guns even if his or her pistol

license was and remains revoked. See

at 301 ¶ 26.

In its submissions to the district court, the County described its policy

according to the terms of OPS 10023 and averred that this policy “was in effect,

and was applied to Plaintiff, when Plaintiff’s pistol license was revoked by [the

County].”

at 301 ¶ 27. But, as mentioned above, the County declared at oral

argument in the district court that it “no longer uses the letter that the plaintiff

received,” and that it was at that point “clear” that a person whose longarms were

surrendered after license revocation is “free . . . to go out and purchase other

longarms.” Juzumas, 417 F. Supp. 3d at 183; see id. at 182 n.5, 183 (recognizing that

the County’s policy appeared to have changed during the course of the litigation).

No new standard revocation letter stating the policy or other document reflecting

a new policy was presented by the County. Id. at 183 n.11.

In its brief on appeal, the County submits that “[i]f no legal impediment

exists, NCPD does not automatically prohibit a licensee from possessing long guns

even if his or her pistol license is revoked.” Appellee Br. at 11 (discussing

administrative review process under OPS 10023). It adds that “[i]f no such

17 impediment existed, NCPD would not automatically prohibit [Juzumas] from

possessing long guns even if his pistol license was still revoked, as possession of a

pistol license and possession of long guns are subject to two (2) separate

determinations based upon two (2) distinct standards of review.” Id. at 12–13, 14.

But the County also declares without qualification that “[t]he SAFE Act amended

Penal Law § 400.00(11) to include the prohibition of ownership of longarms by

individuals whose pistol license were suspended or revoked.” Id. at 19 (emphasis

added).

Our Court was presented with similarly inconsistent assertions on Nassau

County’s longarm possession policy in concurrent litigation. In Henry v. County of

Nassau,

(2d Cir. 2021), we heard a parallel challenge to the County’s

policy that was mounted by another individual who was required to surrender his

firearms and longarms after losing his pistol license based on an alleged domestic

incident. 11 In reversing the district court’s grant of a motion to dismiss, we

observed that the County’s written policies were such that the plaintiff there

“cannot apply for reinstatement of his pistol license—or possess any firearms—

until” at least “five (5) years from the date or revocation or from the appeal

decision upholding revocation, whichever is later.”

. As did the district

court here, however, we noted that “counsel for the County announced a change

in the County’s position [in this respect] at oral argument by claiming that [the

11Our Court conducted oral argument in Henry in October 2020; the district court conducted oral argument in this case in September 2019.

18 plaintiff] is free to purchase longarms.”

at 330 n.2. 12 Evaluating the absolute

prohibition that the plaintiff had pleaded, we determined that such a policy—if

proven—would impose a “substantial burden” on the plaintiff’s Second

Amendment rights and therefore be subject to heightened scrutiny.

.

In his post-argument briefing addressing Henry, Juzumas appears to

consider the County’s absolute prohibition on longarm possession to still be in

effect and targets it with his Second Amendment challenge. 13 The County, in

contrast, cites a change in its policy from an absolute prohibition to the virtual

opposite, writing, “[T]he Deputy County Attorney advised Judge Donnelly that

the Police Department subsequently changed its interpretation of § 400.00, so that

any person whose pistol license was revoked was free to obtain longarms (other

than the longarms that were initially confiscated).” Appellee Ltr. Br. at 3 (Aug. 25,

2021). Having twice reversed its basic position, the County has yet to provide a

complete description of when it will be lawful for Juzumas to reacquire longarms.

It proposed that “these facts will be explored and a full determination regarding

12 We continued, “The County’s reversal at oral argument does not affect our decision in this appeal because Henry plausibly alleged that the County’s policy was to forbid firearm ownership completely after the revocation of a pistol license . . . .” Henry,

n.2.

13In his post-argument briefing, Juzumas makes the additional argument that the County could only bar him from possessing longarms if he were guilty of a “serious offense,” as defined by Penal Law § 265.00(17), and therefore ineligible for possession of any firearms. See Appellant Ltr. Br. at 4–5 (Aug. 25, 2021). His misdemeanor offense, he avers, is not within the category of per se disqualifying “serious offenses” that would make him ineligible for possession under state law. Id.

19 them and their application to any claim, pursuant to the Second Circuit[’s]

analysis, will be made,” presumably on remand. Id. at 6.

In light of the absence of explicit state law constraints on Juzumas’s renewed

possession of longarms, the shapeshifting record as to the County’s actual policy,

and the constitutional nature of Juzumas’s challenge to the policy that was applied

to him, we find it necessary to vacate the district court’s decision in this respect

and remand the matter for further fact-finding and adjudication of this aspect of

the Second Amendment challenge.

II. Fourth Amendment Claim

Juzumas’s Fourth Amendment claim fails for the same reason that his

Second Amendment claim regarding the County’s policy requiring longarm

surrender fails. As explained in Section I.A above, this aspect of the County’s

policy constituted a straightforward enforcement of Penal Law § 400.00(11), which

requires a person to surrender his longarms when his pistol license is revoked for

any of the reasons provided in § 400.00. To the extent that the County was merely

complying with a state directive that is not challenged here, the County is not the

proper defendant to Juzumas’s Fourth Amendment claim. See Vives,

.

Even if the County were the proper defendant to this challenge, it is at best

uncertain that the County “seized” his longarms within the meaning of the Fourth

Amendment at all, much less unreasonably seized them. See, e.g., Fernandez v.

California,

(2014) (“[T]he ultimate touchstone of the Fourth

Amendment is reasonableness.”); Kaminsky v. Schriro,

, 72 (2d Cir.

2019) (summary order) (holding that a gun owner who surrendered his firearms

20 to police officers after being notified that, as a felon, he was prohibited from

possessing them could not state a Fourth Amendment claim when they were not

returned). Cf. Maryland v. Macon,

(1985) (holding that an

undercover officer’s purchase of adult magazines was not a seizure of the

magazines from a vendor). While the government may seize a person by a mere

“show of authority” so long as the person submits, Brendlin v. California,

(2007), the “show of authority” doctrine does not appear to have been

extended to cover the seizure of personal effects. See Maureen E. Brady, The Lost

“Effects” of the Fourth Amendment: Giving Personal Property Due Protection, 125 YALE

L.J. 946, 957–64 (2016) (discussing the limited jurisprudence addressing the

“effects” provision of the Fourth Amendment).

This claim was thus properly dismissed.

CONCLUSION

The order of the district court granting Nassau County’s motion for

summary judgment is AFFIRMED in part and VACATED in part, and the case

is REMANDED for further consideration of Juzumas’s challenge to the

County’s post-surrender longarm policy.

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