21-398 Taveras v. New York City

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

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 12th day of July, two thousand twenty-two.

PRESENT: DEBRA A. LIVINGSTON, Chief Judge, DENNIS JACOBS, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

ALAN TAVERAS,

Plaintiff-Appellant, v. No. 21-398

NEW YORK CITY, NEW YORK, JONATHAN DAVID, in his official capacity as Director, NYPD License Division, ASIF IQBAL, in his official capacity as Executive Director, License Division Rifle/Shotgun Section, DERMOT SHEA, in his official capacity as Police Commissioner, and all successors therein,

Defendants-Appellees. ∗ __________________________________

FOR PLAINTIFF-APPELLANT: AMY L. BELLANTONI, The Bellantoni Law Firm, PLLC, Scarsdale, NY.

FOR DEFENDANTS-APPELLEES: ZACHARY S. SHAPIRO (Richard Dearing, Claude S. Platton, on the brief), for James E. Johnson, Corporation Counsel of the City of New York.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Katherine Polk Failla, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

VACATED and the case is REMANDED for further proceedings.

In approximately 2018, Alan Taveras applied for a license to possess a rifle

or shotgun for self-protection at his residence in the Bronx, New York. Licensing

officers within the New York City Police Department denied Taveras’s

∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above.

2 application, citing his August 2011 arrest for domestic violence, a corresponding

order of protection against him, and a November 2011 domestic violence

complaint against him by the same victim. The order of protection expired in

February 2012, and the criminal charges were ultimately dropped.

Following the denial of his application for a rifle or shotgun license, Taveras

brought this action in the United States District Court for the Southern District of

New York. He alleged that the Second Amendment to the United States

Constitution protects his right to keep a rifle or shotgun at his residence, and he

sought, among other forms of relief, an injunction barring New York City (the

“City”) from denying a license because of an applicant’s “history” of domestic

violence and orders of protection when none of these incidents resulted in

conviction. See, e.g., 38 Rules of City of N.Y. § 3-03(a), (f), (g), (n) (setting forth

various grounds, all potentially applicable to Taveras, for denial of a license).

The district court dismissed Taveras’s suit. Applying what was then the

law of this Circuit, the district court explained that the challenged regulations do

not burden what we have held to be “the ‘core’ protection of the Second

Amendment,” which “is the ‘right of law-abiding, responsible citizens to use arms

in defense of hearth and home,’” because the City’s regulations restricting firearm

3 access for those with a history of domestic violence burden only those who are not

law-abiding and responsible. Kachalsky v. County of Westchester,

(2d Cir. 2012) (quoting District of Columbia v. Heller,

, 634–35 (2008)).

Consistent with the second step of the analysis dictated by this Court’s prior

precedent, the district court proceeded to apply intermediate scrutiny to the

licensing provisions at issue. See United States v. Jimenez,

(2d

Cir. 2018). Ultimately, the district court held that the City’s regulations easily

satisfy intermediate scrutiny because they are appropriately tailored toward

achieving the City’s important public-safety interest in keeping firearms out of the

hands of those with histories of domestic violence.

After this appeal was briefed and argued, however, the Supreme Court

clarified the scope of the Second Amendment and how Second Amendment claims

are to be evaluated. See N.Y. State Rifle & Pistol Ass’n v. Bruen, No. 20-843, slip op.

(U.S. June 23, 2022). In so doing, the Supreme Court expressly rejected the two-

part test that this Circuit – and many others – had been applying to Second

Amendment claims. See

slip op. at 8. Instead, the Supreme Court held that

“[w]hen the Second Amendment’s plain text covers an individual’s conduct, the

Constitution presumptively protects that conduct. The government must then

4 justify its regulation by demonstrating that it is consistent with the Nation’s

historical tradition of firearm regulation.”

slip op. at 15. Because neither the

district court nor the parties’ briefs anticipated and addressed this new legal

standard, it is appropriate for us to vacate the district court’s judgment and

remand the case for the district court to reconsider Taveras’s claim, applying in

the first instance the standard articulated by the Supreme Court in Bruen. See, e.g.,

Remand Order, Trump v. Deutsche Bank AG, No. 19-1540 (2d Cir. Dec. 14, 2020),

ECF No. 283 (remanding, following an intervening change in law, for the district

court to apply the new legal standard in the first instance).

For the foregoing reasons, we hereby VACATE the judgment of the district

court and REMAND the case for further proceedings.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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