OPINION AND ORDER In 2018, Joseph Srour applied to the New York City Police Department (“NYPD”) License Division for a permit to possess rifles and shotguns in his home, and the following year he applied for a license to possess handguns in his home. Both applications were denied in 2019, with the License Division’s Appeals Unit citing Sections 3-03 and 5-10 of Title 38 of the Rules of the City of New York (“RCNY”), and specifically pointing to Srour’s prior arrests, bad driving history, and supposedly false statements on the applications as the reasons for denial. Since then, both Sections 3-03 and 5-10 have been amended. Srour brings this action against New York City and Edward A. Caban1 in his official capacity as the Commissioner of the NYPD and therefore the City’s firearms licensing official, challenging those denials. Srour contends that the pre-amendment versions of Sections 3-03 and 5-10, as well as other related provisions of the New York City Administrative Code, run afoul of the Second Amendment. While Srour originally alleged that these provisions are unconstitutional both facially and as applied to him, Srour since has abandoned his as-applied challenges and now argues only that the provisions are facially invalid under the Second Amendment. Before the Court is Srour’s motion for summary judgment, which seeks, among other relief, a declaration of the unconstitutionality of these provisions and a permanent injunction preventing Defendants from enforcing them. Under the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), this Court considers, first, whether the conduct at issue is covered by the text of the Second Amendment, and if so, second, whether the challenged New York City regulations are “consistent with the Nation’s historical tradition of firearm regulation.” Id. at 2130. For reasons that follow, the Court finds that the conduct at issue — the possession of firearms for lawful purposes — plainly falls within the text of the Second Amendment. Indeed, the Second Amendment safeguards “the right of the people to keep and bear Arms.” U.S. Const. amend. II. Thus, a presumption of constitutional protection is triggered. Further, Defendants have failed to show that the broad discretion afforded to licensing officials under subsections (a)(2) and (a)(9) of New York City Administrative Code Section 10-303, which imposes the permit requirement for rifles and shotguns, and the pre-amendment versions of Sections 3-03 and 5-10 of Title 38 of the RCNY, is consistent with the history and tradition of firearm regulation in this country. Each of these provisions allows for the denial of a firearm permit upon a City official’s determination of the applicant’s lack of “good moral character” or upon the official’s finding of “other good cause” — broad and unrestrained discretionary standards which Defendants have not shown to have any historical underpinning in our country. And because that unconstitutional exercise of discretion occurs every time a licensing official applies or has applied these provisions, they each are facially unconstitutional. For the reasons more fully discussed below, the Court grants Srour’s motion for declaratory and injunctive relief with respect to subsections (a)(2) and (a)(9) of New York City Administrative Code Section 10-303. The Court also grants summary judgment in Srour’s favor on his challenges to the prior versions of Sections 3-03 and 5-10 of Title 38 of the RCNY. However, because Srour has not demonstrated that the other provision he challenges, New York City Administrative Code Section 10-310, which provides for penalties for violations of certain New York City firearms regulations, is unconstitutional in all its applications, the Court denies summary judgment with respect to that provision. I. Background A. Facts2 In 2018, Srour, a resident of Brooklyn, New York, applied to the NYPD License Division for a permit to possess rifles and shotguns in his home for self-protection. Pl. 56.1 Stmt.
1, 4; Srour Decl. 3. That application was denied on or about June 13, 2019. Pl. 56.1 Stmt. 5; Dkt. 27-2 (“6/13/19 Notice of Application Disapproval”). In its Notice of Application Disapproval, the NYPD License Division explained to Srour: “The circumstances surrounding your actions exhibited in your past question your ability to abide by the rules and regulations to possess a rifle/shotgun permit.” 6/13/19 Notice of Application Disapproval. The Notice proceeded to explain: “Based on your prior arrests for [redacted] you have shown poor moral judgment and an unwillingness to abide by the law. The above circumstances, as well as your derogatory driving record (twenty-eight moving violations and thirty license suspensions), reflect negatively on your moral character and casts [sic] grave doubt upon your fitness to possess a firearm.” Id. In 2019, Srour submitted another application to the NYPD License Division, this one for a permit to possess handguns in his home for self-protection. Pl. 56.1 Stmt. 6; Srour Decl. 4. On May 30, 2019, this application too was denied. Pl. 56.1 Stmt. 7; Dkt. 27-3 (“5/30/19 Notice of Disapproval”). That Notice of Disapproval explained that Srour’s handgun application was denied “per Title 38 of the RULES OF THE CITY OF NEW YORK §5-10…based” on Srour’s prior arrests, two criminal court summonses for “Navigational Law” violations, twenty-eight driving violations, twenty-four driver license suspensions, and six driver license revocations. 5/30/19 Notice of Disapproval. Srour timely appealed each denial to the Appeals Unit of the NYPD License Division. Pl. 56.1 Stmt. 8. Both appeals were simultaneously denied on November 7, 2019. Id. 9; Dkt. 27-4 (“11/7/19 Notice of Disapproval After Appeal”). In its Notice of Disapproval After Appeal, the License Division’s Appeals Unit detailed its reasoning for rejecting Srour’s appeals. 11/7/19 Notice of Disapproval After Appeal at 1. The Notice began with referencing the good moral character and good cause inquiries under New York State and New York City law: Section 400.00 of the New York State Penal Law states that “no license shall be issued except for an applicant…(b) of good moral character…and; (n) for whom no good cause exists for the denial of the license.” Title 38 of the Rules of the City of New York (RCNY), Section 5-10, provides a list of factors to be considered in assessing moral character and “good cause.” See, also, 38 RCNY 3-03. Id. The Notice proceeded to articulate particular findings in support of its ultimate determination that Srour lacked good moral character and that good cause existed to deny him either a firearm or rifle permit or a handgun license. It first explained, under a section titled “Arrest History”: Pursuant to 38 RCNY 5-10 and 38 RCNY 3-03, arrests may be grounds for disapproval of a handgun license or rifle/shotgun permit. On June 7, 1995, Mr. Srour was arrested for [redacted] and on July 11, 1996, he was arrested for [redacted]. Although these cases were dismissed, pursuant to Criminal Procedure Law Section 160.50(1)(d)(3), the License Division may consider the circumstances surrounding these arrests. While these arrests are not recent, Mr. Srour’s having been arrested twice, as well as the violent nature of the circumstances surrounding the [redacted] arrest, are factors supporting denial of his applications. Id. Under the next section, titled “Failure to Disclose,” the Notice contended that Srour failed to mention those arrests on his firearms applications: Failure to disclose arrests on the application is a denial ground. 38 RCNY 5-10(e), 38 RCNY 3-303(e), [sic] as is a displaying [sic] a lack of candor or a failure to cooperate with the background investigation. Section 38 RCNY 5-10(n), 38 RCNY 3-03(n). The firearms applications require the applicant to indicate whether he or she was ever arrested, even if the arrest was dismissed, sealed, voided, or nullified by operation of law. However, Mr. Srour failed to disclose either of his two arrests on his application. He checked “No” in response to the question asking if he had ever been arrested (even if sealed, etc.). In addition, in connection with his Rifle/Shotgun application, Mr. Srour [] signed and notarized an Arrest Information Affidavit stating that “By signing this document, you acknowledge that you understand the requirement to disclose all information relating to your arrest history. Any omission of a previous arrest or any false statements made in relation to your application for a Rifle/Shotgun permit is grounds for denial of a permit.” Mr. Srour only provided required statements describing the arrests after he had submitted his application, and the investigator, who had independently learned of the arrests, had requested the statements. Therefore, this submission does mitigate [sic] the negative impact on his application stemming from Mr. Srour’s failure to disclose his arrests on his application, as required. Even though these were sealed and are not recent, he was very clearly instructed in the application to disclose them and failed to do so. Mr. Srour’s failure to disclose on his applications that he had been arrested for [redacted], and for other charges, demonstrates a lack of candor and is a strong ground for disapproval of his applications. 38 RNYC 3-03(e) and 5-10(e). Id. at 2. Then, under a section titled “Driver History,” the Notice explained its consideration of Srour’s driving record: Pursuant to 38 RCNY §§3-03(h) and 5-10(h), an applicant who has a “poor driving history, has multiple driver license suspensions, or has been declared a scofflaw by the New York State Department of Motor Vehicles,” may be denied a rifle/shotgun permit and/or handgun license. Mr. Srour’s driving history includes 28 moving violations from June 1991 to December 2013, 24 license suspensions between August 1991 and December 2000, and six license revocations between July 1992 and January 1995. In addition, he received two summons [sic] for Navigational Law violations in August 2012 and in August 2015, both of which were for the same offense (while on a jetski), showing a disregard for the rules even after being informed of them. Notably, Mr. Srour’s Navigational Law violations occurred recently. Mr. Srour’s poor driving history demonstrates an inability to abide by laws and regulations, shows a lack of moral character, and provides an additional ground for denial. Id. The Notice concluded: The circumstances surrounding Mr. Srour’s two arrests, his failure to disclose his arrests on the Handgun and Shotgun/Rifle Applications, and poor driving history portray a lack of good moral character and disregard for the law. For all of the reasons stated above, good cause exists to deny his applications and his appeal of the disapproval of [his] Premises Residence handgun license application as well as the Rifle/Shotgun Permit application is denied. Id. at 2-3. B. Procedural History Srour initiated this case on January 2, 2022 against the City of New York and then-Commissioner Sewell, seeking monetary, declaratory, and injunctive relief. Dkt. 1 (“Compl.”) at 32-33. In his Complaint, Srour sought declarations that “New York City’s discretionary and permissive licensing of handguns under 38 RCNY 5; and rifles and shotguns under 38 RCNY 3; and New York City Administrative Code 10-303 violate the Second Amended facially and as applied to” him, id. 2, and more specifically that New York City Administrative Code Section 10-303(a)(2) and (a)(9) (First Cause of Action); Section 5-10 (a), (e), (h), and (n) of Title 38 of the RCNY (Second Cause of Action); Section 3-03(a), (e), (h), and (n) of Title 38 of the RCNY (Third Cause of Action); and New York City Administrative Code Section 10-310 (Fourth Cause of Action) are unconstitutional, both facially and as applied. Id.
