NYPD Denies FFL 01s Business Licenses

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mrreynolds

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I apologize for the long post.

01. Greetings I am an FFL 01 in the City of New York. The NYPD License Division is prohibiting FFL 01s from selling any firearms at "gun shows," "mail-order" or via "interstate (e)commerce" by denying FFL 01s the "Carry Business License" required to "handle and/or transport" inventory as well as the state "Firearms Dealers License" which is required to sell "handguns and/or ammunition."

02. Whereas, withholding these licenses prohibits “Federal Firearms Licensees 01” from selling firearms “intrastate and/or interstate” via “mail-order” and/or “e-commerce” or “intrastate” at “gun shows” in the entire state and Country. Prohibiting “Federal Firearms Licensees 01” in the City of New York from selling firearms "interstate" to “law-abiding” citizens outside of the State of New York via “mail order” or “(e)commerce” is a clear violation of the “(Dormant) Commerce Clause.”

03. Due to zoning laws, I cannot maintain inventory at my licensed “place of business.” This requires transporting inventory to and from “off-site” storage locations. Within the City of New York under Title 38 – § 4-03(k) and “inside” or “outside” of the City of New York under Title 27 – CFR § 478.50(a). I filed a "pro se" Article 78 to constitutionally challenge Title 38 - RCNY and NYC Administrative Code which are used by the NYPD License Division to prohibit these types of firearm sales by FFL 01s. The NYC Business Website states to receive a “Firearms Dealer's License.”

(a) About: A “Firearms Dealer License” is “required” for all businesses that sell handguns and/or ammunition in the City of New York. See, cknight.pw/2QPGW6x.

(b) Apply: Each applicant “must” have a “Class 1 Federal Firearms License (FFL).” See, cknight.pw/2CLgh7Q.

(c) Operating & Renewing: (5) All employees handling inventory “must possess” licenses or permits issued by the License Division, such as a “Carry Business License” or a Premises Business License in order to handle inventory. See, cknight.pw/2NzaROh.​

04. I will only reference the “Carry Business License” under Title 38 - RCNY § 5-01(b) as applicable. Because it is the only “Carry Business License” available that allows an “FFL 01” to lawfully travel “unrestricted” with firearms to “sporting arms events” i.e., “gun shows" and/or “off-site” firearms storage locations under, Title 27 - CFR § 478.50(a), § 478.100(a)(1), NYS PL §§§ 400.00(1)(n)-(2)(f)-(8) and Title 38 - RCNY § 4-03(k).

05. The NYPD License Division also refuses to issue a state firearms dealers license to FFL 01s who don't possess a "brick & mortar" store. Although possession of a "brick & mortar" store is not a requirement of federal law or NYS PL § 400.00(1)(n) in the State of New York.

(a) Once the Court determines that any law discriminates against “interstate commerce,” it must then determine whether the law “advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.” If it does, then the law is constitutional; if not, the law is void. Importantly, this test is a high hurdle to clear. It is so rarely overcome, in fact, that the Court frequently refers to it as a “virtually per se rule of invalidity.”​

06. As such, I cited the decisions in Granholm v. Heald, 544 U.S. 460, 473 (2005), and Chwick v. Mulvey, 2010 NY Slip Op 09911.

(1) The first paragraph of my Petition clearly states that I am “not challenging” NYS PL § 400.00-(2)(f).

(2) And the second paragraph of my Petition clearly states that "As a “Federal Firearms Licensee,” hereinafter “FFL 01,” Knight is only “constitutionally” challenging “Title 38 - Rules of the City of New York and/or NYC Administrative Code.”​

07. However the closing paragraph of the judge's decision clearly states:

(a) "The bulk of Knight’s petition is devoted to his argument that the statutory framework for firearms licensing that the New York State Legislature promulgated in Penal Law § 400.00 is unconstitutional because it violates both the United States Constitution’s Second Amendment and the Equal Protection Clause of the Fourteenth Amendment. See verified petition, ¶¶ 63-326.​

08. I never challenged” any parts of NYS PL § 400.00. In fact, my "Prayer for Relief" explicitly stated that "Title 38 - Rules of the City of New York and/or NYC Administrative Code" are in violation of NYS PL § 400.00. Why would I contradict my own argument?

09. Therefore how can a New York State Supreme Court judge dismiss my case by making "post hoc" decisions based upon challenges against NYS PL § 400.00 that I never made within the body of my Article 78 Petition? The Court simply dismissed my case for illusory reasons created by the Respondent(s) and the Court out of thin air. Because there is no way that "Title 38 - Rules of the City of New York and/or NYC Administrative Code" can supersede the 1st and 2nd Amendments, Equal Protection, Due Process, Privileges and Immunities, and the (Dormant) Commerce Clause. Also, inhibition of my ability to perform work constitutes an “injury in fact” which has Article III standing in a federal court of law. Interstate commerce violations alone require "strict scrutiny" review.

10. The premise of my case is similar to NYSRPA v. The City of New York, No. 18-280 where they knew their provisions were unlawful only changing them when SCOTUS granted cert. However, my issue is a case of "first impression" which was judicially sabotaged.

11. So they unlawfully shifted my argument from constitutionally challenging "Title 38 - Rules of the City of New York and/or NYC Administrative Code" to constitutionally challenging NYS PL § 400.00 which is completely false. While completely ignoring and making no mention whatsoever of the Respondents numerous "documented false statements" and violations of federal and state law. On 10.29.2020 my Article 78 was egregiously dismissed at the state level. I have reached out to several attorneys regarding an appeal and/or filing in federal court.

12. These were two conversations I had with Alan M. Gottlieb of the Second Amendment Foundation via Facebook Messenger.

Conversation 01: 10.19.2018

Me: I hope all is well. I'm a Life Member. I have been reaching out to the SAF about some issues I'm having as an FFL 01 being unlawfully restricted from selling firearms in the State of New York. I never get a reply to any of my letters that I send to your organization. I know you're busy but hopefully I can get some feedback soon. Thank you.

AG SAF: Our legal team has been exploring the problem. It does not look like your approach will work to solve it. You are on our radar.

Me: Interesting ok thank you

Conversation 2: 10.29.2020

Me: Greetings I am an FFL 01 in NYC. The NYPD does not allow FFL 01s to sell firearms via e-commerce, mail-order, or at gun shows. A NYS Supreme Court judge just ignored my entire case disregarding the constitutional and commerce issues without even a mention of it. I need to appeal this case. Any assistance would be greatly appreciated. Thank you.

AG SAF: Cavalier, unfortunately, your case will not succeed. Our legal advisory board has gone over it and does not want to be involved.

Me: ok, The NYPD is prohibiting all FFL 01s from engaging in interstate commerce in firearms and that's a non-issue? Ok, thanks for your timely response.

AG SAF: Not a winning issue in your circuit and SCOTUS needs to hear a more far-reaching case first.

Me: Thank you.

AG SAF: Welcome.

Me: One question I'm just confused as to how an interstate commerce prohibition is something a circuit can just choose to ignore like or dislike after Granholm v. Heald, Chwick v. Mulvey, etc

AG SAF: Because they can if they do not want you to win.

Me: Even if the Appellate Court has already decided another firearms case in my favor in Chwick v. Mulvey??​

He stopped responding at that point.

12. My documents can be found at the links below.

(01) Article 78 - 151725/2020 case documents located at: My Dropbox - http://cknight.pw/article78

(02) Letter to Hon. Lindsey Graham - Chairman Senate Judiciary Committee: My Dropbox - http://cknight.pw/exhibits

(03) I understand that these are difficult times. It's not required but if you want to and can donate thank you for your kind consideration in this matter.

(04) Link: GoFundMe
 
If you’ll consider moving to Texas, (even New York, Texas) I’m confident your problems will go away.
 
mrreynolds said:
I agree but I rather fight the good fight. They can't win an interstate commerce fight in a major high-level court.
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You’re 100% correct.
But you’ll need deep pockets to fight (your own) tax dollars fighting you for a protracted period of time.
 
This is my viewpoint, I already did the heavy lifting in the creation of my Article 78 Petition. It's simple New York City cannot restrict FFL 01s from selling firearms at "gun shows" throughout the state nor can they restrict firearm sales to customers via (e)commerce out of state, that's an automatic (Dormant) Commerce Clause violation which requires "strict scrutiny." Remember NYSRPA v. The City of New York, No. 18-280? It's the same premise I just have to send my case up the judicial system no need to re-invent the wheel on this. The judge didn't even say I was wrong she just ignored me.
 
mrreynolds said:
I agree but I rather fight the good fight. They can't win an interstate commerce fight in a major high-level court.
Click to expand...
What do you consider a "major high-level court"? You are in NYC -- what Alan Gottlieb told you is exactly on-point: "Not a winning issue in your circuit and SCOTUS needs to hear a more far-reaching case first."

Notice that he said "circuit." That's the second tier for you. Your first level is the federal district court. When (not "if") you lose their, your next step is the ciscuit court of appeals. If you followed the cases that were filed by pro-2A groups in both NY and Connecticut following the post-Sandy Hook "Safe Act" (NY) and the similar legislation in Connecticut, the two cases were consolidated at the circuit court level and were heard on the same day. Both were -- to a logical individual -- strong cases. Both lost. Mr. Gottlieb is a pragmatist. In your federal court district, you are fighting a stacked deck.

Where the SAF is coming from is the same thing I encountered several years ago when I took on an anti-gun ordinance in my home town. I didn't get anywhere trying to be neighborly and discuss it civilly with the town powers that be, so I hired an attorney whose specialty is firearms and 2A law. I wanted to file a suit in federal court. Like you, I am in a state for which the federal circuit court is inherently anti-gun and anti-2A. I was advised NOT to file in federal court because we would lose and, if I could afford to appeal to the circuit court, we would also lose there. The problem with losing at the circuit court level is that it then becomes precedent that affects future cases. And THAT's why the SAF doesn't want to be part of your case. They think you will lose, and they don't want yet another anti-gun precedent on the books because that just makes future cases one notch more difficult.
 
SAF is clearly not afraid to fight and clearly knows what they are doing given their excellent record with 2A cases.

My take on the conversation is that he stopped responding at the point that he felt that it was becoming a training session.

He gave you their assessment and provided rationale, but was unwilling to delve into the differences in your cases and the cases you cite. Your own legal team should have done that for you.

Frankly, I would have stopped responding when you sent this strawman.
"The NYPD is prohibiting all FFL 01s from engaging in interstate commerce in firearms and that's a non-issue?"​

He absolutely did not say it was a "non-issue", he said that their legal advisory board felt that the case would not succeed and did not want to be involved. There's a huge difference between "it's a non-issue" and "our legal advisory board feels your case isn't winnable".
 
Ok, so your consensus is because my circuit doesn't like firearms. The NYPD a non-regulatory agency can prohibit FFL 01s in the city of New York with a federal license from selling firearms at gun shows throughout the state? Which is allowed under Title 27 - CFR § 478.100(a)(1) and NYS PL § 400.00(8). As well as prohibiting FFL 01s from selling firearms to customers out of the state via "interstate commerce" which is backed up by no less than the Supremacy Clause all because the police said so? When there is no government public safety interest involved to support this prohibition on "interstate commerce?" Interesting concept.

(a) Federal Law States: Title 27 - CFR § 478.100(a)(1): A licensee may conduct business temporarily at a “gun show” or event as defined in paragraph (b) if the gun show or event is located in the same State specified on the license: Provided, That such business shall not be conducted from any motorized or towed vehicle.

(b) State Law States: NYS PL § 400.00(8): A gunsmith or dealer of firearms may conduct business temporarily at a location other than the location specified on the license if such temporary location is the location for a “gun show” or event sponsored by any national, state, or local organization, or any affiliate of any such organization devoted to the collection, competitive use or other sporting use of firearms.

(1) The “(Dormant) Commerce Clause” involves not federal power to act but the restrictions on state power that are inherent in the Commerce Clause. There is no actual “Dormant Commerce Clause” found in the Constitution. Rather, the restrictions on state action have been inferred by the Supreme Court from the “Commerce Clause.”

(2) In Gibbons v. Ogden, 22 U.S. 1 (1824), the issue involved a state-granted monopoly that conflicted with a federal licensing law for the operation of steamboats. Ogden’s New York monopoly, according to the Court would render the federal law impotent in New York, and therefore the Supremacy Clause required the Court to enforce the federal law.

(3) Preemption applies, however, only when there is a federal law that is on point. When there is no existing federal law, the (Dormant) Commerce Clause applies to tell us what states may or may not do.

(4) The (Dormant) Commerce Clause ultimately means that because Congress has been given power over interstate commerce, states cannot discriminate against interstate commerce nor can they unduly burden interstate commerce, even in the absence of federal legislation regulating the activity.

Notice I never challenged the constitutionality of the NYS Penal Law because it doesn't inhibit me. I "only" constitutionally challenged "Title 38 - Rules of the City of New York and/or NYC Administrative Code" local policies which are preempted by the Supremacy Clause, federal and state law. The judge moved the goal post just like Lucy moved Charlie Brown's football.
 
Ok, so your consensus is because my circuit doesn't like firearms. The NYPD a non-regulatory agency can prohibit FFL 01s in the city of New York with a federal license from selling firearms at gun shows throughout the state? Which is allowed under Title 27 - CFR § 478.100(a)(1) and NYS PL § 400.00(8). As well as prohibiting FFL 01s from selling firearms to customers out of the state via "interstate commerce" which is backed up by no less than the Supremacy Clause all because the police said so? When there is no government public safety interest involved to support this prohibition on "interstate commerce?" Interesting concept.
Click to expand...
Why do your persist in this kind of behavior? Do you find that it is productive? Because in my experience, throwing strawmen back at people who are trying to engage you in good faith usually is just the opposite.
 
Quote anyone from this thread who says that: "because my circuit doesn't like firearms. The NYPD a non-regulatory agency can prohibit FFL 01s in the city of New York with a federal license from selling firearms at gun shows throughout the state? Which is allowed under Title 27 - CFR § 478.100(a)(1) and NYS PL § 400.00(8). As well as prohibiting FFL 01s from selling firearms to customers out of the state via "interstate commerce" which is backed up by no less than the Supremacy Clause all because the police said so? When there is no government public safety interest involved to support this prohibition on "interstate commerce?"

It's a very short thread. I just went back through it. No one has posted anything remotely like that.
 
I'm not understanding what you mean that's all factual under the law where is there a strawman. What did I say that was not truthful or lawful?
 
You are accusing someone on this thread of stating that:

"Because your circuit doesn't like firearms, the NYPD a non-regulatory agency can prohibit FFL 01s in the city of New York with a federal license from selling firearms at gun shows throughout the state. Which is allowed under Title 27 - CFR § 478.100(a)(1) and NYS PL § 400.00(8). Also that they can prohibit FFL 01s from selling firearms to customers out of the state via "interstate commerce" which is backed up by no less than the Supremacy Clause. And they can do this because the police said so. They can do this even though there is no government public safety interest involved to support this prohibition on "interstate commerce."

Nobody has posted anything remotely like that. That paragraph is a strawman--you are accusing someone of claiming that rather than addressing the ACTUAL posts that have been made.
 
Ok. Let's try again. What post(s) in this thread gave you the idea that the "consensus" was:
"Because your circuit doesn't like firearms, the NYPD a non-regulatory agency can prohibit FFL 01s in the city of New York with a federal license from selling firearms at gun shows throughout the state. Which is allowed under Title 27 - CFR § 478.100(a)(1) and NYS PL § 400.00(8). Also that they can prohibit FFL 01s from selling firearms to customers out of the state via "interstate commerce" which is backed up by no less than the Supremacy Clause. And they can do this because the police said so. They can do this even though there is no government public safety interest involved to support this prohibition on "interstate commerce."​
 
Once I stated that there was no accusation that part of the conversation became a "moot" point. It's no longer relevant to the discussion.
 
Is this pretty much how things went in court? :D

Ok, nevermind that.

What did your legal team say when you asked them to comment on the differences between the cited cases and your case once you had received feedback from SAF?
 
I wish you luck, but the courts in your jurisdiction tend to be (illogically) hostile to 2nd Amendment rights and anything having to do with firearms. SAF and others are trying to incrementally win and get our rights recognized. To do that, they need to carefully build precedent with winning cases, until hostile courts are required to recognize our rights. If SAF doesn't think you have a winning case (yet), it is better to hold off until we have more precedent in our favor that the courts have to deal with. It sucks when you face it personally.
If say, either find a major 2A org to support you, wait, or move out of the city.
 
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