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January 30, 2013
  Osterweil v. Bartlett - Second Circuit
Headline: Second Circuit Certifies Question to New York Court of Appeals Concerning New York State Handgun Licensing Requirement
Area of Law: Constitutional Law/Civil Procedure

Issue(s) Presented: Does N.Y. PENAL LAW § 400.00(3)(a) require an applicant for a handgun license to be a domiciliary of New York State?

Brief Summary: Alfred G. Osterweil, who owns a part-time residence in New York but had moved his primary residence to Louisiana, applied for a handgun license in New York. The county licensing officer denied Osterweil's application for a handgun license because Osterweil was no longer domiciled in New York, construing the use of the word "resides" in N.Y. PENAL LAW § 400.00(3)(a), to require an applicant for a handgun license to be a New York domiciliary. Osterweil brought suit in the United States District Court for the Northern District of New York alleging that New York State's statutory handgun licensing requirement violated the Second and Fourteenth Amendments of the United States Constitution. The district court rejected Plaintiff's constitutional claims, granting summary judgment for the State.

The Second Circuit elected not to decide the constitutional question, instead certifying the question of whether § 400.00(3)(a) imposed a domicile requirement to the New York Court of Appeals. The Second Circuit found certification was appropriate because the the Court of Appeals has not yet addressed the issue and it was impossible to predict, via other New York decisions, how the Court of Appeals would resolve this dispute over the interpretation of a state statute. The Court also determined that whether § 400.00(3)(a) imposed a domicile requirement was of importance to New York State, requiring value judgments and public policy choices that should be made by the New York alone. Justice O'Connor noted the State's important interest in the regulation of firearms as "paramount issue of public safety," especially in light of the recent events in Newtown, Connecticut. Finally, the Second Circuit found certification appropriate because resolution of the domicile issue would be dispositive in the present case given that if the statute is interpreted as requiring only that the applicant reside, rather than be domiciled, in New York, Osterweil would meet the requirement, concluding the litigation. The Court also disagreed with Osterweil that the certification procedure would result in unnecessary delay because the State had agreed to seek to expedite the certification process, and because the alternative option, Pullman abstention, would produce an even greater time delay.

To read the full opinion, please go to:

Panel: Chief Circuit Judge Jacobs, Circuit Judge Walker, and U.S. Supreme Court Justice (Ret.) O'Connor.

Argument: 10/26/2012

Date of Issued Opinion: 1/29/2013

Docket Number: 11-2420-cv

Decided: Question Certified to the New York Court of Appeals.

Case Alert Author: Benjamin F. Krolikowski

Counsel: PAUL D. CLEMENT, Bancroft PLLC, Washington D.C. (D. Zachary Hudson, Bancroft PLLC, Washington, D.C.; Daniel L. Schmutter, Greenbaum, Rowe, Smith & Davis LLP, Woodbridge, New Jersey, on the brief), for Plaintiff-Appellant Alfred G. Osterweil; SIMON HELLER, Assistant Solicitor General, New York State Office of the Attorney General, New York, New York, for Defendant-Appellee George R. Bartlett, III.

Author of Opinion: U.S. Supreme Court Justice (Ret.) O'Connor.

Supervisor: Professor Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 01/30/2013 07:34 AM     2nd Circuit  

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