Banning Parents from Possessing Guns Because Their Child Has Described Thoughts of “Harming Herself Using a Rope” Violated Second Amendment

From Wysocki v. Nassau County, decided Tuesday by Judge Sanket Bulsara (E.D.N.Y.):

Dennis and Lisa Wysocki were issued New York State pistol licenses by the Nassau County Police Department’s (“NCPD”) Pistol License Section (“PLS”) in September 2017 and February 2021 respectively. In 2022, both applied for and were issued unrestricted concealed-carry pistol licenses.

The Wysockis live with their minor daughter, who was in middle school in February 2023. On February 8, 2023, their daughter told a school counselor she had been feeling depressed and described past thoughts of harming herself using a rope. The counselor asked her if there were firearms in the home, and she confirmed their presence.

On February 10, 2023, the Wysockis took their daughter to the Cohen Children’s Medical Center. She was evaluated by psychiatrist Dr. Joshua Stein who concluded she “does not represent an imminent danger to self or others” and could return home. On February 11, 2023, Child Protective Services (“CPS”) caseworkers and NCPD officers visited the Wysockis’ home in response to the school report. The NCPD officers examined their gun safes, confirming that the firearms were stored in locked safes with trigger locks.

On February 13, 2023, Dennis Wysocki called the PLS and spoke with Officer Vito Scaglione (“Scaglione”) to report his daughter’s comments and the visit from the police. He relayed that the officers had examined the safes, confirmed that their firearms were properly stored, and that his daughter had been evaluated and discharged by Dr. Stein as not an imminent danger to herself or others.

During the phone call, Scaglione informed Dennis that their pistol licenses were going to be suspended given their daughter’s expressed thoughts of self-harm and that they would have to surrender their guns. That same day, the Wysockis took their firearms to a federal firearms licensee for safekeeping and went to the PLS office to provide Scaglione with a receipt confirming this transfer.

Scaglione instructed the Wysockis to prepare written statements. He also gave them each a “Notification of Pistol License Suspension” stating that their pistol licenses had been suspended in accordance with New York Penal Law § 400.00 and the PLS Handbook Chapter 1, §§ I(1) and I(2). The Notices advised them that the PLS would investigate the suspensions and during that period they were required to surrender their guns.

Chapter 1, Section I of the PLS Handbook states:

Pursuant to NYSPL § 400.00(11), a pistol license issued by the Nassau County Police Department may be revoked and cancelled by the Commissioner of Police at any time. Furthermore, a person whose pistol license is suspended or revoked for any reason is required to surrender their license and firearms, including their rifles and shotguns, to the NCPD Pistol License Section.

Subsection 1 details circumstances for automatic revocation including when a licensee is convicted of a felony or deemed mentally unfit. Subsection 2 provides for discretionary revocation: a pistol license “may be suspended and/or revoked based upon evidence of any disqualification pursuant to this Handbook or applicable law.” It is NCPD policy to “immediately suspend the pistol license of any licensee who violates any of the terms and conditions of the license or [the] Handbook and commence an investigation to determine whether or not the license should be revoked.”

The PLS Handbook requires a report to the PLS when “the licensee or a member of the licensee’s household receives professional treatment for mental health issues (including depression)” or is admitted to a hospital for mental-health treatment. Lieutenant Marc Timpano testified that PLS officers have discretion when deciding whether to suspend a pistol license, and that PLS uses the Handbook as a “guide” when making suspension determinations, including whether to act after reports of a mental health incident.

The Wysockis submitted the statements explaining the incident with their daughter, along with Dr. Stein’s letter on February 14, 2023. They then submitted on April 18, 2023 a letter from CPS that the investigation was closed as “unfounded.” Scaglione instructed them to provide a letter from their daughter’s treating doctor stating that it was safe for her to live in a home where guns are kept, and that he would continue the investigation and would see them “in about 8–12 months.”

In June 2023, Dennis informed the PLS that they were unable to obtain a letter from a doctor stating that it was safe for their daughter to live in a home with firearms. The Wysockis maintain that Scaglione informed them that even with such a letter, their licenses would not be reinstated until they purchased two biometric safes, which they have no intention of purchasing, and that if their daughter “ever did anything like this again” they would never have their licenses returned. The Wysockis’ pistol licenses remain in suspended status and the PLS investigation remains open.

This, the court concluded, violated the Wysockis’ Second Amendment rights:

Defendants present zero evidence that the PLS’s actions are consistent with the Nation’s historical tradition of firearm regulation. They provide no citation to law, tradition, or any other evidence, nor do they provide a particular historical analogy to match the practices employed against the Wysockis. Instead, they rely on Rahimi, which is inapposite.

Rahimi addressed the constitutionality of 18 U.S.C. § 922(g)(8), which disarms individuals subject to certain domestic violence protective orders. The Supreme Court upheld the provision based on a historical tradition of disarming individuals that pose a clear threat of physical violence to another person.

Defendants contend that the founding-era surety and going-armed laws in Rahimi establish a more general principle: the government may act in a “targeted and time-limited way, based on reliable evidence of dangerousness, to prevent serious harm while the risk is appropriately managed.” But Rahimi does not establish such a such a broad exception to the Second Amendment. It only condoned the Government’s ability “to disarm individuals who present a credible threat to the physical safety of others.”

The disarmament here is not based on the Wysockis posing a credible threat to the safety of others nor to prevent their misuse of firearms. Defendants’ initial firearms seizure and license revocation was not based upon their risk to others (or their risk of misuse). Instead, it was based on the Wysockis’ daughter’s mental-health emergency and her danger to herself, based on firearms owned by others. And Defendants’ ongoing refusal to return the firearms or licenses appears to be entirely arbitrary or unlawful—it is based not on any existence of mental health treatment or even current threat that the daughter poses to herself or others.

The evidence in the record is that that threat long ago dissipated (if it ever existed at all). Yet, Defendants refuse to let the Wysockis have their firearms or licenses and have imposed a set of requirements—additional letters from mental health practitioners and the purchases of particular kinds of safes—not based on any policy or laws, but on requirements of Defendants’ own-making. While “[a]nalogical reasoning requires only that the government identify a well-established and representative historical analogue,” not a “historical twin or ‘dead ringer,'” the Defendants have failed to provide any relevant analogy, historical evidence, or relevant argument at all. Defendants’ conduct is a plain violation of the Second Amendment.

{Defendants dedicate much of their brief to what amounts to counsel’s musings about the reasonableness of the PLS’s actions as to the Wysockis. At issue is not whether Officer Scaglione acted unreasonably, but whether Scaglione’s exercise of discretion in suspending the Wysockis’ licenses and imposing obligations based on their daughter’s mental health incident, is supported by history and tradition.}

The court also noted that there seemed to be no state-law authority for the revocation, or even any municipal policy supporting it:

Chapter 1, Section I of the Handbook provides that Nassau County can revoke a license under New York Penal Law § 400.00(11). And Penal Law § 400.00(11)(b) provides that:

[w]henever the director of community services … makes a report pursuant to section 9.46 of the mental hygiene law, the division of criminal justice services shall convey such information, whenever it determines that the person named in the report possesses a license issued pursuant to this section, to the appropriate licensing official, who shall issue an order suspending or revoking such license.

Here, there was no report from the division of criminal justice or other similar entity to Nassau County. Scaglione simply informed the Wysockis—based upon Dennis’s self-reporting—that their pistol licenses were going to be suspended given their daughter’s expressed thoughts of self-harm. In other words, it appears that Nassau County revoked the Wysockis’ licenses, not based upon the authority granted by § 400.00(11), but some other (unidentified or nonexistent) authority altogether. (As for the seizure and surrender of the firearms, that appears to flow from the license revocation, under Penal Law § 400.00(11)(c).) …

[I]t appears Defendants—in seizing the Wysockis’ firearms (or requiring their surrender) and creating new barriers to their return (and for the reinstatement of their licenses)—have acted entirely outside of the PLS Handbook….

The court, however, rejected plaintiffs’ facial challenge to Penal Law § 400.00(11):

A facial constitutional challenge “is ‘the most difficult challenge to mount successfully, because it requires [the challenger] to establish that no set of circumstances exists under which the [law] would be valid.'” Their briefing contains no explication of the PLS Handbook or § 400.00(11) to circumstances other than their own, and they make no argument that there is no set of circumstances where the law could be applied consistent with the Second Amendment. The Wysockis rely only on their own experience and general assertions that the Nassau policies are unconstitutional. The Court cannot, therefore, rule out that at least “in some of its applications,” Penal Law § 400.00(11), as implemented by the PLS Handbook, is consistent with the Second Amendment.

Amy L. Bellantoni (The Bellantoni Law Firm, PLLC) represents plaintiffs.