15‐2265
Mishtaku v. Espada
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held
2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 28th day of September, two thousand sixteen.
4
5 PRESENT: PIERRE N. LEVAL,
6 RAYMOND J. LOHIER, JR.,
7 Circuit Judges,
8 JOHN G. KOELTL,
9 District Judge.*
10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
11
12 MARTIN MISHTAKU,
13 Plaintiff‐Appellant,
14
15 v. No. 15‐2265
16
17 OFFICER CINDY ESPADA, SERGEANT ANTHONY
18 ESPOSITO, DEPUTY INSPECTOR
19 ANDREW LUNETTA, DIRECTOR THOMAS M.
20 PRASSO, POLICE DEPARTMENT LICENSE
21 DIVISION, CITY OF NEW YORK,
22
23 Defendants‐Appellees.
24 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
* The Honorable John G. Koeltl, of the United States District Court for the Southern
District of New York, sitting by designation.
1
1
2 FOR PLAINTIFF‐APPELLANT: MARTIN MISHTAKU, pro se, Flushing, NY.
3
4 FOR DEFENDANTS‐APPELLEES: ELIZABETH I. FREEDMAN, Assistant
5 Corporation Counsel, for Zachary W.
6 Carter, Corporation Counsel of the City
7 of New York, New York, NY.
8
9 Appeal from a judgment of the United States District Court for the Southern
10 District of New York (Vernon S. Broderick, Judge).
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
12 DECREED that the judgment of the District Court is AFFIRMED.
13 Plaintiff‐appellant Martin Mishtaku, proceeding pro se, appeals the District
14 Court’s judgment dismissing his complaint, which asserted violations of the Second
15 Amendment and the Equal Protection Clause. We assume the parties’ familiarity with
16 the facts and record of the prior proceedings, to which we refer only as necessary to
17 explain our decision to affirm.
18 We review the District Court’s grant of a motion for judgment on the pleadings
19 pursuant to Federal Rule of Civil Procedure 12(c) de novo, accepting all of Mishtaku’s
20 allegations as true. Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012).
21 We apply intermediate scrutiny to “laws implicating the Second Amendment.”
22 N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 260–61 (2d Cir. 2015), cert.
23 denied sub nom. Shew v. Malloy, 136 S. Ct. 2486 (2016). Section 400.00 of the New York
24 Penal Law requires that an applicant for a “license[] to carry, possess, repair and dispose
25 of [a] firearm[]” be “of good moral character,” and Title 38 § 5‐10 of the Rules of the City
26 of New York states that “an application for a handgun license may be denied” when
27 “[t]he applicant has been arrested . . . or is reasonably believed to have a disability or
28 condition that may affect the ability to safely possess or use a handgun, including . . .
29 mental illness.” In District of Columbia v. Heller, the Supreme Court cautioned that
2
1 “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on
2 the possession of firearms by felons and the mentally ill,” describing such regulations as
3 “presumptively lawful regulatory measures.” 554 U.S. 570, 626 & n.26 (2008). Here,
4 the challenged regulations satisfy intermediate scrutiny because “New York has
5 substantial, indeed compelling, governmental interests in public safety and crime
6 prevention,” Kachalsky v. County of Westchester, 701 F.3d 81, 97 (2d Cir. 2012), and the
7 challenged regulations are substantially related to those important interests. We
8 therefore agree with the District Court that the challenged regulations do not violate the
9 Second Amendment.
10 “To prove a violation of the Equal Protection Clause . . . a plaintiff must
11 demonstrate that he was treated differently than others similarly situated as a result of
12 intentional or purposeful discrimination.” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir.
13 2005). We agree with the District Court that Mishtaku failed to allege how
14 defendants‐appellees treated him differently than other similarly‐situated individuals
15 and therefore failed to state an equal protection claim. See id. at 129.
16 Finally, we conclude that the District Court did not err in declining to exercise
17 supplemental jurisdiction over state‐law claims brought under Article 78 of the New
18 York Civil Practice Law and Rules. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S.
19 635, 639–40 (2009).
20 We have considered all of Mishtaku’s remaining arguments and conclude that
21 they are without merit. Accordingly, we AFFIRM the judgment of the District Court.
22
23 FOR THE COURT:
24 Catherine O=Hagan Wolfe, Clerk of Court
3