11-2420
Osterweil v. Bartlett
UNITED STATES COURT OF APPEALS
For the Second Circuit
August Term, 2012
Argued: October 26, 2012 Decided: January 29, 2013
Docket No. 11-2420-cv
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
ALFRED G. OSTERWEIL,
Plaintiff-Appellant,
v.
GEORGE R. BARTLETT, III,
Defendant-Appellee.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Before: JACOBS, Chief Judge, WALKER, Circuit Judge, AND
O’CONNOR, U.S. Supreme Court Justice (Ret.)
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Part-time New York resident, who is not a domiciliary of the
State, appeals from the grant of summary judgment denying
injunctive relief from New York’s statutory handgun licensing
requirement. The United States District Court for the Northern
District of New York (D’Agostino, J.) concluded that the statute
limits the grant of handgun licenses to domiciliaries of the
State. We hold that certification of this statute’s
interpretation to the New York Court of Appeals is warranted.
Question Certified.
PAUL D. CLEMENT, Bancroft PLLC,
Washington, D.C. (D. Zachary
Hudson, Bancroft PLLC, Washington,
D.C.; Daniel L. Schmutter,
Greenbaum, Rowe, Smith & Davis
1
LLP, Woodbridge, New Jersey, on
the brief), for Plaintiff-
Appellant.
SIMON HELLER, Assistant Solicitor
General, New York State Office of
the Attorney General, New York,
New York, for Defendant-Appellee.
O’Connor, Supreme Court Justice (Ret.): This case asks us
to evaluate the constitutionality of certain aspects of New
York’s handgun licensing regime. As we explain, we believe we
should not reach that question before certifying a predicate
question of state law to the New York Court of Appeals.
I
Appellant Alfred Osterweil applied for a handgun license in
May 2008. Following the directions of New York Penal Law
§ 400.00(3)(a), he applied for a license “in the city or county
. . . where [he] resides.”1 At that time, his house in Summit,
New York--part of Schoharie County--was still his primary
residence and domicile. While his application was pending,
however, Osterweil moved his primary residence to Louisiana,
keeping his home in Summit as a part-time vacation residence.
1
In relevant part, New York Penal Law § 400.00(a)(3)
provides that
[a]pplications shall be made and renewed, in the case
of a license to carry or possess a pistol or revolver,
to the licensing officer in the city or county, as the
case may be, where the applicant resides, is
principally employed or has his principal place of
business as merchant or storekeeper.
2
He then sent a letter to the Schoharie licensing authorities
inquiring whether this move made him ineligible for a license.
A46. Shortly thereafter, in July 2008, Osterweil sent another
letter suggesting that if his change of domicile foiled his
license application, a constitutional problem would result.
A52-A53. This second letter came after the United States
Supreme Court held in District of Columbia v. Heller, 544 U.S.
570 (2008), that the Second Amendment protects an individual
right to bear arms, and that the core of this right is the right
to self-defense in the home.
Osterweil’s application was eventually forwarded to
appellee George Bartlett, a judge of the county court in
Schoharie and licensing officer for the county. He interpreted
§ 400.00(3)(a)’s apparent residence requirement as a domicile
requirement, relying on a 1993 decision from New York’s
Appellate Division, Third Department holding that, “as used in
this statute, the term residence is equivalent to domicile.”
Mahoney v. Lewis, 199 A.2d 734, 735 (3d Dep’t 1993). Because
Osterweil “ha[d] candidly advised the Court that New York State
is not his primary residence and, thus not his domicile,” Judge
Bartlett denied the license. See A144.
Judge Bartlett further concluded that a domicile
requirement was constitutional under the Second Amendment, even
after Heller, because of the State’s interest in monitoring its
3
handgun licensees to ensure their continuing fitness for the use
of deadly weapons. A145-A149. He applied New York precedent
suggesting that the State’s licensing regime would not violate
Heller “‘so long as it is not enforced in an arbitrary and
capricious manner.’” A150 (citation omitted). Osterweil could
have sought review of that determination in the state courts by
means of an Article 78 proceeding, see, e.g., Mahoney, 199
A.D.2d at 735, but he did not.2
Instead, he filed a federal suit alleging that New York’s
domicile requirement violated the Second and Fourteenth
Amendments and seeking, among other remedies, an injunction
ordering the State to give him a license. See A11. The
district court first determined that intermediate scrutiny was
appropriate for the Second Amendment issue, and then held that a
domicile requirement satisfied intermediate scrutiny because
“the law allows the government to monitor its licensees more
closely and better ensure the public safety.” 819 F. Supp. 2d
72, 85 (N.D.N.Y. 2011). It further held that New York’s
restrictions did not violate the Equal Protection Clause or any
2
Judge Bartlett’s decision appears to have been taken in an
administrative capacity; in other cities or counties, this role
is fulfilled by non-judicial personnel. Accordingly, the State
has not argued that Judge Bartlett’s denial of the license is a
judicial decision with any preclusive effect in this litigation,
and we deem any such argument forfeit.
4
other part of the Fourteenth Amendment. Id. at 86-90. It thus
granted summary judgment to the State.
On appeal to this Court, Osterweil maintains that a
domicile requirement for handgun ownership is unconstitutional.
The State’s primary response, however, is that there is no
domicile requirement under New York law. It argues that New
York’s highest court has never held that the law requires
domicile, that the text speaks only of residence, that the New
York Court of Appeals would likely apply only a residence
requirement as a matter of constitutional avoidance, and that if
the statute is construed as requiring only residence, “this
litigation would thereby be resolved.” Appellee’s Br. 23. It
thus urges that we certify the domicile-or-residence question to
the New York Court of Appeals, or apply Pullman abstention and
decline to decide the case at all. See R.R. Comm’n v. Pullman
Co., 312 U.S. 496 (1941). As discussed below, we agree that the
state-law issue that the State identifies is a predicate to a
serious constitutional question, and that certification is the
appropriate course.
II
Under Second Circuit Local Rule 27.2, we may certify to the
New York Court of Appeals “determinative questions of New York
law [that] are involved in a case pending before [us] for which
no controlling precedent of the Court of Appeals exists.” See
5
also N.Y. Const. Art. 6, § 3(b)(9) & N.Y. Comp. Codes R. & Regs.
tit. 22, § 500.27(a). Before we certify such a question, we
must answer three others: “(1) whether the New York Court of
Appeals has addressed the issue and, if not, whether the
decisions of other New York courts permit us to predict how the
Court of Appeals would resolve it; (2) whether the question is
of importance to the state and may require value judgments and
public policy choices; and (3) whether the certified question is
determinative of a claim before us.” Barenboim v. Starbucks
Corp., 698 F.3d 104, 109 (2d Cir. 2012). Here, we answer each
in favor of certification.
First, it is clear that the New York Court of Appeals has
not answered the question before us. Neither party identifies a
decision of that Court interpreting the word “resides” in this
statute, or illuminating whether the Court would be likely to
impose a residence requirement or a domicile requirement.
Indeed, that Court has never held that this statute imposes even
a residence requirement. As the State noted at oral argument,
§ 400.00(3)(a) is phrased in the form of a procedural rule about
where to file to get a license, not a limitation on who may get
one.
Recourse to that Court’s broader opinions regarding
residence requirements makes the water murkier, not clearer. It
has sometimes equated residence with domicile, and sometimes
6
not.3 Indeed, it has said that “[t]he sense in which these words
are used in a particular statute may depend upon the nature of
the subject-matter of the statute as well as the context in
which the words are used.” Rawstorne v. Maguire, 192 N.E. 294,
295 (N.Y. 1934); see also id. (“We are told that the Legislature
used the words ‘residing within the State’ as synonymous with
‘domiciled within the State.’ Doubtless such words are
frequently used . . . as if they had the same meaning, but they
are not identical . . . .”). Thus, the New York Court of
Appeals has not told us how to interpret this particular
statute, and has clarified only that the question we face is one
of judgment that involves interpreting the intent of the state
legislature. Id. That job is surely best left to the state
courts, especially when they “‘stand willing to address
questions of state law on certification from a federal court.’”
Arizonans for Official English v. Ariz., 520 U.S. 43, 79 (1997)
(quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 510
(1985) (O’Connor, J., concurring)).
3
Compare, e.g., People v. Platt, 22 N.E. 937, 938 (N.Y.
1889) (in statute listing qualifications for political office,
residence means domicile); with Rawstorne v. Maguire, 192 N.E.
294, 295 (N.Y. 1934) (refusing to “limit the provisions for
substituted service upon persons ‘residing within the State’ to
those who not only reside, but are domiciled here”); see also
Matter of Contento v. Kohinke, 42 A.D.2d 1025, 1025 (N.Y. 3d
Dep’t 1973) (“[T]he term ‘reside’ (or ‘residence’) is not one
that can be given a uniform definition wherever it appears in
legislation, but must be construed in relationship to the
particular statute involved.”).
7
Of course, we need not certify a question when we can
“‘predict how the highest court of the forum state would resolve
the uncertainty or ambiguity.’” State Farm Mut. Auto. Ins. Co.
v. Mallela, 372 F.3d 500, 505 (2d Cir. 2004) (quoting Travelers
Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994)).
Here, the language is plain, the State itself urges that
§ 400.00(3)(a) imposes only a residence requirement, and a
serious constitutional controversy results from any other view,
see infra at 11. Yet we think it best here to resist the
State’s invitation to construe the statute ourselves. See
Appellee’s Br. 5 n.2. We have said that it is appropriate to
predict what the New York Court of Appeals will do from “the
decisions of other New York courts,” Barenboim, 698 F.3d at 109
(emphasis added), not based on our instinct that the Court of
Appeals will find those courts’ decisions unconvincing or
overcome by events. For us to adopt an anticipated construction
of a state statute based on our own reading of the text and the
current constitutional landscape would put state officials like
Judge Bartlett in a particularly hard spot in the next case,
uncertain whether to follow the binding decision of the Third
Department in Mahoney or the all-fours decision of a federal
circuit court. Indeed, any ruling we might make on this state
law question would not be binding on New York state courts and
thus has the potential for sowing confusion. See, e.g., Oneida
8
Indian Nation of N.Y. v. Pifer, 43 A.D.3d 579, 581 (3d Dep’t
2007) (“Federal court rulings on issues of state law are not
binding on state courts”) (citing In re 1616 Second Ave. Rest.,
550 N.E.2d 910, 913 (N.Y. 1990)). One of the chief virtues of
certification is that it avoids such pitfalls.
Next, we ask whether the question “is of importance to the
state” and whether it is the kind of question that “may require
value judgments and public policy choices.” Barenboim, 698 F.3d
at 109. It certainly is, and it certainly does. The regulation
of firearms is a paramount issue of public safety, and recent
events in this circuit are a sad reminder that firearms are
dangerous in the wrong hands. See James Barron, Gunman
Massacres 20 Children at School in Connecticut; 28 Dead,
Including Killer, N.Y. Times, Dec. 15, 2012, at A1. Questions
like the one before us require a delicate balance between
individual rights and the public interest, and federal courts
should avoid interfering with or evaluating that balance until
it has been definitively struck. Moreover, the New York Court
of Appeals has made clear that the question whether to read
“residence” as requiring residence or domicile requires
interpretation of the value and policy judgments of the state
legislature. This is accordingly an area of state concern in
which the principles of cooperative federalism hold greatest
sway.
9
Finally, we ask whether the state-law question is
dispositive. We certify here on the understanding that it is.
The State has represented that, if “resides” in § 400.00(3)(a)
means only resides and does not also mean domicile, then
Osterweil would meet this requirement and “this litigation would
thereby be resolved.” Appellee’s Br. 23. Of course, it is
possible that the Court of Appeals will say that the word
“resides” in § 400.00(a)(3) imposes some other requirement akin
to domicile that is a barrier to Osterweil’s license. It would
then remain for us to decide the constitutional question, but
even then we benefit from certification because “construction by
the state judiciary . . . might . . . at least materially change
the nature of the problem.” Bellotti v. Baird, 428 U.S. 132,
147 (1976) (quotation marks omitted).
III
Notwithstanding that certification gives him an extra
chance to get his license, Osterweil prefers that we stick with
Mahoney’s domicile-only rule and evaluate its constitutionality.
He argues that an important federal constitutional right is at
stake, that certification will engender needless delay, and that
the presence of an issue of constitutional avoidance will
actually exacerbate state-federal tension by having both a state
court and a federal court opine on a constitutional question in
the same case. We find these arguments unconvincing.
10
To begin, we agree with both parties that there is a
serious constitutional question in this case. This Court has
recently held that “Second Amendment guarantees are at their
zenith within the home,” Kachalsky v. County of Westchester, 701
F.3d 81, 89 (2d Cir. 2012), and a domicile requirement will
operate much like the bans struck down in Heller and McDonald v.
Chicago, 130 S. Ct. 3020 (2010), for part-time New York
residents whose permanent homes are elsewhere. At the same
time, this Court has acknowledged that the ground opened by
Heller and McDonald is a “vast ‘terra incognita’” that “has
troubled courts since Heller was decided.” Kachalsky, 701 F.3d
at 89 (quoting United States v. Masciandaro, 638 F.3d 458, 475
(4th Cir. 2011) (Wilkinson, J.)). It is open to Osterweil to
make his domicile in New York, so even a domicile requirement
may not be the kind of absolute ban that the U.S. Supreme Court
has already addressed, and some regulation of itinerant handguns
is clearly valid. See Kachalsky, 701 F.3d at 100 (“[E]xtensive
state regulation of handguns has never been considered
incompatible with the Second Amendment or, for that matter, the
common-law right to self-defense.”). Thus, we would confront a
serious and very difficult question of federal constitutional
law if required to evaluate a domicile requirement.
The presence of a serious constitutional question is a good
reason to certify, however, not a reason to race ahead. The
11
Supreme Court has made clear that certification is the
appropriate course when a narrowing construction of state law
that avoids the federal question is possible--even, and perhaps
especially, when important federal rights are at stake.
Arizonans, 520 U.S. at 78; Bellotti, 428 U.S. at 147
(certification is appropriate where the “state statute is
susceptible of a construction by the state judiciary ‘which
might avoid in whole or in part the necessity for federal
constitutional adjudication.’”) (quoting Harrison v. NAACP, 360
U.S. 167, 177 (1959)). In so doing, the Court has “[w]arn[ed]
against premature adjudication of constitutional questions . . .
when a federal court is asked to invalidate a State’s law, for
the federal tribunal risks friction-generating error when it
endeavors to construe a novel state Act not yet reviewed by the
State’s highest court.” Arizonans, 520 U.S. at 79. The
prospect of disagreement over the seriousness of a
constitutional question is always present when a federal court
certifies in a case like this one, but this has always led the
Supreme Court to counsel in favor of certification, not against
it. Osterweil cites no case from the Supreme Court, this Court,
or any other, where certification was disapproved because a
state court might take a different view of a federal
constitutional question in adopting a limiting construction or
in refusing to do so.
12
As for timing, while some delay from certification is
inevitable, the State has assured us that it will seek to
expedite the process. Moreover, Pullman abstention--the other
course available here--would take even longer. As a case that
involves “unsettled state law issues . . . preliminary to
consideration of a federal constitutional question,” this case
falls within the heartland of Pullman abstention. See Hart &
Wechsler, The Federal Courts & The Federal System 1062-1063 (6th
ed. 2009) (collecting cases); Pullman, 312 U.S. at 499-501.
Certification now “covers territory once dominated by . . .
Pullman abstention” precisely because it “allows a federal court
faced with a novel state-law question to put the question
directly to the State’s highest court, reducing the delay,
cutting the cost, and increasing the assurance of gaining an
authoritative response.” Arizonans, 520 U.S. at 75. Yet given
that Pullman abstention would have been appropriate before
certification, and that certification is far faster and more
convenient for all involved, we have less cause for concern over
delay.
Finding that certification is appropriate, we therefore
certify the following question to the New York Court of Appeals:
Is an applicant who owns a part-time residence in New
York but makes his permanent domicile elsewhere
eligible for a New York handgun license in the city or
county where his part-time residence is located?
13
The New York Court of Appeals may, of course, reformulate
or expand upon this question as it deems appropriate.
It is hereby ORDERED that the Clerk of the Court transmit
to the Clerk of the New York Court of Appeals a certificate in
the form attached, together with a copy of this opinion and a
complete set of the briefs, appendices, and record filed by the
parties in this Court. This panel will retain jurisdiction to
decide the case once we have had the benefit of the views of the
New York Court of Appeals or once that court declines to accept
certification. Finally, we order the parties to bear equally
any fees and costs that may be requested by the New York Court
of Appeals.
CERTIFICATE
The following question is hereby certified to the New York
Court of Appeals pursuant to Second Circuit Local Rule 27.2 and
New York Compilation of Codes, Rules and Regulations, title
22, section 500.27(a), as ordered by the United States Court of
Appeals for the Second Circuit:
Is an applicant who owns a part-time residence in New
York but makes his permanent domicile elsewhere
eligible for a New York handgun license in the city or
county where his part-time residence is located?
14