Frey v. Bruen

Background

Jason Frey, Brianna Frey, Jack Cheng, and William Sappe sued New York City, NYPD Police Commissioner Dermot Shea, and Acting New York State Police Superintendent Kevin P. Bruen in their official capacities. They alleged violations of the Second Amendment and sought a preliminary injunction—an order issued before final judgment that temporarily prevents enforcement of challenged laws.

The plaintiffs held various New York handgun licenses, but some licenses had restrictions on where or how the weapons could be carried. Frey and Brianna Frey had been denied unrestricted concealed-carry licenses under New York’s “proper cause” standard. Cheng’s New York City license renewal applications had been denied, and Sappe’s application for a New York City special carry license had also been denied. The plaintiffs said they intended to carry handguns in ways their licenses did not allow, including openly in New York State and, for Sappe, concealed in New York City.

Standing

The court first addressed standing, which requires a plaintiff to show a real personal injury that is connected to the challenged conduct and could be remedied by the court. For an injunction, the threatened injury must be real and immediate rather than speculative.

The court held that the plaintiffs had not alleged concrete plans showing when or how they would violate the challenged laws. Their statements that they intended to carry their handguns publicly were insufficient. The court also found no credible threat of prosecution because the plaintiffs had not alleged that they had previously been prosecuted or threatened with enforcement under the challenged provisions.

The court further concluded that licensed firearm owners did not face criminal liability under the cited provisions of New York Penal Law Article 265. If the plaintiffs openly carried their weapons, the court said, they would at most violate their handgun-license restrictions and could face potential penalties under Penal Law § 400.00(15). The plaintiffs offered no evidence that they faced prosecution specifically under the Article 265 provisions. The court therefore concluded that they lacked standing to seek the preliminary injunction.

Merits of the requested injunction

The court stated that, even if the plaintiffs had standing, the motion would still be denied. A preliminary injunction required the plaintiffs to show, among other things, a strong likelihood of success on the merits, imminent irreparable harm, and that the balance of hardships and public interest favored relief.

The plaintiffs argued that the Second Amendment gave law-abiding people an absolute right to carry handguns in public for self-defense. The court rejected that argument at the preliminary-injunction stage, relying on Supreme Court decisions explaining that the Second Amendment is not unlimited and on Second Circuit precedent recognizing that the right is strongest inside the home.

The court applied the Second Circuit’s two-step Second Amendment framework: first, determine whether the challenged restriction burdens conduct protected by the amendment; second, if it does, apply the appropriate level of constitutional scrutiny. The court emphasized that the Second Circuit had upheld New York’s “proper cause” requirement for concealed-carry permits in Kachalsky v. County of Westchester. Because that precedent remained binding, the court concluded that the plaintiffs did not have a high likelihood of success.

The court also found that the plaintiffs had not shown actual and imminent irreparable harm. Their claimed fear of prosecution was insufficient for the same reasons that it did not establish standing. Finally, the court held that the balance of hardships and the public interest favored the defendants, citing New York’s longstanding regulation of firearms in public and the state’s stated public-safety interests.

Disposition

The court denied the plaintiffs’ motion for a preliminary injunction and directed the clerk to terminate the motion at ECF No. 20. The opinion reserved judgment on the Superintendent’s separate argument that he was not a proper defendant under the Eleventh Amendment because that issue was also raised in a separate motion to dismiss.