Frey v. Bruen

Background

Jason Frey, Brianna Frey, Jack Cheng, and William Sappe challenged several New York Penal Law provisions and New York City Administrative Code § 10-315, arguing that they violated the Second Amendment. The defendants identified in the opinion are Steven Nigrelli, Acting Superintendent of the New York State Police, New York City, and Keechant Sewell, the NYPD Commissioner. The plaintiffs had previously sought a preliminary injunction—an order issued before final judgment that temporarily restricts or requires conduct—and the court denied that request in part on March 13, 2023. The court stayed its decision on several other provisions while related proceedings were pending in the Second Circuit.

The plaintiffs filed an interlocutory appeal from the March 13 order. They then moved in the district court for an injunction or stay pending appeal, as required before seeking the same relief from the court of appeals. They argued that they were likely to succeed on challenges to New York Penal Law §§ 400.00(6), 400.00(15), 265-e(2)(n), and 265-e(2)(t). Those provisions concern, among other things, the geographic validity of firearm licenses, carrying firearms outside licensing restrictions, carrying firearms in Metropolitan Transportation Authority subway and train cars, and carrying firearms in the Times Square area.

Legal standard

The court applied the four-factor standard for a stay pending appeal: whether the applicant is likely to succeed, whether the applicant will suffer irreparable harm without a stay, whether a stay would substantially injure other interested parties, and where the public interest lies. The party seeking the stay bears the burden of showing that the circumstances justify it. The court also noted that the plaintiffs had not presented the motion as one for reconsideration and had not identified grounds such as an intervening change in law, new evidence, or clear error.

Court’s analysis

The court found that the plaintiffs had not made a strong showing that they were likely to succeed. It relied on the reasoning in its March 13, 2023 opinion, including its conclusions that the defendants had shown historical traditions supporting municipal or local firearm regulations, licensing requirements and restrictions, and firearm restrictions in analogous locations. The court also stated that the plaintiffs had largely repeated their earlier arguments and had not argued that the March 13 decision was an abuse of discretion.

The court rejected the plaintiffs’ argument that the Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen prevented the court from considering the government’s interests, the parties’ hardships, or the public interest when deciding whether to issue an injunction. The court distinguished the constitutional test for evaluating a firearm law from the separate preliminary-injunction test. Because the plaintiffs had not shown a likelihood of success, the court also found that they had not shown irreparable harm or that the balance of hardships favored them.

Disposition

The court DENIES Plaintiffs’ motion for a stay pending appeal and directed the clerk to terminate the motion at ECF No. 82. This order concerns temporary relief during the appeal; it does not itself enter a final ruling on every underlying Second Amendment challenge.