Robert Bello v. Rockland County, New York, et al.

In New York State, when a handgun licensee becomes the subject of a mental health report made pursuant to Mental Hygiene Law § 9.46, the state’s handgun licensing scheme (i) requires the licensing officer to suspend or revoke the handgun license; and (ii) requires the disqualified licensee to surrender all handguns, rifles, and shotguns to an appropriate law enforcement agency. N.Y. Penal Law § 400.00(11); Mental Hygiene Law § 9.46. App-27. New York does not prohibit the return of surrendered firearms to another, non-prohibited, owner.1 Yet, police departments refuse to release firearms and courts refuse to recognize the property and due process rights of the non-prohibited handgun owner. Rather, both require the handgun owner to try their hand in state court, but no state statute provides a post-deprivation procedure for the release of firearms surrendered under N.Y. Penal Law § 400.00(11)(b), (c). While there is Second Circuit precedent requiring the government to provide prompt post-deprivation due process for a once-disqualified individual to retrieve long guns [Panzella v. Sposato, 863 F.3d 210, 216 (2d Cir. 2017), as amended (July 18, 2017)] when handguns are at issue, neither the once-disqualified 1 Firearm owners who reside with an individual they know or have reason to know is prohibited from possessing a firearm pursuant to 18 U.S.C. § 922(g) (1), (4), (8) or (9) shall is obligated by statute to properly secure their firearms from such individual. N.Y. Penal Law § 265.45.