Dismissed Lawsuit Over CT Licensing Delays Could be Resurrected by Second Circuit Panel – Bearing Arms

In its decision in New York State Rifle & Pistol Association v. Bruen, the Supreme Court concluded that while “shall issue” licensing schemes for carrying a firearm are presumptively constitutional, they may still run afoul of the Second Amendment if applicants are forced to pay excessive fees or suffer lengthy and needless delays in processing their applications. On Tuesday, a three-judge panel on the Second Circuit Court of Appeals heard oral arguments in a case that seeks to put that ruling to the test, with a little help from local authorities in three Connecticut cities.

The case, known as CCDL v. Thody, is based on a simple premise: citizens should not have to twiddle their thumbs for six months or more while waiting for the state to decide whether or not they’re eligible to exercise a fundamental civil right. Orel Johnson, Anne Cordero, and Shaquanna Williams live in Hartford, Bridgeport, and New Haven, and the three went through their local police departments to obtain their temporary state pistol permit, which is required before someone can apply for their full state-issued permit valid for five years.

Seems like a bit of needless red tape, does it not? In the case of the plaintiffs, all three had to wait more than six months before their temporary permits were issued and they could even apply for their five-year permit. One plaintiff actually waited three years before she heard back from her local licensing authority; a delay that the department blamed on the disruptions caused by the COVID pandemic. During that time the three (and countless other Connecticut citizens in similar circumstances) were deprived of their ability to purchase, possess, or carry a handgun for self-defense.

Before the district court had the opportunity to weigh in on the lengthy delays (but after the lawsuit had been filed), the three jurisdictions gave the green light to the plaintiffs. Good news for these particular gun owners, to be sure, but bad news for the lawsuit, since the district court judge then declared the litigation to be moot because they finally had their permits in hand. The trial court had also rejected the Connecticut Citizens Defense League’s involvement in the case, denying them standing to sue on behalf of their members.

Today’s argument, then, was less about the substance of the litigation and more about whether the case should be allowed to continue, and if so, who should be a party to the litigation. The three-judge panel asked tough questions of attorneys for both sides, with plaintiffs attorney Cameron Atkinson peppered with inquiries about due process precedent and how, exactly, this case differed from an earlier case known as CCDL v. Lamont. As Aktinson explained, the question at the heart of Lamont was whether the governor’s executive orders on COVID and their impact on processing applications was a violation of the Second Amendment rights of the state’s gun owners, while this challenge is about the licensing laws in general.

The attorney for the defendants, on the other hand, was grilled about whether or not the CCDL has standing. The district court judge concluded that under Second Circuit precedent “an organization does not have standing to assert the rights of its members in a case brought under 42 U.S.C. § 1983” and that “Neither [the] language nor the history . . . [of § 1983] suggests that an organization may sue under the Civil Rights Act for the violations of rights of members.”

One of the judges on the panel noted that the Second Circuit’s position, based on a case from 1974, is an outlier among the appellate courts, but that doesn’t mean that there are going to be two votes to overrule that precedent or find an exception. The defendants’ attorney also maintained that the individual plaintiffs cannot have standing since their permits have since been issued, but there were at least two judges willing to entertain the possibility that the plaintiffs still have standing for damages over the deprivation of their rights.

Standing has been an issue in other Second Circuit cases, including the Bruen precursor NYSPRA v. NYC in which state and city lawmakers tweaked statutes just enough to claim that the question posed in the lawsuit had been mooted by their actions. Without a live issue, plaintiffs had no standing to sue, and the Supreme Court ultimately agreed that the case had to be dismissed.

That’s given other anti-gun states a clear pathway to avoid a direct court challenge; implement your anti-gun policies, but be ready to slightly modify them if necessary… or in the case of a licensing dispute, issue the permits in order to moot the litigation.

There’s also an issue of qualified immunity in CCDL v. Thody, with the plaintiffs seeking damages from the officials who were sued and the defendants arguing they can’t be held financially responsible for exercising their job duties.

Both sides acknowledged that there is no clear standard in state law as to what constitutes an untimely delay in processing applications, though they obviously sought different conclusions from the panel. The attorney for the defendants questioned whether the federal judiciary really wants to tell a state how long they have to process a permit, while Atkinson suggested that it’s necessary for the court to set at least some line in the sand in order to prevent the untimely delays that the Supreme  Court has acknowledged can take place at the expense of our Second Amendment rights.

I don’t think too much can be determined simply by the questions posed by the judges today, unfortunately. The police chiefs do seem to have Second Circuit precedent on their side, at least when it comes to standing for the CCDL, but as I said, there also seemed to be some openness to allow the individual plaintiffs standing to sue for damages, and perhaps even revisit the district court judge’s decision to exclude the CCDL from the litigation entirely. The Second Circuit has rarely been good to gun owners, but I’m cautiously optimistic that the panel will remand the case back to the trial court with instructions to allow at least a portion of it to move forward.

We’ll be talking more about this case and Connecticut gun control laws in general on tomorrow’s Cam & Co with Connecticut Citizens Defense League head Holly Sullivan, who was in the courtroom for today’s arguments. If you want to listen to the oral arguments for yourself in the meantime, you can access them here by searching for 23-724 in the docket query.

Originally Posted on: https://bearingarms.com/camedwards/2023/11/14/dismissed-lawsuit-over-ct-licensing-delays-could-be-resurrected-by-second-circuit-panel-n77268
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