Corbett V NYC Brief For Appellees

Case 19-2152, Document 43, 01/15/2020, 2753611, Page1 of 49
19-2152
United States Court of Appeals
for the Second Circuit
JONATHAN CORBETT,
Plaintiff-Appellant,
against
CITY OF NEW YORK and THOMAS M. PRASSO,
Defendants-Appellees.
On Appeal from the United States District Court

for the Southern District of New York
BRIEF FOR APPELLEES
JAMES E. JOHNSON
Corporation Counsel
of the City of New York
Attorney for Appellees
100 Church Street
New York, New York 10007
212-356-2609 or -2502
edruker@law.nyc.gov
RICHARD DEARING
CLAUDE S. PLATTON
ELINA DRUKER
of Counsel
January 15, 2020
Reproduced on Recycled Paper

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .....................................................................iii
PRELIMINARY STATEMENT ................................................................. 1
ISSUES PRESENTED FOR REVIEW ..................................................... 3
STATEMENT OF THE CASE .................................................................. 3
A. Regulatory landscape.................................................................. 3
B. Factual background .................................................................... 6
STANDARD OF REVIEW AND SUMMARY OF ARGUMENT ........... 10
ARGUMENT ........................................................................................... 13
POINT I ................................................................................................... 13
CORBETT’S CLAIMS ARE PRECLUDED BY HIS PRIOR

STATE-COURT LITIGATION....................................................... 13
A. Claim preclusion defeats all of Corbett’s claims. ..................... 14
B. Alternatively, issue preclusion bars Corbett’s Second

Amendment claims because these exact issues were
necessarily decided against him in state court. ....................... 21
POINT II .................................................................................................. 23
IN THE ALTERNATIVE, CORBETT FAILED TO STATE A

CLAIM UNDER THE SECOND AMENDMENT OR THE
FOURTEENTH AMENDMENT’S EQUAL PROTECTION
CLAUSE ......................................................................................... 23
i
TABLE OF CONTENTS (cont’d)
Page
A. Corbett’s Second Amendment challenge to three

questions on the standard-form background
questionnaire fails on the merits.............................................. 23
B. Corbett provides no argument that could warrant

revisiting this Court’s holding in Kachalsky. ........................... 28
C. Corbett’s equal-protection claim was properly dismissed. ...... 33
1. NYPD’s different treatment of law-enforcement

applicants and other applicants is rational. ......................... 34
2. Corbett failed to plead a class-of-one claim. ......................... 38
CONCLUSION ........................................................................................ 39
CERTIFICATE OF COMPLIANCE ........................................................ 40
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Ali v. Mukasey,
529 F.3d 478 (2d Cir. 2008) ................................................................ 21
Berron v. Ill. Concealed Carry Licensing Review Bd.,

825 F.3d 843 (7th Cir. 2016) ............................................................... 32
Brown Media Corp. v. K&L Gates, LLP,

854 F.3d 150 (2d Cir 2017) ................................................................. 10
Burgos v. Hopkins,
14 F.3d 787 (2d Cir. 1994) .................................................................. 17
Carney v. N.Y. State Dept. of Motor Vehs.,

133 A.D.3d 1150 (3d Dep’t 2015) ........................................................ 20
City of Cleburne v. Cleburne Living Ctr., Inc.,

473 U.S. 432 (1985) ....................................................................... 34, 36
Coleman v. Daines,
19 N.Y.3d 1087 (2012) ........................................................................ 18
Constantine v. Teachers College,

448 F. App’x 92 (2d Cir. 2011) ............................................................ 22
Corbett v. City of N.Y.,

160 A.D.3d 415 (1st Dep’t 2018) ................................................... 12, 22
Culp v. Raoul,
921 F.3d 646 (7th Cir. 2019) ......................................................... 33, 36
District of Columbia v. Heller,

554 U.S. 570 (2008) ............................................................................. 29
Doe v City of N.Y.,

15 F.3d 264 (2d Cir. 1994) .................................................................. 26
iii
TABLE OF AUTHORITIES (cont’d)
Page(s)
Drake v. Filko,
724 F.3d 426 (3d Cir. 2013) ................................................................ 30
Freddolino v. Vil. of Warwick Zoning Bd. of Appeals,

192 A.D.2d 839 (3d Dep’t 1993) .......................................................... 20
Gold v. N.Y. Life Ins. Co.,

153 A.D.3d 216 (1st Dep’t 2017) ......................................................... 20
Green Materials of Westchester v. Town of Cortlandt,

No. 15-cv-3257 (VB), 2015 U.S. Dist. LEXIS 170280
(S.D.N.Y. Dec. 21, 2015) ..................................................................... 19
Hayden v. Paterson,
594 F.3d 150 (2d Cir. 2010) .......................................................... 36, 37
Hu v. City of New York,

927 F.3d 81 (2d Cir 2019) ............................................................. 35, 38
Kachalsky Fields v. Bd. of Higher Educ.,

94 A.D.2d 202 (1st Dep’t 1983) ........................................................... 19
Kachalsky v. County of Westchester,

701 F.3d 81 (2d Cir. 2012) .......................................................... passim
Karamalla v. Devine,
159 A.D.3d 1368 (4th Dep’t 2018) ...................................................... 18
Kisor v Wilkie,
139 S. Ct. 2400 (2019) ......................................................................... 29
Klenosky v. N.Y City Police Dep’t,

75 A.D.2d 793 (1st Dep’t 1980),
aff’d on op. below, 53 N.Y.2d 685 (1981) .............................................. 6
iv
Page(s)
Kotch v. Bd of River Port Pilot Comm’rs for

Port of New Orleans,
330 U.S. 552 (1947) ............................................................................. 34
Lafleur v. Whitman,
300 F.3d 256 (2d Cir. 2002) .......................................................... 21, 22
LeadingAge NY, Inc. v. Shah,

32 N.Y.3d 249 (2018) .......................................................................... 19
Martinek v. Kerik,
294 A.D.2d 221 (1st Dep’t 2002) ........................................................... 6
Marvel Characters, Inc. v. Simon,

310 F.3d 280 (2d Cir. 2002) ................................................................ 15
Matson v. Bd. of Educ. of the City Sch. Dist. of N.Y.,

631 F.3d 57 (2d Cir. 2011) .................................................................. 26
Mishtaku v. Espada,
669 F App’x 35 (2d Cir. 2016) ............................................................. 28
Monahan v. N.Y.C. Dep’t of Corr.,

214 F.3d 275 (2d Cir. 2000) ................................................................ 15
Monclova v. City of N.Y.,

2017 U.S. Dist. LEXIS 218039 (E.D.N.Y. Mar. 31, 2017),
aff’d on other grounds, 726 F App’x 83 (2d Cir. 2018) ....................... 19
Moore v. Madigan,
702 F.3d 933 (7th Cir. 2012) ............................................................... 32
Mulcahy v. N.Y.C. Dep’t of Ed.,

99 A.D.3d 535 (1st Dep’t 2012) ........................................................... 18
N. Assur. Co. of Am. v. Sq. D Co.,

201 F.3d 84 (2d Cir. 2000) .................................................................. 14
v
Page(s)
N.Y. State Rifle & Pistol Ass’n Inc. v. City of New York,
S. Ct. Dkt. No. 18-280 (argued Dec. 2, 2019) ..................................... 28
N.Y. State Rifle & Pistol Ass’n v. Cuomo,

804 F.3d 242 (2d Cir 2015) ........................................................... 24, 28
New Orleans v. Dukes,

427 U.S. 297 (1976) ............................................................................. 34
New York v. Mt. Tobacco Co.,

942 F.3d 536 (2d Cir 2019) ........................................................... 15, 16
O’Connor v. Scarpino,
83 N.Y.2d 919 (1994) ............................................................................ 4
Parker v. Blauvelt Volunteer Fire Co.,

93 N.Y.2d 343 (1999) .................................................................... 17, 23
People v. Hughes,
22 N.Y.3d 44 (2013) .............................................................................. 4
Peruta v. Cnty. of San Diego,

824 F.3d 919 (9th Cir. 2016) ......................................................... 30, 31
Ponterio v. Kaye,
2007 U.S. Dist. LEXIS 4105 (S.D.N.Y. Jan. 22, 2007),
aff’d, 328 F. App’x 671 (2d Cir. 2009) ................................................. 19
Powell v. Schriver,
175 F.3d 107 (2d Cir. 1999) ................................................................ 25
Progressive Credit Union v. City of N.Y.,

889 F.3d 40 (2d Cir 2018) ................................................................... 35
Railway Express Agency, Inc. v. New York,

336 U.S. 106 (1949) ............................................................................. 34
vi
Page(s)
Romer v. Evans,
517 U.S. 620 (1996) ....................................................................... 36, 37
Sheffield v. Sheriff of the Rockland Cnty. Sheriff Dep’t,

393 F. App’x 808 (2d Cir. 2010) .......................................................... 18
Taylor v. Sturgell,
553 U.S. 880 (2008) ............................................................................. 13
Turner Broadcasting Sys. v. FCC,

520 U.S. 180 (1997) ............................................................................. 27
United States v. Decastro,

682 F.3d 160 (2d Cir. 2012) .......................................................... 24, 25
United States v. Jimenez,

895 F.3d 228 (2d Cir. 2018) ................................................................ 28
Vargas v. City of New York,

377 F.3d 200 (2d Cir. 2004) .......................................................... 21, 23
Williamson v. Lee Optical of Okla., Inc.,

348 U.S. 483 (1955) ............................................................................. 34
Woollard v. Gallagher,
712 F.3d 865 (4th Cir. 2013) ............................................................... 30
Wrenn v. District of Columbia,

864 F.3d 650 (D.C. Cir. 2017) ....................................................... 31, 32
Young v. Hawaii,
896 F.3d 1044 (9th Cir. 2018) ............................................................. 31
Yuen Jin v Mukasey,

538 F.3d 143 (2d Cir. 2008) ................................................................ 35
vii
Page(s)
Statutes
18 U.S.C. § 926C(a) ................................................................................. 37
42 U.S.C. § 1983 .................................................................................. 1, 18
N.Y. Penal Law § 265.00 ........................................................................... 4
N.Y. Penal Law § 400.00 ................................................................. passim
Other Authorities
Law Enforcement Officers Safety Act of 2004,

108 P.L. 277 ........................................................................................ 37
38 RCNY § 5-03 ................................................................................. 5, 6, 8
38 RCNY § 5-05(a) ..................................................................................... 8
38 RCNY § 5-10 ............................................................................... 4, 6, 25
N.Y. C.P.L.R. 7806 .................................................................................. 17
Michael Schulman, When bees go rogue call the NYPD,

NEW YORKER (Sept. 17, 2018) ............................................................. 37
viii
PRELIMINARY STATEMENT
Pro se plaintiff-appellant Jonathan Corbett, an attorney who
advocates for gun rights, sought a permit to carry a loaded, concealed
firearm in New York City, but refused to complete the standard NYPD
firearm-permit application form. He believes that having to answer
certain questions on the form—in and of itself—burdens his right to
keep and bear arms. NYPD denied his application as incomplete and
also because he failed to demonstrate “proper cause”—which is required
by state law to obtain a carry permit.
Corbett initially challenged the denial by bringing a state-court
“hybrid” declaratory-judgment action and proceeding under article 78 of
the New York Civil Practice Law and Rules (CPLR). Supreme Court,
New York County dismissed the action/proceeding in a decision that
was affirmed on appeal. Corbett then brought this 42 U.S.C. § 1983 case
seeking declaratory and injunctive relief, claiming that NYPD violated
his Second Amendment and equal-protection rights. The U.S. District
Court for the Southern District of New York (Failla, J.) granted the
City’s motion to dismiss on preclusion grounds or, in the alternative, for
failure to state a claim. The court also denied leave to replead.

This Court should affirm. Corbett has already litigated to a final
judgment, in a court of competent jurisdiction, claims arising out
NYPD’s denial of his application. He cannot now revive claims that
were or could have been litigated in the prior proceeding. Nor can he
avoid the preclusive effect of the earlier judgment by adding claims for
money damages or lodging a facial challenge because he could have
sought money damages and could have challenged NYPD’s
implementation of state law in all applications in his hybrid article 78
action/proceeding. Thus, he is precluded from raising those claims here.
In any event, on the merits, all of his federal claims fail. First,
nothing in existing Second Amendment case law even gestures at a
protection from being required to answer relatively non-intrusive
background questions on a license application. And this Court has
already upheld New York proper-cause requirement. Second, there is no
merit to his equal protection claim—based on the idea that he is being
treated differently than former law-enforcement officers who retired in
good standing—because the regulations survive rational-basis scrutiny
and he and retired officers are not sufficiently similarly situated to
support an equal-protection claim.
2
ISSUES PRESENTED FOR REVIEW
1. Where Corbett unsuccessfully litigated claims arising out of
a permit denial in a hybrid CPLR article 78 and plenary action in state
court to final judgment, do principles of issue preclusion and claim
preclusion bar him from subsequently bringing a lawsuit based on that
same permit denial in federal court?
2. In the alternative, did the district court properly dismiss
Corbett’s Second Amendment and equal-protection claims stemming
from the denial of a permit to carry a concealed firearm, where (a) the
standard-form application and the state-law requirement that he show
an above-average need to carry a concealed firearm survive heightened
means-end scrutiny because they are substantially related to protecting
public safety, and (b) regulations rationally treat current and former
law-enforcement officers differently than other applicants?
STATEMENT OF THE CASE
A. Regulatory landscape
The New York City Police Department is tasked with protecting
the City’s residents and visitors from senseless gun violence and
accidental shootings. See Admin. Code § 131. NYPD achieves this
critical public mission by, among other things, dutifully administering

3
New York State’s handgun laws within the city’s boundaries. Among
the most important and longstanding of these laws are the licensure
requirements for handgun possession, which date back to 1911. Ch. 195,
1911 N.Y. Laws 442-43, §§ 1896-97.
Without an applicable handgun permit from NYPD, it is a crime
to keep or carry a handgun anywhere in the city—a restriction that
dates back to 1911. Penal Law § 265.00; 38 RCNY § 5-10. There are
several types of handgun licenses. The easiest to get, a “premises
license,” authorizes the holder to possess a handgun at home or work for
purposes of self-defense. Penal Law § 400.00(2)(a), (b). “[A] license to
possess a handgun in one’s home [is not] difficult to come by.” People v.
Hughes, 22 N.Y.3d 44, 50 (2013). The Penal Law also creates both
restricted and unrestricted concealed-carry licenses, which authorize
the holder to carry concealed handguns in public places, whether for
business or other purposes. Penal Law § 400.00(2)(c)-(f). Concealed-
carry permits are issued for specific purposes, such as for particular
employment, and can be tailored to the purposes that justify their
issuance. O’Connor v. Scarpino, 83 N.Y.2d 919, 921 (1994).
4
State law requires NYPD to conduct a background investigation
into all handgun-permit applicants and to investigate the accuracy of
all statements made in handgun permit applications before issuing or
renewing permits. Penal Law § 400.00(4). Under the Penal Law, to be
eligible for any type of handgun permit, an applicant must, among other
things, disclose various personal background information, be at least
twenty-one years old, “possess good moral character,” not have any
serious criminal history, and not be “an unlawful user of or addicted to
any controlled substance.” Penal Law § 400.00(1)(a)-(n). Accordingly,
NYPD conducts a robust background investigation into each applicant’s
moral character before issuing any person a permit to keep or carry a
handgun in the city.
NYPD has promulgated regulations closely tracking the Penal
Law to govern its review of handgun permit applications. 38 RCNY
Chap. 5. NYPD’s regulations set out a non-exhaustive and non-
dispositive list of factors to be considered by its licensing officers in
assessing the qualifications of all handgun permit applicants, including
whether the applicant refuses to provide information requested by the
License Division, refuses to cooperate with the Division’s background
5
investigation, or exhibits “a lack of candor towards lawful authorities.”
38 RCNY § 5-10(m), (n).
In addition to satisfying the general qualifications for any
handgun permit, an applicant for a full-carry permit allowing the holder
to carry a concealed handgun without any restrictions (the type of
permit Corbett sought) must also show that there is “proper cause” for
issuance of the permit. Penal Law § 400.00(2)(f); 38 RCNY § 5-03.
Applicants have proper cause when they have “a special need for self-
protection distinguishable from that of the general community or of
persons engaged in the same profession.” Klenosky v. N.Y.C. Police
Dep’t, 75 A.D.2d 793, 793 (1st Dep’t 1980), aff’d on op. below, 53 N.Y.2d
685 (1981); Martinek v. Kerik, 294 A.D.2d 221, 222 (1st Dep’t 2002).
B. Factual background
In December 2015, Jonathan Corbett applied to NYPD’s Licensing
Division for a permit to carry a concealed handgun (Joint Appendix
(“JA”) 11). Section B of the standard-form handgun license application
states: “Applicants must answer questions 10 through 24,” and directs
applicants to complete an addendum “to explain such answer(s) in
detail” (JA219). Corbett did not answer all of the questions in Section B;
6
he declined to check either the “yes” or “no” boxes for questions 11, 12,
and 13, which ask whether the applicant has ever:
11. Been discharged from any employment?
12. Used narcotics or tranquilizers? List

doctor’s name, address, telephone number,
in explanation.
13. Been subpoenaed to, or testified at, a

hearing or inquiry conducted by any
executive, legislative or judicial body?
(JA219). In an attached addendum, Corbett wrote that he “refuse[d] to
answer questions 11, 12, and 13 because they are entirely irrelevant as
to whether [he is] qualified to carry a handgun.” (JA13). He refused to
reveal whether he had ever taken narcotics or tranquilizers because he
believes the question is a “subterfuge to allow NYPD to unlawfully deny
licenses” and “NYPD does not have the qualifications, nor any
appropriate procedure, to determine if the usage of such medication is
an indicator that a license should not be granted” (id.).
As required by the standard-form application, he also submitted a
“Letter of Necessity” to explain his need to carry a concealed handgun
in public. He wrote that he “conducts business as a civil rights
advocate,” and “to exercise his civil rights fully, he needs a carry
7
license” (JA221). He made no attempt to show that he has any need to
carry a handgun in public for self-defense.
NYPD denied Corbett’s application. The denial letter cited two
reasons for this decision: first, because Corbett refused to complete the
application form as required by 38 RCNY § 5-05(a)—by refusing to
answer three of the questions on the standard form—and second,
because he failed to demonstrate “proper cause” as required by 38
RCNY § 5-03 (JA21).
Corbett appealed to NYPD’s Appeal Unit, which denied his
administrative appeal (JA106). He then filed a “hybrid” article 78
petition and declaratory judgment action seeking review of NYPD’s
final denial of his concealed-carry handgun permit application and also
challenging NYPD’s unrelated decision not to release certain records
relating to handgun licenses under New York’s Freedom of Information
Law (JA59–71).
A Justice of the New York Supreme Court denied Corbett’s
petition and dismissed the hybrid proceeding after rejecting Corbett’s
constitutional challenges to questions 11, 12, and 13 and the proper-
cause requirement (JA127–29). The court held that the licensing
8
scheme passed constitutional muster under intermediate scrutiny and
his application was lawfully denied (JA129). Corbett appealed that
decision to the New York Supreme Court, Appellate Division, First
Department, which affirmed the decision (JA213–14). He sought leave
to appeal to New York’s highest court, the New York Court of Appeals,
which was denied (JA216).
Corbett then commenced this federal action in in the U.S. District
Court for the Southern District of New York seeking injunctive and
declaratory relief (JA45). He claims that NYPD’s background questions
and its implementation of the proper-cause requirement violate his
right to keep and bear arms, and that the proper-cause requirement
also violates his right to equal protection because the scheme treats
retired law-enforcement officers differently than other applicants, such
as himself (JA43–44). He alleges that retired NYPD officers who obtain
a “good guy” letter from a superior stating they have retired in good
standing are exempt from showing that they satisfy the proper-cause
requirement on an individualized basis (id.). He also claimed that
9
corruption within the NYPD Licensing Division violated his right to due
process, but has since abandoned that claim (JA42).1
The district court (J. Failla), granted the defendants’ motion to
dismiss the complaint in its entirety on preclusion grounds, and, in the
alternative, on the merits (JA246–72). Corbett filed a motion for
reconsideration, arguing that his complaint could escape dismissal on
preclusion grounds if he were permitted to replead to add a facial
challenge and a request for money damages. The district court denied
the motion because, even putting preclusion to one side, his claims
would still fail on the merits (JA274). Corbett appeals from both
decisions (JA273, 276).
STANDARD OF REVIEW AND

SUMMARY OF ARGUMENT
On a de novo review the district court’s grant of a motion to
dismiss and ruling on res judicata, Brown Media Corp. v. K&L Gates,
LLP, 854 F.3d 150, 157 (2d Cir 2017), this Court should affirm the
dismissal of Corbett’s complaint in its entirety. In previous lawsuit in
state court, Corbett already litigated claims arising out of the denial of
1On appeal, Corbett has expressly abandoned his due-process challenge (Brief for
Appellant 4 n.1).
10
his application for a permit to carry a concealed firearm. As the district
court correctly held, as a result, he is now foreclosed under the doctrine
of claim preclusion from pursuing any claims that he litigated or could
have litigated in that prior proceeding (see Point I.A). Moreover,
because Corbett actually made and lost many of the exact same
arguments that he makes here when challenging the NYPD’s
questionnaire and its implementation of the proper-cause requirement
in state court, he is precluded from seeking a different resolution of
these issues here under the doctrine of issue preclusion (see Point I.B).
Preclusion aside, the district court correctly dismissed all of
Corbett’s challenges on the alternative ground that they fail to state a
claim. His Second Amendment challenge to three questions on the
NYPD’s standard-form background questionnaire fails because the
questions pass constitutional muster (see Point II.A). They are
minimally burdensome, if at all, and serve the “substantial and
legitimate interest” of guiding the direction of NYPD’s background
11
investigation, as the state court has already concluded. Corbett v. City
of N.Y., 160 A.D.3d 415, 416 (1st Dep’t 2018) (cleaned up). 2
Likewise, his challenge to the state-law proper-cause requirement
fails on the merits because this Court already upheld this requirement
against a Second Amendment challenge in Kachalsky v. County of
Westchester, 701 F.3d 81, 98 (2d Cir. 2012), and is bound by that
decision. Corbett’s citation to three out-of-circuit cases that arguably
depart from Kachalsky does not provide grounds to rehear this case en
banc to overturn Kachalsky (see Point II.B).
Finally, there is no merit to Corbett’s equal-protection claim, as
there are good reasons to treat the applications of current and former
law-enforcement officers differently from the applications of other
citizens for permits to carry concealed firearms. Former law-
enforcement officers have had extensive training in the safe use of
firearms and have demonstrated their commitment to protecting their
communities, and so their carrying of concealed firearms poses fewer
risks to the public. Moreover, given their prior work in the criminal-
2 This brief uses “(cleaned up)” to indicate that internal quotation marks,
alterations, or citations have been omitted from quotations.
12
justice system, former law-enforcement officers are more likely to be
targeted for retribution by criminals than others. Thus, whether on the
preclusion grounds or on the merits, the district court’s dismissal of
Corbett’s complaint should be affirmed.
ARGUMENT
POINT I
CORBETT’S CLAIMS ARE PRECLUDED BY

HIS PRIOR STATE-COURT LITIGATION
The district court correctly dismissed Corbett’s complaint as
barred by the preclusive effect of the state-court litigation (JA260). The
doctrines of “claim preclusion and issue preclusion, which are
collectively referred to as ‘res judicata,’” Taylor v. Sturgell, 553 U.S.
880, 892 (2008), both apply here because Corbett has already litigated
claims arising out of NYPD Licensing Division’s permit denial in state
court, where he fully and fairly litigated most of the issues that he now
raises in federal court.
Corbett does not address the district court’s preclusion holding
because, he asserts, the court accepted that a “technical amendment”
could cure any preclusion problem (Appellant’s Brief (“App. Br.”) 10–
11). He’s wrong. The court rejected his attempt to seek reconsideration
13
to “sharpen the issues for appeal” as impermissible “gamesmanship”
and as futile, because he did not dispute that even if he could get past
preclusion, his suit would still fail on the merits (R275). This Court
need not reach the merits because claim preclusion bars all of his
claims, issue preclusion bars his Second Amendment claims, and no
“technical amendment” of his pleadings could change that result.
A. Claim preclusion defeats all of Corbett’s claims.
Claim preclusion forecloses Corbett’s attempt to litigate claims
arising out of NYPD’s denial of his application for a permit to carry a
concealed firearm. The doctrine bars relitigation of claims that were
either “brought and decided in a prior litigation,” or “relat[e] to the
same transaction against the same defendant that could have been
brought at that time.” N. Assur. Co. of Am. v. Sq. D Co., 201 F.3d 84, 87
(2d Cir. 2000). The doctrine assures the finality of judgments, fosters
judicial economy, and protects parties from expensive piecemeal
litigation by ensuring that when a party prevails, it “does not have to
defend that victory again.” Id. at 89.
The preclusive effect given to a New York state-court judgment by
a federal court is controlled by New York law. Marvel Characters, Inc. v.
14
Simon, 310 F.3d 280, 286 (2d Cir. 2002). New York’s transactional
approach to claim preclusion bars plaintiffs from later litigating claims
arising out of the “same factual grouping as an earlier litigated claim,”
even if the new claim “is based on different legal theories or seeks
dissimilar or additional relief.” New York v. Mt. Tobacco Co., 942 F.3d
536, 543 (2d Cir 2019) (cleaned up); Monahan v. N.Y.C. Dep’t of Corr.,
214 F.3d 275, 285 (2d Cir. 2000). 3
Corbett previously litigated in an earlier state-court suit the very
same Second Amendment claims that he has pleaded in his federal
complaint. In his state suit, he alleged that the NYPD violated the
Second Amendment in its implementation of the State’s firearm-
licensing scheme by (1) asking three questions on its standard
application questionnaire that he claimed are impermissibly intrusive
and (2) requiring “proper cause” for issuance of a carry permit (JA60,
65, 117-22). Corbett’s attempt to relitigate these claims—lifted virtually
3 The earlier action must also be resolved on the merits and involve the same
parties, or parties in privity. Mt. Tobacco Co., 942 F.3d at 543. It is not disputed
that those elements are met here.
15
verbatim from his state-court pleadings (compare JA62–70 with JA39–
44)—is foreclosed.
Although Corbett did not press his equal-protection claim in the
state litigation, preclusion applies with the same force to claims that he
could have raised in the earlier action but did not, to the extent they
arise out of the “same factual grouping” as the earlier litigated claim,
even if the new claim “is based on different legal theories.” Mt. Tobacco
Co., 942 F.3d at 543 (cleaned up); Marcel Fashions, 898 F.3d at 236–37.
He could have included his new legal theory—that his application was
treated differently from the applications of similarly situated retired
law-enforcement officers—in his earlier state-court litigation, as this
new theory arises out of the same transaction: NYPD’s denial of his
application for a concealed-carry permit.
Perhaps recognizing that he already litigated identical Second
Amendment claims in state court and could have brought his equal-
protection claim there as well, Corbett argued to the district court,
(JA5, ECF Dkt No. 19), that the state court’s judgment is not due
preclusive effect because he could hypothetically amend his federal
complaint to request money damages or to add a facial challenge,
16
neither of which he sought in state court. While claim preclusion is
generally inapplicable where “the initial forum did not have the power
to award the full measure of relief sought in the later litigation,” that
rule has no application here. Burgos v. Hopkins, 14 F.3d 787, 790 (2d
Cir. 1994) (cleaned up). Corbett’s state-court action was a “hybrid”
article 78 and plenary action in which he could have sought money
damages or made a facial challenge.
First, even assuming that Corbett actually suffered any
compensable harm on account of his carry-permit application being
denied, he could have sought damages in his state suit. In the article 78
component of Corbett’s state-court case, he sought judicial review of the
NYPD’s administrative decision and could have secured damages that
were incidental to that primary relief. N.Y. C.P.L.R. 7806. Thus, the
article 78 judgment, alone, precludes any claim for direct damages
resulting from his permit denial. See Parker v. Blauvelt Volunteer Fire
Co., 93 N.Y.2d 343, 347–49 (1999) (claim preclusion applies to “a claim
for damages that could have been presented in a prior CPLR article
78 proceeding against the same party, based upon the same harm and
arising out of the same or related facts”).
17
What’s more, Corbett’s state case was not solely an article 78
proceeding, but a “hybrid” action/proceeding. In the plenary (action)
branch of his state-court lawsuit, Corbett sought an order compelling
NYPD to make certain statutory disclosures relating to firearm-permit-
application denials. But, having filed a single hybrid complaint both
seeking administrative review under CPLR article 78 and asserting
plenary causes of action, he could have raised any argument about his
permit denial and sought any available relief under 42 USC § 1983. See,
e.g., Coleman v. Daines, 19 N.Y.3d 1087, 1089 (2012) (reviewing
dismissal of hybrid article 78 and plenary 42 USC § 1983 action);
Karamalla v. Devine, 159 A.D.3d 1368, 1368 (4th Dep’t 2018) (affirming
certification of class in hybrid article 78 and 42 USC § 1983 action);
Mulcahy v. N.Y.C. Dep’t of Ed., 99 A.D.3d 535, 536 (1st Dep’t 2012)
(reinstating an action denominated as an article 78 as a hybrid article
78 proceeding/42 USC § 1983 action). Thus, claim preclusion would
apply regardless of whether Corbett added a claim for money damages
to his federal complaint. Sheffield v. Sheriff of the Rockland Cnty.
18
Sheriff Dep’t, 393 F. App’x 808 (2d Cir. 2010) (holding dismissal of
hybrid state-court proceeding precludes subsequent federal action).4
Second, the possibility of amending his federal complaint to add a
facial challenge would not allow Corbett to avoid preclusion. Even
reading Corbett’s state-court complaint as raising only an as-applied
challenge (but see JA70, Prayer for Relief, seeking a declaration that
that “Penal Law § 400.00(2)(f) is facially unconstitutional”), he could
have easily also raised a facial challenge in his hybrid proceeding. See,
e.g., LeadingAge NY, Inc. v. Shah, 32 N.Y.3d 249, 257 (2018)
(considering facial challenge raised as part of two hybrid article
78/declaratory-judgment actions).5
4 See also Ponterio v. Kaye, 2007 U.S. Dist. LEXIS 4105, at *24 (S.D.N.Y. Jan. 22,
2007) (same), aff’d, 328 F. App’x 671 (2d Cir. 2009); Monclova v. City of N.Y., 2017
U.S. Dist. LEXIS 218039, at *55 (E.D.N.Y. Mar. 31, 2017) (same), aff’d on other
grounds, 726 F App’x 83, 84 (2d Cir. 2018); Green Materials of Westchester v. Town
of Cortlandt, No. 15-cv-3257 (VB), 2015 U.S. Dist. LEXIS 170280, at *14–20
(S.D.N.Y. Dec. 21, 2015) (precluding § 1983 claims where plaintiff previously
brought a hybrid action seeking both article 78 relief and a declaratory judgment).
5 As Corbett implicitly recognizes in filing a petition for rehearing en banc in this
Court, his facial challenge to the proper-cause requirement was actually on better
footing in state court that it is before this Court. This Court has already considered
and rejected an identical challenge to the proper-cause requirement. Kachalsky v.
County of Westchester, 701 F.3d 81, 98 (2d Cir. 2012). In his state-court proceeding,
while “[t]he views of the Second Circuit [were] entitled to respect,” the state court
was only “bound, on Federal questions, under the rule of stare decisis by the
decisions of the Supreme Court,” so was not “bound” to follow Kachalsky Fields v.
(cont’d on next page)
19
Indeed, even if he had brought a traditional article 78 proceeding,
the state court would have converted his suit to an action/proceeding to
reach any facial claims. See Freddolino v. Vil. of Warwick Zoning Bd. of
Appeals, 192 A.D.2d 839, 841 (3d Dep’t 1993) (finding facial challenge
barred by a previous article 78 that could have been converted to a
hybrid proceeding); Carney v. N.Y. State Dept. of Motor Vehs., 133
A.D.3d 1150, 1151, n.* (3d Dep’t 2015) (converting an article 78 petition
raising a facial challenge into a hybrid petition/complaint). Because
Corbett could have litigated any facial challenge in state court in his
earlier hybrid action/proceeding, the district court properly denied leave
for a late-breaking amendment of his federal complaint to add a facial
challenge that could not have avoided dismissal under claim preclusion.
Bd. of Higher Educ., 94 A.D.2d 202, 207 (1st Dep’t 1983); Gold v. N.Y. Life Ins. Co.,
153 A.D.3d 216, 223 (1st Dep’t 2017) (declining to follow Second Circuit precedent,
because state courts write on a clean slate, while the Circuit is bound by its own
prior decisions unless overruled by an en banc Circuit panel or by the Supreme
Court).
20
B. Alternatively, issue preclusion bars Corbett’s

Second Amendment claims because these exact
issues were necessarily decided against him in
state court.
Although claim preclusion bars Corbett’s entire federal suit, issue
preclusion—or collateral estoppel—would also bar Corbett’s Second
Amendment claim, even if he now seeks money damages or presents
this claim as a facial challenge. 6 Under the doctrine of issue preclusion,
“an issue of law or fact actually litigated and decided by a court of
competent jurisdiction in a prior action may not be relitigated in a
subsequent suit between the parties or their privies.” Ali v. Mukasey,
529 F.3d 478, 489 (2d Cir. 2008); Vargas v. City of New York, 377 F.3d
200, 205-06 (2d Cir. 2004). The doctrine conclusively establishes legal or
factual issues, even if they arise in different causes of action. See
Lafleur v. Whitman, 300 F.3d 256, 271–74 (2d Cir. 2002) (article 78
proceeding established that a permit was lawfully issued, defeating a
subsequent federal suit raising a different claim that was predicated on
the permit issuance having been unlawful).
6Issue preclusion does not bar Corbett’s equal-protection claim because it was not
actually litigated in state court.
21
Here, in his hybrid state-court action, Corbett fully and fairly
litigated his claims that three questions on the standard-form
questionnaire and the proper-cause requirement impermissibly burden
his Second Amendment rights (JA150–53). Id. at 274. See also
Constantine v. Teachers College, 448 F. App’x 92, 94 (2d Cir. 2011)
(article 78 proceeding provided plaintiff full and fair opportunity to
litigate). The state court squarely rejected both of these contentions.
First, the New York Supreme Court, Appellate Division held that
the challenged questions, “designed to elicit information that can assist
the [NYPD’s] background investigation,” pass muster because “they
serve to promote the government’s substantial and legitimate interest
… in insuring the safety of the general public from individuals who, by
their conduct, have shown themselves to be lacking the essential
temperament or character which should be present in one entrusted
with a dangerous instrument.” Corbett v. City of N.Y., 160 A.D.3d 415,
416 (1st Dep’t 2018) (cleaned up). Second, the court also held that, as
implemented by the City, “the ‘proper cause’ element of New York’s
handgun licensing scheme passes intermediate constitutional scrutiny,
as it is substantially related to the state’s important interest in
22
protecting public safety.” Id. at 415–16 (cleaned up). New York’s highest
court declined to review these holdings (JA216). Corbett is thus
collaterally estopped from relitigating these issues in federal court. See
Vargas, 377 F.3d at 205–06; Parker v. Blauvelt Volunteer Fire Co., 93
N.Y.2d 343, 347–49 (1999) (even where res judicata does not apply,
collateral estoppel precludes plaintiffs from “rais[ing] any of the issues
[they] unsuccessfully litigated in [a] prior CPLR article 78 proceeding”).
POINT II
IN THE ALTERNATIVE, CORBETT FAILED

TO STATE A CLAIM UNDER THE SECOND
AMENDMENT OR THE FOURTEENTH
AMENDMENT’S EQUAL PROTECTION
CLAUSE
A. Corbett’s Second Amendment challenge to three

questions on the standard-form background
questionnaire fails on the merits.
There is no merit to Corbett’s Second Amendment challenge to
three questions on NYPD’s background questionnaire. The district
court’s dismissal on the merits was correct for the same reasons that
the state court correctly dismissed Corbett’s article 78 proceeding.
Corbett argued in state court (JA155–58), as he does here (App. Br. 14–
15), that the questions fail under intermediate scrutiny because they
are not sufficiently closely tailored to their stated purpose of identifying

23
persons unfit to carry a firearm in New York. But, as NYPD already
explained in response to these same arguments in state court (JA197–
201), Corbett is incorrect.
Second Amendment challenges should be evaluated under a two-
step approach: at the first step, the Court determines the degree of
infringement, if any, on conduct within the scope of the Second
Amendment, and, at the second step, it considers the government’s
proffered justification, requiring a stronger interest and a closer fit from
laws that more substantially burden protected conduct. See N.Y. State
Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 254 (2d Cir 2015); United
States v. Decastro, 682 F.3d 160, 166–68 (2d Cir. 2012). Corbett’s claim
fails at either step. He has not identified a cognizable burden on his
Second Amendment rights and any conceivable burden is negligible and
entirely justified by the State’s substantial interest in being able to
competently perform background investigations.
First, the entire “burden” that Corbett has identified is having to
truthfully answer questions, since the answers themselves are not
dispositive of the outcome of the license application and the answers are
kept confidential. See 38 R.C.N.Y. § 5-10 (“License Division shall
24
consider all relevant factors”); N.Y. Penal Law § 400.00(5)(d) (handgun
applications are confidential and “excepted from disclosure”). Any
burden that answering the questions truthfully may impose is minimal,
as the questions themselves—about an applicant’s job history,
prescription-drug history, and prior sworn testimony—are not
numerous or intrusive. See Decastro, 682 F.3d at 168 (finding restriction
on transporting firearms into the state did not burden the Second
Amendment where there were ample other means to obtain firearms).
Corbett implies that these questions are on par with a demand for
a catalogue of “former lovers,” which he suggests might be even more
helpful in sussing out an applicant’s moral fiber (App. Br. 16). But while
there is information that is so deeply personal that it is shielded from
disclosure by the constitutional rights of privacy and confidentiality—
such as, perhaps, a catalogue of lovers—none of the information sought
by NYPD is of such an “excruciatingly private and intimate nature” to
implicate those rights. See Powell v. Schriver, 175 F.3d 107, 111 (2d Cir.
1999) (transsexualism is of such a deeply personal nature that it is
protected from compelled disclosure); Doe v City of N.Y., 15 F.3d 264,
269 (2d Cir. 1994) (same, regarding HIV-positive status); Matson v. Bd.
25
of Educ. of the City Sch. Dist. of N.Y., 631 F.3d 57, 67 (2d Cir. 2011)
(“[A]lthough fibromyalgia is a serious medical condition, it does not
carry with it the sort of opprobrium that confers upon those who suffer
from it a constitutional right of privacy as to that medical condition”).
Second, even assuming there was some constitutionally cognizable
burden in answering the challenged questions, then, as NYPD
explained in state court (JA199–200), the questions would survive
intermediate scrutiny, which this Court has held applies to regulations
that do “not burden the ‘core’ protection of self-defense in the home.”
Kachalsky v. County of Westchester, 701 F.3d 81, 93 & n.17 (2d Cir.
2012). The questions survive such scrutiny because they are designed to
advance NYPD’s substantial interest in illuminating potential avenues
for its background investigation. So, for example, an investigation
might focus on an applicant’s mental health if the applicant has been
fired from multiple jobs, or might delve into possible drug interactions
or drug abuse if the applicant has an unusual prescription history
involving narcotics or tranquilizers. The minimal burden of having to
answer these questions is more than justified by the compelling need to
26
craft effective background questions to probe an applicant’s suitability
to possess a firearm in the city.
That Corbett disagrees with the utility of these particular
questions or believes that better questions might be crafted (App. Br.
17), does not render the questions designed by NYPD unconstitutional.
See Kachalsky, 701 F.3d at 98 (“New York’s law need only be
substantially related to the state’s important public safety interest. A
perfect fit between the means and the governmental objective is not
required.” (emphasis in original)). Indeed, under intermediate scrutiny,
NYPD’s judgments about how to best design its questionnaire are
entitled to “substantial deference,” Turner Broadcasting Sys. v. FCC,
520 U.S. 180, 195–96 (1997) (cleaned up), as NYPD is far better
positioned than Corbett or a court to weigh the various factors that go
into designing an effective background check. The questions NYPD
designed after exercising that expertise are minimally burdensome and,
if they trigger any means-end scrutiny, they survive it.
27
B. Corbett provides no argument that could warrant

revisiting this Court’s holding in Kachalsky.
Corbett argues that New York State’s proper-cause requirement,
N.Y. Penal Law § 400.00(2)(f), as implemented by the NYPD License
Division, is unconstitutional and that intermediate scrutiny is not the
appropriate yardstick by which to measure a restriction on the right to
carry firearms (App. Br. 24–25). But this Court considered and rejected
these exact arguments in Kachalsky, 701 F.3d at 93–101, and since
then, has repeatedly reaffirmed its two-step approach to Second
Amendment cases and the application of intermediate scrutiny to laws
that do not substantially burden the right to self-protection at home,
Cuomo, 804 F3d at 254; United States v. Jimenez, 895 F.3d 228, 236 (2d
Cir. 2018); Mishtaku v. Espada, 669 F App’x 35, 36 (2d Cir. 2016). 7
Corbett asks this Court to overrule Kachalsky because a split has
emerged among the circuits about the constitutionality of similar
requirements. But “[o]verruling precedent is never a small matter” and
7 A case currently pending in the Supreme Court, N.Y. State Rifle & Pistol Ass’n
Inc. v. City of New York, S. Ct. Dkt. No. 18-280 (argued Dec. 2, 2019), may alter the
landscape, but has not been decided as of the date of this brief. At the Court’s
request, we will provide additional briefing if that case is decided on the merits
during the pendency of this appeal.
28
“any departure from the doctrine [of stare decisis] demands special
justification—something more than an argument that the precedent
was wrongly decided.” Kisor v Wilkie, 139 S. Ct. 2400, 2422 (2019)
(cleaned up).
As explained above, the Kachalsky panel held that the proper-
cause requirement should be reviewed under intermediate scrutiny
because it is not a ban on the right to keep or bear arms akin to the ban
on home handgun possession invalidated in District of Columbia v.
Heller, 554 U.S. 570 (2008). Kachalsky, 701 F.3d at 91. Corbett
acknowledges this, but declares in a conclusory fashion that anything
less than strict scrutiny “is not the correct test when reviewing a law
that implicates the totality of the right to ‘bear’ arms” (App. Br. at 23–
34). He provides absolutely no argument—let alone “special
justification,” Kisor, 139 S. Ct. at 2422—for departing from this Court’s
prior holding in Kachalsky that the proper-cause requirement does not
trigger strict scrutiny because it does not substantially burden the right
to use a handgun for self-defense in the home. 701 F3d at 94.
The Kachalsky panel held that the proper-cause requirement
survives intermediate scrutiny, as it is “substantially related” to the
29
achievement of “substantial, indeed compelling, governmental interest
in public safety and crime prevention.” Id. at 97. This Court reasoned
the New York State Legislature’s decision to limit possession of
firearms in public “to those individuals who have an actual reason
(‘proper cause’) to carry the weapon,” was appropriately tailored to
address the particular safety risks posed by firearms in public. Id. at 98.
None of the cases on which Corbett relies (App. Br. 22–24 (citing
Young v. Hawaii, 896 F.3d 1044, 1068 (9th Cir. 2018), Wrenn v. District
of Columbia, 864 F.3d 650, 666 (D.C. Cir. 2017), and Moore v. Madigan,
702 F.3d 933 (7th Cir. 2012))), supplies a sufficient “special
justification” to overrule Kachalsky, which—as we previously explained
in state court (JA202–07)—was correctly decided and is in accord with
precedent from the overwhelming majority of circuit courts.8
8 Eligibility restrictions on concealed-carry permits, some quite similar to New

York’s proper-cause requirement, have been upheld by nearly every federal court of
appeals. See, e.g., Peruta v. Cnty. of San Diego, 824 F.3d 919 (9th Cir. 2016) (en
banc) (upholding California’s “good cause” eligibility requirement for concealed-
carry permit); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) (upholding New Jersey’s
“justifiable need” requirement for concealed-carry permit); Woollard v. Gallagher,
712 F.3d 865 (4th Cir. 2013) (upholding Maryland’s “good-and-substantial-reason”
requirement for concealed-carry permit).
30
In Young, a divided Ninth Circuit panel struck down a restriction
on open carry—which is not at issue here—after finding that the Second
Amendment protects a right to openly carry firearms outside the home.
896 F.3d at 1068–70. But the Ninth Circuit has since agreed to rehear
the case en banc, and has declared that the Young decision “shall not be
cited as precedent by or to any court of the Ninth Circuit.” 915 F.3d 681,
682 (9th Cir. 2019). In any event, the Young majority acknowledged
that in Peruta v. County of San Diego, 824 F.3d 919, 939 (2016) (en
banc), the Ninth Circuit, sitting en banc, had previously upheld a
proper-cause-like requirement and held that the Second Amendment
does not protect a right to carry concealed firearms in public. Young,
896 F.3d at 1050. Young does not provide a sufficient basis to reconsider
Kachalsky en banc.
Wrenn, likewise, does not warrant overruling Kachalsky. It is an
outlier decision that flatly rejects the overwhelming consensus
articulated by nearly every other circuit court to have considered a
challenge to eligibility restrictions on concealed-carry permits. Wrenn,
864 F.3d at 666; Young, 896 F.3d at 1075 (Clifton, dissenting). A split
D.C. Circuit panel held that the District of Columbia’s “good reason”
31
requirement impermissibly impinged on the “core” “individual right to
carry common firearms beyond the home for self-defense—even in
densely populated areas, even for those lacking special self-defense
needs.” Wrenn, 864 F3d at 667. In sharp contrast to this Court’s
decision in Kachalsky, 701 F.3d at 94, the Wrenn majority failed to heed
Heller’s guidance that the Second Amendment is “most acute in the
home,” which necessarily implies that it is “less acute outside the
home.” Wrenn, 864 F3d at 669 (Henderson, dissenting) (quoting Heller,
554 U.S. at 628).
Finally, in Moore v. Madigan, while rejecting Illinois’ total ban on
concealed carrying, the Seventh Circuit explained that “Illinois has lots
of options for protecting its people from being shot without having to
eliminate all possibility of armed self-defense in public,” and touted, as
an example of such options, “jurisdictions like New York State, where
officials have broad discretion to deny applications for gun permits,” but
do not ban them entirely. 702 F.3d at 940. Indeed, since Moore, the
Seventh Circuit has repeatedly upheld various aspects of Illinois’s new
concealed-carry permitting regime. See Berron v. Ill. Concealed Carry
Licensing Review Bd., 825 F.3d 843, 847 (7th Cir. 2016) (upholding
32
authority of licensing agency to withhold concealed-carry permits for
public safety reasons); Culp v. Raoul, 921 F.3d 646, 654 (7th Cir. 2019)
(upholding residency restrictions on concealed-carry permits).
Again, this Court need not reach Corbett’s challenge to the proper-
cause requirement for three reasons: he is precluded, his application
was alternatively denied for failure to complete the standard-form
background questionnaire, and stare decisis binds this panel to its
previous holding. But even putting all that aside, the State’s proper-
cause requirement and NYPD’s implementation of it pass constitutional
muster.
C. Corbett’s equal-protection claim was properly

dismissed.
Corbett asserts that he has stated a “class-of-one” equal-protection
claim on behalf of “millions of ‘classes of one’” (App. Br. 19 n.10). He is
mistaken for two reasons. First, the claim that he has pled in his
complaint is better understood as a traditional equal-protection claim—
a claim on which he cannot prevail because the distinction drawn by the
NYPD is entirely rational. Second, even if Corbett could proceed on a
class-of-one theory, he has failed to plead the high degree of similarly
33
between himself and former-law-enforcement applicants necessary to
state such a claim, as the district court correctly found.
1. NYPD’s different treatment of law-enforcement

applicants and other applicants is rational.
Corbett’s claim is best understood as a traditional equal-protection
claim—a claim on which he cannot prevail. Such a claim exists to
vindicate the right secured by the Fourteenth Amendment’s Equal
Protection Clause that “all persons similarly situated … be treated
alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
(1985). The prototypical case involves a law that treats similarly
situated categories of persons unequally based on a classification. See,
e.g., New Orleans v. Dukes, 427 U.S. 297 (1976) (reviewing law favoring
pushcart vendors of certain longevity over other vendors); Williamson v.
Lee Optical of Okla., Inc., 348 U.S. 483 (1955) (optometrists over
opticians). 9 As this Court has recently clarified, in addition to this
9 See also Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949) (vehicle-
operators advertising the owner’s products over other advertising vehicles); Kotch v.
Bd of River Port Pilot Comm’rs for Port of New Orleans, 330 U.S. 552 (1947)
(persons related to current river-boat pilots over those unrelated to current pilots);
Yuen Jin v Mukasey, 538 F.3d 143, 158 (2d Cir. 2008) (one category of
undocumented immigrants over another).
34
traditional class-based equal-protection claim, there are two theories
that “offer distinct pathways for proving a non-class-based Equal
Protection violation,” namely, the class-of-one and selective-enforcement
theories. Hu v. City of New York, 927 F.3d 81, 93 (2d Cir 2019)
(emphasis added) (citing Village of Willowbrook v. Olech, 528 U.S. 562
(2000), and LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980)).
The claim that Corbett attempts to state is a traditional class-
based equal-protection claim: a class of persons (former-law-
enforcement-officer applicants) is allegedly receiving favorable
treatment from the government, as compared to another class of
similarly situated persons (non-law-enforcement applicants, including
Corbett himself) (App. Br. 18–21). Thus, although there is some support
for Corbett’s class-of-many-ones theory, see, e.g., Progressive Credit
Union v. City of N.Y., 889 F.3d 40, 49 (2d Cir 2018), his claim is better
understood as a traditional class-based claim.
Corbett’s claim falters under the rational-basis framework that
applies to class-based equal-protection claims that do not target a
suspect class or the exercise of a fundamental right. Romer v. Evans,
35
517 U.S. 620, 631 (1996). 10 Under this framework, NYPD’s scheme is
presumed valid and sustained so long as “the classification drawn by [it]
is rationally related to a legitimate state interest.” Cleburne, 473 U.S.
at 439; see also Romer, 517 U.S. at 631. As Corbett recognizes (App. Br.
18–19), unlike other civilian applicants, former police officers retiring in
good standing have received extensive training in carrying firearms in
public and have demonstrated their willingness to risk their safety to
protect the public. And, by nature of their former profession, retired
officers will have assisted in investigations, arrests, and prosecutions of
often-times dangerous criminals, and may be targeted for retribution,
thus supporting a reasonable conclusion that they have an above-average
need for self-defense. As a result, it is rational to find that they satisfy the
proper-cause requirement without any further individualized showing.
10 Corbett does not argue that heightened scrutiny applies to his equal-protection
claim. Nor should it. In Kwong v. Bloomberg, a majority of this Court applied
rational-basis review to an equal-protection challenge to a different portion of New
York’s handgun-licensing scheme that allowed for higher application-processing fees
to be charged in certain municipalities. 723 F.3d 160, 170 & n. 19 (2d Cir 2013);
Hayden v. Paterson, 594 F.3d 150, 170 (2d Cir. 2010) (applying rational-basis review
to equal-protection challenge to felon-disenfranchisement law, as the challenged law
did not classify persons by protected characteristic); Culp, 921 F.3d at 658 (rejecting
attempt to recast Second Amendment claim as an equal-protection claim).
36
Corbett is skeptical of these justifications and believes this
differential treatment for all former police officers who retire in good
standing is over-inclusive (App. Br. 19). 11 But, under rational-basis
review, “a law will be sustained if it can be said to advance a legitimate
government interest, even if the law seems unwise or works to the
disadvantage of a particular group, or if the rationale for it seems
tenuous,” Romer, 517 U.S. at 632, and even if the law is “over ([or]
under) inclusive,” Hayden, 594 F.3d at 171.
Indeed, distinguishing former law-enforcement officers from
private citizens in the issuance of concealed-carry permits aligns with
federal law. In the Law Enforcement Officers Safety Act of 2004
(LEOSA), Congress exempted qualified former-law-enforcement officers
from State laws prohibiting the carrying of concealed handguns. 108
P.L. 277; see 18 U.S.C. § 926C(a). LEOSA confirms the rationality of
11Corbett suggests that NYPD’s beekeeping officers do not carry firearms, but the
article that he cites does not discuss whether those officers are armed. It does note
that, when not catching bees, the officers in the beekeeping unit are patrolman
(App. Br. 19 n.9). See also Michael Schulman, When bees go rogue call the NYPD,
NEW YORKER (Sept. 17, 2018) (stating that “Officers Michael Lauriano and Darren
Mays … are regular policemen who happen to be bee enthusiasts” who respond, on
average, to two bee-related calls per week), available at
https://tinyurl.com/y7mhpzxz.
37
treating retired law-enforcement officers in good standing differently
from other people who wish to carry firearms in public. Thus, NYPD’s
decision to treat former-officer applicants differently from non-law-
enforcement applicants, like Corbett, easily survives rational-basis review.
2. Corbett failed to plead a class-of-one claim.
Assuming that a “millions of ‘classes of one’” (App. Br. 19 n.10)
claim could be cognizable, Corbett failed to state such a claim. To do so,
he was required to show an “extremely high degree of similarity
between” himself and his alleged comparators, such that “no rational
person could regard the circumstances of the plaintiff to differ from
those of a comparator to a degree that would justify the differential
treatment on the basis of a legitimate government policy,” Hu, 927 F.3d
at 93–94 (cleaned up).
As explained above, Corbett and former-law-enforcement-officer
applicants are not similarly situated: former officers are likely to have a
higher need for self-defense, due to the their prior involvement in the
arrests and prosecutions of criminals and demonstrated willingness to
act to protect the public, and are less likely to pose a risk to the public,
based on their extensive training and proven track record of safely
38
carrying firearms in public. Thus, even if such a claim were cognizable,
Corbett’s class-of-one claim would fail to show a sufficient degree of
similarity to sustain such a claim.
CONCLUSION
This Court should affirm the dismissal of the complaint and denial
of leave to replead.
Dated: New York, NY

January 15, 2020
Respectfully submitted,
JAMES E. JOHNSON
Corporation Counsel
of the City of New York
Attorney for Defendants-
Appellees
By: __/s/ Elina Druker ____________

ELINA DRUKER
Assistant Corporation Counsel
100 Church Street

New York, NY 10007
212-356-2609
edruker@law.nyc.gov
RICHARD DEARING
CLAUDE S. PLATTON
ELINA DRUKER
of Counsel
39
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief was prepared using Microsoft
Word 2010, and according to that software, it contains 7,591
words, not including the table of contents, table of authorities, this
certificate, and the cover.
________ _/s/ Elina Druker____________

ELINA DRUKER
40

Corbett V NYC Brief For Appellees

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Corbett V NYC Brief For Appellees

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Case 19-2152, Document 43, 01/15/2020, 2753611, Page1 of 49

CITY OF NEW YORK and THOMAS M. PRASSO,

On Appeal from the United States District Court

BRIEF FOR APPELLEES

January 15, 2020

Reproduced on Recycled Paper

TABLE OF AUTHORITIES .....................................................................iii

PRELIMINARY STATEMENT ................................................................. 1

ISSUES PRESENTED FOR REVIEW ..................................................... 3

STATEMENT OF THE CASE .................................................................. 3

B. Factual background .................................................................... 6

STANDARD OF REVIEW AND SUMMARY OF ARGUMENT ........... 10

CORBETT’S CLAIMS ARE PRECLUDED BY HIS PRIOR

A. Claim preclusion defeats all of Corbett’s claims. ..................... 14

B. Alternatively, issue preclusion bars Corbett’s Second

IN THE ALTERNATIVE, CORBETT FAILED TO STATE A

TABLE OF CONTENTS (cont’d)

A. Corbett’s Second Amendment challenge to three

B. Corbett provides no argument that could warrant

C. Corbett’s equal-protection claim was properly dismissed. ...... 33

1. NYPD’s different treatment of law-enforcement

2. Corbett failed to plead a class-of-one claim. ......................... 38

CERTIFICATE OF COMPLIANCE ........................................................ 40

Berron v. Ill. Concealed Carry Licensing Review Bd.,

Brown Media Corp. v. K&L Gates, LLP,

Carney v. N.Y. State Dept. of Motor Vehs.,

City of Cleburne v. Cleburne Living Ctr., Inc.,

Constantine v. Teachers College,

Corbett v. City of N.Y.,

District of Columbia v. Heller,

Doe v City of N.Y.,

TABLE OF AUTHORITIES (cont’d)

Freddolino v. Vil. of Warwick Zoning Bd. of Appeals,

Gold v. N.Y. Life Ins. Co.,

Green Materials of Westchester v. Town of Cortlandt,

Hu v. City of New York,

Kachalsky Fields v. Bd. of Higher Educ.,

Kachalsky v. County of Westchester,

Klenosky v. N.Y City Police Dep’t,

TABLE OF AUTHORITIES (cont’d)

Kotch v. Bd of River Port Pilot Comm’rs for

LeadingAge NY, Inc. v. Shah,

Marvel Characters, Inc. v. Simon,

Matson v. Bd. of Educ. of the City Sch. Dist. of N.Y.,

Monahan v. N.Y.C. Dep’t of Corr.,

Monclova v. City of N.Y.,

Mulcahy v. N.Y.C. Dep’t of Ed.,

N. Assur. Co. of Am. v. Sq. D Co.,

TABLE OF AUTHORITIES (cont’d)

N.Y. State Rifle & Pistol Ass’n v. Cuomo,

New Orleans v. Dukes,

New York v. Mt. Tobacco Co.,

Parker v. Blauvelt Volunteer Fire Co.,

Peruta v. Cnty. of San Diego,

Progressive Credit Union v. City of N.Y.,

Railway Express Agency, Inc. v. New York,

TABLE OF AUTHORITIES (cont’d)

Sheffield v. Sheriff of the Rockland Cnty. Sheriff Dep’t,

Turner Broadcasting Sys. v. FCC,

United States v. Decastro,

United States v. Jimenez,

Vargas v. City of New York,

Williamson v. Lee Optical of Okla., Inc.,