Friday, August 30, 2013

Good result for client, no fees for his lawyer

In some instances, attorneys fees are available to lawyers who get preliminary junctions. In order to get fees, the injunction must be granted on the merits. Otherwise, you have a great result for the client, but nothing for the lawyer.

The case is R.G. v. Warwick Valley School District, a summary order issued on August 21. This case goes back to 2004. The plaintiff was a schoolboy who got in trouble for alleged inappropriate activity with female classmates. The boy was suspended but the girls were not. The boy sued in federal court under the Equal Protection Clause over the unequal punishment.

Injunctions can issue if the trial court thinks the plaintiff has a likelihood of success on the merits of the claim and will suffer irreparable harm without the injunction. It's the "likelihood of success" element that reaches the merits of the case. Irreparable harm does not mean the plaintiff has a great case; it means the plaintiff will suffer an irreparable loss without the injunction, i.e., the loss of a constitutional right or the ability to attend school. In this instance, the trial court stayed the suspension pending a hearing on the merits. After the hearing, the boy graduated, and the case was mooted out. Counsel moved for attorneys' fees, which the district court denied since the favorable ruling that stayed the suspension was not on the merits but irreparable harm.

The Court of Appeals affirms. The general rule is that "[t]he procurement of a TRO in which the court does not address the merits of the case but simply preserves the status quo to avoid irreparable harm to the plaintiff is not by itself sufficient to give a plaintiff prevailing party status.” In this case, the Second Circuit says, "the transcript of the December 1, 2004 preliminary injunction hearing demonstrates that Judge Brieant’s decision was motivated 'by his concern for the irreparable harm the suspension would cause to M.G. while he exhausted administrative remedies, and not by his consideration of the merits of Plaintiffs’ claims.'” While Judge Brieant did say that “there do not seem to be any substantial issues of controverted fact which would require the taking of evidence at this stage,” he also noted that “[a]s to the ultimate merits, of course, plenary trial would be necessary.” That ambiguity does not entitle counsel to fees. Uncertain statements like this do not create prevailing parties.

Wednesday, August 28, 2013

Reminder: New York is an at-will employment state

Not all bad things at work can support a lawsuit. Any plaintiff's lawyer has said this countless times to potential clients who want to sue over unfair managerial treatment. This case illustrates how it all shakes out.

The case is Dowrich-Weeks v. Cooper Square Realty, a summary order decided on August 21. The lay person may not know this, but New York is an employment at-will state, which means that management can do whatever it wants so long as it does  not violate specific statutes, i.e., those prohibiting racial or gender or other forms of discrimination. The prohibitions are few, and management has wide leeway to run its business.

Plaintiff says she was discriminated against because of gender, race, and religion. As summarized by the Court of Appeals, "Weeks alleges that she endured the following adverse employment actions: (1) A Cooper Square vice-president made negative remarks about her to a client; (2) Weeks was moved from an office to a cubicle; (3) Weeks was not permitted to take advantage of an alternative work schedule that allowed periodic work from home; and (4) Weeks was 'demoted' from 'Residential Manager' with oversight responsibilities over four-to-five residential properties to 'On-Site Property Manager' with oversight responsibilities over only one property."

Her claim fails. "None of the first three actions constitutes 'a materially adverse change in the terms and conditions of employment' because such actions 'must be more disruptive than a mere convenience or an alteration of job responsibilities.'” In other words, these bad acts are not substantial enough to predicate a federal lawsuit. "As to the fourth action, Weeks alleges no facts supporting her conclusory assertion that she was 'demoted,' such as her having received 'a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.'”

Plaintiff also claims constructive discharge. You can win that claim if working conditions are so horrible that you have no choice but to leave. Courts don't like these claims; they don't want employees taking things into their own hands. Plaintiff's working conditions were not so terrible that she had to quit, the Court of Appeals says. "The allegations presented in the complaint as described supra do not rise to this level when considered either individually or cumulatively." Further weakening her claim is plaintiff's statement in her complaint that she left her job because she could not find child care.

Monday, August 26, 2013

Prosecutorial immunity is not a hard and fast rule

Prosecutorial immunity means that you cannot sue the District Attorney except in limited circumstances. The police can also invoke that immunity if they acted at the DA's direction, but that does not help the police in this case.

The case is Simon v. City of New York, decided on August 16. The general rule is that disgruntled people cannot sue the DA, lest the DA be sued each time he prosecutes someone. But if the DA is doing something in his administrative capacity -- as opposed to something he did in his prosecutorial function -- he only gets qualified immunity, which can be overcome if the facts show a clear civil rights violation. In this case, the DA's office mistakenly thought that Simon was a material witness in a car theft case (they confused Simon with her daughter, who had a similar name). Simon was taken against her will to the precinct on a warrant. She told the police she knew nothing about a stolen car. The defendants, including the police, tried to get the case against them dismissed on prosecutorial immunity, but the Court of Appeals reverses summary judgment and remands the case.

As the Second Circuit (Walker, Katzmann and Lynch) reminds us, "a prosecutor acting in the role of an advocate in connection with a judicial proceeding is entitled to absolute immunity for all acts intimately associated with the judicial phase of the criminal process." This includes deciding whether to bring charges, witness preparation and issuing subpoenas. They only get qualified immunity for "administrative duties and investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution for judicial proceedings." This includes investigation, arrest and detention, as well as giving legal advice to the police in the investigative phase of a criminal case, or assisting in a search and seizure or an arrest.

Even though they were following the ADA's orders, the police in this case do not have absolute immunity for plaintiff's detention against her will. Executing a material witness warrant is a police function, not a prosecutorial function. Since the police acted under the ADA's direction in executing the warrant but failed to adhere to the warrant's direction to bring plaintiff to court (they took her to the police station instead), they cannot invoke absolute immunity. This was an investigative interview, not the kind of witness preparation for which absolute immunity attaches.

Although the Second Circuit's decision is not clear on this, this holding likely applies to the ADA as well as the police officers. The ADA was a defendant-appellee and the district court threw out the case against all defendants. That ruling is reversed in its entirety. So here's the rule: detaining someone pursuant to a material witness warrant is not a prosecutorial function entitling law enforcement to prosecutorial immunity.

Thursday, August 22, 2013

Qualified immunity takes the fun out of circus protest case

Some animal rights activists were arrested for protesting the Ringling Brothers circus at a childrens' footrace event. Their case went to trial in Connecticut. The trial judge rejected the plaintiffs' false arrest claim on qualified immunity grounds. The Court of Appeals affirms in a decision that broadly applies qualified immunity in the context of public protests.

The case is Zalaski v. City of Hartford, decided on July 23. Ringling Brothers sponsored the race. The plaintiffs were protesting the circus's poor treatment of its animals (“Got Freedom? The Animals Don’t”), alarming some of the children. To allow the kids to complete the race and preserve the right to protest, the police situated the protesters at a nearby grassy knoll. When some protesters refused to move, Sgt. Albert directed the plaintiffs to stand at the patio steps. But that also raised a problem, so the plaintiffs were again told to move. The Court tells us what happened next:

On the steps, the protestors no longer obstructed the walkway where races would be run, but, with their outstretched signs, they did partially block access to the registration/refreshment area. Upon hearing complaints to this effect, Sergeant Albert asked the ARF protestors on the steps to join the other protestors on the grassy knoll. At trial, Albert explained that he made the request because he expected the problem of free passage on the steps to worsen as more races were run and more people sought access to the platform. Albert testified that he viewed his directive as a “reasonable compromise” between the protestors and other race attendees. If the protestors on the steps moved to the nearby grassy knoll, where other protestors were already located, then “[t]he platform would not be obstructed. They [i.e., the protestors] would have the right to demonstrate, and the marathon people, the [Ringling] people, would have their right to their private property and have their event and continue to, you know, give out the food and the prizes.”
After the plaintiffs were arrested for criminal trespass and misdemeanor obstruction of free passage, the charges were dropped and they sued but lost their civil rights claim in the district court. The plaintiffs appeal to the Second Circuit, which affirms the defendants' verdict.

On plaintiffs' claim that the police lacked probable cause to arrest them, the Court of Appeals (Raggi, Calabresi and Pooler) says that qualified immunity "provides a broad shield. It does so to ensure 'that those who serve the government do so with the decisiveness and the judgment required by the public good.' Toward that end, it affords officials 'breathing room to make reasonable but mistaken judgments' without fear of potentially disabling liability." This is as broad a definition of qualified immunity as you'll find in the Second Circuit, though it draws from precedent.

The officer had arguable probable cause to arrest the plaintiffs for obstructing the event. While the plaintiffs did not literally interfere with the childrens' race, the officer had an objectively good-faith basis to arrest them for obstruction. Judge Raggi writes,

Connecticut has not so clearly limited obstruction to the condition of fully blocking pedestrian traffic as to foreclose a reasonable officer from making an arguably correct finding of probable obstruction based on plaintiffs’ actions in blocking part of the steps at the Red Nose Run. This is not to suggest that an officer would have arguable probable cause to arrest an individual for disorderly conduct under the Connecticut statute based simply upon the person’s presence in a location being utilized by others. We conclude only that the facts known to the police in this case–namely, that individuals were holding a large banner, positioned partially in front of a clearly visible point of ingress and egress to be used predominantly by young children–permitted reasonable officers to think that probable cause existed to support arrests for disorderly conduct.
The Second Circuit also rejects the argument that the officers' primary intent was to disrupt plaintiffs' free speech rights. "Sergeant Albert never attempted to silence or delay that speech. Rather, he sought to relocate it by a modest distance of approximately 20 feet, from a set of steps where protesters were hindering pedestrian traffic to a nearby grassy knoll where other like-minded protestors were already situated and exercising their First Amendment rights." The Court adds,

In requesting relocation, Albert knew that organizers of the Red Nose Run had a permit for their activities. He knew that numerous young children would be participating in the Run and that those children, some by themselves, others with attending adults, would have to use the steps in moving between the walkway where races were to occur and the platform where a tent was set up for registration, prizes, and refreshments. Albert knew that some people had already complained that the protestors holding large banners were hindering pedestrian traffic on or near the steps. He anticipated that these concerns would only increase as more races were run.
All things considered, the Sergeant did what he had to do. "A reasonable officer could have concluded that the only thing plaintiffs would lose by moving from the steps to the grassy knoll was the ability to hinder the movement of children and other race attendees as they traveled from the walkway to the patio platform. And therefrom, at least some reasonable officers could have inferred from plaintiffs’ refusal to relocate to a site where their right to protest would be undiminished, but their ability to obstruct would be lost, that their predominant intent in insisting on staying on the steps was to obstruct pedestrian traffic."

Wednesday, August 21, 2013

No speech for you

In this First Amendment case, a public contractor that provided roadway construction and paving services to the New York State Department of Transportation suffered retaliation "after it became embroiled in a series of disputes with DOT relating to its work on two DOT projects." The contractor sues under the First Amendment. The case is rejected under Rule 12.

The case is Fahs Construction v. Gray, decided on August 8. Independent contractors do have First Amendment rights in retaliation cases. The Supreme Court said so in 1996. But the contractors, like everyone else, have to speak on matters of public concern. If the speech is too personal to the plaintiff, then the speech is not protected and the State can strike back at the contractor. That's what happened here. The Second Circuit (Pooler, Lohier and Carney) writes:

The content of Fahs’s speech was almost exclusively personal to the company. In filing claims with DOT, Fahs sought to recover additional compensation and secure extensions of time to complete its projects. Although at times Fahs’s speech may have “touch[ed] on a topic of general importance,” it “primarily concern[ed] an issue that is personal in nature” – Fahs’s compensation. The context of Fahs’s speech was also almost exclusively personal. The complaint makes clear that Fahs’s speech was meant to – and did – achieve the “resol[ution] [of its] claims to the substantial advantage of Fahs.” Nothing in the complaint suggests that Fahs attempted to use the claims process to shed light on DOT’s contracting practices more generally. In addition, the form of Fahs’s speech was exclusively nonpublic. In filing its claims and requests for extensions of time, Fahs availed itself of a dispute resolution mechanism entirely internal to DOT. Nothing in the complaint suggests that Fahs made a single public statement or ever intended to make such a statement.
Plaintiff also sues under the Equal Protection Clause, alleging that it was treated differently than another contractor, Lancaster. Claims like this are potentially viable, but this one is not, because plaintiff did not bring this action within three years of the last discriminatory act. "The only acts described in the complaint that are alleged to have occurred within the three-year limitations period are Gray’s alleged refusals to 'close out' (i.e., to complete the financial reconciliation of) the Fahs contract. But there are no comparable allegations about the treatment Lancaster received during the close-out phase of its contract. Because Fahs has not alleged any “non-time-barred acts” of discrimination, there is no basis to delay the start of the limitations period." Yes, that kind of precision is needed to sustain an equal protection claim. 

Tuesday, August 13, 2013

Arbitration kills off class action in FLSA overtime case

In June 2013, the Supreme Court handed down a ruling that limited when plaintiffs may bypass arbitration agreements in bringing class action lawsuits. That ruling overturned a Second Circuit decision. That ruling also puts the kabosh on another proposed class action brought under the Fair Labor Standards Act.

The case is Southerland v. Ernst & Young, LLP, decided on August 9. Southerland is the lead plaintiff in this class action that alleges that Ernst & Young denied its employees overtime pay under the FLSA. She calculates that her former employer shafted her out of 151.5 hours of overtime, amounting to $1,867.02 in lost overtime pay. Southerland would also sue on behalf of others who were also denied overtime pay. But when she began working there, Southerland signed an agreement that said that disputes like this will be resolved at arbitration. The agreement also says that these disputes "pertaining to different employees will be heard in separate proceedings." In other words, no class actions in arbitration.

Nothwithstanding the arbitration agreement, the district court cited In Re American Express Merchants' Litigation, 554 F.3d 300 (2d Cir. 2009) in holding that Southerland could bring this proposed class action in federal court. The rationale is that where it doesn't pay for the individual plaintiff to bring a suit like this, then the arbitration agreement's prohibition against class actions is not enforceable. Also, enforcing the arbitration agreement would deprive the plaintiffs of their substantive rights under federal law. Great news for Southerland.

But in June 2013, the Supreme Court overturned the American Express case, 133 S.Ct. 2304 (2013), and said that it does not matter if the individual arbitration is cost-prohibitive. If the arbitration agreement that the employee signed says that the labor dispute goes to arbitration, then it goes to arbitration. Bad news for Southerland. That ruling compels the Second Circuit (Winter, Cabranes and Straub) to reverse the district court in this case and hold that Southerland cannot bring this class action.

Southerland has a relatively small claim, seeking less than $1,900 in damages. Many lawyers would not take the case. The lawsuit would not be worth it unless the case is a class action on behalf of many other employees. This means that her rights may go unenforced. But the Supreme Court rejected that argument in June 2013, stating that "the fact that it is not worth the expense involving in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy."

Friday, August 9, 2013

The Court of Appeals puts it foot down on FLSA pleading

The Court of Appeals is taking a hard look at FLSA cases, reminding us once again that plaintiffs who allege that they were illegally denied overtime pay have to clarify what exactly happened to them. Otherwise, the case is dismissed under Rule 12.

The case is Dejesus v. HF Management Services, LLC, decided on August 5. Here is how the Second Circuit (Sack. Jacobs and Rakoff [D.J.]) starts off the decision:

This is the third in a series of recent decisions by this Court addressing the question of the adequacy of pleadings alleging that defendant health-care companies failed to pay their employees for overtime work as required by the Fair Labor Standards Act. ... They each reflect a tension among, inter alia, (1) the frequent difficulty for plaintiffs in such cases to determine, without first having access to the defendant's records, the particulars of their hours and pay in any given time period; (2) the possible use by lawyers representing plaintiffs in such cases of standardized, bare bones complaints against any number of possible defendants about whom they have little or no evidence of FLSA violations for the purpose of identifying a few of them who might make suitable defendants -- which is to say, the ability to engage in "fishing expeditions"; and (3) the modern rules of pleading established by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
My guess is that the Court is most troubled by boilerplate FLSA complaints that do not provide enough information to know if the plaintiff really has an overtime claim. In this case, "her complaint does not estimate her hours in any or all weeks or provide any other factual context or content. Indeed, her complaint was devoid of any numbers to consider beyond those plucked from the statute. She alleged only that in 'some or all weeks' she worked more than 'forty hours' a week without being paid '1.5' times her rate of compensation, no more than rephrasing the FSLA's formulation specification set forth in [the Act]." While the district court threw out the case, it gave plaintiff a chance to amend the complaint. Counsel instead filed a notice of appeal. Big mistake.

Next time the district court gives you a chance to amend the complaint on a Rule 12 motion, take advantage of the offer. The Second Circuit says that "we would be less than candid if we did not register our concern about the failure of the plaintiff, through counsel, at least to attempt to amend her complaint to add specifics while the district court kept the door open for her to do so. We would like to believe that the decision not to amend was made for some reason that benefitted Dejesus, rather than as an effort on counsel's part to obtain a judicial blessing for plaintiffs' counsel in these cases to employ this sort of bare-bones complaint." As is, the complaint is not detailed enough about plaintiff's hours and her entitlement to overtime pay to survive Rule 12 dismissal.

The Circuit knows that plaintiffs do not usually have precise details about their employment in pleading their FLSA cases. They have to rely on their memory in drafting their lawsuits. "While this Court has not required plaintiffs to keep careful records and plead their hours with mathematical precision, we have recognized that it is employees' memory and experience that lead them to claim in federal court that they have been denied overtime in violation of the FLSA in the first place. Our standard requires that plaintiffs draw on those resources in providing complaints with sufficiently developed factual allegations."

While it does not have to do so, the Second Circuit provides guidance on what it takes to survive Rule 12 dismissal where the defendant argues that the plaintiff is not an "employee" under the FLSA. The Act broadly defines "employee." The Court of Appeals notes that "in the context of a motion to dismiss, district courts in this Circuit have therefore found that complaints sufficiently allege employment when they state where the plaintiffs worked, outline their positions, and provide their dates of employment." Plaintiff satisfies this requirement because she "detailed where she worked, providing Healthfirst's address and its corporate purposes. She outlined what her position as a 'promoter' generally entailed, described her responsibilities and the pay structure. And she provided her dates of employment. In addition, she alleged that she was an hourly employee 'within the meaning of the FLSA." But, since the complaint does not satisfy Rule 12's requirements in failing to allege the other specifics of her overtime claim, her compliance with the FLSA's other pleading requirements (as to "employee") is not enough, and the case is gone.

Wednesday, August 7, 2013

First Amendment does not protect police officer's protest against arrest quotas

The golden age of the government whistleblower is long behind us. In this case, the Southern District of New York holds that a New York City police officer has no right under the First Amendment to complain about illegal arrest quotas.

The case is Matthews v. City of New York, 2013 U.S. Dist. LEXIS 105940, decided by Judge Engelmayer on July 29. Matthews came to believe that the police were adhering to a quota system, in violation of their core mission. After complaining internally about the arrest quotas, he suffered retaliation. He sues under the First Amendment. To win the case, Matthews has to get around the Supreme Court's 5-4 ruling in Garcetti v. Ceballos, which says that the First Amendment does not protect speech that arises from the employee's job duties. In plain English, if the speech is work-related, he is a sitting duck, at least under the First Amendment.

The issue here is whether Matthews spoke pursuant to his job duties. Judge Engelmayer provides a treatise on post-Garcetti Second Circuit case law, particularly with respect to police officers who spoke out on matters of public concern. For plaintiffs, the doctrinal landscape isn't pretty. Plaintiffs are losing left and right. The only Second Circuit case since 2006 that favors the plaintiff is Jackler v. Byrne, which the Court of Appeals resolved in 2011, holding that a police officer who refused to alter a truthful report about police misconduct could not be terminated in retaliation for that speech. (I argued Jackler). Jackler bears some similarities to Matthews's case, but Judge Engelmayer says their commonalities are superficial "in that they both involve a police officer reporting police misconduct." "The Second Circuit in Jackler pointedly described the protected speech as the refusal to retract the truthful report and file a false one. The Court did not address whether, let along hold that, Jackler's original, truthful report would have constituted protected speech had he been retaliated against on that basis."

Left without a precedent to hang onto, Matthews argues that his quota protest was not pursuant to official job duties. The district court disagrees and dismisses the case on summary judgment. For instance, the Patrol Guide requires officers to report the fact of "unjustified stops, arrests and summonses." Matthews's speech also concerned the subject matter of his employment, and owed its existence to that employment. He also spoke out internally, and the speech does not carry any civilian analogue. As Judge Engelmayer, your average citizen could not spoken out the way that Matthews did. So, while the district court acknowledges that plaintiff's speech "had undeniable value to the public," he cannot proceed on his First Amendment retaliation claim.

Monday, August 5, 2013

For federal jurisdiction junkies only

This decision starts out with some promise, as the plaintiff challenges the constitutionality of a New York law that empowers SPCA staffers with governmental investigatory functions. That's a potentially interesting issue. But, as resolved by the Court of Appeals, the case does not turn on that issue. It devolves into a discussion about an obscure abstention principle governing when federal courts may decide cases that raise similar issues to those raised in state court.

The case is Kanciper v. Suffolk County Society for the Prevention of Cruelty to Animals, decided on July 8. The plaintiff is president of a horse rescue organization. Someone complained about "equine abuse" on the horse farm. An SPCA staffer threatened plaintiff with prosecution, but the case was closed for lack of probable cause. The SPCA got a search warrant about seven months later on another animal abuse complaint, leading to plaintiff's indictment. The animal abuse charges were then dismissed. Hence this lawsuit challenging the SPCA's authority to do things like this.

At the same time, plaintiff sued the SPCA in state court on various state law theories, like abuse of process and fraud. That claim is pending. The federal court dismissed plaintiff's Section 1983 claims on a "claim splitting" theory because the state lawsuit would be preclusive in the federal action, i.e., her federal and state claims arose from the same facts and she could have brought the Section 1983 claims in state court with her other state claims.

If you are still reading this, then you are a litigation junkie who cares about abstention and federal jurisdiction. So let's get technical. In some instances, federal courts can abstain from hearing claims if they are more appropriately handled by the state courts. The state and federal courts also do not want to resolve duplicative litigation. There is such a doctrine as "claim splitting," which asks "whether the first suit, assuming it were final, would preclude the second suit." The district court threw out plaintiff's case under the "claim splitting" theory, but that was in error. Claim splitting does not apply here because the first filed case was brought in state court, not federal court. What applies instead is a federal court's general obligation to hear cases over which it has jurisdiction. The Second Circuit (Calabresi, Cabranes and Parker) says, "While plaintiffs generally have no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant, as between state and federal courts, the rule is that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the federal court having jurisdiction."

In other words, state and federal courts can simultaneously handle separate but related actions raising different claims. That is what plaintiff is doing here. The only way a federal case like this can be dismissed is if the parallel state court litigation could result in the comprehensive disposition of litigation and abstention would conserve judicial resources. Defendants may raise that theory in the district court on remand. 

Friday, August 2, 2013

NYC gun licensing fee is constitutional

The Supreme Court in 2008 opened up the doors to gun-rights litigation when it held in the Heller case that the Second Amendment confers an individual right to keep and bear arms. Gun cases are now working their way through the federal courts. This does not mean that the courts are recognizing new gun rights.

The case is Kwong v. Bloomberg, decided on July 9. New York City charges $340 for a three-year gun license. Second Amendment advocates argue that this fee violates the Constitution. It does not, the Second Circuit (Cabranes, Walker and Wesley) says. The Court borrows from our First Amendment cases in deciding whether licensing fees violate the Constitution. Under the First Amendment, if you want to hold a parade, the government can charge you a licensing fee to defray the administrative costs associated with processing the application and maintaining public order. Same goes for Second Amendment cases. While the $340 licensing fee is significantly more money than that charged by by other jurisdictions, that grievance is irrelevant. What's relevant is that it costs New York City about $340 to defray the administrative costs of processing gun license applications.

The plaintiffs also claim that the licensing fee imposes an unconstitutional burden on gun ownership. In order to resolve this issue, the Court of Appeals has to decide what level of scrutiny to apply. If the Court applies heightened scrutiny, the government has a much harder time in defending the law. Under rational basis review, anything goes. The Second Circuit does not tackle the legal standard head-on, deciding instead that the law survives what it calls "intermediate heightened scrutiny" because"we find it difficult to say that the licensing fee, which amounts to just over $100 per year, is anything more than a 'marginal, incremental or even appreciable restraint' on one's Second Amendment rights -- especially considering that plaintiffs have put forth no evidence to support their position that the fee is prohibitively expensive."

Finally, the plaintiffs sue under the Equal Protection Clause because state law allows New York City and Nassau County to set their own licensing fees separate and apart from the rest of the state.This distinction survives rational basis review. The rest of the state can charge $3 to $10 to license firearms. But, "beyond setting the $3-10 fee range applicable to most of New York State, which plaintiffs do not contest, [the Penal Law] itself does nothing to burden anyone's Second Amendment rights." The law does not target a suspect class (such as race or religion) or burden a fundamental right. The City rate also survives rational basis review because it defrays administrative costs associated with processing gun applications.