11-2420
Osterweil v. Bartlett

                        UNITED STATES COURT OF APPEALS
                            For the Second Circuit
                              August Term, 2012
      Argued: October 26, 2012               Decided: January 29, 2013
                            Docket No. 11-2420-cv
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                              ALFRED G. OSTERWEIL,
                                                       Plaintiff-Appellant,
                                      v.


                            GEORGE R. BARTLETT, III,
                                                        Defendant-Appellee.
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         Before: JACOBS, Chief Judge, WALKER, Circuit Judge,     AND
              O’CONNOR, U.S. Supreme Court Justice (Ret.)
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Part-time New York resident, who is not a domiciliary of the
State, appeals from the grant of summary judgment denying
injunctive relief from New York’s statutory handgun licensing
requirement. The United States District Court for the Northern
District of New York (D’Agostino, J.) concluded that the statute
limits the grant of handgun licenses to domiciliaries of the
State. We hold that certification of this statute’s
interpretation to the New York Court of Appeals is warranted.

        Question Certified.

                                     PAUL D. CLEMENT, Bancroft PLLC,
                                     Washington, D.C. (D. Zachary
                                     Hudson, Bancroft PLLC, Washington,
                                     D.C.; Daniel L. Schmutter,
                                     Greenbaum, Rowe, Smith & Davis


                                       1 
 
                                                                    LLP, Woodbridge, New Jersey, on
                                                                    the brief), for Plaintiff-
                                                                    Appellant.

                                                                    SIMON HELLER, Assistant Solicitor
                                                                    General, New York State Office of
                                                                    the Attorney General, New York,
                                                                    New York, for Defendant-Appellee.


              O’Connor, Supreme Court Justice (Ret.):                                  This case asks us

to evaluate the constitutionality of certain aspects of New

York’s handgun licensing regime.                                           As we explain, we believe we

should not reach that question before certifying a predicate

question of state law to the New York Court of Appeals.

                                                                      I

              Appellant Alfred Osterweil applied for a handgun license in

May 2008.                       Following the directions of New York Penal Law

§ 400.00(3)(a), he applied for a license “in the city or county

. . . where [he] resides.”1                                       At that time, his house in Summit,

New York--part of Schoharie County--was still his primary

residence and domicile.                                        While his application was pending,

however, Osterweil moved his primary residence to Louisiana,

keeping his home in Summit as a part-time vacation residence.
                                                            
              1
       In relevant part, New York Penal Law § 400.00(a)(3)
provides that

              [a]pplications shall be made and renewed, in the case
              of a license to carry or possess a pistol or revolver,
              to the licensing officer in the city or county, as the
              case may be, where the applicant resides, is
              principally employed or has his principal place of
              business as merchant or storekeeper. 
                                                                      2 
 
He then sent a letter to the Schoharie licensing authorities

inquiring whether this move made him ineligible for a license.

A46.   Shortly thereafter, in July 2008, Osterweil sent another

letter suggesting that if his change of domicile foiled his

license application, a constitutional problem would result.

A52-A53.   This second letter came after the United States

Supreme Court held in District of Columbia v. Heller, 544 U.S.

570 (2008), that the Second Amendment protects an individual

right to bear arms, and that the core of this right is the right

to self-defense in the home.

       Osterweil’s application was eventually forwarded to

appellee George Bartlett, a judge of the county court in

Schoharie and licensing officer for the county.   He interpreted

§ 400.00(3)(a)’s apparent residence requirement as a domicile

requirement, relying on a 1993 decision from New York’s

Appellate Division, Third Department holding that, “as used in

this statute, the term residence is equivalent to domicile.”

Mahoney v. Lewis, 199 A.2d 734, 735 (3d Dep’t 1993).      Because

Osterweil “ha[d] candidly advised the Court that New York State

is not his primary residence and, thus not his domicile,” Judge

Bartlett denied the license.   See A144.

       Judge Bartlett further concluded that a domicile

requirement was constitutional under the Second Amendment, even

after Heller, because of the State’s interest in monitoring its

                                  3 
 
handgun licensees to ensure their continuing fitness for the use

of deadly weapons.                                        A145-A149.    He applied New York precedent

suggesting that the State’s licensing regime would not violate

Heller “‘so long as it is not enforced in an arbitrary and

capricious manner.’”                                           A150 (citation omitted).   Osterweil could

have sought review of that determination in the state courts by

means of an Article 78 proceeding, see, e.g., Mahoney, 199

A.D.2d at 735, but he did not.2

              Instead, he filed a federal suit alleging that New York’s

domicile requirement violated the Second and Fourteenth

Amendments and seeking, among other remedies, an injunction

ordering the State to give him a license.                                          See A11.    The

district court first determined that intermediate scrutiny was

appropriate for the Second Amendment issue, and then held that a

domicile requirement satisfied intermediate scrutiny because

“the law allows the government to monitor its licensees more

closely and better ensure the public safety.”                                             819 F. Supp. 2d

72, 85 (N.D.N.Y. 2011).                                          It further held that New York’s

restrictions did not violate the Equal Protection Clause or any




                                                            
              2
       Judge Bartlett’s decision appears to have been taken in an
administrative capacity; in other cities or counties, this role
is fulfilled by non-judicial personnel. Accordingly, the State
has not argued that Judge Bartlett’s denial of the license is a
judicial decision with any preclusive effect in this litigation,
and we deem any such argument forfeit.
                                                                         4 
 
other part of the Fourteenth Amendment.    Id. at 86-90.   It thus

granted summary judgment to the State.

     On appeal to this Court, Osterweil maintains that a

domicile requirement for handgun ownership is unconstitutional.

The State’s primary response, however, is that there is no

domicile requirement under New York law.   It argues that New

York’s highest court has never held that the law requires

domicile, that the text speaks only of residence, that the New

York Court of Appeals would likely apply only a residence

requirement as a matter of constitutional avoidance, and that if

the statute is construed as requiring only residence, “this

litigation would thereby be resolved.”    Appellee’s Br. 23.   It

thus urges that we certify the domicile-or-residence question to

the New York Court of Appeals, or apply Pullman abstention and

decline to decide the case at all.    See R.R. Comm’n v. Pullman

Co., 312 U.S. 496 (1941).   As discussed below, we agree that the

state-law issue that the State identifies is a predicate to a

serious constitutional question, and that certification is the

appropriate course.

                                II

     Under Second Circuit Local Rule 27.2, we may certify to the

New York Court of Appeals “determinative questions of New York

law [that] are involved in a case pending before [us] for which

no controlling precedent of the Court of Appeals exists.”      See

                                 5 
 
also N.Y. Const. Art. 6, § 3(b)(9) & N.Y. Comp. Codes R. & Regs.

tit. 22, § 500.27(a).   Before we certify such a question, we

must answer three others: “(1) whether the New York Court of

Appeals has addressed the issue and, if not, whether the

decisions of other New York courts permit us to predict how the

Court of Appeals would resolve it; (2) whether the question is

of importance to the state and may require value judgments and

public policy choices; and (3) whether the certified question is

determinative of a claim before us.”   Barenboim v. Starbucks

Corp., 698 F.3d 104, 109 (2d Cir. 2012).   Here, we answer each

in favor of certification.

       First, it is clear that the New York Court of Appeals has

not answered the question before us.   Neither party identifies a

decision of that Court interpreting the word “resides” in this

statute, or illuminating whether the Court would be likely to

impose a residence requirement or a domicile requirement.

Indeed, that Court has never held that this statute imposes even

a residence requirement.   As the State noted at oral argument,

§ 400.00(3)(a) is phrased in the form of a procedural rule about

where to file to get a license, not a limitation on who may get

one.

       Recourse to that Court’s broader opinions regarding

residence requirements makes the water murkier, not clearer.    It

has sometimes equated residence with domicile, and sometimes

                                  6 
 
not.3              Indeed, it has said that “[t]he sense in which these words

are used in a particular statute may depend upon the nature of

the subject-matter of the statute as well as the context in

which the words are used.”                                      Rawstorne v. Maguire, 192 N.E. 294,

295 (N.Y. 1934); see also id. (“We are told that the Legislature

used the words ‘residing within the State’ as synonymous with

‘domiciled within the State.’                                      Doubtless such words are

frequently used . . . as if they had the same meaning, but they

are not identical . . . .”).                                      Thus, the New York Court of

Appeals has not told us how to interpret this particular

statute, and has clarified only that the question we face is one

of judgment that involves interpreting the intent of the state

legislature.                             Id.            That job is surely best left to the state

courts, especially when they “‘stand willing to address

questions of state law on certification from a federal court.’”

Arizonans for Official English v. Ariz., 520 U.S. 43, 79 (1997)

(quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 510

(1985) (O’Connor, J., concurring)).
                                                            
              3
       Compare, e.g., People v. Platt, 22 N.E. 937, 938 (N.Y.
1889) (in statute listing qualifications for political office,
residence means domicile); with Rawstorne v. Maguire, 192 N.E.
294, 295 (N.Y. 1934) (refusing to “limit the provisions for
substituted service upon persons ‘residing within the State’ to
those who not only reside, but are domiciled here”); see also
Matter of Contento v. Kohinke, 42 A.D.2d 1025, 1025 (N.Y. 3d
Dep’t 1973) (“[T]he term ‘reside’ (or ‘residence’) is not one
that can be given a uniform definition wherever it appears in
legislation, but must be construed in relationship to the
particular statute involved.”). 
                                                                     7 
 
     Of course, we need not certify a question when we can

“‘predict how the highest court of the forum state would resolve

the uncertainty or ambiguity.’”    State Farm Mut. Auto. Ins. Co.

v. Mallela, 372 F.3d 500, 505 (2d Cir. 2004) (quoting Travelers

Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994)).

Here, the language is plain, the State itself urges that

§ 400.00(3)(a) imposes only a residence requirement, and a

serious constitutional controversy results from any other view,

see infra at 11.   Yet we think it best here to resist the

State’s invitation to construe the statute ourselves.   See

Appellee’s Br. 5 n.2.   We have said that it is appropriate to

predict what the New York Court of Appeals will do from “the

decisions of other New York courts,” Barenboim, 698 F.3d at 109

(emphasis added), not based on our instinct that the Court of

Appeals will find those courts’ decisions unconvincing or

overcome by events.   For us to adopt an anticipated construction

of a state statute based on our own reading of the text and the

current constitutional landscape would put state officials like

Judge Bartlett in a particularly hard spot in the next case,

uncertain whether to follow the binding decision of the Third

Department in Mahoney or the all-fours decision of a federal

circuit court.   Indeed, any ruling we might make on this state

law question would not be binding on New York state courts and

thus has the potential for sowing confusion.   See, e.g., Oneida

                                  8 
 
Indian Nation of N.Y. v. Pifer, 43 A.D.3d 579, 581 (3d Dep’t

2007) (“Federal court rulings on issues of state law are not

binding on state courts”) (citing In re 1616 Second Ave. Rest.,

550 N.E.2d 910, 913 (N.Y. 1990)).       One of the chief virtues of

certification is that it avoids such pitfalls.

        Next, we ask whether the question “is of importance to the

state” and whether it is the kind of question that “may require

value judgments and public policy choices.”       Barenboim, 698 F.3d

at 109.    It certainly is, and it certainly does.     The regulation

of firearms is a paramount issue of public safety, and recent

events in this circuit are a sad reminder that firearms are

dangerous in the wrong hands.    See James Barron, Gunman

Massacres 20 Children at School in Connecticut; 28 Dead,

Including Killer, N.Y. Times, Dec. 15, 2012, at A1.       Questions

like the one before us require a delicate balance between

individual rights and the public interest, and federal courts

should avoid interfering with or evaluating that balance until

it has been definitively struck.        Moreover, the New York Court

of Appeals has made clear that the question whether to read

“residence” as requiring residence or domicile requires

interpretation of the value and policy judgments of the state

legislature.    This is accordingly an area of state concern in

which the principles of cooperative federalism hold greatest

sway.

                                   9 
 
     Finally, we ask whether the state-law question is

dispositive.   We certify here on the understanding that it is.

The State has represented that, if “resides” in § 400.00(3)(a)

means only resides and does not also mean domicile, then

Osterweil would meet this requirement and “this litigation would

thereby be resolved.”   Appellee’s Br. 23.   Of course, it is

possible that the Court of Appeals will say that the word

“resides” in § 400.00(a)(3) imposes some other requirement akin

to domicile that is a barrier to Osterweil’s license.    It would

then remain for us to decide the constitutional question, but

even then we benefit from certification because “construction by

the state judiciary . . . might . . . at least materially change

the nature of the problem.”   Bellotti v. Baird, 428 U.S. 132,

147 (1976) (quotation marks omitted).

                                III

     Notwithstanding that certification gives him an extra

chance to get his license, Osterweil prefers that we stick with

Mahoney’s domicile-only rule and evaluate its constitutionality.

He argues that an important federal constitutional right is at

stake, that certification will engender needless delay, and that

the presence of an issue of constitutional avoidance will

actually exacerbate state-federal tension by having both a state

court and a federal court opine on a constitutional question in

the same case.   We find these arguments unconvincing.

                                10 
 
     To begin, we agree with both parties that there is a

serious constitutional question in this case.    This Court has

recently held that “Second Amendment guarantees are at their

zenith within the home,” Kachalsky v. County of Westchester, 701

F.3d 81, 89 (2d Cir. 2012), and a domicile requirement will

operate much like the bans struck down in Heller and McDonald v.

Chicago, 130 S. Ct. 3020 (2010), for part-time New York

residents whose permanent homes are elsewhere.    At the same

time, this Court has acknowledged that the ground opened by

Heller and McDonald is a “vast ‘terra incognita’” that “has

troubled courts since Heller was decided.”    Kachalsky, 701 F.3d

at 89 (quoting United States v. Masciandaro, 638 F.3d 458, 475

(4th Cir. 2011) (Wilkinson, J.)).     It is open to Osterweil to

make his domicile in New York, so even a domicile requirement

may not be the kind of absolute ban that the U.S. Supreme Court

has already addressed, and some regulation of itinerant handguns

is clearly valid.   See Kachalsky, 701 F.3d at 100 (“[E]xtensive

state regulation of handguns has never been considered

incompatible with the Second Amendment or, for that matter, the

common-law right to self-defense.”).    Thus, we would confront a

serious and very difficult question of federal constitutional

law if required to evaluate a domicile requirement.

     The presence of a serious constitutional question is a good

reason to certify, however, not a reason to race ahead.    The

                                11 
 
Supreme Court has made clear that certification is the

appropriate course when a narrowing construction of state law

that avoids the federal question is possible--even, and perhaps

especially, when important federal rights are at stake.

Arizonans, 520 U.S. at 78; Bellotti, 428 U.S. at 147

(certification is appropriate where the “state statute is

susceptible of a construction by the state judiciary ‘which

might avoid in whole or in part the necessity for federal

constitutional adjudication.’”) (quoting Harrison v. NAACP, 360

U.S. 167, 177 (1959)).    In so doing, the Court has “[w]arn[ed]

against premature adjudication of constitutional questions . . .

when a federal court is asked to invalidate a State’s law, for

the federal tribunal risks friction-generating error when it

endeavors to construe a novel state Act not yet reviewed by the

State’s highest court.”   Arizonans, 520 U.S. at 79.   The

prospect of disagreement over the seriousness of a

constitutional question is always present when a federal court

certifies in a case like this one, but this has always led the

Supreme Court to counsel in favor of certification, not against

it.   Osterweil cites no case from the Supreme Court, this Court,

or any other, where certification was disapproved because a

state court might take a different view of a federal

constitutional question in adopting a limiting construction or

in refusing to do so.

                                 12 
 
     As for timing, while some delay from certification is

inevitable, the State has assured us that it will seek to

expedite the process.   Moreover, Pullman abstention--the other

course available here--would take even longer.   As a case that

involves “unsettled state law issues . . . preliminary to

consideration of a federal constitutional question,” this case

falls within the heartland of Pullman abstention.   See Hart &

Wechsler, The Federal Courts & The Federal System 1062-1063 (6th

ed. 2009) (collecting cases); Pullman, 312 U.S. at 499-501.

Certification now “covers territory once dominated by . . .

Pullman abstention” precisely because it “allows a federal court

faced with a novel state-law question to put the question

directly to the State’s highest court, reducing the delay,

cutting the cost, and increasing the assurance of gaining an

authoritative response.”   Arizonans, 520 U.S. at 75.   Yet given

that Pullman abstention would have been appropriate before

certification, and that certification is far faster and more

convenient for all involved, we have less cause for concern over

delay.

     Finding that certification is appropriate, we therefore

certify the following question to the New York Court of Appeals:

     Is an applicant who owns a part-time residence in New
     York but makes his permanent domicile elsewhere
     eligible for a New York handgun license in the city or
     county where his part-time residence is located?


                                13 
 
     The New York Court of Appeals may, of course, reformulate

or expand upon this question as it deems appropriate.

     It is hereby ORDERED that the Clerk of the Court transmit

to the Clerk of the New York Court of Appeals a certificate in

the form attached, together with a copy of this opinion and a

complete set of the briefs, appendices, and record filed by the

parties in this Court.   This panel will retain jurisdiction to

decide the case once we have had the benefit of the views of the

New York Court of Appeals or once that court declines to accept

certification.   Finally, we order the parties to bear equally

any fees and costs that may be requested by the New York Court

of Appeals.

                            CERTIFICATE

     The following question is hereby certified to the New York

Court of Appeals pursuant to Second Circuit Local Rule 27.2 and

New York Compilation of Codes, Rules and Regulations, title

22, section 500.27(a), as ordered by the United States Court of

Appeals for the Second Circuit:

     Is an applicant who owns a part-time residence in New
     York but makes his permanent domicile elsewhere
     eligible for a New York handgun license in the city or
     county where his part-time residence is located?




                                  14 
 
