     11-2420-cv
     Osterweil v. Bartlett



 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                             October Term, 2012
 6
 7
 8    (Argued: October 26, 2012          Decided: December 23, 2013)
 9
10                           Docket No. 11-2420-cv
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   ALFRED G. OSTERWEIL,
15
16                     Appellant,
17
18               - v.-
19
20   GEORGE R. BARTLETT, III,
21
22                     Appellee.
23
24   - - - - - - - - - - - - - - - - - - - -x
25

26   Before:           JACOBS, WALKER, Circuit Judges, AND O’CONNOR,
27                     U.S. Supreme Court Justice (Ret.)*.

28   Counsel:                        PAUL D. CLEMENT, Bancroft PLLC,
29                                   Washington, D.C. (D. Zachary
30                                   Hudson, Bancroft PLLC,
31                                   Washington, D.C.; Daniel L.
32                                   Schmutter, Greenbaum, Rowe,
33                                   Smith & Davis LLP, Woodbridge,
34                                   New Jersey, on the brief), for
35                                   Plaintiff-Appellant.


           *
             The Honorable Sandra Day O’Connor, Associate Justice
     (Ret.) of the United States Supreme Court, sitting by
     designation.
1
2                               SIMON HELLER, Assistant
3                               Solicitor General, New York
4                               State Office of the Attorney
5                               General, New York, New York, for
6                               Defendant-Appellee.
7
8    PER CURIAM:

 9        Appellant Alfred Osterweil applied for a handgun
10   license in May 2008. Following the directions of New York
11   Penal Law § 400.00(3)(a), he applied for a license “in the
12   city or county . . . where [he] resides.”1 His house in
13   Schoharie County, New York, was then his primary residence
14   and domicile, but while his application was pending,
15   Osterweil moved his primary residence to Louisiana, keeping
16   his home in Schoharie County as a part-time vacation
17   residence.
18
19        Osterweil’s application was eventually forwarded to
20   appellee George Bartlett, a judge of the county court in
21   Schoharie County and licensing officer for the county. He
22   interpreted § 400.00(3)(a)’s apparent residence requirement
23   as a domicile requirement, relying on a 1993 decision from
24   New York’s Appellate Division, Third Department, holding
25   that, “as used in this statute, the term residence is
26   equivalent to domicile.” Mahoney v. Lewis, 199 A.D.2d 734,
27   605 N.Y.S.2d 168 (3d Dep’t 1993). Because Osterweil “ha[d]
28   candidly advised the Court that New York State is not his
29   primary residence and, thus not his domicile,” Judge
30   Bartlett denied the license. Judge Bartlett further
31   concluded that a domicile requirement was constitutional
32   under the Second Amendment, notwithstanding District of
33   Columbia v. Heller, 554 U.S. 570 (2008), because of the
34   State’s interest in monitoring its handgun licensees to


          1
              In relevant part, New York Penal Law §
     400.00(3)(a) 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
 1   ensure their continuing fitness for the use of deadly
 2   weapons.
 3
 4        Following the denial of his application, Osterweil
 5   filed suit in the United States District Court for the
 6   Northern District of New York, alleging that New York’s
 7   domicile requirement violated the Second and Fourteenth
 8   Amendments and seeking, among other remedies, an injunction
 9   ordering the State to give him a handgun license. The
10   district court granted summary judgment to the State,
11   holding in relevant part that the domicile requirement
12   satisfied intermediate scrutiny because “the law allows the
13   government to monitor its licensees more closely and better
14   ensure the public safety.” Osterweil v. Bartlett, 819 F.
15   Supp. 2d 72, 85 (N.D.N.Y. 2011).
16
17        On appeal, the State maintained that section
18   400.00(3)(a) does not, in fact, impose a domicile
19   requirement. If no such requirement existed, there would,
20   we reasoned, be no need to reach the sensitive
21   constitutional question presented by this appeal. To allow
22   the New York Court of Appeals to resolve for itself the
23   existence of a domicile requirement, we certified the
24   following question to that Court:
25
26            Is an applicant who owns a part-time
27            residence in New York but makes his
28            permanent domicile elsewhere eligible for
29            a New York handgun license in the city or
30            county where his part-time residence is
31            located?
32
33   Osterweil v. Bartlett, 706 F.3d 139, 145 (2d Cir. 2013).
34
35        On October 15, 2013, the New York Court of Appeals
36   answered the certified question in the affirmative. In
37   Osterweil v. Bartlett, – NY3d –, 2013 NY Slip Op 6637 (Oct.
38   15 2013), the Court held that “Penal Law § 400.00(3)(a) does
39   not preclude an individual who owns a part-time residence in
40   New York but makes his permanent domicile in another state
41   from applying for a New York handgun license.” Id. at *5.
42   The Court found this conclusion clear from the plain
43   statutory language, which refers only to an applicant’s
44   residence and which expressly contemplates issuance of a

                                  3
 1   handgun to a nondomiciliary. See id. at *3, *5; Penal Law §
 2   400.00(7). Moreover, the Court observed, “the law was
 3   originally designed to ensure that licenses were obtained
 4   where applicants resided, and to discourage
 5   ‘forum-shopping,’ rather than to exclude certain applicants
 6   from qualifying at all.” Osterweil, – NY3d –, 2013 NY Slip
 7   Op 6637, at *5.
 8
 9        Accordingly, New York Penal Code § 400.00(3)(a) imposes
10   no requirement that Osterweil be domiciled in New York to
11   obtain a handgun license there; his status as a part-time
12   resident is sufficient. The State’s briefing represented
13   that, if the verb “resides” in § 400.00(3)(a) refers only to
14   residence and does not require domicile, then Osterweil
15   would satisfy this requirement and “this litigation would
16   thereby be resolved.” Appellee’s Br. 23. We agree.
17
18        Given this conclusion, we decline to reach the
19   constitutional question raised by Osterweil’s appeal, which
20   is based on a flawed reading of the licensing statute. We
21   hereby vacate the decision of the District Court and remand
22   for further proceedings consistent with this opinion.




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