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Second Circuit rules in favor of firearms dealers on procedural due process:

Spinelli v. City of New York was decided on August 7, by Judges Calabresi and Walker. Judge Sotomayor had been on the panel, but did not participate in the decision, due to her elevation to the Supreme Court.

Angela Spinelli had been doing business a licensed firearms dealer in the Bronx for decades. Pursuant to New York City law, the police conducted an unannounced inspection of her premises in October 2001. They found security violations, seized all her firearms, and suspended her license for selling firearms. Spinelli fixed the security violations, and 58 days after the suspension, her license and firearms were restored.

In the lawsuit arising from the NYCPD conduct, the Second Circuit ruled:

1. There was no Fourth Amendment violation to the unannounced search, because it was conducted pursuant to the NYC Code, and because firearms dealers, as a pervasively regulated business, have little expectation of freedom from warrantless inspection.
2. Spinelli was not entitled to due process prior to the license suspension and the seizure of her inventory, because of the necessity for rapid action to protect public safety.

3. Spinelli was entitled to post-seizure due process, including notice (of what the specific security violations were) and a hearing. New York City refused to provide this, and accordingly, summary judgement should be entered against the City on this issue, and the district court should make a determination regarding damages. The fact that Spinelli was able to hire a lawyer to negotiate with the City does not cure the City's due process violation.

4. Spinelli had a property interest in her firearms business license. In contrast to a NY State handgun carry license (for which there is nearly unlimited discretion for revocation), a firearms dealer license is a property right, because the grounds for revocation are limited.

5. Because Spinelli has a valid federal claim (post-seizure due process), the federal district court also has jurisdiction over Spinelli's state law claim of tortious interference with business relations. The case in district court should proceed forward on this issue.

Items 3-5 reversed the decision of district court Judge Richard Casey. I have not read the briefs in this case, so it is possible that there are problems in the decision which are not obvious merely from reading the appellate opinion. However, within the four corners of the opinion, the decision seems generally correct based on existing precedent. Not that I necessarily agree with all the precedent, but the Second Circuit's application of that precedent appears reasonable.

FURTHER THOUGHTS: Commenters are arguing a lot about #1, which is fine, although as a matter of law this is well settled. Upon further reflection, I think that if there's a part of the opinion where the Second Circuit could reasonably have ruled the other way, it's #2. The Circuit is of course right that preventing guns from getting stolen (the security violations) is a very important government interest, and all the more so immediately post-9/11. So too, however, is the acquisition of firearms by law-abiding citizens, and all the more so post-9/11. The firearms seizures prevented the acquisition of guns by some customers who had already paid for them (and who were going through the NYC registration process). Accordingly, the better course of action for the NYCPD would have been to tell Spinelli immediately what the violations were (broken fence in the backyard, counter not under constant supervision, safes open), and then give Spinelli the opportunity continue business operations if she immediately cured the security defects. For example, she could have hired 24-hour security guards for the backyard until the fence was repaired; she could have hired another guard to stay at the counter every moment that the store was open, while the store interior was being reconfigured to keep the ocunter in view at all times. And so on. Even if the case did not involve constitutionally-protected items for which lawful sale to the public is itself a matter of improving public safety (e.g., if Spinelli owned a liquor store rather than a gun store), then offering the opportunity for an immediate cure would seem to be the better course for the regulators. Whether the failure to offer the option of an immediate cure rather than a suspension constitutes a violation of constitutional due process is perhaps a more difficult question than the Second Circuit realized, although I would not say that the Second Circuit's decision was plainly wrong as a matter of law.

Dilan Esper (mail) (www):
Sounds right to me, except for item 1. It's fine to say that business license holders are subject to unannounced warrantless health and safety inspections (the Fourth Amendment doesn't prohibit the fire marshal from coming onto your premises). But I don't see a particular reason why one should specifically say that firearms dealers have a diminished expectation of privacy vs. other business owners. Basically, if you run a business, there are permissible administrative inspections that don't require warrants. There's no reason to single out gun dealers for diminished constitutional protections.
8.17.2009 1:27pm
J. Aldridge:
Spinelli was entitled to post-seizure due process...

What will the courts invent next?
8.17.2009 1:32pm
Soronel Haetir (mail):
Dilan Esper,

I would suspect that it is part of the regulation itself, the waiver. I'm pretty sure I've read that dealers are also subject to similar federal inspections, though the feds are more interested in the inventory than the premises.

What I find bothersome here is the acceptance of arbitrary permitting requirements for personal ownership.
8.17.2009 1:40pm
Officious Intermeddler:
#2 is the same readily-abused rationale used to justify no-knock searches. It's deplorable there; it's deplorable here, too.
8.17.2009 1:45pm
Dilan Esper (mail) (www):
Soronel:

Permitting isn't supposed to be arbitrary, but ministerial, and I believe that arbitrary denial of a business permit has been held to be a due process violation.

I don't, however, think much of the "waiver" argument. Some states do this with drunk driving tests too-- instead of saying, correctly, that the state has the power to test you for drunkenness on reasonable suspicion because it's a special needs search, they say you consent forevermore to testing by signing up for a driver's license. That theory, if broadly accepted, would allow the government to basically strip us of all of our 4th Amendment rights just by making us execute waivers whenever we apply for anything from the government.

The reason the state or the feds can inspect a firearms dealer's premises shouldn't be because the person is selling guns instead of butter, and it shouldn't be because the person was coerced into signing a waiver to get a license. It should be because the Fourth Amendment doesn't prohibit reasonable health and safety related inspections of the facilities of business licensees. And the government should not be able to go beyond the scope of that.
8.17.2009 1:46pm
SuperSkeptic (mail):
In the lawsuit arising from the NYCPD conduct, the Second Circuit ruled:


1. There was no Fourth Amendment violation to the unannounced search, because it was conducted pursuant to the NYC Code, and because firearms dealers, as a pervasively regulated business, have little expectation of freedom from warrantless inspection.


Really???

...really?!...
8.17.2009 2:03pm
SuperSkeptic (mail):
Spinelli was entitled to post-seizure due process...

What will the courts invent next?


Typical example of how, 100 years ago, some "exigent-circumstances" opinion started the momentum down the slippery-slope.

Next, it will be, not entitled to post-seizure due process, because, well, we can look back and rationalize post-hoc that what you're complaining about just wasn't that important to us.
8.17.2009 2:05pm
Dilan Esper (mail) (www):
SuperSkeptic:

"Post-seizure" due process has been a part of the law for many years. And it is consistent with, for instance, attachments and levies that have been permitted in actions for breaches of contract for hundreds of years and which the framers surely did not mean to prohibit entirely.

Thus, the usual rubric is that seizures of property require a predeprivation hearing, but if that is not practical, an immediate postdeprivation hearing is also permissible. This wasn't some weird invention of the courts-- it is consistent with what the framers would have understood as due process.
8.17.2009 2:16pm
J. Aldridge:
This wasn't some weird invention of the courts-- it is consistent with what the framers would have understood as due process.

hmmmm Bingham said due process under the 14th meant just what it meant under the Chapter 39 of the Magna Charta and "due process of law means the law of the land." So yeah its "weird."
8.17.2009 2:31pm
Dilan Esper (mail) (www):
J. Aldridge:

"Due Process" had a meaning (in the Fifth Amendment) before Bingham was even born. And Bingham isn't even the only authority about the Fourteenth Amendment which he shepherded through Congress.

In any event, on this one, it really doesn't matter what Bingham thought anyway. Only an idiot would say that the Fourteenth Amendment barred all state collection schemes that did not have a predeprivation hearing.
8.17.2009 2:36pm
Gabriel McCall (mail):
firearms dealers, as a pervasively regulated business, have little expectation of freedom from warrantless inspection.

Why is "little expectation of freedom from warrantless inspection" synonymous with the search being reasonable? By this justification, if one expects to be unreasonably searched, the search is thereby made reasonable. Being realistically pessimistic about the government's commitment to civil rights should not void those rights.
8.17.2009 2:52pm
Officious Intermeddler:
Thus, the usual rubric is that seizures of property require a predeprivation hearing, but if that is not practical, an immediate postdeprivation hearing is also permissible.


The issue, Dilan, isn't that postdeprivation hearings are per se bad; it's that the bar for the impracticality of predeprivation hearings has been lowered to the point of nonexistence, such that mere inconvenience to the government or law enforcement -- i.e., "the necessity for rapid action to protect public safety" -- is now sufficient to justify deprivation of rights.
8.17.2009 2:58pm
Officious Intermeddler:
That is, it's now sufficient to justify deprivation of rights before a hearing.
8.17.2009 2:59pm
J. Aldridge:
And Bingham isn't even the only authority about the Fourteenth Amendment which he shepherded through Congress.

Why he is the one who proposed and wrote most of the first section. I don't think there are no other authorities who can claim that.

Getting back to what the framers understood, would a "post-seizure due process" been recognized under the 39th chapter?
8.17.2009 3:00pm
Kazinski:
This is just a minor symptom of NY unconstitutional war on its citizens constitutional rights. How long will these and other lawless city and state governments be allowed to infringe on the right to keep and bear arms?
8.17.2009 3:00pm
Houston Lawyer:
I would question whether seizure without a predeprivation hearing was necessary in this case. The guy sells guns and they said he didn't have sufficient security. He could surely load one of said guns and have someone guard his inventory until the security protocols were fixed. Was there a mob of looters gathering outside about to walk away with his inventory?
8.17.2009 3:08pm
Dilan Esper (mail) (www):
Why he is the one who proposed and wrote most of the first section. I don't think there are no other authorities who can claim that. Getting back to what the framers understood, would a "post-seizure due process" been recognized under the 39th chapter?

Aldridge, original intent does not equal "whatever one member of Congress says in a bout of florid rhetoric in a speech".

You need a good class in textual interpretation and philosophy of language. Because you really don't know the first thing about how to actually establish intention or anything else about the Fourteenth Amendment.

Longstanding historical practice permits postdeprivation hearings, Aldridge. And that counts in the real world. You can go on living in your own dream world where the Constitution means something different, but that doesn't make it reality, even if Sen. Bingham would have agreed with you.

The issue, Dilan, isn't that postdeprivation hearings are per se bad; it's that the bar for the impracticality of predeprivation hearings has been lowered to the point of nonexistence, such that mere inconvenience to the government or law enforcement -- i.e., "the necessity for rapid action to protect public safety" -- is now sufficient to justify deprivation of rights.

Except it hasn't been. Attachment statutes that do not contain sufficient procedural safeguards have been struck down even though they provided for a postdeprivation hearing.

As far as I know, the fire marshal or the health inspector has always had the power to shut a business down. And that's the problem with saying that you can't have a postdeprivation hearing in this context.
8.17.2009 3:10pm
Officious Intermeddler:
Houston Lawyer, more to the point, there's sufficient security to you and I, and there's "sufficient security" to pinhead hoplophobic bureaucrats. The absence of the former may justify some kind of temporary custody of inventory to keep it from being taken out the backdoor; the absence of the latter does not.
8.17.2009 3:11pm
Officious Intermeddler:
Except it hasn't been.


Tell that to Angela Spinelli, who lost her livelihood for 58 days on the say-so of a pinhead hoplophobic bureaucrat.
8.17.2009 3:13pm
Dilan Esper (mail) (www):
Officious--

The fact that the requirements for a postdeprivation procedure had no bite here doesn't mean they don't have any bite in other contexts. I know that's a bit of cold comfort, but it is wrong to say, as you did, that the doctrine has been completely eviscerated.
8.17.2009 3:20pm
Soronel Haetir (mail):
I would also, fwiw, if we are going to use health and safety inspections that the standard may well vary based on what the business actually does.

Certainly I would not expect the requirements, say for an accounting office to be identical to those for a freight company warehouse.
8.17.2009 3:26pm
Officious Intermeddler:
I know that's a bit of cold comfort, but it is wrong to say, as you did, that the doctrine has been completely eviscerated.


It's cute that you think so.
8.17.2009 3:31pm
J. Aldridge:
Aldridge, original intent does not equal "whatever one member of Congress says in a bout of florid rhetoric in a speech".

Forget original intent, just focus on the meaning as understood by the framers. The supreme court had long confirmed the meaning of due process and the magana carta. What had changed? Nothing. No constitutional convention, no public debates, no constitutional amendment, etc. Just some baseless, whacky opinion that the left loves to call law.
8.17.2009 3:33pm
Officious Intermeddler:
To be less snarky: I can cite chapter and verse where predeprivation hearings have been found to be impractical on the basis of some debatable, if not completely bogus, exigency. Ms. Spinelli's situation is the rule, not the exception, and it is fantasy to pretend otherwise.
8.17.2009 3:35pm
SuperSkeptic (mail):
Officious Intermeddler, You are officially permitted to intermeddle in support of my points any time, please feel free...you seem to have done all the heavy lifting here...adieu
8.17.2009 3:36pm
CJColucci:
An utterly unremarkable decision quite in line with the actual, existing -- and quite long established -- state of the law. And, to top it off, the gun store owner wins, and will get money. But don't let that stop anyone.
8.17.2009 3:38pm
GEORGE LARSON (mail):
I am not a lawyer. How do post derepivation procedures apply in cases of Civil Forfeiture? Could the City have used Civil Foreiture in the Spinelli case and achieved the result they wanted?
8.17.2009 3:47pm
Dilan Esper (mail) (www):
Certainly I would not expect the requirements, say for an accounting office to be identical to those for a freight company warehouse.

That's what I was really getting at. The principle is that an unannounced visit by an inspector can be a reasonable search, but the inspection has to bear a relationship to legitimate health and safety standards for the particular type of business. This is how the special needs exception works in other areas. The cops can stop you to ask you some questions to ensure you are sober. They can't stop you just because they would like to look inside your car.

There should be no blanket waivers / consents to searches just by getting a business license.
8.17.2009 3:48pm
Dilan Esper (mail) (www):
The supreme court had long confirmed the meaning of due process and the magana carta. What had changed? Nothing. No constitutional convention, no public debates, no constitutional amendment, etc. Just some baseless, whacky opinion that the left loves to call law.

Aldridge, when a provision is enacted upon a backdrop of longstanding historical practice, and no expression is made that the historical practice is going to be curtailed, that is powerful evidence that the provision was not, in fact, intended to curtail the practice.

That's exactly the situation with the Due Process clauses and postdeprivation hearings.
8.17.2009 3:50pm
Dilan Esper (mail) (www):
I am not a lawyer. How do post derepivation procedures apply in cases of Civil Forfeiture? Could the City have used Civil Foreiture in the Spinelli case and achieved the result they wanted?

Civil forfeiture is like any other deprivation of property. The government is required to have a predeprivation or immediate postdeprivation hearing.
8.17.2009 3:51pm
David M. Nieporent (www):
"Due Process" had a meaning (in the Fifth Amendment) before Bingham was even born. And Bingham isn't even the only authority about the Fourteenth Amendment which he shepherded through Congress.
And Bingham, like Yogi Berra, didn't say half the things he said anyway. The fact that words may have been taken from the Magna Carta does not mean that the phrase had the same application in 1870 America that it did in 1215 England.
8.17.2009 3:58pm
GEORGE LARSON (mail):
Thank you Dilan Esper
8.17.2009 5:06pm
Kharn (mail):
For comparison with the federal level, the 1986 Firearm Owners Protection Act (18 U.S.C. § 923) limits the BATFE to:
"(B) The Attorney General may inspect or examine the inventory and records of a licensed importer, licensed manufacturer, or licensed dealer without such reasonable cause or warrant—
(i) in the course of a reasonable inquiry during the course of a criminal investigation of a person or persons other than the licensee;
(ii) for ensuring compliance with the record keeping requirements of this chapter—
(I) not more than once during any 12-month period; or
(II) at any time with respect to records relating to a firearm involved in a criminal investigation that is traced to the licensee; or
(iii) when such inspection or examination may be required for determining the disposition of one or more particular firearms in the course of a bona fide criminal investigation. "
8.17.2009 6:29pm
Kara:
Every arrest involves post deprevation hearings, so I don't see why one would get more due process for property than for liberty.
8.17.2009 9:31pm

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