Second Amendment Precedence Developing Through SAFE Act Litigation

— by William Woodworth

Recently, two courts considered the constitutionality of New York’s SAFE Act. Both courts assessed whether the regulation burdens a second amendment right, and whether the regulation survives appropriate scrutiny. Here, the courts found the second amendment’s protections applied, and both applied intermediate scrutiny. However, the courts diverged on the application.

 

In the midst of the public debate about the extent that citizens should have a right to keep and bear arms, courts are faced with the problem of determining the scope of the constitutional right to keep and bear arms.  In late October, a state and federal court reached opposite conclusions on the constitutionality of the New York Secure Ammunition and Firearms Enforcement (SAFE) Act’s prohibition on loading more than seven rounds in the magazine of a firearm.  The New York court upheld the provision in Schulz v. State of New York Executive,[1] and the Second Circuit Court of Appeals invalidated it in N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo.[2]

Despite the different outcomes in the cases, both applied the same general framework for analyzing the second amendment claims.  The courts first determined whether the restrictions were protected by the second amendment, and then determined which level of scrutiny to apply.  The Schulz court merely assumed that the SAFE Act imposed burdens on the rights protected by the Second Amendmet.  The Second Circuit applied a two-prong test.  Applying an objective, statistics-based standard, the court found magazines loadable with seven rounds were in common use.  Applying a subjective standard, the court then found that there was not strong evidence that possession of such rounds were for lawful purposes.  Thus, it concluded that although the protections were within the scope of the second amendment, the right to possess seven or more rounds in a magazine were not subject to the strongest second amendment rights.

Both the state and federal appellate courts applied intermediate scrutiny to the SAFE Act.  The New York appellate court was bound by the prior Court of Appeals decision in People v. Hughes.[3]  There, the Court of Appeals argued that the U.S. Supreme Court’s decision in District of Columbia v. Heller[4] expressly rejected rational basis review, yet implicitly rejected strict scrutiny by claiming Heller would not invalidate many traditional restrictions on firearm ownership.  The Second Circuit reached the same conclusion by applying the test from United States v. Carolene Products Co.  Finding (1) the second amendment’s core right is self-defense in a person’s home, and (2) alternative magazines remained available, the Second Circuit applied intermediate scrutiny.

Applying intermediate scrutiny, both courts found public safety and crime prevention were substantial government interests.  However, the courts diverged on whether the magazine regulations were substantially related to the important governmental interest.  In Schulz, the court held Schulz did not offer evidence showing reducing access to weapons id not substantially further public safety.  However, the Second Circuit found New York had not established that only loading seven rounds in a ten round clip would reduce crime.  Thus, that provision of the SAFE Act was invalidated on constitutional grounds.

Despite the rulings, both courts left open the possibility of reversing their holdings when new facts are presented.  The Schultz court presented a relatively brief constitutional analysis because of a lack of data opposing New York’s conclusions about the relationship between access to magazines and crime.  The Second Circuit was concerned about the compromise New York had created.  Because ten-round clips are more commercially available than seven-round clips are, the state legislature reached the compromising of allowing ten-round clips while only loading seven rounds in the magazine.  It seems the court may have been more favorable upholding a requirement where the number of rounds loaded in the magazine is equal to the magazine capacity.  Perhaps limiting magazines to a five-round capacity would meet the court’s concerns.

The application of constitutional analysis to firearm regulations remains unclear.  The recent challenges to the SAFE Act have been decided on an absence of evidence basis where the courts were not required to distinguish competing facts in the record to determine whether the state had the proper level of interest or a sufficient nexus between the interests and goals of the regulation.  This will provide uncertainty to states and litigants as new legislation regulating firearm rights is considered.

 

[1]               Case No. 520540, slip op. 07728 (N.Y. App. Div. 3d  Oct. 22, 2015).  The court broadly considered all provisions of the SAFE Act, including the seven round maximum for loading rounds in a magazine.

[2]               Nos. 14-36-cv, 14-319-cv (2d Cir. Oct. 19, 2015).  The court did uphold many other provisions of the SAFE Act.

[3]               1 N.E.3d 298 (2013).

[4]               554 U.S. 570 (2008).

Second Circuit Holds that the Discharge Injunction Provisions of the Bankruptcy Code do not Repeal Post Discharge Claims Under the Fair Debt Collection Practices Act

— by Matthew Schutte

Case: Garfield v. Ocwen Loan Servicing, LLC, 2016 U.S.  App. LEXIS 3 (2d Cir. 2016)

Abstract: Plaintiff borrower appealed from District Court’s dismissal of her post discharge Fair Debt Collection Practices Act claims against Defendant loan servicer. The Second Circuit held that the discharge injunction provision of the Bankruptcy Code does not broadly or impliedly repeal FDCPA claims in the post discharge context.

***

Plaintiff borrower was a former Chapter 13 debtor. Plaintiff sued Defendant loan servicer, alleging that Defendant violated various provisions of the Fair Debt Collection Practices Act (FDCPA) when it tried to collect a debt on her mortgage that had previously been discharged in bankruptcy proceedings. The United States District Court for the Western District of New York granted Defendant’s motion to dismiss for failure to state a claim on the ground that the exclusive remedy for Defendant’s alleged conduct was under the discharge injunction provision in §524(a) of the Bankruptcy Code.

In reviewing the District Court’s dismissal of Plaintiff’s claim, the Second Circuit had to address four issues of first impression: (1) whether § 524(a) of the Bankruptcy Code broadly repeals the FDCPA in the context of FDCPA claims based on conduct that would constitute a violation of the Bankruptcy Code’s discharge injunction; (2) whether § 524(a) of the Bankruptcy Code impliedly repealed Plaintiff’s claim that Defendant’s attempt to collect the discharged debt constituted a violation of §1692e(11) of the FDCPA, requiring a debt collector to provide a mini Miranda warning in its initial communication with a debtor; (3) whether § 524(a) of the Bankruptcy Code impliedly repealed Plaintiff’s claims under § 1692e(11) and § 1692g(a)(3) of the FDCPA, regarding the way in which Defendant tried to collect Plaintiff’s post bankruptcy monthly payments; and (4) whether § 524(a) of the Bankruptcy Code impliedly repealed Plaintiff’s claim that Defendant’s attempt to collect her discharged debt constituted a violation of §§ 1692e, 1692e(2), 1692(e)(5), and 1692e(8) of the FDCPA, which regulate debt collection.

The Court began its analysis by discussing the general rules regarding implied repeal. If a party claims that a later enacted statute creates an irreconcilable conflict with an earlier statute, then the court must decide whether the later statute has impliedly repealed all or part of the earlier statute. National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662-63 (2007). The Court noted that courts generally disfavor implied repeal. If there is no affirmative showing of an intent to repeal, then implied repeal is only justified if the earlier and later statutes are irreconcilable. Morton v. Mancari, 417 U.S. 535, 550 (1974).

The Court then went on to apply these rules to the bankruptcy context. If a party claims that a later enacted Bankruptcy Code statute creates an irreconcilable conflict with an earlier statute, then the court must differentiate between claims brought under the earlier statute while bankruptcy proceedings are pending and claims brought after discharge. The Second Circuit had previously decided that the FDCPA does not allow lawsuits on claims that are based on acts that allegedly violated the Bankruptcy Code if they are brought while bankruptcy proceedings are pending. Simmons v. Roundup Funding, LLC, 662 F.3d 93, 96 (2d Cir. 2010).

The Court held first that the § 524(a) of the Bankruptcy Code does not broadly repeal in the FDCPA in the context of FDCPA claims based on conduct that would violate the discharge injunction under § 524(a) of the Bankruptcy Code. The Court found no irreconcilable conflict between post discharge remedies under the Bankruptcy Code and the FDCPA, reasoning, “[t]here is no reason to assume that Congress did not expect these two statutes to coexist in the post discharge context.” In the post discharge context, the bankruptcy court no longer protects the former debtor. This factor was central to the Court’s reasoning in Simmons in holding that the Bankruptcy Code precludes FDCPA claims where they are brought during the pendency of bankruptcy proceedings. Additionally, the Court noted that § 524(a) of the Bankruptcy Code does not provide a clear cause of action for violations of the discharge injunction.

For the second issue, the Court held that the Bankruptcy Code did not impliedly repeal Plaintiff’s claim that Defendant’s attempt to collect her discharged debt violated §1692e(11) of the FDCPA. This statute requires debt collectors to provide mini-Miranda warnings in initial communications with debtors. The Court reasoned that Defendant’s communication constituted an attempt to collect a discharged debt, in violation of the Bankruptcy Code’s discharge injunction, as well as the FDCPA’s mini-Miranda requirement.

In addressing the third issue, the Court held that the Bankruptcy Code did not impliedly repeal Plaintiff’s claims that Defendant’s attempt to collect her delinquent post bankruptcy monthly payments constituted a violation of  § 1692e(11) and § 1692g(a)(3) of the FDCPA. The latter of these provisions requires debt collectors to provide debtors with timely notice of the opportunity to dispute a debt. The Court again found that Defendant’s alleged violations of these provisions did not conflict with any provisions of the Bankruptcy Code.

Finally, the Court held that the Bankruptcy Code did not impliedly repeal Plaintiff’s claim that Defendant’s attempt to collect her discharged debt violated §§ 1692e, 1692e(2), 1692(e)(5), and 1692e(8) of the FDCPA. These provisions regulate the collection of debt. The Court reasoned that a loan servicer could avoid violating the FDCPA provisions as well as the Bankruptcy Code by simply refraining from attempting to collect discharged debt. Thus, when Defendant tried to collect the discharged debt, it risked violating the FDCPA as well as the Bankruptcy Code, and there was no conflict between the statutes.

The Court reversed and remanded the District Court’s dismissal of Plaintiff’s claims and instructed the District Court to reinstate all of Plaintiff’s claims.

International Child Custody Case at the Second Circuit

by Dalya Bordman

 

Ermini v. Vittori, 758 F. 3d 153 (2d Cir. 2014).

An Italian family, parents Emiliano Ermini, Viviana Vittori, and children Emanuele and Daniele, moved to the United States from Italy in August of 2011 in efforts to find treatment for Daniele who is autistic. The family moved to Suffern, New York and enrolled the children in public school and put their home in Italy up for sale. Daniele started Applied Behavioral Analysis (ABA) therapy shortly after the family moved to New York. After a violent altercation in the U.S. between Ermini and Vittori, divorce proceedings were instituted in Italy and a temporary order of protection issued in New York gave Vittori temporary custody of the children.

In September 2012, Ermini petitioned an Italian court for an order directing Vittori to return to Italy with their children and although granted, several provisions of the order were vacated by the Court of Appeals in Rome. The Rome Order granted Vittori exclusive custody of the children and did not require her to return to Italy with the children. Ermini subsequently filed a petition in the Southern District of New York pursuant to the Hague Convention seeking the return of both Emanuele and Daniele back to Italy. In determining whether the Hague Convention applied, the district court concluded that the boys’ habitual residence was Italy and that Vittori had wrongfully retained the children in the United States without the consent of Ermini. Accordingly, the court found that the Hague Convention did apply, however, ruled in favor of Vittori’s affirmative defense that returning the children to their habitual country posed a grave risk to Daniele. Thus, the court denied Ermini’s petition to return the children to Italy without prejudice.

The Second Circuit, however, called into question the district court’s determinations that (1) the family did not change its habitual residence from Italy to the United States, and (2) that Vittori breached Ermini’s custody rights. Firstly, the Second Circuit reasoned that the family may have changed their habitual residence to the United States as they had leased a house in the United States, put their home in Italy on the market, enrolled their children in public school and extracurricular activities in the United States, planned to open a business in the United States, and shifted all of Daniele’s medical care and treatment to the United States. Additionally, both Ermini and Vittori agreed that the move could be indefinite if Daniele’s treatment was succeeding. Secondly, based on the Rome Order, in which custody of the children was granted to Vittori, the court questioned whether or not Vittori’s keeping the children in the United States against Ermini’s wishes actually breached Ermini’s custody rights, as Ermini did not have legal custody of the children. The Second Circuit, however, did not overturn the district court’s ruling on those grounds because the issues of habitual residency and breach of parental rights were complicated, and instead affirmed the district court’s decision based on the affirmative defense of grave risk of harm to the child if returned. Thus, the Second Circuit assumed, arguendo, that the family had not changed their habitual residence from Italy to the United States and that Vittori did breach Ermini’s parental rights by keeping the children in the United States. The Second Circuit then affirmed the district court’s decision denying Ermini’s petition because the grave risk of harm defense was satisfied as, (1) Daniele would face a grave risk of harm if he was taken out of his therapy in the United States, and (2) the children faced a grave risk of harm in Ermini’s custody because he was physically abusive.  The Second Circuit then amended the district court’s judgment to deny Ermini’s petition with prejudice, reasoning that the Hague Convention is used to decide instances of wrongful child removal and when the Convention is invoked, a child is returned or he is not, once that decision is made, the Convention is no longer needed in that situation. Thus, the court affirmed the district court’s decision and amended its judgment to deny Ermini’s petition with prejudice.