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New York’s Response to Bruen: The Outer Limits of the “Sensitive Places” Doctrine

  • Date:
  • July 13th, 2022

By: Andrew Willinger

Immediately following the Supreme Court’s decision in Bruen striking down New York’s proper-cause permitting standard, New York Governor Kathy Hochul took to Twitter to call the decision “reckless[]” and “outrageous,” and pledged further action “to keep New Yorkers safe.”  Just over one week after the decision was issued, on Friday, July 1, New York state passed a suite of amendments to its gun laws in response to Bruen (known colloquially as the “Concealed Carry Improvement Act”). 

New York’s new legislation is focused on three major areas.  First, the state removed its “proper cause” requirement but took other actions to shore up the concealed-carry permitting process.  Permit applicants are still required to demonstrate “good moral character” (a requirement contained in the New York law that was challenged in Bruen, and one that is on the books in many states Bruen approvingly cited as “shall issue”).  But New York now mandates that applicants take specific steps and submit information to the licensing officer to make this showing, including:  (1) attending an in-person interview; (2) providing names and contact information for at least four character references; (3) providing names and contact information for all adults residing with the applicant and information about whether minors reside in the home; and (4) submitting “a list of former and current social media accounts of the applicant from the past three years.”  The state also enacted additional proficiency requirements that will be part of the permit process going forward, including completing an in-person firearms safety course with at least 16 hours of live training and scoring at least 80% on a written exam.  Permitholders are required to be recertified every three years and, during the first recertification, must complete the same proficiency training as new applicants.

Second, the state banned the possession of guns in a long list of “sensitive places.”  This is a major development and likely to be the focus of future litigation, so it’s worth summarizing the entire list here.  Guns are now prohibited (with only limited carveouts, including for law enforcement officials and active-duty military personnel) in government buildings, healthcare facilities, places of worship, libraries, playgrounds, public parks, zoos, childcare facilities, the buildings or grounds of educational institutions (from pre-schools to universities), summer camps, developmental disability treatment locations, addiction and mental health facilities, facilities for disability assistance, homeless and domestic violence shelters, mass transit, any location with a liquor license or license for on-premises cannabis consumption, performing arts venues, stadiums and racetracks, museums, amusement parks, banquet halls, polling places, public sidewalks or areas restricted from general use for a permitted event, any protest or gathering, and Times Square.

Third, New York became the first state in the nation to enact a blanket ban on concealed carry in privately-owned locations (with the same carve-outs mentioned above) unless the property owner posts a sign permitting guns to be carried or otherwise gives explicit consent.  The law accomplishes this by criminalizing possession of a gun in any location where the possessor knows (or reasonably should know) that the owner or lessee of the property has not permitted such possession by posting clear signage or giving consent. The “reasonably should know” prong places the burden on the individual carrying a gun to look for posted signs before entering.

In addition to these three major reforms, the law implemented background checks for ammunition purchases and provided for increased cooperation and information sharing between the state background-check system and the federal NICS system.  New York also imposed storage requirements for individuals who leave their gun(s) in a vehicle or store guns in a home where minors also reside, expanded the definition of “body armor,” and created an appeal process for applicants whose permit application is denied or who fail a background check required to purchase a gun.  The law, which does not preclude cities and towns from enacting more restrictive gun laws, is set to take effect on September 1, 2022.

While New York complied with Bruen in removing its “proper cause” standard, it also imposed additional permit requirements including an in-person interview and several documentary submissions.  Notably, the Court’s opinion in Bruen did “not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”  It’s difficult to tell exactly where the Court will draw the line on shall-issue regimes and it will take some time to see how New York’s new scheme functions in practice.  But it’s probably a safe bet that—especially with the new training and submission requirements—we’ll see an as-applied challenge to the law at some point by a permit applicant who argues they were forced to wait too long.

The expansive list of sensitive places is another area where we can expect even more litigation.  Under Bruen’s limited analysis of the sensitive-places doctrine, certain locations on New York’s list—such as government buildings, polling places, and schools—are almost certainly fine.  But the Court also noted that “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly.”  It remains to be seen whether New York’s law crosses the line on the amount of city land (as a percent of total acreage) that can be declared sensitive.

How will locations such as mass transit, stadiums, bars, and Times Square fare under the historical-analogue test?  Bruen cites a law review article by David Kopel and Joseph Greenlee examining “18th- and 19th-century ‘sensitive places,’” and directs judges to reason by analogy to those places to determine modern locations that might qualify as sensitive places.  In their evaluation of early U.S. history, Kopel and Greenlee describe a 1782 Boston fire-prevention law that banned loaded guns in all city buildings, but note that this law “was far outnumbered by statutes all over America that required bringing guns into churches, and sometimes to other public assemblies” at the time.  Kopel and Greenlee also catalogue late-19th century laws in Tennessee, Texas, and Oklahoma that banned the carrying of guns in places of public assembly (with slight variations by state), and a Missouri law that banned only concealed-carry in such places.  Query whether these laws will be viewed as “outliers” after Bruen, but they are certain to play a central role in future sensitive-places litigation.  And if, as Kopel and Greenlee suggest, the late-19th century Western laws were motivated by a “racial subtext” of preventing freed slaves from bearing arms in public, how (if at all) does that impact the analysis?  It seems possible that skeptical judges may credit this theory and find such laws unpersuasive of a historical tradition of broadly banning gun possession in sensitive places for legitimate public safety reasons.

New York’s ban on gun possession in private businesses unless explicitly permitted will likely be more difficult to challenge in court.  While New York’s approach is novel, courts that have considered Second Amendment challenges to gun prohibition on private property have generally held that “[a]n individual’s right to bear arms as enshrined in the Second Amendment, whatever its full scope, certainly must be limited by the equally fundamental right of a private property owner to exercise exclusive dominion and control over its land.”  GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1265 (11th Cir. 2012).  It’s possible a future challenger may argue that New York’s decision to criminalize unauthorized carry in private businesses creates a state-action nexus, or point to the cumulative effect of the private-business restriction and the sensitive-places list to argue that New York’s approach effectively nullifies the right to carry guns in public for self-defense (as we see in the complaint discussed below).

Finally, a quick word on the social media review that will be part of New York’s permit application going forward.  We may see similar requirements gain broader acceptance in the coming weeks and months, especially given revelations about disturbing social media posts by individuals who have gone on to commit recent mass shootings.  However, this portion of the New York law may be subject to criticism that it contains loopholes:  the applicant is required to submit a list of his or her social media accounts from the past three years, and it’s not clear how much (if any) independent research the state plans to conduct to see if any accounts were omitted or deleted.  It’s also an open question what qualifies as a social media account—presumably Facebook and Twitter qualify, but how about YouTube or a message board or online forum account?  It's worth noting that New York is among the states with an ERPO, or red flag law, in place, so the state may intend for that law to do some of the work here—if a friend or relative notices something disturbing on social media, they can utilize the red flag law to attempt to prevent the individual from keeping or obtaining guns.

The social media account submission is yet another aspect of the New York law likely to face litigation.  Lawsuits challenging the New York law have already surfaced, including a complaint filed in the Northern District of New York earlier this week alleging that “exorbitant fees, [a] slew of non-sensitive ‘sensitive locations’ and ‘restricted locations’ which include very public places (like parks and sidewalks), and incredulous demands for carry license applicants, all are entirely without historical example, and thus violate the Second Amendment.”  The complaint also levies a First Amendment challenge to the social media and other documentary submissions, arguing that New York is attempting to “use protected First Amendment activity to deny the exercise of another right.”