Link to Interview: https://www.youtube.com/watch?v=kxnZZycg0ig&t=851s

Nassau County Police Department Pattern of Discrimination in Issuance of Pistol Licenses As a Result of the Lack of the “Shall Issue” Home Premises Pistol License

Two cases are now pending in Federal Court, which challenge the discretionary standard for the issuance and revocation of pistol licenses by the Nassau County Police Department Pistol License Section.

The legal battle for recognition of the Second Amendment as an individual right post Heller v. District of Columbia continues for African Americans. In McDonald v. City of Chicago, which followed Heller, Mr. Otis McDonald, a child of sharecroppers went toe to toe with Mayor Richard Daley from 2008 until his landmark case went to the Supreme Court. He prevailed against decades of gun control in Chicago.

When interviewed later, Mr. McDonald felt strongly that he had a duty to stand up for the rights that had been taken away from African-Americans during slavery. In an interview with the Chicago Tribune after winning the suit, Mr. McDonald said the journey had been a lesson in history. He had come to understand more about his ancestors and the “slave codes” enacted in Southern states during the Civil War that prohibited slaves from owning guns. After slavery was abolished, states adopted “black codes” that kept guns out of the hands of freed blacks.

Mr. McDonald stated, “There was a wrong done a long time ago that dates back to slavery time,” he said in the interview. “I could feel the spirit of those people running through me as I sat in the Supreme Court.” (https://www.chicagotribune.com/news/ct-xpm-2014-04-06-ct-otis-mcdonald-obituary-met-20140406-story.html)

It is significant that in the infamous U.S. Supreme Court case of Dred Scott v. Sandford, which many believe to be a principal cause of the civil war, Dred and his wife Harriet Scott tried for a decade to peacefully use the courts to effectuate their freedom from slavery. From 1846 to 1853 they prosecuted their case, appealed and finally went to the Supreme Court to seek justice. In its infamous decision upholding slavery, on March 6, 1857, the Supreme Court held that all people of African American descent, free or slave, were not United States citizens and had no right to sue in Federal Court. The Court feared that if African Americans were considered to be citizens, they should enjoy all of the Bill of Rights freedoms, including the right “to keep and carry arms wherever they went.” (Scott v. Sanford, 60 U.S. 393, 417 (1856))

In New York in 2020, the struggle for full empowerment of African Americans on the issue of the Second Amendment continues despite the Heller and McDonald decisions. In New York State, a vague “proper cause” standard exists for the issuance of full carry pistol licenses compared to the “shall issue” standard for pistols which are restricted to the home. The former places the burden on the applicant, the latter places the burden on the police to find a reason not to issue a license. Nassau County does not allow for the “shall issue” home premises license, so to obtain a license, the burden is on the applicant to prove themselves worthy. No other freedom in the Bill of Rights places the burden on the citizen to exercise the right. Even the City of New York allows for the “shall issue” home premises license.

There are two Federal cases brought by this law firm now pending which follow in the footsteps of Otis McDonald.   

Lambert Henry v. County of Nassau (Index No. 17-cv-06545 (DRH) (AKT) U.S. Dist. Ct., E.D.N.Y.)

Lambert Henry is a retired New York City Corrections Officer, Veteran and an African-American resident of Nassau County.

On October 20, 2014, Lambert Henry had a verbal argument with his daughter regarding her school grades. The following day, she commenced a Family Court action, which resulted in the issuance of an Ex Parte Temporary Order of Protection. The Family Court determined that the Ex Parte Order did not rise to such a level as to require seizure of Henry’s firearms. Disregarding the order, the Nassau County Sheriff entered Henry’s home and confiscated his firearms without legal authority. Later, the NCPD revoked Henry’s pistol license. 

On November 9, 2017, a Federal complaint was filed in the Eastern District of New York, alleging violations of Henry’s Second Amendment rights. It was discovered that Nassau County Pistol License Division had far lower number of legal pistol licenses per person in the minority communities of Nassau County than adjoining white communities.  (See Long Island Herald, “Getting to know Nassau’s Legal Gun Owners”  May 31, 2018 https://www.liherald.com/stories/getting-to-know-nassaus-legal-gun-owners,103588)

The County went on to admit it had modified its policy to revoke all firearms rights  upon a loss of a pistol license under the SAFE Act.  Even with this admission, the lower court dismissed the case. The matter is now on appeal to the Second Circuit.

Russell Davenport v. County of Nassau (Index No. 2:19-cv-05097 (FB) (SMG) U.S. Dist. Ct., E.D.N.Y.)

Archbishop Russell Davenport is a retired Corrections Officer, Veteran and African-American resident of Nassau County. 

On January 13, 2017, at 4:20am, Archbishop Davenport was surprised by an intruder trespassing on his property in his yard. Davenport observed the individual peeking into the bedroom window where his grand-daughter was asleep. He approached the individual with his licensed Glock. A struggle ensued, and the firearm was accidentally discharged once into the ground, which caused the white intruder to lay on the ground.  When the Nassau County Police Department arrived, the white trespasser was allowed to leave the scene and instead, it was Archbishop Davenport who was arrested. Davenport successfully battled the criminal charges against him and on January 14, 2019 (two years later) all charges against Davenport were dismissed. Days later, the Nassau County Pistol License Division revoked Davenport’s firearms license anyway.

The class action lawsuit was filed on September 9, 2019, in Federal Court alleging claims for violation of Davenport’s Second Amendment rights, as well as a claim for racial discrimination against the minority community in the issuance of pistol licenses. Moreover, under the S.A.F.E. act, the county seeks to defend a policy to remove all firearms rights from anyone who has a revoked pistol license “at any time” disregarding the successful results in Criminal Court. A motion to dismiss was filed on February 13, 2020, and is currently pending.

Conclusion:

The Bill of Rights is for every American to enjoy. Even after winning in the Supreme Court establishing an individual Second Amendment Right, New York State and local police officials are applying a discretionary “proper cause” standard with a discriminatory effect. Clearly change is required to the model of Police issuance of firearms in the County of Nassau. Nassau County must issue the home premises license under the “shall issue” standard to begin to have a more even representation of legal gun ownership in all communities.