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Gun rights and the Port Authority

February 28, 2012

Public authorities don’t run into Second Amendment issues too often, but it does happen from time to time.

Consider the recent decision in Montalbano v. Port Authority. The plaintiff, John Montalbano, was a retired Port Authority police officer who wanted to get a gun permit in New York City, but couldn’t, because before retiring the Port Authority had imposed an on-duty restriction on his firearm use. The condition was recommended by a state psychologist after Montalbano was involved in a domestic incident, and it prevented him from obtaining a certificate of good standing, one of the prerequisites for obtaining a gun permit. After having his firearms permit denied, Montalbano asked the Port Authority to remove the firearms restriction from his record, but the Port Authority refused because he was no longer an employee.

So Montalbano sued the Port Authority in federal court, claiming that it had effectively violated his Second Amendment right to bear arms. Unfortunately for him, the court didn’t agree, and it granted the Port Authority’s motion for summary judgment.

The court began its analysis by explaining that the Port Authority couldn’t be held vicariously liable for the acts of its employees regarding the gun restriction; rather, for Montalbano to prove a Second Amendment infringement, he had to present evidence that the violation was caused by a policy, custom, or practice of the Port Authority itself. No such evidence was provided.

Regardless, Montalbano failed to prove a deprivation of his Second Amendment rights because the Port Authority didn’t categorically bar him from keeping a firearm—his gun permit was denied by the city, after all, and as the court noted, he probably should have sued the city too.

Additionally, the Port Authority’s on-duty restriction was a reasonable condition of Montalbano’s continued employment. As the court explained, “having one of its police officers involved in an episode of domestic gun violence, or allowing an officer to be armed and unsupervised when the officer had a prior domestic incident, would severely undermine the Port Authority’s ability ‘to operate efficiently and effectively’ in providing security to the public.”

Nor did the Port Authority violate Montalbano’s Second Amendment rights by refusing to give him a certificate of good standing after he had retired, because “nothing in the Second Amendment’s ‘right to keep and bear arms’ requires that the Port Authority expunge from the records of its former employee a firearms restriction that was reasonably imposed after a documented domestic incident, in order to facilitate the former employee’s gun ownership and use as a private citizen.”

The court also rejected Montalbano’s contention that he had a federally protected right, independent of any Second Amendment claim, to a post-employment mental health reevalution by the Port Authority, or to a certificate of good standing. Montalbano cited no case law in support of this argument and had no evidence that such a right was “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.” The court additionally noted that “it is not an abuse of government authority to refuse to spend government resources performing a mental health evaluation on a former employee who has voluntarily retired, and who seeks the evaluation to aid in his pursuit of private employment. Nor is it an abuse of government authority to refuse to issue a certificate of good standing to a former employee for the former employee’s use in obtaining a firearms permit when the employee retired from government with a firearms restriction on his record.”

Montalbano’s procedural due process claim was similarly rejected because—assuming that he had some protected liberty interest at stake—he could have sought judicial review of the Port Authority’s actions in state court before filing his federal civil rights lawsuit. “The availability of an Article 78 proceeding does not mean that Montalbano was required to exhaust his administrative remedies,” the court explained. “Rather, the availability of an Article 78 proceeding ensures that Montalbano had adequate procedural due process to vindicate the alleged underlying right at the time that the deprivation occurred.”

Montalbano v. Port Authority, 2012 U.S. Dist. LEXIS 20527 (S.D.N.Y. Feb. 17, 2012).

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