AP Photo/David Goldman

New York Judge Just Says ‘No’ to Pee Tests for Concealed Carry Applicants

Even though New York’s discretionary “may issue” laws were ruled unconstitutional by the Supreme Court in 2022’s Bruen decision, some licensing authorities in the state are still using some awfully subjective criteria to determine whether or not an applicant will receive a concealed carry permit. 

In Nassau County, for instance, applicants must submit a list of all former and current social media accounts used within the past 3 years, so police can pore over the content for evidence of “good moral character”, along with a notarized statement attesting to any minors that live full or part-time with the applicant as well as the name and contact information of your “current spouse or domestic partner and any other adults residing with you, including adult children.”

Along with the paperwork, Nassau County Police Commissioner Patrick Ryder also requires every applicant to submit to a urinalysis test to prove they’re drug-free, even though that isn’t required under New York law. Nassau County resident Joseph Kamenshchik sued to challenge some of these provisions in January of last year, and this week New York Supreme Court Justice James P. McCormack granted Kamenshchik at least partial relief by granting an injunction against several aspect of the county’s licensing scheme. 

“Forcing an applicant to submit to urinalysis, in essence, requires them to give up their Fourth Amendment rights against unlawful searches and seizures to exercise their Second Amendment rights,” State Supreme Court Justice James McCormack wrote in his decision.
The judge also threw out several other hurdles to obtaining a concealed-carry gun permit, like disclosing social media accounts and passwords, and questioned why gun applicants must wait up to eight months before getting fingerprinted at police headquarters.
“This court wanted, and continues to want, an explanation as to why it takes so long, and why fingerprinting cannot take place at any precinct (like it can and does for other reasons),” McCormack wrote. “Absent a valid reason, the court could be constrained to find the wait unreasonable and unconstitutional.”

McCormack says that licensing authorities still enjoy a “limited” amount of discretion in issuing permits, particularly in the area of good moral character or dangerousness, but these provisions in Nassau County go far beyond what’s necessary to determine whether or not someone is eligible for a carry license. 

If urinalysis is beyond the Licensing Officer’s discretion, then it can only be upheld if there is, in Bruen’s parlance, a historical analogue. Not only is there no such historical analogue, but forcing an applicant to submit to urinalysis, in essence, requires them to give up their 4th Amendment rights against unlawful searches and seizures to exercise their 2nd Amendment rights. This court cannot imagine a scenario, under current 2nd Amendment jurisprudence, where that would be allowed. The court is therefore constrained to find the urinalysis requirement is unconstitutional, as applied toKamenshchik in this matter.
Further, Kamenshchik’s application cannot be denied based upon his refusal to provide social media accounts. As the court determined in Antonyuk, such a requirement is an infringement on 1st Amendment Free Speech, particularly where a person wishes to communicate that speech anonymously. “Anyone familiar with most social media platforms knows that nearly all handles are pseudonymous, at least to the extent that the poster’s identity is not immediately apparent. Requiring disclosure of handles is thus to demand that applicants effectively forfeit their right to pseudonymous speech on social media (where so much speech now takes place).” As such, Kamenshchik’s application cannot be denied for his refusal to supply social media account information.

McCormack did uphold, at least for now, the county’s requirement that applicants alert the licensing authorities to any minors who might live in the home, as well as the name and contact information of the applicant’s significant other, but he also left open the possibility of further injunctive relief against the county’s requirement that applicants must be fingerprinted at police headquarters before their application can be submitted; a process that has left Kamenshchik and other applicants twiddling their thumbs for months on end while they wait for an appointment at the station. 

The judge says a hearing on that aspect of Kamenshcik’s lawsuit was ordered last August but has yet to take place, so he’s set a date of March 25 to learn why Ryder is mandating that the required fingerprinting take place at police headquarters and not at any other governmental agency or police substation in the county. McCormack says the hearing will also cover the county’s requirement, mandated for both concealed carry permits and the pistol licenses required to keep a handgun in the home, that applicants submit multiple character references; individuals who must live in Nassau County and have known the applicant for at least one year, but who cannot be relatives (by either blood or marriage), active law enforcement officers, husband and wife, or two or more members of the same family or household. 

I would have liked to have seen McCormack toss that mandate out entirely, but he’s limiting his discussion to the provisions prohibiting law enforcement or relatives from serving as character references. It’s also disappointing that McCormack stayed his injunction against the urinalysis for everyone but Kamenshcik for at least the next 30 days, even though he found it to be an unconstitutional violation of the rights of applicants.

Overall, this is most definitely a win for gun owners, but it’s not as sweeping a victory as we’d like to see. No other constitutional right requires character references before we can exercise it, and from a practical standpoint, the requirement that character references must live in Nassau County and have known the applicant for at least a year makes it difficult, if not impossible, for new arrivals in the county to keep a gun in their home or carry one for self-defense without waiting at least twelve months before applying for their government-issued permission slip to exercise their Second Amendment rights. 

Heck, even introverts might have a problem coming up with multiple references who meet the county’s criteria, and I’d argue it’s an invasion of privacy and a violation of our Fourth Amendment rights to be forced by the police to disclose our desire to keep and bear arms to friends and acquaintances before a permit can be issued. McCormack seems to be basing his decision to uphold those requirements on the Second Circuit’s decision in Antonyuk, which, as we covered yesterday, could soon be taken up by the Supreme Court, so fingers crossed that there’s some relief in that regard on the horizon as well.   

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