20‐0086

- cv Juzumas v. Nassau County

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

______________ August Term 2020

No. 20

- 0086

- cv

______________ VICTOR JUZUMAS ,

Plaintiff

- Appellant ,

v.

NASSAU COUNTY, NEW YORK , Defendant

- Appellee , “JOHN DOES 1

- 5” Defendants.

______________ On Appeal from the United States District Court for the Eastern District of New York

______________ A RGUED : D ECEMBER 10, 2020 D ECIDED : M AY 1 2 , 2022

Before : P OOLER , W ESLEY , C ARNEY , Circuit Judges

. Victor Juzumas sued Nassau County (the “County”) and five “John Doe” law enforcement officers ( the County and the individuals together, “Defendants”)2 for alleged constitutional violations arising from their enforcement of New York
Penal Law § 400 .00 (11)(c). Juzumas all eges that the County’s policy interpreting and applying § 400 .00 (11)(c) is broader than the law itself, and unconstitutional as it was applied to him. The United States District Court for the Eastern District of New York (Donnelly, J .) disagreed, finding that the County acted to enforce a mandatory provision of state law and as a result was not a proper defendant under Vives v. City of New York , 524 F

. 3d 346 (2d Cir. 2008). It granted Defendants’ motion for summary judgment on Juzumas’s First, Second, and Fourth Amendment claims, related Monell claims, and Section 1983 conspiracy claim. Juzumas appeals
th e district cour t’s order. We AFFIRM the order of the district court in part , except
to the extent that it failed to reach a n adequate determination on the County’s longarms possession policy. We VACATE and REMAND in part for the district court to address that aspect of Juzumas’s Second Amendment and Monell claims

.

______________ AMY L. BELLA N TONI , The Bellantoni Law Firm, PLLC , Scar sdale , NY , for Plaintiff

- Appellant

. JARED A. KASSCHAU , Nassau County Attorney , Mineola , NY ( R obert F. Van der Waag , Deputy County Attorney, on the brief ) , for Defendant

- Appellee

.

______________3 P ER C URIAM : Victor Juzumas sued Nassau County (the “County”) and five “John Doe” law enforcement officers ( the County and the individuals together, “Defendants”) for alleged constitutional violations arising from their enforcement of New York
Penal Law § 400 .00 (11)(c). Juzumas alleges that the County’s policy interpreting § 400 .00 (11)(c) is broader than the law itself, and unconstitutional as it was applied
to him. The United States District Court for the Eastern District of New York (Donnelly, J .) disagreed, finding that the County acted in large part to enforce a mandatory provision of state law and was not a proper defendant under Vives v. City of New York , 524 F

. 3d 346 (2d Cir. 2008). Juzumas v. Nassau Cty. , 417 F. Supp. 3d 178 (E.D.N.Y. 2019). It granted Defendants’ motion for summary judgment on Juzumas’s First, Second, and Fourth Amendment claims, related Monell claims, and Section 1983 conspiracy claim. We affirm the order of the district court in part , except to the extent that it failed to reach an adequate determination on the County’s longarms possession policy

. We vacate and remand in part for the
distric t court to address that aspect of Juzumas’s Second Amendment and Monell
claims

. BACKGROUND

I. Statutory Framework New York Penal Law creates a licensing regime for the possession of pistols, revolvers, and certain other handguns, which it refers to as “firearms

. ” See N.Y.
Penal Law § 265.00(3). This regime makes it unlawful in New York to possess a
firearm without a license. See id. § § et seq. 265.20(3) , 400.00(2) . Eligibility for a license is governed by Penal Law § 400.00(1) , which provides that “ [n]o license4 shall be issued or renewed except for an applicant” who meets several enumerated requirements. Among those requirements are that the applicant be “of good moral character,” id. § 400.00(1)(b), and that there be “no good cause

. . . for the denial of the license,” id

. § 400.00(1)(n). Under the state law , licenses

— colloquially referred

to as either pistol , handgun, or firearm licenses

— are generally issued and administered by local governmental units or officers. In Juzumas’s case, Nassau County was charged with the licensing responsibility.

The State maintains no similar licensing scheme for long

- barrel rifles and shotguns (“long guns” or “longarms” )

. 1 However, the Penal Law speaks to
continued long gun possession by a person whose pistol license has been revoked,
as we d escribe below. Pistol l icense r evocation may occur in several different
circumstances. Among them is that described by Penal Law § 400.00(11)(a) , which provides that a license holder’s conviction of a “felony” or “serious offense , ” or
the license holders “ at any time becoming ineligible to obtain a license under this
section ,” “ shall operate as a revocation of the license.” See also N.Y. Penal Law § 265.00(17) (defining “serious offense ”)

. In addition, § 400.00(11)(b) requires licensing officers to suspend or revoke the license of any person about whom a report of mental disturbance has been made pursuant to New York Mental Hygiene Law § 9.46.

The tethering between longarm possession and pistol licenses occurs in subsection (c) of Penal Law § 400.00(11). S ubsection (c) provides that in “any

1 R ifles and shotguns whose barrels have been sawed off , however, are treated by the Penal Law as “firearms” and are subject to the licensing regime

. See N.Y. Penal Law § 265.00(3)

.5 instance in which a person’s license is suspended or revoked under paragraph (a) or (b) of this subdivision, such person shall surrend er such license to the appropriate licensing official and any and all firearms, rifles, or shotguns owned or possessed by such person shall be surrendered to an appropriate law enforcement agency.” N.Y. Penal
Law § 400.00(11)(c) (emphasis added)

. Nassau County adopted a polic y implementing this part of the state statutory framework . In May 2014, it published a legal bulletin declaring that “a person whose handgun license is suspe nd ed or revoked for any reason is not only required to surrender [his ] license and handguns but also [his] rifles and shotguns to the licensing authority (Nassau County Police Department).” JA 268

– 73

. 2 The written policy does not state whether an individual in Nassau County whose pistol
license has been revoked and weapons have been surrende re d may possess long guns again before being issued another pistol license. As Juzumas describes the County policy , however, that individual may lawfully possess long guns again

o nly after he applies for, and the County issues him , another pistol license. See Juzumas , 417 F. Supp. 3d at 182

.

2 The County’s written policy interpret i ng state law is also published in Nassau County Police Department Procedure OPS 10023, entitled “Removal and Disposition of Weapons

— Domestic Incidents/Threats to Public Safety

. ” Special App ’x 4. As summarized by the district court, “ [u] nder OPS 10023, longarm possession may be prohibited if (a) the owner is prohibited from possessing rifles or shotguns under the Federal Gun Control Act, (b) the owner has a relevant pending court disposition, (c) the owner is a subject of an order of protection, ( d) the owner has a relevant Nassau County arrest history, (e) d omestic incidents have occurred since the time of the confiscation or voluntary surrender, or (f) there are other extenuating circumstances that indicate that the longarms should not be returned.” Juzumas , 417 F. Supp. 3d at 182 n.6.6 II. Facts 3
Juzumas , a customs broker and resident of Nassau County, applied for an d
received a pistol license from the County in January 2003. In May 2008, Juzumas was arrested for conspiring to import controlled substances

. T he arresting officer confiscated his pistol license and pistols. I n September 2008, t he County suspended Juzumas’s pistol license based on the May arres t

. Soon after his license suspension , l aw enforcement officers collected Juzumas’s long guns , but returned
the long guns to him a few weeks later. Almost four years later , i n June 2012 , Juzumas pleaded guilty to a misdemeanor conspiracy to defraud the Un ited
States , in violation of 18 U.S.C. § 371 , in connection with his 2008 arrest

. In November 2015, t hree years after his guilty plea and seven years after his initial license suspension , the County sent Juzumas a letter stating that his pistol
license had been revoked. It identified th ree bases for th e revocation : (1) “ [a] rrest history,” (2) “ [c] onviction of violation title 18 USC 371 [sic] ,” and (3) “ [l] ack of good moral character.” J oint Appendix (“JA”) at 58. It further ad vised that , as “directed by New York State Penal Law section 400, and the New York State
Secure Ammunitions and Firearm Enforcement Act [SAFE Act] , you are prohibited from possessing firearms, rifles, shotguns.” Id

. The County’s letter informed Juzumas of several options for disposing of his weapons: “ a transfer of ownership to a properly licensed individual as mandated by the NY Safe Act, sale

3 The facts are taken from the district court’s decision

. Except as noted, t hey a re undisputed

.7 to a New York State licensed gun dealer; or request the destruction of the firearm(s). ” Id

. After receiving the letter, Juzumas made g ift s of his long guns to his son

‐ in

‐ law, to a “hunting buddy,” and to a friend. Special App ’x 6. (In light of the 2008 pistol license suspen sion, he no longer possessed a pistol.) He then unsuccessfully attempted to appeal the pistol license revocation using County administrative
processes

. He represented to the district court that he ha d not tried to buy long
guns since his license was revoked.

III. Procedural History In May 2017, Juzumas sued Defendants in the United States District Court
for the Eastern District of New York. He alleged that the y violated his First, Second, Fourth, and Fourteenth Amendment rights by requiring the surrender of his long guns upon revocation of his p istol license , by conditioning his reacquisition of long guns up on the issuance to him of a new pistol license , and by denying his application for a new license on the ground that his misdemeanor conviction was a “serious offense” within the meaning of Pen al Law § 265.00(17)

. I ssue was joined and the parties cross
- moved for summary judgment

. 4 The district court granted judgment to the County on Juzumas’s Second Amendment claim, finding that the County did no t infring e Juzumas’s right to
bear arms in any way not required by the state law, whose constitutionality Juzumas had not challenged

. The district court reasoned that , through its policy

4 While the cross

- motio ns were pending, Juzumas abandoned his First Amendment and conspiracy claims against the County.8 requiring surrender of the license and longarms , the County was merely enforc ing
Penal L aw § 400.00(11). The district court dismissed Juzumas’s Fourth Amendment claim, finding no governmental seizure because Juzumas voluntarily

“ gave away ” his long guns. Juzumas , 417 F. Supp. 3d at 187

– 88. It agreed with Juzumas , however, on his Fourteenth Amendment claim , concluding that he
should have received a hearing before being required to permanently cede possession of his long guns

. 5 The district court granted summary judgment to the County on Juzumas’s
Monell claims arising from his Second and Fourth Amendment allegations

. It briefly address ed Juzumas’s claim that the County’s open

- ended prohibition on his possession of longarms contravened his Second Amendment right s by

comment ing that “[a]t oral argument, counsel for the County said that the County no longer uses the [revocation] letter that the plaintiff received, and that it is now clear that someone whose pistol license has been revoked, and surrenders longarms at the time of the revocation, is free after the confiscation of his longarms to go out and purchase other longarms.” Juzumas , 417 F. Supp. 3d at 183 ( internal
footnote and quotations omitted)

. The court noted that , apart from the statement made at oral argument, “[t]he County did not explain how the plaintiff would have learned of the policy change, or the extent to which a background check, which would have alerted a gun dealer that the plaintiff’s license had been revoked, would have been an impediment to purch asing a longarm.” Id. It further observed that “[a]t oral argument, counsel for the County conceded that the

5 Th e parties later settled this Fourteenth Amendment claim and the district court dismissed it with prejudice before entering final judgment

.9 plaintiff’s continued possession of his longarms did not pose any danger to the community.” Id. at 190. Juzumas appeal s the district court’s gra nt of summary judgment to the County on his Second and Fourth Amendment claims.

DISCUSSION 6

I. Second Amendment Claim s Juzumas argues that Nassau County ’s policy regarding the surrender and reacquisition of long guns is homegrown and not merely an enforcement of state
law. First, h e reads state law to require the surrender of long guns only when the
revocation of a pistol license is based up on the factors specifically mentioned in
Penal Law § 400.00(11) , and not when based on any of the other reasons set forth
in the rest of Penal Law § 400.00

. In other words, he would limit the tethering provision to the reasons for revoking a pistol license that are specifically
enumerated ( and not merely referred to ) in Penal Law § 400.00(1 1). He urges that
th e County’s policy extends beyond the mandates of state law and in doing so violates his right under the Second Amendment to possess long guns

. Second, h e contests the County’s position

— in effect when the County required the surrender

6 The standard of review here is well known. “We review de novo a district court’s order granting summary judgment, construing the evidence in the light most favorable to the
non
‐ moving party. As relevant here, we also review de novo the district court’s legal conclusions, including those interpreting and determining the constitutionality of a statute. Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate where there is no genuine dispute as to any material fact and the movant is ent itled to judgment as a matter of law.” New York State Rifle & Pistol Ass’n, Inc. v. Cuomo , 804 F.3d 242, 252 (2d Cir. 2015) (internal quotation marks and citations omitted).10 of his longarms in 2015 but now perhaps abandoned

— that, despite the absence of a state licensing regime for longarms, he is prohibited from possessing a long arm unless and until he applies for an d obtains a new pistol license. We address each
contention in turn.

A. Does state law require surrender of longarms upon revocation of pistol license ?

A s to his first argument, we conclude that Juzumas misread s Penal Law § 400.00. The subsection of Penal Law § 400 .00 that address es long gun surrender provides that in “any instance in which a person’s license is suspended or revoked under paragraph (a) or (b) of this subdivision

. . . any and all firearms, rifles, or shotguns owned or possessed by suc h person shall be surrendered.” N.Y. Penal
Law § 400.00(11)(c). Thus, by the statute’s express terms, w hen a n individual’s pistol license is suspended or revoked for any reason set forth in Penal Law § 400.00(11)(a) or (b), the licensee must surrender his long guns

. Penal Law § 400.00(11)(a) does the work in Juzumas’s case : it covers the

reasons Juzumas’s pistol license was revoked

. It provides that “a licensee at any time becoming ineligible to obtain a license under this section sha ll operate as a
revocation of the license.” Id

. § 400.00(11)(a) (emphasis added)

. In other words, under subsection (a), a ny change in the licensee’s life that would have resulted in
the deni al of her application for a pistol license ( had she applied at the time of the change ) effects a revocation of the license. T h us, the question presented by Juzumas turns on the meaning of the phrase “ under this section” in Penal Law § 400.00(11)(a) . I f that phrase refers to the whole of Penal Law § 400.00 an d any of
the reasons stated in § 400.00 that a person m ay be ineligible to obtain a handgun11 license, then the County ’s policy is congruent with state law. Juzumas contends , however, that “this section” refers to Penal Law § 400.00(11) only, and not to Penal
Law § 400.00

. It takes no leap of logic to realize that the County is correct in arguing that the phrase “this section” refers to the whole of Penal Law § 400.00 and not merely
its subsection (11). In reaching that conclusion, w e look first to the text of the

statute. Matter of Peyton v. N.Y.C. Bd. of Standards & Appeals , 36 N.Y.3d 271, 279 (2020 )

. The first hint occurs in the title of § 400.00, which is identified by the symbol “ § , ” a mark well understood to mean “section

. ” The second indication is
found in the language of the Penal Law : Section 400.00(11)(c) refers to itself as a “subdivision

. ” It states, “[i]n any instance in which a person ’ s license is suspended
or revoked under paragraph (a ) or (b) of this subdivision, such person shall surrender such license to the appropriate licensing official and any and all firearms, rifles, or shotguns owned or possessed by such person shall be surrendered.” N.Y. Pen al
Law § 400.00(11)(c) (emphasis added ). We take these words and symbols for the ir plain meaning : the l egislature intended the word “section” as used in § 400.00(11)
to refer to Penal Law § 400.00. See People v

. Pabon , 28 N

. Y

. 3d 147, 152 (2016)

. The structure and legislative history of Penal Law § 400.00 also support th e County’s reading. See Nadkos Inc. v. Preferred Constr. Ins. Co. Risk Retention Grp.
LLC , 34 N.Y.3d 1, 7

– 11 (2019) (looking at the plain text, statutory structure, and legislative history when interpreting a statute)

. The various reasons why a person may be ineligible for a pistol license appear throughout § 400.00. T he operative
clause in Penal Law § 400.00(11)(a)

— “or a licensee at any time becoming ineligible
to obtain a license under this section”

— was added in 2013 by the New York State12 Secure Ammunition and Firearms Enforcement Act (the “SAFE Act”). The other reasons for losing a pistol license that are enumerated in the same subsection ( that is, being convict ed of a felony or serious offense and becoming subject to a protective order) were already in place when the SAFE Act was passed . The operative language added by the SAFE Act would thus be superfluous if it did not
refer to the additional grounds for inelig ibility enumerated in other subsections of Penal Law § 400.00. Cf. Leader v

. Maroney, Ponzini & Spencer , 97 N

. Y

. 2d 95, 104 ( 2001 ) (“ meaning and effect should be given to every word of a statute ”). 7 In requiring Juzumas to surrender his longarms after his conviction, Nassau County was reasonably applying state law, not craft ing its own independent
firearm surrender policy untethered to the Penal Law. As the district court noted , our opinion in Vives establishes the framework for assessing assert ed
constitutional violations arising from municipal enforcement of state law. See 524
F. 3 d at 35 3

. There, w e set out a two

- part test that looks generally to the amount of

7 W e have not located a case in which a plaintiff assert ed claims against a county that are analogous to those made by Juzumas

. P revious decisions made in related contexts , however, lend support to the County’s position

. For example, New York courts appear to frequently affirm pistol license r evocations under Penal Law § 400.00(11) without refere ncing the reasons for revocation that are specifically mentioned in that subdivision

. See, e.g. , Matter of Derry v. Fufidio , 192 A.D.3d 1099 (2d Dep ’ t 2021) (upholding revocation of a pistol license where the lic ensee’s 11

- year
- old son p osted on social media a video of himself brandishing a pistol ); Matter of Nash v. Nassau Cty. , 150 A.D.3d 1120, 1121 (2d Dep ’ t 2017) (upholding revocation of a pistol license after licensee was acquitted of criminal charges). Th ese decisions impl y an understand ing of the phrase “or a licensee at any time becoming ineligible to obtain a license under this section,” N.Y. Penal Law § 400.00(11)(a), that encompasses the other reasons that may render a person ineligible under Penal Law § 400.00 to obtain a pistol license. These include, for example, failure to meet the requirement of “good moral character,” id

. § 400.00(1)(b), and the existence of “good cause

. . . for the denial of the license,” id

. § 400.00(1)(n).13 autonomy enjoyed by the municipality in effectuating the policy in question

. See
id

. F irst , we ask whether the municipality had a “ meaningful choice ” as to whether
it would enforce the law

. Id . I f it did , then we ask whether the municipality adopted a “ discrete policy ” to enforce the law that represented a “ conscious
choice ” by one of its policy makers. Id . If both conditions are met, then the municipality exercises a sufficient degree of autonomy to face liability for its policy
choices

. In Vives , we remanded for further fact

- finding on th e question whether the

mun icipality had a “meaningful choice” as to whether it would enforce the statute.
We caution ed that the statute in question did “not constitute such a mandate because it simply defines an offense without directing municipal officials to take any steps to ac t when the statute is violated.” Id . That is far from the case here : Penal Law § 400.00(11)(c) direct s that long guns “shall be removed and declared a nuisance” in the event that they are not surrendered upon the suspension or revocation of a pistol lice nse. The language following “shall” in a statute is “mandatory, not precatory.” See Mach Mining, LLC v. EEOC , 575 U.S. 480, 486 (2015)

. T his mandatory language ends our inquiry

. Juzumas’s dispute rests with
the state law , whose constitutionality he has not challenged.

B. Is the C ounty ’s alleged policy conditioning lawful longarm possession on reinst at ement of a pistol license consistent with the Second Amendment ?
Juzumas also challenges the County’s policy , as described in its 2015
revocation letter , that the revocation of his pistol license entails the loss of his right

to possess longarms again until the County issues him a new pistol license

. The14 state law, he submits, speaks only to the prompt surrender of longarms that are in the possession of a person whose pistol license is suspended or is revoked “ at the
time ” of the suspension or revocation. Reply Br. at 2. As explained above, Penal Law § 400.00(11) provides that a person whose pistol license has been revoked for any of the reasons provided in § 400.00 “shall surrende r such license to the appropriate licensing official and any and all firearms, rifles, or shotguns owned or possessed by such person shall be su rrendered to an appropriate law enforcement agency.” N.Y. Penal Law § 400.00(11)(c). The state law does not by its terms prohibit such a person from ever possessing a long arm thereafter , nor does it expressly condition renewed longarm possession on the i ssuance of a new pistol license

. To the extent that Juzumas accurately interprets the County’s policy
as effect ing an enduring ban on longarm possession by a person whose pistol
license was revoked , we agree with him that the policy goes beyond what state law requires

. The district court did not address this aspect of Juzumas’s challenge, however, and determined only that it was “not clear” whether Juzumas was permitted to possess long guns again under the County’s policy. J uzumas , 417 F. Supp. 3d at 182 n.5, 183. Throughout this litigation , the County has offered inconsistent declarations
about its policy on post

– license revocation long arm possession

. As described above, the County advised Juzumas in November 2015 that he w as precluded
from possessing longarms until his license was reinstated , an event that cannot occur until at least five years after the revocation

. At deposition, a Nassau County15 Police Department (“NCPD”) lieutenant testified variably on the question. 8 The
NCPD Procedure OPS 10023, “Removal and Disposition of Weapons

— Domestic

8 Lieutenant Timpano testified as follows in response to questioning by Juzumas’s counsel: Q. Is it the position of the Nassau County Police Department then that if any individual has a pistol license that is suspended or revoked, that they automatically lo se their right to possess shotguns or rifles? A. That’s correct. Q. It doesn’t matter what the ground was for the suspension or the revocation of their pistol license; is that correct? A. That’s correct. JA 153. And then he testified, somewhat confusingly : Q. And they can only

— the individual would only be able to lawfully possess long guns after they reapplied for their pistol license and that application was granted? A. That is correct. Q. And what criteria does the pistol license unit use to determine whether an individual’s long guns are returned to them once they reapply for the pistol license? A. I don’t understand the question. Q. In other words, the five years

— someone’s pistol license is revoked and five years goes by and they reapply fo r their pistol license, then is it the case that the pistol license division is making a determination of whether the individual can lawfully possess handguns or long guns based on the same criteria? A. If at any point they no longer become ineligible to b e in possession of a firearm, they can be in possession of long guns, as well as a handgun, if they get a pistol permit. You don’t need a pistol permit by itself to get a

— to have a long gun. However, if your pistol license is revoked, then during that revo cation period, you can be in16 Incidents/Threats to Public Safety,” see supra note 2, describes a process for a “Rifles and Shotguns Investigation” to be conducted by a “Precinct Domestic
Inc ident Liaison Officer” after surrender of rifles and shotguns. 9 JA 295. It provides that the officer’s job is to “[i]nitiate[] an administrat ive review to determine if a legal impediment exists not to return confiscated rifles and shotguns.” Id. (emphasis in original). It does not define “legal impediment,” but
it cites 18 U.S.C. § 922 ( the Federal Gun Control Act) , Penal Law § 265 (“Firearms and other dangerous weapons”) , 10 and Penal Law § 400 (“License to carry”) as relevant. It elsewhere pla ces a duty on the officer to “[d]etermine[] if any of [certain listed] conditions exist” as part of the inquiry on which the return of firearms depends

. Id. at 294, 296. It then lists these conditions as bearing on the return of rifles and shotguns :

a. t he owner is prohibited from possessing rifles or shotguns under the Federal Gun Control Act, b. the owner has a relevant pending court disposition, c. the owner is a subject of an order of protection, d. the owner has a relevant Nassau County arrest histor y,

possession of a long gun. If a person reapplies and they get their pistol license back, then they can be in possession of a long gun. Id. at 186

– 87.

9 The stated effective date of OPS 10023 is “5/11/2012,” before the SAFE Act was enacted, but in this litigation the County appears to have relied on it without qualification.

10 Penal Law § 265.01, “Criminal possession of a weapon in the fourth degree,” makes it a crime for persons who have been “convicted of a felony or serious of fense” to possess such guns. Id. § 265.01(4); see also N.Y. Penal Law § 265.00(17) (defining “serious offense”). It also criminalizes possession by persons who are “certified not suitable to possess a rifle or shotgun

. ” N.Y. Penal Law § 265.01(6).17 e. domestic incidents have occurred since the time of the confiscation of voluntary surrender, f. other extenuating circumstances which indicate that rifles and shotguns should not be returned.
Id. at 296. Perhaps th is list can be read as setting forth the relevant “legal impedim e nts,” but the phrasing of condition (f) , “other extenuating circumstances,” is so broad as to make it hard to call it a “legal impediment.” If no legal impediment exists, however, then the wri tten NCPD policy does not appear to prohibit a licensee from acquiring new long guns even if his or her pistol
license was and remains revoked. See i d. at 301 ¶ 26.

In its submissions to the district court, t he County described its policy according to t he terms of OPS 10023 and averred that this policy “was in effect, and was applied to Plaintiff, when Plaintiff’s pistol license was revoked by [the County].” Id. at 301 ¶ 27. But, as mentioned above, the County declared at oral argument in the district court that it “no longer uses the letter that the p laintiff received,” and that it was at that point “clear” that a person whose longarms were
surrender ed after license revocation is “free

. . . to go out and purchase other longarms

. ” Juzumas , 417 F. Supp. 3d at 183; see id. at 182 n.5, 183 (recognizing t hat
th e County’s policy appeared to have changed during the course of the litigation).
No new standard revocation letter stating the policy or other document reflecting

a new policy was presented by the County. Id. at 183 n.11.

In its brief on appeal, the County submits that “ [i] f no legal impediment exists, NCPD does not automatically prohibit a licensee from possessing long guns even if his or her pistol license is revoked.” Appellee Br. at 11 (discussing administrative review process under O PS 10023). It adds that “[i] f no such18 impediment existed, NCPD would not automatically prohibit [ Juzumas ] from possessing long guns even if his pistol license was still revoked, as possession of a pistol license and possession of long guns are subject to two (2) separate determinations based upon two (2) distinct standards of review.” Id. at 12

– 13, 14. But the County also declares without qualification that “[t]he SAFE Act amended
Penal Law § 400.00(11) to include the prohibition of ownership of longarms by individuals whose pistol license were suspended or revoked.” Id. at 19 (emphasis added).

Our Court was presented with similar ly inconsistent assertions on Nassau County’s longarm possession policy in concurrent litigation

. In Henry v. County of
Nassau , 6 F.4th 324 (2d Cir. 2021), we heard a parallel challenge to the County’s policy that was mounted by an other individual who was required to surrender his firearms and longarms after losing his pistol license based on an alleged domestic
incident. 11 In reversing the district court’s grant of a motion to dismiss, we
observed that the County’s written policies were such that the plaintiff there “cannot apply for reinstatement of his pistol license

— or possess an y firearm s

— until ” at least “five (5) years from the date or revocation or from the appeal decision upholding revocation, whichever is later.” Id. at 330. As did the district court here, however, w e noted that “counsel for the County announced a change
in the County’s position [in this respect] at oral argument by claiming that [ the

11 Our Court conducted oral argument in Henry in October 2020; the district court conducted oral argument in this case in September 2019.19 plaintiff] is free to purchase longarms.” Id. at 330 n.2. 12 Evaluating the absolute prohibition that the plaintiff had pleaded, we determined that such a policy

— if
proven

— would impose a “substantial burden” on the plaintiff’s Second Amendment rights and therefore be subject to heightened scrutiny

. Id. at 332.

I n his post

- argument briefing addressing Hen ry , Juzumas appears to consider the County’s absolute prohibitio n on longarm possession to still be in
effect and targets it with his Second Amendment challenge. 13 T he County , in
contrast, cites a change in its policy from an absolute prohibition to the virtual opposite , writing, “[T]he Deputy County Attorney advised Judge Donnelly that the Police Department subsequently changed its interpretation of § 400.00, so that any person whose pistol license was revoked was free to obtain longarms (other than the longarms that were initial ly confiscated ) .” Appellee Ltr. Br. at 3 (Aug. 25, 2021). Having twice reversed its basic position, the County has yet to provide a complete description of when it will be lawful for Juzumas to reacquire longarms. It proposed that “these facts will be e xplored and a full determination regarding

12 We continued, “ The County’s reversal at oral argument does not affect our decision in this appeal because Henry plausibly alleged that the County’s policy was to forbid firearm ownership completely after the revocation of a pistol license

. . . .” Henry , 6 F.4th at 330 n.2.

13 In his post

- argument briefing, Juzumas makes the additional argument that the County could only bar him from possessing longarms if he were guilty of a “serious offense,” as defined by Penal Law § 265.00(17) , and therefore ineligible for possess ion of any firearms. See Appellant Ltr. Br. at 4

– 5 (Aug. 25, 2021). His misdemeanor offense, he avers, is not within the category of per se disqualifying “serious offenses” that would make him ineligible for possession under state law

. Id.20 them and their application to any claim, pursuant to the Second Circuit [ ’s ] analysis, will be made , ” presumably on remand. Id. at 6. In light of the absence of explicit state law constraints on Juzumas’s renewed possession of longarms , th e shapeshifting record as to the County’s actual policy,
and the constitutional nature of Juzumas’s challenge to the policy that was applied
to him , we find it necessary to vacate the district court’s decision in this res pect
and remand the matter for further fact

- finding and adjudication of this aspect of the Second Amendment challenge.

II. Fourth Amendment Claim
Juzumas’s Fourth Amendment claim fails for the same reason that his
Second Amendment claim regarding the County’s policy requiring longarm
surrender fails

. As explained in Section I.A above, this aspect of the County’s policy constituted a straightforward enforcement of Penal Law § 400.00(11) , which requires a person to surrender his longarms when his pistol license is revoked for any of the reasons provided in § 400.00

. To the extent that the County was merely complying with a state directive that is not challenged here, the County is not th e proper defendant to Juzumas’s Fourth Amendment claim

. See Vives , 524 F

. 3d at
352

. Even if the County were the proper defendant to this challenge, it is at best
uncertain that the County “seized” his longarms within the meaning of the Fourth
Amendment at all, much less unreasonably seized them

. See, e.g. , Fernandez v. California , 571 U.S. 292, 298 (2014) ( “ [T] he ultimate touchstone of the Fourth
Amendment is reasonableness.” ); Kaminsky v. Schriro , 760 F. App’x 69, 72 (2d Cir. 2019) (summary order) (ho lding that a gun owner who surrendered his firearms21 to police officers after being notified that , as a felon, he was prohibited from possessing them could not state a Fourth Amendment claim when they were not
returned )

. Cf. Maryland v. Macon , 472 U.S. 463 , 469 (1985) (holding that an undercover officer’s purchase of adult magazines was not a seizure of the magazines from a vendor )

. While the government may seize a person by a mere “show of authority” so long as the person submits, Brendlin v. California , 551 U.S. 249, 254 (2007), the “show of authority” doctrine does not appear to have been extended to cover the seizure of personal effects. See Maureen E. Brady, The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due Protection , 125 Y ALE L.J. 946, 957

– 64 (2016) (discussing the limited jurisprudence addressing the “effects” provision of the Fourth Amendment).

This claim was thus properly dismissed.

CONCLUS ION

T he order of the district court granting Nassau County’s motion for summary judgment is AFFIRMED in part and VACATED in part, and the case
is REMANDED for further consideration of Juzumas’s challenge to the County’s post

- surrender longarm policy

.