In New York State, when a handgun licensee becomes the subject of a mental health report made pursuant to Mental Hygiene Law § 9.46, the state's handgun licensing scheme (i) requires the licensing officer to suspend or revoke the handgun license; and (ii) requires the disqualified licensee to surrender all handguns, rifles, and shotguns to an appropriate law enforcement agency. N.Y. Penal Law § 400.00(11); Mental Hygiene Law § 9.46. App-27.

New York does not prohibit the return of surrendered firearms to another, non-prohibited, owner. Yet, police departments refuse to release firearms and courts refuse to recognize the property and due process rights of the non-prohibited handgun owner. Rather, both require the handgun owner to try their hand in state court, but no state statute provides a post-deprivation procedure for the release of firearms surrendered under N.Y. Penal Law § 400.00(11)(b), (c).

While there is Second Circuit precedent requiring the government to provide prompt post-deprivation due process for a once-disqualified individual to retrieve long guns [Panzella v. Sposato, 863 F.3d 210, 216 (2d Cir. 2017), as amended (July 18, 2017)] when handguns are at issue, neither the once-disqualified owner nor a non-prohibited owner of such handguns has recourse in the federal courts.

Whether the Fourth Amendment is implicated where law enforcement refuses to release firearms surrendered for mental health reasons to a non-prohibited owner?

Whether the Fourteenth Amendment right to due process is violated where no prompt post-deprivation remedy exists to recover handguns surrendered based on the mental health disqualification of a separate owner?

Whether the Fourth Amendment is implicated where law enforcement refuses to release firearms surrendered for mental health reasons to a nonprohibited owner?