23-8093-cv Kellogg v. Nichols
United States Court of Appeals for the Second Circuit August Term, 2024
(Argued: September 25, 2024 Decided: August 18, 2025 Amended: March 5, 2026)
Docket No. 23-8093-cv
_____________________________________
JEREMY KELLOGG, JONATHAN HARMON,
Plaintiffs-Appellants,
v.
JONATHAN D. NICHOLS, individually and in his capacity as statutory licensing officer pursuant to Penal Law 265.00(10); 400.00 et seq.,
Defendant-Appellee. *
Before:
RAGGI, WESLEY, and LOHIER, Circuit Judges.
The Plaintiffs are New York State residents who applied for concealed carry licenses under the State’s firearms licensing laws. Jonathan D. Nichols, a state court judge serving as a statutory firearms licensing officer, reviewed and
* The Clerk of Court is directed to amend the caption as set forth above. denied their applications for failing to meet the statutory criteria for eligibility for a license. The Plaintiffs sued Judge Nichols in his individual and official capacities under 42 U.S.C. § 1983, alleging that New York’s firearms licensing laws violate their rights under the Second and Fourteenth Amendments to the Constitution. The United States District Court for the Northern District of New York (Hurd, J.) dismissed the Plaintiffs’ § 1983 claims, holding that absolute immunity barred their individual-capacity claims because Judge Nichols acted in his judicial capacity in ruling on their applications, and that § 1983 and Article III’s case-or-controversy requirement barred their claims for injunctive relief and declaratory relief, respectively. We reaffirm this Court’s precedent that judicial officers act in a judicial capacity when they decide firearms license applications and, therefore, enjoy absolute immunity from suit in their individual capacities. We further hold that the Plaintiffs’ specific claims for injunctive relief and declaratory relief against Judge Nichols in his official capacity are barred by Article III’s case-or-controversy requirement. AFFIRMED.
AMY L. BELLANTONI, The Bellantoni Law Firm, PLLC, Scarsdale, NY, for Plaintiffs-Appellants.
JONATHAN D. HITSOUS, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, on the brief), for Letitia James, Attorney General for the State of New York, Albany, NY, for Defendant-Appellee.
PER CURIAM:
This appeal from a dismissal of an action brought under 42 U.S.C. § 1983
concerns judicial immunity and federal jurisdiction to review the decisions of a
state court judge. It arises from a federal lawsuit filed by Jeremy Kellogg and
Jonathan Harmon against New York state court Judge Jonathan D. Nichols.
Judge Nichols, the Plaintiffs claim, unconstitutionally rejected their applications 2 for a firearms license under New York State’s Penal Law § 400.00 in violation of
their Second and Fourteenth Amendment rights.
The Plaintiffs sued Judge Nichols in both his individual and official
capacities. The District Court dismissed the individual-capacity claims as barred
by absolute judicial immunity. See Libertarian Party of Erie Cnty. v. Cuomo, 970
F.3d 106 (2d Cir. 2020), abrogated on other grounds by N.Y. State Rifle & Pistol Ass’n,
Inc. v. Bruen, 597 U.S. 1 (2022). The District Court also dismissed the Plaintiffs’
official-capacity claims for injunctive and declaratory relief.
We agree with the District Court that the Plaintiffs’ individual-capacity
claims are barred by absolute judicial immunity. We further conclude that
Article III’s case-or-controversy requirement bars official-capacity claims under
§ 1983 against state court judges who rule on firearms license applications under
New York state law. Affirmed.
BACKGROUND
“New York maintains a general prohibition on the possession of ‘firearms’
absent a license.” Antonyuk v. James, 120 F.4th 941, 974 (2d Cir. 2024) (quoting
Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 85 (2d Cir. 2012)). New York Penal
Law § 400.00 “is the exclusive statutory mechanism for the licensing of firearms
3 in New York State.” Id. Other sections of New York’s Penal Law provide
criminal penalties for possession of a firearm without a license. See N.Y. Penal
Law §§ 265.00(3), 265.01 et seq., and 265.20(a)(3).
New York residents can be licensed to “have and carry concealed [pistols
or revolvers], without regard to employment or place of possession subject to the
restrictions of state and federal law.” Id. § 400.00(2)(f). To be eligible for a
concealed-carry or pistol license, an applicant must demonstrate “good moral
character,” defined as “the essential character, temperament and judgement
necessary to be entrusted with a weapon and to use it only in a manner that does
not endanger oneself or others.” Id. § 400.00(1).
New York residents seeking a firearms license must apply to their local
licensing officer. Id. § 400.00(3). In Columbia County, New York, where the
Plaintiffs reside, the licensing officer is “a judge or justice of a court of record
having his office in the county of issuance,” including, as relevant here, a county
court judge. 1 Id. § 265.00(10). After a local police investigation, the licensing
officer reviews the application and must “either deny the application for reasons
1 In Nassau County, Suffolk County, and the five counties that comprise New York City, the police commissioner or county sheriff serves as the licensing officer. N.Y. Penal Law § 265.00(10). 4 specifically and concisely stated in writing or grant the application and issue the
license applied for.” Id. § 400.00(4-b).
In 2022 Kellogg and Harmon separately applied for pistol licenses with the
Columbia County Sheriff’s Office. Their applications were assigned to Judge
Nichols in his capacity as a statutory licensing officer for Columbia County.
After hearings on the applications, Judge Nichols determined that Kellogg’s
criminal arrest history and inadequate explanations for failing to disclose that
history in his application demonstrated that he lacked the requisite maturity or
responsibility to hold a license. As for Harmon, Judge Nichols ruled that
Harmon’s criminal history, including a youthful-offender adjudication for first-
degree robbery, likewise demonstrated that he lacked the requisite maturity or
responsibility to have a license.
In June 2023 Kellogg and Harmon filed this action against Judge Nichols,
asserting six § 1983 claims for violating the Second and Fourteenth Amendments,
as well as one state law claim. The Plaintiffs’ § 1983 claims against Judge Nichols
in his individual capacity sought nominal monetary damages. The federal claims
against Judge Nichols in his official capacity sought both declaratory and
injunctive relief. They sought a declaratory judgment that New York’s licensing
5 scheme violates the Second and Fourteenth Amendments. They also sought an
injunction against the enforcement of New York Penal Law Sections 265.01,
265.02(5)(i), 265.03(2), 265.03(3), and 265.04(2), which criminalize the unlicensed
possession of firearms, and New York Executive Law Section 296(16), which
concerns criminal history disclosures on firearms license applications. Judge
Nichols moved to dismiss the claims for lack of subject matter jurisdiction and
for failure to state a claim under Rules 12(b)(1) and 12(b)(6) of the Federal Rules
of Civil Procedure.
The District Court granted the motion to dismiss. Kellogg v. Nichols, 703
F. Supp. 3d 367, 376 (N.D.N.Y. 2023). Relying on our decision in Libertarian Party,
the District Court concluded that judicial immunity barred the Plaintiffs’
individual-capacity claims against Judge Nichols, who had acted in his judicial
capacity in denying their applications. Id. at 371–73. The District Court also
dismissed the Plaintiffs’ official-capacity claims for declaratory relief as barred by
Article III’s case-or-controversy requirement, and their claims for injunctive relief
as barred by § 1983. Id. at 373–75; see 42 U.S.C. § 1983 (permitting suit “except
that in any action brought against a judicial officer for an act or omission taken in
such officer’s judicial capacity, injunctive relief shall not be granted unless a
6 declaratory decree was violated or declaratory relief was unavailable”). The
District Court then declined to exercise supplemental jurisdiction over the
remaining state law claim. Kellogg, 703 F. Supp. 3d at 375.
DISCUSSION
We review de novo both the grant of a motion to dismiss under Rule
12(b)(6) as well as the grant of a Rule 12(b)(1) motion that “is based solely on the
complaint and the attached exhibits.” SM Kids, LLC v. Google LLC, 963 F.3d 206,
210–11 (2d Cir. 2020); see Costin v. Glens Falls Hosp., 103 F.4th 946, 952 (2d Cir.
2024). “[A] motion under Rule 12(b)(1) may also rely on evidence beyond the
pleadings. When a defendant makes such a fact-based motion, the plaintiff may
respond with evidence of its own. We then review the district court’s legal
conclusions de novo and its factual findings for clear error.” SM Kids, 963 F.3d at
210 (cleaned up).
I
We begin with the Plaintiffs’ § 1983 claims against Judge Nichols in his
individual capacity. “[J]udges generally have absolute [judicial] immunity from
suits for money damages for their judicial actions,” but not for actions taken in
an administrative, legislative, or executive capacity. Bliven v. Hunt, 579 F.3d 204,
7 209–10 (2d Cir. 2009); see Forrester v. White, 484 U.S. 219, 227–30 (1988). “In
determining whether an act by a judge is ‘judicial,’ thereby warranting absolute
immunity, we are to take a functional approach, for such ‘immunity is justified
and defined by the functions it protects and serves, not by the person to whom it
attaches.’” Bliven, 579 F.3d at 209–10 (quoting Forrester, 484 U.S. at 227).
Generally speaking, “acts arising out of, or related to, individual cases before the
judge are considered judicial in nature.” Id. at 210. “The principal hallmark of
the judicial function is a decision in relation to a particular case.” Id. at 211.
In Libertarian Party, this Court addressed whether state court judges are
immune from individual-capacity claims for actions taken as firearms licensing
officers in New York. We determined that two New York state court judges
functioned in their judicial capacity when they denied firearms license
applications. Libertarian Party, 970 F.3d at 123–25. Firearms licensing officers
render “[a]ctual rulings,” we explained, that “directly address[] the specific
applications, refer[] to relevant requirements of § 400.00, and decide[] the merits
of the applicants’ requests.” Id. at 124. Because these rulings are “judicial
decisions” rather than administrative actions, we held that state court judges are
8 entitled to absolute immunity from claims asserted against them in their
individual capacities as firearms licensing officers. Id. at 125.
The Plaintiffs acknowledge that Libertarian Party forecloses their
individual-capacity claims. They nevertheless ask us to overturn it as wrongly
decided. Appellants’ Br. 6, 36–38. They argue that Libertarian Party is in “conflict
with New York State’s interpretation” of Penal Law § 400.00 that firearms
licensing officers act in an “administrative capacity.” Appellants’ Br. 37. As the
Plaintiffs recognize, however, “we . . . are bound by the decisions of prior panels
until such time as they are overruled either by an en banc panel of our Court or
by the Supreme Court.” United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir.
2004). The Plaintiffs do not, and cannot, argue that either exception applies to
Libertarian Party insofar as it addresses judicial immunity. Shipping Corp. of India
Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67 (2d Cir. 2009).
Here, the Plaintiffs’ firearms license applications were referred to Judge
Nichols because he served as “a judge . . . of a court of record having his office
in” Columbia County, New York. N.Y. Penal Law § 265.00(10). In that capacity,
Judge Nichols reviewed the Plaintiffs’ firearms license applications, decided the
merits of those applications based on the requirements of Penal Law § 400.00,
9 and explained why he denied the licenses. Consistent with Libertarian Party, we
must conclude, as the District Court did, that both denials constituted “judicial
decisions” for which Judge Nichols was entitled to absolute judicial immunity
from suit for damages in his individual capacity. 970 F.3d at 125. We therefore
affirm the District Court’s dismissal of the Plaintiffs’ individual-capacity claims. 2
II
We turn next to the Plaintiffs’ § 1983 claims against Judge Nichols in his
official capacity. These claims seek to enjoin enforcement of New York’s firearms
licensing laws and criminal statutes punishing possession of firearms for self-
defense and also seek a declaratory judgment that the State’s licensing scheme
violates the Second and Fourteenth Amendments and that Judge Nichols
violated the Plaintiffs’ Second and Fourteenth Amendment rights. The District
Court held that Article III barred the claims for declaratory relief and that the
Plaintiffs’ specific claims for injunctive relief were not subject to § 1983’s narrow
2 Because Libertarian Party controls our decision under the circumstances of this case, we express no views on whether decisions legislatively entrusted to judges in certain communities and to law enforcement officers in other communities are properly viewed differently depending on the decisionmaker for the purposes of recognizing whether the officials are entitled to absolute judicial immunity. 10 exception to Eleventh Amendment immunity for judicial officers. We conclude
that Article III bars the claims for both declaratory and injunctive relief.
A
Article III of the Constitution limits the “judicial Power” of the United
States to actual “Cases” or “Controversies.” U.S. Const. art. III, § 2; see
TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021); S. Jackson & Son, Inc. v. Coffee,
Sugar & Cocoa Exch. Inc., 24 F.3d 427, 431 (2d Cir. 1994). “A controversy that is
appropriate for judicial determination . . . must be definite and concrete,
touching the legal relations of parties having adverse legal interests.” In re
Motors Liquidation Co., 829 F.3d 135, 168 (2d Cir. 2016) (quotation marks omitted).
Without a case or controversy between adverse parties, a federal court does not
have subject matter jurisdiction over an action. S. Jackson & Son, 24 F.3d at 431;
see also Flast v. Cohen, 392 U.S. 83, 95 (1968) (explaining that Article III’s case-or-
controversy requirement “limit[s] the business of federal courts to questions
presented in an adversary context”). And we may have jurisdiction over some
claims but not others. Article III jurisdiction “is not dispensed in gross; rather,
plaintiffs must demonstrate” that we have Article III jurisdiction over “each
11 claim that they press and for each form of relief that they seek.” TransUnion, 594
U.S. at 431.
In general, “no case or controversy” exists “between a judge who
adjudicates claims under a statute and a litigant who attacks the constitutionality
of the statute.” Pulliam v. Allen, 466 U.S. 522, 538 n.18 (1984) (citing In re Justices
of Sup. Ct. of P.R., 695 F.2d 17, 21 (1st Cir. 1982) (Breyer, J.)); see Whole Woman’s
Health v. Jackson, 595 U.S. 30, 39–40 (2021). “Judges sit as arbiters without a
personal or institutional stake on either side of the constitutional controversy.”
In re Justices, 695 F.2d at 21. That is why a litigant “seeking to enjoin the
enforcement of a statute on constitutional grounds ordinarily sues the
enforcement official authorized to bring suit under the statute,” not “the court or
judges who are supposed to adjudicate the merits of the suit that the enforcement
official may bring.” Id. at 21–22. For that reason, a litigant challenging the
constitutionality of a state law under § 1983 and a state court judge tasked with
applying that law in a judicial proceeding are typically not adverse parties.
Mendez v. Heller, 530 F.2d 457, 459–61 (2d Cir. 1976).
Mendez is instructive. There we considered whether a New York resident
challenging the state’s divorce laws could properly sue a New York Supreme
12 Court Justice in connection with the judge’s adjudication of divorce proceedings.
See id. at 458–60; Mendez v. Heller, 380 F. Supp. 985, 987–88 (E.D.N.Y. 1974). We
determined that the judge’s ruling on the divorce complaint reflected “a judicial
function.” Mendez, 530 F.2d at 460. As such, we held, the plaintiff’s suit against
the judge was properly dismissed for lack of a justiciable controversy because it
did “not present the honest and actual antagonistic assertion of rights” that is
“indispens[a]ble to adjudication of constitutional questions.” Id. (quotation
marks omitted); see id. at 461 (“We hold that . . . this action does not present the
exigent adversity . . . which is an essential condition precedent to federal court
adjudication. This, of itself, was a sufficient basis for the district court’s dismissal
of [the] complaint.” (quotation marks omitted)). 3
3 Bruen, Antonyuk, and Libertarian Party are not to the contrary. While the courts there exercised jurisdiction in cases involving judge defendants, because the first two cases included non-judge defendants, the presence of judge defendants had no practical impact on the Courts’ power to declare the law. Bruen, 597 U.S. at 16; Antonyuk, 120 F.4th at 958. Even if these two cases existed in tension with Whole Woman’s Health, it appears that the question of adversity between the plaintiffs and the judicial defendants in those cases was simply never considered. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124–25 (2d Cir. 2010). Libertarian Party, in turn, was decided before Whole Woman’s Health v. Jackson, 595 U.S. at 40 (2021) (stating “no case or controversy exists between a judge who adjudicates claims under a statute and a litigant who attacks the constitutionality of the statute” (quotation marks omitted)). In any event, “it is well established that sub silentio assumptions of jurisdiction” in prior cases “have no precedential value on the [relevant] jurisdictional question.” Gallego v. Northland Grp. Inc., 814 F.3d 123, 128 n.2 (2d Cir. 2016); see Kiobel, 621 F.3d at 124–25; see also Pennhurst
13 Decisions from other circuits support our conclusion that there is no live
case or controversy between New York state court judges serving as firearms
licensing officers and litigants challenging the State’s licensing scheme. “[T]he
threshold consideration is whether the judge is acting, under the statute at issue,
in an adjudicatory capacity or as an enforcer or administrator.” Lindke v.
Tomlinson, 31 F.4th 487, 491 (6th Cir. 2022) (citing In re Justices, 695 F.2d at 21–23);
see Reule v. Jackson, 114 F.4th 360, 365 (5th Cir. 2024); Frazier v. Prince George’s
Cnty., 140 F.4th 556, 562 (4th Cir. 2025). 4 Most obviously, a judge acts in an
adjudicatory capacity when the judge resolves disputes between adverse parties.
State School & Hosp. v. Halderman, 465 U.S. 89, 119 (1984) (“[W]hen questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.” (quotation marks omitted)).
4 See also Whole Woman’s Health, 595 U.S. at 45–46 (allowing claims to proceed against “executive licensing official[s] who may or must take enforcement actions against the petitioners if they violate” state law (emphasis added)). The Fourth, Fifth, and Sixth Circuits have held that there is no case or controversy between a state court judge acting in an adjudicatory capacity under a state statute and a litigant challenging the constitutionality of the same statute. See Frazier, 140 F.4th at 561–63; Reule, 114 F.4th at 365; Lindke, 31 F.4th at 490–95. Similarly, prior to Whole Woman’s Health, the First, Third, Eighth, and Ninth Circuits have held on nonconstitutional grounds that judges adjudicating cases pursuant to a state statute may not be sued under § 1983 in a suit challenging that state statute. See In re Justices, 695 F.2d at 22; Allen v. DeBello, 861 F.3d 433, 440–42, 443 n.49 (3d Cir. 2017); R.W.T. v. Dalton, 712 F.2d 1225, 1232 n.10 (8th Cir. 1983), abrogated in part on other grounds by Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827 (1990); Grant v. Johnson, 15 F.3d 146, 147–48 (9th Cir. 1994). 14 See generally Adjudication, Black’s Law Dictionary (12th ed. 2024) (defining
“adjudication” as “[t]he legal process of resolving a dispute; the process of
judicially deciding a case”). But a judge also acts in an adjudicatory—rather than
an enforcement or administrative—capacity when the judge, in various non-
adversarial contexts, decides whether single-party applications satisfy relevant
legal requirements, e.g., when authorizing search or arrest warrants, or the
interception of electronic communications, or when ruling on attorney-licensure
applications. See D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 479 (1983). So, too,
when New York state judges rule on firearm license applications, they are
adjudicating whether the application satisfies the requirements of state law. Our
Court’s rationale for recognizing such decisions as judicial rather than
administrative for purposes of determining judicial immunity in Libertarian
Party, 970 F.3d at 125, applies equally for purposes of determining jurisdiction. 5
5 We do not suggest that our conclusion in Libertarian Party that judges ruling on licensure applications are entitled to judicial immunity because their decisions are judicial rather than administrative is binding with respect to our Article III adversity analysis here. But Libertarian Party’s analysis of a judicial function for the purposes of immunity—that judges under this scheme “refer[] to relevant requirements of § 400.00, and decide[] the merits of the applicants’ requests . . . referring in detail to the factual and statutory basis for the denial,” 970 F.3d at 124–25—informs our functional analysis here even though it is not dispositive. 15 Circuits have adopted a functional approach to evaluate whether a state
court judge has acted in a judicial capacity in adjudicating a state statutory claim
that is then challenged on constitutional grounds. See In re Justices, 695 F.2d at
21–25; Allen v. DeBello, 861 F.3d 433, 440–42 (3d Cir. 2017); Frazier, 140 F.4th at
562–63; Reule v. Jackson, 114 F.4th 360, 365–66 (5th Cir. 2024); R.W.T. v. Dalton, 712
F.2d 1225, 1232–33 (8th Cir. 1983), abrogated in part on other grounds by Kaiser
Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827 (1990); Grant v. Johnson, 15 F.3d
146, 148 (9th Cir. 1994). Using the same approach, we consider factors such as
whether the judge may initiate proceedings under the statute, see Lindke, 31 F.4th
at 493; whether the judge who has issued the order is responsible for enforcing it,
see id.; whether the judge played a role in enacting the statute pursuant to which
the order was issued, see Allen, 861 F.3d at 442; whether the judge is adequately
alleged to have a personal or institutional stake in upholding the statute, see In re
Justices, 695 F.2d at 21; whether the challenged act is “a traditionally
administrative task,” or ministerial task, like “fee collection,” Mendez, 530 F.2d at
460; and whether the challenged statutory scheme “allows for traditional judicial
safeguards,” Reule, 114 F.4th at 365–66.
16 Applying these factors here, we conclude, based in part on Libertarian
Party, that Judge Nichols acted as a judicial officer in denying the Plaintiffs’
firearms license applications and that the Plaintiffs and Judge Nichols are
decidedly not parties “having adverse legal interests” with respect to the
Plaintiffs’ claims for declaratory and injunctive relief. See Motors Liquidation Co.,
829 F.3d at 168. In particular, unlike licensing officers in New York who are not
judges, New York judges serving as licensing officers do not have the authority
to initiate enforcement actions. While they adjudicate the merits of the
applications submitted to them, see N.Y. Penal Law § 400.00, they have no
independent enforcement authority or role in criminal prosecutions to enforce
the statute. Put more concretely, to the extent that the Plaintiffs seek to enjoin
Judge Nichols from enforcing N.Y. Penal Law §§ 265.01, 265.02(5)(i), 265.03(2),
265.03(3), and 265.04(2), they chose the wrong target. Under New York law,
Judge Nichols has no authority to charge the Plaintiffs for unlawfully carrying
firearms. 6
6 The issue of whether state judges act as enforcers when they “sua sponte revoke or cancel a license” is not properly before us. O’Brien v. Keegan, 87 N.Y.2d 436, 439 (1996) (citing N.Y. Penal Law § 400.00(11)), abrogated on other grounds by N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). Judge Nichols never revoked or canceled the Plaintiffs’ firearm licenses, because they never had licenses in the first place. We
17 By contrast, New York State, acting through various law enforcement
officers, and not the judge who adjudicates an application for a firearms license,
is authorized to enforce the licensing regime by prosecuting the unlicensed
possession of a concealed firearm. See N.Y. Penal Law § 265.01 et seq. 7 Licensing
officers in New York who are not judges, as county and city police
commissioners, sheriffs, or the superintendent of state police, see N.Y. Penal Law
§ 265.00(10), thus appear to have a role in enforcing the state statute, see id.
§ 400.00(8) (noting that “[u]pon demand, the license shall be exhibited for
inspection to any peace officer, who is acting pursuant to his or her special
duties, or police officer”); see also Bruen, 597 U.S. at 16 (describing the New York
State Police Superintendent as “oversee[ing] the enforcement of the State’s
licensing laws”). And although New York state judges may revoke or suspend
an issued license, a judge revoking a license must then “notify immediately the
accordingly take no position on whether there is Article III adversity between a plaintiff who holds a firearm license and a state judge who revokes or cancels that license.
7 Although we ultimately take no position on the issue, see infra at 25–27, the fact that New York has entrusted such law enforcement officers with licensing as well as enforcement responsibilities could explain why they would be subject to suit when judges are not. See generally Whole Woman’s Health, 595 U.S. at 45–46 (allowing claims to proceed against “executive licensing official[s] who may or must take enforcement actions against the petitioners if they violate the terms of” the challenged law).
18 duly constituted police authorities of the locality,” and notice of such a
revocation “shall also include information regarding the ability to appeal.” N.Y.
Penal Law § 400.00(11). Thus, the authority of Judge Nichols in the context of
this case was narrowly confined to adjudicating the firearm-eligibility
determination.
Further, judges acting as licensing officers in New York have no role in
determining Penal Law § 400.00(1)’s criteria for issuing licenses; 8 if those criteria
were ever to change or be declared unconstitutional, judges who issued or
declined to issue firearms licenses under the statutory scheme, in contrast to non-
8 The Plaintiffs contend that a group of New York county court judges had a stake in the constitutional litigation relating to the penal statute because they commented on the 1963 bill that was later codified as Penal Law § 400.00. But a careful review of the legislative history reveals that the 1963 bill merely reordered existing statutory standards and made “absolutely no substantive changes.” App’x 62. In any event, non- binding comments by judges on legislation do not suggest a substantive role in promulgating the law that affords judges a stake in any litigation on the law. Rather, for this factor to come to bear, we would expect judges to “have power to effectuate plaintiffs’ request by promulgation of a rule or issuance of an order” amending the challenged criteria, rule, or law. Georgevich v. Strauss, 772 F.2d 1078, 1087–89 (3d Cir. 1985) (permitting suit challenging parole procedures to proceed against judges who served not as “as neutral adjudicators of disputes,” but “as administrators of the parole power” who could be ordered to “follow certain due process procedures” implemented by judicial rule or order); see In re Justs. of Supreme Ct. of Puerto Rico, 695 F.2d at 23 (holding that judges acting in legislative capacity had “institutional stake in the litigation's outcome”). That is not this case.
19 judge licensing officers, would “not even have an institutional interest in
following their prior decisions.” In re Justices, 695 F.2d at 21.
Next, the nature of the proceedings before Judge Nichols was not merely
ministerial or administrative. See Mendez, 530 F.2d at 460; Feldman, 460 U.S. at
478–79. This is to be contrasted with, for example, a city clerk’s issuance of
marriage licenses—an operational, non-discretionary function. See Coogan v.
Smyers, 134 F.3d 479, 484 (2d Cir. 1998) (“The duties of the City Clerk are largely
ministerial and include record keeping and the nondiscretionary issuance of
permits and licenses.” (emphasis added)). The latter is ministerial; the former is
not.
Finally, New York’s licensing regime “allows for traditional judicial
safeguards.” Reule, 114 F.4th at 366. Indeed, the Plaintiffs do not deny that they
had a formal hearing where they were allowed to be represented by an attorney,
to call witnesses, and to testify under oath, and were informed—in writing—why
their applications were denied. Appellee’s Br. 4, 19. The right to further judicial
review provides yet another important guardrail. “The conclusion that there is
no justiciable controversy between the plaintiffs and the judicial defendants does
not leave the plaintiffs without a remedy against potentially unlawful judicial
20 conduct. When a party believes that a judge has violated their rights while
acting in an adjudicative capacity, ‘the traditional remedy has been some form of
appeal’ rather than a lawsuit against the judge.” Frazier, 140 F.4th at 563 (citing
Whole Woman’s Health, 595 U.S. at 39).
A New York judge’s licensing decisions are subject to judicial review by
the Appellate Division in Article 78 proceedings. See N.Y. C.P.L.R. § 7801 et seq.;
see, e.g., Diperna-Gillen v. Ryba, 187 N.Y.S.3d 442, 443 (3d Dep’t 2023) (annulling a
state judge’s licensing determination in an Article 78 proceeding after a provision
of N.Y. Penal Law § 400.00 was rendered unconstitutional by Bruen, 597 U.S. at
7). “An Article 78 proceeding permits a petitioner to submit affidavits and other
written evidence, and where a material issue of fact is raised, have a trial of the
disputed issue, including constitutional claims.” Locurto v. Safir, 264 F.3d 154,
174 (2d Cir. 2001).
Faced with constitutional challenges to New York state statutes, the
Appellate Division can conduct a “hybrid . . . [A]rticle 78 proceeding and
declaratory judgment action,” Loehr v. Admin. Bd. of Cts. of State of N.Y., 29 N.Y.3d
374, 378 (2017), or “convert the proceeding into an action for a declaratory
judgment pursuant to N.Y. C.P.L.R. § 103(c) in order to address [the
21 plaintiff’s] . . . challenges to the constitutionality of the statutes at issue,” Selkin v.
State Bd. for Pro. Med. Conduct, 63 F. Supp. 2d 397, 403 (S.D.N.Y. 1999) (“All
challenges to the constitutionality of the relevant statutes, as applied to [the
plaintiff], may be raised in the Article 78 proceeding.” (citations omitted)); see also
Seymour v. Nichols, 801 N.Y.S.2d 426, 427 (3d Dep’t 2005) (converting
constitutionality challenge to N.Y. Penal Law § 400.00, initiated as Article 78
proceeding against state judge, into declaratory judgment action). Importantly,
plaintiffs can sue judges in these state proceedings as permitted by state law. See
N.Y. C.P.L.R. § 7804(i) (recognizing state judges as permissible Article 78
respondents); see also Seymour, 801 N.Y.S.2d at 427 (considering constitutional
challenge to penal law as declaratory judgment action against state judge).
New York’s scheme thus maintains “traditional judicial safeguards” by
keeping the doors to state court review open for parties to challenge a judge’s
licensing determination. Reule, 114 F.4th at 366. 9 The Plaintiffs were thus free to
9Although in New York, “challenges to administrative agency decisions . . . take the form of [A]rticle 78 proceedings,” Levandusky v. One Fifth Ave. Apartment Corp., 75 N.Y.2d 530, 541 (1990), a state’s characterization of its proceedings does not control our Article III analysis, cf. Bliven, 579 F.3d at 212 (“Notwithstanding the New York Court of Appeals’ characterization of 18–B Panel fee awards as administrative for purposes of ensuring their reviewability, we are not persuaded that a judge’s decision as to a reasonable attorney’s fee is an administrative, rather than a judicial, decision for purposes of determining whether the judge is to have absolute immunity for that
22 seek state judicial review of the constitutionality of their application denials
through Article 78 proceedings or declaratory judgment actions. See Diperna-
Gillen v. Ryba, 187 N.Y.S.3d at 443; Seymour, 801 N.Y.S.2d at 427; see also Disability
L. Ctr. v. Cox, No. 2:25-CV-00307-RJS, 2025 WL 2050235, at *8 (D. Utah July 22,
2025) (“[A]ppealability can be a proxy to determine whether challenged conduct
is adjudicatory, and, in turn, whether there is a case or controversy.” (citing
Whole Woman’s Health, 595 U.S. at 39)). But they elected not to do so.
The Plaintiffs argue that firearm-licensing judges are enforcers, not
adjudicators, because a number of state-court cases label them as such.
Appellants’ Br. 8–16. 10 We are not persuaded. Regardless of the labels or titles
decision.”); Feldman, 460 U.S. at 478 (“[I]n determining the nature of the proceedings we must for ourselves appraise the circumstances of the [challenged decision].” (quotation marks omitted)).
10 This same argument was made to and recently rejected by a different district court:
Though these [state-court] cases may reference that judges were acting in an administrative capacity, the focus and holding of those cases was not on addressing whether judges were acting in an administrative or judicial capacity as a licensing officer but whether Article 78 proceedings were the proper vehicle for appeal. . . . The references to judges acting in an administrative capacity were mere dicta, therefore, these cases do not compel a different result.
Morales v. Everett, No. 7:24-CV-5437-NSR, 2025 WL 1549030, at *2 (S.D.N.Y. May 30, 2025) (citations and parentheticals omitted). Because an appeal has been docketed, see
23 that a state attaches to a particular role, the functional analysis is for the federal
courts to undertake. See Feldman, 460 U.S. at 478. And even if state court
appellate procedure cases were relevant for Article III purposes—a point we do
not here decide—the cases themselves are far from clear. While some refer to
firearm licensing as “administrative,” others refer to them as “quasi-judicial.”
See, e.g., McGreevy v. Casale, 558 N.Y.S.2d 442, 444 (Sup. Ct. 1990) (“The granting
of pistol permits and gun dealer licenses is a quasi-judicial function of the
court.”); Goldstein v. Schwartz, 125 N.Y.S.3d 881, 882 (2d Dep’t 2020) (substantially
same).
The lack of adversity and Article III jurisdiction applies equally to the
Plaintiffs’ official-capacity claims for declaratory and injunctive relief. Both sets
of claims seek to bar the enforcement of a licensing scheme that Judge Nichols
has no personal or institutional stake in defending. We therefore affirm the
District Court’s dismissal of the official-capacity claims on that basis. 11
Morales v. Everett, No. 25-1611 (June 27, 2025), we express no view as to the merits of the decision.
11 We thus avoid addressing whether the injunctive relief claims against Judge Nichols fall within § 1983’s bar to such relief against judicial officers “unless a declaratory decree was violated or declaratory relief was unavailable.” Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999) (quoting 42 U.S.C. § 1983).
24 B
Our decision is narrow. The functional approach necessarily contemplates
a case-by-case analysis. All that we consider is our jurisdiction to review the
Plaintiffs’ § 1983 claims against Judge Nichols in his official capacity under the
circumstances of this case. 12 We do not tackle whether Article III would bar
claims for declaratory or injunctive relief against state court judges in other
circumstances. Nor do we decide whether our analysis would differ if the
Plaintiffs had also named defendants with a sufficient personal or institutional
stake in defending the challenged law, 13 cf. Bruen, 597 U.S. at 16; Antonyuk, 120
12 We limit our holding in this case to the record before us, in which plaintiffs were denied licenses, sued only the judge who adjudicated their eligibility for licenses, failed to request any prospective relief in the form of requiring Judge Nichols to issue a license, and instead sought broad facial equitable relief declaring New York’s entire firearms licensing statutory scheme unconstitutional, and enjoining enforcement of the criminal penalties for possession of firearms without a license. Under these circumstances, a declaration and order enjoining Judge Nichols, who the Plaintiffs do not claim has any personal or institutional stake in upholding this statute, would not alter the Plaintiffs’ legal rights as to the previously denied applications and would have no effect on the enforcement of New York’s criminal laws.
13Our decision in Libertarian Party does not foreclose the Plaintiffs’ standing in any action that they might have brought against non-judge defendants. In Libertarian Party, we understood the plaintiffs to allege that they were injured by the denial of their license applications. In those circumstances, we explained that “the only defendants to whom [plaintiffs’] alleged injuries were fairly traceable were the judges who denied their respective applications.” 970 F.3d at 122. Our statement in Libertarian Party did not reflect a broad holding that Upstate plaintiffs have standing to bring pre-enforcement constitutional challenges to New York’s licensing scheme only against judges who deny
25 F.4th at 958; Libertarian Party, 970 F.3d at 116–17 (observing “there was no
allegation that . . . claimed injuries had been inflicted by any persons other than
the [judicial] defendants who had denied their respective license requests”);
compare United States v. Windsor, 570 U.S. 744, 763 (2013) (analyzing adversity for
the case as a whole), with Whole Woman’s Health, 595 U.S. at 40 (analyzing
adversity party-by-party), or if the Plaintiffs had raised an as-applied
constitutional challenge, cf. Antonyuk, 120 F.4th at 999. Additionally, we do not
address whether Article III would bar a similar action brought against a New
York state police commissioner or county sheriff, say, who denies a firearms
license application, see N.Y. Penal Law § 265.00(10), where those officers possess
both the authority to adjudicate such applications and the power to enforce
violations of New York’s firearms licensing laws. Our decision does not speak to
the availability of a pre-enforcement constitutional challenge to “a component of
license applications. We said nothing about a plaintiff’s standing to sue various non- judge state officials for alleged injuries arising from their processing of license applications or potential enforcement of licensure requirements. See, e.g., Frey v. City of New York, 157 F.4th 118, 137–38 (2d Cir. 2025); Antonyuk, 120 F.4th at 977–78. Nor do we do so here. We note only that insofar as the Plaintiffs seek the invalidation of the licensing scheme and an injunction against the enforcement of criminal penalties for possession of a firearm without a license, they appear to seek remedies for alleged injuries potentially traceable to, and redressable by, non-judge actors.
26 the application process” where the plaintiff’s “injury flows from the application
itself, not from the asserted ineligibility for a license.” See Antonyuk, 120 F.4th at
976, 979.
We decide only that the Plaintiffs and Judge Nichols are not adverse
parties with respect to the Plaintiffs’ claims for equitable relief and that there is
no live case or controversy because rulings on firearms licenses are judicial
decisions and Judge Nichols lacks a personal or institutional interest in
defending New York’s firearms licensing scheme.
CONCLUSION
We have considered the Plaintiffs’ remaining arguments and conclude that
they are without merit. For the foregoing reasons, the judgment of the District
Court is AFFIRMED.