23-1023 Nastri v. Dykes
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 29th day of March, two thousand twenty-four.
PRESENT:
DENNIS JACOBS, PIERRE N. LEVAL, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
DAVID J. NASTRI,
Plaintiff-Appellant,
v. No. 23-1023
KATIE DYKES, in her official capacity,
Defendant-Appellee. _____________________________________ For Plaintiff-Appellant: CAMERON L. ATKINSON, Atkinson Law, LLC, Harwinton, CT.
For Defendant-Appellee: TIMOTHY J. HOLZMAN (Blake T. Sullivan, Thadius L. Bochain, on the brief), Assistant Attorneys General, for William Tong, Attorney General for the State of Connecticut, Hartford, CT.
Appeal from a judgment of the United States District Court for the District
of Connecticut (Janet Bond Arterton, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the August 22, 2023 judgment of the district
court is VACATED and REMANDED for further proceedings consistent with this
order.
David Nastri appeals from a judgment of the district court dismissing for
lack of standing his claim alleging under 28 U.S.C. § 1983 that Connecticut’s ban
on carrying firearms in state parks violates the Second and Fourteenth
Amendments to the United States Constitution. Specifically, Nastri argues that
the district court erred in concluding that he lacked standing to bring a
pre-enforcement challenge to the regulation – Connecticut Agency Regulation
§ 23-4-1(c) – because he could not show a credible threat that Connecticut (“the
2 State”) would enforce the law against him. We assume the parties’ familiarity
with the facts, procedural history, and issues on appeal.
We review de novo a district court’s decision to dismiss a complaint for lack
of standing. See Rajamin v. Deutsche Bank Nat’l Tr. Co., 757 F.3d 79, 84–85 (2d Cir.
2014). The plaintiff bears the burden of establishing standing under Article III.
See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). To do so, the plaintiff must
show (1) “an injury in fact,” (2) “a sufficient causal connection between the injury
and the conduct complained of,” and (3) “a likelihood that the injury will be
redressed by a favorable decision.” Susan B. Anthony List v. Driehaus, 573 U.S. 149,
157–58 (2014) (alterations and internal quotation marks omitted).
Courts apply a distinctive rule to decide whether a plaintiff has standing to
challenge the constitutionality of a law before it has been enforced against him.
See id. at 159. In these pre-enforcement challenges, the plaintiff must show that
the “threatened enforcement” of the law against him is “sufficiently imminent.”
Id. This imminence showing requires the plaintiff to demonstrate that (1) he
“inten[ds] to engage in a course of conduct” that arguably involves a
“constitutional interest”; (2) his intended conduct is “proscribed by the challenged
law”; and (3) “there exists a credible threat” that he would be “prosecut[ed]” for
3 violating that law. Vitagliano v. County of Westchester, 71 F.4th 130, 136 (2d Cir.
2023) (internal quotation marks omitted). While many pre-enforcement cases
involve a threat of criminal prosecution, the “fear of civil penalties” can likewise
be sufficient. Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000);
see also Susan B. Anthony List, 573 U.S. at 165 (“[A]dministrative action, like arrest
or prosecution, may give rise to harm sufficient to justify pre-enforcement
review.”).
The parties do not dispute that Nastri has established the first two
imminence elements, in that he alleged an “intent[]” to carry his handgun in state
parks for self-defense in violation of section 23-4-1(c). Vitagliano, 71 F.4th at 137.
Thus, the central issue in this appeal is whether Nastri has demonstrated a credible
threat that he would be cited for violating section 23-4-1(c) if he were to engage in
that conduct.
Since the district court’s ruling in this case, we had occasion to clarify the
standard for a “credible threat of enforcement” in Antonyuk v. Chiumento, another
case involving a pre-enforcement challenge to state firearms laws under the
Second Amendment. 89 F.4th 271, 336 (2d Cir. 2023). We explained that “‘the
credible threat of prosecution’ is a ‘quite forgiving’ requirement that sets up only
4 a ‘low threshold’ for a plaintiff to surmount.” Id. at 334 (quoting Hedges v. Obama,
724 F.3d 170, 197 (2d Cir. 2013)). Indeed, we do “not place[] the burden on the
plaintiff to show an intent by the government to enforce the law against [him] but
rather presume[] such intent in the absence of a disavowal by the government.”
Id. (alterations and internal quotation marks omitted). In other words, we
presume that a credible threat of enforcement exists, and require the government
to “rebut” that inference by “disavowing” its intent to enforce the statute, id. at 353
(alterations omitted), or by pointing to “another reason to conclude that no such
intent exist[s],” Tweed-New Haven Airport Auth. v. Tong, 930 F.3d 65, 71 (2d Cir.
2019) (quoting Hedges, 724 F.3d at 197).
Significantly, we do not require a plaintiff to show any “indicia of future
prosecution” in order to demonstrate a credible threat. Antonyuk, 89 F.4th at 334.
“While evidence that a plaintiff faced either previous enforcement actions or a
stated threat of future prosecution is, of course, relevant to assessing the credibility
of an enforcement threat, none of these cases suggest[s] that such evidence is
necessary to make out an injury in fact.” Id. (alterations omitted) (quoting
Vitagliano, 71 F.4th at 139). To the contrary, when it is “apparent” that the
plaintiff’s conduct is “subject to the statute,” we presume that there exists a
5 credible threat of enforcement – whether or not a plaintiff points to additional
evidence – and require the government to show otherwise. Hedges, 724 F.3d at
197.
That rule resolves this appeal. As is required to invoke the presumption,
Nastri has shown that it is “apparent” that section 23-4-1(c) proscribes him from
carrying a handgun for self-defense in Connecticut state parks. Id. Section
23-4-1(c) explicitly prohibits the “carrying of firearms . . .
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23-1023 Nastri v. Dykes
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 29th day of March, two thousand twenty-four.
PRESENT:
DENNIS JACOBS, PIERRE N. LEVAL, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
DAVID J. NASTRI,
Plaintiff-Appellant,
v. No. 23-1023
KATIE DYKES, in her official capacity,
Defendant-Appellee. _____________________________________ For Plaintiff-Appellant: CAMERON L. ATKINSON, Atkinson Law, LLC, Harwinton, CT.
For Defendant-Appellee: TIMOTHY J. HOLZMAN (Blake T. Sullivan, Thadius L. Bochain, on the brief), Assistant Attorneys General, for William Tong, Attorney General for the State of Connecticut, Hartford, CT.
Appeal from a judgment of the United States District Court for the District
of Connecticut (Janet Bond Arterton, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the August 22, 2023 judgment of the district
court is VACATED and REMANDED for further proceedings consistent with this
order.
David Nastri appeals from a judgment of the district court dismissing for
lack of standing his claim alleging under 28 U.S.C. § 1983 that Connecticut’s ban
on carrying firearms in state parks violates the Second and Fourteenth
Amendments to the United States Constitution. Specifically, Nastri argues that
the district court erred in concluding that he lacked standing to bring a
pre-enforcement challenge to the regulation – Connecticut Agency Regulation
§ 23-4-1(c) – because he could not show a credible threat that Connecticut (“the
2 State”) would enforce the law against him. We assume the parties’ familiarity
with the facts, procedural history, and issues on appeal.
We review de novo a district court’s decision to dismiss a complaint for lack
of standing. See Rajamin v. Deutsche Bank Nat’l Tr. Co., 757 F.3d 79, 84–85 (2d Cir.
2014). The plaintiff bears the burden of establishing standing under Article III.
See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). To do so, the plaintiff must
show (1) “an injury in fact,” (2) “a sufficient causal connection between the injury
and the conduct complained of,” and (3) “a likelihood that the injury will be
redressed by a favorable decision.” Susan B. Anthony List v. Driehaus, 573 U.S. 149,
157–58 (2014) (alterations and internal quotation marks omitted).
Courts apply a distinctive rule to decide whether a plaintiff has standing to
challenge the constitutionality of a law before it has been enforced against him.
See id. at 159. In these pre-enforcement challenges, the plaintiff must show that
the “threatened enforcement” of the law against him is “sufficiently imminent.”
Id. This imminence showing requires the plaintiff to demonstrate that (1) he
“inten[ds] to engage in a course of conduct” that arguably involves a
“constitutional interest”; (2) his intended conduct is “proscribed by the challenged
law”; and (3) “there exists a credible threat” that he would be “prosecut[ed]” for
3 violating that law. Vitagliano v. County of Westchester, 71 F.4th 130, 136 (2d Cir.
2023) (internal quotation marks omitted). While many pre-enforcement cases
involve a threat of criminal prosecution, the “fear of civil penalties” can likewise
be sufficient. Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000);
see also Susan B. Anthony List, 573 U.S. at 165 (“[A]dministrative action, like arrest
or prosecution, may give rise to harm sufficient to justify pre-enforcement
review.”).
The parties do not dispute that Nastri has established the first two
imminence elements, in that he alleged an “intent[]” to carry his handgun in state
parks for self-defense in violation of section 23-4-1(c). Vitagliano, 71 F.4th at 137.
Thus, the central issue in this appeal is whether Nastri has demonstrated a credible
threat that he would be cited for violating section 23-4-1(c) if he were to engage in
that conduct.
Since the district court’s ruling in this case, we had occasion to clarify the
standard for a “credible threat of enforcement” in Antonyuk v. Chiumento, another
case involving a pre-enforcement challenge to state firearms laws under the
Second Amendment. 89 F.4th 271, 336 (2d Cir. 2023). We explained that “‘the
credible threat of prosecution’ is a ‘quite forgiving’ requirement that sets up only
4 a ‘low threshold’ for a plaintiff to surmount.” Id. at 334 (quoting Hedges v. Obama,
724 F.3d 170, 197 (2d Cir. 2013)). Indeed, we do “not place[] the burden on the
plaintiff to show an intent by the government to enforce the law against [him] but
rather presume[] such intent in the absence of a disavowal by the government.”
Id. (alterations and internal quotation marks omitted). In other words, we
presume that a credible threat of enforcement exists, and require the government
to “rebut” that inference by “disavowing” its intent to enforce the statute, id. at 353
(alterations omitted), or by pointing to “another reason to conclude that no such
intent exist[s],” Tweed-New Haven Airport Auth. v. Tong, 930 F.3d 65, 71 (2d Cir.
2019) (quoting Hedges, 724 F.3d at 197).
Significantly, we do not require a plaintiff to show any “indicia of future
prosecution” in order to demonstrate a credible threat. Antonyuk, 89 F.4th at 334.
“While evidence that a plaintiff faced either previous enforcement actions or a
stated threat of future prosecution is, of course, relevant to assessing the credibility
of an enforcement threat, none of these cases suggest[s] that such evidence is
necessary to make out an injury in fact.” Id. (alterations omitted) (quoting
Vitagliano, 71 F.4th at 139). To the contrary, when it is “apparent” that the
plaintiff’s conduct is “subject to the statute,” we presume that there exists a
5 credible threat of enforcement – whether or not a plaintiff points to additional
evidence – and require the government to show otherwise. Hedges, 724 F.3d at
197.
That rule resolves this appeal. As is required to invoke the presumption,
Nastri has shown that it is “apparent” that section 23-4-1(c) proscribes him from
carrying a handgun for self-defense in Connecticut state parks. Id. Section
23-4-1(c) explicitly prohibits the “carrying of firearms . . . in any state park except
as authorized by [Connecticut’s Department of Energy and Environmental
Protection (“DEEP”)],” and DEEP has not authorized possession of handguns for
self-defense. Conn. Agencies Reg. § 23-4-1(c). Nor does the State seriously
dispute that the provision covers Nastri’s conduct. Dykes Br. at 15 (“It is a
generally applicable law that prohibits weapons in all State parks and forests
without authorization from DEEP.”). We thus presume that the State intends to
enforce it, unless it sufficiently “disavow[s]” that intent or points to “another
reason” demonstrating no such intent exists. Tweed-New Haven Airport Auth., 930
F.3d at 71. The State falls short of either showing. Far from disavowing
enforcement against Nastri, the director of Connecticut’s Environmental
Conservation Police testified at a deposition that his department (1) receives calls
6 about persons with firearms in state parks, (2) responds to those calls by sending
officers to investigate, and (3) would take enforcement action if its officers found
a person with an unauthorized firearm. That easily distinguishes this case from
Adam v. Barr, in which we rejected a pre-enforcement challenge because the
plaintiff failed to show any “particularize[d]” evidence that the government
would enforce a federal drug law against him if he used narcotics for religious
purposes. 792 F. App’x 20, 23 (2d Cir. 2019).
At best, the State offers a variety of reasons why Nastri’s fear of enforcement
is too “[s]peculati[ve],” such as the fact that Connecticut parks are sparsely
patrolled, that Nastri has not run into any officers in the parks, and that Nastri
does not believe anyone noticed he was carrying a handgun in the past. Dykes
Br. at 34–35. Again, Antonyuk forecloses this sort of argument. “Although
prosecution is not certain, [Nastri has] articulate[d] a plausible chain of events”
that would lead to a citation. Antonyuk, 89 F.4th at 335; id. at 353 (explaining that
enforcement threat is credible even if officers are not “proactive[]” and generally
only respond to “complaint[s]” (internal quotation marks omitted)); see also App’x
at 183 (testimony from the park police director that people who carry concealed
handguns may “[i]nadvertently . . . reveal[]” their weapons to “bystanders”).
7 Simply put, Nastri is “‘not without some reason in fearing prosecution,’ and [his]
fears are neither ‘imaginary nor wholly speculative.’” Antonyuk, 89 F.4th at 336
(alterations omitted) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S.
289, 302 (1979)).
Finally, the State suggests that the law at issue is moribund – and thus not
likely to be enforced – because section 23-4-1(c) has “origins” dating to 1918.
Dykes Br. at 6 n.2, 31 (explaining that Connecticut first banned possession of
firearms in parks in 1918). But no matter the law’s “origins,” the State’s own
regulatory database indicates that section 23-4-1 was enacted in 1993 and amended
as recently as 2017. See Conn. Sec. of State, Connecticut eRegulations System
§ 23-4-1 (2017), https://eregulations.ct.gov/eRegsPortal/Browse/RCSA/Title_
23Subtitle_23-4Section_23-4-1/ [https://perma.cc/K6DH-ZWYX]; see also App’x at
30. So while it is not certain whether subsection 1(c) itself was amended as
recently as 2017, it was enacted only three decades ago, and it is hard to see how
that would make it so outdated as to suggest the State is no longer enforcing it.
See Cayuga Nation v. Tanner, 824 F.3d 321, 331 (2d Cir. 2016) (finding that an
ordinance passed in 1958 presented a credible threat of enforcement). In any
event, Antonyuk places the burden on the State, not Nastri, to show a lack of intent
8 to enforce the law, and the State has not offered any enforcement statistics (or other
evidence) indicating that section 23-4-1(c) has been enforced so rarely as to render
it “moribund.” Antonyuk, 89 F.4th at 334.
We have considered the State’s remaining arguments and find them to be
without merit. 1 Accordingly, we VACATE and REMAND the judgment of the
district court for further proceedings consistent with this order.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
1 Although Nastri also challenges on appeal the district court’s denial of his motion for reconsideration, we need not reach that issue here, because we find that Nastri has standing to bring this pre-enforcement challenge even without the enforcement statistics of section 23-4-1(c).