Sanseviro v. New York

158 F. Supp. 3d 131, 2016 U.S. Dist. LEXIS 8667, 2016 WL 304885
CourtDistrict Court, E.D. New York
DecidedJanuary 25, 2016
DocketCV 12-4985 (LDW) (AKT)
StatusPublished
Cited by2 cases

This text of 158 F. Supp. 3d 131 (Sanseviro v. New York) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sanseviro v. New York, 158 F. Supp. 3d 131, 2016 U.S. Dist. LEXIS 8667, 2016 WL 304885 (E.D.N.Y. 2016).

Opinion

MEMORANDUM AND ORDER

WEXLER, DISTRICT JUDGE

Plaintiff Stuart Sanseviro (“Sanseviro”) brings this civil rights action against defendants (1) New York State, New York State Police Department (“NYSPD”), New York State Police Captain James Dewar, New York State Police Senior Investigator Joseph De Maria, New York State Police Investigator Edward Franke (“Investigator Franke”), and various other New York State Police Investigators (collectively, the “State Defendants”); and (2) Nassau County, former Nassau County District Attorney Kathleen Rice (“DA Rice”), current or former Nassau County Assistant District Attorneys Elise McCarthy (“ADA McCarthy”), Karen Bennett (“ADA Bennett”), and Teresa Corrigan (“ADA Corrigan”), and Nassau County District Attorney Chief Investigator Charles Ribando (“Investigator Ribando”) (collectively, the “County Defendants”). Sanseviro asserts various federal claims under 42 U.S.C. § 1983, including false arrest, malicious prosecution, violation of procedural due process, and failure to train and supervise, as well as supplemental state law claims. Sanseviro, the State Defendants, and the County Defendants each move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure (“FRCP”). [135]*135The Court, having heard oral argument on July 29, 2015 and January 4, 2016, reserved decision. .

I. BACKGROUND

In 1994, the United States Congress enacted legislation restricting the manufacture, transfer, and possession of certain “semiautomatic assault weapons.” As recently summarized by the Second Circuit, the 1994 federal statute defined “semiautomatic assault weapons” in two ways: “First, it catalogued 18 specifically prohibited firearms .... Second, it introduced a ‘two-feature test,’ which prohibited any semiautomatic firearm that contained at least two listed military-style features, including a telescoping stock, a conspicuously protruding pistol grip, a bayonet mount, a flash suppressor, and a grenade launcher.” New York State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 248 (2d Cir.2015). “The federal assault-weapons ban expired in 2004, pursuant to its sunset provision.” Id.

In 2000, New York enacted legislation that closely mirrored the federal statute, including the “two-feature test” for prohibited semiautomatic firearms. Id. The parties refer to the “two-feature test,” as the “characteristics” provision of the assault-weapons ban. Under this provision, New York Penal Law § 265.00(22)(a), a firearm is considered an assault weapon and therefore illegal if it has the ability to accept a detachable magazine and contains two of the following enumerated characteristics: (1) a folding or telescoping stock; (2) a conspicuously protruding pistol grip; (3) a bayonet mount; (4) a flash suppressor or thread barrel designed to accommodate one; and (5) a grenade launcher.

Sometime in or before August 2010, Sanseviro became interested in buying T&T Gunnery, a licensed gun dealer in Nassau County, owned by Martin Tretola (“Tretola”). A few years earlier, Tretola and T&T Gunnery successfully sued Nassau County for malicious prosecution, following criminal charges that had been brought against the T&T Gunnery related to a faulty gas' line. On August 24, 2010, undercover investigators from the New York State Gun Investigation Unit (“GUI”), in a joint investigation with the Nassau County District Attorney’s Office, purchased weapons at T&T Gunnery. According to the State Defendants, Sanseviro was behind the counter at T&T Gunnery and he “sold” one of those weapons — a Rock River Arms LAR-15 rifle (the “Rifle”) — to the undercover investigator, who posed as a non-law enforcement .civilian. A video of the .undercover purchases on August 24 shows that the undercover investigator, produced a driver’s license, but that he did not produce proof that he was lawfully authorized to possess or carry the firearm as an. exempt person under New York Penal Law § 265.20. See State Defendants’ Statement of Material Facts Pursuant to Local Civil Rule 56.1 (“State Defendants’ LC.R 56.1 Statement”) Ex. 5; Transcript of Oral Argument on Jan. 4, 2016 (“Tr. ”), at 33. At oral argument, Sanseviro conceded that he was a part-time employee of T&T Gunnery at the time. See Tr. 25.

According to the State Defendants, all of the weapons purchased on August 24 from T&T Gunnery failed the “characteristics” test. At oral argument on July 29, 2015, the State Defendants played a video showing Investigator Franke conducting the “characteristics” test on the Rifle. See State Defendants’ LCR 56.1 Statement Ex. ’6; Tr. 28. The State Defendants maintain that the video shows that purportedly permanent modifications to the Rifle were “easily” or “readily” reversible so that the Rifle was actually an illegal assault weapon with two or more of the offending charac-[136]*136teristies. See State Defendants’ LCR 56.1 Statement Ex. 6; Tr. 28-29. In fact, the State Defendants claim that the testing demonstrated the existence of three such characteristics, two of which they maintain were easily reversible. See Tr. 28-29.

On February 16, 2011, Tretola and certain of his employees, including Sanseviro, wtere arrested at T&T Gunnery. On February 17, 2011, DA Rice held a press conference and issued a press release, captioned: “DA Rice Busts Five Nassau Gun Shops for Selling Illegal Assault Weapons.” See Declaration of Ralph J. Reissman hi Support of County Defendants’ Motion for Summary Judgment (“Reissman Decl.”), Ex. AC; Exhibits 1-28, Plaintiffs'Motion for Summary Judgment (“Plaintiffs Ex. _”) Ex. 6. The press release included a reference to Sanseviro and provided in part:

Rice said that shop owners were breaking the law by temporarily modifying the weapons to appear as though they lacked the required characteristics of an assault weapon. However, the temporary modification was easily reversible, there: by making them full-fledged assault weapons. For example, a pin was placed in the stock of a weapon in an .attempt to prevent its collapse. However, the pins were designed to be easily removable making the stock collapsible.
“The nine men arrested today were openly breaking the law, making a practice of putting profits before the safety of our citizens, and flooding our streets with dangerous assault weapons,” Rice said.- “Make no mistake, these are combat-specific weapons and not intended for hunting. They have no place on our streetsior in the hands of civilians,”

Reissman Decl. Ex. AC; Plaintiffs Ex. 6.

• That same day,'-February 17, Sanseviro was arraigned, charged under a felony complaint sworn by Investigator Franke, Sanseviro was charged with (1) violating New York Penal Law § 265.10(3), which prohibits “disposing of’ (ie., selling) an assault weapon, and (2) violating New York Penal Law § 400.00(12), which prohibits selling a firearm without first' requiring the buyer to produce either a license valid to carry or possess the firearm or proof of lawful authority as an exempt person (as per the list of exemptions in New York Penal Law § 265.20).

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Bluebook (online)
158 F. Supp. 3d 131, 2016 U.S. Dist. LEXIS 8667, 2016 WL 304885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanseviro-v-new-york-nyed-2016.