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June 29, 2021

Retired former police officer denied a "retiree service letter" which would assist in obtaining a special pistol carrying permit

Retired police officers often request a "retiree service letter" [RSL]to assist the retiree in obtaining a special pistol-carrying permit. 

In this CPLR Article 78 action, a retiree [Plaintiff] sought a court order annulling his former employer's [Agency] determination which denied Plaintiff's request for a RSL and asked the court to issue an order compelling that such a letter be issued. Supreme Court dismissed Plaintiff's petition and he appealed the court's ruling.

Citing Peckham v Calogero, 12 NY3d 424, the Appellate Division unanimously affirmed the lower court's ruling, without costs, holding that the Agency's denial of Plaintiff's request was neither arbitrary nor capricious.

The Appellate Division explained that Plaintiff conceded that he was not authorized to carry a firearm at the time of his separation from employment, as he had earlier surrendered his firearm due to an injury, and he had not sought reinstatement of such authorization. Accordingly, said the court, Plaintiff "had no right to issuance of" the RSL "since his authority to carry firearms had been revoked ... and had not been restored at the time he retired"

Further, opined the court, the Agency's decision not to issue the RSL did not violate Plaintiff's Second Amendment rights, since it did not preclude him from applying for a permit under normal legal procedures set out in §400.00 on New York State's Penal Law.

In addition, the Appellate Division observed that:

1. Assuming there is a private right of action under the Law Enforcement Officers Safety Act of 2004, Plaintiff "cannot demonstrate that he met the qualification standards within one year of retirement";

2. Plaintiff cannot demonstrate a violation of the Americans with Disabilities Act based on his former agency's refusal to issue the RSL as he concedes that his injury rendered him unable to perform his duties as a law enforcement officer; and

3. There is no factual basis to conclude that the Agency's decision refusing to provide Plaintiff with a RSL was made in bad faith rather than as part of an across the board policy.

Click HERE to access the Appellate Division's decision.

 



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