Policing and Public Transportation (2022)

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TCRP LRD 58 41 Act584 “shall not knowingly carry a firearm on or into: . . . [a]ny bus, train, or form of transportation paid for in whole or in part with public funds, and any building, real property, and parking area under the control of a public transportation facility paid for in whole or in part with public funds.”585 Some public transportation authorities also have regulations or rules of conduct that prohibit firearms and other weapons in or on their property.586 However, the prohibition in Section 1050.8(c) of the New York MTA’s Rules of Conduct, which does not apply to law enforcement personnel, also does not apply to “persons to whom a license for such weapon has been duly issued and is in force” as long as the “weapon is concealed from view….”587 In Kachalsky v. County of Westchester,588 the question was whether “New York’s handgun licensing scheme violate[s] the Second Amendment by requiring an applicant to demonstrate ‘proper cause’ to obtain a license to carry a concealed handgun in public….”589 In its discussion of the Heller and McDonald de- cisions, the Second Circuit explained that [w]hat we know from these decisions is that Second Amendment guarantees are at their zenith within the home. … What we do not know is the scope of that right beyond the home and the standards for determining when and how the right can be regulated by a govern- ment. This vast “terra incognita” has troubled courts since Heller was decided. Although the Supreme Court’s cases applying the Second Amendment have arisen only in connection with prohibitions on the possession of firearms in the home, the Court’s analysis suggests, as Justice Stevens’s dissent in Heller and Defendants in this case before us acknowledge, that the Amendment must have some application in the very different context of the public possession of firearms. Our analysis proceeds on this assumption.590 As the Second Circuit acknowledged, New York generally prohibits the possession of firearms without a license; most of the licenses that are granted are limited by place or profession.591 In Kachalsky, the plaintiffs/appellants’ action targeted the con- stitutionality of the license authorized by N.Y. Penal Law Sec- tion 400.00(2)(f). Subsection (2)(f) states: “A license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued to … have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof….” Section 400.00(2)(f) is 584 430 Ill. Comp. Stat. 66/1, et seq. (2022). 585 430 Ill. Comp. Stat. 66/65(a)(8) (2022). 586 N.Y. MTA, Rules of Conduct and Fines, § 1050.8, Weapons and other dangerous instruments, http://web.mta.info/nyct/rules/ TransitAdjudicationBureau/Rules%20of%20Conduct%20and%20 Fines.pdf (last accessed Jan. 31, 2022), [hereinafter MTA Rules of Con- duct and Fines] (stating that the terms weapon or dangerous instrument include, but are not be limited to, a firearm, switchblade knife, box- cutter, straight razor or razor blades that are not wrapped or enclosed in a protective covering, gravity knife, sword, shotgun or rifle). 587 Id. 588 701 F.3d 81 (2nd Cir. 2012), cert. denied, 2013 U.S. LEXIS 3132 (U.S., Apr. 15, 2013). 589 Id. at 83 (emphasis supplied). 590 Id. at 89 (footnote omitted) (citations omitted) (second sentence, emphasis supplied). 591 Id. at 86. the only license in New York authorizing the carrying of a con- cealed handgun not related to employment or the place of pos- session of the handgun.592 Section 400.00(2)(f) only authorizes the issuance of a license to a carry a concealed handgun when a person has proper cause for a license.593 The Kachalsky court held that under the statute “‘[a] general- ized desire to carry a concealed weapon to protect one’s person and property does not constitute proper cause.’”594 The court held that “the concealed carrying of handguns in public is ‘out- side the core Second Amendment concern articulated in Heller: self-defense in the home.’”595 The Second Circuit upheld New York’s one-hundred-year-old law that extensively regulated the possession of a handgun in public.596 However, the licensing-requirement for proper cause that was at issue in Kachalsky is again at issue. On April 26, 2021, in N.Y. State Rifle & Pistol Ass’n v. Corlett,597 the Supreme Court granted a Petition for Writ of Certiorari in which the petition- ers sought review of a decision by the Second Circuit that again affirmed the constitutionality of the proper cause requirement. On November 3, 2021, the Court heard oral arguments in N.Y. State Rifle & Pistol Ass’n v. Bruen, No. 20-843, as the action is now styled. B. Section 1983 Claims Arising out of Interstate Travel with a Firearm A public transportation authority’s operations may be in- terstate. Some important precedents relevant to § 1983 actions have involved air travel and 18 U.S.C. § 926A regulating the Interstate Transportation of Firearms.598 Although involving interstate air travel, in Torraco v. Port Auth.,599 supra, a consolidation of three appeals, the Second Circuit held that, if a person traveling interstate with a firearm 592 Id. (citations omitted) (emphasis supplied). 593 Id. 594 Id. (citations omitted) (some internal quotation marks omitted) (emphasis supplied). 595 Id. at 84 (citations omitted). 596 Id. at 101. 597 141 S. Ct. 2566, 209 L. Ed.2d 590 (2021). 598 Section 926A provides: Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be con- tained in a locked container other than the glove compart- ment or console. 599 615 F.3d 129 (2nd Cir. 2010).