Las Vegas POA

No Due Process Right To ‘Retired Officer Handgun License’

Written on 01/06/2021
Will Aitchison

Joseph Oquendo was a detective with the NYPD. Before he retired, Oquendo was arrested and charged with DWI. While the criminal charges were pending, NYPD denied Oquendo’s anticipatory application for a retired police officer handgun license. Had one been issued, Oquendo could have legally possessed a concealed handgun within New York City.

Though a jury acquitted Oquendo of the criminal charges, NYPD opened an internal investigation into the circumstances of his arrest and considered bringing disciplinary charges against him. After 30 years of service, Oquendo chose to retire from the NYPD. Oquendo received his Retirement Identification Card, stamped with the words “No Firearms.”

Oquendo’s ID Card was stamped in this manner because the internal investigation into his DWI had not been closed. Due to the open investigation, Oquendo was not issued a Pistol License Inquiry Form, also known as a “Good Guy Letter” within the NYPD, as he was not an officer in “good standing” upon his retirement.

Oquendo sued NYPD to attempt to force it to provide him with a retired police officer license. When he was unsuccessful in state court, he filed a second lawsuit in federal court. The core of Oquendo’s claim was that NYPD denied him due process in denying him the “Good Guy Letter.”

A federal court dismissed Oquendo’s lawsuit. The Court observed that “a procedural due process claim is comprised of two elements: (1) the existence of a property interest that was deprived; and (2) deprivation of that interest without due process. To establish deprivation of a property interest, a plaintiff must demonstrate an interest in a benefit that is more than an abstract need or a desire for it. He must, instead, have a legitimate claim of entitlement to it under state or federal law.

“A benefit, however, is not a protected entitlement if government officials may grant or deny it in their discretion. Under New York law, it is well settled that the possession of a handgun license is a privilege, not a right, which is subject to the broad discretion of the New York City Police Commissioner. Since it is a discretionary decision on defendants’ part whether to issue such a license, and by extension, a Good Guy Letter, Oquendo cannot establish that he has a protected property interest in either.

“Licensing officers have considerable discretion in deciding whether to even grant a handgun license. As a result, the presence of that discretion precludes any legitimate claim of entitlement. For this same reason, Oquendo cannot maintain his due process claim even under his alternative theory that he held a vested property interest in his personal handguns.

“A contrary conclusion would make little sense. The only reason Oquendo was permitted to possess a handgun for over 30 years was due to his status as an active duty police officer. Once he became a civilian, Oquendo’s possession of a firearm within New York City was forbidden, and his handguns, regardless of their sentimental value, were no different than any other unlicensed pistol on the street. It is blackletter law that an individual does not have a possessory interest in contraband.”

Oquendo v. City of New York, 2020 WL 5913277 (E.D.N.Y. 2020).

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