Alan Taveras, Plaintiff v. New York City, New York, and Keechant Sewell, in her official capacity as NYPD police commissioner and all successors, Defendants1 OPINION AND ORDER Construed most expansively, this case is about whether the constitutional right to keep and bear arms tolerates New York City’s gun control regime. But today the Court’s task is more limited: It considers only whether Plaintiff Alan Taveras — who now possesses the rifle/shotgun license he was previously denied under that regime — is properly situated to ask that question. Because Plaintiff lacks standing to challenge certain provisions, and lacks the ability to seek declaratory or injunctive relief as to other provisions, the Court grants Defendants’ motion to dismiss, and dismisses all of Plaintiff’s claims other than a subset of his claims for monetary damages. BACKGROUND2 A. Factual Background The Court assumes familiarity with the facts, allegations, and procedural history of this case, which are recounted at length in its prior Opinion granting Defendants’ first motion to dismiss. Taveras v. New York City, No. 20 Civ. 1200 (KPF), 2021 WL 185212 (S.D.N.Y. Jan. 17, 2021) (“Taveras I”). Only the allegations relevant to the instant motion are summarized here, with particular attention paid to the new allegations in the Second Amended Complaint (the “SAC”). Plaintiff is a resident of Bronx County, New York. (SAC 10). On or about December 1, 2017, he applied to the New York City Police Department (“NYPD”) License Division (the “License Division”) for a license to possess a rifle and/or shotgun. (Id. 15). On April 18, 2018, the License Division denied Plaintiff’s application because of his “arrest history, summons history and violent domestic violence history and Order of Protection history.” (Id. 18; see also Taveras Decl., Ex. B). Plaintiff appealed the denial of his application for a rifle/shotgun license to the Appeals Unit of the License Division. (SAC 24). On November 28, 2018, the Appeals Unit denied Plaintiff’s appeal by written notice. (Id. 25; see also Devine Decl., Ex. A). The notice affirmed that “good cause” exists for the denial because Plaintiff was involved in two domestic violence incidents in 2011 and was subject to an order of protection as a result. (Devine Decl., Ex. A). The notice acknowledged that the order of protection had since expired and that the charges against Plaintiff had ultimately been dropped, but concluded that “the serious nature” of the domestic violence incidents “raise safety concerns for [himself] and others.” (Id.). Plaintiff alleges that he has a “present intention and plan to purchase shotguns and rifles for all lawful purposes, including self-defense and ammunition for the same” (SAC 30), but cannot do so because of his lack of a rifle/shotgun license (id. 31; see also Taveras Decl. 16). Plaintiff further alleges that if he “exercises his right to purchase, possess, and carry rifles, shotguns, and their ammunition, he will be arrested and subject to incarceration, fines, and other criminal and civil penalties[,]” in contravention of his Second Amendment rights. (SAC 32). On October 25, 2022, after Plaintiff filed the SAC, the NYPD issued Plaintiff a rifle/shotgun license. (Berkovich Decl. 2 & Ex. A). Due to a “technical error,” the NYPD did not print and mail Plaintiff’s license to him at that time. (Id. 2). On January 26, 2023, upon learning of the error, the Director of the License Division mailed Plaintiff’s license to him at the address listed on his application. (Id. 4). B. Procedural Background On January 17, 2021, the Court granted Defendants’ first motion to dismiss this action in full. See generally Taveras I, 2021 WL 185212. In so doing, the Court applied the then-prevailing two-step legal analysis to the statutes and regulations that were implicated by the denial of Plaintiff’s application for a rifle/shotgun license, first finding that the challenged laws burdened Plaintiff’s Second Amendment rights, and then determining that they withstood intermediate scrutiny because they were substantially related to the City’s important interests in public safety and crime prevention. Id. at *6-10. Plaintiff timely appealed. (Dkt. #26). While the matter was pending before the Second Circuit, the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), which abrogated the two-step approach for assessing the constitutionality of gun regulations, id. at 2127-28. In the wake of Bruen, courts must now decide whether “the Second Amendment’s plain text covers an individual’s conduct.” Id. at 2129-30. If it does, “the Constitution presumptively protects that conduct [and] [t]he government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id. at 2130. “Because neither the district court nor the parties’ briefs anticipated and addressed this new legal standard,” the Second Circuit vacated the judgment and remanded the case “for the district court to reconsider Taveras’s claim, applying in the first instance the standard articulated by the Supreme Court in Bruen.” Taveras v. New York City, No. 21-398, 2022 WL 2678719, at *1 (2d Cir. July 12, 2022) (summary order). The Second Circuit’s mandate issued on August 2, 2022. (Dkt. #28). The day after the case returned to this Court on remand, the Court ordered the parties to submit a joint letter proposing next steps in the case. (Dkt. #29). On September 1, 2022, the Court adopted the parties’ proposed deadlines for Plaintiff to file an amended complaint and for Defendants to answer or file a pre-motion letter. (Dkt. #33). Plaintiff filed the SAC on September 25, 2022. (Dkt. #34). The Court subsequently granted Defendants’ request for an extension of time to respond to the SAC. (Dkt. #36-37). On November 15, 2022, Defendants filed the papers for their motion to dismiss the SAC. (Dkt. #38-40). The Court issued an order noting that the motion filings violated both the Court’s September 1, 2022 Order instructing Defendants to file either an answer or a pre-motion letter and Rule 4(A) of the Court’s Individual Rules of Practice in Civil Cases, which requires pre-motion submissions. (Dkt. #41). The Court cautioned the parties to “take care to comply with [the Court's Individual Rules] going forward,” but accepted the submissions and set a schedule for the outstanding briefing. (Id.). On December 20, 2022, the Court granted Plaintiff’s request for additional time to respond to the motion. (Dkt. #42-43). On January 13, 2023, Plaintiff filed his opposition to the pending motion to dismiss as well as a cross-motion for summary judgment and supporting papers. (Dkt. #44-48). The Court denied Plaintiff’s cross-motion for summary judgment without prejudice as to its renewal following the resolution of the motion to dismiss, both because Plaintiff’s failure to file a pre-motion letter violated the Court’s Individual Rules, and because it would only be necessary to address the merits issues presented in Plaintiff’s summary judgment motion if the action proceeded beyond the motion to dismiss. (Dkt. #49). Plaintiff subsequently asked the Court to reconsider that denial (Dkt. #50), which request the Court denied (Dkt. #51). Defendants filed a reply memorandum and accompanying papers in further support of their motion on January 26, 2023. (Dkt. #52-54). The Court now resolves the motion to dismiss. DISCUSSION A. Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(1) Federal Rule of Civil Procedure 12(b)(1) permits a party to move to dismiss a complaint for “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A defendant may move to dismiss a case for lack of subject matter jurisdiction based on a plaintiff’s lack of Article III standing. See Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54-55 (2d Cir. 2016). Challenges to subject matter jurisdiction under Rule 12(b)(1) can be either facial or fact-based. Carter, 822 F.3d at 56-57; see also Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 119 (2d Cir. 2017). A facial Rule 12(b)(1) motion is one “based solely on the allegations of the complaint or the complaint and exhibits attached to it.” Carter, 822 F.3d at 56. A plaintiff opposing such a motion bears “no evidentiary burden,” id., and the court’s task is to determine whether the complaint and its exhibits allege facts that “affirmatively and plausibly suggest” that the plaintiff has standing to sue, Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011) (per curiam). In making that determination, the court must accept the complaint’s allegations as true “and draw[] all reasonable inferences in favor of the plaintiff.” Carter, 822 F.3d at 57 (internal quotation marks and citation omitted). “Alternatively, a defendant is permitted to make a fact-based Rule 12(b)(1) motion, proffering evidence beyond the complaint and its exhibits.” Carter, 822 F.3d at 57; see also MMA Consultants 1, Inc. v. Rep. of Peru, 719 F. App’x 47, 49 (2d Cir. 2017) (summary order) (defining fact-based Rule 12(b)(1) motion as one where “the defendant puts forward evidence to challenge the factual contentions underlying the plaintiff’s assertion of subject-matter jurisdiction”). “In opposition to such a motion, [the plaintiff] must come forward with evidence of [its] own to controvert that presented by the defendant, or may instead rely on the allegations in the [p]leading if the evidence proffered by the defendant is immaterial because it does not contradict plausible allegations that are themselves sufficient to show standing.” Katz, 872 F.3d at 119 (internal citations and quotation marks omitted). If a defendant supports its fact-based Rule 12(b)(1) motion with “material and controverted” “extrinsic evidence,” a “district court will need to make findings of fact in aid of its decision as to subject matter jurisdiction.” Carter, 822 F.3d at 57. B. Plaintiff Lacks Standing to Challenge Those Provisions That Did Not Contribute to the Denial of His Application for a Rifle/Shotgun License The Court previously determined that the NYPD’s denial of Plaintiff’s application for a rife/shotgun license was based only on subsections (a)(2) and (a)(9) of the New York City Administrative Code (the “NYCAC”) Section 10-303 and subsections (f) and (g) of Title 38, Section 3-03 of the Rules of the City of New York (the “RCNY”). Taveras I, 2021 WL 185212, at *4-5. It proceeded to consider Plaintiff’s challenges to those provisions on the merits, but dismissed Plaintiff’s challenges to other laws and code provisions for lack of standing. Id.3 Undeterred, Plaintiff again challenges numerous provisions of New York City’s gun regulation scheme, including the entirety of NYCAC Sections 10-302.1, 10-303, and 10-306, as well as 38 RCNY Chapter 3. (SAC, Prayer for Relief). In response, Defendants move to dismiss, on standing grounds, Plaintiff’s challenges to various local laws and rules that were not implicated by the denial of Plaintiff’s license application. 1. Applicable Law Article III of the United States Constitution restricts federal courts to deciding “Cases” and “Controversies,” and thereby limits federal jurisdiction to only those disputes that meet the “irreducible constitutional minimum” of standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, a federal plaintiff must prove three elements: First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is [i] concrete and particularized; and [ii] actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of…. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id, at 560-61 (citations and internal quotation marks omitted). These core requirements are designed to ensure that the exercise of federal jurisdiction is consistent with separation of powers, limiting federal jurisdiction to those suits “traditionally thought to be capable of resolution through the judicial process.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)). Standing is thus “the threshold question in every federal case.” Ross v. Bank of Am., N.A. (USA), 524 F.3d 217, 222 (2d Cir. 2008) (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006)). As the party invoking federal jurisdiction, the plaintiff bears the burden of proof on each element of standing. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). “[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. Defendants challenge only the injury-in-fact component of standing. (See Def. Br. 2-5). To establish an injury in fact, a plaintiff “must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 578 U.S. at 339 (quoting Lujan, 504 U.S. at 560). Moreover, “[t]o establish standing to obtain prospective relief, a plaintiff ‘must show a likelihood that he will be injured in the future.’” Carver v. City of New York, 621 F.3d 221, 228 (2d Cir. 2010) (quoting Shain v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004)). To base standing on future injury, a plaintiff must show that he faces a “substantial risk” of injury, or that the threat of injury is “certainly impending.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). “[A]llegations of possible future injury are not sufficient” to establish an injury in fact. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (internal citation omitted). 2. Plaintiff Has Not Established Past or Present Injury Under Certain NYCAC and RCNY Provisions Plaintiff does not argue that the NYPD’s 2018 denials of his now-issued rifle/shotgun license were based on any provisions other than NYCAC Section 10-303(a)(2) and (9) and RCNY Chapter 38, Section 3-03(f) and (g). This reticence is wise, inasmuch as (i) Plaintiff’s initial denial notice alludes only to those provisions, each of which grants the NYPD authority to deny applications for good cause, with both a history of domestic violence and being subject to a protective order as bases for ineligibility (Taveras Decl., Ex. B), and (ii) the notice denying Plaintiff’s appeal cites to them explicitly (Devine Decl., Ex. A; see also SAC
