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BELLO v. “John Does 1-5”, Individually, Defendants. (2021)

United States Court of Appeals, Second Circuit.2021-05-05No. 20-1879-cv

Summary

Holding. The court affirmed the district court's judgment dismissing all claims, holding that Bello failed to state a plausible procedural due process violation because adequate legal remedies were available to him through the state courts, and that retention of lawfully seized property does not constitute a separate Fourth Amendment violation.

Robert Bello appealed a district court's dismissal of his claims against Rockland County officials for refusing to return firearms that had been confiscated pursuant to a court order. The firearms were listed on both Bello's and his mother's pistol permits, and a state judge had ordered Bello's mother to surrender all weapons she owned or co-owned. Bello argued that the officials violated his Fourteenth Amendment due process rights and Fourth Amendment protections by withholding the guns.

The appellate court rejected Bello's arguments on multiple grounds. Regarding his due process claim, the court found that Bello had an adequate remedy available—he could have sought to modify the original surrender order directly from the state judge or through New York's appellate courts. The court characterized the issuance of the surrender order as a judicial act, not a ministerial one, and found that Bello as a co-owner was plainly affected by the order and had standing to challenge it. Concerning the Fourth Amendment claim, the court held that retention of lawfully seized property does not itself constitute a separate Fourth Amendment violation. Because Bello failed to establish underlying constitutional violations, the court did not address his immunity arguments or his municipal liability claims.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether retention of firearms seized pursuant to a state court order violates procedural due process rights
  • Whether failure to return lawfully seized property constitutes a Fourth Amendment violation
  • Whether a property co-owner has standing to challenge an order directed at another co-owner
  • Whether remedies were available to the plaintiff in state court

Procedural posture

Bello appealed from a district court judgment granting defendants' motion for judgment on the pleadings, which dismissed his federal constitutional claims.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

SUMMARY ORDER

Plaintiff-appellant Robert Bello (“Bello”) appeals from a judgment of the District Court granting defendants-appellees’ motion for judgment on the pleadings on Bellos claims that the defendants, Rockland County, Rockland County Sheriff Louis Falco III and Counsel to the Sheriff Thomas Simeti (together, “Rockland County”), violated his Fourteenth and Fourth Amendment rights when they would not return firearms, confiscated pursuant to a letter “entitled, ‘Notice of Suspension and Order to Surrender Weapons’ ” (Complaint ¶ 33) (the “Surrender Order”). The Surrender Order, issued by the Honorable Thomas E. Walsh II (see id. ¶ 32), a justice of the New York State Supreme Court, directed Lori Bello, Bellos mother, with whom he resided, to “turn in all weapons she owns or co-owns and/or which are listed on her pistol permit to the Rockland County Sheriffs Office within 48 hours” (id. ¶ 32). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review a District Courts grant of a motion for judgment on the pleadings de novo, accepting the complaints factual allegations as true and drawing all reasonable inferences in the plaintiffs favor. Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). “To survive a Rule 12(c) motion, the complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face.” Kirkendall v. Halliburton, Inc., 707 F.3d 173, 178-79 (2d Cir. 2013) (internal quotation marks omitted). However, “we ‘are not bound to accept as true a legal conclusion couched as a factual allegation,’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)), nor are we required to accept as true allegations that are wholly conclusory, see, e.g., Iqbal, 556 U.S. at 678-79, 681, 686, 129 S.Ct. 1937.

A.

On appeal, Bello challenges the District Courts dismissal of his post-deprivation Fourteenth Amendment claims. He argues that Rockland County violated his procedural due process rights when it refused to return the confiscated firearms. We disagree.

In reviewing Bellos procedural due process claim, we note that the Complaint plainly alleges that Bello possessed a property interest in the guns that he co-owned with Lori Bello, stating that the guns “registered to Lori Bellos pistol license were also registered to, and listed on the back of, Robert Bellos pistol license” (Complaint ¶ 28). However, we cannot accept Bellos assertions that he had no adequate remedy to require the Sheriffs Department to restore the guns to his possession.

The Complaints allegations that “no person other than Lori Bello” was a “subject of” the Surrender Order (id. ¶ 35), that, in issuing the Surrender Order, Justice Walsh was performing a “ministerial function” rather than an act that was judicial (id. ¶ 37), and that there were no procedures available to him to regain possession of the guns he co-owned with Lori Bello (id. ¶¶ 93, 114), are assertions of legal conclusions that the court is not required to accept. First, the assertion that issuance of the Surrender Order by a State Supreme Court Justice in Rockland County was merely a ministerial act, not a judicial act, is a legal characterization that is untenable. See generally Libertarian Party of Erie Cnty. v. Cuomo, 970 F.3d 106, 117 (2d Cir. 2020) (except as to New York City and Long Island, the New York State statutory scheme governing gun possession places the authority with respect to firearms license applications in “state judges,” and a decision as to the permissibility of firearm possession that “ar[ises] out of an individual case before” such a judge is a “judicial act[ ]” (internal quotation marks omitted)). Second, the assertion that Lori Bello was the only person the Surrender Order purported to affect is belied by the Surrender Order itself, which, as the Complaint alleges, expressly included the direction that Lori Bello surrender guns she “co-owns” (Complaint ¶ 32). As an alleged co-owner of the guns listed on Lori Bellos license, Bello was plainly affected by the order that Lori Bello turn them over to the Sheriffs Department, and he accordingly plainly had standing to seek directly from Judge Walsh a modification of the Surrender Order to permit the Sheriffs Department to return possession of the guns to Bello. Accordingly, we agree with the District Court that his procedural due process claim fails because he did not utilize the process he had available to him, namely, seeking an amendment to the Surrender Order from Justice Walsh or from the New York appellate courts.

B.

Bello also argues that Rockland County violated his Fourth Amendment rights by retaining the seized weapons. Again, we agree with the District Court that Rockland Countys actions did not violate the Fourth Amendment. “Where, as in this case, an initial seizure of property was reasonable, defendants’ failure to return the items does not, by itself, state a separate Fourth Amendment claim of unreasonable seizure.” Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177, 187 (2d Cir. 2004). The mere fact that Rockland County continued to possess the seized firearms therefore does not give rise to a plausible Fourth Amendment claim.

C.

Bello contends that the District Court erred when it found that the individual defendants were entitled to “quasi-judicial immunity.” As we find that Bello has failed to plead an underlying violation of his constitutional rights, it is not necessary to reach the issue of whether the Sheriffs retention of Bellos firearms is protected by judicial immunity.

D.

Finally, Bello argues that the District Court erred when it dismissed his Monell claim. Monell v. Dept of Soc. Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). We again disagree. As our analysis above demonstrates, he has failed adequately to plead an underlying violation of his constitutional rights.

CONCLUSION

We have reviewed all of the arguments raised by Bello on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the May 11, 2020 judgment of the District Court.