Hightower v. City of Boston, et al

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Kermit V. Lipez, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [11-2281]

Case: 11-2281

Document: 00116426021

Page: 1

Date Filed: 08/31/2012

Entry ID: 5671397

United States Court of Appeals
For the First Circuit

No. 11-2281
STACEY HIGHTOWER,
Plaintiff, Appellant,
v.
CITY OF BOSTON; EDWARD DAVIS, Boston Police Commissioner;
COMMONWEALTH OF MASSACHUSETTS,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]

Before
Lynch, Chief Judge,
Lipez and Thompson, Circuit Judges.
Alan Gura, with whom Gura & Possessky, PLLC, and Chester
Darling were on brief, for appellant.
Lisa Skehill Maki, Assistant Corporation Counsel, with
whom William F. Sinnott, Corporation Counsel, was on brief, for
appellees City of Boston and Edward Davis.
Kenneth W. Salinger, Assistant Attorney General, with whom
Martha Coakley, Attorney General of Massachusetts, was on brief, for
appellee Commonwealth of Massachusetts.
Charles M. Dyke and Trucker Huss APC on brief for Legal
Community Against Violence, amicus curiae.

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August 30, 2012

Entry ID: 5671397

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LYNCH, Chief Judge.
a

purported

facial

attack

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Entry ID: 5671397

This case presents an as-applied and
on

the

Massachusetts

statutory

and

administrative scheme for revoking licenses for the carrying of
firearms.

The district court entered summary judgment dismissing

the claims.

Hightower v. City of Boston, 822 F. Supp. 2d 38, 65-66

(D. Mass. 2011).
Stacey Hightower is a former Boston Police officer who,
during many of her years of service from 1998 to 2008, had a broad
Class A license which permitted her to carry and to conceal a large
capacity firearm, in addition to her Boston Police Department (BPD)
service gun.
license

was

Shortly after her resignation from the BPD, her
revoked

because

the

BPD

determined

that

she

had

inaccurately answered a question on her license renewal form.

The

question was whether she had any complaints or charges pending
against her.

After the revocation, she neither invoked her right

to judicial review nor sought a more limited license which would
have entitled her to carry her small handgun.
On the facts of this case, we hold that Hightower has
standing to bring her claims, that the case is ripe, that her Second
Amendment

as-applied

claim

fails,

that

her

purported

Second

Amendment facial attack also fails, and that her procedural due
process claim fails, as does her equal protection claim.
entry of judgment against Hightower.

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We affirm

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I.
The facts giving rise to this suit are largely undisputed.
A.

Massachusetts Firearms Licensing & License Revocation
Statute
Massachusetts has three categories of licenses available

for the carrying of firearms:1 a firearms identification card (FID
card), a Class B license, and a Class A license.
Laws ch. 140, §§ 129B, 131.

See Mass. Gen.

All three are issued by the relevant

"licensing authority," which is defined as "the chief of police or
the board or officer having control of the police in a city or town,
or persons authorized by them."

Id. § 121. It is generally a crime

under Massachusetts law to carry a firearm without having the
appropriate license or FID card, or being exempt from licensing.
Id. ch. 269, § 10.

As the Massachusetts Supreme Judicial Court has

explained:
"To lawfully 'carry' a firearm within the
Commonwealth . . . a person must either obtain
a license to do so under G.L. c. 140, § 131,
or be exempt from the normal licensing
requirements under G.L. c. 140, §§ 129C, 131F,
or 131G . . . ."
There is one other
exemption.
A person who obtains a "firearm
identification card" under G.L. c. 140,
§ 129B, allowing him or her to possess a
firearm legally, may carry a firearm within
his or her residence or place of business
without violating the law.

1

The Massachusetts licensing scheme defines a firearm as "a
pistol, revolver or other weapon of any description" with a barrel
of "less than 16 inches" in length.
Mass. Gen. Laws ch. 140,
§ 121.
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Commonwealth v. Ramirez, 555 N.E.2d 208, 211 (Mass. 1990) (omissions
in original) (citations omitted) (quoting Commonwealth v. Seay, 383
N.E.2d 828, 831 (Mass. 1978)).
A sworn BPD officer is not required to have a license to
carry a BPD-issued firearm.

See Mass. Gen. Laws ch. 140, § 129C(o)

(listing "exempted persons and uses" as including "police officers
and other peace officers of any jurisdiction, in the performance of
their official duty or when duly authorized to possess them"); see
also id. ch. 41, § 98 (police officers "may carry within the
commonwealth such weapons as the chief of police or the board or
officer having control of the police in a city or town shall
determine").

This dispute is not about Hightower's police firearm,

but her private one.
An FID card "allows the holder to own, transfer, or
possess

a

firearm

in

his

residence

or

place

of

business."

Commonwealth v. Gouse, 965 N.E.2d 774, 785 n.14 (Mass. 2012).
Various statutory requirements and exemptions govern the issuance
of FID cards.

See Mass. Gen. Laws ch. 140, §§ 129B, 129C.

Notably,

there is no "suitable person" requirement for issuance of FID cards,
as there is for Class A and B licenses; the licensing authority
"shall issue" an FID card unless the applicant falls within one of
the statute's enumerated categories of ineligible individuals. Id.
§ 129B(1).

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A Class B license entitles "a holder thereof to purchase,
rent, lease, borrow, possess and carry: (i) non-large capacity
firearms . . . and (ii) rifles and shotguns, including large
capacity rifles and shotguns."

Id. § 131(b).

"Large capacity"

firearms include any semi-automatic firearms "capable of accepting,
or readily modifiable to accept, any detachable large capacity
feeding device," and a "[l]arge capacity feeding device" is defined
to include any magazine or similar item that can hold "more than ten
rounds." Id. § 121. Class B licenses "shall not entitle the holder
thereof to carry or possess a loaded firearm in a concealed manner
in any public way or place," "shall not entitle the holder thereof
to possess a large capacity firearm," and are to be issued "subject
to such restrictions relative to the possession, use or carrying of
such

firearm

as

the

licensing

authority

deems

proper."

Id.

§ 131(b).
Class A licenses provide the same privileges as Class B
licenses,

except

that

the

holder

may

possess

"large

capacity

firearms," and the statute does not preclude possession or carrying
of concealed firearms in public.

Id. § 131(a).

Class A licenses

are issued "subject to such restrictions relative to the possession,
use or carrying of firearms as the licensing authority deems
proper," id., which can include preventing the carrying of concealed
weapons in public.

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Both

licenses

Page: 7

are

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governed

by

the

same

Entry ID: 5671397

application

procedures, eligibility requirements, and revocation procedures.
Individuals may submit an application for a Class A or Class B
license, or for renewal of such license, to the licensing authority
of the jurisdiction
business.

of their place of residence or place of

Id. § 131(d).

Any applicant who "knowingly files an

application containing false information" may be punished by fine
or imprisonment for "not less than six months nor more than two
years."

Id. § 131(h).
As to eligibility, the statute provides seven categories

of individuals who are not eligible to receive a license: (1)
individuals who have been convicted of a felony, a misdemeanor
punishable by imprisonment for more than two years, or certain other
crimes, (2) individuals who "ha[ve] been confined to any hospital
or institution for mental illness," unless the applicant submits an
affidavit of a physician attesting that "the applicant is not
disabled by such an illness in a manner that should prevent such
applicant from possessing a firearm," (3) those who are or have been
"under treatment for or confinement for drug addiction or habitual
drunkenness, unless such applicant is deemed to be cured of such
condition by a licensed physician," (4) those under the age of
twenty-one, (5) aliens, (6) individuals currently subject to certain
restraining orders, and (7) individuals "currently the subject of
an outstanding arrest warrant."

Id. § 131(d)(i)-(vii).

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If an individual, like the plaintiff here, is not rendered
statutorily ineligible as a result of falling into one of those
categories, the licensing authority
may issue [a Class A or Class B license] if it
appears that the applicant is a suitable
person to be issued such license, and that the
applicant has good reason to fear injury to
his person or property, or for any other
reason, including the carrying of firearms for
use in sport or target practice only, subject
to such restrictions expressed or authorized
under this section.
Id. § 131(d).
The licensing authority must make a decision on the
application within forty days from the date of application; if the
application is denied, the authority must "notify the applicant of
the reason for such denial in writing."

Id. § 131(e).

If granted,

both Class A and Class B licenses "shall be valid, unless revoked
or suspended, for a period of not more than 6 years from the date
of issue," and are to expire on the licensee's date of birth.

Id.

§ 131(i).
As to suspension or revocation of licenses, which is at
the heart of this case, the statute provides:
A license issued under this section shall be
revoked
or
suspended
by
the
licensing
authority,
or
his
designee,
upon
the
occurrence of any event that would have
disqualified the holder from being issued such
license or from having such license renewed.
A license may be revoked or suspended by the
licensing authority if it appears that the
holder is no longer a suitable person to
possess such license.
Any revocation or
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suspension of a license shall be in writing
and shall state the reasons therefor.
Id. § 131(f).
If a license is suspended or revoked, or an application
is denied, the aggrieved individual may "file a petition to obtain
judicial review in the district court" within ninety days of the
denial, revocation, or suspension.

Id. § 131(f).2

"A justice of

such court, after a hearing, may direct that a license be issued or
reinstated to the petitioner if such justice finds that there was
no reasonable ground for denying, suspending or revoking such
license and that the petitioner is not prohibited by law from
possessing same."

Id.

Further judicial review may be had "in an

action in the nature of certiorari under" Mass. Gen. Laws ch. 249,
§ 4.

Levine v. Chief Justice of the Dist. Court, 750 N.E.2d 998,

1000 (Mass. 2001).
If a Class A or B license is revoked or suspended, "the
licensing authority shall take possession of such license and the
person whose license is so revoked or suspended shall take all
actions required under the provisions of section 129D.

No appeal

or post-judgment motion shall operate to stay such revocation or
suspension."

Mass. Gen. Laws ch. 140, § 131(f).

Section 129D, in turn, provides:

2

It appears that an applicant may also petition for review
of a decision to issue a restricted, as opposed to unrestricted,
license. See Ruggiero v. Police Comm'r of Bos., 464 N.E.2d 104,
105-06 (Mass. App. Ct. 1984).
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Upon revocation, suspension or denial of an
application for a firearm identification card
. . . or of any firearms license if said
firearms identification card is not then in
force . . . , the person whose application was
so revoked, suspended or denied shall without
delay deliver or surrender, to the licensing
authority where he resides, all firearms,
rifles,
shotguns
and
machine
guns
and
ammunition which he then possesses unless an
appeal is pending.
Id. § 129D (emphasis added).
That section further provides that "[s]uch person, or his
legal representative, shall have the right, at any time up to one
year

after

said

delivery

or

surrender,

to

transfer

such

firearms . . . to any licensed dealer or any other person legally
permitted to purchase or take possession of such firearms," and
requires the licensing authority to transfer such firearms upon
receiving written notice.
B.

Id.

Factual Background
Stacey Hightower, a resident of Boston, served as a

police officer for the City of Boston from June 1998 until August
15, 2008.

Hightower initially applied for and received from the

licensing authority for the City of Boston a Class A license to
carry

large

capacity

firearms

in

2000.

That

license

was

"unrestricted," meaning that Hightower was authorized to carry
firearms "for all lawful purposes," including carrying firearms
concealed in public. Pursuant to this license, Hightower possessed
a .38 caliber five-round revolver, which was a personal firearm she

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owned in addition to her BPD-issued firearm.

Entry ID: 5671397

A BPD officer must

possess a Class A license to carry a concealed non-BPD-issued
firearm in public; no license is required to carry a BPD-issued
firearm.

See Mass. Gen. Laws § 129C(o) (listing "exempted persons

and uses" as including "police officers and other peace officers of
any jurisdiction, in the performance of their official duty or when
duly authorized to possess them").
Hightower's Class A license lapsed in March 2008.

In

July 2008, Hightower filed an application to renew her Class A
license.

To renew the license, Hightower had to fill out, in

addition to the ordinary renewal form, a Form G 13-S, which was
specific to Boston Police officers, who were required to fill out
that form when applying for or renewing firearms licenses.3

One of

the questions on the G 13-S form was "Are there any complaints or
charges pending against you?"
question.4

Hightower answered "No" to that

Hightower's renewal was approved without restrictions

on August 1, 2008.

3

The ordinary application form is signed under penalty of
perjury and states that "I declare the above facts are true and
complete to the best of my knowledge and belief and I understand
that any false answer(s) will be just cause for denial or
revocation of my license to carry firearms."
The G 13-S form
contains no similar statements, nor does it state that it is signed
under penalty of perjury.
4

The ordinary application form contains the question "Are
you now under any charge(s) for any offense(s) against the law?"
Hightower answered "No" to this question. The defendants do not
claim that this answer was inaccurate or untruthful.
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Hightower resigned from the Boston Police on July 31,
2008, effective August 15, 2008.

On August 18, 2008, a "Police

Commissioner's Personnel Order" was placed into her file without
her endorsement, stating that her resignation had been "presented
with charges pending."

The BPD officer in charge of the Licensing

Unit, which is responsible for issuing firearms licenses within the
City of Boston, reviewed this order.

After confirming with BPD

Internal Affairs that Hightower, in BPD's view, had charges pending
against

her

when

she

resigned,

the

Licensing

Unit

officer

determined that Hightower had been untruthful in her answer on the
G 13-S.

Accordingly, the officer sent her a letter revoking her

Class A license and stating the reasons.
On

August

20,

2008,

Hightower

received

the

letter

revoking her Class A license on the grounds that she "completed the
application form untruthfully."

The parties agree that the basis

for this conclusion was that, in the view of the defendants,
Hightower in fact had "complaints or charges" pending when she
filled out the license renewal form, contrary to her answer on the
form.
The pending internal affairs charges related to a 2004
complaint by an individual that he had been assaulted at the
booking desk by a police officer (not Hightower) after his arrest.
Hightower had transported the prisoner from the location of his
arrest to the police station.

Hightower was interviewed by BPD

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Internal Affairs investigators regarding the complaint.
BPD

Internal

Affairs

investigators

found

that

Entry ID: 5671397

In 2005,

Hightower

had

violated three BPD rules, including "Abuse of Process Withholding
Information"

during

the

investigation

into

the

complaint.

Hightower received a letter dated November 4, 2005, which stated
that these findings had been made by the investigators.

Hightower

testified at her deposition that she understood one of the findings
of the investigators was that she had not been truthful during the
investigation.

Hightower internally appealed those findings and

had entered into settlement negotiations regarding the violations,
but had yet to resolve the matter at the time she resigned from the
BPD.

The parties dispute whether the status of that matter at the

time Hightower

filled

out Form

G

13-S

amounted

to

"pending"

"complaints or charges" within the meaning of the form, and also
dispute whether Hightower remained aware of the status of her
internal affairs matter.
The license revocation letter informed Hightower that she
was entitled to "appeal this decision with 90 days to the District
Court with appropriate jurisdiction."
appeal the revocation.

Hightower chose not to

Hightower never contacted the BPD to

inquire as to whether she had in fact answered a question on the
form untruthfully.
Hightower has also never filed another application for
either a Class A license, Class B license, or FID card after she

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left the Boston Police.

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Because Hightower is no longer a BPD

officer, she would not need to fill out a Form G 13-S were she to
apply for a Class A license.

The defendants maintain that if

Hightower applied for a Class A license, she would receive a
restricted

license

(assuming

that

she

is

not

statutorily

disqualified), and if she desired an unrestricted license, the
licensing authority would "make a determination based on her needs
and the interests of the Boston police department in regulating
Class A unrestricted licenses."
The license revocation letter also stated that Hightower
"shall, in accordance with M.G.L. c. 140, § 129D, without delay,
deliver

or

surrender

to

the

licensing

authority

reside your licenses to carry, and all firearms."

where

you

Section 129D

provides that "[u]pon revocation, suspension or denial of an
application for a firearm identification card . . . or of any
firearms license if said firearms identification card is not then
in force," the person whose application or license was revoked,
suspended, or denied "shall without delay deliver or surrender
. . . all firearms . . . which he then possesses unless an appeal
is pending."

Mass. Gen. Laws ch. 140, § 129D (emphasis added).

Hightower surrendered her firearm after receiving the revocation
letter.

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Procedural History
Hightower filed suit in federal court on November 24,

2008.

The complaint, as amended, named as defendants the City of

Boston and the Boston Police Commissioner.

The complaint alleged

that the revocation of her Class A license was unconstitutional,
under several theories: (1) the Second Amendment, (2) procedural
due process, (3) substantive due process, and (4) equal protection.
The

complaint

requested

as

relief

(1)

return

of

Hightower's

revolver, (2) an order restoring Hightower's Class A license, (3)
a permanent injunction preventing "enforc[ement] [of] the customs,
policies, and practices complained of," and (4) attorneys' fees.
The

Commonwealth

defendant in February 2011.

of

Massachusetts

intervened

as

a

The parties filed cross-motions for

summary judgment, and on September 29, 2011, the district court
granted summary judgment in favor of the defendants.

Hightower,

822 F. Supp. 2d at 65-66.
II.
Our review of the district court's grant of summary
judgment is de novo, assessing the facts and the inferences to be
drawn from them in the light most favorable to the non-moving
party.

Valley Forge Ins. Co. v. Field, 670 F.3d 93, 96-97 (1st

Cir. 2012).

All of Hightower's claims on appeal present questions

of law, which we review de novo.

United States v. Rehlander, 666

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F.3d 45, 47 (1st Cir. 2012) ("The issues before us are legal and
our review is therefore de novo.").
Hightower raises three arguments on appeal: (1) that the
revocation of her license, and Massachusetts's firearms licensing
scheme, violate the Second Amendment; (2) that the same revocation
and licensing scheme violate the Equal Protection Clause of the
Fourteenth Amendment; and (3) that the revocation violated the Due
Process Clause of the Fourteenth Amendment.
The defendants argue that Hightower's Second Amendment
claim is not ripe.

We address ripeness and other preliminary

matters before turning to each of Hightower's claims.
A.

Preliminary Issues
Hightower has met the requirements for both standing and

ripeness to assert claims for denial of procedural due process and
equal protection, and for violation of any Second Amendment rights
arising from the revocation of her license.
As to standing to bring at least claims as to the Class
A license, it is clear that the revocation of Hightower's license
constitutes
requirements

an
of

injury

that

Article

III

suffices

to

standing,

Hightower can apply for another license.

satisfy

the

minimum

regardless

of

whether

See Katz v. Pershing,

LLC, 672 F.3d 64, 71-72 (1st Cir. 2012) (outlining elements of
Article III standing); see also, e.g., Parker v. District of
Columbia, 478 F.3d 370, 376 (D.C. Cir. 2007) ("We have consistently

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treated a license or permit denial pursuant to a state or federal
administrative scheme as an Article III injury."), aff'd sub nom.
District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
Hightower's

as-applied

claim

extends

only

to

the

characteristics of the license that was revoked -- a Class A
unrestricted license that allows for carrying of concealed, large
capacity weapons outside the home.

Hightower lacks standing to

raise a claim as to a Class B license; she has never applied for
such a license, been denied one, or had such a license revoked.
Such a license would allow her to carry a non-concealed,5 non-large
capacity weapon in public.6

For the same reason, she lacks

standing as to an FID card, which would allow her to possess a
firearm in her home or place of business.

5

The statute only prevents the holder of a Class B license
from "carry[ing] or possess[ing] a loaded firearm in a concealed
manner in any public way or place."
Mass. Gen. Laws ch. 140,
§ 131(b) (emphasis added).
6

Hightower asserts that "the Boston police apparently do not
issue unrestricted Class B licenses to openly carry revolvers and
other non-large capacity handguns," and so, de facto, the only way
for her to carry a firearm, openly or not, outside her home is with
an unrestricted Class A license.
Hightower cites no authority for this proposition, aside
from certain comments that do not address the matter made by
defense counsel at a hearing. The statute itself only provides
that Class B licenses "shall not entitle the holder thereof to
carry or possess a loaded firearm in a concealed manner in any
public way or place." Mass. Gen. Laws ch. 140, § 131(b) (emphasis
added). The defendants claim that "a Class B license is sufficient
to keep a regular capacity firearm, rifle, or shotgun in one's home
or to carry it openly in public." The defendants also point out
that Hightower could apply for a restricted Class A license that
would allow her to carry a firearm in public.
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As to ripeness, the fact that Hightower can apply for
another type of license that would redress her injury of not being
licensed for her small gun does not render her claim unripe.

See

Gastronomical Workers Union Local 610 & Metro. Hotel Ass'n Pension
Fund v. Dorado Beach Hotel Corp., 617 F.3d 54, 61-62 (1st Cir.
2010) ("[T]he [ripeness] claim is that a future event may change
the type of

remedy available

to

redress

an

existing

injury.

Consequently, it is the future event, not the . . . injury, that is
speculative.

Viewed in this light, [the] argument is not a

ripeness argument at all."); see also Kachalsky v. Cacace, 817 F.
Supp. 2d 235, 249 (S.D.N.Y. 2011) (rejecting similar argument in a
Second Amendment case because "[t]hat state licensing officers
might

grant

Individual

Plaintiffs'

second

full-carry

permit

applications were they to submit such applications at some point in
the future

does

not

suggest

that their

current

injuries

are

speculative").
However, both the existence of various firearms licenses
for which Hightower could apply and the fact that Hightower has not
applied for such licenses do impact the arguments Hightower can
properly raise on the merits of her claims, as discussed below.
B.

Second Amendment Claims
1.

As-Applied Claim

Hightower argues that she is entitled to a declaration
that the Second Amendment secures the right to publicly carry a

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handgun outside of her home for self defense, and that this right
cannot

be

made

to

licensing officials.

depend

on

a

suitability

determination

by

Hightower also requests injunctive relief.

Hightower argues that the Class A license is the only
form of Massachusetts license that would allow her to exercise the
Second Amendment right she claims to have.

For Hightower's as-

applied Second Amendment challenge to the license revocation to
succeed, then, Hightower must prove that denial of the additional
benefits granted by an unrestricted Class A license, over and above
those granted by a Class B license, amounted to a Second Amendment
violation.

As we understand it, although Hightower made no firm

commitment on the record as to this point, she does not in fact
desire a license for a large capacity firearm, and her personal
firearm is not a large capacity weapon.

In any event, she has

presented no argument about why the possession or carrying of large
capacity

weapons

is

protected

from

regulation by the Second Amendment.

any

form

of

government

That the license lost allowed

carrying of large capacity weapons weakens the Second Amendment
claim, as District of Columbia v. Heller, 128 S. Ct. 2783 (2008),
was concerned with weapons of the type characteristically used to
protect the home.7

She does wish to be licensed to carry her small

7

The D.C. Circuit has, applying intermediate scrutiny,
upheld a prohibition on the possession of magazines with a capacity
of more than ten rounds of ammunition.
Heller v. District of
Columbia, 670 F.3d 1244, 1261-64 (D.C. Cir. 2011).
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gun as a concealed weapon and argues that those interests are
protected

by

the

Second

Amendment

and

the

revocation

is

unconstitutional. In her favor, we examine her more limited claim.
To succeed on her Second Amendment claim, Hightower would have to
show that the license revocation, as applied to her ability to
carry concealed handguns in public, amounts to a Second Amendment
violation.
The

Second

regulation of firearms.
3020, 3026 (2010).

Amendment

applies

to

state

and

local

McDonald v. City of Chicago, 130 S. Ct.

In Heller, the Court held, inter alia, that a

law that "totally bans handgun possession in the home" violated the
Second Amendment.

128 S. Ct. at 2817, 2821.

The Court required

the District of Columbia to "permit [the plaintiff] to register his
handgun and . . . issue him a license to carry it in the home," if
the plaintiff was not disqualified.

Id. at 2822.

The Court

stressed that "the home" is "where the need for defense of self,
family, and property is most acute," id. at 2817, and explained
that the Second Amendment "elevates above all other interests the
right of law-abiding, responsible citizens to use arms in defense
of hearth and home," id. at 2821 (emphasis added).
Courts

have

consistently

recognized

that

Heller

established that the possession of operative firearms for use in
defense of the home constitutes the "core" of the Second Amendment.
See, e.g., United States v. Booker, 644 F.3d 12, 25 n.17 (1st Cir.

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2011) ("While we do not attempt to discern the 'core' Second
Amendment right vindicated in Heller, we note that Heller stated
that the Second Amendment 'elevates above all other interests the
right of law-abiding, responsible citizens to use arms in defense
of hearth and home.'" (quoting Heller, 128 S. Ct. at 2821)), cert.
denied, 132 S. Ct. 1538 (2012); United States v. Greeno, 679 F.3d
510, 517 (6th Cir. 2012) ("The core right recognized in Heller is
'the right of law-abiding, responsible citizens to use arms in
defense of hearth and home.'" (quoting Heller, 128 S. Ct. at
2821)); GeorgiaCarry.Org, Inc. v. Georgia, No. 11-10387, 2012 WL
2947817, at *7 (11th Cir. July 20, 2012) (to be published in F.3d)
(noting that the Heller Court "went to great lengths to emphasize
the special place that the home -- an individual's private property
-- occupies in our society"); United States v. Barton, 633 F.3d
168, 170 (3d Cir. 2011) ("At the 'core' of the Second Amendment is
the right of 'law-abiding, responsible citizens to use arms in
defense of hearth and home.'" (quoting Heller, 128 S. Ct. at
2821)); United States v. Staten, 666 F.3d 154, 158 (4th Cir. 2011)
("According to the Court, the core right of the Second Amendment is
'the right of law-abiding, responsible citizens to use arms in
defense of hearth and home.'" (quoting Heller, 128 S. Ct. at
2821)), cert. denied, 132 S. Ct. 1937 (2012); United States v.
Reese, 627 F.3d 792, 800 (10th Cir. 2010) ("[T]he Court suggested
that the core purpose of the right was to allow 'law-abiding,

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responsible citizens to use arms in defense of hearth and home.'"
(quoting Heller, 128 S. Ct. at 2821)), cert. denied, 131 S. Ct.
2476 (2011).

It is plain that the interest Hightower advances in

carrying concealed weapons outside the home is distinct from this
core interest emphasized in Heller.8

8

We do not reach the issue of the scope of the Second
Amendment as to carrying firearms outside the vicinity of the home
without any reference to protection of the home.
Some courts
appear to have held that the Second Amendment does not extend
outside the home. See Shepard v. Madigan, No. 11-CV-405-WDS, 2012
WL 1077146, at *10 (S.D. Ill. Mar. 30, 2012) (to be published in F.
Supp. 2d) ("[T]he bearing of a firearm outside the home is not a
core right protected by the Second Amendment."); Moore v. Madigan,
842 F. Supp. 2d 1092, 1101 (C.D. Ill. 2012) (holding that Heller
and McDonald do not "recognize[] a Second Amendment right to bear
arms outside of the home"); Piszczatoski v. Filko, 840 F. Supp. 2d
813, 829 (D.N.J. 2012) ("Given the considerable uncertainty
regarding if and when the Second Amendment rights should apply
outside the home, this Court does not intend to place a burden on
the government to endlessly litigate and justify every individual
limitation on the right to carry a gun in any location for any
purpose."); Williams v. State, 10 A.3d 1167, 1169, 1177 (Md. 2011)
(holding that a statute prohibiting carrying a handgun outside the
home without a permit "is outside of the scope of the Second
Amendment" and noting that "[i]f the Supreme Court . . . meant its
holding to extend beyond home possession, it will need to say so
more plainly"), cert. denied, 132 S. Ct. 93 (2011); Commonwealth v.
Perez, 952 N.E.2d 441, 451 (Mass. App. Ct. 2011) ("The Second
Amendment does not protect the defendant in this case because he
was in possession of the firearm outside his home.").
Other courts have remarked that the application of the
Second Amendment outside the home is far from clear. See Gonzalez
v. Village of West Milwaukee, 671 F.3d 649, 659 (7th Cir. 2012)
(referring to this issue as "unsettled territory"); United States
v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011) (noting that
"[t]here may or may not be a Second Amendment right in some places
beyond the home," and that "[o]n the question of Heller's
applicability outside the home environment, we think it prudent to
await direction from the Court itself"), cert. denied, 132 S. Ct.
756 (2011); Kachalsky v. Cacace, 817 F. Supp. 2d 235, 265 (S.D.N.Y.
2011) (noting that "according Second Amendment protection to the
carrying of an unconcealed weapon outside the home would certainly
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Under current Supreme Court precedent, Hightower cannot
make out her Second Amendment claim as to the concealed weapon
aspect of her revoked license, as she must for her as-applied
challenge to succeed.

Under our analysis of Heller, as follows,

the government may regulate the carrying of concealed weapons
outside of the home.
In Heller, the Court explained that "the right secured by
the Second Amendment is not unlimited" and noted that "the majority
of the 19th-century courts to consider the question held that
prohibitions on carrying concealed weapons were lawful under Second
Amendment or state analogues."
interpreted

this

portion

of

128 S. Ct. at 2816.
Heller

as

stating

We have

that

"laws

prohibiting the carrying of concealed weapons" are an "example[] of
'longstanding' restrictions that [are] 'presumptively lawful' under
the Second Amendment."

United States v. Rene E., 583 F.3d 8, 12

(1st Cir. 2009) (quoting Heller, 128 S. Ct. at 2816-17 & n.26); see
also Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897) (observing
that "the first 10 amendments to the [C]onstitution" protect rights

go further than Heller did").
Other courts have found that the Second Amendment extends
outside of the home. See United States v. Weaver, No. 2:09-cr00222, 2012 WL 727488, at *4 (S.D. W. Va. Mar. 6, 2012); Woollard
v. Sheridan, No. L-10-2068, 2012 WL 695674, at *7 (D. Md. Mar. 2,
2012) (to be published in F. Supp. 2d) ("[T]he Court finds that the
right to bear arms is not limited to the home."); see also
Masciandaro, 638 F.3d at 468 (Niemeyer, J., writing separately)
(stating that the Second Amendment provides a right to carry a
weapon outside the home, at least "in some form").
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that

Document: 00116426021

are

stating,

"subject
in

dicta,

to

Page: 24

certain

that

the

Date Filed: 08/31/2012

well-recognized
Second

Amendment

Entry ID: 5671397

exceptions"
right

"is

and
not

infringed by laws prohibiting the carrying of concealed weapons").9
Licensing of the carrying of concealed weapons is presumptively
lawful, and Hightower makes no serious argument to the contrary.
Indeed, we do not understand her to make the implausible
argument that the government may not, under the Second Amendment,
ever revoke a license to carry a concealed weapon.

Rather, her

attack is on the standard used in the revocation of her license.
We detail her arguments below.
The standards for revocation of her license stem from
section 131, which provides for revocation in two circumstances:
A license issued under this section shall be
revoked
or
suspended
by
the
licensing
authority,
or
his
designee,
upon
the
occurrence of any event that would have
disqualified the holder from being issued such
license or from having such license renewed.

9

See also Richards v. County of Yolo, 821 F. Supp. 2d 1169,
1174 (E.D. Cal. 2011) ("[T]he Second Amendment does not create a
fundamental right to carry a concealed weapon in public.");
Kachalsky, 817 F. Supp. 2d at 260-62 (suggesting that there is no
Second Amendment right to carry concealed weapons); Martinkovich v.
Oregon Legislative Body, No. 11-3065-CL, 2011 WL 7693036, at *2 (D.
Or. Aug. 24, 2011) ("The Second Amendment does not prohibit
regulations on carrying a concealed weapon."); Dorr v. Weber, 741
F. Supp. 2d 993, 1005 (N.D. Iowa 2010) ("[A] right to carry a
concealed weapon under the Second Amendment has not been recognized
to date."); Gamble v. United States, 30 A.3d 161, 164-66 (D.C.
2011) (holding that there is no Second Amendment right to carry a
concealed weapon); State v. Knight, 241 P.3d 120, 133 (Kan. Ct.
App. 2010) ("[T]he Heller Court considered concealed firearms
prohibitions to be presumptively constitutional under the Second
Amendment.").
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A license may be revoked or suspended by the
licensing authority if it appears that the
holder is no longer a suitable person to
possess such license.
Mass. Gen. Laws ch. 140, § 131(f).
subject to judicial review.

A revocation on either basis is

Id.

Hightower attacks many provisions of the statute, but her
key focus is on what she contends is the inherent subjectivity of
the "suitability" requirement and its inadequacy as a standard.
However, Hightower's license was not revoked because of a general
finding that she was not "suitable," but rather because of a
particular determination that she "completed the application form
untruthfully."10
We conclude that the revocation of a firearms license on
the basis of providing false information as to the existence of
pending complaints or charges on the firearms license application
form is not a violation of the Second Amendment in this case.
Hightower argues that this court must apply strict scrutiny to her
license revocation claim.

Her claim fails whatever standard of

scrutiny is used, even assuming there is some Second Amendment
interest in carrying the concealed weapons at issue.

We do not

reach the question of what standard of scrutiny applies here.

10

We

BPD has denied firearms applications in other instances
upon a determination that applicants answered the general form
untruthfully, denied applications upon a determination that sworn
BPD officers answered the G 13-S form untruthfully, and revoked
licenses for both reasons.
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agree with Judge Wilkinson's cautionary holding in United States
v. Masciandaro, 638 F.3d 458 (4th Cir. 2011), cert. denied, 132 S.
Ct. 756 (2011), that we should not engage in answering the question
of how Heller applies to possession of firearms outside of the
home, including as to "what sliding scales of scrutiny might
apply."

Id. at 475.

As he said, the whole matter is a "vast terra

incognita that courts should enter only upon necessity and only
then by small degree."

Id.

A requirement that firearms license applicants provide
truthful information, enforced by the revocation of licenses if the
applicant provides false information, serves a variety of important
purposes.

For one, it helps ensure the integrity of the system of

keeping

prohibited

persons

from

possessing

firearms.

Massachusetts's licensing scheme prohibits certain categories of
people from possessing firearms.
§ 131(d)(i)-(vii).
possess

all

of

See Mass. Gen. Law ch. 140,

A licensing authority does not necessarily
the

information

necessary

to

determine

an

individual's eligibility.

The submission of false information by

an

it

applicant

could

make

more

difficult

for

the licensing

authority to assess whether the applicant is eligible (e.g.,
submission of a false name would make it more difficult to perform
a background check).11

The prohibition of the inclusion of false

11

The licensing authority is empowered to make a variety of
inquiries concerning license applicants. See Mass. Gen. Laws ch.
140, § 131(e).
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information

in

a

license

Page: 27

Date Filed: 08/31/2012

application

is

necessary

Entry ID: 5671397

to

the

functioning of the licensing scheme.
The Supreme Court has commented on a federal prohibition
on providing material false information to a licensed dealer in
connection with the acquisition of firearms, saying that 18 U.S.C.
§ 922(a)(6):
was enacted as a means of providing adequate
and
truthful
information
about
firearms
transactions. Information drawn from records
kept by dealers was a prime guarantee of the
Act's effectiveness in keeping "these lethal
weapons out of the hands of criminals, drug
addicts,
mentally
disordered
persons,
juveniles, and other persons whose possession
of them is too high a price in danger to us
all to allow."
Huddleston v. United States, 415 U.S. 814, 825 (1974) (quoting 114
Cong. Rec. 13219 (1968) (remarks of Sen. Tydings)). The same holds
true for Massachusetts's licensing scheme.

In Huddleston, the

defendant had been convicted of providing false information in
answering a form in connection with the acquisition of a firearm;
the Court affirmed the conviction.
A

requirement

that

Id. at 815-18, 833.

information

on

firearms

license

applications be accurate is an important government interest, and
it is enforced not only by the revocation scheme.

Massachusetts

law

submit

makes

it

a

criminal

offense

to

knowingly

false

information of certain types on a firearms license application.
Mass. Gen. Laws ch. 140, § 129 (providing a criminal penalty for
anyone

who

"gives

a

false

or

fictitious

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name

or

address

or

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knowingly offers or gives false information concerning the date or
place of birth, his citizenship status, occupation, or criminal
record," in any "application for any form of license or permit
issued in connection" with a firearm); id. § 131(h) (providing a
criminal

penalty

for

"[a]ny

person

who

application containing false information").

knowingly

files

an

Such provisions are

commonplace in state firearms licensing regimes, particularly as to
licenses to carry concealed weapons.12

12

See, e.g., D.C. Code § 7-2507.04(a) ("It shall be unlawful
for any person purchasing any firearm or ammunition, or applying
for any registration certificate . . . to knowingly give false
information or offer false evidence of identity."); Fla. Stat. Ann.
§ 790.06(11)(a) ("A person who knowingly files false information
under this subsection is subject to criminal prosecution . . . .");
Ind. Code Ann. § 35-47-2-17 ("No person, in purchasing or otherwise
securing delivery of a firearm or in applying for a license to
carry a handgun, shall knowingly or intentionally: (1) give false
information on a form required to: . . . (B) apply for a license to
carry a handgun . . . ."); La. Rev. Stat. Ann. § 40:1379.3(C)(1)
("The providing of false or misleading information on the
application or any documents submitted with the application shall
be grounds for the denial or revocation of a concealed handgun
permit."); Md. Code Ann., Pub. Safety § 5-139(a) ("A person may not
knowingly give false information or make a material misstatement in
a firearm application . . . ."); Mich. Comp. Laws Serv.
§ 750.232a(3) ("A person who intentionally makes a material false
statement on an application for a license to purchase a
pistol . . . is guilty of a felony . . . ."); Miss. Code Ann. § 459-101(15) ("Any person who knowingly submits a false answer to any
question on an application for a license issued pursuant to this
section, or who knowingly submits a false document when applying
for a license issued pursuant to this section, shall, upon
conviction, be guilty of a misdemeanor . . . ."); N.J. Stat. Ann.
§ 2C:39-10(c) ("Any person who gives or causes to be given any
false information . . . in applying for . . . a permit to purchase
a handgun [or] a permit to carry a handgun . . . is guilty of a
crime of the third degree."); N.M. Stat. Ann. § 29-19-6(I) ("The
department shall suspend or revoke a concealed handgun license if:
(1) the licensee provided the department with false information on
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Like the Supreme Court, we hold that this particular
ground for "unsuitability" is not subjective, and it does not
confer too much discretion on the licensing authority. See City of
Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 783
(2004) (statute providing that an "adult business" license shall be
denied if the applicant, inter alia, "provides false information"
is based on "objective criteria"); Thomas v. Chi. Park Dist., 534
U.S. 316, 324 (2002) (statute that allows denial of a large public
assembly permit based on, inter alia, the application containing "a
material falsehood or misrepresentation" is based on "reasonably
specific and objective" grounds).
accuracy

of

an

answer

may

be

Individual disputes about the
addressed

under

the

statute's

provision for judicial review, an option that Hightower declined to
use.

the application form or renewal form for a concealed handgun
license . . . ."); R.I. Gen. Laws § 11-47-23 ("No person
shall, . . . in applying for a license to carry [a firearm], give
false information or offer false evidence of his or her
identity."); Tex. Gov't Code Ann. § 411.186(a) ("The department
shall revoke a license under this section if the license holder:
. . . (2) made a material misrepresentation or failed to disclose
a material fact in an application submitted under this
subchapter . . . ."); Utah Code Ann. § 53-5-704(15) ("An individual
who knowingly and willfully provides false information on an
application filed under this part is guilty of a class B
misdemeanor, and the application may be denied, or the permit may
be suspended or revoked."); Wash. Rev. Code Ann. § 9.41.070(12)
("In addition to any other penalty provided for by law, the
concealed pistol license of a person who knowingly makes a false
statement shall be revoked, and the person shall be permanently
ineligible for a concealed pistol license.").
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Further,

the

Page: 30

particular

Date Filed: 08/31/2012

question

Hightower

Entry ID: 5671397

answered

inaccurately in the defendants' view -- whether Hightower had
complaints or charges pending against her at the time she was a BPD
officer

--

was

a

material

question.

The

existence

of

such

complaints or charges could impact an individual's suitability to
possess a firearm, depending on the nature of the underlying
complaints.

An accurate answer to the question is important to

allowing the licensing authority to investigate further and make an
informed decision on the licensing application.
Hightower's as-applied challenge to the revocation of her
unrestricted Class A license fails.

We turn now to her attempt to

raise a facial attack
2.

Facial Attack

Hightower's
unconstitutionality

attempt
of

the

to

get

revocation

a

declaration

statute

of

overreaches.

Hightower's facial challenge, much like her as-applied challenge,
focuses

on

the

discretion

conferred

by

the

"suitability"

requirement. The "facial" challenge fails for a number of reasons.
The Supreme Court has itself explained that:
[f]acial challenges are disfavored for several
reasons.
Claims of facial invalidity often
rest on speculation. As a consequence, they
raise the risk of "premature interpretation of
statutes on the basis of factually barebones
records."
Sabri v. United States, 541 U.S.
600, 609 (2004) (internal quotation marks and
brackets omitted). Facial challenges also run
contrary to the fundamental principle of
judicial restraint that courts should neither
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"'anticipate a question of constitutional law
in advance of the necessity of deciding it'"
nor "'formulate a rule of constitutional law
broader than is required by the precise facts
to which it is to be applied.'" Ashwander v.
TVA, 297 U.S. 288, 347 (1936) (Brandeis, J.,
concurring) (quoting Liverpool, New York &
Philadelphia S.S. Co. v. Commissioners of
Emigration, 113 U.S. 33, 39 (1885)). Finally,
facial challenges threaten to short circuit
the democratic process by preventing laws
embodying the will of the people from being
implemented in a manner consistent with the
Constitution. We must keep in mind that "'[a]
ruling of unconstitutionality frustrates the
intent of the elected representatives of the
people.'"
Ayotte v. Planned Parenthood of
Northern New Eng., 546 U.S. 320, 329 (2006)
(quoting Regan v. Time, Inc., 468 U.S. 641,
652 (1984) (plurality opinion)).
Wash. State Grange v. Wash. State Republican Party, 128 S. Ct.
1184, 1191 (2008).
For

Hightower's

facial

attack

to

succeed, Hightower

"would have to establish . . . that the statute lacks any 'plainly
legitimate sweep.'"13

United States v. Stevens, 130 S. Ct. 1577,

13

In United States v. Salerno, 481 U.S. 739 (1987), the Court
stated that a plaintiff can only succeed in a facial challenge by
"establish[ing] that no set of circumstances exists under which the
Act would be valid." Id. at 745. In Washington State Grange v.
Washington State Republican Party, 128 S. Ct. 1184 (2008), the
Court noted that "some Members of the Court have criticized the
Salerno formulation," but that "all agree that a facial challenge
must fail where the statute has a 'plainly legitimate sweep.'" Id.
at 1190 (quoting Washington v. Glucksberg, 521 U.S. 702, 740 n.7
(1997) (Stevens, J., concurring in the judgment)). The Court again
declined to determine which of these formulations was controlling
in United States v. Stevens, 130 S. Ct. 1577, 1587 (2010): "Which
standard applies in a typical case is a matter of dispute that we
need not and do not address, and neither Salerno nor Glucksberg is
a speech case."
We have explained in a case raising a facial challenge
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1587 (2010) (quoting Washington v. Glucksberg, 521 U.S. 702, 740
n.7 (1997) (Stevens, J., concurring in the judgment)).

Hightower

bears the burden of demonstrating that this standard is met, and
she has not and cannot do so.

See id.; see also United States v.

Salerno, 481 U.S. 739, 745 (1987); McCullen v. Coakley, 571 F.3d
167, 174 (1st Cir. 2009); Del Gallo v. Parent, 557 F.3d 58, 68 (1st
Cir. 2009).

under the Second Amendment that the challenge "must fail if we
determine that the statute 'has a plainly legitimate sweep,'"
without addressing whether that formulation or the Salerno
formulation is controlling. United States v. Booker, 644 F.3d 12,
22 (1st Cir. 2011) (quoting Wash. State Grange, 128 S. Ct. at
1190), cert. denied, 132 S. Ct. 1538 (2012). We have applied the
Salerno formulation in a number of non-Second Amendment cases. See
Del Gallo v. Parent, 557 F.3d 58, 68 (1st Cir. 2009); Dutil v.
Murphy, 550 F.3d 154, 160 (1st Cir. 2008). We have also noted that
the "plainly legitimate sweep" language is a "refinement" of the
Salerno formulation. McCullen v. Coakley, 571 F.3d 167, 174 (1st
Cir. 2009). We do not resolve this issue here.
Other circuits have applied the Salerno formulation in
cases raising facial challenges under the Second Amendment. See
GeorgiaCarry.Org, Inc. v. Georgia, No. 11-10387, 2012 WL 2947817,
at *8 (11th Cir. July 20, 2012) (to be published in F.3d); United
States v. Decastro, 682 F.3d 160, 163 (2d Cir. 2012); United States
v. Tooley, No. 10-4936, 2012 WL 698885, at *2 (4th Cir. Mar. 6,
2012) (per curiam); United States v. Bena, 664 F.3d 1180, 1182 (8th
Cir. 2011); United States v. Barton, 633 F.3d 168, 172 (3d Cir.
2011).
Two courts have rejected facial challenges in the Second
Amendment context on the basis that "a person . . . to whom a
statute was constitutionally applied, 'will not be heard to
challenge that statute on the ground that it may conceivably be
applied unconstitutionally to others, in other situations not
before the Court.'"
Masciandaro, 638 F.3d at 474 (quoting
Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973)); see also United
States v. Skoien, 614 F.3d 638, 645 (7th Cir. 2010) (en banc) ("A
person to whom a statute properly applies can't obtain relief based
on arguments that a differently situated person might present."),
cert. denied, 131 S. Ct. 1674 (2011).
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Hightower's

Page: 33

general

Date Filed: 08/31/2012

attack

is

that

the

Entry ID: 5671397

suitability

requirement confers too much discretion and is not sufficently
connected to a sufficient government interest.

That attack does

not establish that there is no "plainly legitimate sweep" of
circumstances where an applicant may properly be denied a license
on the grounds of unsuitability. Our review of Hightower's own asapplied

claim

outlines

one

set

of

circumstances

where

the

suitability requirement is clearly constitutional: where false
information is provided on an application form.

Because Hightower

has not shown that the statute lacks any plainly legitimate sweep,
her facial attack fails.
We also note that weighing against the facial challenge
is the fact that the Supreme Judicial Court has not had the
opportunity
McDonald.

to

interpret

the

statute

in

light

of

Heller

and

The Massachusetts courts have seldom had occasion to

interpret the suitable person requirement.14

14

The statute itself

To be clear, there is no suitable person requirement for
issuance of an FID card; an FID card "shall issue, unless the
applicant" is statutorily disqualified. Mass. Gen. Laws ch. 140,
§ 129B(1). An FID card may only be revoked "upon the occurrence of
any event that would have disqualified the holder from being issued
such card or from having such card renewed or for a violation of a
restriction provided under this section." Id. § 129B(4). Judicial
review is available in the district court, and "[a] justice of such
court, after a hearing, may direct that a card be issued or
reinstated to the petitioner if the justice finds that such
petitioner is not prohibited by law from possessing such card."
Id. § 129B(5).
The statute governing FID cards does provide that "[a]
firearm identification card shall not entitle a holder thereof to
possess . . . a non-large capacity firearm."
Id. § 129B(6).
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does not define what constitutes "a suitable person to be issued"
a firearms license.

Mass. Gen. Laws ch. 140, § 131(d).

In a

series of pre-Heller cases, Massachusetts courts have stated that
"the

licensing

authority

is

given

determining who is a suitable person.

considerable

latitude"

in

Ruggiero v. Police Comm'r,

464 N.E.2d 104, 107 (Mass. App. Ct. 1984); accord Howard v. Chief
of

Police,

794

N.E.2d

604,

606

(Mass.

App.

Ct.

2003)

("The

'suitable person' standard vests in the chief broad discretion or
'considerable latitude.'" (quoting Ruggiero, 464 N.E.2d at 107));
Godfrey v. Chief of Police, 616 N.E.2d 485, 487 (Mass. App. Ct.
1993) (same); MacNutt v. Police Comm'r, 572 N.E.2d 577, 580 (Mass.
App. Ct. 1991) (noting "[t]he broad grant of discretion implicit in
a statute which lacks guidelines").15
Still,

even

before

Heller,

Massachusetts

courts

had

recognized that the discretion vested in the licensing authority is
not unlimited.

See MacNutt, 572 N.E.2d at 580 (noting that the

However, the Supreme Judicial Court has made clear that an FID card
permits possession of a firearm, as defined in § 121, in one's home
or place of business. See Commonwealth v. Gouse, 965 N.E.2d 774,
785 n.14 (Mass. 2012); Commonwealth v. Johnson, 958 N.E.2d 25, 34
n.14 (Mass. 2011); Commonwealth v. Powell, 946 N.E.2d 114, 127-128
(Mass. 2011), cert. denied, 132 S. Ct. 1739 (2012).
15

Earlier cases interpreting the suitable person requirement
have noted that because there is "no right to keep and bear arms"
on the part of private citizens, "there is no 'question of a
property right or deprivation of liberty involved in the statutory
procedures for obtaining a license to carry firearms.'" Howard v.
Chief of Police, 794 N.E.2d 604, 607 (Mass. App. Ct. 2003) (quoting
Chief of Police v. Moyer, 453 N.E.2d 461, 464 (Mass. App. Ct.
1983)).
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grant

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of

discretion

"'may

Page: 35

be

Date Filed: 08/31/2012

limited

properly

by

Entry ID: 5671397

judicial

interpretation' to measures which are not arbitrary or capricious"
(quoting Caswell v. Licensing Comm'n, 444 N.E.2d 922, 928 (Mass.
1983))); Stavis v. Carney, 12 Mass. L. Rep. 3, 2000 WL 1170090, at
*4-5 (Mass. Super. Ct. 2000) ("The standard for issuing licenses to
carry under § 131 must be interpreted in accordance with the intent
of the legislature. . . . 'The goal of firearms legislation in
Massachusetts is to limit access to deadly weapons by irresponsible
persons.' . . . [T]he licensing authority has the authority to
require an otherwise eligible applicant for a license to carry a
firearm to comply with any other requirements that are reasonably
related to the goal of keeping firearms out of the hands of
irresponsible people." (quoting Ruggiero, 464 N.E.2d at 106)).16

16

"Suitable person" requirements are present in other states'
firearms licensing regimes. See Ala. Code § 13A-11-75 (sheriff
"may issue a qualified or unlimited license" to carry a pistol in
a vehicle or concealed on a person if, among other requirements,
the applicant "is a suitable person to be so licensed"); Conn. Gen.
Stat. § 29-28(b) (temporary license "may" be issued to carry a
pistol or revolver upon a finding that the applicant "is a suitable
person to receive such permit"); Haw. Rev. Stat. Ann. § 134-9(b)(2)
(chief of police is to adopt procedures to grant licenses to carry
concealed weapons to individuals who "[a]ppear to be a suitable
person to be so licensed"); N.H. Rev. Stat. Ann. § 159:6(I)
(license to carry a revolver or pistol may only be issued "if it
appears that the applicant . . . is a suitable person to be
licensed"); R.I. Gen. Laws § 11-47-11(a) (license to carry a
concealed pistol or revolver may only be issued "if it appears that
the applicant . . . is a suitable person to be so licensed").
A
district
court
has
rejected
an
argument
that
Connecticut's similar suitable person requirement confers too much
discretion and so is unconstitutional. Kuck v. Danaher, 822 F.
Supp. 2d 109, 129 (D. Conn. 2011). The court found that "it is
impossible for the legislature to conceive in advance each and
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appellate

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court

has

Entry ID: 5671397

construed

the

suitable person requirement in a published opinion post-Heller or
post-McDonald.

The Supreme Judicial Court has never construed it,

save for one limited question.17

While these considerations would

not independently bar Hightower's facial challenge, see City of
Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 770 n.11 (1988)
("[W]e have never held that a federal litigant must await a statecourt construction . . . before bringing the federal suit."), they
do weigh against it, see Wash. State Grange, 128 S. Ct. at 1190-91
(noting that a state had not had an opportunity "to accord the law
a limiting construction to avoid constitutional questions," and
that "[e]xercising judicial restraint in a facial challenge 'frees
the Court . . . from premature interpretations of statutes in areas
where their constitutional application might be cloudy'" (quoting
United States v. Raines, 362 U.S. 17, 22 (1960))).
Hightower attempts to avoid these principles by making a
qualitatively different argument. Hightower argues that her facial
challenge should succeed under particular doctrines that were

every circumstance in which a person could pose an unacceptable
danger to the public if entrusted with a firearm," so a scheme
conferring "circumscribed discretion" on the licensing official was
constitutional. Id.
17

The Supreme Judicial Court in DeLuca v. Chief of Police,
612 N.E.2d 628 (Mass. 1993), held that the licensing authority may
consider unsealed records of a criminal conviction to determine
whether an applicant is a suitable person, even where the applicant
had received a pardon for the crime. Id. at 630.
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developed under the First Amendment: the prior restraint and
overbreadth doctrines.

We disagree and find these First Amendment

doctrines a poor analogy for purposes of facial challenges under
the Second Amendment.
Based on the prior restraint doctrine, Hightower argues
she may challenge the "unbridled discretion" conferred by the
suitable person requirement regardless of the facts that she did
not apply for another license and that the suitability requirement
was constitutionally applied to her.
Under the First Amendment, "when a licensing statute
allegedly vests unbridled discretion in a government official over
whether to permit or deny expressive activity, one who is subject
to the law may challenge it facially without the necessity of first
applying for, and being denied, a license."
U.S. at 755-56.

City of Lakewood, 486

Such "[f]acial attacks on the discretion granted

a decisionmaker are not dependent on the facts surrounding any
particular permit decision" and may be brought regardless of
whether the government official "has exercised his discretion" in
an impermissible fashion.

Forsyth County v. Nationalist Movement,

505 U.S. 123, 133 n.10 (1992).
That rationale is particular to the First Amendment:
"[a]t the root of this long line of precedent is the time-tested
knowledge that in the area of free expression a licensing statute
placing unbridled discretion in the hands of a government official

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or

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agency

constitutes

censorship."

a

Page: 38

prior

Date Filed: 08/31/2012

restraint

and

may

Entry ID: 5671397

result

in

City of Lakewood, 486 U.S. at 757 (emphasis added).

The Court has summarized18 that there are "two major First Amendment
risks associated with unbridled licensing schemes: self-censorship
by speakers in order to avoid being denied a license to speak; and
the difficulty of effectively detecting, reviewing, and correcting
content-based censorship 'as applied' without standards by which to
measure the licensor's action."

Id. at 759.

It is only "when

statutes threaten these risks to a significant degree that courts
must entertain an immediate facial attack on the law."

Id.

The

Court made clear that for a facial challenge to be proper, "[t]he
law must have a close enough nexus to expression, or to conduct

18

More specifically, the Court has identified several
"identifiable risks to free expression that can be effectively
alleviated only through a facial challenge" in the First Amendment
context. City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S.
750, 757 (1988).
"First, the mere existence of the licensor's
unfettered discretion, coupled with the power of prior restraint,
intimidates parties into censoring their own speech, even if the
discretion and power are never actually abused." Id. The Court
explained that "[i]t is not difficult to visualize a newspaper that
relies to a substantial degree on single issue sales feeling
significant pressure to endorse the incumbent mayor in an upcoming
election, or to refrain from criticizing him, in order to receive
a favorable and speedy disposition on its permit application." Id.
at 757-58. The Court also explained that it would be difficult to
distinguish "between a licensor's legitimate denial of a permit and
its illegitimate abuse of censorial power," and that it would be
difficult to tell if the licensor was "suppressing unfavorable
. . . expression." Id. at 758. The Court also noted that the
"difficulty and delay" of as-applied challenges could discourage
litigation, which could result in the hypothetical newspaper
finding it "easier to capitulate to what it perceives to be the
mayor's preferred viewpoint." Id.
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commonly associated with expression, to pose a real and substantial
threat of the identified censorship risks."

Id.

The prior

restraint doctrine is specific to the First Amendment and stems
from the substantive First Amendment restrictions.

See generally

Monaghan, First Amendment "Due Process", 83 Harv. L. Rev. 518, 519
(1970)

("Like

the

substantive

rules

themselves,

insensitive

procedures can 'chill' the right of free expression.").

The prior

restraint doctrine is not a label that may be attached to allow any
facial challenge, whatever the constitutional ground.
Other courts, at the district court level, agree.

See

Woollard v. Sheridan, No. L-10-2068, 2012 WL 695674, at *7-8 (D.
Md. Mar. 2, 2012) (to be published in F. Supp. 2d) (rejecting the
argument that a licensing scheme "amounts to an unconstitutional
prior restraint on the exercise of [plaintiff's] Second Amendment
rights because it vests unbridled discretion in the officials
responsible for issuing permits," in part because "this Court would
be hesitant to import constitutional doctrine wholesale from one
field of law into another for which it was never designed");
Piszczatoski v. Filko, 840 F. Supp. 2d 813, 831-32 (D.N.J. 2012)
(rejecting the argument that a statute is invalid under the Second
Amendment if it vests "uncontrolled discretion," in part because
"[t]he general rule is that facial challenges are disfavored.

It

is only in light of particular censorship related concerns that
'they have been permitted in the First Amendment context where the

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licensing scheme vests unbridled discretion in the decisionmaker
and where the regulation is challenged as overbroad.'" (quoting
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223 (1990)));
Kachalsky, 817 F. Supp. 2d at 267 n.32 (rejecting the argument that
a statute is invalid based on analogy to First Amendment cases
prohibiting

"unbridled

discretion"

in

granting

permits,

and

explaining that while some Second Amendment "cases borrow an
analytical framework, they do not apply substantive First Amendment
rules in the Second Amendment context").

We have found no circuit

cases that have discussed the prior restraint doctrine in the
context of the Second Amendment.
Hightower's second argument -- based on the overbreadth
doctrine -- fails for similar reasons. The overbreadth doctrine is
"a second type of facial challenge," under which a law may be
invalidated

under

the

First

Amendment

"as

overbroad

if

'a

substantial number of its applications are unconstitutional, judged
in relation to the statute's plainly legitimate sweep.'"

Stevens,

130 S. Ct. at 1587 (quoting Wash. State Grange, 128 S. Ct. at 1190
n.6) (internal quotation marks omitted).

An overbreadth challenge

essentially argues that a "statute could not be enforced against [a
plaintiff], because it could not be enforced against someone else."
Sabri v. United States, 541 U.S. 600, 609 (2004).
The Supreme Court has cautioned courts against allowing
overbreadth challenges outside of certain limited contexts:

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Facial challenges of this sort are especially
to be discouraged. Not only do they invite
judgments on fact-poor records, but they
entail a further departure from the norms of
adjudication in federal courts: overbreadth
challenges
call
for
relaxing
familiar
requirements
of
standing,
to
allow
a
determination
that
the
law
would
be
unconstitutionally
applied
to
different
parties and different circumstances from those
at hand. See, e.g., Chicago v. Morales, 527
U.S.
41,
55–56
n.22
(1999)
(plurality
opinion). Accordingly, we have recognized the
validity
of
facial
attacks
alleging
overbreadth (though not necessarily using that
term) in relatively few settings, and,
generally, on the strength of specific reasons
weighty enough to overcome our well-founded
reticence. See, e.g., Broadrick v. Oklahoma,
413 U.S. 601 (1973) (free speech); Aptheker v.
Secretary of State, 378 U.S. 500 (1964) (right
to travel); Stenberg v. Carhart, 530 U.S. 914,
938–946 (2000) (abortion); City of Boerne v.
Flores,
521
U.S.
507,
532–535
(1997)
(legislation under § 5 of the Fourteenth
Amendment). . . .
Outside these limited
settings, and absent a good reason, we do not
extend an invitation to bring overbreadth
claims.
Id. at 609-10.
Hightower argues that Heller was an instance where the
Court "struck down broad prohibitions on Second Amendment rights
that

could

implicitly

be

validly

recognized

Amendment context.

applied
an

to

dangerous

overbreadth

people,"

doctrine

in

the

and

so

Second

We disagree.

Heller involved a challenge to a "total ban" on handgun
possession in the home, brought by an individual whose attempt to
register the handgun was denied based on this ban.

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That was not an overbreadth challenge; Heller's

argument was that the total ban was unconstitutional, including as
applied to his registration attempt.
We reject the overbreadth argument in light of Sabri.19
Our view is joined by every court to have expressly considered the
issue.

See United States v. Decastro, 682 F.3d 160, 169 (2d Cir.

2012) (holding that "[t]here is no overbreadth argument that
Decastro can make in the Second Amendment context," and so, since
his

as-applied

challenge

failed,

the

facial

challenge

must

necessarily fail as well); Masciandaro, 638 F.3d at 474 (declining
to entertain "the novel notion that an overbreadth challenge could
be recognized" outside the First Amendment context, and rejecting
a facial challenge on the basis that the as-applied challenge
failed); Barton, 633 F.3d at 172 n.3 (rejecting facial challenge
under

the

Second

Amendment

because

"we

do

not

recognize

an

'overbreadth' doctrine outside the limited context of the First
Amendment"); United States v. Skoien, 614 F.3d 638, 645 (7th Cir.
2010) (en banc) (noting that the Court has "allowed 'overbreadth'
arguments when dealing with laws that restrict speech," but that
the Salerno formulation governs other contexts), cert. denied, 131

19

Hightower's overbreadth claim would also fail on its own
terms. Courts "generally do not apply the 'strong medicine' of
overbreadth analysis where the parties fail to describe the
instances of arguable overbreadth of the contested law." Wash.
State Grange, 128 S. Ct. at 1190 n.6. Hightower does not outline
instances
where
the
suitability
requirement
would
be
unconstitutional.
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S. Ct. 1674 (2011); United States v. Weaver, No. 2:09-cr-00222,
2012 WL 727488, at *9 (S.D. W. Va. Mar. 6, 2012) ("[A] party
challenging the validity of a law on vagueness or overbreadth
grounds outside the domain of the First Amendment must demonstrate
that the law is unconstitutional in all of its applications.");
Richards v. County of Yolo, 821 F. Supp. 2d 1169, 1176 (E.D. Cal.
2011) (rejecting attempt to import facial-challenge doctrines from
the First Amendment context); Kachalsky, 817 F. Supp. 2d at 272
n.37 (rejecting application of overbreadth doctrine where asapplied Second Amendment claim fails); see also United States v.
Tooley, No. 10-4936, 2012 WL 698885, at *2 (4th Cir. Mar. 6, 2012)
(per curiam) ("Tooley also made a facial challenge to § 922(g)(9)
in his motion to dismiss the indictment and continues the argument
on appeal. However, to prevail on a facial challenge, Tooley 'must
establish that no set of circumstances exists under which the Act
would be valid.

By finding the statute valid as applied to th[is]

plaintiff[], the facial challenge fails as well.'" (alterations in
original) (quoting Urofsky v. Gilmore, 216 F.3d 401, 427 n.1 (4th
Cir. 2000))).
The facial attack fails.
C.

Equal Protection Claim
Hightower advances an equal protection claim in a cursory

fashion, stating that the revocation of her license violated equal
protection for the same reasons as advanced in support of her

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Second Amendment claim. Even were this claim not waived,20 it fails
on its own terms.21
Given that the Second Amendment challenge fails, the
equal protection claim is subject to rational basis review.

See

Nordyke v. King, 681 F.3d 1041, 1043 n.2 (9th Cir. 2012) (en banc)
("As to the [plaintiffs'] equal protection claim, because the
ordinance does not classify shows or events on the basis of a
suspect class, and because we hold that the ordinance does not
violate either the First or Second Amendments, rational basis
scrutiny applies."); Kwong v. Bloomberg, No. 11 Civ. 2356(JGK),
2012 WL 995290, at *12 (S.D.N.Y. Mar. 26, 2012) (to be published in
F. Supp. 2d) ("Rational basis review is the appropriate standard of
scrutiny to apply to Penal Law § 400.00(14) because the law
involves no suspect classification and imposes no burden on the
Second Amendment right to keep and bear arms." (footnote omitted));
cf. Locke v. Davey, 540 U.S. 712, 720 n.3 (2004) ("Because we hold
. . . that the program is not a violation of the Free Exercise

20

See San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, No.
09-2566, 2012 WL 3002559, at *20 (1st Cir. July 24, 2012) (to be
published in F.3d) (en banc).
21

The equal protection claim also fails because Hightower
does not attempt to demonstrate that she was treated differently
from other similarly situated individuals. See Kuperman v. Wrenn,
645 F.3d 69, 77-78 (1st Cir. 2011) ("To establish an equal
protection violation, a plaintiff must introduce sufficient
evidence from which a jury reasonably could conclude that, compared
with others similarly situated, the plaintiff was treated
differently because of an improper consideration . . . .").
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Clause, however, we apply rational-basis scrutiny to [plaintiff's]
equal protection claims."); McGuire v. Reilly, 260 F.3d 36, 50 (1st
Cir. 2001) (where statute satisfies First Amendment review, it
"necessarily passes the rational basis test employed under the
Equal Protection Clause").

For the reasons given above as to why

Hightower's as-applied claim fails, the license revocation survives
rational basis review under the Equal Protection Clause.
D.

Procedural Due Process Claim
Hightower's procedural due process claim is that the BPD

was required to give her a hearing before it revoked her license
and that the availability of postdeprivation relief is inadequate.
We will assume Hightower has a property interest in her
Class A weapon license although she may be eligible for other
licenses.

In United States v. Rehlander, 666 F.3d 45 (1st Cir.

2012), we said:
[T]he right to possess arms (among those not
properly disqualified) is no longer something
that can be withdrawn by government on a
permanent and irrevocable basis without due
process. Ordinarily, to work a permanent or
prolonged loss of a constitutional liberty or
property interest, an adjudicatory hearing,
including a right to offer and test evidence
if facts are in dispute, is required.
Id. at 48.
concealed

Rehlander, however, did not concern licenses to carry
weapons,

much

less

large

capacity

weapons,

disqualification from possession of firearms at all.

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The parties dispute whether the deprivation here is
either permanent or irrevocable.

After all, as defendants argue,

if all Hightower wants is to carry a small weapon (the five-round
revolver which she had been carrying), she may apply for a Class B
license.
We take the case as it comes to us, as a ripe case on a
record of actual deprivation from the revocation of her Class A
license.

We also assume, in Hightower's favor, that she does have

some Second Amendment interests arising from the revocation of her
license.

We avoid these underlying questions and assume the

requirements of due process apply.
Hightower's primary argument as to why due process was
not provided to her is that she was entitled to a predeprivation
hearing before her license was revoked and before her gun was
required to be turned over to the licensing authority.

In support

of this point, she also asserts that the postdeprivation process
available was inadequate.

We reject her claim.

1.

Predeprivation Process

Under

the

Massachusetts

licensing

scheme,

before

a

license may be revoked, the licensing authority must determine that
there was an "occurrence of any event that would have disqualified
the holder from being issued such license or from having such
license renewed," or that "it appears that the holder is no longer
a suitable person to possess such license."

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The statute provides that "[a]ny revocation or

suspension of a license shall be in writing and shall state the
reasons therefor." Id. It is undisputed that this requirement was
complied with here.
We reject Hightower's claim that due process required
that a hearing take place before her license could be revoked.

The

predeprivation process provided here was constitutionally adequate,
when considered in conjunction with the available postdeprivation
process.
that

The Supreme Court "has recognized, on many occasions,

where

a

State

must

act

quickly,

or

where

it

would

be

impractical to provide predeprivation process, postdeprivation
process satisfies the requirements of the Due Process Clause."
Gilbert v. Homar, 520 U.S. 924, 930 (1997).

We have explained that

"[t]he variety of . . . circumstances within which the exception
[to the general requirement of predeprivation process] has been
recognized demonstrates that the exception is a flexible one." San
Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, No. 09-2566, 2012 WL
3002559, at *17 (1st Cir. July 24, 2012) (to be published in F.3d)
(en banc) (omission and second alteration in original) (quoting
Elena v. Municipality of San Juan, 677 F.3d 1, 6 (1st Cir. 2012))
(internal quotation marks omitted).
The Supreme Court has explained that "[p]rotection of the
health and

safety

of

the

public

is

a

paramount

governmental

interest which justifies summary administrative action.

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deprivation of property to protect the public health and safety is
'[one] of the oldest examples' of permissible summary action."
Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 300
(1981) (second alteration in original) (quoting Ewing v. Mytinger
& Casselberry, Inc., 339 U.S. 594, 599 (1950)); see also San
Gerónimo, 2012 WL 3002559, at *17.

The Court has "traditionally

accorded the states great leeway in adopting summary procedures to
protect public health and safety."
17

(1979)

(upholding

statutory

Mackey v. Montrym, 443 U.S. 1,
scheme

providing

for

summary

suspension of a driver's license if a driver suspected of being
intoxicated

refuses

to

take

a

breathalyzer

test).

In

such

circumstances, full predeprivation process is not required so long
as "prompt postdeprivation review is available for correction of
administrative error."22

Id. at 13.

The revocation of a firearms license, particularly a
license to carry a concealed, large capacity weapon, without a
predeprivation hearing is justified by concerns as to public health
and safety.23

See Kuck v. Danaher, 600 F.3d 159, 166 (2d Cir. 2010)

("Connecticut clearly has a strong and compelling interest in

22

We note that the federal Administrative Procedure Act
provides for notice and an opportunity to demonstrate compliance
with licensing requirements before "revocation . . . of a license,"
"[e]xcept in cases of willfulness or those in which public health,
interest, or safety requires otherwise." 5 U.S.C. § 558(c).
23

Between January 1, 2005, and March 1, 2011, there were
1,876 shootings in the City of Boston, 301 of which were fatal.
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ensuring that firearm permits are not issued to those 'lacking the
essential character or temperament necessary to be entrusted with
a weapon.'" (quoting Dwyer v. Farrell, 475 A.2d 257, 260 (Conn.
1984))); Spinelli v. City of New York, 579 F.3d 160, 170-71 (2d
Cir. 2009) (holding that predeprivation process was not required to
suspend gun dealer's license where there were security lapses at
the gun store, given the interest in public safety); Hain v. DeLeo,
No. 1:08-CV-2136, 2010 WL 4514315, at *8 (M.D. Pa. Nov. 2, 2010)
(rejecting the claim that revocation of a firearms license requires
a predeprivation hearing, in part because "the state interest in
protecting the public safety through the enforcement of licensure
requirements is compelling. . . . [A predeprivation hearing] would
significantly

burden

the

state

interest

in

quickly

removing

licenses from individuals who prove to be dangerous after their
license has been issued"); Thomson v. Bd. of Firearms Permit
Exam'rs, No. NNH950369628, 1996 WL 24701, at *4 (Conn. Super. Ct.
Jan. 4, 1996) (holding that no predeprivation hearing need be held
to revoke a pistol permit, in part because, given "the nature of
weapons and their potential for inflicting harm or causing death,
recognition of a right to continue to carry a weapon between the
time that evidence of unsuitability arises and completion of notice
and a hearing would impose a great risk to the public whose
interests the government must protect"); Rabbitt v. Leonard, 413
A.2d 489, 491, 493 (Conn. Super. Ct. 1979) (holding that, while the

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Connecticut constitution provides a right to bear arms "which must
be protected by procedural due process," predeprivation process for
revoking a pistol permit is not required, in part because "[t]he
summary

nature of a pistol permit revocation is vital to protect

the public safety.

A permittee who is, in fact, unfit to carry a

pistol could conceivably do a great deal of harm if given advance
notice that his permit might be revoked; it could even result in
the loss of human life.

The risk is too great.").

To the extent that Hightower separately argues that she
was entitled to a hearing before surrendering her firearm itself,
the argument fails because Hightower could have retained her
firearm had she appealed the revocation of her license.

The

revocation statute provides that "[u]pon revocation or suspension,
the licensing authority shall take possession of such license and
the person whose license is so revoked or suspended shall take all
actions required under the provisions of section 129D.

No appeal

or post-judgment motion shall operate to stay such revocation or
suspension."

Mass. Gen. Laws ch. 140, § 131(f).

The license

revocation letter Hightower received stated that Hightower "shall,
in accordance with M.G.L. c. 140, § 129D, without delay, deliver or
surrender to the licensing authority where you reside your licenses
to carry, and all firearms."

Section 129D, in turn, provides that

"[u]pon revocation . . . of any firearms license if [a] firearms
identification card is not then in force . . . the person whose

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application was so revoked . . . shall without delay deliver or
surrender,

to

the

licensing

authority

where

he

resides,

all

firearms . . . which he then possesses unless an appeal is
pending." Id. § 129D (emphasis added). The Supreme Judicial Court
has noted that under § 129D, "the obligation to turn over the
firearms is suspended during the pendency of such an appeal."
Pasqualone v. Gately, 662 N.E.2d 1034, 1038 (Mass. 1996).24
2.

Postdeprivation Process

As to postdeprivation process, the statute provides that
if a license is suspended or revoked, the aggrieved individual may
"file a petition to obtain judicial review in the district court"
within ninety days after receiving notice of the revocation or
suspension.

Mass. Gen. Laws ch. 140, § 131(f).

The statute

requires the district court to hold "a hearing" before making a
determination

as

to

the

licensing

decision,

id.,

and

the

Massachusetts courts, before Heller, interpreted the statute as
requiring "an evidentiary hearing."
see also Moyer, 453 N.E.2d at 464.

Godfrey, 616 N.E.2d at 487;

After such a hearing, a justice

of the reviewing court "may direct that a license be issued or
reinstated to the petitioner if such justice finds that there was
no reasonable ground for denying, suspending or revoking such

24

Section 129D also enables the owner of the firearm, within
a year after surrender, to direct the custodian of the firearm to
transfer it to "any . . . person legally permitted to purchase or
take possession of such firearms."
Mass. Gen. Laws ch. 140,
§ 129D.
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license and the that petitioner is not prohibited by law from
possessing same."

Mass. Gen. Laws ch. 140, § 131(f).

This

provision has been interpreted, in pre-Heller cases, as placing the
burden of proof on the applicant to show that the licensing
authority's decision "was arbitrary, capricious, or an abuse of
discretion."

Howard, 794 N.E.2d at 606 (quoting Moyer, 453 N.E.2d

at 464) (internal quotation mark omitted); see also Godfrey, 616
N.E.2d at 488 (stating same standard); Ruggiero, 464 N.E.2d at 107
(same).

Further judicial review may be had "in an action in the

nature of certiorari under" Mass. Gen. Laws ch. 249, § 4.

Levine,

750 N.E.2d at 1000.
Hightower's only argument as to why these postdeprivation
procedures are inadequate is that the standard of review places the
burden of proof on the individual challenging the revocation.
Hightower failed to develop the argument or cite to any pertinent
authority in her opening brief, so this claim is waived.

See

United States v. Berk, 652 F.3d 132, 137 n.5 (1st Cir. 2011)
(issues not developed in the opening brief are waived), cert.
denied, 132 S. Ct. 1650 (2012).
We

also

reject

the

notion

that

the

arbitrary

and

capricious standard of review, in conjunction with an evidentiary
hearing where the aggrieved individual may introduce evidence to
demonstrate that the licensing decision was erroneous, renders the
postdeprivation judicial process inadequate.

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capricious standard of review is widely accepted in the context of
reviewing agency action.

See, e.g., 5 U.S.C. § 706(2)(A).

And,

unlike typical administrative review provisions, the Massachusetts
statute allows the aggrieved individual to introduce new evidence
before

the

reviewing

determination.
respect, the

court

as

to

the

licensing

authority's

See Stavis, 2000 WL 1170090, at *6 ("In one
nature

of

the

judicial

review

available

in

the

district court under G.L. c. 140, § 131 is clearly broader than the
review available under [Massachusetts's general administrative
review provision] because the district court is authorized to
re-examine the facts found by the licensing authority and find
facts.").
In

addition,

the

Supreme

Court

has

explained

that

"[o]utside the criminal law area, where special concerns attend,
the locus of the burden of persuasion is normally not an issue of
federal constitutional moment."

Schaffer ex rel. Schaffer v.

Weast, 546 U.S. 49, 58 (2005) (alteration in original) (quoting
Lavine v. Milne, 424 U.S. 577, 585 (1976)) (internal quotation
marks

omitted).

The

Massachusetts

legislature

could

have

reasonably concluded that, on review in the district court, the
burden should be placed on the aggrieved individual, who would be
in the best position to present relevant evidence as to the
suitability requirement.

We reject Hightower's claim that the

revocation scheme violates procedural due process.

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III.
We affirm the district court's entry of judgment against
Hightower.

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