Morin v. Leahy, et al

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; William J. Kayatta , Jr., Appellate Judge and David J. Barron, Appellate Judge. Published. [16-1904]

Case: 16-1904

Document: 00117172439

Page: 1

Date Filed: 06/29/2017

Entry ID: 6102815

United States Court of Appeals
For the First Circuit
No. 16-1904
ALFRED MORIN,
Plaintiff, Appellant,
v.
MARK K. LEAHY; COMMONWEALTH OF MASSACHUSETTS,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]

Before
Torruella, Kayatta, and Barron,
Circuit Judges.

J. Steven Foley, for appellant.
Janelle M. Austin, with whom Brian W. Riley and KP Law, P.C.
were on brief, for appellee Leahy.
Julia E. Kobick, Assistant Attorney General, Government
Bureau, with whom Maura Healey, Attorney General of Massachusetts,
was on brief, for appellee Commonwealth of Massachusetts.

June 29, 2017

Case: 16-1904

Document: 00117172439

Page: 2

Date Filed: 06/29/2017

TORRUELLA, Circuit Judge.

Entry ID: 6102815

Dr. Alfred Morin ("Morin")

applied to renew his Class A License to Carry ("Class A License").1
Mark Leahy ("Leahy"), Chief of Police of the Town of Northborough,
denied Morin's application, because Morin's two prior convictions
for firearms-related misdemeanors barred him from obtaining a
Class A License under Massachusetts law.

Morin brings an as-

applied constitutional challenge, arguing that Massachusetts law
infringes

on

his

Second

Amendment

right

as

a

"law-abiding,

responsible citizen[] to use arms in defense of hearth and home."
District of Columbia v. Heller, 554 U.S. 570, 635 (2008).2

Morin

also brings a claim for declaratory and injunctive relief under 42
U.S.C. § 1983 ("§ 1983") against Leahy, seeking issuance of a Class
A

License.

Morin's

constitutional

argument

fails,

however,

1

The Class A License is the least restrictive license in
Massachusetts and entitles the holder to such rights as the ability
to purchase, possess, and carry firearms, including large capacity
firearms. The Class A License also permits the holder to carry a
concealed firearm in public. Mass. Gen. Laws ch. 140, § 131(a);
Chardin v. Police Comm'r of Bos., 989 N.E.2d 392, 394–95 (Mass.
2013).
2

Because this is the only Second Amendment right Morin invokes,
we need not decide whether there are other rights under the Second
Amendment that could make the denial of a Class A License a
constitutional violation. For instance, nothing in this opinion
is meant to suggest that Morin could, or that he could not, have
a constitutional right to carry a firearm outside his home.
-2-

Case: 16-1904

Document: 00117172439

Page: 3

Date Filed: 06/29/2017

Entry ID: 6102815

because a Firearm Identification Card ("FID Card"),3 in conjunction
with a permit to purchase, allows one to acquire a firearm4 and to
possess it in one's home, and thus to exercise the Second Amendment
rights at issue in the present case.

The denial of a Class A

License therefore does not implicate Morin's Second Amendment
right to possess a firearm in his home for self-defense, which is
the only Second Amendment right he has asserted in this litigation.
Because Morin has failed to show a constitutional violation, his
§ 1983 claim fails as well.
Morin

also

challenges

the

constitutionality

of

the

Massachusetts statutory scheme that governs the issuance of FID
Cards, because, as the parties agree, due to his prior convictions
he will also be denied a FID Card if he were to apply for one.5
However, Morin lacks standing to bring such a challenge, because

3

The FID Card is separate and distinct from the Massachusetts
licensing to carry scheme, and includes, among others, the right
of the holder to possess a non-large capacity firearm within his
or her house or place of business, but does not include the right
to carry a firearm in any other place. Mass. Gen. Laws ch. 140,
§ 129B; Chardin, 989 N.E.2d at 394 n.5.

4

In this opinion, we use Massachusetts' definition of "firearm,"
which is "a pistol, revolver or other weapon of any description,
loaded or unloaded, from which a shot or bullet can be discharged
and of which the length of the barrel or barrels is less than 16
inches or 18 inches in the case of a shotgun as originally
manufactured." Mass. Gen. Laws ch. 140, § 121.
5

We express no opinion as to whether the parties are correct.
-3-

Case: 16-1904

Document: 00117172439

Page: 4

Date Filed: 06/29/2017

Entry ID: 6102815

he has not applied for a FID Card, and has thus not been denied
one.

Therefore, we affirm the decision of the district court.
I.

Background6

In 2004, Morin drove from Massachusetts to Washington,
D.C., where he attempted to visit the Smithsonian National Museum
of

Natural

History.

Upon

seeing

a

sign

outside

the

museum

indicating that firearms were not allowed into the museum, Morin
approached a security guard to check his gun for which he had a
Massachusetts Class A License.

The security guard called the

police who then arrested Morin.

Morin later pled guilty to

attempted carrying of a firearm without a license, D.C. Code § 22103 (2004), and possession of an unregistered firearm, D.C. Code
§ 6-2376 (2004).7

At the time, both violations were misdemeanor

offenses under D.C. law.

Morin otherwise has no criminal record.

In 2008, Morin sought to renew his Class A License with
the Northborough Police Department.

Morin incorrectly answered in

the negative a question regarding past convictions for firearm

6

Because this is an appeal from a grant of summary judgment in
favor of the defendants, we present the facts in the light most
favorable to Morin. Walsh v. TelTech Sys., Inc., 821 F.3d 155,
157–58 (1st Cir. 2016).
7

The provisions of the D.C. Code have been renumbered. D.C. Code
§ 22-103 (2004) is now codified at D.C. Code § 22-1803. D.C. Code
§ 6-2376 (2004) is now codified at D.C. Code §§ 7-2502.01, 72507.06(a).
-4-

Case: 16-1904

Document: 00117172439

Page: 5

Date Filed: 06/29/2017

Entry ID: 6102815

violations. The Northborough Police Department, through a standard
fingerprint check, learned of Morin's convictions in D.C.

Leahy

denied

prior

Morin's

application

because,

due

to

Morin's

convictions, Leahy was statutorily barred from issuing a Class A
License to Morin.

Mass. Gen. Laws ch. 140, § 131(d)(ii)(D), (k).

Morin filed a new application for a Class A License in 2015, this
time

correctly

violations.

answering

the

question

regarding

past

firearm

Leahy again denied Morin's application due to Morin's

prior convictions.
Morin filed suit against Leahy on March 25, 2015, arguing
that Leahy's denial of Morin's application for a Class A License
violated his constitutionally protected right to possess a firearm
for self-defense within the home, and seeking declaratory and
injunctive relief under § 1983.

Morin argued that the statutory

subsection requiring the denial of his applications, Mass. Gen.
Laws ch. 140, § 131(d)(ii)(D), violated the Second Amendment of
the United States Constitution both facially and as applied to
him.

On August 12, 2015, the Commonwealth of Massachusetts

intervened in the case.

The parties filed cross-motions for

summary judgment.
On

May

18,

2016,

the

district

court

Commonwealth's cross-motion for summary judgment.
court

denied

Morin's

as-applied
-5-

challenge

because

granted

the

The district
Morin

only

Case: 16-1904

Document: 00117172439

Page: 6

Date Filed: 06/29/2017

Entry ID: 6102815

applied for the least restrictive Class A License and did not apply
for a more restrictive license, such as a Class B License to Carry
("Class B License") or a FID Card.8

These alternatives would allow

one to have a gun within one's home in accordance with the Second
Amendment right of "law-abiding, responsible citizens" to defend
"hearth and home."
also

concluded

maintained,

Heller, 554 U.S. at 635.

that

because

"Morin's
his

own

facial
situation

The district court

challenge
presents

cannot

be

a

of

set

circumstances in which the application of section 131(d)(ii)(D) is
constitutional."
After an unsuccessful motion to alter or amend the
district court's judgment, Morin filed a timely notice of appeal,
appealing only his as-applied challenge.

8

Class B Licenses include the ability to purchase, possess, and
carry a firearm, but the license does not extend to large capacity
firearms or allow a holder to carry a concealed firearm in public.
Mass. Gen. Laws ch. 140, § 131(b); Chardin, 989 N.E.2d at 395.
However, Massachusetts amended Mass. Gen. Laws ch. 140, § 131 such
that licensing authorities, including state police, can no longer
issue, renew, or accept applications for a Class B license. 2014
Mass. Acts ch. 284 § 101). The parties do not dispute that a Class
B license was not available to Morin at the time of his application
in February 2015. The district court therefore erred by suggesting
Morin could apply for a Class B License in order to possess a
firearm in his home. However, we may affirm on the ground that
Morin can still apply for a FID card. See Tutor Perini Corp. v.
Banc of Am. Sec. LLC, 842 F.3d 71, 84 (1st Cir. 2016) ("[W]e may
affirm [a] summary-judgment holding on any grounds supported by
the record, even if not relied on by the district judge.").
-6-

Case: 16-1904

Document: 00117172439

Page: 7

II.
"We

review

the

Date Filed: 06/29/2017

Entry ID: 6102815

Discussion

district

court's

grant

of

summary

judgment on cross-motions for summary judgment de novo."

Sch.

Union No. 37 v. United Nat'l Ins. Co., 617 F.3d 554, 558 (1st Cir.
2010).
Morin argues that his statutory disqualification for a
Class A License and the Massachusetts firearm licensing scheme, as
applied to him, violates his Second Amendment right to own a
firearm in the home for purposes of self-defense.

See Heller, 554

U.S. at 635 ("[The Second Amendment] surely elevates above all
other interests the right of law-abiding, responsible citizens to
use arms in defense of hearth and home.").

However, a more

restrictive license, the FID Card, would permit a license holder
to have a firearm in the home for purposes of self-defense.
Chardin, 989 N.E.2d at 394 n.5.

Thus, the rejection of Morin's

application for a Class A License does not violate the Second
Amendment right he has asserted.
While Morin believes that only a Class A License will
allow him to possess a firearm in his home, the Massachusetts
Supreme Judicial Court, and this Court interpreting Massachusetts
law, have held to the contrary on numerous occasions.

See Powell

v. Tompkins, 783 F.3d 332, 337 (1st Cir. 2015) ("An FID card
permits a qualified person to keep a firearm and ammunition in his
-7-

Case: 16-1904

home

Document: 00117172439

or

place

of

business

Page: 8

but

Date Filed: 06/29/2017

does

individual to carry them in public.");

not

by

itself

Entry ID: 6102815

allow

an

Commonwealth v. Gouse, 965

N.E.2d 774, 799 n.14 (Mass. 2012) ("Under our statutory scheme, an
FID card . . . allows the holder to own, transfer, or possess a
firearm in his residence or place of business.");

Commonwealth v.

Powell, 946 N.E.2d 114, 128 (Mass. 2011) ("An FID card allows the
holder to own or possess a firearm within the holder's residence
or place of business, but not to carry it to or in any other
place.").
Morin is correct that a FID Card alone is insufficient
to purchase and transport a firearm to one's home.

However,

Massachusetts allows individuals with a FID Card to apply to a
licensing authority for a permit to purchase, rent, or lease a
firearm for a proper purpose.

Mass. Gen. Laws ch. 140, § 131A.

Although a person who purchases a firearm using a FID Card and a
permit to purchase may not herself transport the firearm to her
home, the law specifically provides that she may have it delivered
to her home.

Mass. Gen. Laws ch. 140, § 123 ("[D]elivery of a

firearm by a licensee to a person possessing a valid permit to
purchase said firearm issued under the provisions of section [131A]
and a valid [FID] card issued under section [129B] may be made by
the licensee to the purchaser's residence or place of business.");
Commonwealth v. Seay, 383 N.E.2d 828, 831–32 (Mass. 1978).
-8-

Case: 16-1904

Document: 00117172439

Page: 9

Date Filed: 06/29/2017

Entry ID: 6102815

Therefore, with both a FID Card and a permit to purchase,
one could purchase a firearm, have it delivered to one's home, and
possess it there -- without the need for a Class A License.9

Thus,

the denial of an application for a Class A License does not
infringe upon the Second Amendment right to possess a firearm
within one's home, the only constitutional right Morin has raised.
See Hightower v. City of Boston, 693 F.3d 61, 72 (1st Cir. 2012).
See also Heller, 554 U.S. at 635.

Because he has failed to show

a violation of his constitutional right to possess a firearm within
his home, his § 1983 claim against Leahy also fails.

See Young v.

City of Providence, 404 F.3d 4, 25-26 (1st Cir. 2005) ("Assessing
liability [pursuant to § 1983] against the City requires . . . that
plaintiff's

harm

was

caused

by

a

constitutional

violation

. . . .").10

9

Morin's argument that Massachusetts has not granted a permit to
purchase since 2006 is irrelevant to the analysis since he has
never applied for one, thus has never been denied one, and
consequently lacks standing to challenge any such denial.
10

Leahy also argues that a § 1983 claim against him for denial
of the Class A License fails as a matter of law, because he -- a
municipal officer -- had no discretion to grant the License, and
was enforcing a state, rather than a municipal policy. See, e.g.,
Bd. of the Cty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997) ("[I]t
is not enough for a § 1983 plaintiff merely to identify conduct
properly attributable to the municipality. The plaintiff must also
demonstrate that, through its deliberate conduct, the municipality
was the 'moving force' behind the injury alleged."). We do not
-9-

Case: 16-1904

Document: 00117172439

Page: 10

Date Filed: 06/29/2017

Entry ID: 6102815

Morin has also brought an as-applied constitutional
challenge

to

Mass.

Gen.

Laws

ch.

140,

§§

129B(1)(i)(D)

129B(1)(ii)(D), which control the issuance of FID Cards.

and
All

parties agree that if Morin were to apply for a FID Card the
licensing authority would be precluded from issuing him a FID Card
because of Morin's past convictions.

However, without having

applied for, or having been denied, a FID Card, Morin can show no
injury to sustain his claim, and thus has no standing to challenge
the constitutionality of the statutory scheme that governs the
issuance of FID Cards.

See Hightower, 693 F.3d at 70-71 ("[The

plaintiff] 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. . . . For the same reason, she lacks
standing as to an FID card . . . .").
Since the denial of Morin's Class A License application
does not infringe on the Second Amendment rights he asserts in
this litigation and he lacks standing on his FID Card challenge,
it

is

unnecessary

for

this

Court

to

reach

the

other

issues

presented here, such as the constitutionality of the prohibition
against granting a Class A License or FID Card to individuals who

need to reach this argument, however, because Morin has failed to
show a constitutional violation.
-10-

Case: 16-1904

Document: 00117172439

Page: 11

Date Filed: 06/29/2017

Entry ID: 6102815

have committed nonviolent misdemeanors or the appropriate level of
constitutional scrutiny for such an inquiry.
III.

Conclusion

For the foregoing reasons, the judgment of the district
court is affirmed.
Affirmed.

-11-