Davis et al v. Grimes et al
Filing
71
Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered denying the Motions ( 30 and 36 ) for Summary Judgment. Supplemental memoranda and further motions or requests for relief deadline is April 25, 2014. (See attached memorandum and order for further details.) (Cicolini, Pietro)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
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CHRISTOPHER DAVIS, WILLIAM P.
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THOMPSON, WILSON LOBAO,
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ROBERT CAPONE, and
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COMMONWEALTH SECOND
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AMENDMENT, INC.,
)
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Plaintiffs,
)
)
v.
)
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RICHARD C. GRIMES, in his official
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capacity as Chief of the Weymouth Police
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Department, and ROBERT L.
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CHAMPAGNE, in his official capacity as
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Chief of the Peabody Police Department,
)
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Defendants.
)
)
_______________________________________)
Civil No.
13-10246-FDS
MEMORANDUM AND ORDER ON
MOTIONS FOR SUMMARY JUDGMENT
SAYLOR, J.
This is a federal constitutional challenge to the policies of two Massachusetts towns
concerning firearms licenses. Plaintiffs Christopher Davis, William Thompson, Wilson Lobao,
Ropert Capone, and Commonwealth Second Amendment, Inc., have brought suit under 42
U.S.C. § 1983, contending that certain policies of the Weymouth and Peabody Police
Departments that restrict their ability to obtain gun licenses violate the Second and Fourteenth
Amendments. In particular, plaintiffs contend that defendants unconstitutionally restrict the
firearm licenses of first-time applicants to target and hunting purposes and exercise their
licensing authority according to arbitrary considerations. The named defendants are Richard C.
Grimes and Robert L. Champagne, the police chiefs of the Weymouth and Peabody Police
Departments, respectively.
Both sets of parties have cross-moved for summary judgment. Plaintiffs do not challenge
the constitutionality of the Massachusetts statutory framework regulating firearms, but rather the
Weymouth and Peabody police department policies adopted under that framework. In substance,
plaintiffs contend that (1) under District of Columbia v. Heller, 554 U.S. 570 (2008), and
McDonald v. Chicago, 130 S. Ct. 3020 (2010), individual self-defense is the central component
of the Second Amendment right to bear arms; (2) defendants here placed “target & hunting”
restrictions on their firearms licenses that “virtually preclude” them from bearing arms outside
the home for self-defense; and (3) those restrictions violate their constitutional rights under the
Second Amendment. Defendants, in turn, defend their policies as constitutionally permissible,
and argue that plaintiffs are seeking nothing less than the right “to carry a loaded, concealed gun
wherever they want, whenever they want.” (Def. Mem. in Supp. at 2.).
Both sides devote substantial attention to broad constitutional issues, offering competing
visions of the scope and impact of the Second Amendment on the licensing issues in this case.
In doing so, both sides have ignored a more pedestrian, yet potentially critical, question:
whether the police department policies at issue violate the Massachusetts statute, Mass. Gen.
Laws ch. 140, § 131(d), under which those policies were promulgated.
Specifically, Massachusetts law provides, in substance, that an applicant for a firearms
license must show both that he is a “suitable person” and that he has a “reason” for carrying a
firearm. The relevant statute, chapter 140, § 131(d), provides that one such “reason” that an
applicant may establish is that “the applicant has good reason to fear injury to his person or
2
property.” Here, however, the police chiefs of Weymouth and Peabody have adopted policies
that effectively prohibit (with certain exceptions not relevant here) all first-time applicants from
ever making such a showing, either at the outset or (if a restricted license was granted) for the
next six years. The plaintiffs here were apparently rejected for unrestricted licenses solely
because they were first-time applicants, not because they failed to show the requisite degree of
fear of injury; put simply, it did not matter whether they made such a showing or not.
The policies at issue, at least at first blush, appear to violate Massachusetts law. It
therefore may not be necessary to reach the Second Amendment issues; under principles of
constitutional avoidance and judicial restraint, this Court should avoid reaching federal
constitutional grounds where cases can be disposed of on statutory grounds. See, e.g., Sony
BMG Music Entm’t v. Tenenbaum, 660 F.3d 487, 511 (1st Cir. 2011). Furthermore, because
Massachusetts law may not be clear, the case may be appropriate for Pullman abstention or
certification of a question of law to the Massachusetts Supreme Judicial Court. See Railroad
Comm’n v. Pullman Co., 312 U.S. 496 (1941); Massachusetts SJC Rule 1:03. However,
because the parties have not briefed those questions, and because some additional fact-finding
may be required, the Court will deny the cross-motions for summary judgment without prejudice
and direct the parties to file supplemental pleadings addressing the issues raised in this
memorandum.
I.
Background
The facts set forth below are undisputed, except as noted.
A.
Massachusetts Regulatory Framework
In Massachusetts, it is a felony to carry a firearm in public without a valid license. Mass.
3
Gen. Laws ch. 269, § 10.1 Licenses to carry firearms may be requested by application pursuant
to Mass. Gen. Laws ch. 140, § 131(d).2 Applications are made to a “licensing authority,” which
is defined as either the applicant’s local police chief or the State Police colonel. Id. §§ 121,
131(d). The statute specifies the circumstances under which the licensing authority may grant
licenses, when licenses may be revoked, and what restrictions licenses may contain. Id. §§
131(a)-(b). Licensing decisions are subject to judicial review in the state District Court having
jurisdiction in the locality wherein the person applied for the license. Id. § 131(f).
Two types of licenses are available under the statute: Class A and Class B. Id. §§
131(a)-(b). Class A licenses allow an individual to possess a large-capacity firearm and carry a
concealed firearm in public. Id. § 131(a).3 Class B licenses prohibit the concealed carrying of a
firearm and the carrying of a large-capacity firearm. Id. § 131(b). Licenses expire after six years
and can be renewed at expiration. Id. § 131(I).
In processing a license application, the licensing authority is required to conduct a
two-step inquiry to determine the applicant’s eligibility. See Ruggiero v. Police Comm’r of
Boston, 18 Mass. App. Ct. 256, 259 (1984). At the first step of the inquiry, the licensing
authority examines whether the applicant is a “suitable person to be issued such a license.”
1
For purposes of the statute, “firearm” is defined as “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.
2
Massachusetts adopted its licensing requirement “as a first-line measure in the regulatory scheme” as a
result of the “realization that prevention of harm is often preferable to meting out punishment after an unfortunate
event.” Ruggiero, 18 Mass. App. Ct. at 258-59. The requirement “was intended ‘to have local licensing authorities
employ every conceivable means of preventing deadly weapons in the form of firearms [from] coming into the hands
of evildoers.’” Id. at 59 (quoting Rep. A.G., Pub. Doc. No. 12, at 233-34 (1964)).
3
A large-capacity firearm is defined as one that can hold more than ten rounds of ammunition or more than
five shotgun shells. Mass. Gen. Laws ch. 140, § 121.
4
Mass. Gen. Laws ch. 140, § 131(d). Several specific groups of applicants (for example, minors
and the mentally ill) are categorically barred from firearm possession. Mass. Gen. Laws ch. 140,
§ 131(d)(I)-(vii).4
At the second step of the application inquiry, the licensing authority is required to
consider whether the applicant has a “reason” for carrying a firearm. Mass. Gen. Laws ch. 140,
§ 131(d); see Ruggiero, 18 Mass. App. Ct. at 259. The statute does not give an exhaustive list of
reasons. Instead, it merely provides that the licensing authority “may issue” the license if “it
appears . . . that the applicant has good reason to fear injury to his person or property, or . . . any
other reason, including the carrying of firearms for use in sport or target practice only.” Mass.
Gen. Laws ch. 140, § 131(d).5
When an applicant seeks a license solely for self-protection, the licensing authority may
require that the applicant distinguish his or her own needs from those of the general public.
Ruggiero, 18 Mass App. Ct. at 261 (finding, under earlier version of the statute, that applicant’s
stated purposes to avoid “spend[ing] his entire life behind locked doors [and to prevent
becoming] a potential victim of crimes” did not require issuance of a license for self-defense in
public).
Even when an applicant otherwise meets the requirements for license approval, the
licensing authority may issue the license “subject to such restrictions relative to the possession,
use or carrying of firearms as the licensing authority deems proper.” Mass. Gen. Laws ch. 140,
4
Plaintiffs here do not challenge the “suitable person” requirement of the statute. (Am. Compl. ¶ 25).
5
The court in Ruggiero summarized an earlier version of the statute as follows: “Without excluding other
valid reasons for being licensed, the statute identifies two purposes which will furnish adequate cause to issue a
license – ‘good reason to fear injury to person or property’ and an intent to carry a firearm for use in target practice.”
18 Mass. App. Ct. at 259.
5
§ 131(a). Pursuant to that provision, the licensing authority may restrict a license to those uses
for which the authority determines there to be an appropriate reason, even if it is not the reason
proposed by the applicant. See Ruggiero, 18 Mass. App. Ct. at 257, 260 (upholding issuance of
license for target and sport use where applicant requested license for self-defense purposes).
Upon judicial review, the licensing authority’s determination as to whether the applicant
is a “suitable person” or has an appropriate “reason” may be reversed only if the authority had
“no reasonable ground for denying . . . such license” and the applicant was not prohibited by law
from holding a license. Mass. Gen. Laws ch. 140, § 131(f). Such a finding is warranted only
upon a showing that the refusal to grant a license was “arbitrary, capricious, or an abuse of
discretion.” Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543, 546 (1983);
Ruggiero, 18 Mass. App. Ct. at 259 (citing Moyer, 16 Mass. App. Ct. at 546); Godfrey v. Chief
of Police of Wellesley, 35 Mass. App. Ct. 42, 46 (1993).
B.
Target and Hunting Restrictions on Firearms Licenses
In Massachusetts, firearms licenses are recorded in the Massachusetts Instant Record
Check System (“MIRCS”). (Joint SMF, ¶ 7). Any restrictions imposed on a license are also
recorded in the MIRCS. (Id.). The actual firearms license is printed from the MIRCS by the
Massachusetts Firearms Records Bureau. (Id.). It is then mailed to the local licensing authority,
who issues it to the applicant. (Id.).
The MIRCS provides standard definitions for restrictions that can be placed on firearms
licenses, including a “target & hunting” restriction. (Id.). Under the MIRCS definition, a “target
& hunting” restriction “[r]estricts possession [of a firearm] to the purpose of lawful recreational
shooting or competition; for use in the lawful pursuit of game[] animals and birds; for personal
6
protection in the home; and for the purpose of collecting (other than machine guns).” (Id. ¶ 8).
The restriction also allows “travel to-and-from the activity location.” (Id.).
C.
Firearms Licensing Policy of Weymouth
Richard Grimes is the chief of the Weymouth Police Department. (Joint SMF ¶ 5). As
police chief, he is responsible for issuing firearms licenses in Weymouth under Mass. Gen. Laws
ch. 140, § 131. (Id.). With three exceptions, Chief Grimes “ordinarily” imposes a “target &
hunting” restriction on Class A licenses for first-time applicants. (Id. ¶ 9). The three exceptions
are that Chief Grimes will “usually” give unrestricted licenses to first-time applicants who are
(1) members of law enforcement, (2) members of the military, or (3) “business owners who
substantiate they handle large amounts of cash.” (Id.).6
Individuals who already have a restricted Class A license may petition to have the
restriction lifted within the initial six-year period. (Id.). Chief Grimes will “consider” lifting the
restriction “where the applicant shows a change of circumstance which, in his view, warrants
such a result.” (Id.). It appears, however, that absent a change in circumstances, Grimes will not
remove the restriction during the initial six-year period.
As of April 17, 2013, Chief Grimes had issued 1,078 firearms licenses. (Id. ¶ 25). Of
those licenses, 485 contained some restriction, the majority of which were “target & hunting”
restrictions. (Id.).
D.
Firearms Licensing Policy of Peabody
Robert Champagne is the chief of the Peabody Police Department, and the individual
responsible for issuing firearms licenses in Peabody. (Id. ¶ 6). With three exceptions, he
6
Chief Grimes will grant a license with an “employment” restriction to “people who are required to carry a
firearm by their employer and submit documentation from their employer.” (Id.).
7
“ordinarily” imposes a “target & hunting” restriction on Class A licenses for first-time license
applicants. (Id. ¶ 10). The three exceptions are that he will “consider” issuing an unrestricted
Class A license to a first-time applicant who (1) “requires such a license to carry for employment
or business purposes and supporting documentation is provided,” (2) “has a history of being
licensed unrestricted in his home state,” (3) or had such a license “in the military.” (Id.). Chief
Champagne “ordinarily” issues renewal licenses without restrictions, unless a suitability
condition exists. (Id.).
As of May 22, 2013, Chief Champagne had issued 1,633 firearms licenses. (Id. ¶ 26). Of
those licenses, 475 contained a “target & hunting” restriction. (Id.).
E.
Plaintiffs’ Applications for Firearms Licenses
1.
Christopher Davis
Christopher Davis received an unrestricted Class B firearms license from the Police Chief
of Foxborough, Massachusetts, in November 2006. (Davis Aff., ¶ 2). He then moved to
Weymouth. (Id. ¶ 3).
Davis submitted an application to the Weymouth Police Department on March 22, 2012,
requesting a Class A license with no restrictions. (Joint SMF ¶ 11). In his application for a
license, Davis wrote:
I was a victim of identity theft as well as criminal [harassment] by an individual
who was deemed “unfit to stand trial” for failing a psychological reasons. This
person was shipping Items to my house and I fear for my safety as well as the
safety of my family. Reference Quincy district court docket # 1056CR004751.
(Joint Ex. M). In a separate letter, Davis wrote:
I was recently a victim of two crimes, identity theft and criminal harassment. The
individual was shipping items to my address . . . . The individual changed my
utilities from my name to his as well as the address to his, multiple times, in order
8
to have proof of residency. He went so far as to partially pay my electric bill
twice, resulting in NStar showing up to shut off my service, because once
changed, my direct withdrawal was stopped. Charges were filed in Quincy
District Court (Docket #1056CR004751) but the individual was found[] unfit to
stand trial due to [the] failing of a psychological exam, and trial was postponed
until he passes such an exam. I am fear[ful] for my safety and the safety of my
family from retaliation of this individual. This individual has no respect for the
law, and is very bold in his actions of breaking the law. This individual knows
full well my address. I do not feel safe with this individual free on the streets.
(Joint Ex. O). Davis added:
Another reason I wish to posses[s] a Class A LTC with no restrictions is I enjoy
back country hiking and camping with my family. Many times we find ourselves
in areas free from cell phone signals and no way to call for help. I wish to have
the ability to protect my family when in these situations. Finally I wish to apply
for a LTC in other states which we hike and camp as a family. Having a license
in my home state with restrictions on it will cause undue problems in my
attainment of a nonresident LTC in other states. We spend time year round in
Maine and have had encounters with black bears and coyotes in the past.
(Id.).
When Davis applied for an unrestricted license, the instructions posted on the Weymouth
Police Department’s website stated: “New & Renewals for a Class A LTC for Protection of Life
or All Lawful Purposes must . . . be able to document that you have ‘good reason to fear injury’
as required by [Mass. Gen. Laws. Ch. 140, § 131]. Other permits will be for hunting and target.”
(Joint Ex. X, ¶ 5). Brian King, the police officer who accepted Davis’s application, told him that
“generally speaking,” Weymouth’s policy for first-time applicants was to issue unrestricted
licenses “only to law enforcement, military personnel, and business owners.” (Joint SMF ¶ 11).
According to a letter of complaint later submitted by Davis, he told Officer King that he
had a genuine concern for his safety because he had been a victim of criminal harassment and
identity theft. (Joint Ex. P). According to Davis,
I was told by Officer King that I would not be awarded a class A with no
9
restrictions because I was not personally threatened by this individual and that my
license would be restricted to target and hunting purposes only. I showed Officer
King the town’s policy regarding the issuance of unrestricted licenses that I had
printed off the town’s website. I read it word for word to him and told him that I
felt I qualified. He told me that what I had was the old policy and that it had not
been updated yet on line. He told me that the new town policy was that only
small business owners, law enforcement and lawyers were issued this license
along with people who were victims of violent crimes or those that had threats of
violence against them. I asked for a copy, in writing, of the new town policy and
was refused by Officer King.
(Id.).
On July 3, 2012, Davis received a Class A license with a “target & hunting” restriction.
(Joint SMF ¶ 12). Later that month, Davis requested, in writing, that the restriction be removed.
(Id. ¶ 13). Chief Grimes did not remove the restriction, stating through a representative that the
“denial was based on the same policies and guidelines that have been in place for many years.”
(Joint Ex. F).
2.
William Thompson
On May 5, 2008, William Thompson applied for a Class A firearms license from the
Weymouth Police Department. (Joint SMF ¶ 14).7 He requested that the license contain no
restrictions because he wanted it “to protect himself and his family.” (Id.). On April 2, 2008, he
was issued a Class A license with a “target & hunting” restriction. (Id.). Thompson later asked
the Weymouth Police Department to remove the restriction; that request was denied. (Id. ¶ 15).
In 2009, Thompson and his wife moved to Halifax, Massachusetts. (Thompson Aff., ¶
10). Thompson’s wife applied for, and received, an unrestricted Class A firearms license from
the Halifax Police Department. (Joint SMF ¶ 16). Thompson himself also applied for an
7
One of Grimes’s predecessors, James Thomas, was chief of the police department at the time. (Joint SMF
¶ 14).
10
unrestricted license. (Id. ¶ 17). The Halifax Police Department granted his application, but was
unable to issue him a new license until his previous license from Weymouth expired. (Id.).8
Chief Grimes refused to terminate his license before its normal expiration date. (Id.).
3.
Wilson Lobao
On November 20, 2008, Wilson Lobao applied for a Class A firearms license from the
Peabody Police Department. (Id. ¶ 18). On the application, he stated that the reasons he
requested a license were “carry to and from home to club range and boat – self protection.”
(Joint Ex. S).
In a separate letter to Chief Champagne, he stated:
I would also like the option of being able to carry a pistol to and on my boat
without anyone knowing there is one on board. There are something’s [sic] best
not advertised. There are occasions when we sail to remote areas, with expensive
equipment on board. Not that having a weapon on board is the total answer, it
does provide another option for self-defense.
(Joint Ex. T).
When he submitted his application, “[police] personnel told him” that Chief Champagne
“doesn’t like to issue” unrestricted Class A licenses to first-time applicants. (Joint SMF ¶ 18).
On December 5, 2008, he was issued a Class B firearms license with a “target & hunting”
restriction. (Id. ¶ 19). He subsequently spoke to a detective at the Peabody Police Department
about removing the restriction. (Id. ¶ 20). The detective told him that he could wait and reapply, but that Chief Champagne generally “did not like to issue” unrestricted licenses to firsttime applicants. (Id.).
8
In his affidavit dated June 25, 2013, Thompson stated that his license would expire on October 3, 2013, at
which point he would be issued an unrestricted license. (Thompson Aff. ¶ 14).
11
4.
Robert Capone
On May 14, 2012, Robert Capone applied for an unrestricted Class A firearms license
from the Peabody Police Department. (Joint SMF ¶ 21). On his application, he stated that the
reasons he requested the license were “[f]or personal protection in and out of the house and sport
and target (Business capacity).” (Joint Ex. I). In a separate letter to Chief Champagne, he
stated:
I am the owner of C&C Landscaping Inc in Peabody, which was established in
2004. I started out working in my neighborhood at the age of twelve and now my
business grosses over a quarter million dollars a year. I frequently make large
deposits and purchase used equipment via craigslist typically using cash
transactions that can range from a few hundred dollars to a few thousand. My
company also provides snow and ice management at several commercial
properties throughout Essex county. During the winter my truck is equipped with
expensive computers, GPS, and radio communications equipment which could
potentially makes me a target for crime.
...
I recently got married and I am a devoted family man to my wife and plan on
starting a family soon. I feel it is my duty and obligation as a husband be able to
protect her.
My wife and I are avid hikers and enjoy the pleasures of the outdoors. We take
our 3 dogs almost every week to Harold Parker in Andover and Bradley Palmer in
Topsfield. A firearm would be added protection against any animal or human
threats that can be encountered in a remote area especially when travelling off
trail.
(Joint Ex. J).
On June 25, 2012, Capone was issued a Class A license with a “target & hunting”
restriction. (Joint SMF ¶ 21). In December 2012, Capone e-mailed the Peabody Police
Department to request that the restriction be removed. (Joint Ex. K). He offered to complete
further training to qualify for removal of the restriction. (Id.). The department refused the
12
request. A detective advised Capone by e-mail that “[f]or a first-time applicant (per policy) if
it[’s] required for employment or if you are a documented business owner with a demonstrated
need, such as making morning and evening deposits the restriction may not apply.” (Id.).
According an affidavit submitted by Michael Crane, a Peabody Police Department detective,
Crane called Capone on December 6, 2012, and told him that an unrestricted Class A license
may be issued to first-time applicants if they are engaged in a primarily cash business. (Crane
Aff., ¶ 2). The detective further explained that because Capone owned a landscaping business,
and because landscaping businesses are not normally paid in cash, he could not receive an
unrestricted license unless he submitted documentation that he did in fact receive large amounts
of cash payments. (Id.).
F.
Procedural Background
On February 7, 2013, plaintiffs Davis, Thompson, Lobao, Capone, and Commonwealth
Second Amendment, Inc., brought this lawsuit.9 The complaint asserts two counts under 42
U.S.C. § 1983 for violations of the Second and Fourteenth Amendments.10 They contend that the
restrictions on their firearms licenses violate the Second Amendment by prohibiting them from
carrying and using handguns for the purpose of armed self-defense in public. All parties have
9
Plaintiff Commonwealth Second Amendment, Inc. is a non-profit corporation organized for the purposes
of education, research, and legal action focusing on what it contends is the Second Amendment right to possess and
carry firearms. (Joint SMF ¶ 4). Because its standing relies on the standing of its members, see United States v.
AVX Corp., 962 F.2d 108, 116 (1st Cir. 1992), and because its claims appear to be essentially derivative of the
claims of its members, the organization’s claims can be decided on the same grounds as those of the individual
plaintiffs at this stage without separate analysis.
10
The complaint also asserts claims arising under the Equal Protection and Due Process clauses of the
Fourteenth Amendment. However, plaintiffs have not briefed either issue, and those claims therefore appear to have
been waived. See San Geronimo Caribe Project, Inc. v. Acevedo-Vila, 687 F.3d 465, 490-91 (1st Cir. 2012) (en
banc). Even if the Due Process claim were not waived, the First Circuit has “held, with a regularity bordering on the
monotonous, that the substantive due process doctrine may not, in the ordinary course, be invoked to challenge
discretionary permitting or licensing determinations of state or local decisionmakers, whether those decisions are
right or wrong.” Pagan v. Calderon, 448 F.3d 16, 33 (1st Cir. 2006).
13
cross-moved for summary judgment.
II.
Standard of Review
The role of summary judgment is to “pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816,
822 (1st Cir. 1991) (internal quotations omitted). Summary judgment is appropriate when the
moving party shows that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue is “one that
must be decided at trial because the evidence, viewed in the light most flattering to the
nonmovant . . . would permit a rational fact finder to resolve the issue in favor of either party.”
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). In evaluating a
summary judgment motion, the court indulges all reasonable inferences in favor of the nonmoving party. O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). When “a properly
supported motion for summary judgment is made, the adverse party must set forth specific facts
showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986) (internal quotations omitted). The non-moving party may not simply “rest upon mere
allegation or denials of his pleading,” but instead must “present affirmative evidence.” Id. at
256-57.
III.
Analysis
A.
Standing
Standing is a threshold question in every case; “[i]f a party lacks standing to bring a
matter before the court, the court lacks jurisdiction to decide the merits of the underlying case.”
AVX Corp., 962 F.3d at 113. To satisfy the case-or-controversy requirement of Article III of the
United States Constitution, plaintiffs bear the burden of establishing that they (1) have suffered
14
an “injury-in-fact,” (2) that the injury is “‘fairly traceable’ to the actions of the defendant,” and
(3) that the injury will likely be redressed by a favorable decision. Bennett v. Spear, 520 U.S.
154, 162 (1997) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).11 These
elements must be proved “with the manner and degree of evidence required at the successive
stages of the litigation.” Lujan, 504 U.S. at 561.
An “injury-in-fact” “is defined as ‘an invasion of a legally protected interest which is (a)
concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.’” Katz
v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012) (quoting Lujan, 504 U.S. at 560). Defendants
contend that because plaintiffs were granted firearms licenses, they have not suffered an injury in
fact, and therefore lack standing.
It is well-settled that the denial of a firearms license constitutes an injury that satisfies the
minimum requirements of Article III standing. Hightower v. City of Boston, 693 F.3d 61, 70 (1st
Cir. 2012). Furthermore, a party whose cognizable interest has been injured by a firearms
license restriction has standing to challenge that restriction. See Casey v. City of Newport, R.I.,
308 F.3d 106, 118-19 (1st Cir. 2002) (upholding standing to challenge a license restriction).
The individual plaintiffs in this case applied for unrestricted Class A firearms licenses.
They all received either Class A or Class B licenses with a “target & hunting” restriction. That
restriction prevents them from carrying a firearm outside the home unless they are traveling to or
from, or engaging in, recreational target-shooting or hunting. Therefore, they are unable to carry
a firearm legally in public for the cognizable interest of personal self-defense that they contend is
protected by the Second Amendment. That constitutes a “concrete and particularized” injury
11
Standing also has prudential dimensions, which are not implicated here. See Katz v. Pershing, LLC, 672
F.3d 64, 72 (1st Cir. 2012).
15
sufficient to give them standing. See Casey, 308 F.3d at 119 (musician had standing to challenge
license restriction because it affected her cognizable interest in freedom of expression under the
First Amendment).
Defendants also contend that each plaintiff’s alleged injury is not an injury-in-fact
because it is not actual or imminent. “In a pre-enforcement challenge to a statute carrying
criminal penalties, standing exists when ‘the plaintiff has alleged an intention to engage in a
course of conduct arguably affected with a constitutional interest, but proscribed by the statute,
and there exists a credible threat of prosecution.’” New Hampshire Right to Life Political Action
Comm. v. Gardner, 99 F.3d 8, 14 (1st Cir. 1996) (quoting Babbitt v. United Farm Workers Nat’l
Union, 442 U.S. 289, 298 (1979)). Under the statutory firearms-licensing regime, a violation of
a license restriction “shall be cause for suspension or revocation and shall . . . be punished by a
fine of not less than $1,000 nor more than $10,000.” Mass. Gen. Laws ch. 140, § 131(a), (b).
Defendants contend that there is no evidence they have threatened to penalize plaintiffs
for violations of their licensing restrictions. However, “‘[a] realistic risk of future exposure to a
challenged policy is sufficient to satisfy’ . . . constitutional standing concerns.” Mangual v.
Rotger-Sabat, 317 F.3d 45, 59 (1st Cir. 2003) (quoting Berner v. Delahanty, 129 F.3d 20, 24 (1st
Cir. 1997)) (internal alterations omitted). While defendants have not threatened to penalize
plaintiffs, they also have not unequivocally stated that they will not enforce the licensing
restrictions.
In these circumstances, plaintiffs need not “first expose [themselves] to actual arrest or
prosecution to be entitled to challenge [the] statute that [they] claim deters the exercise of [their]
constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459 (1974); see also MedImmune, Inc.
v. Genentech, Inc., 549 U.S. 118, 129 (2007) (“The plaintiff’s own action (or inaction) in failing
16
to violate the law eliminates the imminent threat of prosecution, but nonetheless does not
eliminate Article III jurisdiction.”); New Hampshire Right to Life, 99 F.3d at 15 (in the First
Amendment context, courts “will assume a credible threat of prosecution in the absence of
compelling contrary evidence”). Plaintiffs choose not to carry a firearm for self-protection
because of a credible threat of penalty, and therefore have established an actual injury-in-fact.
Accordingly, the individual plaintiffs have standing to assert their Second Amendment claims.12
B.
The Second Amendment
1.
Generally
The Second Amendment to the United States Constitution provides as follows: “A well
regulated Militia, being necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.” U.S. CONST. amend. II. In 2008, the Supreme Court
struck down a District of Columbia ordinance that prohibited the possession of handguns in the
home, declaring that the amendment guarantees “the right of law-abiding, responsible citizens to
use arms in defense of hearth and home.” District of Columbia v. Heller, 554 U.S. 570, 635
(2008). In 2010, the Court affirmed that the “right to possess a handgun in the home for the
purposes of self-defense” is incorporated into the protections against infringement by the states
provided by the Fourteenth Amendment. McDonald v. City of Chicago, 130 S. Ct. 3020, 3050
(2010). In Heller, however, the Supreme Court qualified its holding, stating that “nothing in our
opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms
12
Plaintiff Thompson may no longer have standing, as he was granted an unrestricted Class A license on
October 3, 2013. However, because the other individual plaintiffs have standing, Thompson’s lack of standing is not
an issue. See Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 976 (1st Cir. 1989) (“Where co[-]plaintiffs have a
shared stake in the litigation—close identity of interests and a joint objective—the finding that one has standing to
sue renders it superfluous to adjudicate the other plaintiffs’ standing.”). The Court also need not decide whether
plaintiff Commonwealth Second Amendment, Inc., has standing. See AVX Corp., 962 F.2d at 116 (describing
requirements for associational standing).
17
by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such
as schools and government buildings, or laws imposing conditions and qualifications on the
commercial sale of arms.” Heller, 554 U.S. at 626-27.
2.
Framework for Analysis
When analyzing a constitutional challenge under the Second Amendment, a majority of
the courts of appeals have adopted a two-step approach, first set forth by the Third Circuit:
First, we ask whether the challenged law imposes a burden on conduct falling
within the scope of the Second Amendment’s guarantee. . . . If it does not, our
inquiry is complete. If it does, we evaluate the law under some form of meansends scrutiny. If the law passes muster under that standard, it is constitutional. If
it fails, it is invalid.
United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). The Fourth, Fifth, Sixth, Seventh,
Ninth, Tenth, Eleventh, and D.C. Circuits have explicitly adopted this approach. United States v.
Chester, 628 F.3d 673, 680 (4th Cir. 2010); National Rifle Ass’n of Am., Inc. v. Bureau of
Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 194-95 (5th Cir. 2012); United
States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Ezell v. City of Chicago, 651 F.3d 684, 70304 (7th Cir. 2011); United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); United States
v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010) GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d
1244, 1260 n.34 (11th Cir. 2012); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C.
2011) (Heller II).13
The First Circuit has not expressly adopted this approach. However, the cases in which it
has directly analyzed Second Amendment issues appear to fall under either the first or second
13
The Eighth Circuit has not yet decided a case where it found that a law burdened conduct regulated by the
Second Amendment. The Second Circuit has not explicitly adopted the Marzzarella framework, but its approach is
very similar. See, e.g., United States v. Decastro, 682 F.3d 160, 167 (2d Cir. 2012) (finding it appropriate to apply
higher levels of means-ends scrutiny as the regulation at issue imposes a greater burden on Second Amendment
conduct).
18
step of the analysis performed by the other circuits. For example, in United States v. Rene E.,
583 F.3d 8 (1st Cir. 2009), the court concluded that the federal statute criminalizing firearm
possession by juveniles did not violate the Second Amendment because it was one of the
“longstanding prohibitions” that Heller did not call into question. 583 F.3d at 16. While Rene
E. did not specifically hold that the statute only burdened conduct outside the scope of Second
Amendment protection, the analysis it followed was almost identical to those of other circuits
when conducting the first step in their Second Amendment analysis. Compare Rene E., 583 F.3d
at 13-16 (surveying nineteenth-century state laws and the founders’ attitudes on juvenile
handgun possession) with National Rifle Ass’n of Am., 700 F.3d at 200-204 (surveying foundingera attitudes and nineteenth-century opinion on juvenile firearm possession).
In United States v. Booker, 644 F.3d 12 (1st Cir. 2011), and United States v. Armstrong,
706 F.3d 1 (1st Cir. 2013), the First Circuit upheld the federal statute criminalizing firearm
possession by persons convicted of a misdemeanor crime of domestic violence. In doing so, it
found that the statute, although falling within one of the “presumptively lawful” categories of
firearm regulation in Heller, required some form of means-ends scrutiny because it was a new
categorical limit on the Second Amendment right. Booker, 644 F.3d at 25; Armstrong, 706 F.3d
at 8. In Hightower, the court concluded that under any standard of heightened scrutiny, revoking
an individual’s license to carry a concealed weapon did not violate the Second Amendment when
based on an inaccurate firearms-license application. 693 F.3d at 74. Thus, the analysis in
Booker, Armstrong, and Hightower was similar to the analysis performed by other circuits in the
second step of their Second Amendment framework. Compare Hightower, 693 F.3d at 73-76
(regulation upheld under any standard of heightened means-ends scrutiny) with Woollard v.
Gallagher, 712 F.3d 865, 880-81 (4th Cir. 2013) (regulation upheld under intermediate scrutiny).
19
3.
Scope of the Second Amendment Guarantee
Plaintiffs contend that the Second Amendment grants them the constitutional right to
carry a firearm outside the home for the “core purpose” of self-defense. They contend that the
“target & hunting” restrictions on their licenses violate that right. Defendants contend the
Second Amendment right to armed self-protection does not extend beyond the home.
The Heller and McDonald decisions established “that the possession of operative
firearms for use in defense of the home constitutes the ‘core’ of the Second Amendment.”
Hightower, 693 F.3d at 72. However, neither Heller nor McDonald addressed the full extent of
the Second Amendment right. See Heller, 554 U.S. at 635 (“[S]ince this case represents this
Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify
the entire field.”). Although Heller concluded that “the Second Amendment conferred an
individual right to keep and bear arms,” the Supreme Court also stated that the Second
Amendment did not “protect the right of citizens to carry arms for any sort of confrontation.” Id.
at 595 (emphasis in original).
As a result, the lower federal courts have wrestled with the question of if, and to what
extent, the right protected by the Second Amendment extends beyond the home. See Hightower,
693 F.3d at 74 (describing the issue as a “vast terra incognita”) (quoting United States v.
Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011)). In Hightower, the First Circuit specifically
noted that it did “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.” 693
F.3d at 72 n.8.
Decisions from the other courts of appeals offer mixed guidance. The Second, Third, and
Fourth Circuits have assumed the Second Amendment has some application outside the home,
20
without deciding the issue. See Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013); Kachalsky v.
County of Westchester, 701 F.3d 81, 89 (2d Cir. 2012); Woollard, 712 F.3d at 876. Those courts
concluded, however, that because Heller described the “core” of the right to bear arms as the
“right of law-abiding, responsible citizens to use arms in defense of hearth and home,” Heller,
554 U.S. at 635, any right of armed self-defense outside the home would be outside the “core” of
the Second Amendment. Drake, 724 F.3d at 430-31; Kachalsky, 701 F.3d at 93-94; Woollard,
712 F.3d at 876.14
The Seventh and Ninth Circuits have disagreed with that analysis. After reviewing the
historical record, those courts found that the “core” of the Second Amendment right extends to
armed self-defense outside the home. Peruta v. County of San Diego, 742 F.3d 1144, 1166 (9th
Cir. 2014); Moore v. Madigan, 702 F.3d 933, 936-37 (7th Cir. 2012). Accordingly, both courts
concluded that the firearms regulations at issue were unconstitutional without reference to a level
of scrutiny. Peruta, 742 F.3d at 1175-76; Moore, 702 F.3d at 941. In Peruta, the Ninth Circuit
explicitly found that because “self-defense outside the home is part of the core right to ‘bear
arms’ . . . no amount of interest-balancing under a heightened form of means-ends scrutiny can
justify” policies destroying that right. Peruta, 742 F.3d at 1167.15 In Moore, the Seventh Circuit
struck down a “blanket prohibition on carrying [a] gun in public” in Illinois that had no
exception for individuals who showed an objective, heightened need for a firearm for self-
14
Accordingly, those courts found that using an intermediate-scrutiny standard to analyze regulations that
burdened that right was appropriate. Drake, 724 F.3d at 436; Kachalsky, 701 F.3d at 96; Woollard, 712 F.3d at 876.
15
The Peruta court criticized the intermediate scrutiny analysis in Kachalsky, Drake, and Woollard for two
reasons. First, it found that their analysis was “near-identical to the freestanding ‘interest-balancing inquiry’ . . . that
the majority explicitly rejected[] in Heller.” 742 F.3d at 1176. Second, it concluded that the states in those cases
“failed to show that the gun regulations did not burden ‘substantially more’ of the Second Amendment right than
was necessary to advance the aim of public safety.” Id. at 1177.
21
defense. 702 F.3d at 940.16
No federal court of appeals has held that the Second Amendment does not extend beyond
the home. But see 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 the scope of
the Second Amendment” and stating that “[i]f the Supreme Court . . . meant its holding to extend
beyond home possession, it will need to say so more plainly”).
To summarize, the courts of appeals have reached differing results as to the scope of the
Second Amendment outside the home, and the First Circuit has not decided the question. And
the Hightower court expressly agreed with the Fourth Circuit’s cautionary words, stating that the
scope of the Second Amendment is an area that “courts should enter only upon necessity and
only then by small degree.” 693 F.3d at 74 (quoting Masciandaro, 638 F.3d at 475).
4.
Means-Ends Scrutiny
Assuming that a particular restriction burdens the Second Amendment right, the
restriction must survive some form of means-ends scrutiny to be constitutional. See Hightower,
693 F.3d at 74 (regulation upheld “whatever standard of scrutiny is used, even assuming there is
some Second Amendment interest in carrying the concealed weapons at issue.”).
In Hightower, the First Circuit explicitly refrained from deciding what standard of
scrutiny applied to the concealed-carry regulation in that case. Id. In Booker, however, the court
found “that a categorical ban on gun ownership by a class of individuals must be supported by
some form of ‘strong showing,’ necessitating a substantial relationship between the restriction
16
In holding that prohibition unconstitutional, the court noted that “[r]emarkably, Illinois is the only state
that maintains a flat ban on carrying ready-to-use guns outside the home.” 702 F.3d at 940 (emphasis in original).
Indeed, Moore specifically noted that “[n]ot even Massachusetts has so flat a ban as Illinois.” Id.
22
and an important governmental objective.” 644 F.3d at 25.
Booker’s language has been interpreted as a description of an intermediate scrutiny
standard. See, e.g., Williams v. Puerto Rico, 910 F. Supp. 2d 386, 396 (D.P.R. 2012). Indeed,
the standard definition of intermediate scrutiny is a showing that “the challenged classification is
‘substantially related to an important government objective.’” Kittery Motorcycle, Inc. v. Rowe,
320 F.3d 42, 47 (1st Cir. 2003) (quoting Clark v. Jeter, 486 U.S. 456, 461 (1988)). That
definition is virtually indistinguishable from the standard used in Booker. In Armstrong,
however, the First Circuit stated plainly that “this court has not adopted intermediate scrutiny as
the appropriate type of review for a [Second Amendment] challenge such as Armstrong’s.” 706
F.3d at 8.
The Second, Third, and Fourth Circuits have explicitly adopted an intermediate-scrutiny
standard when examining regulations burdening an alleged Second Amendment right to carry
weapons outside the home. Kachalsky, 701 F.3d at 96; Drake, 724 F.3d at 436; Masciandaro,
638 F.3d at 471.17 In reaching that conclusion, those circuits have carefully parsed the language
of Heller and MacDonald, noted the longstanding tradition of firearms regulation in this country,
and made parallels to situations where different levels of scrutiny are applied in the First
Amendment context.
For example, the Second Circuit in Kachalsky noted that “when analyzing First
Amendment claims, content-based restrictions on noncommercial speech are subject to strict
17
In addition, other circuits have used intermediate scrutiny when evaluating other types of firearms
regulations outside the “core” right of armed self-protection within the home. See, e.g., National Rifle Ass’n of Am.,
700 F.3d at 205 (federal ban on sale of handguns to juveniles); Heller II, 670 F.3d at 1257 (gun registration laws);
Reese, 627 F.3d at 802 (prohibition on firearms ownership by individuals subject to a domestic protective order). No
court has found that strict scrutiny must be applied to regulations burdening Second Amendment restrictions outside
the home, although the Seventh and Ninth Circuits have invalidated laws without reference to a level of scrutiny.
Peruta, 742 F.3d at 1175-76; Moore, 702 F.3d at 941-42.
23
scrutiny . . . while laws regulating commercial speech are subject to intermediate scrutiny.” 701
F.3d at 94.18 Kachalsky concluded that “applying less than strict scrutiny when the regulation
does not burden the ‘core’ protection of self-defense in the home makes eminent sense in this
context.” Id. The Third Circuit in Drake also analogized the Second Amendment to the First
Amendment, concluding that intermediate scrutiny applied because strict scrutiny was only
triggered when the core “right to possess usable handguns in the home for self-defense” was
implicated. 724 F.3d at 436 (emphasis in original). Finally, the Fourth Circuit in Masciandaro
noted that “as we move outside the home, firearm rights have always been more limited[]
because public safety interests often outweigh individual interests in self-defense.” 638 F.3d at
470. Because of the longstanding tradition of regulating the carrying of firearms in public,
Masciandaro concluded those regulations need only satisfy intermediate scrutiny to survive
constitutional challenge. Id. at 471.
Employing that standard, all three circuits have upheld restrictions on the carrying of
firearms outside the home. See Kachalsky, 701 F.3d at 100-01 (upholding “proper cause”
requirement for unrestricted licenses in New York); Drake, 724 F.3d at 439-40 (upholding
“justifiable need” requirement for licenses in New Jersey); Woollard, 712 F.3d at 882 (upholding
18
The New York licensing scheme considered by the Second Circuit in Kachalsky is similar to the
Massachusetts scheme. The only license that allows the carrying of a handgun without regard to employment is New
York Penal Law § 400.00(2)(f), which requires “proper cause” for the issuance of a license. 701 F.3d at 86. Thus,
individuals “who desire to carry a handgun outside the home and who do not fit within one of the employment
categories [allowing handgun possession] must demonstrate proper cause pursuant to section 400.00(2)(f).” Id.
Although “proper cause” is not defined in the statute, the court noted that the “New York state courts have
defined the term to include carrying a handgun for target practice, hunting, or self-defense.” Id. Licenses that are
issued for the purpose of target practice or hunting can be restricted to those purposes. Id. To establish proper cause
to obtain an unrestricted license, an applicant must “demonstrate a special need for self-protection distinguishable
from that of the general community or of persons engaged in the same profession.” Id. (quoting Klenosky v. New
York City Police Dep’t, 428 N.Y.S.2d 256, 257 (N.Y. App. Div. 1980), aff’d on op. below, 421 N.E.2d 503 (1983)).
Licensing officers are local judges, police commissioners, or sheriffs. Id. at 87 n.6.
24
“good-and-substantial reason” requirement for licenses in Maryland). These requirements,
although phrased differently, are “essentially the same—the applicant must show a special need
for self-defense distinguishable from that of the population at large, often through a specific and
particularized threat of harm.” Drake, 724 F.3d at 442 (Hardiman, J., dissenting).
In summary, no federal court decision post-Heller has evaluated a firearms-licensing
regime under a strict-scrutiny standard, and none have done so under a rational-basis standard.19
The First Circuit has not, however, expressly adopted an intermediate-scrutiny standard.
C.
Whether the Court Should Reach the Constitutional Issue
As the discussion above makes clear, the most basic issues underlying any constitutional
analysis in this case—including the scope of the Second Amendment and the level of scrutiny to
be applied to the challenged restriction—are unresolved. The fact that this Court’s decision may
therefore be difficult is not, of course, a reason to avoid the constitutional issue. Nonetheless,
there is a separate, and potentially compelling, reason to do so here.
It is well-settled that “prior to reaching any constitutional questions, federal courts must
consider nonconstitutional grounds for decision.” Tenenbaum, 660 F.2d at 511; Gulf Oil Co. v.
Bernard, 452 U.S. 89, 99 (1981). “Even in cases arising through the federal courts, [they] have
always been alert to opportunities to avoid federal constitutional issues by means of a state law
disposition.” South Dakota v. Neville, 459 U.S. 553, 568 n.3 (1983) (collecting cases) (emphasis
in original); see also Alvarado-Cordero v. Hernandez, 837 F.2d 26, 29 (1st Cir. 1988)
(remanding the case and noting that the trial court, “[b]y deciding the local law claim, . . . may
19
The Massachusetts Supreme Judicial Court, in evaluating the constitutionality of a statute imposing
storage requirements on individuals with firearms, found that the statute was constitutional because it had a rational
basis. See Commonwealth v. McGowan, 464 Mass. 232, 244 (2013). However, Heller specifically disclaimed use of
that standard, 554 U.S. at 628 n.27, and therefore some form of heightened level of scrutiny appears to be
appropriate.
25
not have to reach the federal constitutional issue”).
Once a court has jurisdiction over a constitutional claim, it also has jurisdiction over any
related statutory claims. Hagans v. Levine, 415 U.S. 528, 543 (1974). Although “a federal court
may decline to take jurisdiction over a pendent state claim, . . . this does not deprive it of the
power to hear the pendent claim if it chooses to, and indeed its discretion to dismiss should not
be exercised if economy and convenience favor trying the issues together.” Fortin v.
Commissioner of Massachusetts Dept. of Public Welfare, 692 F.2d 790, 798 (1st Cir. 1982); see
also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 117 (1984) (“[A] federal court
may resolve a case solely on the basis of a pendent state-law claim, and that in fact the court
usually should do so in order to avoid federal constitutional questions.” (internal citations
omitted)).
The Court will therefore consider whether the claims at issue in this case can be resolved
under state law without reaching the constitutional issue under the Second Amendment.
D.
Whether the Policies at Issue Violate State Law
As noted, under Massachusetts law an applicant for a firearms license must establish that
he or she (1) is a “suitable person to be issued such a license” and (2) has a “reason” for carrying
a firearm. Mass. Gen. Laws ch. 140, § 131(d).20 As to the latter requirement, the statute reads
as follows:
[the chief of police or other licensing authority] may issue [a license] if it
appears . . . 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
20
Before 1998, the statute used the phrase “proper purpose” rather than “reason.” See Ruggiero, 18 Mass.
App. Ct. at 259. The reason for the amendment is not in the record, although it does not appear to have made a
substantial change in the standard. See Stavis v. Carney, 12 Mass. L. Rptr. 3, at *4 n.6 (Super. Ct. Jul. 31, 2000).
26
under this section . . . .
Id.
The statute is not a model of clarity. However, on its face, it lists two types of “reasons”
for which a license may issue: (1) a “good reason to fear injury” and (2) “any other reason.” It
then provides one example of such an “other reason”: “the carrying of firearms for use in sport
or target practice only.” Id.21
Implicit in the statutory framework is the premise that there may be individuals in the
Commonwealth who have “good reason to fear injury to person or property,” for whom the
issuance of a firearms license is appropriate. Put another way, the legislature clearly
contemplated that some subset of applicants could make the necessary showing of a “good
reason to fear” injury. Thus, the statute is intended to permit at least some
individuals—assuming that they are “suitable persons,” and subject to other statutory
restrictions—to (1) carry a firearm (2) outside the home (3) for purposes of self-defense.22
Beyond that, Massachusetts law offers limited guidance. The statute vests “considerable
latitude” in the licensing authorities as to the “reason” requirement, but the scope of that latitude
21
The Massachusetts Appeals Court has interpreted the former statutory language as follows:
Without excluding other valid reasons for being licensed, the statute identifies two purposes which
will furnish adequate cause to issue a license—“good reason to fear injury to person or property”
and an intent to carry a firearm for use in target practice.
Ruggiero, 18 Mass. App. Ct. at 259.
22
The statutory term “carry” means that the possessor of a license can have the firearm on his or her person
outside the home. See Commonwealth v. Seay, 376 Mass. 735, 742 (1978) (“We think it clear that the Legislature
intended . . . to exempt persons who would keep a firearm only in their homes or places of business for
self-protection from the requirement of obtaining a license to carry.”); Chardin v. Police Com’r of Boston, 465 Mass.
314, 316 (2013) (“In the absence of a restriction, G.L.c. 140, § 131(a) does not prohibit the possession or carrying of
a concealed firearm in public.”)
27
has been largely undefined. See Ruggiero, 18 Mass. App. Ct. at 259; Godfrey, 35 Mass. App. Ct.
at 47. Ruggiero appears to be the only reported case directly addressing the issue; there, the
court held that a licensing authority may require an applicant to show a specific fear of “injury to
his person or property,” and not merely a general fear shared by the population as a whole. Id. at
261 (upholding denial of license where plaintiff stated that he “does not spend his entire life
behind locked doors [and] is a potential victim of crimes against his person.”). And although the
Ruggiero court suggested that “[a] statement of acceptable restrictions or guidelines for licenses
issued under § 131, composed by the Legislature or by its designate[,] might be helpful to the
expedient handling of future licensing applications,” Id. at 261 n.7, no such legislative guidance
has ever been provided.
The statute is thus silent as to how the licensing authorities are to exercise their “latitude”
when determining whether an applicant has shown a proper “reason” for carrying a firearm.
Clearly, however, a local police chief must make some form of determination in response to
every application. A refusal to grant a license is subject to judicial review in the state district
court on the ground that the refusal was “arbitrary, capricious, or an abuse of discretion.”
Moyer, 16 Mass. App. Ct. at 546; see Mass. Gen. Laws ch. 140, § 131(f). Although each
application must be separately evaluated, it appears that a local police chief might nonetheless
promulgate guidelines or policies to guide the exercise of his or her discretion and give
applicants fair notice of the local department’s requirements. See MacNutt v. Police Comm’r of
Boston, 30 Mass. App. Ct. 632, 635 (1991) (upholding firing test qualification promulgated by
firearms-licensing authority and noting that the grant of discretion in chapter 140 “necessarily
includes any incidental power reasonably related to the purposes of the granting statute”). Here,
both the Weymouth and Peabody Police Chiefs adopted what appear to be categorical policies
28
concerning the “good reason to fear injury” requirement. In Weymouth, the police chief
“ordinarily” grants only target and hunting licenses to first-time applicants. (Joint SMF ¶ 9).
Unrestricted licenses for first-time applicants are “usually” provided only to members of law
enforcement, members of the military, or business owners who substantiate that they deal with
large amounts of cash. (Id.). In Peabody, the police chief will “consider” granting an
unrestricted license to a first-time applicant only if he or she requires it for employment
purposes, has previously held an unrestricted license in another state, or had such a license as a
member of the military. (Id. ¶ 10).
Both police departments have thus apparently adopted a categorical policy that no firsttime applicant (with certain exceptions not relevant here) can ever show a “good reason to fear
injury to his person or property.” And it appears from the record that the license applications in
dispute in this case were denied because of the categorical prohibition, not because the police
chief concluded in each instance that the particular reasons given by the applicant were
inadequate.
If those are in fact the relevant policies, they are difficult to reconcile with the language
of the statute. The statute plainly indicates that, at a minimum, a person with a “good reason to
fear injury” is potentially an appropriate candidate for a license—without regard to whether he
or she is a first-time applicant or not. But the policies here essentially negate the statutory
language. No matter how powerful the reason, and no matter how serious the threat, a large
majority of first-time applicants in both towns are disabled from making the requisite showing.23
23
The fact that the policies at issue permit certain first-time applicants, such as members of law
enforcement or the military, to possess firearms without making any showing of “good reason to fear injury” appears
to be largely irrelevant to the question posed here: whether those policies are unduly restrictive to everyone else.
29
The statute does not, of course, require that a police chief grant a license to any first-time
applicant who happens to claim such a fear. The police chiefs are empowered to deny such a
request if it is without sufficient merit. Nor does the statute necessarily prohibit police chiefs
from adopting policies that would have the effect of precluding many applicants from making
the necessary showing—for example, by requiring that the applicant demonstrate a specific
threat, not a generalized threat shared by all members of the public. See Ruggiero, 18 Mass.
App. Ct. at 261.24 But it does seem to require that the police chiefs permit applicants to have
some sort of reasonable opportunity to demonstrate that they have a “good reason to fear injury
to person or property” within the meaning of the statute—or, at the very least, avoid imposing
restrictions that effectively prohibit the overwhelming majority of applicants from doing so.
It should be noted that is unclear whether any of the applicants here actually provided a
“good reason to fear injury to [their] person or property” in their applications.25 Thompson (a
Weymouth resident) simply indicated that he wanted “to protect himself and his family.” (Joint
SMF ¶ 14). Lobao (a Peabody resident) indicated that he was interested in “self protection,”
particularly while on his boat. (Joint Ex. S). Capone (a Peabody resident) indicated that he was
interested in “personal protection in and out of the house,” including protecting his wife at home
and while in the outdoors, and also protection in connection with his business, which deals in
cash and may be a target for robbery. (Joint Ex. J). Davis (a Weymouth resident) expressed
concern for his safety and the safety of his family because an individual had stolen their identity
24
One can readily imagine other restrictions that might pass muster under the statute: for example, a
requirement that any “fear of injury to property” be limited to serious crimes with a significant potential for injury or
death, such as arson, and not lesser crimes such as larceny or vandalism.
25
The Commonwealth contends that no plaintiff in this case has met the good-reason-to-fear-injury
requirement. (Comm. Opp. at 15, n.13).
30
and harassed them in an incident that resulted in criminal charges. (Joint Ex. O).26 He also
expressed a desire for an unrestricted license for protection while hiking and camping with his
family in remote areas. (Id.).
Whether those reasons are sufficient is not for this Court to decide, at least outside the
constitutional context; the statute delegates those decisions to the police chiefs, subject to review
in the state courts. It is certainly possible that a police chief might reject one or more of those
reasons as inadequate. But the statute does not appear to permit the police chiefs to reject all
such applications out of hand simply because they were filed by first-time applicants.
E.
Whether the Court Should Resolve the State-Law Issue
The policies in dispute here thus appear to violate Mass. Gen. Laws ch. 140, § 131(d).
The Court nonetheless declines to issue a definitive ruling on the question at this stage of the
proceeding, as there are multiple reasons counseling caution under the circumstances presented
here.
First, the parties have focused almost exclusively on the constitutional issues, and the
statutory questions raised here have not been briefed by the parties. At a minimum, the parties
should have a reasonable opportunity to address the issue before the Court makes any final
ruling.
Second, while it appears that the license denials at issue here were made pursuant to
categorical policies, and that the police chiefs did not make any individualized determination as
to the particular applicant’s claimed “good reason to fear injury,” the record is not fully
26
There is some evidence that Davis’s application was rejected because the police believed that his stated
“good reason to fear injury to person or property” was insufficient. As noted, according to Davis, Officer King of
the Weymouth Police Department told him after his application had been denied that he did not qualify for an
unrestricted license because he was “not personally threatened by this individual.” (Joint Ex. P).
31
developed. It is therefore at least possible that some individualized fact-based determinations as
to that issue were in fact conducted, and that one or more applications were denied on that basis.
Third, the policies in dispute may not be as categorical as they appear. Both Chief
Grimes in Weymouth and Chief Champagne in Peabody indicated that they “ordinarily” impose
target and hunting restrictions on first-time applicants who do not fall under one of their
specified exemptions.27 Again, because the record is not fully developed, it is unclear whether
the policies truly impose categorical prohibitions, or whether a first-time applicant whose
circumstances are not “ordinary” might in fact receive a license.
Fourth, it is unclear whether the Court can rest its decision on state-law grounds. The
amended complaint does not directly assert any claims under state law; both counts instead assert
violations of 42 U.S.C. § 1983, which only imposes liability for deprivations of a federal right.
See Rio Grande Comty. Health Ctr, Inc. v. Rullan, 397 F.3d 56, 72 (1st Cir. 2005). Whether the
Court can decide the case on a state-law claim not raised by the plaintiffs is at the very least open
to question.
Finally, this case may satisfy the requirements for abstention under Railroad Comm’n v.
Pullman Co., 312 U.S. 496 (1941). Under Pullman, “federal courts may abstain from deciding a
case when a state court’s resolution of unclear state law would obviate the need for a federal
constitutional ruling.” Pustell v. Lynn Pub. Sch., 18 F.3d 50, 53 (1st Cir. 1994). Pullman
abstention “is warranted where (1) substantial uncertainty exists over the meaning of the state
law in question, and (2) settling the question of state law will or may well obviate the need to
27
As noted, the Weymouth Police Department’s website stated that the policy was that licenses would be
restricted to recreational target-shooting and hunting if a good reason to fear injury was not given, but a
representative of the department specifically said it did not follow that policy. (See Joint Ex. P).
32
resolve a significant federal constitutional question.” Batterman v. Leahy, 544 F.3d 370, 373
(1st Cir. 2008) (citing Ford Motor Co. v. Meredith Motor Co., Inc., 257 F.3d 67, 71 (1st Cir.
2001)). A court may raise the issue of abstention sua sponte. Ford Motor Co., 257 F.3d at 71
n.3.
Certainly there is “substantial uncertainty” as to whether the Massachusetts firearmlicensing statute allows a local licensing authority to deny categorically any application by a
first-time applicant who seeks a firearm for personal protection, even when the applicant has
shown a “good reason to fear injury.” A state-court decision on that issue would obviate the
need for a federal constitutional decision on the extent of the Second Amendment in this case.
Therefore, the prudent course of action in these circumstances may be to abstain, and perhaps to
certify a question of state law to the Massachusetts Supreme Judicial Court. See Bellotti v.
Baird, 428 U.S. 132, 151-52 (1976) (holding that the trial court should have certified appropriate
questions to the SJC to avoid deciding federal constitutional question); see also In re Hundley,
603 F.3d 95, 98-99 (1st Cir. 2010) (per curiam) (describing SJC certification process and
certifying question sua sponte).
Under the circumstances, the Court will deny the cross-motions for summary judgment
without prejudice, and direct the parties to file supplemental briefs addressing the issues outlined
in this memorandum and order. Among other things, the parties should address whether any
additional discovery or fact-finding as to any issue is appropriate; whether the Court’s analysis
of the state-law issues raised in this memorandum and order require correction or modification;
whether Pullman abstention is appropriate; and whether there are any potentially dispositive
issues of state law as to which certification of a question of law to the Supreme Judicial Court
under Massachusetts Supreme Judicial Court Rule 1:03 is appropriate.
33
IV.
Conclusion
For the foregoing reasons, the motion of defendants Robert L. Champagne and Richard
C. Grimes for summary judgment is DENIED without prejudice to its renewal; the motion of
plaintiffs Christopher Davis, William Thompson, Wilson Lobao, Ropert Capone, and
Commonwealth Second Amendment, Inc., is DENIED without prejudice to its renewal; and the
parties are directed to file no later than April 25, 2014, any supplemental memoranda, and any
further motions or requests for relief, addressing at least the following topics:
1.
whether any additional discovery or fact-finding to resolve any issue in this case
is necessary or appropriate;
2.
whether the Court’s analysis of the state-law issues raised in this memorandum
and order require correction or modification;
3.
whether Pullman abstention is necessary or appropriate; and
4.
whether there are any potentially dispositive issues of state law as to which
certification of a question of law to the Supreme Judicial Court under
Massachusetts Supreme Judicial Court Rule 1:03 is appropriate.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: March 26, 2014
34
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