Draper et al v. Coakley

Filing 45

Judge Nathaniel M. Gorton: MEMORANDUM & ORDER entered granting 9 Motion to Dismiss (Danieli, Chris)

United States District Court
District of Massachusetts
ROBERT DRAPER, ARIEL WEISBERG,
DONNA MAJOR, ERIC NOTKIN,
ROBERT BOUDRIE, BRENT CARLTON,
CONCORD ARMORY, LLC,
PRECISION POINT FIREARMS, LLC,
COMMONWEALTH SECOND AMENDMENT,
INC. and SECOND AMENDMENT
FOUNDATION, INC.,
Plaintiffs,
v.
MAURA T. HEALEY,
Defendant.

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Civil Action No.
14-12471-NMG

MEMORANDUM & ORDER
GORTON, J.
Plaintiffs bring this action challenging the enforceability
of 940 C.M.R § 16.05(3) (“the regulation”), a state regulation
promulgated by defendant Attorney General of the Commonwealth of
Massachusetts (“the AG”) that requires load indicators or
magazine disconnects on handguns sold by handgun dealers.1
There are three categories of plaintiffs: 1) individuals:
Robert Draper, Ariel Weisberg, Donna Major, Eric Notkin, Robert
Boudrie and Brent Carlton (collectively “consumer plaintiffs”),
2) business entities: Concord Armory, LLC and Precision Point
1

This case was initially brought against former Attorney General
of Massachusetts, Martha Coakley. In January, 2015, she was
succeeded in office by Maura Healey.
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Firearms, LLC (collectively “dealer plaintiffs”) and 3) nonprofit organizations: Commonwealth Second Amendment, Inc. and
Second Amendment Foundation, Inc. (collectively “organization
plaintiffs”).
I.

Background
A.

Challenged regulation

In 1997, the Attorney General of Massachusetts promulgated
940 CMR 16.00 et seq, a series of regulations relating to the
sale of handguns within the Commonwealth.

Plaintiffs bring

constitutional challenges to subsection (3) of 940 C.M.R §
16.05: Sale of Handguns Without Childproofing or Safety Devices
which states that
[i]t shall be an unfair or deceptive practice for a
handgun-purveyor to transfer or offer to transfer to
any customer located within the Commonwealth any
handgun which does not contain a load indicator or
magazine safety disconnect.
940 CMR 16.05(3).

The complaint specifically challenges the

portion of the regulation that offers a load indicator as one
alternative way to meet the safety standard.

A load indicator

is defined within the regulation as
a device which plainly indicates that a cartridge is
in the firing chamber within the handgun.
940 CMR 16.01.

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B.

Procedural history

Between December, 2013 and May, 2014, various dealer and
consumer plaintiffs sent letters to the AG inquiring whether the
Generations 3 and 4 Glock pistols (“Gen3/4 Glock pistols”)
violate the regulation.

In April and May, 2014, the Deputy

Chief of the Attorney General’s Consumer Protection Division
responded to those letters explaining that the handguns
presently manufactured by Glock are noncompliant “because they
lack an effective load indicator or magazine safety disconnect.”
In June, 2014, plaintiffs filed a complaint seeking
declaratory judgments that the regulation 940 CMR 16.05(3) 1)
violates the rights to due process under the Fourteenth
Amendment of the dealer and organization plaintiffs because it
is void for vagueness and void as applied and 2) violates the
Second Amendment rights of the consumer plaintiffs.

Defendant,

in response, moved to dismiss the case and extensive briefing
ensued.

The Brady Center to Prevent Gun Violence also submitted

an amicus brief in support of the defendant.
Oral argument on defendant’s motion to dismiss was held in
February, 2015.

For the reasons that follow, defendant’s motion

will be allowed.
II.

Standing
Defendant contends that the case should be dismissed

because all plaintiffs lack standing.
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A.

Legal standard

Standing is a prerequisite for Article III jurisdiction and
must be determined before addressing the merits of the case. See
Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir.
2009).

In order to establish standing, a plaintiff must show 1)

an injury in fact, 2) a causal connection between the injury and
the conduct complained of and 3) a likelihood that the injury
will be redressed by a favorable decision. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992).

An injury in fact is one

that is “concrete and particularized [and] actual or imminent,
not conjectural or hypothetical”. Id. at 560 (internal citations
and quotations omitted).
B.

Application
1.

Organization plaintiffs

An organization may bring suit on behalf of itself or its
members
when its members would otherwise have standing to sue
in their own right, the interests at stake are germane
to the organization’s purpose, and neither the claim
asserted nor the relief requested requires the
participation of individual members in the lawsuit.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 181 (2000).
Defendant contends that the two organization plaintiffs
lack standing because they do not allege harm to themselves or

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to their members.

The AG further notes that none of the claims

in the complaint is brought by the organizations.
Organization plaintiffs respond that they have standing to
sue in their own right despite never having attempted to
purchase a Gen3/4 Glock pistol in Massachusetts because they
have spent time and resources analyzing the regulation and that
they have incurred financial loss in sponsoring the lawsuit.
These investments do not, however, serve as a concrete injury to
the organizations.

Plaintiff Second Amendment Foundation also

alleges injury based on the fact that it raffles firearms to its
members every year, including at least one Glock pistol, and if
the winner of that pistol were in Massachusetts, then it could
not transfer the prize to the winner due to the regulation.

The

Court concludes that this injury is too speculative to qualify
as an “injury in fact”.

The organization plaintiffs therefore

lack standing to sue on their own behalf.
With respect to its standing to sue on behalf of its
members, Second Amendment Foundation claims to have 8,066
“members and supporters” in Massachusetts, of which 1,847 are
current paid members.

It has not identified, however, any

specific members who have attempted to purchase Glocks in the
Commonwealth or who were dissuaded from selling Glocks because
of the regulation. See Summers v. Earth Island Inst., 555 U.S.
488, 498-99 (2009) (noting that “the affidavit provided by the
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city to establish standing would be insufficient because it did
not name the individuals who were harmed by the challenged
[regulation]”); Fletcher v. Haas, 851 F. Supp. 2d 287, 291 (D.
Mass. 2012) (“Plaintiff organizations fall short of
demonstrating Article III standing. Neither SAF nor CSA has
identified a single member who sought to obtain a license to
carry a firearm in Massachusetts, let alone was denied.”)
(emphasis in the original).
Commonwealth Second Amendment likewise has failed to
identity affected members.
members.

In fact, it not does appear to have

The organization only claims to have 835 donors, many

of whom reside in Massachusetts.

The organization cannot,

therefore, sue on behalf of members who do not exist.
Accordingly, the organization plaintiffs will be dismissed
for lack of standing.
2.

Dealer plaintiffs

Defendant asserts that the dealer plaintiffs do not have
standing because they fail to make a sufficient allegation of
injury related to their challenge of the regulation.

The AG

contends that her office made clear that the handguns at issue
violated the regulation and therefore the plaintiffs’ injury
could not be their uncertainty as to the pistols’ compliance.
Plaintiffs respond that although they were informed that
the Gen3/4 Glock pistols were noncompliant with the regulation,
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they have standing because there is ongoing uncertainty as to
which firearms contain an acceptable load indicator.
The Court agrees that the dealer plaintiffs have
sufficiently alleged an injury caused by the regulation and
redressable by injunctive relief.
3.

Consumer plaintiffs

Finally, defendant contends that consumer plaintiffs lack
standing because the regulation does not implicate the Second
Amendment and therefore they have failed to allege a cognizable
injury.
Plaintiffs respond that defendant conflates standing to sue
with stating a cognizable injury under the Second Amendment.
Instead, they argue that the injury results from the
regulation’s vague definition of load indicator which makes it
more difficult or impossible for consumers to purchase Gen3/4
Glock pistols.
The Court concludes that the consumer plaintiffs have
standing because they have submitted evidence indicating that
various consumer plaintiffs attempted to purchase a Gen3/4 Glock
pistol but were unable or dissuaded to do so because of the
regulation.

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III. Defendant’s motion to dismiss for failure to state a claim
A.

Legal standard

To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

The Court must accept all

factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff’s favor. Langadinos v.
Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000).

The Court,

however, need not accept legal conclusions as true. Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009).

Threadbare recitals of the

legal elements, supported by mere conclusory statements, do not
suffice to state a cause of action. Id.

Accordingly, a

complaint does not state a claim for relief where the well-pled
facts fail to warrant an inference of any more than the mere
possibility of misconduct. Id. at 1950.
B.

Application
1.

Due Process under the Fourteenth Amendment
(Count I)
a.

Facial challenge

For a regulation to be facially void, plaintiffs must prove
that “no set of circumstances exists under which the
[regulation] would be valid.” United States v. Salerno, 481 U.S.
739, 745 (1987).

This standard amounts to a “dauntingly high

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hurdle.” Donovan v. City of Haverhill, 311 F.3d 74, 77 (1st Cir.
2002).
The dealer plaintiffs contend that the regulation’s
definition of “load indicator” is facially vague in violation of
the Fourteenth Amendment’s Due Process Clause.

They aver that

the regulation does not provide any guidance about what the load
indicator “device” must be and how it is to “plainly indicate”
that a cartridge is in the firing chamber.

They claim that the

vagueness in the definition creates the potential for absurd
results and arbitrary enforcement because no one can determine
with any reasonable degree of certainty whether a handgun
complies with the regulation.
As a preliminary matter, facial challenges are typically
disfavored because they “often rest on speculation,” which lead
to the risk of premature interpretation of statutes and
regulations. Washington State Grange v. Washington State
Republican Party, 552 U.S. 442, 450 (2008).

Accordingly, facial

challenges outside of the First Amendment context have been rare
in this circuit.

As the First Circuit Court of Appeals has

stated,
[i]t is well-established that vagueness challenges to
statutes not threatening First Amendment interests are
examined in light of the facts of the case at hand;
the statute is judged on an as-applied basis.

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Love v. Butler, 952 F.2d 10, 13 (1st Cir. 1991) (citing Maynard
v. Cartwright, 486 U.S. 356, 361 (1988)).
In any event, so long as there is some application under
which the regulation would not be vague, a facial vagueness
claim cannot stand. See Richmond Boro Gun Club, Inc. v. City of
New York, 97 F.3d 681, 684 (2d Cir. 1996) (a restriction on
firearms where the pistol grip “protrudes conspicuously” is not
facially vague under the “no circumstances” test when “it is
obvious in this case that there exist numerous conceivably valid
applications”).
Here, defendant has offered several examples of firearms
where it is clear that they would fail to meet the regulation’s
standards. See, e.g., Smith ex rel. Smith v. Bryco Arms, 33 P.3d
638, 641 (N.M. App. 2001) (“the J-22 handgun does not
incorporate a ‘magazine-out safety,’ a ‘chamber load indicator,’
or a written warning on the gun itself alerting users that the
J-22 can fire even though the magazine has been removed”);
Pitonyak v. State, 253 S.W.3d 834, 845 (Tex. App. 2008) (“the
pistol in question did not have a safety or a loading indicator
to show that a bullet is in the firing chamber”).
Accordingly, plaintiffs’ facial challenge to the regulation
will be dismissed.

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b.

Vague as-applied

A regulation is unconstitutionally vague as applied to
plaintiffs if it fails to provide
a person of ordinary intelligence fair notice of what
is
prohibited,
or
is
so
standardless
that
it
authorizes or encourages seriously discriminatory
enforcement.
Holder v. Humanitarian Law Project, 561 U.S. 1, 18 (2010)
(quoting United States v. Williams, 553 U.S. 285, 304 (2008)).
Outside of the First Amendment context, the Court need only
determine whether the regulation is vague as applied to the
particular facts at issue, i.e. “whether [plaintiffs] in fact
had fair notice that the [regulation] proscribed their
[proposed] conduct.” United States v. Zhen Zhou Wu, 711 F.3d 1,
15 (1st Cir.) cert. denied sub nom. Yufeng Wei v. United States,
134 S. Ct. 365 (2013).
The dealer plaintiffs contend that the regulation is vague
as applied because they cannot determine with any reasonable
certainty whether Gen3/4 Glock pistols are compliant.

Although

they do not dispute that they received actual notice from the AG
that the Gen3/4 Glocks fail to comport with the regulation, they
claim lack of fair notice because the AG’s response failed to
explain why the Gen3/4 Glock pistols do not meet the regulatory
standard or how she came to that conclusion.

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Defendant responds that the plaintiffs have failed to
allege a viable vague as-applied claim under either prong of the
vague as-applied inquiry because 1) the plaintiffs had actual
knowledge that the Gen3/4 Glock pistols violated the regulation,
2) the phrases in the definition of “load indicator” have
meanings in common usage that meet the requirements of fair
notice and 3) plaintiffs have failed to make any allegation of
discriminatory enforcement.
The Court concludes that the plaintiffs’ knowledge and
receipt of actual notice that the Gen3/4 Glock pistols are
noncompliant defeat their as-applied challenge to the
regulation. See Zhen Zhou Wu, 711 F.3d at 16 (holding that the
challengers of the regulation cannot claim they lacked fair
notice because they “knew they were violating U.S. export
regulations.”); United States v. Saffo, 227 F.3d 1260, 1270
(10th Cir. 2000) (holding that a statute is not
unconstitutionally vague as applied to defendant Saffo because
“evidence produced at trial demonstrates that Saffo had
knowledge of the illegality of her activities, and thus this is
not a situation where she could not reasonably understand that
her contemplated conduct is proscribed.” (internal citation and
quotation omitted)).
In this case, the dealer plaintiffs admit that they were
aware that the regulation foreclosed the transfer or sale of the
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Glock pistols at issue.

The plaintiffs’ argument that the AG

never explained why the Glock load indicators fail the
regulatory standard is irrelevant to the constitutional
vagueness challenge.

The vagueness doctrine is concerned with

whether the plaintiffs, as people of ordinary intelligence, can
determine if the Gen3/4 Glock pistols comply with the regulation
and not with why or how the AG reached her conclusion. See
Williams, 553 U.S. 285, 304 (2008).
To the extent that the dealer plaintiffs contend that the
regulation is vague with respect to potential sales restrictions
of other handguns, their argument fails.

Civil regulations that

govern commercial conduct are held to a lower standard than
criminal statutes in the vagueness analysis. See Papachristou v.
City of Jacksonville, 405 U.S. 156, 162 (1972) (“In the field of
regulatory statutes governing business activities, where the
acts limited are in a narrow category, greater leeway is
allowed”); Home Depot, Inc. v. Guste, 773 F.2d 616, 629 (5th
Cir. 1985) (“lax vagueness standard [is] applicable to statutes
regulating economic activity”).

The regulatory language at

issue here, “a device which plainly indicates,” is composed of
words in common usage and with common meaning.

The words are

straightforward both individually and in context because they
describe that the purpose of a load indicator in a handgun is to
inform a user unequivocally that the gun is loaded.
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The Court

concludes that the language of the regulation provides clear
guidance for and fair notice to firearms dealers of ordinary
intelligence.
Plaintiffs’ vague as-applied challenge to the regulation
will therefore be dismissed.
2.

Second Amendment (Count II)

The Second Amendment to the United States Constitution
provides:
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.
The consumer plaintiffs contend that the regulation burdens
their Second Amendment rights because the vague regulatory
definition of “load indicator” prevents them from purchasing
Gen3/4 Glock pistols.

They acknowledge, however, that although

the regulation renders two models of handguns unmerchantable in
Massachusetts, it otherwise permits the purchase of a variety of
handguns with appropriate safety devices.
Defendant responds that the load indicator regulation does
not implicate the Second Amendment because it does not impinge
on the right to bear arms in self-defense.

She avers, moreover,

that even if it does, the regulation withstands constitutional
scrutiny.

The Court agrees.

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The United States Supreme Court has held that the “core” of
the Second Amendment protects a citizen’s right to keep and bear
arms for self-defense in the home. Dist. of Columbia v. Heller,
554 U.S. 570, 630, 635 (2008); 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” (internal quotations and citation
omitted)).

It does not guarantee “a right to keep and carry any

weapon whatsoever in any manner whatsoever and for whatever
purpose.” Heller, 554 U.S. at 626.

The Heller Court provided

examples of “longstanding” restrictions that were “presumptively
lawful” under the Second Amendment, such as 1) laws prohibiting
the possession of firearms by felons and the mentally ill, 2)
laws forbidding the carrying of firearms in sensitive places
such as schools and 3) laws imposing conditions and
qualifications on the commercial sale of arms. Id. at 626-27 &
n. 26.
When analyzing challenges brought under the Second
Amendment, a majority of the courts of appeals inquire as to
whether the challenged law burdens conduct falling within the
Second Amendment’s protection and, if so, whether the law passes
constitutional muster under an appropriate level of means-end
scrutiny. See Davis v. Grimes, 2014 WL 1278082, at *10 (D. Mass.
Mar. 26, 2014) (noting that the Third, Fourth, Fifth, Sixth,
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Seventh, Ninth, Tenth, Eleventh and D.C. Circuit Courts of
Appeals have explicitly adopted the two-step inquiry).

Although

the First Circuit Court of Appeals has not expressly adopted the
two-step framework, its analysis of Second Amendment issues
appear to fall under either the first or second step
of the analysis performed by the other circuits.
Id.

In United States v. Rene E., for example, the court

conducted an analysis similar to that performed by other
circuits in the first step of the two-step inquiry and held that
a statute criminalizing firearm possession by juveniles did not
violate the Second Amendment because it was one of the
“longstanding prohibitions” that Heller found to be
“presumptively lawful”. 583 F.3d 8, 12 (1st Cir. 2009).
The regulation at issue requiring a load indicator or
magazine safety disconnect in handguns sold or transferred in
the Commonwealth similarly does not violate the Second Amendment
for three reasons:
1.

The regulation fits comfortably among the categories of

regulation that Heller suggested would be “presumptively lawful”
because it “impos[es] conditions and qualifications on the
commercial sale of arms.” Heller, 554 U.S. at 626-27;
2.

The regulation does not substantially burden the right

to bear arms in self-defense in one’s home because the ban on
two kinds of Glock pistols in no way prevents citizens from

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obtaining a wide array of firearms. See Kampfer v. Cuomo, 993 F.
Supp. 2d 188, 196 (N.D.N.Y. 2014) (dismissing a constitutional
challenge to a state statute “because the provisions at issue
attempt only to decrease in number certain firearms deemed
particularly dangerous by the legislature for the sake of public
safety, which interests are clearly advanced by the legislation,
they do not infringe the Second Amendment right to keep and bear
arms”); and
3.

Even if the regulation did impinge on Second Amendment

rights, the Court finds that it passes constitutional muster
under any standard of scrutiny.

The defendant has demonstrated

a strong showing of a “substantial relationship” between the
restrictions imposed by the regulation and the important
government objective of protecting the safety of its citizens.
See United States v. Booker, 644 F.3d 12, 25 (1st Cir. 2011).
Accordingly, Count II of the plaintiffs’ complaint will be
dismissed.

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ORDER
For the foregoing reasons, the defendant’s motion to
dismiss (Docket No. 9) is ALLOWED.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated March 5, 2015

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