Williams et al v. Puerto Rico Superior Court et al

Filing 32

OPINION & ORDER re 15 Motion to Dismiss. The Court finds that plaintiffs fail to state a claim upon which relief can be granted because the P.R. Weapons Act's regulation of firearms is constitutional; Puerto Rico government officials do not e njoy uncontrolled discretion in granting or denying weapons licenses or permits to carry weapons; sections 456a and 456d pass intermediate scrutiny; and the P.R. Weapons Act is not discriminatory. Accordingly, the Court GRANTS defendants' motion to dismiss pursuant to Rule 12(b)(6) and DISMISSES WITH PREJUDICE all of plaintiffs' claims. Signed by Judge Francisco A. Besosa on 12/21/2012. (CD)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
DANNY WILLIAMS, et als.,
Plaintiffs,
v.

CIVIL NO. 12-1218 (FAB)

COMMONWEALTH OF PUERTO RICO, et
als.,
Defendants.

OPINION AND ORDER
BESOSA, District Judge.
Before the Court is the motion to dismiss pursuant to Federal
Rule

of

Civil

defendants

Procedure

Police

12(b)(6)

Department,

(“Rule

12(b)(6)”)

Department

of

filed

Justice,

by
the

Commonwealth of Puerto Rico, and the Puerto Rico Superior Court
(collectively, “defendants”).

(Docket No. 15.) For the reasons

discussed below, the Court GRANTS defendants’ motion to dismiss.
I.

BACKGROUND
A.

Factual & Procedural History
On April 10, 2012, plaintiffs Danny Williams (“Williams”)

and Ruben Gonzalez Lora (“Gonzalez”) filed an amended complaint,
alleging that Puerto Rico’s Weapons Act of 2000 (“P.R. Weapons
Act”), P.R. Laws Ann. tit 25, §§ 455–460(k), is facially invalid
pursuant to the Second and Fourteenth Amendments to the United

Civil No. 12-1218 (FAB)
States Constitution.

2

(Docket No. 5.)

Plaintiffs seek damages and

injunctive relief pursuant to 42 U.S.C. § 1983.
On September 8, 2011, plaintiff Gonzalez, a law student
at the Interamerican University in Puerto Rico, requested a permit
to carry a weapon pursuant to section 456d of the P.R. Weapons Act.
Id. at pp. 3 & 5.

Judge Gisela Alfonso Fernandez (“Judge Alfonso”)

of the Puerto Rico Superior Court denied plaintiff Gonzalez’s
petition after he failed to provide three sworn statements from
reputation witnesses, a sworn statement to the effect that he filed
his Commonwealth taxes, and a certificate from child support
stating that he had no debt.

Id. at p. 5.

On October 11, 2011,

plaintiff Williams, an active duty Coastguardsman, also requested
a permit to carry a weapon pursuant to section 456d.
& 5.

Id. at pp. 3

Because his application was missing necessary papers—income

tax returns and testimony by three reputation witness—Judge Alfonso
also denied his petition on November 7, 2011.

Id. at p. 5.

In their amended complaint, plaintiffs argue (1) that the
Puerto Rico government may not license the right to keep and bear
arms, pursuant to the Second Amendment to the U.S. Constitution;
(2)

that

the

P.R.

Weapons

Act

discriminates

against

average

citizens and favors certain government officials; (3) that sections
456a and 456d of the P.R. Weapons Act unconstitutionally vest

Civil No. 12-1218 (FAB)

3

uncontrolled discretion in the hands of state officials; and (4)
that the filing requirements contained in sections 456a and 456d
are unconstitutional.

Id. at pp. 6–7.

On July 12, 2012, defendants filed a motion to dismiss,
arguing (1) that neither plaintiff has standing to challenge the
constitutionality of section 456a; (2) that plaintiffs fail to
establish a violation of the Second and Fourteenth Amendments
pursuant to 42 U.S.C. § 1983; and (3) that the P.R. Weapons Act is
constitutional under an intermediate scrutiny standard of review.1
(Docket No. 15.)
B.

Rule 12(b)(6) Standard
Pursuant to Rule 12(b)(6), the Court can dismiss a

complaint that fails to state a claim upon which relief can be
granted.

When assessing whether a plaintiff’s complaint provides

“fair notice to the defendants” and states “a facially plausible
legal claim,” the Court must utilize a two-pronged approach.

See

Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 11-12 (1st Cir.
2011). First, the Court can disregard statements that “offer legal
conclusions couched as fact,” because the plaintiff must do more

1

Although defendants classify their motion to dismiss as only
pursuant to Rule 12(b)(6), the Court notes that an argument
regarding plaintiffs’ lack of standing is properly brought under
Rule 12(b)(1).

Civil No. 12-1218 (FAB)

4

than “parrot the elements of the cause of action.”

Id. at 12.

Second, the Court is bound to treat all “properly pled factual
allegations” as true and draw all reasonable inferences in the
plaintiffs’ favor.

Id.

The Court must base its determination

solely on the material submitted as part of the complaint and
expressly incorporated within it.

See Alternative Energy, Inc. v.

St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).
The factual material pleaded must be sufficient “to raise
a right to relief above the speculative level,” and to permit the
Court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
Iqbal, 556 U.S. 662, 678 (2009)).

Id. (quoting Ashcroft v.

The Supreme Court has held that

a plaintiff’s pleading must cross “the line between possibility and
plausibility.”
(2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 577

likelihood

A district court should not attempt to forecast the
of

“improbable.”

success

even

Id. at 556.

if

proving

the

alleged

facts

is

A complaint that contains a plausible

basis for relief, therefore, “may proceed even if it appears that
a recovery is very remote and unlikely.”

Id. at 556 (internal

citation omitted). The Court will draw “on its judicial experience
and common sense” in evaluating the complaint’s plausibility.

Civil No. 12-1218 (FAB)

5

Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012)
(internal citation omitted).
II.

DISCUSSION
The Court addresses in turn the following three arguments

contained in defendants’ motion to dismiss: First, that neither
plaintiff

has

standing

to

challenge

the

constitutionality

of

section 456a; second, that plaintiffs fail to establish a violation
of the Second and Fourteenth Amendments pursuant to 42 U.S.C. §
1983; and third, that the P.R. Weapons Act is constitutional under
an intermediate scrutiny standard of review.
A.

Constitutional Standing
1.

Standard
“Article

III

of

the United

States

Constitution

limits the judicial power of the United States to the resolution of
cases and controversies.”

Valley Forge Christian Coll. v. Ams.

United for Separation of Church & State, 454 U.S. 464, 471 (1982)
(internal quotations omitted).

A crucial part of the case and

controversy limitation on the power of federal courts is the
requirement that a plaintiff must have standing to invoke federal
jurisdiction.

Id. at 471-73.

“[S]tanding is a threshold issue”

and determines whether a federal court has “the power to hear the
case, and whether the putative plaintiff is entitled to have the

Civil No. 12-1218 (FAB)

6

court decide the merits of the case.”

Libertad v. Welch, 53 F.3d

428, 436 (1st Cir. 1995) (internal citation omitted).

If a

plaintiff lacks standing to bring a matter to federal court, a
district court lacks jurisdiction to decide the merits of the case
and must dismiss the complaint.

United States v. AVX Corp., 962

F.2d 108, 113 (1st Cir. 1992).
To establish Article III standing, plaintiffs must
show that they have a “personal stake in the outcome” of the claim
asserted by meeting a three-part test. Pagan v. Calderon, 448 F.3d
16, 27 (1st Cir. 2006) (citing Baker v. Carr, 369 U.S. 186, 204
(1962)) (internal citations omitted).

They must show: “(1) a

concrete and particularized injury in fact, (2) a causal connection
that permits tracing the claimed injury to defendants’ actions, and
(3) a likelihood that prevailing in the action will afford some
redress for the injury.” Weaver’s Cove Energy, LLC v. R.I. Coastal
Res. Mgmt. Council, 589 F.3d 458, 467 (1st Cir. 2009) (internal
quotations omitted).

The Supreme Court has held that the party

invoking federal jurisdiction bears the burden of establishing
these elements.

See Lujan v. Defenders of Wildlife, 504 U.S. 555,

561 (1992) (internal citations omitted).

Moreover, the standing

inquiry is claim-specific: a plaintiff must have standing to bring
each and every claim that he asserts.

Katz v. Pershing, LLC, 672

Civil No. 12-1218 (FAB)

7

F.3d 64, 71–72 (1st Cir. 2012) (citing Pagan, 448 F.3d at 26).
Because they are not mere pleading requirements but rather an
indispensable part of the plaintiff’s case, “each element must be
supported in the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the manner and
degree

of

evidence

required

at

the

successive

stages

of

litigation.” Katz, 672 F.3d at 71 (internal citation omitted). At
the

pleading

or

motion

to

dismiss

stage,

“general

factual

allegations of injury resulting from the defendant’s conduct may
suffice.”

Lujan, 504 U.S. at 561 (internal citation omitted).
The first element of Article III standing is an

injury in fact, defined as “an invasion of a legally protected
interest which is (a) concrete and particularized; and (b) actual
or imminent, not conjectural or hypothetical.”

Lujan, 504 U.S. at

560 (footnote, citations, and internal quotations omitted).

The

First Circuit Court of Appeals has noted that these characteristics
are distinct.

See Katz, 672 F.3d at 71.

“Particularity demands

that a plaintiff must have personally suffered some harm[, and . .
. t]he requirement of an actual or imminent injury ensures that the
harm has either happened or is sufficiently threatening; it is not
enough that the harm might occur at some future time.”

Id.

The

final two elements of standing are causation and redressability.

Civil No. 12-1218 (FAB)

8

Causation requires a plaintiff to show a sufficiently direct causal
connection,

which

“cannot

be

overly

attenuated,”

challenged action and the identified harm.
Boston, 304 F.3d 110, 115 (1st Cir. 2002).

between

the

Donahue v. City of
Because the opposing

party must be the source of the harm, causation is absent if the
injury stems from the independent action of a third party.

See

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976).
Redressability requires a plaintiff to show that a favorable
resolution of his or her claim would likely remedy the professed
injury. Redressability is a matter of degree, and to satisfy this
requirement, the plaintiff “need not definitively demonstrate that
a victory would completely remedy the harm.” Antilles Cement Corp.
v. Fortuño, 670 F.3d 310, 318 (1st Cir. 2012).
2.

Analysis
Defendants

standing

to

challenge

argue

the

that

plaintiffs

constitutionality

of

do
the

not

have

licensing

requirements of section 456a of the P.R. Weapons Act because each

Civil No. 12-1218 (FAB)

9

plaintiff already possesses a weapons license.2
pp. 12–13.)

(Docket No. 15 at

They contend that plaintiffs “have nothing at stake”

regarding a determination by the Court because plaintiffs will be
unable to demonstrate a concrete and particularized injury in fact,
or a likelihood that prevailing in the action will afford some
redress for the injury.

Id.

Plaintiffs respond that their

concrete and particularized injury in fact arises out of section
456a’s requirement that any person who possesses a weapons license
and wants to maintain it must renew it every five years and resubmit the remuneration and documentation.
13.)

(Docket No. 17 at p.

In their reply, defendants argue that plaintiffs’ response

means “the issue is not ripe for consideration given that there is
no imminent action by the state that would require redress.”
(Docket No. 22 at p. 3.)

2

Defendants do not dispute that a permit denial pursuant to
section 456d’s administrative scheme constitutes an injury.
Plaintiffs assert a right to a permit under section 456d of the
P.R. Weapons Act, the denial of which the First Circuit Court of
Appeals recognizes as an Article III injury. See Hightower v. City
of Boston, 693 F.3d 61, 70 (1st Cir. 2012) (quoting Parker v.
District of Columbia, 478 F.3d 370, 376 (D.C. Cir. 2007) (stating
that statutory classifications used to bar ownership of a permit,
and “the formal process of application and denial, however routine,
makes the injury to [one’s] alleged constitutional interest
concrete and particular”).
Accordingly, because plaintiffs’
amended complaint alleges that they applied for and were denied a
permit under section 456d, it is clear that plaintiffs have
standing to challenge the constitutionality of that section.

Civil No. 12-1218 (FAB)

10

The Court disagrees that plaintiffs lack standing to
challenge section 456a and that their “Second Amendment right is
safeguarded by the weapons license which they already possess.”
Plaintiffs’ concrete and actual injury arises from the fact that
they

both

have

paid

the

application

fees

and

submitted

the

requisite money, certificates, forms, and statements that are
challenged as unconstitutional under section 456a.

The economic

injury they sustained to obtain the weapons license is a sufficient
basis

for

standing.

The

Court

considers

the

constitutional

standing issue to be a close one, however, given plaintiffs’ prayer
for declaratory and injunctive relief.

To establish standing for

a claim of declaratory and injunctive relief, a plaintiff must
establish that future harm is both imminent and likely.
Angeles

v.

Lyons,

461

U.S.

95,

105

(1974).

In

See Los

this

case,

plaintiffs demonstrate a likelihood of future injury because in
order to maintain their weapons licenses, they will have to renew
the licenses—a process that requires compliance with all of section
456a’s provisions.

(Docket No. 17; P.R. Laws Ann. tit 25 § 456a.)

Because the Court does not consider the future injury to be
“hypothetical,” “speculative,” or “conjectural,” McInnis-Misenor v.
Me. Med. Ctr., 319 F.3d 63, 71 (1st Cir. 2003), it finds that

Civil No. 12-1218 (FAB)

11

plaintiffs have demonstrated an injury in fact under the first
element of standing.
Plaintiffs have also demonstrated both causation and
redressability sufficient for standing.
the

P.R.

Weapons

Act’s

license

They allege that because

and

permit

requirements

impermissibly burden plaintiffs’ Second Amendment right to keep and
bear arms, the enforcement of sections 456a and 456d is the cause
of their harm.

Further, a declaratory judgment or injunction

granted by this Court would likely redress plaintiffs’ claims
because they would alleviate the burden posed by sections 456a and
456d on plaintiffs’ ability to obtain a permit to carry a weapon
and to maintain their weapons licenses.

Accordingly, the Court

finds that both plaintiffs have standing to challenge section 456a
and declines to grant defendants’ motion on standing grounds.
B.

Failure to State a Claim Pursuant to 42 U.S.C. § 1983
Defendants next argue that plaintiffs fail to establish

a violation of the Second and Fourteenth Amendments under 42 U.S.C.
§ 1983 (“section 1983”).

To state a claim pursuant to section

1983, plaintiffs must plausibly plead (1) that they were deprived
of a constitutional right; (2) that a causal connection exists
between defendants’ conduct and the constitutional deprivation; and
(3) that the challenged conduct was attributable to a person acting

Civil No. 12-1218 (FAB)
under color of state law.

12
Sanchez v. Pereira-Castillo, 590 F.3d

31, 41 (1st Cir. 2009) (citing 42 U.S.C. § 1983).

Defendants

submit that plaintiffs cannot establish a deprivation “of the
rights, privileges, or immunities secured by the Constitution or
other

laws

“plaintiff’s

of

the

[sic]

United

States”

current

status

for
as

two

reasons.

weapons

license

First,
holders

protects their rights under the Second Amendment. Nothing in their
current position prevents them from possessing a firearm in their
home for the purpose of self defense.”

(Docket No. 15 at p. 15.)

Second, the permit to carry a firearm “is a privilege and not a
right protected by the Second Amendment by way of the Fourteenth
Amendment.”

Id.

Defendants’ first argument, as a mere reiteration of its
standing argument, is inconsequential. Plaintiffs’ constitutional
challenge to section 456a is framed as a facial challenge. (Docket
No. 5 at p. 2.)

In the case of a facial constitutional challenge,

once standing is established, the individual application of facts
is not at issue, and a plaintiff’s personal situation becomes
irrelevant.

See Ezell v. City of Chicago, 651 F.3d 684, 697 (7th

Cir. 2011) (citing Reno v. Flores, 507 U.S. 292, 300–01 (1993)).
Accordingly, that plaintiffs already possess a weapons license does

Civil No. 12-1218 (FAB)

13

not mean they have failed to state a claim for their facial
challenge to the P.R. Weapons Act.
Defendants’

second

argument,

however,

cuts

foundation of plaintiffs’ constitutional challenge.

to

the

“A statute is

presumed constitutional, and the burden is on the one attacking the
legislative arrangement to negative every conceivable basis which
might support it, whether or not the basis has a foundation in the
record.”

Heller v. Doe, 509 U.S. 312, 320-21 (1993) (internal

quotations

and

legislative
challenge

citations

act,

to

omitted).

moreover,

mount

is

A

facial

considered

successfully,

since

“the
the

challenge
most

to a

difficult

challenger

must

establish that no set of circumstances exists under which the act
would be valid.”

Salerno, 481 U.S. at 745.

To prevail on a facial

challenge,3 plaintiffs must therefore establish that “no set of
circumstances exist under which [P.R. Weapons Act sections 456a and
456d] would be valid.”

3

McGuire v. Reilly, 386 F.3d 45, 57 (1st

The Supreme Court has explained that facial challenges are
inherently disfavored because they “rest on speculation,” “raise
the risk of premature interpretation of statutes on the basis of
factually barebones records,” “run contrary to the fundamental
principle of judicial restraint,” and “threaten to short circuit
the democratic process by preventing laws embodying the will of the
people from being implemented in a manner consistent with the
Constitution.”
Hightower, 693 F.3d at 76–77 (citing Sabri v.
United States, 541 U.S. 600, 609 (2004); Ashwander v. TVA, 297 U.S.
288, 347 (1936); Ayotte v. Planned Parenthood of Northern New Eng.,
546 U.S. 320, 329 (2006)).

Civil No. 12-1218 (FAB)

14

Cir. 2004) (quoting United States v. Salerno, 481 U.S. 739 (1987).
“[T]his standard imposes a very heavy burden on a party who mounts
a facial challenge to a state statute.”

McCullen v. Coakley, 571

F.3d 167, 174 (1st Cir. 2009).
The Court finds that plaintiffs have not established in
their amended complaint that the challenged sections of the P.R.
Weapons Act would be invalid under all circumstances. Accordingly,
plaintiffs’ facial constitutional challenge does not state a claim
upon which relief may be granted.4

See Hightower, 693 F.3d at 78;

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

Court

addresses

In an abundance of caution, however,

plaintiffs’

claim

on

the

merits

and

nevertheless finds that sections 456a and 456d are constitutional.
C.

Constitutionality of Sections 456a and 456d
1.

The Terms of the P.R. Weapons Act
In Puerto Rico, the possession, carrying or using of

any firearm without a license is a criminal felony offense.

4

See

As the First Circuit Court of Appeals has recognized, an
attack that a statutory requirement confers too much discretion and
is not sufficiently connected to a sufficient government interest
“does not establish that there is no ‘plainly legitimate sweep’ of
circumstances” where an applicant may properly be denied a license
or permit to carry a weapon. See Hightower, 693 F.3d at 78.

Civil No. 12-1218 (FAB)

15

P.R. Laws Ann. tit 25, §§ 455–460k.

A weapons license is defined

as “the license issued by the [Puerto Rico Police] Superintendent
that authorizes the concessionaire to possess, carry and transport
arms and ammunition, and, depending on their category, to carry
firearms, target shooting or hunting.”
§ 455.

To obtain a weapons license, a petitioner must satisfy a

list of fourteen requirements.
this

P.R. Laws Ann. tit. 25,

case

challenge

the

See id. at § 456a.

constitutionality

of

Plaintiffs in
four

of

those

requirements: (1) the submission of a sworn statement attesting to
compliance with fiscal laws; (2) the purchase of a $100 internal
revenue stamp payable to the Puerto Rico Police; (3) the submission
of a sworn statement from three witnesses attesting to the fact
that the petitioner enjoys a good reputation in the community, does
not have a tendency to commit acts of violence, and that the
witness has no objection to the petitioner owning a firearm; and
(4) the submission of a negative certification of debt from the
Child Support Administration.

(See P.R. Laws Ann. tit 25, §§

456(a)(10)–(14); Docket No. 5.) Plaintiffs also claim that section
456a is facially invalid because it licenses a fundamental right
and because it vests state officials with uncontrolled discretion
to grant or deny weapons licenses.

(Docket No. 5 at p. 10.)

Civil No. 12-1218 (FAB)

16

Section 456d of the P.R. Weapons Act governs the
granting of a permit to carry a weapon.

To apply for a permit to

carry a weapon, a petitioner must have obtained a weapons license
pursuant to section 456a.

Plaintiffs challenge the following

requirements necessary to obtain a permit to carry a weapon: (1)
the

same

application

requirements

contained

in

section

456a

challenged above–the submission of third party affidavits, proof of
state tax and child support payments, and a physical and mental
abilities certification; (2) a sworn statement confirming that all
requirements established in section 456a are met and that the
entire contents of the application are true and correct; (3) the
payment

of

a

$250

internal

revenue

voucher

payable

to

the

Superintendent; and (4) a certification issued by an authorized
official of a gun club in Puerto Rico, stating that the petitioner
has passed a course in the correct and safe use and handling of
firearms.
Plaintiffs

(See P.R. Laws Ann. tit 25, § 456d; Docket No. 5.)
also

argue

that

section

456d

is

facially

unconstitutional because it vests the Superior Court of Puerto Rico
judges with uncontrolled discretion to issue or refuse to grant
permits to carry.

(Docket No. 5.)

Civil No. 12-1218 (FAB)
2.

17

The Second Amendment Right to Bear Arms
The Second Amendment 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.”
Const. amend. II.

U.S.

In United States v. Heller, the Supreme Court

found for the first time that the Second Amendment secured an
individual, not just a collective, right to bear arms.
570, 576–95 (2008).

554 U.S.

It elevated “above all other interests the

right of law-abiding, responsible citizens to use arms in defense
of hearth and home.”

Id. at 635.

The Court also declared,

however, that restraints exist on the Second Amendment right, which
is not absolute:
Like most rights, the right secured by the Second
Amendment is not unlimited . . . . [N]othing in our
opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms 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.5
Id. at 626-27.

The Supreme Court reiterated this reasoning in

McDonald v. City of Chicago, 130 S. Ct. 3020, 3047 (2010), stating,
“We made it clear in Heller that our holding did not cast doubt on
5

In an accompanying footnote, the Supreme Court offered an
important clarification of this passage: “We identify these
presumptively lawful regulatory measures only as examples; our list
does not purport to be exhaustive.” Id. at 627 n.26.

Civil No. 12-1218 (FAB)

18

such longstanding regulatory measures . . . . We repeat those
assurances here . . . . [I]ncorporation does not imperil every law
regulating firearms.”
The Supreme Court in Heller and McDonald left many issues
unresolved, however, and in the wake of those decisions, lower
courts have been faced with attempting to discern both the outer
limits of Second Amendment rights and the level of scrutiny that
should be applied to laws burdening those rights.

See Hightower,

693 F.3d at 72 n.8; United States v. Masciandaro, 638 F.3d 458,
466–67 (4th Cir. 2011).

The First Circuit Court of Appeals

recently declined to reach the issue of the Second Amendment’s
scope as to carrying firearms outside the vicinity of the home, but
it recognized the widespread disagreement between district courts
regarding that matter.
ultimately

reasoned,

See Hightower, 693 F.3d at 72 n.8.

however,

that

the

interest

“in

It

carrying

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

Id. at 72.

Interpreting Heller’s

language that “[l]icensing of the carrying of concealed weapons is
presumptively lawful,” the First Circuit Court of Appeals held that
“the government may regulate the carrying of concealed weapons
outside of the home.”

Hightower, 693 F.3d at 73.

Civil No. 12-1218 (FAB)
3.

19

Constitutional Analysis of Sections 456a and 456d
Plaintiffs attack the constitutionality of the P.R.

Weapons Act by: (1) arguing that sections 456a and 456d are
unconstitutional simply by virtue of licensing weapons possession
in Puerto Rico; (2) claiming that the Police Superintendent, state
officials, and Superior Court judges have uncontrolled discretion
in granting or denying weapons licenses and permits to carry
weapons; (3) objecting to the various requirements in sections 456a
and 456d as undue burdens on their Second Amendment rights; and (4)
arguing that the P.R. Weapons Act is discriminatory against the
average citizen in favor of certain current and former government
officials.

(See Docket No. 5.)

The Court finds all of plaintiffs’

contentions unavailing.
a.

Regulation is Not Unconstitutional
In light of the previously mentioned Supreme

Court and

First

regulations
presumptively

on

Circuit
the

lawful,

Court

carrying

of

Appeals

of

weapons

plaintiffs’

case

law declaring

outside

contention

that

the

home

the

mere

Civil No. 12-1218 (FAB)

20

licensing of weapons in Puerto Rico is unconstitutional fails.6
See Heller, 554 U.S. at 626–27; McDonald, 130 S. Ct. at 3047;
Hightower, 693 F.3d at 73–74.

Plaintiffs inform the Court of and

rely on a recent Seventh Circuit Court of Appeals case, Moore v.
Madigan, 2012 U.S. App. LEXIS 25264 (7th Cir. 2012), to argue that
a right to carry firearms outside the home exists under the Second
Amendment,

and

unconstitutional.

that

any

regulation

(Docket Nos. 5; 17; 30.)

of

that

right

is

While Moore indicates

that the right to bear arms for self-defense “is as important
outside the home as inside,” 2012 U.S. App. LEXIS 25264 at *22, the
Seventh

Circuit

Court

of

Appeals

ultimately

struck

down

the

Illinois statute in question for its uniquely restrictive, flat ban
on carrying guns outside the home.

Id. at *29.

The Court can readily distinguish the facts of
this case from those in Moore.

The law at issue in Moore posed a

complete prohibition on the possession of a handgun in public.
2012 U.S. App. LEXIS 25264 at *21.

6

To the contrary, sections 456a

Plaintiffs offer very little authority for their
proposition, citing only a recent Seventh Circuit Court of Appeals
case. Without having any additional legal authority to consider,
the Court is unpersuaded by plaintiffs’ contention that “regulating
a right and licensing a right [are] two very different things”–a
conclusion they reach by merely comparing the definitions of
“license” and “regulation” contained in the Merriam-Webster
Dictionary. (See Docket No. 17 at pp. 11–13.)

Civil No. 12-1218 (FAB)

21

and 456d of the P.R. Weapons Act do not enforce a total prohibition
on an individual’s right to carry a firearm; rather, they allow any
petitioner to gain lawful possession of or to carry a handgun by
complying with certain statutory requirements.

See United States

v. Colon-Quiles, 859 F. Supp. 2d 229, 233 (D.P.R. 2012).

As cases

like Heller, McDonald, Hightower, and Moore make clear, it is the
complete ban of weapons—not the mere regulation by licensing or
requiring permits—that is unconstitutional.

Heller, 554 U.S. at

626–29; McDonald, 130 S. Ct. at 3046–47; Hightower, 693 F.3d at 73;
Moore, 2012 U.S. App. LEXIS 25264 at *22–23.

Accordingly, because

sections 456a and 456d do not impose a flat ban on plaintiffs’
Second Amendment right to bear arms, the Court declines to find
those

sections

unconstitutional

solely

because

they

impose

regulations on the possession and carrying of firearms.
b.

The Government Does Not Enjoy Uncontrolled
Discretion
The

Court

finds

unpersuasive

plaintiffs’

argument that the Police Superintendent, state officials, and
Superior

Court

judges

enjoy

“uncontrolled

discretion.”

That

Civil No. 12-1218 (FAB)

22

contention appears7 to rest on a First Amendment theory of prior
restraints on speech, because Supreme Court cases analyzing the
text of the First Amendment “have long held that when a licensing
statute

allegedly

vests

unbridled

discretion

in

a

government

official over whether to permit or deny expressive activity, one
who is subject to the law may challenge it facially without the
necessity of first applying for, and being denied, a license.”
City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 755–56
(1988).
in

the

The Supreme Court recognized “time-tested knowledge that
arena

of

free

expression

a

licensing

statute

placing

unbridled discretion in the hands of a government official or
agency constitutes a prior restraint and may result in censorship.”
Id. at 757.

The First Circuit Court of Appeals, however, has

explicitly rejected the application of the prior restraint doctrine
to a Second Amendment context, Hightower, 693 F.3d at 80–83,
finding
7

the

First

Amendment

prior

restraint

and

overbreadth

Plaintiffs fail to cite persuasive or controlling legal
authority regarding uncontrolled discretion either in their amended
complaint or their opposition to defendants’ motion to dismiss.
(See Docket Nos. 5 & 17.) As the First Circuit Court of Appeals
admonished, “[j]udges are not mind-readers, so parties must spell
out their issues clearly, highlighting the relevant facts and
analyzing on-point authority.” Rodríguez v. Municipality of San
Juan, 659 F.3d 168, 175 (1st Cir. 2011).
This Court will not
engage in the task of developing and fleshing out legal
argumentation - that is the responsibility of the party requesting
relief. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).

Civil No. 12-1218 (FAB)

23

doctrines “a poor analogy for purposes of facial challenges under
the Second Amendment.”

Id. at 80.

Without any further guidance

from plaintiffs as to the legal foundation of their claim, the
Court

rejects

the

argument

that

the

P.R.

Weapons

Act

vests

“uncontrolled discretion” in government officials.
c.

Sections 456a and 456d Do Not Pose an Undue
Burden
The fate of Plaintiffs’ third argument depends

on the level of scrutiny required to analyze their claim.

As the

Court has previously noted, the Second Amendment can trigger
different

levels

of

scrutiny

based

on

restrictive law and the restricted activity.8
Supp. 2d at 235.

the

context

of

the

Colon-Quiles, 859 F.

Plaintiffs encourage the Court to adopt a strict

scrutiny standard of review, contending that “we are dealing with
a fundamental right contained in the U.S. Constitution applied to
the Commonwealth of Puerto Rico,” and thus it is “unequivocal” that
strict scrutiny applies.
p. 6.)

8

(Docket No. 17 at p. 23; Docket No. 5 at

Defendants disagree, citing the Court’s previous ruling in

The Court heeds the First Circuit Court of Appeals’ recent
admonition that the matter of determining “what sliding scales of
scrutiny might apply . . . [is] a vast terra incognita that courts
should enter only upon necessity and only then by small degree.”
Hightower, 693 F.3d at 74.
In order to evaluate plaintiffs’
remaining claim, the Court necessarily broaches the issue here.

Civil No. 12-1218 (FAB)

24

Colon-Quiles to argue that the adequate standard of review is
intermediate scrutiny.

(Docket No. 15 at p. 17.)

Intermediate

scrutiny

is

the

appropriate

standard under which to evaluate plaintiffs’ Second Amendment
claims.

Several circuit courts of appeals, including the First

Circuit Court of Appeals, have applied intermediate scrutiny in
Second Amendment cases to statutes identified as presumably “lawful
regulatory measures.” See, e.g., United States v. Booker, 644 F.3d
12, 25 (1st Cir. 2011) (requiring “some form of strong showing,
necessitating a substantial relationship between the restriction
and

an

important

governmental

objective”);

United

States

v.

Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011) (“A severe burden on
the core Second Amendment right of armed self-defense should
require strong justification.

But less severe burdens on the

right, laws that merely regulate rather than restrict, and laws
that do not implicate the central self-defense concern of the
Second Amendment, may be more easily justified.”).

Sections 456a

and 456d pose a less severe burden on the Second Amendment right to
bear arms, regulating only the manner in which a person may
exercise that right and not altogether prohibiting the exercise of
such

a

right;

thus,

strict

scrutiny

does

not

apply,

and

Civil No. 12-1218 (FAB)

25

intermediate scrutiny is the more appropriate standard of review.9
See Colon-Quiles, 859 F. Supp. 2d at 235.
Sections 456a and 456d of the P.R. Weapons Act
pass

constitutional

muster.

Under

an

intermediate

scrutiny

analysis, the Court must determine the following: whether the
asserted governmental

purpose

is

significant,

substantial,

or

important; whether the connection between the challenged regulation
and that governmental purpose is reasonable; and whether the
challenged regulation burdens the fundamental right at issue more
than is reasonably necessary. Id. (citing Marzzarella, 614 F.3d at
98 (articulating the requirements of intermediate scrutiny under
First Amendment case law.)
First, the Puerto Rico legislature enacted the
Puerto Rico Weapons Act “to achieve a more peaceful and reassuring
environment with greater public safety for [Puerto Rico] citizens

9

As numerous other courts and legal commentators recognize,
the application of intermediate scrutiny is consistent with the
text and structure of the Supreme Court’s reasoning in Heller.
See, e.g., United States v. Marzzarella, 614 F.3d 85, 91 (3rd Cir.
2010) (“By equating the list of presumptively lawful regulations
with restrictions on dangerous and unusual weapons, we believe the
Court intended to treat them equivalently--as exceptions to the
Second Amendment guarantee.”); Joseph Blocher, Categoricalism and
Balancing in First and Second Amendment Analysis, 84 N.Y.U. L.REV.
375, 413 (2009) (“Heller categorically excludes certain types of
‘people’ and ‘Arms’ from Second Amendment coverage, denying them
any constitutional protection whatsoever.”). Accordingly, strict
scrutiny does not apply.

Civil No. 12-1218 (FAB)

26

. . . [and] to achieve an effective solution to the problem of
controlling firearms in the hands of delinquents in Puerto Rico .
. . .”

Statement of Motives, Law No. 404, H.B. 3447 (Sept. 11,

2000).

The Supreme Court has consistently recognized that the

governmental interest in protecting public safety is important or
even compelling.

See Schenck v. Pro-Choice Network, 519 U.S. 357,

376 (1997); United States v. Salerno, 481 U.S. 739, 745 (1987);
Schall v. Martin, 467 U.S. 253, 264 (1984); Terry v. Ohio, 392 U.S.
1,

22

(1968).

The

interests

enumerated

by

the

Puerto

Rico

legislature, therefore, fall under the substantial and significant
government interest in ensuring the safety of all of its citizens.

Second, section 456a’s licensing requirements
and section 456d’s permit qualifications are substantially related
to that interest and do not pose an unreasonable burden.

In making

such a determination, “substantial deference to the predictive

Civil No. 12-1218 (FAB)

27

judgments of [the legislature]” is warranted.10 Turner Broad. Sys.,
Inc. v. FCC, 520 U.S. 180, 195 (1997); McCullen v. Coakley, 571
F.3d 167, 177 (1st Cir. 2009).

The Court’s role is therefore to

determine whether the legislature “has drawn reasonable inferences
based on substantial evidence.”

Turner Broad., 512 U.S. at 666,

and it concludes in this case that the Puerto Rico legislature has
done so.

The P.R. Weapons Act is no political whim, because the

Puerto Rico legislature has long appreciated the dangers inherent
in the possession and carrying of firearms.

Originally enacted in

1951,11 the P.R. Weapons Act has endured throughout the past half

10

The Supreme Court has long granted deference to legislative
findings regarding matters that are beyond the competence of
courts. See Holder v. Humanitarian Law Project, 130 S. Ct. 2705,
2727 (2010); Turner Broad. Sys., Inc., 520 U.S. at 195-96; Walters
v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 330-31 n.12
(1985). “In the context of firearm regulation, the legislature is
‘far better equipped than the judiciary’ to make sensitive public
policy judgments (within constitutional limits) concerning the
dangers in carrying firearms and the manner to combat those risks.”
Kachalsky v. County of Westchester, 2012 U.S. App. LEXIS 24363 at
*42–43 (citing Turner Broad., 512 U.S. at 665).
11

Even before 1951, the Puerto Rico government approved laws
regulating weapons. (See P.R. Camara de Representantes, Informe—P.
De la C. 3447, pp. 1–7 (June 15, 2000)).
Puerto Rico became
subject to the Criminal Code of 1902 with the change of sovereignty
in the early twentieth century.
Id. at 3. Criminalizing the
possession or carrying of firearms and other dangerous instruments
except when established by law, the Criminal Code of 1902
influenced future weapons legislation in Puerto Rico. Id. For
more than a century, the Puerto Rico legislature has consistently
regulated the possession and carrying of firearms, and the 1951
enactment of the P.R. Weapons Act demonstrates the legislature’s
enduring conclusion that restricting the possession and carrying of
firearms leads to public safety.

Civil No. 12-1218 (FAB)

28

century “as a means to control crime.”

Statement of Motives, Law

No. 404, H.B. 3447 (Sept. 11, 2000).

Recognizing a statistical

link between rising criminal activity in controlled substance
trafficking and the proliferation of illegal firearm use, the
Puerto Rico legislature acknowledged in 2000 that a major overhaul
of

the

P.R.

Weapons

Act

was

needed.12

It

then

promulgated

“innovative provisions . . . whose implementation will allow the
law enforcement agencies to be more effective in the fight against
crime . . . [and] to promote greater safety and the public welfare
of the People of Puerto Rico.”

Id.

Based on decades of review, the Puerto Rico
legislature made the reasonable inference that given the dangerous
nature of firearms, requiring a petitioner to submit payment and
documentation revealing his background, health, and character—like
third party affidavits as to the good reputation and non-violent
character of the petitioner, certification of petitioner’s physical
and mental abilities, confirmation of a successful gun club course
completion,

12

and

verification

of

state

tax

and

child

support

It stated, “Today, [September 11, 2000,] after four decades
of its approval, and although it has been extensively amended, it
is evident that the Weapons Law of Puerto Rico is not the most
effective juridical instrument to deal with the different
situations related to the handling of firearms on the Island.”
Statement of Motives, Law No. 404, H.B. 3447 (Sept. 11, 2000).

Civil No. 12-1218 (FAB)

29

payments—serves the Commonwealth’s interests in public safety. The
Court reminds plaintiffs that

in order to survive constitutional

scrutiny, those provisions need only be substantially related to
the Commonwealth’s important public safety interest; a perfect fit
between the means and the governmental objective is not required.
Accordingly, the Court finds that sections 456a and 456d are not
facially invalid as an unconstitutional burden because there is a
reasonable fit between the licensing and permit regulations and the
government’s compelling interest in public safety.
d.

The P.R. Weapons Act is Not Discriminatory
Finally,

plaintiffs

contend

that

the

P.R.

Weapons Act “gives special treatment and privilege” to government
officials, (Docket No. 5 at p. 8), which “discriminates against the
average citizen.”

Id. at p. 9; Docket No. 17 at p. 25.

In their

motion to dismiss, defendants argue that plaintiffs fail to state
the necessary requirements to succeed on such an equal protection13

13

The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall “deny to any person within its
jurisdiction the equal protection of the laws.” Plyler v. Doe, 457
U.S. 202, 216 (1982).

Civil No. 12-1218 (FAB)
claim.14

30

Given that plaintiffs’ Second Amendment challenge fails,

their equal protection claim is subject to rational basis review
because it involves no suspect classification.15
F.3d at 83.

Hightower, 693

As addressed above, sections 456a and 456d satisfy

Second Amendment review; therefore, they “necessarily pass[] the
rational basis test employed under the Equal Protection Clause.”
Id. (quoting McGuire v. Reilly, 260 F.3d 36, 50 (1st Cir. 2001)).
Regarding the statutory provisions that permit certain former and

14

Defendants also argue that plaintiff Danny Williams lacks
standing to challenge this provision because he is an active duty
Coastguardsman. (Docket No. 15 at p. 21.) Because the Court must
address the equal protection claim at least as to plaintiff
Gonzalez, it adjudicates the claim on the merits.
15

The classification plaintiffs draw from the P.R. Weapons Act
is between government officials and average citizens, which is far
from any previously deemed suspect class like race, religion, or
alienage. See New Orleans v. Dukes, 427 U.S. 297, 303 (1976).

Civil No. 12-1218 (FAB)

31

current government officials16 to possess and carry weapons, the
Court presumes the validity of the legislation and sustains it “if
the classification drawn by the statute is rationally related to a
legitimate [governmental] interest.”

City of Cleburne v. Cleburne

Living Ctr., Inc., 473 U.S. 432, 440 (1985).
deferential”

standard

that

deems

a

This is an “extremely

non-suspect

classification

unconstitutional “only if no legitimate basis can be imagined to
support it.”

Beauchamp v. Murphy, 37 F.3d 700, 707 (1st Cir.

1994).

16

“The Governor, legislators, mayors, secretaries, directors
and heads of agencies of the Government of Puerto Rico,
Commonwealth and federal judges, Commonwealth and federal
prosecutors, minor’s advocates, the Superintendent, members of the
Police Force, officials, agents and employees of the government of
Puerto Rico who because of their office and the duties they perform
are required to carry a weapon, and every law enforcement officer,
may carry weapons.
In addition, former governors, former
legislators, former superintendents, former Commonwealth and
federal judges, former Commonwealth and federal prosecutors, former
minor’s advocates, former mayors of Puerto Rico, and former law
enforcement officers may carry firearms, as long as they were
honorably retired, are not restricted by this chapter from owning
firearms, and in the case of former law enforcement officers, have
served in such a capacity for not less than ten (10) years. The
members of the United States Armed Forces and the Puerto Rico
National Guard may also carry the weapons assigned to them by said
organizations without a license while engaged in the official
duties of their office. To such ends, the Superintendent shall
establish an expedited procedure whereby the abovementioned
officials, with the exception of law enforcement officers and the
Superintendent him/herself, shall be granted a weapons license with
the corresponding permit to carry a weapon.” P.R. Laws Ann. tit
25, § 456c.

Civil No. 12-1218 (FAB)

32

Plaintiffs have not met their burden of proving
that the classification is “patently arbitrary, irrational, or
unrelated

to

a

legitimate

legislative

purpose,”

Nat’l

Educ.

Ass’n–R.I. v. Ret. Bd. of R.I. Employees’ Ret. Sys., 172 F.3d 22,
31 (1st Cir. 1999), and the Court finds that they cannot do so.
There is nothing irrational about a general rule allowing current
and former government officials to possess and carry firearms. The
sensitive nature of many of their jobs—protecting our communities
from crime
presiding

through
over

conducting

litigation,

arrests,
and

prosecuting

creating

criminals,

legislation,

example—subjects them to additional risks of danger.17

for

The P.R.

Weapons Act thus affords such officials an opportunity to defend
themselves and protect their families by having the right to
possess and carry firearms.

See id.

“Where, as here, there are

plausible reasons for [the legislature’s] action, our inquiry is at
an end.”

U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980).

Accordingly, the statute is rationally related to a legitimate

17

See Congress’ discussion of the background and need for
legislation called the Law Enforcement Officers Safety Act, 18
U.S.C. §§ 926(B)–(C), which allows certain current and retired
government officials to carry concealed weapons throughout the
United States in the interest of safety. H.R. Rep. No. 108–560, at
3–4 (2004).

Civil No. 12-1218 (FAB)

33

government interest in the welfare and safety of the government’s
officials, and plaintiffs’ equal protection claim must fail.
III. CONCLUSION
For

the

reasons

discussed

above,

the

Court

finds

that

plaintiffs fail to state a claim upon which relief can be granted
because

the

P.R.

Weapons

Act’s

regulation

of

firearms

is

constitutional; Puerto Rico government officials do not enjoy
uncontrolled discretion in granting or denying weapons licenses or
permits to carry weapons; sections 456a and 456d pass intermediate
scrutiny;

and

Accordingly,

the

the

P.R.

Court

Weapons
GRANTS

Act

is

not

defendants’

discriminatory.

motion

to

dismiss

pursuant to Rule 12(b)(6) and DISMISSES WITH PREJUDICE all of
plaintiffs’ claims.
IT IS SO ORDERED.
San Juan, Puerto Rico, December 21, 2012.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE