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Gould v. Morgan

United States Court of Appeals, First Circuit

November 2, 2018

MICHAEL GOULD, et al., Plaintiffs, Appellants,
MARK MORGAN, in his Official Capacity as Acting Chief of the Brookline Police Department; WILLIAM G. GROSS, in his Official Capacity as Commissioner of the Boston Police Department[*]; and COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL, Defendants, Appellees.


          David H. Thompson, with whom Peter A. Patterson, John D. Ohlendorf, Cooper & Kirk, PLLC, David D. Jensen, and David Jensen PLLC were on brief, for appellants.

          Stephen P. Halbrook, John Parker Sweeney, James W. Porter, III, T. Sky Woodward, and Bradley Arant Boult Cummings LLP on brief for National Rifle Association of America, Inc., amicus curiae.

          Mark Brnovich, Attorney General of Arizona, Oramel H. (O.H.) Skinner, Chief of Government Accountability & Special Litigation, Dominic E. Draye, Solicitor General, and Angela Kebric Paton, Assistant Solicitor General, Arizona Attorney General's Office, on brief for states of Arizona, Alabama, Arkansas, Georgia, Idaho, Indiana, Louisiana, Michigan, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming, amici curiae.

          Matthew M. McGarry, Assistant Corporation Counsel, City of Boston Law Department, with whom Peter M. Geraghty, Assistant Corporation Counsel, Office of Legal Advisor, Boston Police Department, was on brief, for appellee Evans.

          Jonathan E. Taylor, with whom John Buchheit, Office of Town Counsel, Deepak Gupta, and Gupta Wessler PLLC were on brief, for appellee Morgan.

          Timothy J. Casey, Assistant Attorney General, Government Bureau, with whom Maura Healey, Attorney General, was on brief, for appellee Massachusetts Office of the Attorney General.

          Gurbir S. Grewal, Attorney General of New Jersey, Andrew J. Bruck, Executive Assistant Attorney General, Jeremy M. Feigenbaum, Assistant Attorney General, Claudia Joy DeMitro and Adam D. Klein, Deputy Attorneys General, on brief, for states of New Jersey, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, New York, Rhode Island, and Virginia, and District of Columbia, amici curiae.

          E. Ross Cohen, Mark C. Fleming, Tasha J. Bahal, and Wilmer Cutler Pickering Hale and Dorr LLP on brief for Everytown for Gun Safety, amicus curiae.

          Ira M. Feinberg, Shaun M. Donnelly, and Hogan Lovells U.S. LLP on brief for various Professors of History and Constitutional Law, amici curiae.

          Simon J. Frankel, Nandini Singh, Allison M. Whelan, Covington & Burling LLP, J. Adam Skaggs, and Hannah Shearer on brief for Giffords Law Center to Prevent Gun Violence, amicus curiae.

          Antonio J. Perez-Marques, David B. Toscano, Kevin Osowski, Sushila Rao, Anne Burton-Walsh, and Davis Polk & Wardwell LLP for Prosecutors Against Gun Violence, amicus curiae.

          Before Thompson, Selya, and Kayatta, Circuit Judges.


         This case involves a constitutional challenge to the Massachusetts firearms licensing statute, as implemented in the communities of Boston and Brookline. All of the individual plaintiffs sought and received licenses from one of those two communities to carry firearms in public. The licenses, though, were restricted: they allowed the plaintiffs to carry firearms only in relation to certain specified activities but denied them the right to carry firearms more generally.

         The plaintiffs say that the Massachusetts firearms licensing statute, as implemented in Boston and Brookline, violates the Second Amendment. The district court disagreed, and so do we. Mindful that "the right secured by the Second Amendment is not unlimited," District of Columbia v. Heller, 554 U.S. 570, 626 (2008), we hold that the challenged regime bears a substantial relationship to important governmental interests in promoting public safety and crime prevention without offending the plaintiffs' Second Amendment rights. Accordingly, we affirm the district court's entry of summary judgment for the defendants. In the last analysis, the plaintiffs simply do not have the right "to carry arms for any sort of confrontation" or "for whatever purpose" they may choose. Id. at 595, 626 (emphasis omitted).

         I. BACKGROUND

         We start by rehearsing the applicable statutory and regulatory scheme and then recount the travel of the case. In Massachusetts, carrying a firearm in public without a license is a crime. See Mass. Gen. Laws ch. 269, § 10(a); see also Hightower v. City of Bos., 693 F.3d 61, 65 (1st Cir. 2012). The Massachusetts firearms licensing statute "is part of a large regulatory scheme to promote the public safety." Commonwealth v. Davis, 343 N.E.2d 847, 849 (Mass. 1976). Under its current incarnation, Mass. Gen. Laws ch. 140, § 131, an individual may request a license to carry a firearm in public by submitting an application to the appropriate licensing authority, which is defined as either the applicant's local "chief of police or the board or officer having control of the police in a city or town, or persons authorized by them." Id. § 121; see § 131(d). Such a license allows the holder to:

purchase, rent, lease, borrow, possess and carry: (i) firearms, including large capacity firearms, and feeding devices and ammunition therefor, for all lawful purposes, subject to such restrictions relative to the possession, use or carrying of firearms as the licensing authority deems proper; and (ii) rifles and shotguns, including large capacity weapons, and feeding devices and ammunition therefor, for all lawful purposes; provided, however, that the licensing authority may impose such restrictions relative to the possession, use or carrying of large capacity rifles and shotguns as it deems proper.

Id. § 131(a). For this purpose, a firearm is defined as "a stun gun or 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." Id. § 121.

         The Massachusetts statute describes the circumstances in which a license to carry may be granted, denied, revoked, or restricted to particular uses. See id. § 131. Pertinently, a local licensing authority "may issue [a license] if it appears that the applicant is not a prohibited person . . . and that the applicant has good reason to fear injury . . . or for any other reason, including the carrying of firearms for use in sport or target practice only." Id. § 131(d). An applicant is a "prohibited person" if the licensing authority determines, inter alia, that he is a convicted felon, that he is younger than twenty-one years of age, or that he is otherwise unsuitable (by reason of, say, mental illness or involvement in domestic violence) to receive a license to carry. Id.; see generally Chief of Police of Worcester v. Holden, 26 N.E.3d 715, 724 (Mass. 2015) (discussing "suitable person" standard).

         Once the licensing authority satisfies itself that the applicant is not a prohibited person, it may issue a license to carry as long as "the applicant can demonstrate a 'proper purpose' for carrying a firearm." Ruggiero v. Police Comm'r of Bos., 464 N.E.2d 104, 107 (Mass. App. Ct. 1984). Refined to bare essence, the statute identifies two pillars upon which the granting of a license to carry may rest: (1) good reason to fear injury, and (2) other reasons (such as sport or target practice). See id. Municipalities differ in their requirements for an applicant to establish eligibility based on the first pillar. Boston and Brookline have both promulgated policies requiring that an applicant furnish some information to distinguish his own need for self-defense from that of the general public. This requirement - which is the focal point of the plaintiffs' challenge - means that the applicant must identify a specific need, that is, a need above and beyond a generalized desire to be safe. Cf. id. at 108 (finding insufficient applicant's statement that he had no intention of "spend[ing] his entire life behind locked doors [and was] a potential victim of crimes against his person").

         An applicant who does not demonstrate a good reason to fear injury either to himself or to his property may still receive a license to carry a firearm; subject, however, to such restrictions as the licensing authority deems meet. See Mass. Gen. Laws ch. 140, § 131(a), (d). The statutory scheme vests in the licensing authority discretion to decide, on a case-by-case basis, whether and to what extent a restricted license should be issued. See id. Under this arrangement, a licensing authority may issue a restricted license that permits the carrying of a firearm only when the applicant is engaged in the particular activities specified in his application. See Ruggiero, 464 N.E.2d at 107 & n.5.

         Not all communities offer the same types of restricted licenses. Boston offers licenses restricted to employment, hunting and target practice, or sport. For its part, Brookline offers licenses subject to restrictions for employment, hunting, target practice, sport, transport, domestic (use only in and around one's home), or collecting. A license restricted to employment allows the licensee to carry a firearm for all employment-related purposes, that is, while working and while traveling to and from work. A license restricted to hunting allows the licensee to carry a firearm for lawful hunting of game and fowl. Similarly, a license restricted to sport allows the licensee to carry a firearm while partaking in hunting, target practice, and a wide variety of outdoor recreational activities (such as hiking, camping, and cross-country skiing).

         In Boston, slightly more than forty percent of all licenses are issued without restrictions of any kind. In Brookline, the number shrinks to approximately thirty-five percent.[1] Every such license (whether or not restricted) permits the licensee to keep and carry firearms for personal protection in the home.

         Once issued, a license may be revoked or suspended "upon the occurrence of any event that would have disqualified the holder from being issued such license or from having such license renewed" or "if it appears that the holder is no longer a suitable person to possess such license." Mass. Gen. Laws ch. 140, § 131(f). Any person "aggrieved by a denial, revocation, suspension or restriction placed on a license" may seek judicial review. Id.; see Hightower, 693 F.3d at 67. Such redress must be sought within ninety days when challenging a denial, revocation, or suspension. See Mass. Gen. Laws ch. 140, § 131(f). In contrast, judicial review may be sought at "any time" when challenging a restriction. Id.

         Against this backdrop, we turn to the particulars of the case at hand. The individual plaintiffs (none of whom is a prohibited person) all reside in either Boston or Brookline. In each community, the local licensing authority is the chief of police.

         For present purposes, the firearms licensing policies of the two communities are not materially different. Both police departments review applications for firearms licenses individually, giving careful attention to each applicant and to his stated reasons for wanting a license. Each police chief has promulgated a policy to the effect that a generalized desire to carry a firearm for self-defense, without more, will not constitute "good reason" sufficient to warrant the issuance of an unrestricted license. Instead, Boston and Brookline require an applicant to articulate a reason to fear injury to himself or his property that distinguishes him from the general population. Applicants who are employed in certain vocations (specifically, physicians, attorneys, and police officers) are more likely to be granted unrestricted licenses in both communities.[2]

         The individual plaintiffs all sought and obtained licenses to carry firearms, but those licenses were issued with a variety of restrictions:

• Plaintiff Michael Gould is a professional photographer who lives in Brookline. In 2014, the Brookline Police Department granted him a license to carry firearms, restricted to employment and sport. These restrictions allow him to carry firearms on his person at home and whenever he is working with his high-priced photography equipment or when engaged in a range of recreational activities.
• Plaintiffs Christopher Hart, John Stanton, Danny Weng, and Sarah Zesch live in Boston. Each of them applied for an unrestricted firearms license but received a restricted license ...

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