O'Connell v. Gross et al

1:19-cv-11654-FDS

2020 | Cited 0 times | D. Massachusetts | April 10, 2020

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS __________________________________________ , ) Plaintiff, ) Civil Action No. v. ) 19-11654-FDS WILLIAM G. GROSS, Commissioner of the ) Boston Police Department; JOHN ) MCDONOUGH, Lieutenant Detective ) Licensing Unit; ANGELA COLEMAN, ) Police Officer; and COMMONWEALTH ) OF MASSACHUSETTS OFFICE OF THE ) ATTORNEY GENERAL, ) Defendants. ) __________________________________________)

MEMORANDUM AND ORDER ON MOTIONS TO DISMISS SAYLOR, C.J. This is a case involving a claim that certain firearm-licensing fees violate the Second Amendment. Plaintiff , who is proceeding pro se, is a Massachusetts citizen who applied for a license to carry a firearm in Boston. in the course of pursuing a license he incurred various expenses, including a $100 application fee, a $100 fee to take a safety course at a private facility, and a $100 fee for another course at the same facility. He contends that the costs associated with state and city license requirements impermissibly burden the exercise of his Second Amendment rights. On August 1, 2019, against Boston Police Department Commissioner William G. Gross, then-Lieutenant Detective John McDonough, Officer Angela Coleman, and the Massachusetts . He seeks an injunction against all licensing regulations that require fees from applicants, as well as money damages. ffice has moved to dismiss for lack of subject-matter jurisdiction or, in the alternative, because the complaint fails to state a claim upon which relief can be granted. Defendants Gross, McDonough, and Coleman have also moved to dismiss for failure to state a claim. For the following reasons, both motions will be granted. I. Background Unless otherwise noted, the following facts are as alleged in the complaint. A. Regulatory Framework The regulatory framework at issue arises under both state and local law. In Massachusetts, it is a crime to possess a firearm in public without a valid license to carry . Mass. Gen. Laws ch. 269, § 10(a). An LTC may be requested by application pursuant to Mass. Gen. Laws ch. 140, § 131(d). is defined as either the applicant's local police chief or the board or officer having control of the

police in a city or town. §§ 121, 131(d). Massachusetts law specifies the circumstances under which licenses may be granted, revoked, and restricted. See § 131. To submit an application for an LTC, individuals must pay a $100 application fee. § 131(i). Of that fee, $25 is retained by the licensing authority; $50 is deposited into the General Fund of the Commonwealth, with provides at least $50,000 to the Firearm Licensing Review Board; and the remaining $25 is deposited into the Firearms Fingerprint Identity Verification Trust Fund. § 131(i). In addition to paying the certificate, . § 131P(a). No Massachusetts statute expressly precludes or permits the imposition of a fee for obtaining such a certificate. See § 131P(b). Additional licensing steps may be required by the local licensing authority. In Boston, the licensing authority requires applicants to undergo an interview with a police officer and to complete a live course at the Boston Police Firearms Range on Moon Island in Quincy, Massachusetts. See Gould v. Morgan, 907 F.3d 659, 662 (1st Cir. 2018); (Compl. Ex. 6, 11). After completing those steps, applicants may obtain an LTC, which, absent revocation, Mass. Gen. Laws ch. 140, § 131(i). B. Payment of Fees

Plaintiff is a resident of the city of Boston. According to the complaint, he is seeking an LTC for personal safety reasons. (Compl. 1; id. Ex. 9).

an LTC by obtaining a firearm safety certificate. (Compl. Ex. 1 ¶ 2). To complete his firearm safety training, he paid a fee of $100 to Mass Firearms School, a private firearms training facility located in Holliston, Massachusetts. (Id.).

O n LTC. (Id. ¶ 1). member of the Licensing Unit of the Boston Police Department. (Id. ¶ 8).

To obtain his LTC, needed to participate in the live course and classroom lecture at a Boston Police facility in Quincy. (Id. ¶¶ 11-12). In anticipation of that course, $100 to Mass Firearms School to learn how to handle the revolver used in the course. (Id. ¶ 12).

alleges that he has incurred $300 in expenses and spent 15 hours of his time pursuing his LTC. (Id. Ex. 2 ¶ 3). He still has not completed the live course, but asserts that he

C. Procedural Background On August 1, 2019, . It alleges that the firearm licensing regulations of the City of Boston and the Commonwealth of Massachusetts constructively require Id. ¶ 6). He contends that the costs associated with these regulations create an unlawful burden on his constitutional rights. (Id. ¶¶ 3-6). 1

In addition, he seeks compensation for the time he spent going through the licensing process, which he values at $35 an hour. (Id.).

Although the complaint does not specify a statute giving rise to his cause of action, claims of alleged constitutional violations by state actors are typically brought under 42 U.S.C. § 1983. Kinton The Court will presume that to be the case here.

First, he seeks injunctive relief in the form of

the expenses . . . that applicants incur when applying for a gun permit . . . Second, he seeks damages for the money and time he has spent pursuing his LTC. (Id. ¶¶ 2-3).

He requests $825 in damages, a number he calculates by adding $300 in out-of-pocket expenses

1 his constitutional rights under the Second Amendment. , No. 15-cv-10096-DJC, 2015 WL 9581735, at *1 (D. Mass. Dec. 30, 2015). The court dismissed possession and storing of firearms is well-established as a matte Id. at *4. to a $525 value for his time. (Id. ¶ 3). 2

He also seeks $400 in court fees. (Id.). Thus, construed generously, the complaint asserts a § 1983 claim challenging the constitutionality of the fees associated with the Massachusetts licensing scheme as it operates in the City of Boston. does not claim that any of the non-fee provisions of the scheme are themselves unconstitutional, he is suing for money damages to reimburse him for his time spent pursuing his LTC. The has moved to dismiss for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and, in the alternative, failure to state a claim under Fed. R. Civ. P. 12(b)(6). separately moved to dismiss for failure to state a claim under Fed. R. Civ. P.

12(b)(6). II. Legal Standard -plead[ed] facts and give . . . Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). be enough to raise a right to relief above the speculative level, . . . on the assumption that all the Id. at 555 (citations omitted). sheer possibility that a defendant has acted unlawfu Ashcroft v. Iqbal, 556 U.S. 662, 678

2 The complaint alleges that he hour. (Compl. Ex. 2 ¶ 3). (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the complaint fails to set

Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).

A document filed by a pro se pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation marks omitted); see also must be construed so as However, while pro se complaints are accorded an

, Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991), they still must lement Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1998). III. Analysis A. Motion of The A has moved to dismiss the claim for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) or, in the alternative, for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). To the extent that the complaint is construed to be a suit against the Attorney General in her official capacity seeking prospective injunctive relief, cf. Ex Parte Young, 209 U.S. 123 (1908), it fails to state a claim for the reasons set forth below as to the Boston Defendants. To the extent that it is construed to be a suit against the for money damages, it is barred by the sovereign-immunity doctrine of the Eleventh Amendment. As a general matter, states are immune under the Eleventh Amendment from private suit Wojcik v. Massachusetts State Lottery Comm'n, 300 F.3d 92, 99 (1st Cir. 2002) (internal quotations omitted). See also Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (unless a . . . a State . The Eleventh authorizing such a suit pursuant to a valid exercise of power. Second, a State may waive its

sovereign immunity by consenting to be sued in federal Maysonet-Robles v. Cabrero, 323 F.3d 43, 49 (1st Cir. 2003) (internal citations omitted). Eleventh Amendment sovereign immunity is jurisdictional in nature, and absent waiver, neither a State nor its agencies acting under its control may be subject to suit in federal court. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993).

The is a department of the state government, and therefore falls within the ambit of the Eleventh Amendmen . See, e.g., Mass. Gen. Laws ch. 12, § 1. See generally Wojcik, 300 F.3d at 99-101. Furthermore, the complaint fails to implicate either of the exceptions to that immunity. It is well- Colon-Rivera v. Puerto Rico Dept. of Social Services, 736 F.2d 804, decision in Quern v. Jordan, 440 U.S. 332, 341 (1979)); see also Will v. Michigan Dep't of State

Police 1983). Furthermore, the Commonwealth has not waived its immunity in the context of this suit or statute. See generally Mass. Gen. Laws ch. 140, §§ 131, 131P (containing no waiver language); cf. College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 680 (1999) (holding that sovereign immunity may be waived only if a state legislature

Accordingly, to the extent that the complaint seeks money damages against the Attorney will be dismissed for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). B. Motion of Boston Defendants The Boston Defendants have moved to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). 3

Massachusetts and Boston licensing regime unconstitutionally burden his Second Amendment right. (See Compl. Ex. 1 ¶ 6 -pecuniary licensing requirements are unconstitutional he takes issue only with the financial costs.

Section 1983 supplies a private right of action against a person who, under color of state Redondo Borges

3 The Boston Defendants also contend that claim preclusion should bar the suit. Although it is true that , see , WL 9581735 (D. Mass. Dec. 30, 2015), the court dismissed that claim primarily, if not entirely, on ripeness grounds. Because a dismissal on ripeness grounds is jurisdictional, see, e.g., Valentin v. Hosp. Bella Vista, 254 F. 3d 358, 363 (1st Cir. 2001), the earlier case was not resolved on the merits and claim preclusion does not apply. See also Airframe Systems, Inc. v. Raytheon Co., 601 Claim preclusion applies if (1) the earlier suit resulted in a final judgment on the merits, (2) the causes of action asserted in [two] suits are sufficiently identical or related, and (3) the parties in the two suits are sufficiently identical . . . [A]ny dismissal not under this rule except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 operates as an adjudication on the merits . In any event, even if the court in that case did reach issues beyond ripeness, the complaint was dismissed without prejudice. See Unless the dismissal order states otherwise, a dismissal under this subdivision . . . operates as an adjudication on the merits. (emphasis added). v. U.S. Dep't of Hous. & Urban Dev., 421 F.3d 1, 7 (1st Cir. 2005) (quoting Evans v. Avery, 100 F.3d 1033, 1036 (1st Cir. 1996)). A cause of action under § 1983 requires proof of two elements: and second, that conduct must have worked a deprivation of rights guaranteed by the

Constitution or laws of the United States. Grajales v. P.R. Ports Auth., 682 F.3d 40, 46 (1st Cir. 2012) (quoting Martinez v. Colon, 54 F.3d 980, 984 (1st Cir. 1995)). As set forth below, because the complaint fails to allege the second element of a § 1983 claim, the motion to dismiss will be granted. 1. The first question is whether the financial costs at issue were imposed by persons acting under color of state law. alleges that the Boston licensing regime has cost him $300. He paid the first $100 to Mass Firearms School for a Firearm Safety Certificate, (Compl. Ex 1, ¶ 2); the second $100 alongside his application as required by statute, (Id. ¶ 1); and the final $100 to Mass Firearms School for additional instruction to prepare for the live course required in Boston, (Id. ¶ 12). The Court is skeptical that the imposition of fees by a private firearms school satisfies the requirement. Both fees involved payments made to a private party that were not directly required by any statute. However, because Jarvis v. Village Gun Shop, Inc., 805 F.3d 1, 8 (1st Cir. 2015), for present purposes

the Court will assume that all three of the fees were, in one form or another, charged or required by persons acting under color of state law. 2. Deprivation of a Constitutional Right The second question is whether the alleged conduct improperly deprived right guaranteed by the Constitution.

In Gould v. Morgan, the First Circuit adopted a two-step approach for analyzing Second Amendment claims. 907 F.3d 659, 668-69 (1st Cir. 2018) Under this approach, the court first asks whether the challenged law burdens conduct that falls within the scope of the Second Amendment's guarantee. This is a backward-looking inquiry, which seeks to determine whether the regulated conduct was understood to be within the scope of the right at the time of ratification . . . . If the challenged law imposes no such burden, it is valid. If, however, it burdens conduct falling within the scope of the Second Amendment, the court then must determine what level of scrutiny is appropriate and must proceed to decide whether the challenged law survives that level of scrutiny. Id. (internal quotations and citations omitted). The Court will analyze the fees at issue under that framework. a. Scope of Second Amendment Right The Court will first assume, without deciding, that the challenged fees burden conduct

In Gould, plaintiffs challenged the Boston and Brookline firearm-licensing schemes, which granted unrestricted firearm licenses only fear Id. at 664. The First Circuit, after considering regional approaches to firearms regulations in the first half of the nineteenth century, found the scope of the Second Amendment right outside of the home to be difficult to determine accurately. Id. at 670. Accordingly, and in the absence of specific guidance from the Supreme Court, the court proceed[ed] on the assumption that the Boston and Brookline policies burden the Second Amendment right to carry a firearm for self-defense. Id.; see also Worman v. Healy, 922 F.3d 26, 36 (1st Cir. 2019) (assuming, without deciding, that partial assault-weapon ban burdened conduct within Second Amendment right). That approach is also appropriate here. b. Level of Scrutiny The Court will next consider what level of scrutiny must be applied to the challenged fees. Strict scrutiny does not automatically attach to every right enumerated in the Constitution. Gould, 907 F.3d at 670 (citing Kelo v. City of New London, 545 U.S. 469, 480 (2005) (refusing to apply strict scrutiny in Takings Clause context); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (applying intermediate scrutiny to content-neutral time, place, and manner restriction challenged on First Amendment grounds)). In the Second Amendment context the appropriate level of scrutiny [] turn[s] on how closely a particular law or policy approaches the core of the Second Amendment right and how heavily it burdens that right. Id. at 670-71 (citing Nat'l Rifle Ass'n of Am., Inc. v. Bureau of ATFE, 700 F.3d 185, 195 (5th Cir. 2012); Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011)). Amendment right is limited to self- Id. at 671 (citing Hightower v. City of Boston, 693 F.3d 61, 72 (1st Cir. 2012)). The first inquiry, then, is whether the fees at issue burden the right of self-defense within The fees do in fact impose a financial cost on legally owning a firearm, regardless of its intended purpose. And has expressly stated that his purpose for wanting an LTC But even if the Boston licensing requirements burden the core Second Amendment right, intermediate scrutiny may still be appropriate. In Worman v. Healey, the First Circuit considered assault weapons and large-

level of scrutiny to apply, the court declined to state definitively that the law did not, at least to some degree - Id. at 37. However, the court held ed regulation either fails to implicate the core Second Amendment right or fails to impose a Id. at 38. In other words, even if the law at issue burdens the right to self-defense within the home, intermediate scrutiny must be applied if the burden is not substantial. Assuming, without deciding, that the challenged law burdens the core Second Amendment right, intermediate scrutiny remains appropriate. The fees at issue surely present a lesser burden on the core Second Amendment right than the regulation in Worman. In Worman, with a whole class of banned weapons and equipment. 922 F.3d at 30. Here, in contrast, the

complaint challenges the payment of $300 in fees in the context of a six-year license. (Compl. Ex. 6); see also Mass. Gen. Laws ch. 140, § 131. Those fees present, at most, a marginal burden on the core Second Amendment right; the right remains entirely intact for anyone who has paid the fees and otherwise qualified for an LTC. This conclusion comports with caselaw in other circuits. . Tyler v. , 837 F.3d 678, 692 (6th Cir. 2016); see also, e.g., Drake v. Filo, 724 F.3d 426, 436-37 (3d Cir. 2013) (applying intermediate scrutiny to New Jersey Tyler, 837 F.3d at 691-92 (applying intermediate scrutiny to application of 18 U.S.C. § 922(g)); Silvester v. Harris, 843 F.3d 816, 827 (9th Cir. 2016) (applying intermediate scrutiny to regulation that imposed 10-day waiting period); Bonidy v. U.S. Postal Service, 90 F.3d 1121, 1126 (10th Cir. 2015) (applying intermediate scrutiny to U.S. Postal Service regulation on firearm possession in and around buildings). Furthermore, courts have consistently assessed firearm-licensing fees under an intermediate-scrutiny standard. In Kwong v. Bloomberg, the Second Circuit held that a provision of the New York City Administrative Code did not violate the Second Amendment in charging a $340 fee for New York City residents to obtain a handgun permit. 723 F.3d 160, 161 (2d Cir. 2013). 4

In that case, the fee was $340 for a three-year permit more than twice the per-year costs at issue here. Id. The court held that strict scrutiny was inappropriate and considered the challenged law under intermediate scrutiny. Id. at 167-68 e find it difficult to say that the licensing fee, which amounts to just over $100 per year, is anything more than a marginal, incremental or even appreciable restraint on one's Second Amendment rights . . . quotations omitted). The court noted that the mere fact that a right became more expensive did

scrutiny may be too stringent. Id. at 168. See also Bauer v. Becerra, 858 F.3d 1216, 1222 (9th Cir. 2017) (applying intermediate scrutiny to fees of $19 on firearm purchases). Accordingly, an intermediate-scrutiny standard will be applied to the challenged fees.

4 The court actually considered this law under two frameworks. First, it found that the fee was permissible fee j Id. at 165-67. Second, unconstitutional b Id. at 167-69. c. Applying the Intermediate-Scrutiny Standard Under the intermediate-scrutiny standard to withstand a constitutional challenge. Gould, 907 F.3d at 672 (quoting Clark v. Jeter, 486 U.S. 456, 461(1988)). To achieve this substantial relationship, there must be a reasonable fit between the restrictions imposed by the law and the government's valid objectives, such that the law does not burden more conduct than is reasonably necessary. Worman, 922 F.3d at 38 (quoting Gould, 907 F.3d at 674). The first step in applying the intermediate-scrutiny standard involves identifying the government interest. statute] is twofold: to Gould, 907 F.3d at 673

(citing , 465 Mass. 314 (2013); Commonwealth v. Seay, 376 Mass. 735 (1978)). [F]ew interests are more central to a state government than protecting the safety and well- Gould, 907 F.3d at 673. The next question is whether the fees at issue [are] substantially related to those [government] Worman, 922 F.3d at 39. In assessing that relationship, the starting the premise that [the court Gould, 907 F.3d at 673 (quoting Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997)). While that premise does c a legislature's chosen means need not be narrowly tailored to achieve its ends: the fit between the asserted governmental interests and the means chosen by the legislature to advance them need only be substantial in order to withstand intermediate scrutiny Id. at 674. The c conduct than is reas Id. (quoting Drake, 724 F.3d at 436). Here, two of the costs associated with the licensing requirements, as noted, were private training-school fees: the $100 fee paid to a firearm-training school to obtain a safety certificate and the $100 fee to the same school to learn how to handle the revolver used in the mandatory Boston Police training course. 5

Both pass intermediate scrutiny. First, those costs are marginal in the context of a license that lasts for five to six years. Cf. Kwong, 723 F.3d at 161 (upholding $340 fee for firearms license lasting only three years); Heller III, 801 F.3d at 278 (upholding fees of $13 per firearm and $35 for fingerprinting as part of gun licensing scheme because administrative . . . provisions incidental to the underlying regime which include reasonable fees associated with registration are lawful insofar as the underlying regime is lawful. (quoting Heller v. District of Columbia (Heller II), 670 F.3d 1244,1249 (D.C. Cir. 2011)).

Second, each cost is tied to a requirement that surely advances the asserted government interest: the safety certificate and live course enhance public safety by ensuring that gun owners do not endanger themselves or others with unsafe practices. Furthermore, each requirement is structured so that it burdens no more protected conduct than is reasonably necessary. For example, the Massachusetts statute exempts from the safety- certificate requirement any individual who, whether employed by a state, armed service, or law enforcement agency, is weapon . . . See Mass. Gen. Laws ch. 140, § 131P(a). Additional instruction, leading to a certificate, is only required of those individuals who cannot be presumed to have been trained in firearm safety.

5 Again, the analysis will presume that both fees were imposed under color of state law. The $100 fee associated with the application also survives analysis under the intermediate-scrutiny standard. The proceeds from the fee are substantially, if not entirely, allocated towards defraying the costs of administering the state licensing scheme. Out of the $100 fee, $25 is directed to the licensing authority administering LTCs, $50 is directed to the general fund of the Commonwealth (which allocates at least $50,000 annually to the Firearm Licensing Review Board), and $25 is directed to the Firearms Fingerprint Identity Verification Trust Fund. Mass. Gen. Laws ch. 140, § 130B; see also Mass. Gen Laws ch. 29, § 2LLL (establishing Firearms Fingerprint Identity Verification Trust Fund to support state police background check system). Each of the entities that receives a portion of the application fee at licensing scheme is directly aimed at ensuring public safety and reducing crime, the fee is inherently tied to the government interest. Furthermore, that result comports with similar decisions around the country. See, e.g., Kwong, 723 F.3d at 161 (upholding $340 license fee); Heller III, 801 F.3d at 278 (upholding a $14 per-weapon fee and $35 fingerprint fee); Justice v. Town of Cicero, Ill., 827 F. Supp. 2d 835, 842 (N.D. Ill. 2011) (upholding $25 application fee). In sum, the disputed fees do not place an impermissible Amendment rights, and therefore they do not violate the Constitution. Accordingly, to the extent that the complaint seeks injunctive relief and money damages against the individual defendants, it fails to state a claim upon which relief can be granted and will be dismissed. IV. Conclusion For the foregoing reasons, both motions to dismiss are GRANTED. So Ordered. /s/ F. Dennis Saylor IV_ F. Dennis Saylor IV Dated: April 10, 2020 Chief Judge, United States District Court

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS __________________________________________ , ) Plaintiff, ) Civil Action No. v. ) 19-11654-FDS WILLIAM G. GROSS, Commissioner of the ) Boston Police Department; JOHN ) MCDONOUGH, Lieutenant Detective ) Licensing Unit; ANGELA COLEMAN, ) Police Officer; and COMMONWEALTH ) OF MASSACHUSETTS OFFICE OF THE ) ATTORNEY GENERAL, ) Defendants. ) __________________________________________)

MEMORANDUM AND ORDER ON MOTIONS TO DISMISS SAYLOR, C.J. This is a case involving a claim that certain firearm-licensing fees violate the Second Amendment. Plaintiff , who is proceeding pro se, is a Massachusetts citizen who applied for a license to carry a firearm in Boston. in the course of pursuing a license he incurred various expenses, including a $100 application fee, a $100 fee to take a safety course at a private facility, and a $100 fee for another course at the same facility. He contends that the costs associated with state and city license requirements impermissibly burden the exercise of his Second Amendment rights. On August 1, 2019, against Boston Police Department Commissioner William G. Gross, then-Lieutenant Detective John McDonough, Officer Angela Coleman, and the Massachusetts . He seeks an injunction against all licensing regulations that require fees from applicants, as well as money damages. ffice has moved to dismiss for lack of subject-matter jurisdiction or, in the alternative, because the complaint fails to state a claim upon which relief can be granted. Defendants Gross, McDonough, and Coleman have also moved to dismiss for failure to state a claim. For the following reasons, both motions will be granted. I. Background Unless otherwise noted, the following facts are as alleged in the complaint. A. Regulatory Framework The regulatory framework at issue arises under both state and local law. In Massachusetts, it is a crime to possess a firearm in public without a valid license to carry . Mass. Gen. Laws ch. 269, § 10(a). An LTC may be requested by application pursuant to Mass. Gen. Laws ch. 140, § 131(d). is defined as either the applicant's local police chief or the board or officer having control of the

police in a city or town. §§ 121, 131(d). Massachusetts law specifies the circumstances under which licenses may be granted, revoked, and restricted. See § 131. To submit an application for an LTC, individuals must pay a $100 application fee. § 131(i). Of that fee, $25 is retained by the licensing authority; $50 is deposited into the General Fund of the Commonwealth, with provides at least $50,000 to the Firearm Licensing Review Board; and the remaining $25 is deposited into the Firearms Fingerprint Identity Verification Trust Fund. § 131(i). In addition to paying the certificate, . § 131P(a). No Massachusetts statute expressly precludes or permits the imposition of a fee for obtaining such a certificate. See § 131P(b). Additional licensing steps may be required by the local licensing authority. In Boston, the licensing authority requires applicants to undergo an interview with a police officer and to complete a live course at the Boston Police Firearms Range on Moon Island in Quincy, Massachusetts. See Gould v. Morgan, 907 F.3d 659, 662 (1st Cir. 2018); (Compl. Ex. 6, 11). After completing those steps, applicants may obtain an LTC, which, absent revocation, Mass. Gen. Laws ch. 140, § 131(i). B. Payment of Fees

Plaintiff is a resident of the city of Boston. According to the complaint, he is seeking an LTC for personal safety reasons. (Compl. 1; id. Ex. 9).

an LTC by obtaining a firearm safety certificate. (Compl. Ex. 1 ¶ 2). To complete his firearm safety training, he paid a fee of $100 to Mass Firearms School, a private firearms training facility located in Holliston, Massachusetts. (Id.).

O n LTC. (Id. ¶ 1). member of the Licensing Unit of the Boston Police Department. (Id. ¶ 8).

To obtain his LTC, needed to participate in the live course and classroom lecture at a Boston Police facility in Quincy. (Id. ¶¶ 11-12). In anticipation of that course, $100 to Mass Firearms School to learn how to handle the revolver used in the course. (Id. ¶ 12).

alleges that he has incurred $300 in expenses and spent 15 hours of his time pursuing his LTC. (Id. Ex. 2 ¶ 3). He still has not completed the live course, but asserts that he

C. Procedural Background On August 1, 2019, . It alleges that the firearm licensing regulations of the City of Boston and the Commonwealth of Massachusetts constructively require Id. ¶ 6). He contends that the costs associated with these regulations create an unlawful burden on his constitutional rights. (Id. ¶¶ 3-6). 1

In addition, he seeks compensation for the time he spent going through the licensing process, which he values at $35 an hour. (Id.).

Although the complaint does not specify a statute giving rise to his cause of action, claims of alleged constitutional violations by state actors are typically brought under 42 U.S.C. § 1983. Kinton The Court will presume that to be the case here.

First, he seeks injunctive relief in the form of

the expenses . . . that applicants incur when applying for a gun permit . . . Second, he seeks damages for the money and time he has spent pursuing his LTC. (Id. ¶¶ 2-3).

He requests $825 in damages, a number he calculates by adding $300 in out-of-pocket expenses

1 his constitutional rights under the Second Amendment. , No. 15-cv-10096-DJC, 2015 WL 9581735, at *1 (D. Mass. Dec. 30, 2015). The court dismissed possession and storing of firearms is well-established as a matte Id. at *4. to a $525 value for his time. (Id. ¶ 3). 2

He also seeks $400 in court fees. (Id.). Thus, construed generously, the complaint asserts a § 1983 claim challenging the constitutionality of the fees associated with the Massachusetts licensing scheme as it operates in the City of Boston. does not claim that any of the non-fee provisions of the scheme are themselves unconstitutional, he is suing for money damages to reimburse him for his time spent pursuing his LTC. The has moved to dismiss for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and, in the alternative, failure to state a claim under Fed. R. Civ. P. 12(b)(6). separately moved to dismiss for failure to state a claim under Fed. R. Civ. P.

12(b)(6). II. Legal Standard -plead[ed] facts and give . . . Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). be enough to raise a right to relief above the speculative level, . . . on the assumption that all the Id. at 555 (citations omitted). sheer possibility that a defendant has acted unlawfu Ashcroft v. Iqbal, 556 U.S. 662, 678

2 The complaint alleges that he hour. (Compl. Ex. 2 ¶ 3). (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the complaint fails to set

Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).

A document filed by a pro se pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation marks omitted); see also must be construed so as However, while pro se complaints are accorded an

, Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991), they still must lement Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1998). III. Analysis A. Motion of The A has moved to dismiss the claim for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) or, in the alternative, for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). To the extent that the complaint is construed to be a suit against the Attorney General in her official capacity seeking prospective injunctive relief, cf. Ex Parte Young, 209 U.S. 123 (1908), it fails to state a claim for the reasons set forth below as to the Boston Defendants. To the extent that it is construed to be a suit against the for money damages, it is barred by the sovereign-immunity doctrine of the Eleventh Amendment. As a general matter, states are immune under the Eleventh Amendment from private suit Wojcik v. Massachusetts State Lottery Comm'n, 300 F.3d 92, 99 (1st Cir. 2002) (internal quotations omitted). See also Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (unless a . . . a State . The Eleventh authorizing such a suit pursuant to a valid exercise of power. Second, a State may waive its

sovereign immunity by consenting to be sued in federal Maysonet-Robles v. Cabrero, 323 F.3d 43, 49 (1st Cir. 2003) (internal citations omitted). Eleventh Amendment sovereign immunity is jurisdictional in nature, and absent waiver, neither a State nor its agencies acting under its control may be subject to suit in federal court. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993).

The is a department of the state government, and therefore falls within the ambit of the Eleventh Amendmen . See, e.g., Mass. Gen. Laws ch. 12, § 1. See generally Wojcik, 300 F.3d at 99-101. Furthermore, the complaint fails to implicate either of the exceptions to that immunity. It is well- Colon-Rivera v. Puerto Rico Dept. of Social Services, 736 F.2d 804, decision in Quern v. Jordan, 440 U.S. 332, 341 (1979)); see also Will v. Michigan Dep't of State

Police 1983). Furthermore, the Commonwealth has not waived its immunity in the context of this suit or statute. See generally Mass. Gen. Laws ch. 140, §§ 131, 131P (containing no waiver language); cf. College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 680 (1999) (holding that sovereign immunity may be waived only if a state legislature

Accordingly, to the extent that the complaint seeks money damages against the Attorney will be dismissed for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). B. Motion of Boston Defendants The Boston Defendants have moved to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). 3

Massachusetts and Boston licensing regime unconstitutionally burden his Second Amendment right. (See Compl. Ex. 1 ¶ 6 -pecuniary licensing requirements are unconstitutional he takes issue only with the financial costs.

Section 1983 supplies a private right of action against a person who, under color of state Redondo Borges

3 The Boston Defendants also contend that claim preclusion should bar the suit. Although it is true that , see , WL 9581735 (D. Mass. Dec. 30, 2015), the court dismissed that claim primarily, if not entirely, on ripeness grounds. Because a dismissal on ripeness grounds is jurisdictional, see, e.g., Valentin v. Hosp. Bella Vista, 254 F. 3d 358, 363 (1st Cir. 2001), the earlier case was not resolved on the merits and claim preclusion does not apply. See also Airframe Systems, Inc. v. Raytheon Co., 601 Claim preclusion applies if (1) the earlier suit resulted in a final judgment on the merits, (2) the causes of action asserted in [two] suits are sufficiently identical or related, and (3) the parties in the two suits are sufficiently identical . . . [A]ny dismissal not under this rule except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 operates as an adjudication on the merits . In any event, even if the court in that case did reach issues beyond ripeness, the complaint was dismissed without prejudice. See Unless the dismissal order states otherwise, a dismissal under this subdivision . . . operates as an adjudication on the merits. (emphasis added). v. U.S. Dep't of Hous. & Urban Dev., 421 F.3d 1, 7 (1st Cir. 2005) (quoting Evans v. Avery, 100 F.3d 1033, 1036 (1st Cir. 1996)). A cause of action under § 1983 requires proof of two elements: and second, that conduct must have worked a deprivation of rights guaranteed by the

Constitution or laws of the United States. Grajales v. P.R. Ports Auth., 682 F.3d 40, 46 (1st Cir. 2012) (quoting Martinez v. Colon, 54 F.3d 980, 984 (1st Cir. 1995)). As set forth below, because the complaint fails to allege the second element of a § 1983 claim, the motion to dismiss will be granted. 1. The first question is whether the financial costs at issue were imposed by persons acting under color of state law. alleges that the Boston licensing regime has cost him $300. He paid the first $100 to Mass Firearms School for a Firearm Safety Certificate, (Compl. Ex 1, ¶ 2); the second $100 alongside his application as required by statute, (Id. ¶ 1); and the final $100 to Mass Firearms School for additional instruction to prepare for the live course required in Boston, (Id. ¶ 12). The Court is skeptical that the imposition of fees by a private firearms school satisfies the requirement. Both fees involved payments made to a private party that were not directly required by any statute. However, because Jarvis v. Village Gun Shop, Inc., 805 F.3d 1, 8 (1st Cir. 2015), for present purposes

the Court will assume that all three of the fees were, in one form or another, charged or required by persons acting under color of state law. 2. Deprivation of a Constitutional Right The second question is whether the alleged conduct improperly deprived right guaranteed by the Constitution.

In Gould v. Morgan, the First Circuit adopted a two-step approach for analyzing Second Amendment claims. 907 F.3d 659, 668-69 (1st Cir. 2018) Under this approach, the court first asks whether the challenged law burdens conduct that falls within the scope of the Second Amendment's guarantee. This is a backward-looking inquiry, which seeks to determine whether the regulated conduct was understood to be within the scope of the right at the time of ratification . . . . If the challenged law imposes no such burden, it is valid. If, however, it burdens conduct falling within the scope of the Second Amendment, the court then must determine what level of scrutiny is appropriate and must proceed to decide whether the challenged law survives that level of scrutiny. Id. (internal quotations and citations omitted). The Court will analyze the fees at issue under that framework. a. Scope of Second Amendment Right The Court will first assume, without deciding, that the challenged fees burden conduct

In Gould, plaintiffs challenged the Boston and Brookline firearm-licensing schemes, which granted unrestricted firearm licenses only fear Id. at 664. The First Circuit, after considering regional approaches to firearms regulations in the first half of the nineteenth century, found the scope of the Second Amendment right outside of the home to be difficult to determine accurately. Id. at 670. Accordingly, and in the absence of specific guidance from the Supreme Court, the court proceed[ed] on the assumption that the Boston and Brookline policies burden the Second Amendment right to carry a firearm for self-defense. Id.; see also Worman v. Healy, 922 F.3d 26, 36 (1st Cir. 2019) (assuming, without deciding, that partial assault-weapon ban burdened conduct within Second Amendment right). That approach is also appropriate here. b. Level of Scrutiny The Court will next consider what level of scrutiny must be applied to the challenged fees. Strict scrutiny does not automatically attach to every right enumerated in the Constitution. Gould, 907 F.3d at 670 (citing Kelo v. City of New London, 545 U.S. 469, 480 (2005) (refusing to apply strict scrutiny in Takings Clause context); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (applying intermediate scrutiny to content-neutral time, place, and manner restriction challenged on First Amendment grounds)). In the Second Amendment context the appropriate level of scrutiny [] turn[s] on how closely a particular law or policy approaches the core of the Second Amendment right and how heavily it burdens that right. Id. at 670-71 (citing Nat'l Rifle Ass'n of Am., Inc. v. Bureau of ATFE, 700 F.3d 185, 195 (5th Cir. 2012); Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011)). Amendment right is limited to self- Id. at 671 (citing Hightower v. City of Boston, 693 F.3d 61, 72 (1st Cir. 2012)). The first inquiry, then, is whether the fees at issue burden the right of self-defense within The fees do in fact impose a financial cost on legally owning a firearm, regardless of its intended purpose. And has expressly stated that his purpose for wanting an LTC But even if the Boston licensing requirements burden the core Second Amendment right, intermediate scrutiny may still be appropriate. In Worman v. Healey, the First Circuit considered assault weapons and large-

level of scrutiny to apply, the court declined to state definitively that the law did not, at least to some degree - Id. at 37. However, the court held ed regulation either fails to implicate the core Second Amendment right or fails to impose a Id. at 38. In other words, even if the law at issue burdens the right to self-defense within the home, intermediate scrutiny must be applied if the burden is not substantial. Assuming, without deciding, that the challenged law burdens the core Second Amendment right, intermediate scrutiny remains appropriate. The fees at issue surely present a lesser burden on the core Second Amendment right than the regulation in Worman. In Worman, with a whole class of banned weapons and equipment. 922 F.3d at 30. Here, in contrast, the

complaint challenges the payment of $300 in fees in the context of a six-year license. (Compl. Ex. 6); see also Mass. Gen. Laws ch. 140, § 131. Those fees present, at most, a marginal burden on the core Second Amendment right; the right remains entirely intact for anyone who has paid the fees and otherwise qualified for an LTC. This conclusion comports with caselaw in other circuits. . Tyler v. , 837 F.3d 678, 692 (6th Cir. 2016); see also, e.g., Drake v. Filo, 724 F.3d 426, 436-37 (3d Cir. 2013) (applying intermediate scrutiny to New Jersey Tyler, 837 F.3d at 691-92 (applying intermediate scrutiny to application of 18 U.S.C. § 922(g)); Silvester v. Harris, 843 F.3d 816, 827 (9th Cir. 2016) (applying intermediate scrutiny to regulation that imposed 10-day waiting period); Bonidy v. U.S. Postal Service, 90 F.3d 1121, 1126 (10th Cir. 2015) (applying intermediate scrutiny to U.S. Postal Service regulation on firearm possession in and around buildings). Furthermore, courts have consistently assessed firearm-licensing fees under an intermediate-scrutiny standard. In Kwong v. Bloomberg, the Second Circuit held that a provision of the New York City Administrative Code did not violate the Second Amendment in charging a $340 fee for New York City residents to obtain a handgun permit. 723 F.3d 160, 161 (2d Cir. 2013). 4

In that case, the fee was $340 for a three-year permit more than twice the per-year costs at issue here. Id. The court held that strict scrutiny was inappropriate and considered the challenged law under intermediate scrutiny. Id. at 167-68 e find it difficult to say that the licensing fee, which amounts to just over $100 per year, is anything more than a marginal, incremental or even appreciable restraint on one's Second Amendment rights . . . quotations omitted). The court noted that the mere fact that a right became more expensive did

scrutiny may be too stringent. Id. at 168. See also Bauer v. Becerra, 858 F.3d 1216, 1222 (9th Cir. 2017) (applying intermediate scrutiny to fees of $19 on firearm purchases). Accordingly, an intermediate-scrutiny standard will be applied to the challenged fees.

4 The court actually considered this law under two frameworks. First, it found that the fee was permissible fee j Id. at 165-67. Second, unconstitutional b Id. at 167-69. c. Applying the Intermediate-Scrutiny Standard Under the intermediate-scrutiny standard to withstand a constitutional challenge. Gould, 907 F.3d at 672 (quoting Clark v. Jeter, 486 U.S. 456, 461(1988)). To achieve this substantial relationship, there must be a reasonable fit between the restrictions imposed by the law and the government's valid objectives, such that the law does not burden more conduct than is reasonably necessary. Worman, 922 F.3d at 38 (quoting Gould, 907 F.3d at 674). The first step in applying the intermediate-scrutiny standard involves identifying the government interest. statute] is twofold: to Gould, 907 F.3d at 673

(citing , 465 Mass. 314 (2013); Commonwealth v. Seay, 376 Mass. 735 (1978)). [F]ew interests are more central to a state government than protecting the safety and well- Gould, 907 F.3d at 673. The next question is whether the fees at issue [are] substantially related to those [government] Worman, 922 F.3d at 39. In assessing that relationship, the starting the premise that [the court Gould, 907 F.3d at 673 (quoting Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997)). While that premise does c a legislature's chosen means need not be narrowly tailored to achieve its ends: the fit between the asserted governmental interests and the means chosen by the legislature to advance them need only be substantial in order to withstand intermediate scrutiny Id. at 674. The c conduct than is reas Id. (quoting Drake, 724 F.3d at 436). Here, two of the costs associated with the licensing requirements, as noted, were private training-school fees: the $100 fee paid to a firearm-training school to obtain a safety certificate and the $100 fee to the same school to learn how to handle the revolver used in the mandatory Boston Police training course. 5

Both pass intermediate scrutiny. First, those costs are marginal in the context of a license that lasts for five to six years. Cf. Kwong, 723 F.3d at 161 (upholding $340 fee for firearms license lasting only three years); Heller III, 801 F.3d at 278 (upholding fees of $13 per firearm and $35 for fingerprinting as part of gun licensing scheme because administrative . . . provisions incidental to the underlying regime which include reasonable fees associated with registration are lawful insofar as the underlying regime is lawful. (quoting Heller v. District of Columbia (Heller II), 670 F.3d 1244,1249 (D.C. Cir. 2011)).

Second, each cost is tied to a requirement that surely advances the asserted government interest: the safety certificate and live course enhance public safety by ensuring that gun owners do not endanger themselves or others with unsafe practices. Furthermore, each requirement is structured so that it burdens no more protected conduct than is reasonably necessary. For example, the Massachusetts statute exempts from the safety- certificate requirement any individual who, whether employed by a state, armed service, or law enforcement agency, is weapon . . . See Mass. Gen. Laws ch. 140, § 131P(a). Additional instruction, leading to a certificate, is only required of those individuals who cannot be presumed to have been trained in firearm safety.

5 Again, the analysis will presume that both fees were imposed under color of state law. The $100 fee associated with the application also survives analysis under the intermediate-scrutiny standard. The proceeds from the fee are substantially, if not entirely, allocated towards defraying the costs of administering the state licensing scheme. Out of the $100 fee, $25 is directed to the licensing authority administering LTCs, $50 is directed to the general fund of the Commonwealth (which allocates at least $50,000 annually to the Firearm Licensing Review Board), and $25 is directed to the Firearms Fingerprint Identity Verification Trust Fund. Mass. Gen. Laws ch. 140, § 130B; see also Mass. Gen Laws ch. 29, § 2LLL (establishing Firearms Fingerprint Identity Verification Trust Fund to support state police background check system). Each of the entities that receives a portion of the application fee at licensing scheme is directly aimed at ensuring public safety and reducing crime, the fee is inherently tied to the government interest. Furthermore, that result comports with similar decisions around the country. See, e.g., Kwong, 723 F.3d at 161 (upholding $340 license fee); Heller III, 801 F.3d at 278 (upholding a $14 per-weapon fee and $35 fingerprint fee); Justice v. Town of Cicero, Ill., 827 F. Supp. 2d 835, 842 (N.D. Ill. 2011) (upholding $25 application fee). In sum, the disputed fees do not place an impermissible Amendment rights, and therefore they do not violate the Constitution. Accordingly, to the extent that the complaint seeks injunctive relief and money damages against the individual defendants, it fails to state a claim upon which relief can be granted and will be dismissed. IV. Conclusion For the foregoing reasons, both motions to dismiss are GRANTED. So Ordered. /s/ F. Dennis Saylor IV_ F. Dennis Saylor IV Dated: April 10, 2020 Chief Judge, United States District Court

Case Summary:
To generate a summary for O'Connell v. Gross et al click here.
Back to top