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Draper v. Healey

United States District Court, D. Massachusetts

March 5, 2015

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

Page 78

For Robert Draper, Ariel Weisberg, Donna Major, Eric Notkin, Robert Boudrie, Brent Carlton, Concord Armory, LLC, Precision Point Firearms, LLC, Commonwealth Second Amendment, Inc., Second Amendment Foundation, Inc., Plaintiffs: Alexander A. Flig, LEAD ATTORNEY, Law Office of Alexander A. Flig, Canton, MA.

For Maura T. Healey, Defendant: Glenn S. Kaplan, LEAD ATTORNEY, Massachsuetts Office of the Attorney General, Boston, MA; Eric M. Gold, Lydia E. French, Office of the Attorney General Martha Coakley, Boston, MA.

For Brady Center to Prevent Gun Violence, Amicus: John E. Roberts, LEAD ATTORNEY, PRO HAC VICE, Proskauer Rose LLP, Boston, MA; L. Scott Harshbarger, LEAD ATTORNEY, Laura E. Stafford, Proskauer Rose, LLP, Boston, MA.

Page 79

MEMORANDUM & ORDER

Nathaniel M. Gorton, United States District Judge.

Plaintiffs bring this action challenging the enforceability of 940 C.M.R. § 16.05(3) (" the regulation" ), a state regulation promulgated by defendant Attorney General of the Commonwealth of Massachusetts (" the AG" ) that requires load indicators or magazine disconnects on handguns sold by handgun dealers.[1]

There are three categories of plaintiffs: 1) individuals: Robert Draper, Ariel Weisberg, Donna Major, Eric Notkin, Robert Boudrie and Brent Carlton (collectively " consumer plaintiffs" ), 2) business entities: Concord Armory, LLC and Precision Point Firearms, LLC (collectively " dealer plaintiffs" ) and 3) non-profit organizations: Commonwealth Second Amendment, Inc. and Second Amendment Foundation, Inc. (collectively " organization plaintiffs" ).

I. Background

A. Challenged regulation

In 1997, the Attorney General of Massachusetts promulgated 940 CMR 16.00 et seq, a series of regulations relating to the sale of handguns within the Commonwealth. Plaintiffs bring constitutional challenges to subsection (3) of 940 C.M.R. § 16.05: Sale of Handguns Without Childproofing or Safety Devices which states that

[i]t shall be an unfair or deceptive practice for a handgun-purveyor to transfer or offer to transfer to any customer located within the Commonwealth any handgun which does not contain a load indicator or magazine safety disconnect.

940 CMR 16.05(3). The complaint specifically challenges the portion of the regulation that offers a load indicator as one alternative way to meet the safety standard. A load indicator is defined within the regulation as

a device which plainly indicates that a cartridge is in the firing chamber within the handgun.

940 CMR 16.01.

B. Procedural history

Between December, 2013 and May, 2014, various dealer and consumer plaintiffs

Page 80

sent letters to the AG inquiring whether the Generations 3 and 4 Glock pistols (" Gen3/4 Glock pistols" ) violate the regulation. In April and May, 2014, the Deputy Chief of the Attorney General's Consumer Protection Division responded to those letters explaining that the handguns presently manufactured by Glock are noncompliant " because they lack an effective load indicator or magazine safety disconnect."

In June, 2014, plaintiffs filed a complaint seeking declaratory judgments that the regulation 940 CMR 16.05(3) 1) violates the rights to due process under the Fourteenth Amendment of the dealer and organization plaintiffs because it is void for vagueness and void as applied and 2) violates the Second Amendment rights of the consumer plaintiffs. Defendant, in response, moved to dismiss the case and extensive briefing ensued. The Brady Center to Prevent Gun Violence also submitted an amicus brief in support of the defendant.

Oral argument on defendant's motion to dismiss was held in February, 2015. For the reasons that follow, defendant's motion will be allowed.

II. Standing

Defendant contends that the case should be dismissed because all plaintiffs lack standing.

A. Legal standard

Standing is a prerequisite for Article III jurisdiction and must be determined before addressing the merits of the case. See Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir. 2009). In order to establish standing, a plaintiff must show 1) an injury in fact, 2) a causal connection between the injury and the conduct complained of and 3) a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An injury in fact is one that is " concrete and particularized [and] actual or imminent, not conjectural or hypothetical" . Id. at 560 (internal citations and quotations omitted).

B. Application

1. Organization plaintiffs

An organization may bring suit on behalf of ...


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