United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS, U.S. DISTRICT COURT JUDGE.
Michael Lovering challenges the denial of his application for
a Massachusetts firearms license. In his Complaint, which
names the State of Massachusetts as the lone defendant, Mr.
Lovering alleges that his application was denied because he
was found to be an “unsuitable person.” [ECF No.
1 ¶ 2]. He contends that this denial violates his equal
protection, substantive due process, and Second Amendment
rights. Other than stating that he was denied a license after
being found unsuitable, Mr. Lovering’s Complaint does
not contain any factual details, including when he applied,
when and how he was notified of the unsuitablity finding, or
what specific reasons, if any, were given for the
determination. On February 16, 2016, the Commonwealth moved
to dismiss the Complaint, arguing that it is barred by the
Eleventh Amendment of the U.S. Constitution, fails to state a
claim, and is foreclosed by the First Circuit Court of
Appeal’s decision in Hightower v. City of
Boston, 693 F.3d 61 (1st Cir. 2012). [ECF Nos. 7-8]. Mr.
Lovering filed his opposition on February 29, 2016. [ECF No.
For the reasons stated herein, the Motion to Dismiss is
granted and the Complaint is dismissed without prejudice.
is generally a crime under Massachusetts law to carry a
firearm without having the appropriate license or FID card,
or being exempt from licensing.” Hightower v. City
of Boston, 693 F.3d 61, 65 (1st Cir. 2012). A Firearm
Identification Card (“FID card”) only
“allows the holder to own, transfer, or possess a
firearm in his residence or place of business.”
Commonwealth v. Gouse, 461 Mass. 787, 799 n.14
(2012); see also Chardin v. Police Comm’r of
Boston, 465 Mass. 314, 315 n.5 (2013) (“Although
an FID card allows its holder to own or possess a firearm
within the holder’s residence or place of business, it
does not allow the holder to carry the firearm to or in any
other place.”). Massachusetts’ two licenses to
carry, however- Class A and Class B licenses-“enable
the holder to carry a firearm outside of his residence or
place of business.” Gouse, 461 Mass. 787, 799
n. 14; Mass. Gen. Laws § 131. A Class A license entitles
“a holder thereof to purchase, rent, lease, borrow,
possess and carry: (i) firearms, including large capacity
firearms, and feeding devices and ammunition therefor . . .;
and (ii) rifles and shotguns, including large capacity
weapons, and feeding devices and ammunition therefor . .
.” Mass. Gen. Laws ch. 140, § 131(a). A Class B
license is less permissive; it entitles a holder to
“purchase, rent, lease, borrow, possess and carry: (i)
non-large capacity firearms and feeding devices and
ammunition therefor . . .; and (ii) rifles and shotguns,
including large capacity rifles and shotguns, ” and,
unlike the Class A license, does not entitle the holder to
“carry or possess a loaded firearm in a concealed
manner in any public way or place.” Mass. Gen. Laws ch.
140, § 131(b).
Lovering does not specify what type of license he applied
for. Because there is no “suitable person”
requirement for the issuance of an FID card, however, the
Court assumes that he applied for either a Class A or B
license, both of which are governed by the same application
procedure and eligibility requirements. Hightower,
693 F.3d at 66.
person seeking a Class A or B license must file an
application with a “licensing authority, ”
defined as “the chief of police or the board or officer
having control of the police in a city or town, or persons
authorized by them.” Mass. Gen. Laws ch. 140, §
121. Several categories of applicants are automatically
ineligible for a Class A or B license, including felons,
persons under 21 years old, and others. Mass. Gen. Laws ch.
140, § 131(d)(i)-(x); see also Ruggiero v. Police
Comm’r of Boston, 464 N.E.2d 104, 107 (1984)
(“§131 describes those persons who, because of
immaturity, antisocial behavior, or status as an alien, are
deemed improper persons to obtain licenses.”). If an
applicant does not fall under one of these excluded
categories, the licensing authority may still deny the
application if it “determines that the applicant or
licensee is unsuitable to be issued or to continue to hold a
license to carry.” Mass. Gen. Laws ch. 140, §
131(d). The licensing authority’s unsuitability
determination must be based on either: (1) “reliable
and credible information that the applicant . . . has
exhibited or engaged in behavior that suggests that, if
issued a license, the applicant . . . may create a risk to
public safety”; or (2) “existing factors that
suggest that, if issued a license, the applicant . . . may
create a risk to public safety.” Id. This
suitability review “allows licensing authorities to
keep firearms out of the hands of persons who are not
categorically disqualified, . . . but who nevertheless pose a
palpable risk that they would not use a firearm responsibly
if allowed to carry in public.” Chief of Police of
City of Worcester v. Holden, 470 Mass. 845, 854 (2015).
licensing authority denies an application based on an
unsuitability finding, it must notify the applicant in
writing of the specific reasons for the determination. Mass.
Gen. Laws ch 140, § 131(d). This determination is
subject to judicial review in the state district court with
jurisdiction over the city or town where the application was
filed. Id. § 131(f). A state judge,
“after an evidentiary hearing, may direct that a
license be issued to the petitioner if the judge finds that
there was ‘no reasonable ground’ for denying such
license, and that the petitioner ‘is not prohibited by
law from possessing [the] same.’”
Chardin, 465 Mass. at 317 (quoting Mass. Gen. Laws
ch. 140, § 131(f)).
aside for now the vagueness of the Complaint, all of Mr.
Lovering’s claims against the Commonwealth of
Massachusetts are barred by the Eleventh Amendment. It is
well established that any federal court lawsuit “in
which the State or one of its agencies is named as the
defendant is proscribed by the Eleventh Amendment.”
Pennhurst State School & Hosp. v. Halderman, 465
U.S. 89, 100 (1984); see also O’Neill v.
Baker, 210 F.3d 41, 47 (1st Cir. 2000) (“The
Supreme Court has clearly said that the Eleventh Amendment
bars federal suits by citizens against the state or state
agencies.”). There are two exceptions to a
State’s Eleventh Amendment immunity: first,
“Congress may abrogate a State’s immunity by
expressly authorizing such a suit pursuant to a valid
exercise of power, ” and second, “a State may
waive its sovereign immunity by consenting to be sued in
federal court.” Maysonet-Robles v. Cabrero,
323 F.3d 43, 49 (1st Cir. 2003). Neither exception applies
here. Mr. Lovering asserts his constitutional claims against
the Commonwealth under 42 U.S.C. § 1983,  which does not
abrogate state immunity by expressly authorizing a suit in
federal court. Soares v. Mass. Dep’t of Youth
Servs., No. CIV.A. 12-10573-DJC, 2013 WL 5211556, at *3
(D. Mass. Sept. 12, 2013) (citing Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 66 (1989)).
Further, the Commonwealth has not consented to Mr.
Lovering’s § 1983 claims. Accordingly, all claims
against the Commonwealth of Massachusetts are barred by the
opposition to the Motion to Dismiss, Mr. Lovering proposes
amending his Complaint to name a state official as a
defendant, rather than the state itself. [ECF No. 10 at 4].
“The Eleventh Amendment is not a bar to the naming of a
state official, rather than the state or agency, as a
defendant.” Baker, 210 F.3d at 47. A state
official can be named as a defendant in one of two ways.
First, a state official may be named in the officer’s
official capacity in a suit for prospective declaratory or
injunctive relief under federal law. Mills v. Maine,
118 F.3d 37, 53 (1st Cir. 1997) (discussing Ex Parte
Young, 209 U.S. 123 (1908)); see also Johnson v.
Patrick, No. CIV.A. 09-11543-RGS, 2011 WL 2669067, at *2
(D. Mass. July 7, 2011) (“While the Eleventh Amendment
prevents the bringing of a suit against a State in federal
court, it does not prohibit suits against State officers
acting in their official capacity when a party seeks
prospective equitable relief from a continuing violation of
federal law.”). The purpose of this exception to the
Eleventh Amendment is “to prevent continuing violations
of federal law, but not to remedy past violations.”
Greenless v. Almond, 277 F.3d 601, 607 (1st Cir.
2002). Second, a plaintiff may name state officials in their
individual capacities to recover damages. Mulero-Carrillo
v. Roman-Hernandez, 790 F.3d 99, 108 (1st Cir. 2015);
Morgan v. Middlesex Sheriff’s Office,
No. CA 14-10659-IT, 2014 WL 4104173, at *4 (D. Mass. Aug. 13,
2014) (“The Eleventh Amendment does not bar actions for
damages against state officials in their individual
capacities.”) (citing Kentucky v. Graham, 473
U.S. 159, 165-167 (1985)). “In order to properly bring
a claim under 42 U.S.C. § 1983 against an individual
defendant, a party must allege personal involvement of the
defendant in the purported constitutional violation.”
Morgan, 2014 WL 4104173, at *4; see also Greene
v. Cabral, No. CV 12-11685-DPW, 2015 WL 4270173, at *8
(D. Mass. July 13, 2015) (noting that for individual capacity
claims, “the plaintiff must show that the defendant had
a direct connection to the misconduct”). Accordingly,
if Mr. Lovering wishes to pursue this action, he must amend
the Complaint to include the appropriate state defendant(s),
in their official or individual capacities, depending on the
remedy sought (damages or injunctive relief).
Mr. Lovering amended his Complaint, however, to overcome the
Eleventh Amendment’s restrictions on litigation against
a state, it would still likely not survive a motion to
dismiss in its current form. “To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
the instant Complaint does not contain sufficient facts to
support the allegations. If Mr. Lovering intends to challenge
the license application process as applied to him, his
Complaint must contain additional details, such as to whom
Mr. Lovering applied and what reasons, if any, were given for
the denial. An as-applied challenge must contest a statue in
a “in a concrete factual setting.” McGuire v.
Reilly, 260 F.3d 36, 47 (1st Cir. 2001); see Kines
v. Day, 754 F.2d 28, 30 (1st Cir. 1985)
(“[C]hallenging a rule as applied often requires more
specific allegations of harm than are necessary to test
facial validity.”). Further, Mr. Lovering alleges that
“Massachusetts refuses to issue me a firearms license
for the sole reason that they find me an ‘unsuitable
person’” and that the suitable person standard
“has been used in the past by some states for racism
and discrimination.” [ECF No. 1 ¶¶ 2-3]. The
Complaint, however, does not contain any allegations that
specifically support the claim that the denial of Mr.
Lovering’s application was motivated by racism or
if Mr. Lovering intends to advance a facial challenge to
Massachusetts’ licensing scheme (i.e. that it is always
unconstitutional), it is again unlikely to withstand a motion
to dismiss, even with a more detailed complaint. This
requires Mr. Lovering to establish that there are “no
set of circumstances” under which the suitability
standard would be valid, or that it lacks “any
‘plainly legitimate sweep, ’” United
States v. Stevens, 559 U.S. 460, 472 (2010), which is
improbable, given the holding in Hightower v. City of
Boston. 693 F.3d 61 (1st Cir. 2012). In
Hightower, the First Circuit denied both as-applied
and facial challenges to the suitability standard.
Id. at 71-83. The plaintiff’s Class A license
had been revoked after she was found to be unsuitable for
having inaccurately answered a question on her license
renewal form. Id. at 65. She claimed that the
suitability review process violated her Second Amendment,
equal protection, and procedural due process
rights.Id. The First Circuit rejected
her claims, finding that the suitability standard does not
unconstitutionally confer too much discretion on the
licensing authority and is sufficiently connected to valid
government interests. Id. at 78. (“Because
Hightower has not shown that the statute lacks any ...