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Batty v. Albertelli

United States District Court, D. Massachusetts

February 24, 2017

JEAN BATTY, EDWARD RUSSO, and COMMONWEALTH SECOND AMENDMENT, Plaintiffs,
v.
KEN ALBERTELLI, in his official capacity as Chief of the Winchester Police Department, Defendant.

          MEMORANDUM AND ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS AND CROSS-MOTIONS FOR SUMMARY JUDGMENT

          F. Dennis Saylor IV United States District Judge

         This is a federal constitutional challenge to the policy of the Town of Winchester concerning firearm licenses. Plaintiffs Jean Batty, Edward Russo, and Commonwealth Second Amendment Inc. have brought suit under 42 U.S.C. § 1983, contending that a policy of the Winchester Police Department that restricts the ability of first-time applicants to obtain licenses to carry firearms violates the Second and Fourteenth Amendments. In particular, plaintiffs contend that defendant unconstitutionally restricts the firearm licenses of first-time applicants to target and hunting purposes. The named defendant is Ken Albertelli, the chief of the Winchester Police Department.

         Defendant has moved for judgment on the pleadings, or, in the alternative, for summary judgment.[1] Plaintiffs have cross-moved for summary judgment. For the following reasons, defendant's motion will be granted in part and denied in part, and plaintiffs' motion will be denied.

         I. Background

         The facts set forth below are undisputed.

         A. Massachusetts Regulatory Framework

         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).[2] Licenses to carry firearms may be requested by application pursuant to Mass. Gen. Laws ch. 140, § 131(d). Applications are made to a “licensing authority, ” which 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. Id. §§ 121, 131(d). Massachusetts law specifies the circumstances under which a licensing authority may grant licenses, when licenses may be revoked, and what restrictions licenses may contain. Id. § 131.

         Under the statute, a licensing authority “may issue” a license if “it appears” that the applicant satisfies both parts of a two-step inquiry, demonstrating that he or she (1) is not a “prohibited person” and (2) has a “proper purpose” for carrying a firearm. Ruggiero v. Police Com'r of Boston, 18 Mass.App.Ct. 256, 259 (1984) (discussing an earlier, similarly worded version of the statute); Mass. Gen. Laws ch. 140, § 131(d).[3]

         At the first step of the inquiry, the licensing authority examines whether the applicant is a “prohibited person.” Mass. Gen. Laws ch. 140, § 131(d). An applicant may be categorically prohibited from possessing a firearm (for example, minors). Id. Alternatively, an applicant may be found to be a prohibited person if the licensing authority, in the reasonable exercise of his or her discretion, determines that the applicant is not a “suitable person” based on evidence or factors that suggest the applicant would cause a risk to public safety. Id. The parties agree that plaintiffs here are not categorically prohibited from obtaining a license.

         At the second step of the inquiry, the licensing authority is required to consider whether the applicant has a “proper purpose” for carrying a firearm. Ruggiero, 18 Mass.App.Ct. at 259. The statute does not provide an exhaustive list of purposes for which an applicant may properly request a license. Instead, it states that the licensing authority “may issue” a license if the applicant (1) “has good reason to fear injury to the applicant or the applicant's property” or (2) “for any other reason, including the carrying of firearms for use in sport or target practice only, subject to the restrictions expressed or authorized under this section.” Mass. Gen. Laws ch. 140, § 131(d).[4] In Ruggiero, the Massachusetts appellate court summarized an earlier version of the statute as follows: “Without excluding other valid reasons for being licensed, the statute identifies two purposes which will furnish adequate cause to issue a license-‘good reason to fear injury to person or property' and an intent to carry a firearm for use in target practice.” 18 Mass.App.Ct. at 259. When an applicant seeks a license solely for self-protection, the licensing authority may require that the applicant distinguish his or her own specific need for protection from the needs of members of the general public. Id. at 261 (finding that, under an earlier, similarly worded version of the statute, an applicant's stated purposes to avoid “spend[ing] his entire life behind locked doors [and to prevent becoming] a potential victim of crimes” did not require issuance of a license for self-defense in public).

         Even when an applicant otherwise meets the requirements for license approval, the licensing authority may issue the license “subject to such restrictions relative to the possession, use or carrying of firearms as the licensing authority deems proper.” Mass. Gen. Laws ch. 140, § 131(a-b). Pursuant to that provision, the licensing authority may restrict a license to those uses for which the authority determines there to be an appropriate reason. See Ruggiero, 18 Mass.App.Ct. at 260 (upholding issuance of license with target, hunting, and sporting restriction where applicant requested license for self-defense purposes).

         A licensing authority's decision to deny or restrict a license is subject to judicial review. Mass. Gen. Laws ch. 140, § 131(f). An applicant who has been denied a license must challenge the denial within ninety days. Id. By comparison, an applicant who has been granted a license with restrictions may challenge the restrictions in court at “any time.” Id. § 131(a). Upon judicial review, the licensing authority's determination to impose restrictions may be reversed only if the authority had “no reasonable ground for . . . restricting the license” or the determination is “arbitrary, capricious, or an abuse of discretion.” Id. § 131(f); Chief of Police of Shelburne v. Moyer, 16 Mass.App.Ct. 543, 546 (1983)).

         Unless revoked or suspended, a license “shall be valid” for between five and six years, and shall expire on the licensee's birthday. Mass. Gen. Laws ch. 140, § 131(i). The licensing authority “shall” revoke or suspend a license “upon the occurrence of any event that would have disqualified the holder from being issued such license or from having such license renewed.” Id. § 131(f). Additionally, a license “may be” revoked or suspended if the licensee is “no longer a suitable person.” Id. The determination to revoke or suspend a license is also subject to judicial review. Id.

         B. Winchester Firearm Licensing Policy

         Ken Albertelli is the chief of the Winchester Police Department. (Pl. SMF ¶ 22). As police chief, he is the authority responsible for issuing firearm licenses to Winchester residents and business owners pursuant to Mass. Gen. Laws ch. 140, § 131. (Id.). It is Albertelli's practice to personally review each application he receives to determine whether to grant it, and what restrictions, if any, the application warrants. (Id. ¶ 23).

         Albertelli imposes three varieties of restrictions on firearm licenses: (1) employment, (2) target and hunting, and (3) sporting. A written policy describing those restrictions was adopted in February 2016. It states:

EMPLOYMENT - restricts possession to a business owner engaged in business activities or to an employee while engaged in work related activities, and maintaining proficiency, where the employer requires carry of a firearm (i.e. armored car, security guard, etc.). Includes travel to and from the activity location.
TARGET AND HUNTING - restricts possession to the purpose of lawful recreational shooting or competition; for use in the lawful pursuit of game animals and birds; for personal protection in the home; and for the purpose of collecting (other than machine guns). Includes travel to and from activity location.
SPORTING - restricts lawful possession to the purpose of lawful recreational shooting or competition; for use in the lawful pursuit of game animals and birds; for personal protection in the home; for the purpose of collecting (other than machine guns); and for outdoor recreational activities such as hiking, camping, cross country skiing, or similar activities. Includes travel to and from activity location.

(Def. Ex. 4).

         Albertelli's policy is to issue unrestricted licenses to applicants only if the applicant can show a “reason to fear.” (Albertelli Dep. 33). Albertelli stated that in order to receive an unrestricted license, the applicant must demonstrate “[n]ot a feeling of fear; I need a reason to fear. Something had to happen in their life that they fear for their safety.” (Id. at 33). According to him, examples of people with a reason to fear include people who have been assaulted or harassed, and people who are in professions that are inherently dangerous. (Id.). When asked at his deposition whether there were other considerations relevant to Albertelli's determination, he stated: “Could be. Depends what they tell me. I ask them to be very specific so that I can evaluate it. That's my job.” (Id.).

         In practice, 89% of the firearm licenses granted to first-time applicants in Winchester contain at least one restriction, principally the target and hunting restriction. (Pl. SMF ¶¶ 29- 35).[5] By comparison, only 5% of firearm licenses that are issued to applicants renewing their licenses contain any restriction. (Id.).

         C. Plaintiffs' Applications

         1. Jean Batty

         In 2013, Jean Batty lived in Winchester. On March 24, 2013, she applied to the Winchester Police Department for a firearm license. (Def. Ex. 1). Batty had never previously owned a firearm. (Batty Dep. 13). She contends that she applied for the license because she was concerned about the possibility of terrorism and wanted a handgun for self-defense. (Id. 22- 23).[6] Her application stated that she was requesting the license for “all lawful purposes, personal protection and self-defense.” (Def. Ex. 1). At the time of her application, she did not provide additional information demonstrating her need or motivation for seeking a license.

         On June 5, 2013, Batty was issued a Class A unrestricted firearm license. (Pl. SMF ¶ 6). At the end of that month, she moved from Winchester to Scituate, Massachusetts, where she now resides. (Id. ¶ 1).[7] In January 2015, she received a letter from the Winchester Police Department informing her that she was required to exchange her unrestricted license for a restricted license. (Batty Dec., Ex. 3). The letter stated that she had been issued the license “without the approved Target and Hunting Restriction as originally directed by the Chief of Police, ” and directed her to return her Class A unrestricted license to be replaced with a Class A license that contained a target and hunting restriction. (Id.). On January 26, 2015, her husband, acting on her behalf, returned her unrestricted license to the Winchester Police and collected a new license that contained a target and hunting restriction. (Pl. SMF ¶ 18).[8]

         Shortly prior to exchanging the license, Batty's husband sent Albertelli a letter requesting that he reinstate her unrestricted license. (Batty Dec., Ex. 4). The letter stated that Batty works at MassHealth as a Disability Ombudsman, which requires her to assist people who may become distraught or confrontational when faced with an adverse decision. (Id.). The letter identified an individual whom she considered paranoid and caused her to be concerned for her safety. (Id.).

         Batty was not reissued an unrestricted license. (Pl. SMF ¶ 20). She had not purchased a gun during the period that her license was unrestricted, and does not currently own one. (Batty Dep. 13).

         2. Edward Russo

         Edward Russo is also a resident of Winchester. On March 13, 2013, Russo submitted an application for a firearm license to the Winchester Police Department. He contends that there was no precipitating event that caused him to apply for the license. (Russo Dep. 8). When asked why he submitted an application, he stated, “[j]ust no reason whatsoever . . . nothing never happened to me.” (Id.). Like Batty, he had never owned a gun, but requested the license “for all lawful purposes, personal protection.” (Def. Ex. 6).

         On June 5, 2013, Russo was issued a Class A unrestricted firearm license. (Def. Ex. 7). Around January 2015, he received a letter from the Winchester Police Department, similar to the one that was sent to Batty, requesting that he exchange his unrestricted license for a license with a target and hunting restriction. (Def. Ex. 4). On February ...


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