United States District Court, D. Massachusetts
MICHAEL GOULD, CHRISTOPHER HART, DANNY WENG, SARAH ZESCH, JOHN STANTON and COMMONWEALTH SECOND AMENDMENT, INC., Plaintiffs,
DANIEL O'LEARY, in his official capacity as Chief of the Brookline Police Department, and WILLIAM EVANS, in his official capacity as Commissioner of the Boston Police Department, Defendants, and COMMONWEALTH OF MASSACHUSETTS, Intervenor Defendant.
MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE .
a federal constitutional challenge to the firearm licensing
policies of the Town of Brookline and the City of Boston.
Plaintiffs Michael Gould, Christopher Hart, Danny Weng, Sarah
Zesch, John Stanton, and Commonwealth Second Amendment, Inc.
have brought suit under 42 U.S.C. § 1983, contending
that policies of the Brookline and Boston Police Departments
that restrict the ability of applicants to obtain licenses to
carry firearms violate the Second and Fourteenth Amendments.
The named defendants are Daniel O'Leary, the chief of the
Brookline Police Department, and William Evans, the
commissioner of the Boston Police Department. The
Commonwealth of Massachusetts has intervened to defend the
constitutionality of its state licensing scheme.
parties have cross-moved for summary judgment. For the
following reasons, defendants' motions will be granted,
and plaintiffs' motion will be denied.
facts set forth below are undisputed.
Massachusetts Regulatory Framework
Massachusetts, it is a crime to possess a firearm in public
without a valid license to carry. Mass. Gen. Laws ch. 269,
§ 10(a). Licenses to carry (“LTC”)
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.
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 Comm'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).
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
“unsuitable” 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.
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). 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).
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
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. 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.;
Chief of Police of Shelburne v. Moyer, 16
Mass.App.Ct. 543, 546 (1983)).
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.
Brookline Firearm Licensing Policy
O'Leary is the Chief of the Brookline Police Department.
(Def. O'Leary's SMF ¶ 1). He and Sergeant
Christopher Malinn are the two officials who administer the
firearms-licensing process in Brookline. (Id.). Sgt.
Malinn is the “contact person and investigator”
for firearm-license applicants. (Id. ¶ 2).
However, as Police Chief, O'Leary is the ultimate
authority responsible for issuing firearm licenses to
Brookline residents pursuant to Mass. Gen. Laws ch. 140,
§ 131. (Id. ¶ 3). Chief O'Leary states
that it is his practice to review personally all the
information concerning applicants submitted to Sgt. Malinn.
(Id.). He also states that he is always willing to
meet with applicants to discuss their applications or
licenses. (Id. ¶ 4).
O'Leary will issue unrestricted LTCs to qualified
individuals who show “good reason to fear injury to his
person or property.” (Def. O'Leary's Ans. to
Interrog. No. 9). An otherwise-qualified applicant who fails
to show “good reason to fear injury” will receive
a restricted license. When deciding which restrictions to
impose, Chief O'Leary states that he takes into account
all information provided in the application, including field
of employment and any training or experience with firearms.
(Id. at Nos. 11-12).
January 1, 2015, Brookline has imposed seven types of
restrictions on firearm licenses: (1) target, (2) hunting,
(3) transport, (4) sporting, (5) employment, (6) in home, and
(7) collecting. (Def. O'Leary's SMF ¶
Descriptions of those restrictions are as follows:
TARGET - allows firearms to be
carried while engaged in firearms target practice at a
firearms club or firearms school. Included is reasonable
traveling time to and from said club or firearms school, with
any weapon(s). The firearm cannot be carried outside the home
for another purpose.
HUNTING - allows firearms to be
carried while hunting and while going to or coming from a
hunting area, when in possession of a valid hunting license.
The firearm cannot be carried outside of the home for another
TRANSPORT - allows one to transport
firearms from one home to another. Note that all of the
restrictions allow one to transport the firearm to the
allowed activity. The firearm cannot be carried outside the
home for another purpose.
SPORTING - allows the firearm to be
carried for the purpose of target practice, recreational
shooting or competition, the lawful pursuit of game animals
and birds, and for outdoor recreational activities such as
hiking, camping, cross country skiing, and other related
activities. The firearm cannot be carried outside of the home
for any other purpose.
EMPLOYMENT - allows the firearm to
be carried only during the hours one is actually employed by,
and/or operating at their company/employer. This includes
reasonable time traveling to and from the company/employer.
The firearm cannot be carried outside the home for any other
IN HOME - allows one to keep the
firearm in the home. It cannot be carried outside of the
COLLECTING - allows one to carry
the firearm for the purpose of firearms collecting. Firearms
cannot be carried outside the home for any other purpose.
(Def. O'Leary's Ans. to Interrog. No. 3).
January 1, 2015, and July 18, 2017, Chief O'Leary issued
a total of 191 LTCs. (Stipulation at 1). Of those 191 LTCs,
68 (35.6%) were unrestricted and 123 (64.4%) contained at
least one restriction. (Id.). However, members of
certain professions were more likely to receive unrestricted
licenses. (Id.). During that time period, 22 of 24
law enforcement officers (91.7%), 10 of 14 physicians
(71.4%), and 4 of 6 attorneys (66.7%) received unrestricted
Plaintiff Gould's Application
2014, Michael Gould lived in Brookline. (Pls.' SMF ¶
81). He works as a professional photographer at a fine arts
museum and also operates his own photography business.
(Id. ¶ 79; Gould Aff. ¶ 1). He previously
lived in Weymouth, Massachusetts, where he had a LTC from the
Weymouth Police Department with the restriction of
“Target Hunting Employment.” (Pls.' SMF
¶ 80). On July 8, 2014, he applied to renew his LTC for
“all lawful purposes” with the Brookline Police
Department. (Id. ¶ 81). During an interview
with Sgt. Malinn, he stated that he wanted an unrestricted
LTC for self-defense. (Id. ¶ 82). Sgt. Malinn
advised that unrestricted LTCs were difficult to obtain in
Brookline and that Gould would need to obtain specific
documentation to support his request. (Id.).
September 29, 2014, Gould mailed a letter to Chief
O'Leary detailing his request for an unrestricted LTC.
(Id. ¶ 83). In his letter, he stated that he
needed an unrestricted LTC because he routinely worked with
“valuable photography equipment as well as extremely
valuable works of art.” (Gould Aff. Ex. 4, at 1). He
further emphasized his experience with firearms.
O'Leary denied Gould's application for an
unrestricted LTC in a letter dated October 16, 2014, but
offered to issue an LTC with the “Sporting” and
“Employment” restrictions. (Pls.' SMF ¶
84). On October 23, 2014, Sgt. Malinn explained to Gould that
those restrictions would allow him to carry a firearm on all
occasions identified in his letter. (Def. O'Leary's
SMF ¶ 13). Gould signed forms accepting a LTC with those
two restrictions on November 10, 2014, and received it on
November 20, 2014. (Pls.' SMF ¶¶ 86-87). He did
not appeal the license restrictions pursuant to Mass. Gen.
Laws. ch. 140, § 131(f). (Def. O'Leary's SMF
Boston Firearm Licensing Policy
Evans is the Commissioner of the Boston Police Department.
(Pls.' SMF ¶ 1). He has delegated his
responsibilities as a licensing authority to Lt. Det. John
McDonough, the head of the Boston Police Department's
Licensing Unit. (Id.).
Licensing Unit will issue unrestricted LTCs to qualified
individuals who “show ‘good reason to fear
injury' that distinguishes them from the general
population, ” or “are engaged in certain
occupations.” (Id. ¶ 2). Occupations that
typically qualify for unrestricted LTCs include law
enforcement officer, medical doctor, and lawyer.
(Id. ¶ 3). In addition, the Licensing Unit will
issue an unrestricted LTC to an applicant who has already
been issued an unrestricted LTC anywhere else in
Massachusetts. (Id. ¶ 4). If an individual does
not meet one of these requirements, the Licensing Unit will
typically issue the LTC subject to a “Target &
Hunting” restriction. (Id. ¶ 5).
Licensing Unit imposes three varieties of restrictions on
firearm licenses: (1) employment, (2) target and hunting, and
(3) sporting. A written policy describing those restrictions
states as follows:
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 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