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Gould v. O'Leary

United States District Court, D. Massachusetts

December 5, 2017

MICHAEL GOULD, CHRISTOPHER HART, DANNY WENG, SARAH ZESCH, JOHN STANTON and COMMONWEALTH SECOND AMENDMENT, INC., Plaintiffs,
v.
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 JUDGMENT

          F. DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE .

         This is 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.

         The parties have cross-moved for summary judgment. For the following reasons, defendants' motions will be granted, 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).[1] 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.

         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 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).[2]

         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 “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.

         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). 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. 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)).

         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. Brookline Firearm Licensing Policy

         Daniel 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).

         Chief 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).

         Since 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 ¶ 6).[3] 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 purpose.
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 purpose.
IN HOME - allows one to keep the firearm in the home. It cannot be carried outside of the home.
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).

         Between 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 licenses. (Id.).

         C. Plaintiff Gould's Application

         In 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.).

         On 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. (Id.).

         Chief 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 ¶ 14).

         D. Boston Firearm Licensing Policy

         William 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.).

         The 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).

         The 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 country ...

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