Hightower v. City of Boston, Civil Action No. 08–11955–DJC.
| Decision Date | 29 September 2011 |
| Docket Number | Civil Action No. 08–11955–DJC. |
| Citation | 822 F.Supp.2d 38 |
| Parties | Stacey HIGHTOWER, Plaintiff, v. The CITY OF BOSTON, Boston Police Commissioner Edward Davis, and the Commonwealth of Massachusetts, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
OPINION TEXT STARTS HERE
Alan Gura, Sidley & Austin, Washington, DC, Chester Darling, Andover, MA, for Plaintiff.
Lisa Skehill Maki, City of Boston Law Department, Ian D. Prior, Nicole I. Taub, Boston Police Department, Boston, MA, for Defendants.
Plaintiff Stacey Hightower (“Hightower”) has brought this suit alleging that the Massachusetts statutory scheme for determining whether to issue a license to carry a firearm, Mass. Gen. L. c. 140, § 131, both on its face and as applied by Defendants, the City of Boston and Boston Police Commissioner Edward Davis (“BPD Commissioner”) (collectively, “Municipal Defendants”), violates her rights under the Second and Fourteenth Amendments to the United States Constitution. The Commonwealth of Massachusetts intervened to defend the constitutionality of the statute. Hightower, the Municipal Defendants and the Commonwealth have now all moved for summary judgment. For the reasons discussed below, Hightower's motion for summary judgment is DENIED and the Defendants' motions for summary judgment are GRANTED.
II. Burden of Proof and Standard of Review
A party moving for summary judgment bears the burden of “show[ing] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is “genuine” where the evidence with respect to the material fact in dispute “is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific evidence showing that there is a genuine, triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir.1993). The Court shall grant summary judgment if, after viewing the record in this light, it determines that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
III. Background
Because Hightower challenges not only the Municipal Defendants' specific decision regarding her license to carry but also the Commonwealth's statutory scheme regarding such licenses, the Court shall begin with the background facts concerning revocation of Hightower's firearm license as well as a discussion of the statutory scheme at issue and the constitutional backdrop for Hightower's claims.
Under Massachusetts law, the terms “firearm,” “shotgun” and “rifle” each have distinct statutory definitions; a firearm is defined as “a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured.” Mass. Gen. L. c. 140, § 121. Additionally, Massachusetts law classifies as a “large capacity weapon” any firearm, rifle or shotgun that either is semiautomatic (i.e., “capable of utilizing a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round, and requiring a separate pull of the trigger to fire each cartridge”) and has a fixed large-capacity feeding device or can be readily modified to accept such a device, or “employs a rotating cylinder capable of accepting more than ten rounds of ammunition in a rifle or firearm and more than five shotgun shells in the case of a shotgun or firearm,” or is defined under federal law as an assault weapon. Mass. Gen. L. c. 140, § 121.
Massachusetts law sets forth two categories of licenses to carry firearms: Class A and Class B. See Mass. Gen. L. c. 140, § 131(a)-(b). Each type of license is issued by a “licensing authority,” defined as either the local police chief or the State Police colonel. Id. at §§ 121, 131(d).
A Class B license to carry authorizes the holder to possess and carry rifles and shotguns of any capacity, provided that the licensing authority “may impose such restrictions relative to the possession, use or carrying of large capacity rifles and shotguns as he deems proper.” Mass. Gen. L. c. 140, § 131(b). A Class B license also authorizes the holder to possess and carry non-large-capacity firearms, “subject to such restrictions relative to the possession, use or carrying of such firearm as the licensing authority deems proper,” but “a Class B license shall not entitle the holder thereof to carry or possess a loaded firearm in a concealed manner in any public way or place.” Id.
A Class A license to carry provides the same authorization as a Class B license, plus authorization to possess and carry large capacity firearms and authorization to carry or possess a loaded firearm in a concealed manner, “subject to such restrictions relative to the possession, use or carrying of firearms as the licensing authority deems proper.” Mass. Gen. L. c. 140, § 131(a); Stavis v. Carney, 2000 WL 1170090, at *3 (Mass.Super.Ct. Aug. 1, 2000). “A Class A license with restrictions generally allows individuals to carry a firearm outside the home for sport and target practice or for employment purposes, such as traveling to and from employment as a security officer,” and typically “requires the individual to transport their firearm unloaded in a locked box, and when necessary, in the trunk of their vehicle.” Decl. of Lieutenant Detective Mark Harrington, D. 40–3 at ¶¶ 7–8. An unrestricted Class A license allows an individual to carry a concealed firearm on their person for any purpose. Id.; Stavis, 2000 WL 1170090, at *3. Just under 60% of the Class A licenses in Boston are unrestricted.1
Whether to grant an application for either a Class A or a Class B license to carry is in the bounded discretion of the local licensing authority; here, the BPD Commissioner. A license cannot be issued to an applicant who is statutorily disqualified by virtue of: (i) a conviction for a felony, a misdemeanor punishable by more than two years in prison, a violent crime, a gun crime, or a drug crime, (ii) a mental illness, (iii) an alcohol or drug addiction, (iv) being less than 21 years of age, (v) being an alien, (vi) being the subject of a restraining order, or (vii) being the subject of an arrest warrant. Mass. Gen. L. c. 140, § 131(d)(i)-(vii). If an applicant does not fall into one of the prohibited categories, the licensing authority may still only “issue [a license] if it appears that the applicant is a suitable person to be issued such license.” Mass. Gen. L. c. 140, § 131(d). Massachusetts courts have interpreted this “suitability” standard as a requirement that the applicant be “a sufficiently responsible person to be entrusted with a license to carry firearms.” Wetherbee v. Costerus, 2001 WL 716915, at *7 .2
Massachusetts offers a single form application, Form FA–25/26, to individuals applying for a license to carry (Class A or Class B) or a F.I.D. card. See, e.g., Hightower's Form FA–25/26, D. 40–12. The form inquires as to the applicant's citizenship, aliases, age, criminal history, mental health, history of drug or alcohol abuse, history of domestic violence or restraining orders and arrest warrants, and history with regard to previous licenses to carry or F.I.D. cards and requests that the applicant provide two character references. Id. The form must be signed under penalty of perjury. Id.
Under Massachusetts law, within forty days of receiving an application for a license to carry, the licensing authority must “either approve the application and issue the license or deny the application and notify the applicant of the reason for such denial in writing.” Mass. Gen. L. c. 140, § 131(e). In recent years, approximately 98% of applications have been granted statewide, with just over 1% rejected because the applicant is categorically disqualified from receiving a license and the remaining 1% rejected because the licensing authority deems the applicant unsuitable.3
In Boston, sworn officers of the Boston Police Department who seek a license for a personal firearm (separate and apart from any department-issued firearm) are required to go through an additional step in the license to carry application process: completing a License to Carry Firearms Worksheet–BPD Sworn Only, also known as a G 13–S Form. Harrington Decl., D. 40–3 at ¶ 10; see Exh. A to the Hightower Decl., D. 28–2 (Hightower's completed G 13–S Form). The form requires information regarding the applying police officer's rank, assignment, date of appointment, queries whether the officer has any “complaints or charges pending” against her, whether she is currently under suspension, and whether she is currently subject to any abuse or restraining orders and indicates that the applying officer must submit to an interview and a criminal history check. See id.4 The form is reviewed by the BPD Internal Affairs Division and provides space for the licensing authority—i.e., the BPD Commissioner or his designee, the Commander of the Boston Police Department's Licensing Unit, see Harrington Decl., D. 40–3 at ¶ 3–to approve the license without restrictions, to list restrictions and approve the license as...
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