Hightower v. City of Bos.

• Decision Date: 30 August 2012
• Docket Number: No. 11–2281.,11–2281.
• Citation: 693 F.3d 61
• Parties: Stacey HIGHTOWER, Plaintiff, Appellant, v. CITY OF BOSTON; Edward Davis, Boston Police Commissioner; Commonwealth of Massachusetts, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

693 F.3d 61

Stacey HIGHTOWER, Plaintiff, Appellant,

v.CITY OF BOSTON; Edward Davis, Boston Police Commissioner; Commonwealth of Massachusetts, Defendants, Appellees.

No. 11–2281.

United States Court of Appeals,

First Circuit.

Heard June 6, 2012.

Decided Aug. 30, 2012.

Alan Gura, with whom Gura & Possessky, PLLC, and Chester Darling were on brief, for appellant.

Lisa Skehill Maki, Assistant Corporation Counsel, with whom William F. Sinnott, Corporation Counsel, was on brief, for appellees City of Boston and Edward Davis.

Kenneth W. Salinger, Assistant Attorney General, with whom Martha Coakley, Attorney General of Massachusetts, was on brief, for appellee Commonwealth of Massachusetts.

Charles M. Dyke and Trucker Huss APC on brief for Legal Community Against Violence, amicus curiae.

Before LYNCH, Chief Judge, LIPEZ and THOMPSON, Circuit Judges.

LYNCH, Chief Judge.

This case presents an as-applied and a purported facial attack on the Massachusetts statutory and administrative scheme for revoking licenses for the carrying of firearms. The district court entered summary judgment dismissing the claims. Hightower v. City of Boston, 822 F.Supp.2d 38, 65–66 (D.Mass.2011).

Stacey Hightower is a former Boston Police officer who, during many of her years of service from 1998 to 2008, had a broad Class A license which permitted her to carry and to conceal a large capacity firearm, in addition to her Boston Police Department (BPD) service gun. Shortly after her resignation from the BPD, her license was revoked because the BPD determined that she had inaccurately answered a question on her license renewal form. The question was whether she had any complaints or charges pending against her. After the revocation, she neither invoked her right to judicial review nor sought a more limited license which would have entitled her to carry her small handgun.

On the facts of this case, we hold that Hightower has standing to bring her claims, that the case is ripe, that her Second Amendment as-applied claim fails, that her purported Second Amendment facial attack also fails, and that her procedural due process claim fails, as does her equal protection claim. We affirm entry of judgment against Hightower.

I.

The facts giving rise to this suit are largely undisputed.

A. Massachusetts Firearms Licensing & License Revocation Statute

Massachusetts has three categories of licenses available for the carrying of firearms: ¹ a firearms identification card (FID card), a Class B license, and a Class A license. SeeMass. Gen. Laws ch. 140, §§ 129B, 131. All three are issued by the relevant “licensing authority,” which is 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.” Id. § 121. It is generally a crime under Massachusetts law to carry a firearm without having the appropriate license or FID card, or being exempt from licensing. Id. ch. 269, § 10. As the Massachusetts Supreme Judicial Court has explained:

“To lawfully ‘carry’ a firearm within the Commonwealth ... a person must either obtain a license to do so under G.L. c. 140, § 131, or be exempt from the normal licensing requirements under G.L. c. 140, §§ 129C, 131F, or 131G....” There is one other exemption. A person who obtains a “firearm identification card” under G.L. c. 140, § 129B, allowing him or her to possess a firearm legally, may carry a firearm within his or her residence or place of business without violating the law.

Commonwealth v. Ramirez, 407 Mass. 553, 555 N.E.2d 208, 211 (1990) (omissions in original) (citations omitted) (quoting Commonwealth v. Seay, 376 Mass. 735, 383 N.E.2d 828, 831 (1978)).

A sworn BPD officer is not required to have a license to carry a BPD-issued firearm. SeeMass. Gen. Laws ch. 140, § 129C( o ) (listing “exempted persons and uses” as including “police officers and other peace officers of any jurisdiction, in the performance of their official duty or when duly authorized to possess them”); see also id. ch. 41, § 98 (police officers “may carry within the commonwealth such weapons as the chief of police or the board or officer having control of the police in a city or town shall determine”). This dispute is not about Hightower's police firearm, but her private one.

An FID card “allows the holder to own, transfer, or possess a firearm in his residence or place of business.” Commonwealth v. Gouse, 461 Mass. 787, 965 N.E.2d 774, 785 n. 14 (2012). Various statutory requirements and exemptions govern the issuance of FID cards. SeeMass. Gen. Laws ch. 140, §§ 129B, 129C. Notably, there is no “suitable person” requirement for issuance of FID cards, as there is for Class A and B licenses; the licensing authority “shall issue” an FID card unless the applicant falls within one of the statute's enumerated categories of ineligible individuals. Id. § 129B(1).

A Class B license entitles “a holder thereof to purchase, rent, lease, borrow, possess and carry: (i) non-large capacity firearms ... and (ii) rifles and shotguns, including large capacity rifles and shotguns.” Id.§ 131(b). “Large capacity” firearms include any semi-automatic firearms “capable of accepting, or readily modifiable to accept, any detachable large capacity feeding device,” and a “[l]arge capacity feeding device” is defined to include any magazine or similar item that can hold “more than ten rounds.” Id. § 121. Class B licenses “shall not entitle the holder thereof to carry or possess a loaded firearm in a concealed manner in any public way or place,” “shall not entitle the holder thereof to possess a large capacity firearm,” and are to be issued “subject to such restrictions relative to the possession, use or carrying of such firearm as the licensing authority deems proper.” Id.§ 131(b).

Class A licenses provide the same privileges as Class B licenses, except that the holder may possess “large capacity firearms,” and the statute does not preclude possession or carrying of concealed firearms in public. Id.§ 131(a). Class A licenses are issued “subject to such restrictions relative to the possession, use or carrying of firearms as the licensing authority deems proper,” id., which can include preventing the carrying of concealed weapons in public.

Both licenses are governed by the same application procedures, eligibility requirements, and revocation procedures. Individuals may submit an application for a Class A or Class B license, or for renewal of such license, to the licensing authority of the jurisdiction of their place of residence or place of business. Id.§ 131(d). Any applicant who “knowingly files an application containing false information” may be punished by fine or imprisonment for “not less than six months nor more than two years.” Id.§ 131(h).

As to eligibility, the statute provides seven categories of individuals who are not eligible to receive a license: (1) individuals who have been convicted of a felony, a misdemeanor punishable by imprisonment for more than two years, or certain other crimes, (2) individuals who “ha[ve] been confined to any hospital or institution for mental illness,” unless the applicant submits an affidavit of a physician attesting that “the applicant is not disabled by such an illness in a manner that should prevent such applicant from possessing a firearm,” (3) those who are or have been “under treatment for or confinement for drug addiction or habitual drunkenness, unless such applicant is deemed to be cured of such condition by a licensed physician,” (4) those under the age of twenty-one, (5) aliens, (6) individuals currently subject to certain restraining orders, and (7) individuals “currently the subject of an outstanding arrest warrant.” Id.§ 131(d)(i)-(vii).

If an individual, like the plaintiff here, is not rendered statutorily ineligible as a result of falling into one of those categories, the licensing authority

may issue [a Class A or Class B license] if it appears that the applicant is a suitableperson to be issued such license, and that the applicant has good reason to fear injury to his person or property, or for any other reason, including the carrying of firearms for use in sport or target practice only, subject to such restrictions expressed or authorized under this section.

Id.§ 131(d).

The licensing authority must make a decision on the application within forty days from the date of application; if the application is denied, the authority must “notify the applicant of the reason for such denial in writing.” Id.§ 131(e). If granted, both Class A and Class B licenses “shall be valid, unless revoked or suspended, for a period of not more than 6 years from the date of issue,” and are to expire on the licensee's date of birth. Id.§ 131(i).

As to suspension or revocation of licenses, which is at the heart of this case, the statute provides:

A license issued under this section shall be revoked or suspended by the licensing authority, or his designee, upon the occurrence of any event that would have disqualified the holder from being issued such license or from having such license renewed. A license may be revoked or suspended by the licensing authority if it appears that the holder is no longer a suitable person to possess such license. Any revocation or suspension of a license shall be in writing and shall state the reasons therefor.

Id.§ 131(f).

If a license is suspended or revoked, or an application is denied, the aggrieved individual may “file a petition to obtain judicial review in the district court” within ninety days of the denial, revocation, or suspension. Id.§ 131(f).² “A justice of such court, after a hearing, may direct that a license be issued or reinstated to the petitioner if such justice finds that there was no reasonable ground for denying, suspending or revoking such license and that the petitioner is not prohibited by law from possessing same.” Id. Further judicial review may be had “in an action in the nature of certiorari under” Mass....