Pineiro v. Gemme

• Decision Date: 26 March 2013
• Docket Number: Civil Action No. 10–40262–FDS.
• Citation: 937 F.Supp.2d 161
• Parties: Hector E. PINEIRO, Plaintiff, v. Gary GEMME, Worcester Chief of Police, and the City of Worcester, a municipal corporation, Defendants.
• Court: U.S. District Court — District of Massachusetts

937 F.Supp.2d 161

Hector E. PINEIRO, Plaintiff,

v.Gary GEMME, Worcester Chief of Police, and the City of Worcester, a municipal corporation, Defendants.

Civil Action No. 10–40262–FDS.

United States District Court,

D. Massachusetts.

March 26, 2013.

Hector E. Pineiro, Worcester, MA, Jeffrey R. Turco, Attorney at Law, Chelsea, MA, for Plaintiff.

David M. Moore, Kevin M. Gould, City of Worcester Law Department, Worcester, MA, for Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

F. DENNIS SAYLOR IV, District Judge.

This action originated as a federal constitutional challenge to the partial denial of plaintiff's application for a gun license. Plaintiff Hector Pineiro applied to the Worcester Chief of Police for an unrestricted license that would allow him to carry a concealed weapon in public for self-defense. The police chief—who, by statute, is charged with processing gun-license applications—originally granted him a license that was restricted to sport and target-shooting uses. Pineiro sought judicial review of the licensing decision in Massachusetts state court, alleging violations of the state gun-licensing statute, Mass. Gen. Laws ch. 140, § 131. He concurrently sued the city and the police chief in this Court, alleging violations of his federal constitutional rights to bear arms under the Second Amendment and to equal protection under the Fourteenth Amendment.

Eventually, the police chief granted Pineiro's application to carry a firearm for all purposes, and the parties filed a stipulation for partial dismissal as to most of the claims. What remains is an action under 42 U.S.C. § 1983 seeking money damages for the period of time during which Pineiro's ability to carry a firearm was restricted.

Defendants have filed a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) on the grounds that Pineiro has failed to establish an actionable deprivation of his Second Amendment rights, and that he has failed to establish that similarly situated citizens were treated differently in violation of his right to equal protection of the law.

I. Factual Background

The facts are stated as alleged in the pleadings and are presented in the light most favorable to the plaintiff. However, almost all of the relevant facts are uncontested.

Hector E. Pineiro lives and works as an attorney in Worcester, Massachusetts. (Compl. ¶¶ 3, 12). Since 1999, he has maintained an office in the Main South neighborhood of Worcester, an area with a relatively high rate of violent crime and drug use. ( Id. at ¶¶ 17–20, 29–30). Pineiro often works late at the office, and on several occasions he has witnessed crimes in progress when leaving at night. ( Id. at ¶¶ 24–25). Statistics indicate that the incidence of violent crime in Worcester increased by about thirty percent between 2004 and 2009. ( Id. at ¶ 29).

Pineiro perceived violent crime to be a threat to his own safety and to that of his family. In 2009, he began to consider seeking a license to carry a firearm for self-protection. ( Id. at ¶ 31). In January 2010, two gun-wielding individuals entered his home and assaulted his 18–year–old son. ( Id. at ¶ 26). In August 2010, a resident of Main South told Pineiro that two males had been seen attempting to break into his office through the second-story window. ( Id. at ¶ 39). These events convinced Pineiro to apply for the gun license. ( Id. at ¶ 32).

In Worcester, Chief of Police Gary J. Gemme is the licensing authority charged with processing gun-license applications under Mass. Gen. Laws ch. 140, § 131. ( Id. at ¶ 4). In 2006, Chief Gemme adopted a policy under which eligible new applicants would be issued only restricted licenses.¹ In August 2010, Pineiro applied to Chief Gemme for an unrestricted license to carry a large-capacity firearm. ( Id. at ¶ 45, Ex. 3). In the application, Pineiro said he had “good reason to fear injury” to his person or property, citing the prior invasion of his home and crime in the area surrounding his office. ( Id.).

On September 24, 2010, Gemme granted Pineiro a license, but not the license he wanted. ( Id. at ¶¶ 64, 82, 83, Ex. 7, Ex. 8). Instead of the “unrestricted” license that Pineiro had requested, which would have allowed him to carry a concealed weapon in public for all lawful purposes, Gemme issued a license subject to the restriction that the gun could be used only for sport and target-shooting. ( Id.).

On December 22, 2010, Pineiro filed an action in the state District Court in Worcester pursuant to Mass. Gen. Laws ch. 140, § 131(f), seeking judicial review of the chief's licensing decision. ( Id. at ¶ 113, Ex. 9).

On December 31, 2010, Pineiro filed this action against Chief Gemme and the City of Worcester. The complaint asserts claims under 42 U.S.C. § 1983 and alleges that the Gemme policy, as applied, violated Pineiro's rights to bear arms and to equal protection under the Second and the Fourteenth Amendments of the United States Constitution.²

On March 17, 2011, Gemme suspended Pineiro's license pursuant to Mass. Gen. Laws ch. 140, § 131(f) as a result of the following incidents: (1) on March 11, 2011, an unknown individual operating a motor vehicle registered to Pineiro was involved in a shootout on a public street in Worcester; and (2) on March 16, 2011, Pineiro's son was pulled over in Worcester while operating the family motor vehicle. In the motor vehicle were unlawful drugs and an unlawful firearm. (Def. Joint St. ¶ 2).

On May 5, 2011, Gemme removed the license use restriction (sporting and target) that Pineiro was challenging at the time of the filing of this action. ( Id. at ¶ 3). However, Pineiro's license remained suspended while the Worcester Police Department continued to investigate the incidents described above. ( Id.) On September 16, 2011, Gemme removed the suspension and reactivated Pineiro's Class A license to carry a firearm for all lawful purposes (that is, without any restriction).

On February 2, 2012, the parties filed a Stipulation of Partial Dismissal indicating that (1) Pineiro had been issued an unrestricted Class A license to carry a firearm and (2) that Pineiro dismissed all claims challenging the constitutionality of Mass. Gen. Laws ch. 140, § 131 and all claims seeking injunctive or declaratory relief. (Stip. of Part. Dis.).

The remaining claims seek compensatory (or, alternatively, nominal) and punitive damages under § 1983 for violations of Pineiro's federal constitutional rights.

II. The Regulatory FrameworkA. Massachusetts Law

In Massachusetts, it is a felony to carry a firearm in public without a valid license. Mass. Gen. Laws ch. 269, § 10.³ Licenses to carry guns 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 chief or the State Police colonel. Id. §§ 121, 131(d).⁴ The statute specifies the circumstances under which the licensing authority may grant licenses, when licenses may be revoked, and what restrictions licenses may contain. Id. § 131(a)- (b). Licensing decisions are subject to judicial review in the District Court having jurisdiction in the locality wherein the person applied for the license. Id. § 121(f).

In processing a license application, the licensing authority is required to conduct a “two-step inquiry” to determine the applicant's eligibility. Ruggiero v. Police Com'r of Boston, 18 Mass.App.Ct. 256, 259, 464 N.E.2d 104 (1984). At the first step of the inquiry, the licensing authority looks at the applicant's personal suitability for gun ownership. Id. Several specific groups of applicants (for example, minors and the mentally ill) are categorically barred from gun possession. Mass. Gen. Laws ch. 140, § 131(d)(i)-(vii). However, even an applicant who does not fall within the statute's specific exclusions is ineligible for a license unless the applicant can demonstrate that he or she “is a suitable person to be issued such license.” Id. § 131(d).

At the second step of the application 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, 464 N.E.2d 104. The statute does not give an exhaustive list of valid reasons for seeking a license; it merely provides that the applicant must show “good reason to fear injury to his person or property, or ... any other reason, including the carrying of firearms for use in sport or target practice.” Mass. Gen. Laws ch. 140, § 131(d). Massachusetts courts have confirmed that this “proper purpose” showing, while open-ended, is a prerequisite to license approval that is distinct from the “suitable person” determination. Ruggiero, 18 Mass.App.Ct. at 260, 464 N.E.2d 104. Thus, when an applicant seeks a license solely for self-protection, the license authority may rely on the purpose requirement in demanding that the applicant distinguish his or her own needs from those of the general public. Id. at 261, 464 N.E.2d 104 (finding that 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 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). Pursuant to this provision, the licensing authority may restrict a license to those uses for which the authority determines there to be a “proper purpose,” even if it is not the purpose proposed by the applicant. Ruggiero, 18 Mass.App.Ct. at 260, 464 N.E.2d 104 (upholding issuance of license for target and sport use where applicant requested license for self-defense purposes).

Upon judicial review, the licensing...