Opinion
CIVIL ACTION NO. 02-10287-RWZ
March 31, 2003
MEMORANDUM OF DECISION
On May 25, 2001, Paul F. Stanley, a retired resident of Scituate, Massachusetts, applied for renewal of his Class A unrestricted license to carry firearms for general protection purposes pursuant to Mass. Gen. Laws ch. 140, § 131. However, when Police Chief Thomas Neilen issued Mr. Stanley a Class A license on October 20, 2001, the license was restricted to carry firearms for purposes of hunting and target shooting only.
Mr. Stanley thereafter filed suit in state court against Police Chief Thomas Neilen, and defendant removed the case to this Court. Although not mentioned in the case caption, the Complaint also charges the municipality, as defendant Neilen's employer, with the joint intentional violation of plaintiff's civil rights. Plaintiff alleges that the denial of his license to carry firearms violated his rights under the federal and state constitutions and discriminated against him on the basis of age and disability. Plaintiff further contends that Mass. Gen. Laws ch. 140, § 131 is unconstitutional, overly vague, and was applied retroactively.
Plaintiff also contends that defendant failed to comply with Section 131 in not setting forth proper and valid reasons for the denial of his application for a license to carry firearms. However, plaintiff, in fact, did receive a restricted license to carry firearms.
Defendant has filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff does not address the motion on the merits and instead contends that this Court does not have jurisdiction: "[t]here can be no determination that plaintiff's state and federal constitutional rights have been violated until a decision is rendered by the state court." Plaintiff is wrong; federal jurisdiction exists by virtue of plaintiff's claims that his Constitutional rights were violated by an unconstitutional state statute. See 28. U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").
Contrary to plaintiff's contentions in his Complaint, the Second Amendment to the Constitution "does not confer an absolute right to bear arms." Gardner v. Vespia, 252 F.3d 500, 503 (1st Cir. 2001). Therefore, even if plaintiff "was not, in fact, disqualified from purchasing a firearm, [defendant's] conclusion to the contrary did not violate any constitutional right to own that firearm." Id. Likewise, there "is no right under art. 17 of the Declaration of Rights of the Massachusetts Constitution for a private citizen to keep and bear arms and thus to require that a citizen have a license to do so is not unconstitutional; nor is there any question of a property right or deprivation of liberty involved in the statutory procedures for obtaining a license to carry firearms." Chief of Police of Shelburne v. Moyer, 453 N.E.2d 461, 464 (Mass.App.Ct. 1983) (citation omitted). Thus, plaintiff cannot maintain that his federal and state constitutional rights were violated or that Mass. Gen. Laws ch. 140, § 131 is unconstitutional.
Again, in this case, plaintiff did receive a license to carry firearms.
More specifically, plaintiff's contentions that he was denied due process rights and equal protection of the law are meritless. Section 131(f) provides sufficient due process protections by allowing an aggrieved applicant to file a petition for judicial review in the event of a denial. Mass. Gen. Laws ch. 140, § 131(f). In his Complaint, plaintiff alleges that as a member of a class of people carrying or desiring to carry firearms, he is denied equal protection of the law because he can only seek judicial review under the statute while other Massachusetts citizens have the right of appeal and trial by jury when their property or civil rights are violated. To establish an equal protection claim, plaintiff must show that when compared with others similarly situated, he was selectively treated "based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Yerardi's Moody Street Restaurant Lounge, Inc. v. Board of Selectmen of the Town of Randolph, 932 F.2d 89, 92 (1st Cir. 1991) (citations omitted.). Because all applicants aggrieved by a denial of license are subject to the terms of Section 131, plaintiff has not shown that he was selectively treated. Hence, his equal protection claim must fail.
Although unclear, Paragraph 17 of the Complaint suggests that plaintiff is bringing claims under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12 § 11l and under 42 U.S.C. § 1983. Because plaintiff has not demonstrated a "deprivation of any rights, privileges, or immunities secured by the Constitution and laws," he cannot maintain his claims under 42 U.S.C. § 1983. For the same reason, he cannot sustain his claims under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12 § 11l.
Finally, the basis for plaintiff's claims of disability and age discrimination is inadequately set forth in the Complaint. He does not state the nature of his disability, nor is it mentioned on his application. While his application does specify his age, the plaintiff provides no facts whatsoever suggesting that he was discriminated against on that basis. Furthermore, defendant contends that he restricted the plaintiff's license because plaintiff did not sufficiently demonstrate that he had good reason to fear injury to his person or property — a requirement that has been part of the Massachusetts gun licensing scheme at least since 1936. Given that reasoning, which plaintiff does not dispute, the statute was not applied retroactively.
Although named as a defendant in the body of the Complaint, the town was not named in its caption as required by Rule 10(a), Fed.R.Civ.P. 10(a), nor was it properly served with a summons and complaint as required by Rule 4, Fed.R.Civ.P. 4. Furthermore, the time for such service has expired. See Fed.R.Civ.P. 4(m). In any case, the claims against the town are meritless for the reasons articulated above.
Accordingly, defendant's Motion for Judgment on the Pleadings is ALLOWED. Judgment may be entered for of the defendant.