Morin v. Lyver ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1280
ALFRED MORIN,
Plaintiff, Appellant,
v.
WILLIAM LYVER, in his official capacity as Northborough Chief of
Police, and THE COMMONWEALTH OF MASSACHUSETTS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Barron and Selya, Circuit Judges,
and Delgado-Hernández, District Judge.*
David D. Jensen, with whom J. Steven Foley was on brief, for
appellant.
Janelle M. Austin, with whom KP Law, P.C. was on brief, for
appellee William Lyver.
Julia E. Kobick, Assistant Attorney General, with whom Maura
Healey, Attorney General, was on brief, for appellee Commonwealth
of Massachusetts.
Neil Goldfarb, amicus curiae, on brief in support of
appellees.
* Of the District of Puerto Rico, sitting by designation.
September 14, 2021
BARRON, Circuit Judge. In 2018, William Lyver, Chief
of Police for Northborough, Massachusetts, denied Alfred Morin
what is known under Massachusetts law as a "permit to purchase" a
firearm. Lyver did so based on Morin's criminal history --
specifically, his two out-of-state firearms-related convictions.
Morin thereafter filed suit, in which he alleged that the denial
violated his rights under the Second Amendment of the U.S.
Constitution as recognized by the United States Supreme Court in
District of Columbia v. Heller, 554 U.S. 570 (2008). See
McDonald v. City of Chicago, 561 U.S. 742, 750 (2010). The
Commonwealth of Massachusetts intervened to defend the denial.
Morin then moved for summary judgment, and the defendants cross-
moved for the same. The District Court granted the defendants'
cross-motions for summary judgment and rejected Morin's motion for
summary judgment. We affirm.
I.
In 1985, Morin obtained what was known under
Massachusetts law at that time as a Class A license. Morin v.
Lyver, 442 F. Supp. 3d 408, 411 (D. Mass. 2020). That license
authorized Morin to carry a concealed firearm in public, which he
did regularly. Id.; see also Mass. Gen. Laws ch. 140, § 131(a)
(2004). It also authorized him to "purchase, rent, lease, borrow,
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possess and carry" both "firearms,"1 and "rifles and shotguns,"
including "large capacity" varieties of each type of weapon.
Mass. Gen. Laws ch. 140, § 131(a) (2004).
In 2004, Morin brought his pistol on a trip to
Washington, D.C. Morin, 442 F. Supp. 3d at 411. While there, he
visited the American Museum of Natural History, which displayed a
sign stating that firearms were prohibited in the building. Id.
Morin asked a museum employee whether he could check the pistol
that he was carrying at the time. He was thereafter detained and
placed under arrest for violating D.C.'s gun laws. Id.
In November 2004, Morin pleaded guilty to one count of
attempting to carry a pistol without a license, in violation of
D.C. Code § 22-3204(a)(1) (2004), and one count of possession of
an unregistered firearm, in violation of D.C. Code § 6-2376(2004).2 Morin, 442 F. Supp. 3d at 411-12. Both convictions were
misdemeanors under D.C. law. The former conviction carried a
1 A "firearm" included "a pistol, revolver or other
weapon . . . of which the length of the barrel or barrels is less
than 16 inches or 18 inches," but excludes any weapon that is
"constructed in a shape that does not resemble a handgun, short-
barreled rifle or short barreled shotgun" or one that is "not
detectable as a weapon or potential weapon by x-ray machines
commonly used at airports or walk-through metal detectors." Mass.
Gen. Laws ch. 140, § 121.
2 These provisions have since been renumbered and are codified
at D.C. Code §§ 22-4504(a)(1), 7-2502.01, and 7-2507.06.
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maximum sentence of 180 days of imprisonment. The latter
conviction carried a maximum sentence of one year of imprisonment.
In 2008, once back in Massachusetts, Morin sought to
renew his Class A license. Id. at 412. He filed the requisite
application for renewal with his local licensing authority, the
Northborough, Massachusetts Police Department. Id.At that time, a licensing authority could not issue or
renew a Class A license to certain categories of persons. The
categories included persons who had, "in any state or federal
jurisdiction, been convicted" of "a violation of any law regulating
the use, possession, ownership, transfer, purchase, sale, lease,
rental, receipt or transportation of weapons or ammunition for
which a term of imprisonment may be imposed." Mass. Gen. Laws
ch. 140, § 131(d)(i)(D) (2008).
Morin indicated on his application to renew his Class A
license that he did not have any such prior conviction. Morin,
442 F. Supp. 3d at 412. In processing his application, however,
the Northborough Police Department ran his fingerprints and
learned about his Washington, D.C.-related firearms convictions.
Id. The Northborough Police Department denied Morin's application
to renew his Class A license on April 29, 2008. See id.
In 2014, Massachusetts modified its firearm licensing
scheme. Id. at 412 n.3. Rather than designating licenses to
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carry by "Class," as it had, it established a single "license to
carry."3
In February 2015, Morin applied to the Northborough
Police Department for a new license to carry. His application
this time did note his D.C. convictions. The Northborough Chief
of Police at the time, Mark Leahy, denied the application on
February 18, 2015.
Morin filed suit pursuant to 42 U.S.C. § 1983 against
Leahy on March 25, 2015 in the District of Massachusetts, alleging
that his Second Amendment rights had been violated. Id. at 412.
The District Court permitted the Commonwealth to intervene and
subsequently entered summary judgment for the defendants on
May 18, 2016. Morin v. Leahy, 189 F. Supp. 3d 226, 236-37 (D.
Mass. 2016), aff'd, 862 F.3d 123 (1st Cir. 2017). Morin then
appealed. Morin, 862 F.3d at 126. We affirmed the District
Court's ruling granting the defendants' motions for summary
judgment. Id. at 128.
We first explained that Morin "argue[d] that his
statutory disqualification for a [license to carry] and the
Massachusetts firearm licensing scheme, as applied to him,
3 The change did not become fully effective until January
2021, but licenses issued or renewed after August 2014 were no
longer designated by their "Class" as they had been. We therefore
use the term "license to carry" to refer to the type of license
that Morin sought in 2018. See 2014 Mass. Acts ch. 284, § 101.
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violate[d] his Second Amendment right to own a firearm in the home
for purposes of self-defense." Id. at 126 (citation omitted).
But, we explained, "a more restrictive license, [a Firearm
Identification Card (FID Card)], would permit [such] a license
holder to have a firearm in the home for purposes of self-defense."
Id. at 127. At the time, an FID Card entitled the holder to "keep
a firearm and ammunition in his home or place of business" but did
not authorize the holder to carry certain weapons, including large-
capacity rifles and shotguns, in public. Id. (quoting Powell v.
Tompkins, 783 F.3d 332, 337 (1st Cir. 2015)); see Mass. Gen. Laws
ch. 140, §§ 129B(6), 129C; Mass. Gen. Laws ch. 269, § 10. "Thus,"
we explained, "the rejection of Morin's application for a [license
to carry] [did] not violate the Second Amendment right he ha[d]
asserted." Morin, 862 F.3d at 127.
We did note that "Morin believe[d] that only a [license
to carry] will allow him to possess a firearm in his home," but we
explained that he was wrong because he would be permitted to do so
with an FID Card. Id. (citing Powell, 783 F.3d at 337;
Commonwealth v. Gouse, 461 Mass. 787, 799 n.14 (2012);
Commonwealth v. Powell, 459 Mass. 572, 587 (2011)). We also
noted, however, that Morin was "correct that [an] FID Card alone
is insufficient to purchase and transport a firearm to one's home."
Id. But, we observed that Massachusetts General Laws Chapter 140,
Section 131A provided that a person with an FID Card could apply
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at least in some circumstances for a "permit to purchase." Id.We then explained that "[a]lthough a person who purchases a firearm
using [an] FID Card and a permit to purchase may not herself
transport the firearm to her home, the law specifically provides
that she may have it delivered to her home." Id. (citing Mass.
Gen. Laws. ch. 140, § 123). We thus concluded as follows:
Therefore, with both a[n] FID Card and a permit to
purchase, one could purchase a firearm, have it
delivered to one's home, and possess it there -- without
the need for a [license to carry.] Thus, the denial of
an application for a [license to carry] does not infringe
upon the Second Amendment right to possess a firearm
within one's home, the only constitutional right Morin
has raised.
Id. We also explained that Morin had not applied for a permit to
purchase and so lacked standing to challenge "any such denial."
Id. at 127 n.9.
Finally, we addressed Morin's "as-applied constitutional
challenge to" Massachusetts' scheme for the "issuance of FID
Cards." Id. at 128. We noted that "[a]ll parties agree[d]" that
if he were to apply for an FID Card, Morin would be denied one
based on his firearms-related convictions in D.C. Id.; see also
Mass. Gen. Laws ch. 140, § 129B(1)(ii)(D). But, we concluded that
he lacked standing to bring his as-applied challenge to this aspect
of Massachusetts law because he had not applied for an FID Card.
Id. As a result, we concluded:
Since the denial of Morin's [license to carry]
application does not infringe on the Second Amendment
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rights he asserts in this litigation and he lacks
standing on his FID Card challenge, it is unnecessary
for this Court to reach the other issues presented here,
such as the constitutionality of the prohibition against
granting a [license to carry] or [an] FID Card to
individuals who have committed nonviolent misdemeanors
or the appropriate level of constitutional scrutiny for
such an inquiry.
Id.
Subsequently, in February 2018, Morin applied to the
Northborough Police Department for an FID Card. Massachusetts law
makes issuance of an FID Card mandatory unless the applicant is
disqualified as a "prohibited person." Mass. Gen. Laws ch. 140,
§ 129B(1). The list of "prohibited persons" includes individuals
who have been convicted "in any other state or federal
jurisdiction" of a felony, certain misdemeanors and violent
crimes, or for violating certain laws regulating controlled
substances and weapons. Id. § 129B(1)(ii). Although some of
these restrictions -- such as the disqualification for individuals
convicted of a felony -- are permanent, others "shall not
disqualify" an FID Card applicant if at least five years have
elapsed since the later of that individual's conviction or release
from confinement or supervision. Id. For example, the statute
only temporarily disqualifies from obtaining an FID Card those
individuals who, like Morin, have been convicted of certain out-
of-state firearms-related misdemeanors. See id.
§§ 129B(1)(ii)(D), 129B(1)(ii).
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By the time that Morin applied for an FID Card in 2018,
nearly fourteen years had passed since his conviction for violating
D.C.'s gun laws. Thus, then-Northborough Chief of Police Lyver
granted Morin's application for an FID Card, as Morin was not a
"prohibited person" at that time.
In addition to applying in 2018 for an FID Card from the
Northborough Police Department, Morin also applied at that time
for a permit to purchase from that same department. Under
Massachusetts law, though, Morin could not be eligible for a permit
to purchase unless he was also eligible for a license to carry.
Id. § 131A. Yet, he was not eligible for a license to carry
because his D.C. convictions, notwithstanding their age, rendered
him ineligible for that license, since Massachusetts barred anyone
with prior firearms-related convictions for which a term of
imprisonment could be imposed from obtaining one. See id.
§ 131(d)(ii)(D). Accordingly, Chief Lyver denied Morin's
application for the permit to purchase.
On July 18, 2018, following the denial of his
application for a permit to purchase, Morin filed this suit against
Chief Lyver pursuant to 42 U.S.C. § 1983. In his complaint, Morin
seeks a declaratory judgment that Massachusetts General Laws
Chapter 140, Section 131(d)(ii)(D), which prohibits Morin from
obtaining a license to carry, "violates . . the Second and
Fourteenth Amendments to the U.S. Constitution, to the extent [it]
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allow[s] [the defendants] to prohibit otherwise qualified private
citizens from purchasing and possessing 'firearms' for the purpose
of self-defense in the home" and an injunction against the
"customs, policies, and practices related to enforcement of" the
same prohibition. He also seeks an injunction requiring Chief
Lyver "to issue [to him] a Massachusetts [license to carry] or
[p]ermit to [p]urchase sufficient . . . to possess and purchase a
firearm for the purpose of self-defense in the home."
The Commonwealth filed an assented-to motion to
intervene as a defendant on October 26, 2018, which the District
Court granted. Morin thereafter filed for summary judgment, and
the Commonwealth and Chief Lyver each filed a cross-motion for
summary judgment. In his cross-motion, Chief Lyver incorporated
the Commonwealth's argument supporting the constitutionality of
the statutory restrictions at issue and argued further that he
could not be held liable for executing a "non-discretionary
statutory mandate" that "did not cause a violation of Morin's
constitutional rights through any municipal custom and policy."
Morin contended in his motion for summary judgment, among other
things, that Massachusetts had imposed on him a "lifetime handgun
ban" which he specified at that time as one that prohibited him
from both "acquir[ing]" and "obtain[ing]" a handgun to possess for
self-defense in his home.
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The District Court ruled against Morin on both his own
motion and the defendants' cross-motions. Morin, 442 F. Supp. 3d
at 417. The District Court began its analysis by noting that
Morin had been granted an FID Card and so "can lawfully possess a
firearm within his home." Id. at 414. It then noted Morin's
contention that, nonetheless, the provisions of Massachusetts law
at issue "burden his Second Amendment right because they prevent
him from lawfully obtaining any firearm to possess within his
home." Id. The District Court at that point "assume[d], without
deciding, that [Morin] is correct that these provisions burden
conduct falling within the scope of the Second Amendment right"
and moved on to address the level of scrutiny to apply. Id.
The District Court concluded that only intermediate
scrutiny -- and not the more intensive form of scrutiny for which
Morin advocated -- applied because the provisions at issue burdened
only those individuals who were not "law-abiding, responsible
citizens," and that Morin did not qualify as such an individual
due to his earlier firearms-related convictions in D.C. Id.
at 415 (quoting Heller, 554 U.S. at 635) (emphasis omitted). The
District Court then upheld the provisions on the ground that they
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were substantially related to an important governmental interest.
Id. at 417.4
Morin appealed the same day. Our review is de novo.
See Gutwill v. City of Framingham, 995 F.3d 6, 12 (1st Cir. 2021).
II.
As we have seen, the District Court rejected Morin's
contention that the restrictions at issue were subject to a more
intensive form of scrutiny than intermediate scrutiny. Morin had
argued to the District Court that the restrictions were subject to
this more intensive form of scrutiny because he contended there
that they burdened the core right to possess a firearm that Heller
recognized by categorically banning his right to "obtain" or
"acquire" a handgun for the purpose of possessing it in the home.
Morin, 442 F. Supp. 3d at 414-15. In rejecting Morin's argument
for applying the more intensive form of scrutiny that he sought,
the District Court did not take issue with the way Morin at that
time had characterized the effect of the restrictions. Rather,
it determined that, even assuming they had the effect that Morin
claimed they had, they were still subject to only intermediate
scrutiny because they burdened persons who -- by dint of their
4 Because the District Court found Massachusetts's licensing
restrictions to be constitutional, it did not reach the issue of
Chief Lyver's individual liability in granting his motion for
summary judgment. Id. at 417 n.5.
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prior firearms misdemeanor convictions -- did not qualify as "law-
abiding." Id. at 415. The District Court thus did not address
whether the restrictions at issue could be upheld if they were
subjected to the more intensive form of scrutiny that Morin
referred to at points as "strong showing" scrutiny and that he
contended applied under Heller, notwithstanding his prior
convictions in D.C. Id. at 414.
In now appealing that ruling, Morin notably develops no
argument that, insofar as intermediate scrutiny does apply, the
District Court erred in upholding the restrictions. Instead, he
contends only that a more intensive form of scrutiny applies and
that, under it, these restrictions are unconstitutional.5
In pressing that contention to us on appeal, Morin
devotes much of his briefing to us to challenging the District
Court's conclusion that he is not law-abiding within the meaning
of Heller. But, Morin does not in doing so at any point develop
-- or even state -- the argument that he made below that his right
to "obtain a handgun in order to possess it" for lawful use at
5 At oral argument, Morin's counsel did assert that, "[f]irst
and foremost, it's the government that bears the burden of showing
that the burden is justified, and the statistical evidence we've
got doesn't meet that showing." But, given the focus in Morin's
briefing on the contention that the restrictions are subject to a
more intensive form of scrutiny than the intermediate scrutiny
that the District Court applied, we do not understand that
assertion -- belated as it is -- to amount to a contention on
appeal that the restrictions would not survive even intermediate
scrutiny.
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home has been categorically prohibited. (emphasis added). Thus,
he has failed to describe how the core right articulated in Heller
has been so burdened that "strong showing" scrutiny applies,
notwithstanding his previous firearms-related convictions.
True, on appeal, Morin contends that he is subject to a
handgun "ban" that he contends triggers such a demanding form of
review. However, he does not describe it as a ban on his right
to obtain a handgun for the purpose of possessing it in the home,
as he did below. He instead describes it on appeal only as a ban
on his right to possess a handgun for that purpose, insofar as he
describes it with any specificity.6 And that is true of his reply
brief as well.7 It is clear though, that, in fact, Morin is not
6 For example, in the statement of facts in his opening brief
to us, Morin asserts that the Massachusetts "licensing scheme
precludes [him] from lawfully possessing a firearm in the home for
the purposes of self-defense." (emphasis added). Then, soon
after, he characterizes the restrictions as imposing
"disarmament." Morin does refer at one point in his opening brief
more generally to a "deprivation" to which he is subject, but in
doing so he fails to specify what he understands that "deprivation"
to be. And, while at another point he argues that his "core right
to possess a handgun in his home for self-defense is directly
affected," (emphasis added), he again fails to elaborate as to
how. Morin also at one point describes the restrictions at issue
as "firearm disentrancement," which appears to be a typo. In the
remainder of his brief, moreover, he characterizes Massachusetts's
actions as imposing a "lifetime handgun ban," without further
describing what that ban entails.
7 The reply brief does early on describe the restrictions at
issue as imposing a "lifetime bar." But, in doing so, it does not
specify what is barred. It then goes on to state that Morin "seeks
to possess a handgun for lawful purposes such as self-defense" but
that "Commonwealth law definitively prevents him from doing that
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subject to a ban on handgun possession for the purposes of self-
defense in the home, because his FID Card permits him to possess
a handgun for just that purpose. See Morin, 862 F.3d at 127.
Indeed, the Commonwealth makes that very point in arguing that,
contrary to Morin's contention on appeal that we must apply "strong
showing review" due to the "ban" to which he contends that he is
subject, intermediate scrutiny applies.8
In pointing out this shift in how Morin describes the
restrictions at issue on appeal in arguing for more intensive
scrutiny compared to how he described them below in arguing for
such demanding review, we do not mean to suggest that there is no
argument to be made that the severe though (if Massachusetts is
right about how the Commonwealth treats the inheritance of a
handgun) not total restriction on acquisition of a handgun for
home use may heavily burden the core right that Heller recognized.
Nor do we mean to suggest that there is not an argument to be made
that insofar as those restrictions have that effect, they warrant
more than intermediate scrutiny even when they are applied to
by operation of criminal penalty," (emphasis added) even though it
does not, and that he seeks to "challenge categorical restrictions
on firearm[] possession by non-violent misdemeanants," (emphasis
added) even though the reply brief does not specify the content of
those "restrictions."
8 The Commonwealth further contends that there is not even a
ban on Morin's right to obtain a handgun, as he may acquire one
through inheritance so long as he has an FID Card. Morin at no
point addresses that contention.
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someone who, like Morin, has more-than-decade-old misdemeanor
firearms-related convictions.
But, here, Morin cannot be said to have made any such
argument on appeal for applying that more demanding form of review
to the restrictions at issue. Given the way that he has described
on appeal the "ban" that he contends that those restrictions impose
on him, no such argument has been advanced to us. Thus, we must
affirm the grant of summary judgment against him because the only
ground that he has given for overturning it rests on a description
of the restrictions' effect on his conduct that is clearly mistaken
insofar as it is developed at all. See Morin, 862 F.3d at 126 n.8
(explaining that we may affirm a grant of summary judgment on any
ground manifest in the record); United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived."). For, although it is true that Morin does
argue at length that the District Court erred in relying on the
conclusion that he is not "law-abiding" in assessing his Heller-
based arguments, he fails to develop any argument for applying a
greater level of scrutiny than the District Court applied to the
actual restrictions at issue due to the vague way in which he
describes them at some points and the specific way that he
mischaracterizes them at others. Accordingly, Morin provides us
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with no basis for overturning the District Court's grant of summary
judgment to the defendants.
III.
The District Court's denial of Morin's motion for
summary judgment and grants of the defendants' cross-motions for
summary judgment are affirmed.
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