Draper v. Healey

United States Court of Appeals For the First Circuit

No. 15-1429

ROBERT DRAPER; ARIEL WEISBERG; DONNA MAJOR; ERIC NOTKIN; ROBERT BOUDRIE; BRENT CARLTON; CONCORD ARMORY, LLC; PRECISION POINT FIREARMS, LLC; SECOND AMENDMENT FOUNDATION, INC.,

Plaintiffs, Appellants,

COMMONWEALTH SECOND AMENDMENT, INC.,

Plaintiff,

v.

MAURA HEALEY, in her capacity as Attorney General of Massachusetts,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Thompson, Circuit Judge, Souter, Associate Justice,* and Kayatta, Circuit Judge.

Alexander Aron Flig, with whom Law Office of Alexander A. Flig was on brief, for appellants. Julia Kobick, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for

* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. appellee. Kimberly A. Mottley, with whom John E. Roberts, Laura Stafford, and Proskauer Rose LLP were on brief, for the Brady Center To Prevent Gun Violence, amicus curiae in support of appellee. W. Daniel Deane, with whom David H. Tennant, Lynnette Nogueras-Trummer, Matthew Struhar, and Nixon Peabody LLP were on brief, for the Law Center to Prevent Gun Violence, amicus curiae in support of affirmance.

June 17, 2016 SOUTER, Associate Justice. A Massachusetts regulation

makes it "an unfair or deceptive practice," and thus a violation

of state law, "for a handgun-purveyor to transfer or offer to

transfer to any customer located within the Commonwealth any

handgun which does not contain a load indicator or magazine safety

disconnect." 940 Mass. Code Regs. 16.05(3). Under the state

Attorney General's regulatory definition, a "load indicator" is "a

device which plainly indicates that a cartridge is in the firing

chamber within the handgun." Id. 16.01.

In response to enquiries, the Attorney General

(defendant-appellee here) informed various firearms dealers and

consumers that Glock, Inc.'s third and fourth generations pistols

lack an adequate load indicator. Some dealers and consumers,

joined by two advocacy groups, brought a pre-enforcement action

under 42 U.S.C. § 1983 challenging the constitutionality of the

load indicator requirement as being unenforceably vague in

violation of Fourteenth Amendment due process; the consumers added

a complementary claim that the requirement violates the Second

Amendment by preventing them from purchasing third and fourth

generations Glocks.

The district court granted the AG's motion to dismiss

under Federal Rules of Civil Procedure 12(b)(1) and (6). It

determined that the two advocacy groups lacked standing and that

the dealers and consumers failed to state a claim subject to

- 3 - relief. The dealers, consumers, and one of the advocacy groups

appealed. We review the grant of the motion to dismiss de novo,

Chiang v. Skeirik, 582 F.3d 238, 241 (1st Cir. 2009), and affirm.

To begin with, the advocacy group, Second Amendment

Foundation, Inc., lacks standing to sue. It seeks to assert

associational standing on behalf of its members, which requires,

among other things, that at least one of the group's members have

standing as an individual. Town of Norwood v. F.E.R.C., 202 F.3d

392, 405-06 (1st Cir. 2000). To satisfy this requirement, the

association must, at the very least, "identify [a] member[] who

ha[s] suffered the requisite harm." Summers v. Earth Island Inst.,

555 U.S. 488, 499 (2009); see also id. at 498 (discussing

requirement of naming one or more affected members).

Here, the complaint did not identify any member of the

group whom the regulation prevented from selling or purchasing a

Glock. The group submitted an affidavit asserting that many of

its members asked it to take legal action challenging the

regulation, but the Supreme Court has said that an affidavit

provided by an association to establish standing is insufficient

unless it names an injured individual. Id. at 498.

The advocacy group says that it was premature to dismiss

it from the action at the pleading stage, before discovery had

commenced. But "where standing is at issue, heightened specificity

is obligatory at the pleading stage. . . . The complainant must

- 4 - set forth reasonably definite factual allegations, either direct

or inferential, regarding each material element needed to sustain

standing." United States v. AVX Corp., 962 F.2d 108, 115 (1st

Cir. 1992). And why the advocacy group would have needed formal

discovery to identify which of its own members may have been

injured by the regulation is a mystery the group leaves unsolved.

We now turn to the dealers' claim that the load indicator

requirement is vague in violation of due process, a constitutional

claim eligible only for as-applied, not facial, review. United

States v. Zhen Zhou Wu, 711 F.3d 1, 15 (1st Cir. 2013) ("Outside

the First Amendment context, we consider whether a statute is vague

as applied to the particular facts at issue . . . ." (emphasis in

original) (internal quotation marks omitted)). As relevant to the

dealers' as-applied challenge here, a regulation may be void for

vagueness in violation of due process if in the circumstances it

"fails to provide a person of ordinary intelligence fair notice of

what is prohibited." F.C.C. v. Fox Television Stations, Inc., 132

S. Ct. 2307, 2317 (2012) (internal quotation marks omitted).

"Fair" notice is understood as notice short of semantic certainty.

Because "words are rough-hewn tools, not surgically precise

instruments[,] . . . some degree of inexactitude is acceptable in

statutory language. . . . [R]easonable breadth in the terms

employed by an ordinance does not require that it be invalidated

on vagueness grounds." URI Student Senate v. Town Of Narragansett,

- 5 - 631 F.3d 1, 14 (1st Cir. 2011) (citations and internal quotation

marks omitted).

Here, the dealers, who were informed that the AG took

the position that the Glocks violated the regulation, take aim at

the phrase "plainly indicates" in the definition of load indicator:

"a device which plainly indicates that a cartridge is in the firing

chamber." But this definition provides anyone of ordinary

intelligence fair notice that what is required is a readily

perceptible signal that a loaded gun is loaded. Indeed, the phrase

"plainly indicates" offers just as much notice as others we have

upheld against vagueness challenges. See, e.g., id. at 15

(ordinance prohibited any gathering that "constitutes a

substantial disturbance of the quiet enjoyment of . . . property

in a significant segment of a neighborhood" (emphases added));

United States v. Lachman, 387 F.3d 42, 45 (1st Cir. 2004)

(regulation required license for export of "specially

designed . . . components" of equipment used in constructing

rockets (emphasis added)). And it is equally clear that the AG

was on firm ground in concluding that the Glocks at issue violate

the regulation. The record contains photographs of their load

indicators in both the "loaded" and "unloaded" positions, and the

differences, far from being "plain," are discernable only to the

careful and discriminating eye.

- 6 - Perhaps it is a sense of the weakness of their position

that leads the dealers to argue, in effect, that fair notice

requires the Commonwealth to provide something approaching a

design specification: if the Commonwealth wishes to require load

indicators that "indicate plainly," the Commonwealth ought to

supply the industry with a graphic plan or blueprint. But if due

process demanded any such how-to guide, swaths of the United States

Code, to say nothing of state statute books, would be vulnerable.

See, e.g., 21 U.S.C. § 209 ("[T]he box, bottle, or other package

shall be plainly labeled with the name of the substance [and] the

word 'Poison' . . . ." (emphasis added)); Kimble v. Marvel Entm't,

LLC, 135 S. Ct. 2401, 2412 (2015) ("Congress . . . intended [the

Sherman Act]'s reference to 'restraint of trade' to have changing

content, and authorized courts to oversee the term's dynamic

potential." (some internal quotation marks omitted) (quoting 15

U.S.C. § 1 (prohibiting "[e]very contract . . . in restraint of

trade"))); N.Y. State Conference of Blue Cross & Blue Shield Plans

v. Travelers Ins. Co., 514 U.S. 645, 655 (1995) ("If 'relate to'

[in ERISA's pre-emption provision] were taken to extend to the

furthest stretch of its indeterminacy, then for all practical

purposes pre-emption would never run its course, for '[r]eally,

universally, relations stop nowhere.'" (quoting 29 U.S.C.

§ 1144(a) (preempting state laws "insofar as they . . . relate to

- 7 - any [ERISA] plan"), and H. James, Roderick Hudson xli (New York

ed., World's Classics 1980) (1875))).

That leaves the consumers' Second Amendment claim, which

they stipulate is "derivative" of the dealers' claim of a due

process violation. It is not clear what a "derivative" Second

Amendment claim might be, but we accept the consumers' stipulation

as conceding that dismissal of the due process claim requires

dismissal of their Second Amendment claim as well. We find no

such merit in the appellants' remaining arguments as would call

for extended discussion.

AFFIRMED.

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