Draper v. Healey ( 2016 )

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
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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
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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,
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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.
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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
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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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