          United States Court of Appeals
                     For the First Circuit


No. 16-1904

                          ALFRED MORIN,

                      Plaintiff, Appellant,

                               v.

          MARK K. LEAHY; 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

                 Torruella, Kayatta, and Barron,
                         Circuit Judges.


     J. Steven Foley, for appellant.
     Janelle M. Austin, with whom Brian W. Riley and KP Law, P.C.
were on brief, for appellee Leahy.
     Julia E. Kobick, Assistant Attorney General, Government
Bureau, with whom Maura Healey, Attorney General of Massachusetts,
was on brief, for appellee Commonwealth of Massachusetts.



                          June 29, 2017
            TORRUELLA, Circuit Judge.          Dr. Alfred Morin ("Morin")

applied to renew his Class A License to Carry ("Class A License").1

Mark Leahy ("Leahy"), Chief of Police of the Town of Northborough,

denied Morin's application, because Morin's two prior convictions

for firearms-related misdemeanors barred him from obtaining a

Class A License under Massachusetts law.               Morin brings an as-

applied constitutional challenge, arguing that Massachusetts law

infringes      on   his   Second   Amendment   right   as   a   "law-abiding,

responsible citizen[] to use arms in defense of hearth and home."

District of Columbia v. Heller, 554 U.S. 570, 635 (2008).2              Morin

also brings a claim for declaratory and injunctive relief under 42

U.S.C. § 1983 ("§ 1983") against Leahy, seeking issuance of a Class

A   License.        Morin's   constitutional    argument    fails,   however,




1  The Class A License is the least restrictive license in
Massachusetts and entitles the holder to such rights as the ability
to purchase, possess, and carry firearms, including large capacity
firearms. The Class A License also permits the holder to carry a
concealed firearm in public. Mass. Gen. Laws ch. 140, § 131(a);
Chardin v. Police Comm'r of Bos., 989 N.E.2d 392, 394–95 (Mass.
2013).
2  Because this is the only Second Amendment right Morin invokes,
we need not decide whether there are other rights under the Second
Amendment that could make the denial of a Class A License a
constitutional violation. For instance, nothing in this opinion
is meant to suggest that Morin could, or that he could not, have
a constitutional right to carry a firearm outside his home.

                                      -2-
because a Firearm Identification Card ("FID Card"),3 in conjunction

with a permit to purchase, allows one to acquire a firearm4 and to

possess it in one's home, and thus to exercise the Second Amendment

rights at issue in the present case.           The denial of a Class A

License therefore does not implicate Morin's Second Amendment

right to possess a firearm in his home for self-defense, which is

the only Second Amendment right he has asserted in this litigation.

Because Morin has failed to show a constitutional violation, his

§ 1983 claim fails as well.

           Morin   also   challenges    the   constitutionality   of   the

Massachusetts statutory scheme that governs the issuance of FID

Cards, because, as the parties agree, due to his prior convictions

he will also be denied a FID Card if he were to apply for one.5

However, Morin lacks standing to bring such a challenge, because




3  The FID Card is separate and distinct from the Massachusetts
licensing to carry scheme, and includes, among others, the right
of the holder to possess a non-large capacity firearm within his
or her house or place of business, but does not include the right
to carry a firearm in any other place. Mass. Gen. Laws ch. 140,
§ 129B; Chardin, 989 N.E.2d at 394 n.5.
4  In this opinion, we use Massachusetts' definition of "firearm,"
which is "a pistol, revolver or other weapon of any description,
loaded or unloaded, from which a shot or bullet can be discharged
and of which the length of the barrel or barrels is less than 16
inches or 18 inches in the case of a shotgun as originally
manufactured." Mass. Gen. Laws ch. 140, § 121.
5   We express no opinion as to whether the parties are correct.

                                  -3-
he has not applied for a FID Card, and has thus not been denied

one.   Therefore, we affirm the decision of the district court.

                           I.    Background6

           In 2004, Morin drove from Massachusetts to Washington,

D.C., where he attempted to visit the Smithsonian National Museum

of   Natural   History.   Upon   seeing   a    sign   outside   the   museum

indicating that firearms were not allowed into the museum, Morin

approached a security guard to check his gun for which he had a

Massachusetts Class A License.          The security guard called the

police who then arrested Morin.           Morin later pled guilty to

attempted carrying of a firearm without a license, D.C. Code § 22-

103 (2004), and possession of an unregistered firearm, D.C. Code

§ 6-2376 (2004).7    At the time, both violations were misdemeanor

offenses under D.C. law.    Morin otherwise has no criminal record.

           In 2008, Morin sought to renew his Class A License with

the Northborough Police Department.       Morin incorrectly answered in

the negative a question regarding past convictions for firearm



6  Because this is an appeal from a grant of summary judgment in
favor of the defendants, we present the facts in the light most
favorable to Morin. Walsh v. TelTech Sys., Inc., 821 F.3d 155,
157–58 (1st Cir. 2016).
7 The provisions of the D.C. Code have been renumbered. D.C. Code
§ 22-103 (2004) is now codified at D.C. Code § 22-1803. D.C. Code
§ 6-2376 (2004) is now codified at D.C. Code §§ 7-2502.01, 7-
2507.06(a).

                                  -4-
violations. The Northborough Police Department, through a standard

fingerprint check, learned of Morin's convictions in D.C.                     Leahy

denied    Morin's        application     because,    due   to    Morin's       prior

convictions, Leahy was statutorily barred from issuing a Class A

License to Morin.         Mass. Gen. Laws ch. 140, § 131(d)(ii)(D), (k).

Morin filed a new application for a Class A License in 2015, this

time    correctly    answering     the   question    regarding     past    firearm

violations.       Leahy again denied Morin's application due to Morin's

prior convictions.

            Morin filed suit against Leahy on March 25, 2015, arguing

that Leahy's denial of Morin's application for a Class A License

violated his constitutionally protected right to possess a firearm

for self-defense within the home, and seeking declaratory and

injunctive relief under § 1983.              Morin argued that the statutory

subsection requiring the denial of his applications, Mass. Gen.

Laws ch. 140, § 131(d)(ii)(D), violated the Second Amendment of

the United States Constitution both facially and as applied to

him.     On August 12, 2015, the Commonwealth of Massachusetts

intervened in the case.             The parties filed cross-motions for

summary judgment.

            On     May    18,   2016,    the    district   court     granted    the

Commonwealth's cross-motion for summary judgment.                    The district

court    denied    Morin's      as-applied     challenge   because    Morin    only

                                         -5-
applied for the least restrictive Class A License and did not apply

for a more restrictive license, such as a Class B License to Carry

("Class B License") or a FID Card.8         These alternatives would allow

one to have a gun within one's home in accordance with the Second

Amendment right of "law-abiding, responsible citizens" to defend

"hearth and home."      Heller, 554 U.S. at 635.        The district court

also   concluded   that    "Morin's         facial   challenge   cannot    be

maintained,   because     his   own    situation      presents   a   set   of

circumstances in which the application of section 131(d)(ii)(D) is

constitutional."

          After an unsuccessful motion to alter or amend the

district court's judgment, Morin filed a timely notice of appeal,

appealing only his as-applied challenge.




8  Class B Licenses include the ability to purchase, possess, and
carry a firearm, but the license does not extend to large capacity
firearms or allow a holder to carry a concealed firearm in public.
Mass. Gen. Laws ch. 140, § 131(b); Chardin, 989 N.E.2d at 395.
However, Massachusetts amended Mass. Gen. Laws ch. 140, § 131 such
that licensing authorities, including state police, can no longer
issue, renew, or accept applications for a Class B license. 2014
Mass. Acts ch. 284 § 101). The parties do not dispute that a Class
B license was not available to Morin at the time of his application
in February 2015. The district court therefore erred by suggesting
Morin could apply for a Class B License in order to possess a
firearm in his home. However, we may affirm on the ground that
Morin can still apply for a FID card. See Tutor Perini Corp. v.
Banc of Am. Sec. LLC, 842 F.3d 71, 84 (1st Cir. 2016) ("[W]e may
affirm [a] summary-judgment holding on any grounds supported by
the record, even if not relied on by the district judge.").

                                      -6-
                           II.   Discussion

          "We   review   the   district    court's   grant   of   summary

judgment on cross-motions for summary judgment de novo."            Sch.

Union No. 37 v. United Nat'l Ins. Co., 617 F.3d 554, 558 (1st Cir.

2010).

          Morin argues that his statutory disqualification for a

Class A License and the Massachusetts firearm licensing scheme, as

applied to him, violates his Second Amendment right to own a

firearm in the home for purposes of self-defense.       See Heller, 554

U.S. at 635 ("[The Second Amendment] surely elevates above all

other interests the right of law-abiding, responsible citizens to

use arms in defense of hearth and home.").            However, a more

restrictive license, the FID Card, would permit a license holder

to have a firearm in the home for purposes of self-defense.

Chardin, 989 N.E.2d at 394 n.5.         Thus, the rejection of Morin's

application for a Class A License does not violate the Second

Amendment right he has asserted.

          While Morin believes that only a Class A License will

allow him to possess a firearm in his home, the Massachusetts

Supreme Judicial Court, and this Court interpreting Massachusetts

law, have held to the contrary on numerous occasions.        See Powell

v. Tompkins, 783 F.3d 332, 337 (1st Cir. 2015) ("An FID card

permits a qualified person to keep a firearm and ammunition in his

                                  -7-
home   or   place    of   business   but    does   not   by   itself   allow   an

individual to carry them in public.");             Commonwealth v. Gouse, 965

N.E.2d 774, 799 n.14 (Mass. 2012) ("Under our statutory scheme, an

FID card . . . allows the holder to own, transfer, or possess a

firearm in his residence or place of business.");              Commonwealth v.

Powell, 946 N.E.2d 114, 128 (Mass. 2011) ("An FID card allows the

holder to own or possess a firearm within the holder's residence

or place of business, but not to carry it to or in any other

place.").

            Morin is correct that a FID Card alone is insufficient

to purchase and transport a firearm to one's home.                     However,

Massachusetts allows individuals with a FID Card to apply to a

licensing authority for a permit to purchase, rent, or lease a

firearm for a proper purpose.          Mass. Gen. Laws ch. 140, § 131A.

Although a person who purchases a firearm using a 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.        Mass. Gen. Laws ch. 140, § 123 ("[D]elivery of a

firearm by a licensee to a person possessing a valid permit to

purchase said firearm issued under the provisions of section [131A]

and a valid [FID] card issued under section [129B] may be made by

the licensee to the purchaser's residence or place of business.");

Commonwealth v. Seay, 383 N.E.2d 828, 831–32 (Mass. 1978).

                                      -8-
          Therefore, with both a 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 Class A License.9         Thus,

the denial of an application for a Class A License does not

infringe upon the Second Amendment right to possess a firearm

within one's home, the only constitutional right Morin has raised.

See Hightower v. City of Boston, 693 F.3d 61, 72 (1st Cir. 2012).

See also Heller, 554 U.S. at 635.          Because he has failed to show

a violation of his constitutional right to possess a firearm within

his home, his § 1983 claim against Leahy also fails.         See Young v.

City of Providence, 404 F.3d 4, 25-26 (1st Cir. 2005) ("Assessing

liability [pursuant to § 1983] against the City requires . . . that

plaintiff's    harm   was   caused    by    a   constitutional   violation

. . . .").10




9  Morin's argument that Massachusetts has not granted a permit to
purchase since 2006 is irrelevant to the analysis since he has
never applied for one, thus has never been denied one, and
consequently lacks standing to challenge any such denial.
10  Leahy also argues that a § 1983 claim against him for denial
of the Class A License fails as a matter of law, because he -- a
municipal officer -- had no discretion to grant the License, and
was enforcing a state, rather than a municipal policy. See, e.g.,
Bd. of the Cty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997) ("[I]t
is not enough for a § 1983 plaintiff merely to identify conduct
properly attributable to the municipality. The plaintiff must also
demonstrate that, through its deliberate conduct, the municipality
was the 'moving force' behind the injury alleged."). We do not

                                     -9-
            Morin has also brought an as-applied constitutional

challenge    to   Mass.    Gen.   Laws   ch.   140,   §§    129B(1)(i)(D)   and

129B(1)(ii)(D), which control the issuance of FID Cards.                    All

parties agree that if Morin were to apply for a FID Card the

licensing authority would be precluded from issuing him a FID Card

because of Morin's past convictions.                However, without having

applied for, or having been denied, a FID Card, Morin can show no

injury to sustain his claim, and thus has no standing to challenge

the constitutionality of the statutory scheme that governs the

issuance of FID Cards.          See Hightower, 693 F.3d at 70-71 ("[The

plaintiff] lacks standing to raise a claim as to a Class B license;

she has never applied for such a license, been denied one, or had

such a license revoked. . . . For the same reason, she lacks

standing as to an FID card . . . .").

            Since the denial of Morin's Class A License application

does not infringe on the Second Amendment 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 Class A License or FID Card to individuals who




need to reach this argument, however, because Morin has failed to
show a constitutional violation.

                                       -10-
have committed nonviolent misdemeanors or the appropriate level of

constitutional scrutiny for such an inquiry.

                        III.   Conclusion

          For the foregoing reasons, the judgment of the district

court is affirmed.

          Affirmed.




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