United States Court of Appeals
For the First Circuit
No. 09-2001
PAUL GIRAGOSIAN,
Plaintiff, Appellant,
v.
WAYNE BETTENCOURT,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Circuit Judge,
Souter,* Associate Justice,
and Howard, Circuit Judge.
Dean Carnahan with whom Law Offices of Dean Carnahan, was on
brief, for appellant.
Michael Sady, Assistant United States Attorney with whom Carmen
M. Ortiz, United States Attorney, was on brief, for appellee.
July 29, 2010
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
HOWARD, Circuit Judge. Plaintiff-appellant Paul
Giragosian appeals from a district court order dismissing his Bivens
action against Wayne Bettencourt, a regulatory inspection officer
employed by the U.S. Bureau of Alcohol, Tobacco, Firearms and
Explosives ("ATF").1 In that action, Giragosian argued that
Bettencourt's warrantless inspection of Giragosian's gun shop at the
request of the local police department violated the Fourth
Amendment. The district court held that Bettencourt was entitled
to qualified immunity on Giragosian's constitutional claim and
granted Bettencourt's motion to dismiss for failure to state a claim
upon which relief could be granted. Fed. R. Civ. P. 12(b)(6). We
find no error in the district court's disposition and affirm.
I. Facts
Because Giragosian's claims were dismissed under Federal
Rule of Civil Procedure 12(b)(6), "we accept the well-pleaded
allegations in plaintiff's complaint as true and draw all reasonable
inferences in his favor." Morales-Tanon v. P.R. Elec. Power Auth.,
524 F.3d 15, 17 (1st Cir. 2008). In assessing a rule 12(b)(6)
motion to dismiss, we may consider, in addition to the complaint
itself, a limited array of additional documents such as any that are
attached to the complaint and "documents sufficiently referred to
1
See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971).
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in the complaint." Miss. Pub. Empl. Ret. Sys. v. Boston Sci. Corp.,
523 F.3d 75, 86 (1st Cir. 2008). We sketch the facts here from
Giragosian's complaint, which incorporates Bettencourt's inspection
report.2
Giragosian owned PSMG Gun Co., a gun shop in Arlington,
Massachusetts. In January 2007, Giragosian was training a customer
to use a handgun when the customer committed suicide by
intentionally shooting himself in the head.3 The Arlington Police
Department conducted an investigation that day and concluded that
Giragosian was not at fault for the customer's suicide.
Nevertheless, Arlington's Chief of Police, Frederick Ryan, suspended
Giragosian's state firearms license pending further investigation
by the Arlington Police Department and the Middlesex County District
Attorney's Office.
The Arlington Police Department also contacted ATF to
request that ATF conduct an inspection of PSMG. Bettencourt was the
ATF investigator assigned to Giragosian's case. Before conducting
the inspection, Bettencourt reviewed ATF records concerning
Giragosian's federal gun license and ascertained that the ATF had
2
Additional background on this dispute can be found in
Giragosian v. Ryan, 547 F.3d 59 (1st Cir. 2008), which arose out of
the same facts as this case.
3
Earlier events at Giragosian's gun shop had already raised
the concerns of local police. In 2002, another trainee committed
suicide in the store. Additionally, in September 2005, PSMG was
burglarized and eight handguns were stolen, several of which later
reappeared at crime scenes in the Boston area.
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not conducted an annual compliance inspection since 1996.
Bettencourt called Giragosian to set up a time to conduct an
inspection, and the two agreed to meet at Giragosian's gun shop on
January 31, 2007.
During the inspection, Bettencourt observed several
violations of federal firearms regulations. For example,
Bettencourt found that Giragosian had, on three occasions, sold
multiple handguns to a single purchaser within a five-day period
without completing the requisite ATF Form 3310.4, and that
Giragosian had failed to update the store's records to account for
several firearms. Additionally, according to Bettencourt's
inspection report, Giragosian was manufacturing custom firearms on
site without a federal manufacturer's license to do so. Bettencourt
had Giragosian surrender his federal license and took ten custom gun
frames lacking serial numbers from the shop.4 Based on
Bettencourt's inspection report, the Arlington Police Department
also suspended, and then revoked, Giragosian's state firearms
licenses.
Giragosian sued Bettencourt in federal district court,
alleging that the inspection, and ATF's seizure of his federal
license and gun frames, constituted an unlawful warrantless search
4
Bettencourt asserts that Giragosian voluntarily surrendered
the gun frames and his federal firearms license to the ATF on
Bettencourt's request, but we must accept Giragosian's version of
events, as alleged in his complaint.
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and seizure in violation to Giragosian's Fourth Amendment rights.
Bettencourt filed a motion to dismiss on a number of grounds,
including that he was entitled to protection from suit under the
qualified immunity doctrine. After a hearing, the district court
granted Bettencourt's motion to dismiss on the basis of qualified
immunity.
II. Discussion
We review the grant of a motion to dismiss de novo.
Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008). To
survive a motion to dismiss for failure to state a claim under Rule
12(b)(6), the plaintiff must set forth facts sufficient to state a
legal claim on which relief could be granted. Alternative Energy,
Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 36 (1st Cir.
2001).
We agree that, because Bettencourt was entitled to
qualified immunity from suit, Giragosian failed to state a claim on
which the district court could grant relief. Officials are entitled
to qualified immunity unless (1) "the facts that a plaintiff has
alleged or shown make out a violation of a constitutional right" and
(2) "the right at issue was 'clearly established' at the time of
[their] alleged misconduct." Pearson v. Callahan, 129 S. Ct. 808,
816 (2009). A right is "clearly established" if, at the time of the
alleged violation, "[t]he contours of the right . . . [were]
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sufficiently clear that a reasonable official would understand that
what he is doing violates that right." Maldonado v. Fontanes, 568
F.3d 263, 269 (1st Cir. 2009)(quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)).
It is not always possible to determine before any
discovery has occurred whether a defendant is entitled to qualified
immunity, and courts often evaluate qualified immunity defenses at
the summary judgment stage. Nevertheless, the determination can be
made on a motion to dismiss when the complaint provides all of the
facts needed to assess the plaintiff's claim. See, e.g., Poirier
v. Mass. Dep't of Corr., 558 F.3d 92, 97 (1st Cir. 2009)(holding
that Fourteenth Amendment right to "intimate association" between
two cohabiting adults was not "clearly established" law); Pagan v.
Calderon, 448 F.3d 16, 32-37 (1st Cir. 2006) (dismissing, on
qualified immunity grounds, a corporation's claims that a former
governor violated its Fourteenth Amendment rights by influencing a
government lender to reject a loan).
Bettencourt did not violate Giragosian's Fourth Amendment
rights by conducting the warrantless search. Rather, the search
constituted a lawful exercise of the government's power to inspect
the inventory and records of licensed firearms dealers. Although
the Fourth Amendment's prohibition on unreasonable searches and
seizures is generally applicable to commercial premises as well as
private homes, See v. City of Seattle, 387 U.S. 541, 543, 546
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(1967), the owner of commercial property in a closely regulated
industry has a reduced expectation of privacy in those premises.
New York v. Burger, 482 U.S. 691, 702 (1987). Firearms
manufacturing and dealing being a pervasively regulated industry,
United States v. Biswell, 406 U.S. 311, 316 (1972), we must view
this case through the prism of limitations on privacy imposed by the
Gun Control Act of 1968, 18 U.S.C. § 921 et seq.
Pursuant to 18 U.S.C. § 923(g)(1)(B)(ii), the government
may conduct compliance inspections of gun shop premises without
either a warrant or reasonable cause, as long as it does not do so
more than once in any twelve-month period. The Supreme Court has
explicitly upheld the constitutionality of this provision under the
Fourth Amendment. Biswell, 406 U.S. at 317 (holding that the
"urgent federal interest" in regulating firearms traffic outweighs
any threat to gun dealers' privacy). Bettencourt's 2007 compliance
inspection of Giragosian's gun shop was the first in twelve months
-- indeed, in ten years. It thus met all of the requirements of
§ 923(g)(1)(B)(ii).5
Giragosian asserts that Bettencourt's search did not
qualify as a lawful compliance inspection because he acted on a
local police department's request. The argument fails. Section 923
5
Giragosian notes that § 923(g) was amended after Biswell and
before the search in this case, but he makes no argument based on
the change in the law. As it turns out, the amendment added the
annual limitation to searches not based on reasonable cause, which
adds nothing to Giragosian's argument.
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does not prohibit an ATF officer from conducting an inspection at
the request of local law enforcement, nor is there any reason to
think that Congress intended to prevent ATF officers from carrying
out compliance inspections when they have a particular reason to be
concerned that violations might exist. See United States v. Aiudi,
835 F.2d 943, 946 (1st Cir. 1987)(holding that an ATF agent had the
right to conduct a warrantless search under 18 U.S.C. § 923(g) and
to seize all weapons on the premises, where investigation had
revealed that the defendant had committed several federal firearms
violations). Because no constitutional violation occurred with
respect to the warrantless search, Bettencourt is entitled to
qualified immunity on that score. See Saucier v. Katz, 533 U.S.
194, 201 (2001)("If no constitutional right would have been violated
were the allegations established, there is no necessity for further
inquiries concerning qualified immunity.").
We need not decide whether Bettencourt's seizure of
Giragosian's federal firearms license or gun frames violated the
Fourth Amendment, because Giragosian has waived any argument that
they did. With respect to the license, Giragosian asserts merely
that its seizure violated his Fourth Amendment rights, without any
explanation. "[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived." United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
As for the gun frames, Giragosian says that their seizure was
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unconstitutional in that his federal license -- presumably his
dealer's license, although Giragosian does not specify -- entitled
him to manufacture them. His appellate brief does not further
develop this argument, instead referring us to arguments he made in
pleadings filed in the district court. But "claims made to this
court must be presented fully in an appellate brief and not by
cross-reference to claims made in the district court." Lawrence v.
Gonzales, 446 F.3d 221, 226 (1st Cir. 2006). The cross-references
in question here illustrate one of the primary reasons for this
rule: they render his argument difficult to follow, and we are not
too sure that we can unravel it. Accordingly, this argument, too,
is waived.
III. Conclusion
We affirm the district court's dismissal of the Fourth
Amendment claims.
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