Giragosian v. Bettencourt

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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