United States Court of Appeals

For the First Circuit

No. 00-1544

GEOFFREY W. GARDNER,

Plaintiff, Appellant,

v.

VINCENT VESPIA, JR., INDIVIDUALLY AND IN HIS

CAPACITY AS CHIEF OF POLICE OF THE

SOUTH KINGSTOWN POLICE DEPARTMENT, STEPHEN A. ALFRED,

INDIVIDUALLY AND IN HIS CAPACITY AS

TOWN MANAGER OF THE TOWN OF SOUTH KINGSTOWN,

BARBARA A. HACKEY, INDIVIDUALLY AND IN HER CAPACITY

AS PRESIDENT OF THE TOWN COUNCIL OF THE

TOWN OF SOUTH KINGSTOWN, AND ALAN R. LORD IN HIS

CAPACITY AS FINANCE DIRECTOR OF THE

TOWN OF SOUTH KINGSTOWN,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Torruella, Chief Judge,

Cyr, Senior Circuit Judge,

and Stahl, Senior Circuit Judge.

Perry D. Wheeler, was on brief, for appellant.

Kathleen M. Powers, with whom Marc DeSisto and DeSisto Law were

on brief, for appellees.
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June 11, 2001
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TORRUELLA, Chief Judge. This appeal arises from an action

for damages filed by appellant Geoffrey Gardner against South Kingstown

(Rhode Island) Chief of Police Vincent Vespia pursuant to 42 U.S.C. §

1983. Specifically, appellant alleges that Vespia violated his Second

and Fourteenth Amendment rights when he concluded that Gardner's prior

nolo contendere plea for misdemeanor domestic assault constituted a

"conviction" under 18 U.S.C. § 922(g)(9), thereby disqualifying him

from purchasing a firearm. The district court granted summary judgment

in favor of Vespia, stating that he was entitled to qualified immunity

because it was not clearly established whether a "conviction" under

§ 922(g)(9) is defined by state or federal law. Because we hold that

appellant has failed to allege the deprivation of a constitutional

right, we affirm the district court's grant of summary judgment.

BACKGROUND

On March 30, 1998, appellant sought to purchase a handgun

from Universal Firearms Ltd., a licensed firearms dealer in South

Kingstown, Rhode Island. As required by law, appellant completed an

application for the firearm, which was forwarded to Chief Vespia for a

background check. In the course of this check, Vespia learned that in

November 1995, appellant had been arrested for domestic assault with a

dangerous weapon. The arrest record indicated that at a pretrial

hearing in January 1996, the charge was amended to simple assault.

Appellant pled nolo contendere to the amended charge and was sentenced
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to one year of probation. Based upon the Rhode Island Supreme Court's

holding in State v. Feng, 421 A.2d 1258 (R.I. 1980), which held that a

plea of nolo contendere is equivalent to a plea of guilty, id. at 1266,

Vespia concluded that appellant had been convicted of misdemeanor

domestic assault and was therefore precluded from receiving or

possessing a firearm under 18 U.S.C. § 922(g)(9).

When appellant learned that his application had been denied,

he wrote to Vespia requesting a written explanation. In turn, Vespia

contacted Agent Joseph M. Riehl of the Bureau of Alcohol, Tobacco &

Firearms to review appellant's application. Riehl informed Vespia that

his assessment of appellant's disqualification appeared correct.

Accordingly, Vespia responded to appellant on April 20, 1998,

explaining that his plea of nolo contendere to the misdemeanor assault

charge disqualified him from owning or possessing a firearm under

federal law.

On May 28, 1998, appellant filed suit in federal district

court for the District of Rhode Island against Vespia pursuant to 42

U.S.C. § 1983. In particular, appellant claimed that Chief Vespia

lacked the authority to block his purchase of a firearm and that

Vespia's actions violated his rights under the Second and Fourteenth

Amendments to the Constitution. On a motion for summary judgment, the

district court ruled in favor of Vespia, concluding that he acted

within his legal authority under federal, state and local law and that
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he was entitled to qualified immunity for his actions. We review the

summary judgment ruling de novo. Swain v. Spinney, 117 F.3d 1, 5 (1st

Cir. 1997).
1 Gardner argues that the defense of qualified immunity is not

available to Vespia because the background check at issue was mandated

by law and thus "ministerial" and not "discretionary." See Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982) (noting that the qualifiedimmunity defense shields government officials exercising "discretionary

functions"). He is wrong. Even if there is a viable ministerial-duty

exception to the qualified immunity doctrine, but see, e.g., Sellers v.

Baer, 28 F.3d 895, 902 (8th Cir. 1994) (opining that the exception is

a "dead letter" and collecting opinions expressing skepticism as to

whether a distinction should be drawn between discretionary and

ministerial duties for purposes of a qualified-immunity analysis), we

have rejected its applicability where, as here, a law enforcement

officer is sued for a judgment made about whether and how a given law

applies to a given set of facts, see Horta v. Sullivan, 4 F.3d 2, 11-12

(1st Cir. 1994).

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DISCUSSION

In evaluating appellant's § 1983 claim, the district court

determined that Chief Vespia was entitled to the defense of qualified

immunity. Gardner v. Vespia, No. 98-292ML (D.R.I. Mar. 24, 2000)

(order granting summary judgment). This defense "shields public

officials performing discretionary functions from liability for civil

damages, insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would

have known." Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525,

530-31 (1st Cir. 1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)) (internal quotations omitted).1 However, "[a] necessary

concomitant to the determination of whether the constitutional right

asserted by a plaintiff is 'clearly established' at the time the

defendant acted is the determination of whether the plaintiff has

asserted the violation of a constitutional right at all." Id. at 531
2 As the Supreme Court noted, this approach "promotes clarity in the

legal standards for official conduct, to the benefit of both the

officers and the general public." Wilson v. Layne, 526 U.S. 603, 609

(1999).

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(quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)); see also Wilson

v. Layne, 526 U.S. 603, 609 (1999). A cause of action brought under §

1983, then, reverses the normal order of judicial analysis and requires

that we consider the constitutional question first; "[t]his order of

procedure is designed to 'spare a defendant not only unwarranted

liability, but unwarranted demands customarily imposed upon those

defending a long drawn-out lawsuit.'" Wilson, 526 U.S. at 609 (quoting

Siegert, 500 U.S. at 232).2

Appellant claims that his Second and Fourteenth Amendment

rights were violated in two ways. First, he asserts that Vespia

transgressed his rights by conducting a background check in violation

of state law. However, even if Gardner is correct that Vespia violated

state law, such a violation would not constitute a violation of

Gardner's Second and/or Fourteenth Amendment rights, as was pleaded.

In other words, Gardner simply has no federal right to demand that

Vespia stay within the confines of state law in conducting background

checks of those purchasing firearms.

Gardner's second argument is that Vespia misinterpreted the

law in determining that his prior nolo contendere plea constituted a

"conviction" for purposes of § 922(g)(9). The constitutional question,
3 We note that the facts alleged by appellant do not demonstrate that

in denying appellant's application, Vespia engaged in any kind of

"purposeful discrimination" which might constitute a violation of the

Equal Protection Clause. See U.S. Const. amend. XIV; Medina v. Rudman,

545 F.2d 244, 249 (1st Cir. 1976).

4 Appellant premises this right on Board of Regents v. Roth, 408 U.S.

564 (1972). Roth repeated the pronouncement of Meyer v. Nebraska, 262

U.S. 390 (1923), that the meaning of "liberty" in the Fourteenth

Amendment includes "the right to contract." Roth, 408 U.S. at 572.

Although, as stated above, Gardner's claim is not properly analyzed

under this provision, we note that cases interpreting the "liberties"

outlined in Meyer have construed them quite narrowly. See, e.g., Conn

v. Gabbert, 526 U.S. 286, 291 (1999) (refusing to read Roth and Meyer

to stand for specific rights not articulated therein).

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therefore, is whether an erroneous denial of a firearm amounts to a

constitutional violation. It does not.3

As Gardner acknowledges, the Second Amendment does not confer an

absolute right to bear arms. United States v. Miller, 307 U.S. 174,

178 (1939) (holding that Second Amendment does not invalidate

limitations on firearms that do not have a reasonable relationship to

a well-regulated militia). Consequently, even if Gardner was not, in

fact, disqualified from purchasing a firearm, Vespia's conclusion to

the contrary did not violate any constitutional right to own that

firearm. Using the magic words of "freedom of contract" as an

alternative constitutional ground does not alter this result.4 "[W]here

another provision of the Constitution provides an explicit textual

source of constitutional protection, a court must assess a plaintiff's

claims under that explicit provision and not the more generalized

notion of 'substantive due process.'" See Conn v. Gabbert, 526 U.S.
5 In rendering judgment against Gardner on grounds of qualified

immunity, the court did not address Gardner's prayer for injunctive

relief. Gardner does not, however, assign error to this omission in

his appellate brief.

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286, 293 (1999) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).

The thrust of Gardner's challenge is the infringement upon his right to

bear arms, and Second Amendment jurisprudence provides an adequate

answer to this challenge.

The facts alleged by Gardner, even if true, do not allege the

violation of an actual constitutional right. Accordingly, Vespia is

entitled to qualified immunity for his actions.5

The decision of the district court is hereby affirmed.