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ATF Agent Sued for Warrantless Search of Gun Shop

Giragosian v. Bettencourt, Case No. 09-2001 (C.A. 1, Jul. 29, 2010)

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"). 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 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.

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. 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 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.


Judge(s): Boudin, Howard, and Souter
Jurisdiction: U.S. Court of Appeals, First Circuit
Related Categories: Civil Rights , Constitutional Law
Circuit Court Judge(s)
Michael Boudin
Jeffrey Howard
David Souter

Trial Court Judge(s)
William Young

Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Dean Carnahan Law Offices

Defendant Lawyer(s) Defendant Law Firm(s)
Dina Chaitowitz U.S. Department of Justice
Carmen Ortiz U.S. Department of Justice
Michael Sady U.S. Department of Justice



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Click the maroon box above for a formatted PDF of the decision.
united states v. biswell, 406 u.s. 311, 316 (1972), we must view inquiries concerning qualified immunity."). respect to the warrantless search, bettencourt is entitled to michael sady, assistant united states attorney with whom carmen giragosian's complaint, which incorporates bettencourt's inspection atf investigator assigned to giragosian's case. before conducting facts needed to assess the plaintiff's claim. see, e.g., poirier legal claim on which relief could be granted. alternative energy, the request of local law enforcement, nor is there any reason to intentionally shooting himself in the head. the arlington police3 think that congress intended to prevent atf officers from carrying rule of civil procedure 12(b)(6), "we accept the well-pleaded motion to dismiss, we may consider, in addition to the complaint him to manufacture them. his appellate brief does not further no. 09-2001 two cohabiting adults was not "clearly established" law); pagan v. additional background on this dispute can be found in2 without completing the requisite atf form 3310.4, and that and howard, circuit judge. itself, a limited array of additional documents such as any that are united states court of appeals v. violations). because no constitutional violation occurred with -4- giragosian was not at fault for the customer's suicide. allegations in plaintiff's complaint as true and draw all reasonable government lender to reject a loan). find no error in the district court's disposition and affirm. amendment claims. for the district of massachusetts -2- inspection report, giragosian was manufacturing custom firearms on gonzales, 446 f.3d 221, 226 (1st cir. 2006). the cross-references qualified immunity doctrine. after a hearing, the district court the concerns of local police. in 2002, another trainee committed we affirm the district court's dismissal of the fourth [their] alleged misconduct." pearson v. callahan, 129 s. ct. 808, unaccompanied by some effort at developed argumentation, are deemed the summary judgment stage. nevertheless, the determination can be also suspended, and then revoked, giragosian's state firearms supreme court of the united states, sitting by designation. giragosian had failed to update the store's records to account for immunity, and courts often evaluate qualified immunity defenses at violations of federal firearms regulations. for example, bettencourt filed a motion to dismiss on a number of grounds, survive a motion to dismiss for failure to state a claim under rule boudin, circuit judge, see bivens v. six unknown fed. narcotics agents, 403 u.s. 3881 (2) "the right at issue was 'clearly established' at the time of is waived. that its seizure violated his fourth amendment rights, without any giragosian sued bettencourt in federal district court, v. mass. dep't of corr., 558 f.3d 92, 97 (1st cir. 2009)(holding the fourth amendment's prohibition on unreasonable searches and action against wayne bettencourt, a regulatory inspection officer several firearms. additionally, according to bettencourt's howard, circuit judge. plaintiff-appellant paul granted bettencourt's motion to dismiss for failure to state a claim giragosian's federal gun license and ascertained that the atf had -5- it is not always possible to determine before any to seize all weapons on the premises, where investigation had 2001). paul giragosian, the change in the law. as it turns out, the amendment added the local police department's request. the argument fails. section 923 the same facts as this case. annual limitation to searches not based on reasonable cause, which that fourteenth amendment right to "intimate association" between manufacturing and dealing being a pervasively regulated industry, private homes, see v. city of seattle, 387 u.s. 541, 543, 546 dealer's license, although giragosian does not specify -- entitled concerned that violations might exist. see united states v. aiudi, constituted a lawful exercise of the government's power to inspect inferences in his favor." morales-tanon v. p.r. elec. power auth., does not prohibit an atf officer from conducting an inspection at giragosian v. ryan, 547 f.3d 59 (1st cir. 2008), which arose out of unconstitutional in that his federal license -- presumably his 923(g)(1)(b)(ii).5 defendant, appellee. industry has a reduced expectation of privacy in those premises. the inspection, bettencourt reviewed atf records concerning to qualified immunity unless (1) "the facts that a plaintiff has department conducted an investigation that day and concluded that giragosian's state firearms license pending further investigation develop this argument, instead referring us to arguments he made in 194, 201 (2001)("if no constitutional right would have been violated calderon, 448 f.3d 16, 32-37 (1st cir. 2006) (dismissing, on this case through the prism of limitations on privacy imposed by the gun control act of 1968, 18 u.s.c. 921 et seq. by the arlington police department and the middlesex county district giragosian notes that 923(g) was amended after biswell and5 explicitly upheld the constitutionality of this provision under the sufficiently clear that a reasonable official would understand that alleged violation, "[t]he contours of the right . . . [were] report.2 suicide in the store. additionally, in september 2005, psmg was bettencourt's inspection report, the arlington police department to use a handgun when the customer committed suicide by new york v. burger, 482 u.s. 691, 702 (1987). firearms giragosian owned psmg gun co., a gun shop in arlington, -7- inspection of giragosian's gun shop was the first in twelve months we agree that, because bettencourt was entitled to bettencourt called giragosian to set up a time to conduct an giragosian's federal firearms license or gun frames violated the reappeared at crime scenes in the boston area. because giragosian's claims were dismissed under federal -3- fourth amendment, because giragosian has waived any argument that either a warrant or reasonable cause, as long as it does not do so appeal from the united states district court more than once in any twelve-month period. the supreme court has the arlington police department also contacted atf to gagliardi v. sullivan, 513 f.3d 301, 305 (1st cir. 2008). to january 31, 2007. 835 f.2d 943, 946 (1st cir. 1987)(holding that an atf agent had the before the search in this case, but he makes no argument based on "urgent federal interest" in regulating firearms traffic outweighs i. facts giragosian appeals from a district court order dismissing his bivens f.3d 263, 269 (1st cir. 2009)(quoting anderson v. creighton, 483 to qualified immunity on giragosian's constitutional claim and the hon. david h. souter, associate justice (ret.) of the* earlier events at giragosian's gun shop had already raised3 ii. discussion rule: they render his argument difficult to follow, and we are not rights by conducting the warrantless search. rather, the search in question here illustrate one of the primary reasons for this u.s. 635, 640 (1987)). 12(b)(6), the plaintiff must set forth facts sufficient to state a wayne bettencourt, which the district court could grant relief. officials are entitled -- indeed, in ten years. it thus met all of the requirements of for the first circuit qualify as a lawful compliance inspection because he acted on a m. ortiz, united states attorney, was on brief, for appellee. bettencourt asserts that giragosian voluntarily surrendered4 the inventory and records of licensed firearms dealers. although 523 f.3d 75, 86 (1st cir. 2008). we sketch the facts here from and seizure in violation to giragosian's fourth amendment rights. [hon. william g. young, u.s. district judge] july 29, 2010 not conducted an annual compliance inspection since 1996. frames lacking serial numbers from the shop. based on4 out compliance inspections when they have a particular reason to be alleged or shown make out a violation of a constitutional right" and licenses. explanation. "[i]ssues adverted to in a perfunctory manner, they did. with respect to the license, giragosian asserts merely may conduct compliance inspections of gun shop premises without amendment. the district court held that bettencourt was entitled pursuant to 18 u.s.c. 923(g)(1)(b)(ii), the government nevertheless, arlington's chief of police, frederick ryan, suspended too sure that we can unravel it. accordingly, this argument, too, upon which relief could be granted. fed. r. civ. p. 12(b)(6). we granted bettencourt's motion to dismiss on the basis of qualified seizures is generally applicable to commercial premises as well as burglarized and eight handguns were stolen, several of which later brief, for appellant. dean carnahan with whom law offices of dean carnahan, was on bettencourt found that giragosian had, on three occasions, sold plaintiff, appellant, giragosian asserts that bettencourt's search did not -9- iii. conclusion we need not decide whether bettencourt's seizure of what he is doing violates that right." maldonado v. fontanes, 568 qualified immunity grounds, a corporation's claims that a former waived." united states v. zannino, 895 f.2d 1, 17 (1st cir. 1990). 524 f.3d 15, 17 (1st cir. 2008). in assessing a rule 12(b)(6) explosives ("atf"). in that action, giragosian argued that1 bettencourt's request, but we must accept giragosian's version of cross-reference to claims made in the district court." lawrence v. as for the gun frames, giragosian says that their seizure was -8- fourth amendment. biswell, 406 u.s. at 317 (holding that the were the allegations established, there is no necessity for further we review the grant of a motion to dismiss de novo. 816 (2009). a right is "clearly established" if, at the time of the request that atf conduct an inspection of psmg. bettencourt was the inc. v. st. paul fire & marine ins. co., 267 f.3d 30, 36 (1st cir. (1971). massachusetts. in january 2007, giragosian was training a customer governor violated its fourteenth amendment rights by influencing a bettencourt's warrantless inspection of giragosian's gun shop at the any threat to gun dealers' privacy). bettencourt's 2007 compliance including that he was entitled to protection from suit under the (1967), the owner of commercial property in a closely regulated adds nothing to giragosian's argument. souter, associate justice,* -6- attorney's office. immunity. bettencourt did not violate giragosian's fourth amendment during the inspection, bettencourt observed several made on a motion to dismiss when the complaint provides all of the request of the local police department violated the fourth license and gun frames, constituted an unlawful warrantless search discovery has occurred whether a defendant is entitled to qualified employed by the u.s. bureau of alcohol, tobacco, firearms and qualified immunity on that score. see saucier v. katz, 533 u.s. multiple handguns to a single purchaser within a five-day period site without a federal manufacturer's license to do so. bettencourt events, as alleged in his complaint. right to conduct a warrantless search under 18 u.s.c. 923(g) and inspection, and the two agreed to meet at giragosian's gun shop on in the complaint." miss. pub. empl. ret. sys. v. boston sci. corp., alleging that the inspection, and atf's seizure of his federal pleadings filed in the district court. but "claims made to this qualified immunity from suit, giragosian failed to state a claim on before revealed that the defendant had committed several federal firearms court must be presented fully in an appellate brief and not by had giragosian surrender his federal license and took ten custom gun attached to the complaint and "documents sufficiently referred to the gun frames and his federal firearms license to the atf on

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