United States Court of Appeals
For the First Circuit
No. 25-1651
TYLER JON TAKER,
Plaintiff, Appellant,
v.
TODD BLANCHE, in the official capacity as Acting Attorney
General of the United States; ROBERT CEKADA, in the official
capacity as Director of the Bureau of Alcohol, Tobacco, Firearms
and Explosives; AARON M. FREY, in the official capacity as
Attorney General of Maine; COLONEL WILLIAM G. ROSS, in the
official capacity as Colonel of the Maine State Police; MARC
HAGAN, individually and in the official capacity as Chief of the
Topsham Police Department,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch and Montecalvo, Circuit Judges.
Kyle Singhal, with whom Hopwood & Singhal PLLC was on brief,
for appellant.
Joshua K. Handell, Department of Justice, with whom Michael
S. Raab, Department of Justice, Craig M. Wolff, Acting United
States Attorney, Lindsay B. Feinberg, Appellate Chief, and James
D. Concannon, Assistant United States Attorney, Brett A. Shumate, Assistant Attorney General, were on brief, for appellees Todd
Blanche and Daniel Patrick Driscoll.
Paul E. Suitter, Assistant Attorney General of Maine, with
whom Heather A. Francis, Assistant Attorney General of Maine, Aaron M. Frey, Attorney General of Maine, and Thomas A. Knowlton, Deputy Attorney General, were on brief, for appellees Aaron M. Frey and
William G. Ross.
John J. Wall III, with whom Monaghan Leahy, LLP was on brief,
for appellee Marc Hagan.
Julia B. MacDonald, Pierce Atwood LLP, Douglas N. Letter,
Shira Lauren Feldman, Tess M. Fardon, Brady Center to Prevent Gun Violence, William T. Clark, Leigh Rome, and Giffords Law Center to Prevent Gun Violence on brief for Maine Gun Safety Coalition, et
al. as amici curiae supporting appellees.
June 22, 2026
BARRON, Chief Judge. This appeal chiefly concerns Tyler
Jon Taker's ("Taker") claims for declaratory and injunctive relief
from federal and state statutes that prohibit persons with certain
prior convictions or who are subject to a protective order from
possessing a firearm. He alleges in these claims that the statutes
at issue violate his federal constitutional right to purchase and
possess a firearm. Taker's appeal also concerns, however, his
claim for damages for what he alleges was the unconstitutional
denial of a permit that he sought under Maine law to allow him to
carry a concealed firearm.
The United States District Court for the District of
Maine dismissed Taker's suit for failure to state a claim on which
relief may be granted, and he now appeals from that ruling. We
conclude that Taker has failed to plausibly allege that he has
standing under Article III of the United States Constitution to
bring his claims for declaratory and injunctive relief. We further
conclude that his claim for damages must be dismissed on qualified
immunity grounds. We therefore affirm in part and vacate and
remand in part.1
1 We acknowledge and thank the amici curiae for their
submission in this matter. The following amici submitted one brief in support of the appellees: Maine Gun Safety Coalition; Maine
Coalition to End Domestic Violence; Battered Women's Justice
Project; National Network to End Domestic Violence; National
Domestic Violence Hotline; Jewish Women International; Ujima, The National Center on Violence Against Women in the Black Community;
- 3 -I.
On March 22, 2024, a state court in Maine entered an
Order for Protection from Abuse ("the PO") against Taker, who is
a resident of Topsham, Maine. Taker agreed to the PO, which
prohibited him from possessing any firearm described in 17-A M.R.S.
§ 2(12-A), as well as "all muzzle-loading firearms, bows, and
crossbows; and other dangerous weapons" defined in 17-A M.R.S.
§ 2(9). The state court also ordered Taker to relinquish all such
firearms and weapons immediately upon service of the PO.
The PO was "effective immediately." It provided that it
would remain "in full force and effect" until March 22, 2026,
"unless earlier modified or vacated by order of court."
On July 15, 2024, Taker delivered a Concealed Handgun
Permit Application to the Topsham Police Department pursuant to a
Maine statute -- 25 M.R.S. § 2003. That same day, a Topsham Police
Department employee called Taker to inform him that, due to the
PO, his application for a concealed handgun permit would be denied.
On July 24, 2024, Taker's attorney received Taker's
permit application in the mail with a Post-it note. That note
stated: "Returned - CWP [Concealed Weapons Permit] will not be
approved due to protective order."
Asian Pacific Institute on Gender-Based Violence; Brady Center to Prevent Gun Violence; and Giffords Law Center to Prevent Gun
Violence.
- 4 -On February 4, 2025, Taker filed his operative complaint
in the federal suit that gives rise to this appeal.2 He named as
defendants Pamela Bondi, in the official capacity as then-Attorney
General of the United States; Marvin G. Richardson, in the official
capacity as then-Acting Director of the Bureau of Alcohol, Tobacco,
Firearms and Explosives; Aaron M. Frey, in the official capacity
as Attorney General of Maine; Colonel William G. Ross, in the
official capacity as Colonel of the Maine State Police; and Marc
Hagan, individually and in the official capacity as Chief of the
Topsham Police Department.
The complaint alleges that Taker "desires to purchase
and possess firearms for self-defense within the home and outside
the home, including by open carry and concealed carry." It further
alleges that he is barred from doing so as a matter of federal law
by 18 U.S.C. § 922(d)(1), 922(d)(8)(B)(ii), 922(g)(1), and
922(g)(8)(C)(ii), and as a matter of state law by 15 M.R.S.
§§ 393(1)(A-1)(2), 393(1)(D)(2), and 394(2), and 25 M.R.S.
§ 2003(2)(A-2) and (B).3
2 The original complaint was filed on November 1, 2024.
3 On appeal, Taker challenges 18 U.S.C. § 922(g)(1),
922(g)(8)(c)(ii) and 15 M.R.S. § 393(1)(A-1)(2), (1)(D)(2).
18 U.S.C. § 922(g)(1) prohibits anyone "who has been convicted in any court of[] a crime punishable by imprisonment for a term
exceeding one year" from "ship[ping] or transport[ing] in
interstate or foreign commerce, or possess[ing] in or affecting
commerce, any firearm or ammunition" or from receiving the same.
18 U.S.C. § 922(g)(8)(c)(ii) prohibits the same for any person
- 5 -The complaint goes on to allege that these federal and
state statutes prohibit Taker from possessing a firearm either
"because of a single felony marijuana conviction" that was entered
against him in 2012 for possession of marijuana with intent to
distribute, in violation of 21 U.S.C. § 841, or because he is
subject to a protective order. The complaint then alleges that,
by so prohibiting him from possessing a firearm, these federal and
state statutes violate his "fundamental, individual right to keep
and bear arms," which the Second Amendment of the United States
Constitution guarantees and is incorporated against the states by
the Due Process Clause of the Fourteenth Amendment.
The complaint does not allege that the PO itself is
similarly unconstitutional or otherwise invalid. For relief, the
complaint requests a declaratory judgment stating that the
statutes at issue violate Taker's Second and Fourteenth Amendment
subject to a court order that "by its terms explicitly prohibits
the use, attempted use, or threatened use of physical force against such intimate partner or child." Under Maine law, "a person may
not own, possess or have under that person's control a firearm,
unless that person has obtained a permit under this section, if
that person [h]as been convicted of committing . . . [a] crime
under the laws of the United States that is punishable by
imprisonment for a term exceeding one year," 15 M.R.S.
§ 393(1)(A-1)(2), or if that person "is subject to an order of a
court of this State or another jurisdiction that restrains that
person from harassing, stalking or threatening an intimate
partner . . . of that person or a child of that intimate partner," "issued after a hearing," that, "[b]y its terms, explicitly
prohibits the use, attempted use or threatened use of physical
force against an intimate partner or a child," id. § 393(1)(D)(2).
- 6 -rights and an injunction enjoining the relevant defendants from
enforcing those statutes against him.
In addition to these claims, the complaint alleges that
Hagan "personally rejected (or, alternatively, returned without
approval)" Taker's application for a concealed-carry firearm
permit or "personally directed one of his subordinates to reject
(or, alternatively, to return without approval)" that permit
application. Taker's complaint then alleges that when Hagan
returned Taker's then-rejected permit application, "Hagan knew or
should have known, in light of the United States Supreme Court's
decision in N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1
(2022), that failing to approve the [a]pplication was a violation
of [p]laintiff's clearly established constitutional rights." On
that basis, the complaint seeks damages against Hagan, in his
individual capacity, under 42 U.S.C. § 1983 for the denial of
Taker's application for the concealed-carry permit.
The defendants filed motions on April 4, 2025, to
dismiss the operative complaint for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). Ross and Frey separately
moved to dismiss the complaint on jurisdictional grounds pursuant
to Federal Rule of Civil Procedure (12)(b)(1). They did so on the
ground that Taker lacked standing under Article III of the United
States Constitution to bring any of his claims against them.
Finally, Hagan moved to dismiss the complaint for failure to state
- 7 -a claim under 42 U.S.C. § 1983 based on quasi-judicial and
qualified immunity.
Taker opposed the motions to dismiss on May 5, 2025. He
first argued that he had Article III standing to bring his claims
against Ross and Frey because an order "affirming [p]laintiff's
Second Amendment rights would redress his injury." He next claimed
that there is no history or tradition of disarming individuals who
either possess marijuana or "are subject to a protective order
that was entered without a finding of dangerous behavior," as
required by Bruen. 597 U.S. 1 (2022). And he argued that Hagan
was not entitled to either quasi-judicial immunity or qualified
immunity. With respect to qualified immunity, Taker argued that
"the Supreme Court in Bruen clearly established [his] Second
Amendment rights in Bruen, two years before his permit application
was denied," such that "[a]ny 'reasonable official in the
defendant's position would have known' that the statutes
[p]laintiff challenges are unconstitutional in light of Bruen."
On July 8, 2025, the District Court granted the
defendants' motions to dismiss the operative complaint. The
District Court described Taker as alleging that the challenged
statutes violate his federal constitutional rights because his
felony drug-trafficking conviction was "dated and involved only
non-violent marijuana trafficking and because the state court
judge who issued the protective order never concluded that he poses
- 8 -a threat of domestic violence." In dismissing the claims, the
District Court reasoned that, as a consequence of his felony drug
trafficking conviction, Taker was not a law-abiding citizen. The
District Court further reasoned that, in light of United States v.
Rahimi, 602 U.S. 680, 698 (2024), "to the extent that the
law-abiding focus of Bruen has been refocused to emphasize
legislative cause to perceive a category of persons as presenting
a 'special danger of misuse,'" Taker's conviction was "neither a
tame nor a technical felony" and was instead "a sufficient indicium
of dangerousness to sustain the federal and states bans" on firearm
possession as applied to him. The District Court noted, too, that
even assuming that the Supreme Court "would now conclude that a
law barring nonviolent, marijuana-trafficker felons from
possessing firearms comes within the Second Amendment," the record
and arguments put forward by the defendants and amici showed that
"the prohibition against firearm possession by felons is
consistent with our Nation's historical tradition" and is
therefore constitutional.
Accordingly, the District Court entered judgment
dismissing Taker's claims. In doing so, the District Court did
not specify whether it was granting the motions for failure to
state a claim under Rule 12(b)(6) or for lack of subject matter
jurisdiction under Rule 12(b)(1). It appears, however, that it
- 9 -was ruling on the merits and so was dismissing the complaint for
failure to state a claim.
Taker timely appealed.
II.
We begin with Taker's claims for declaratory and
injunctive relief. We focus on whether Taker has shown that there
is subject matter jurisdiction as to these claims.
A.
Article III of the United States Constitution limits the
power of the federal courts to the adjudication of "Cases" or
"Controversies." U.S. Const. art. III § 2, cl. 1. Unless a
plaintiff suing in federal court has standing to bring his claims,
there is no such "Case" or "Controversy," and the claims must be
dismissed for lack of subject matter jurisdiction. See United
States v. Texas, 599 U.S. 670, 675 (2023) ("Under Article III, a
case or controversy can exist only if a plaintiff has standing to
sue -- a bedrock constitutional requirement . . . .").
The three irreducible components of Article III standing
are (1) an injury-in—fact (2) that is "fairly traceable to the
challenged action of the defendant[s]" and not "the result of the
independent action of some third party not before the court" and
(3) is "likely" to be "redressed by a favorable decision." Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (citation
modified). Frey and Ross, the state defendants, challenge Taker's
- 10 -standing to bring his claims against them for declaratory and
injunctive relief on the ground that he cannot meet his burden to
show that his asserted injury-in-fact would be redressed by that
relief. They contend the reason is that the PO independently
barred him from possessing a firearm when he filed his complaint
challenging the state statutes that he contends unconstitutionally
prohibited him from possessing such a weapon.
The federal defendants do not make that same
redressability argument, but it is equally applicable to Taker's
claims against them. Thus, because we have an independent
obligation to ensure that Taker has Article III standing, see
Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009) ("[I]t is
well established that the court has an independent obligation to
assure that standing exists, regardless of whether it is challenged
by any of the parties"), we must address the redressability issue
as to not only Taker's claims against the state defendants but
also as to his claims against the federal defendants.4
4 The federal defendants separately argue that we should not
reach the question of § 922(g)(8)'s constitutionality because (1) Taker would continue to be disarmed by § 922(g)(1) so invalidating § 922(g)(8) would not redress his injury and (2) his challenge to § 922(g)(8) would become moot by the time this Court could dispose of the appeal as the protective order was set to
expire on March 22, 2026. But we need not address this contention because Taker has not plausibly alleged a redressable injury-in-fact as to his claim for declaratory and injunctive
relief regarding that federal statute.
- 11 -B.
"[A] party invoking a federal court's jurisdiction"
bears the burden "to demonstrate standing" at each stage of
litigation. Wittman v. Personhuballah, 578 U.S. 539, 543 (2016).
As we are at the pleading stage, Taker must allege "sufficient
factual matter to plausibly demonstrate his standing to bring the
action." Hochendoner v. Genzyme Corp., 823 F.3d 724, 731 (1st
Cir. 2016). Our review is de novo. See Kerin v. Titeflex Corp.,
770 F.3d 978, 981 (1st Cir. 2014) ("The existence of standing is
a legal question, which we review de novo.").
Given that Taker's complaint describes his
injury-in-fact as his inability to possess a firearm, we do not
see how, while the PO remained in effect, the requested declaratory
and injunctive relief would have redressed that injury. During
that period, the PO itself would have barred Taker from possessing
such a weapon and thus prevented his alleged injury from having
been redressed even if the District Court had ordered the
declaratory and injunctive relief that he sought in his complaint.
After all, Taker does not dispute that from the time
that he filed his complaint to the time that the District Court
entered final judgment, he was subject to the protective order.
Nor is there any dispute that the order in and of itself prohibited
him from possessing a firearm.
- 12 -Moreover, Taker concedes that he "is not challenging the
validity or even the constitutionality of the [PO]," even though
during the period just described, the PO imposed an independent
bar against his possession of a firearm. And Taker's complaint
does not allege that he would obtain a firearm in violation of the
PO if the state and federal statutes that he is challenging did
not themselves prohibit him from doing so.
Finally, Taker did not address his standing in his
opening brief on appeal even though the state defendants had argued
below that, due to the PO, he had not plausibly alleged that he
had standing to bring his claims because the PO prevented his
alleged injury from being redressed by the relief that he sought.
And while Taker does address his standing in his reply brief,
arguments made only in such a belated way are ordinarily deemed
waived. See Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288,
299 (1st Cir. 2000) ("We have held, with a regularity bordering on
the monotonous, that issues advanced for the first time in an
appellant's reply brief are deemed waived."). In any event, we
are not persuaded by those arguments.
Taker's first argument is that "a victory in this case
would relieve [him] of the risk of criminal punishments imposed by
the statutes he challenges -- even if [he] could still be punished
for violating the [PO] -- and that alone is enough relief to
produce standing." But, according to his complaint, he agreed to
- 13 -the terms of the PO and so agreed not to possess a firearm so long
as it remained in effect. Nor does anything in his complaint
indicate that, at the time of its filing, he would seek to obtain
a firearm in violation of the PO if the state or federal laws that
he is challenging did not bar him from possessing one.
Therefore, even if we were to assume that Taker faced
the requisite risk of criminal punishment to bring a
pre-enforcement challenge to any of the statutes in question during
the time that he had agreed to abide by the terms of the PO, see
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014), we do
not see how the elimination of that risk would redress the injury
that he alleged. From all that his complaint alleges, the PO in
and of itself would have prevented him from possessing a firearm
and so, on its own, would have subjected him to the very injury
that he seeks to redress by challenging the state and federal
statutes at issue.
Taker separately argues that he has plausibly alleged
that he has standing to challenge the statutes at
issue -- notwithstanding the PO -- because, if he were successful
in doing so, then he would have a "reason to oppose a protective
order." He contends that is so because "his agreement to a
protective order would then deprive him of a tangible right to
possess a firearm, [giving him] a reason not to agree, should he
find himself facing such a decision again."
- 14 -Taker identifies no authority, however, that would
permit him to rest his standing on as speculative a contingency as
his being subject to a future protective order. Nor are we aware
of any such authority. See City of Los Angeles v. Lyons, 461 U.S.
95, 109 (1983) ("Lyons' lack of standing . . . [rests] on the
speculative nature of his claim that he will again experience
injury as the result of that practice even if continued.").
Finally, Taker contends in his reply brief that "to the
extent that the [PO's] firearm prohibition derives from the
statutes challenged here, a victory in this case could, at the
very least, call into question the validity of the [PO's] firearm
prohibition, even if [he] ha[d] agreed to it." But he develops no
argument that the invalidation of the statutes would call into
question the PO's validity. Nor does he allege in his complaint
that he intended, at any point (including following a successful
challenge to the statutes at issue), to challenge the PO itself
while it remained in effect.
Of course, the PO no longer stands in the way of Taker
possessing a firearm. It expired on March 22, 2026. But the PO
expired only after the District Court had issued the judgment that
Taker is asking us to review. And, as we have just explained,
Taker had not, as of that time, plausibly alleged that he had
standing to bring his claims for declaratory and injunctive relief.
Accordingly, there was no case or controversy at that time, which
- 15 -means that the District Court's judgment granting the state and
federal defendants' motions pursuant to Rule 12(b)(6) must be
vacated and the claims for declaratory and injunctive relief
dismissed for lack of Article III jurisdiction.
III.
We also must address Taker's § 1983 claim for damages
against Hagan, in which he challenges the denial of his
concealed-carry permit application.5 We see no Article III-based
standing bar to this claim for damages, because when Taker filed
his suit it was "likely" that the injury for which this claim
sought redress would have been "redressed by a favorable decision."
Lujan, 504 U.S. at 561 (quoting Simon v. E. Ky. Welfare Rts. Org.,
426 U.S. 26, 38 (1976)). Nonetheless, Hagan argues on appeal, as
he did below, that Taker cannot sustain this § 1983 claim against
him because Taker does not plausibly allege an underlying
constitutional violation. And Hagan also argues that, in any
event, he enjoys both quasi-judicial and qualified immunity. We
agree he enjoys the latter and therefore need not address whether
he enjoys the former. See Wilson v. HSBC Mortg. Servs., Inc., 744
F.3d 1, 7 (1st Cir. 2014) ("We are not wedded to the district
court's reasoning and may 'affirm the decision below on any ground
5Taker alleges that Hagan, "either personally or through an
agent" denied his application for a concealed carry permit.
- 16 -made manifest by the record.'" (quoting Ruiz v. Bally Total Fitness
Holding Corp., 496 F.3d 1, 5 (1st Cir. 2017))).
Qualified immunity "protects government officials '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.'" Pearson v. Callahan,
555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). Reviewing de novo, see Starlight Sugar, Inc. v.
Soto, 253 F.3d 137, 141 (1st Cir. 2001) ("Entitlement to the
defense of qualified immunity is a question of law subject to de
novo review."), we conclude that Hagan has shown that he is
entitled to qualified immunity because Taker has not met his burden
to "to identify controlling precedent or a consensus among
persuasive authority that places the statutory or constitutional
question beyond debate," Ablordeppey v. Walsh, 85 F.4th 27, 33
(1st Cir. 2023) (citation modified).
Even though Hagan asserted qualified immunity to the
District Court, Taker does not attempt to show until his reply
brief that the federal constitutional right that he alleges was
violated was clearly established. See Waste Mgmt. Holdings, Inc.,
208 F.3d at 299 ("We have held, with a regularity bordering on the
monotonous, that issues advanced for the first time in an
appellant's reply brief are deemed waived."). But, that problem
aside, his argument in that respect in his reply brief is only
- 17 -that "the Supreme Court in Bruen clearly established Taker's Second
Amendment rights in Bruen, two years before his permit application
was denied" and therefore "[a]ny 'reasonable official in the
defendant's position would have known' that the statutes Taker
challenges are unconstitutional in light of Bruen." (Citing Alfano
v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017)). And there are
substantial differences between Bruen and this case, such as the
fact that the appellants in Bruen were not subject to an agreed-to
protective order and did not have a prior felony conviction. Thus,
because we cannot see how the rights that Taker alleges in this
claim to have been violated were clearly established, we affirm
the District Court's dismissal of the damages claim against Hagan
based on qualified immunity.
IV.
We affirm the judgment below as to the damages claim
against Hagan, vacate the judgment below as to the claims for
declaratory and injunctive relief, and remand for the claims for
declaratory and injunctive relief to be dismissed on
jurisdictional grounds and therefore without prejudice.
- 18 -