Comm2A announces Hightower v. Boston Right to Carry case in MA

[TheRoland]

That result could occur on many of the lawsuits that ourselves, SAF and others fund. Ultimately you don't care if it's a 2A argument (though preferred and it is usually a subtext at minimum), a 14A argument or some other argument that carries the day so long as the day is carried and it stops the bad actor from doing it to someone else in the future. Here the judge can rule narrowly but there will still be by necessity something to work with for others moving forward. No one involved with these things suggests that there is one single bullet lawsuit to solve all problems.

Totally true. Not meant as a criticism, only a commentary.

 

[piman]

Interesting case. Truly calls out the subjectivity of suitability. I hope it doesn't just get decided on the merit that the licensing authority has the discretion and that any change will need to be done by the legislature...

Sent from my DROIDX using Tapatalk

 

[jar]

Awesome. This is what I, and I'm guessing many people, was waiting for before donating to C2A. I sent a small donation just now and hope to give more soon. What's the status of the non-profit determination?

 

[drgrant]

Nice plaintiff selection. This is going to be good....

-Mike

 

[terraformer]

Awesome. This is what I, and I'm guessing many people, was waiting for before donating to C2A. I sent a small donation just now and hope to give more soon. What's the status of the non-profit determination?

Thanks to you and everyone else for the donations. It will help us continue you on with more litigation in the future.

As for the NPO, it is on a desk in the bowels of an IRS building somewhere waiting for approval.

 

[Rob Boudrie]

I hope it doesn't just get decided on the merit that the licensing authority has the discretion and that any change will need to be done by the legislature...

A fundamental question of public policy is "what level of scrutiny is to be applied regarding the removal of a constitutionally protected right?". Since the supremes have declared that we have a constitutional right, a credible argument can be made that the applicable standard is "strict scrutiny", however, even "intermediate scrutiny" would provide significantly more protections that afforded by the current MA system. One could even argue that the MA system doesn't even meet the lowest level known as "rational basis".

Of particular interest in Hightower is that a MA LTC is required to possess a handgun, therefore, revocation or denial of an LTC is tantamount to denial of that right. Just imagine the s--t storm if DC had responded to Heller with "yes, we will issue handgun licenses, but the DC chief may deny any applicant based on heresay, innuendo, charges resulting in a finding of not guilty, employment disputes or general reputation of the applicant".

The concept of a "right" is that it is something everyone has until it is removed via due process, not something to be granted only to people the government likes. Heller and McDonald changed the landscape, but we can't expect places like MA to roll over and change decades of accepted public policy without a bit of encouragement.

I hope it doesn't just get decided on the merit that the licensing authority has the discretion and that any change will need to be done by the legislature...

This is a federal case that I anticipate will be argued on federal and constitutional issues - both concepts that are null and void in MA courts.

 

[terraformer]

A fundamental question of public policy is "what level of scrutiny is to be applied regarding the removal of a constitutionally protected right?"

Adding to what you have here:

In first amendment law, it is important to remember that strict scrutiny is only called for when the right is being restricted on speech grounds (and not conduct grounds), the restriction is content specific and most importantly to the 2A, the speech is not public in nature.

So that means if First Amendment canon is used in the second amendment, strict scrutiny should be employed when the restriction limits in home or private property possession, when the right is being restricted in ways that fundamentally alter it's effectiveness (the best allegory I can come up with for content specific speech) and the actual act of shooting is involved (as opposed to mere possession of firearms and related paraphernalia).

Intermediate scrutiny in the 1A world is applied when the speech is public (ie; over public airwaves, in the public square, substantive reach to minors, etc), the restrictions are content neutral and/or the activity is conduct related and not pure speech.

So that means that carry on public ways (meaning possibly in commercial settings such as publicly accessible stores, etc), shooting sports competitions/ranges/activities/etc and restrictions like serial numbers, commerce restrictions, etc will be held to the lesser standard.

Two important things to keep in mind, there can never be rational basis scrutiny of any law that restricts *protected* activity or conduct. That is the fundamental decision from Heller where rational basis was declared not enough to sustain any law concerning protected 2A activity or conduct.

Additionally, I want to impress upon you all that intermediate scrutiny is NOT a loss in any way. Most of the laws in MA will have to be narrowed and more directly tailored in their application on that level of review alone. But don't expect that there will be no strict scrutiny review of anything. The legal world has to figure out what that will look like and although increasingly they are relying on the 1A, the allegories are not perfect and there needs to be more time and thought put into it.

 

[PaulD]

Excellent! Donation on the way.

+1! +1.

 

[jar]

Interstingly, Gura is listed on the docket as being at Sidley Austin's DC office, rather than Gura & Possessky. I wonder what the story is there. Gura's bio says he worked at Sidley years ago.

 

[terraformer]

Interstingly, Gura is listed on the docket as being at Sidley Austin's DC office, rather than Gura & Possessky. I wonder what the story is there. Gura's bio says he worked at Sidley years ago.

It's completely a clerical error which was probably introduced by the person who accepted the filing. They probably did a look up in some registry and it didn't register to them that his address/firm name was wrong.

 

[Coyote33]

Most of us here know the "Davis" case is what guided a LOT of MA firearms laws since it happened (when?). So, if this can be overturned somehow, do all the subsequent cases then get thrown out, or do they have to be redone on a one by one basis?

 

[terraformer]

Most of us here know the "Davis" case is what guided a LOT of MA firearms laws since it happened (when?). So, if this can be overturned somehow, do all the subsequent cases then get thrown out, or do they have to be redone on a one by one basis?

Davis (1976) doesn't get overturned per se. It is simply presumptively in error and the issues have to be reheard one by one as they come up. The legal system doesn't do wholesale reversals.

 

[jar]

Where do the dates on the C2A web page come from? They're not in any of the documents on RECAP. Is the RECAP docket out of date? My PACER registration is still pending, so I can't check yet.

 

[terraformer]

Where do the dates on the C2A web page come from? They're not in any of the documents on RECAP. Is the RECAP docket out of date? My PACER registration is still pending, so I can't check yet.

Knuckle Dragger and I attended the scheduling conference held on the 14th. They come from there. I don't know if those dates will ever be posted on the docket.

 

[exo]

Excellent. Just sent a small check to Comm2A today, and another small check to SAF is going out tomorrow. More will follow when I can.

 

[Comm2A]

Excellent. Just sent a small check to Comm2A today, and another small check to SAF is going out tomorrow. More will follow when I can.

This is a great point we should have made clearer before. SAF and Comm2A have a great working relationship and this is an excellent time to remind people that SAF is a key supporter of our work here in MA. We wouldn't be where we are without their help and a show of support from MA would go a long way.

 

[jar]

As for the NPO, it is on a desk in the bowels of an IRS building somewhere waiting for approval.

How does this work in the meantime? Can I provisionally deduct this year's donation on my 2010 taxes? I saw somewhere that everyone will get recognition for their donation when the NPO is approved. Do I wait to deduct it until then? Can I do that on my 2011 taxes if the approval doesn't happen before 4/15?

I plan to donate early and often regardless, but getting 25% back to donate later sure doesn't hurt. If it makes it easiest, I'll probably hold my next donation until 1/1.

 

[Knuckle Dragger]

How does this work in the meantime? Can I provisionally deduct this year's donation on my 2010 taxes? I saw somewhere that everyone will get recognition for their donation when the NPO is approved. Do I wait to deduct it until then? Can I do that on my 2011 taxes if the approval doesn't happen before 4/15?

I plan to donate early and often regardless, but getting 25% back to donate later sure doesn't hurt. If it makes it easiest, I'll probably hold my next donation until 1/1.

My understanding is that you can, but don't take my word to the bank. You should still check.

ETA: We'll be sending out acknowledgment letters early in January with our tax information.

 

[GSG]

OK, so I read the docs at the Comm2A site, the civil service document on the MassChiefs site (I'm guessing they'll be paying rapt attention to this case, likely via NES), and the Superior Court civil service filing from the state website. These are my thoughts in general as an amateur internet law student. I know that some of the questions I have may be best unanswered, I'm just thinking out loud here.

Two nitpicky things. One of the dates listed on the Comm2A site confused me.

http://www.comm2a.org/index.php?opt...ht-to-carry-discretionary-licensing&Itemid=38

05/26/90 - Answer to First Amended Complaint

The numbers were probably reversed, but I spent a few seconds wondering why it took 20 years to make it's way through the courts.

Secondly, #15 on First Amended Complaint calls the license a "Class A license to carry concealed, large capacity firearms". Again, nitpicky, but this could create some problems with caselaw if it's assumed that open carry is prohibited in Mass. with a Class A. Unless of course this has to do with Boston's unusual restriction scheme that specifically prohibits concealed carry with a Class A, "no concealed target" or something along those lines (unlikely since ALP was mentioned specifically, they seemed to be identifying the particular type of license). Whatever the reason I think it should be made crystal clear, since there are few if any states in the US who have to deal with 352 licensing authorities issuing as many different "restrictions" as they see fit. Even though a "concealed carry license" may make sense to a judge who's never dipped his head into MGL, it could wreak havoc on the future interpretations of rulings made in this case in some areas of law.

The complaints given in to Civil Service Commission don't seem to rise at all to any level of dangerousness or threats of violence that would justify a suitability revocation of an LTC. In fact, her LTC was renewed without issue, and reading between the lines, it appears that it wasn't until she resigned a month later that her LTC was revoked, which is being called a nonrenewal...? I'd be interested to see if she was charged criminally for incorrect info on the LTC app, or if it was just some random reason they listed to justify yanking it. I'm also curious if it's the official or unofficial SOP to yank the LTC of anyone who quits BPD.

The later controversy over how forms were filled out with an open IA investigation could really go either way IMO. It'd be nice to see one to know exactly what was being asked. It also seems like there may have been some pressure placed somewhere re: settling or not settling the dispute. It's not even clear to me if the IA investigation is related to the Holbrook complaint, although it seems likely that it is.

It mentions that her gun & ammo were confiscated, but were they returned or released? Is that being disputed here or elsewhere? Like I said above I won't complain if this and other questions aren't answered, I'd probably have strong feelings on the subject if I were in her shoes.

I did some interesting reading elsewhere, unrelated to this specific case, but what an eye opener.

All in all it seems like even by Mass. standards, her LTC was pulled for bogus reasons; it seems vindictive in nature. Personnel issues aside, you don't disarm the lady living in Dorchester who has recently had her home broken into by criminals, especially one who spent the past 10 years locking up violent criminals. Even the basic filing does a great job of making this situation seem like what it is, absurd.

The filing to watch is the one that will be filed in early february. This is what will have the meat of the argument and serve as the basis of the hearing. This will have lots of good stuff worth reading through. The city's response in early march will be against that February filing and should be of interest.

Those should prove interesting.

I somehow remember reading something about this here on NES. Wasn't the woman a minority?

Jesse Cohen defended a Brockton resident who worked for the MBTA and was an SPO in Boston who had her LTC revoked. It was later re-instated.

 

[Rob Boudrie]

Jesse Cohen defended a Brockton resident who worked for the MBTA and was an SPO in Boston who had her LTC revoked. It was later re-instated.

Technically speaking, Jesse did not "defend" the Brockton SPO as she was not charged with anything. He "represented" her at a LTC appeal hearing, but she was in no manner of speaking a "defendant".

 

[terraformer]

Technically speaking, Jesse did not "defend" the Brockton SPO as she was not charged with anything. He "represented" her at a LTC appeal hearing, but she was in no manner of speaking a "defendant".

Actually, she was tried on some sort of charge and the jury found her innocent. Maybe Jesse wasn't involved back then, but she was in court on something related to her residency and a city job.

 

[Rob Boudrie]

Actually, she was tried on some sort of charge and the jury found her innocent. Maybe Jesse wasn't involved back then, but she was in court on something related to her residency and a city job.

Thanks for the update - I didn't know there was a charge. I stand corrected.

 

[GSG]

Technically speaking, Jesse did not "defend" the Brockton SPO as she was not charged with anything. He "represented" her at a LTC appeal hearing, but she was in no manner of speaking a "defendant".

Good point on LTC hearings not being trials. Well not technically anyway.

Thanks for the update - I didn't know there was a charge. I stand corrected.

There was some sort of charge. She got into a dispute with a detective which resulted in her being charged with something (I don't believe we were ever told what exactly). She was found not guilty after a very brief jury deliberation. I got the impression that she was also defended by him in the initial criminal case, but I don't know that for sure. It seems like her LTC was yanked by the PD when she beat the criminal charges as a one finger salute.

 

[Coyote33]

Most of us here know the "Davis" case is what guided a LOT of MA firearms laws since it happened (when?). So, if this can be overturned somehow, do all the subsequent cases then get thrown out, or do they have to be redone on a one by one basis?

Davis (1976) doesn't get overturned per se. It is simply presumptively in error and the issues have to be reheard one by one as they come up. The legal system doesn't do wholesale reversals.

Now after reading the thread below, I am not so sure you are correct.

http://www.northeastshooters.com/vb...ilty-pleas-can-now-be-set-aside-due-to-Heller

 

[terraformer]

Now after reading the thread below, I am not so sure you are correct.

http://www.northeastshooters.com/vb...ilty-pleas-can-now-be-set-aside-due-to-Heller

Actually, I am if you take into account past precedent. That is what is so interesting about Magnus. It is a significant departure from past doctrine. That said, the same court of appeals ruled in Herrington that Kevin Herrington could be found guilty of unlicensed possession of ammo post Heller despite the fact that heller was adjudicated after Herrington's offense. As a result, Herrington and Magnus are at odds with one another. How this plays out is a bit up in the air. The DC court of appeals has interesting takes on criminal justice and as much as I like the outcomes in some cases, the likelihood that SCOTUS adopts this wholesale reversal of previous convictions is slim. But we will see.

 

[GSG]

Actually, I am if you take into account past precedent. That is what is so interesting about Magnus. It is a significant departure from past doctrine.

Agreed.

 

[lagrangian]

Is there anything that prevents the defendants in this case and any future case from just doing an about-face and granting/restoring the license, thus mooting the case and causing the federal courts to basically automatically dismiss due to there no longer being a live case or controversy?

Now of course that's a pretty good outcome for the plaintiff, but it fails to produce any binding federal precedent.

Call my cynical, but I can totally see MA or its political subdivisions intentionally caving on any and every case that looks like it's going against them in order to prevent the federal courts from issuing an opinion and therefore maintaining the status quo. So anyone with a good case who has the time and money to sue will essentially win (in the sense of getting their desired license) but it won't help anyone else.

Is there any doctrine in constitutional law where you can somehow keep the case alive despite the apparent mootness or perhaps attach the state's overall behavior as opposed to specific, individual cases that the state can moot and kill off?

 

[terraformer]

Towns have been playing gypsy grab ass with lawyers on suitability for years. Will this case be different? We hope. Will they still get to win a few battles with games? Sure. They won't win the war though. We know their game.

 

[Blitz1]

.

 

[joeendris]

He got screwed by the town, left with over $100K in medical bills from that accident. Turns out that MA only requires a town to carry $30K insurance for on-the-job accidents, after that he was on his own.

Cities/towns are exempt from the Workmen's Comp requirements for civilian employers.

Exhibit A, your honor, why Mass sucks for it's people and it's workers, unless you're Devil Patrick or Martha, and their succubi. Yes, gang, soon as my kids are finished school (a couple years), I'm outta this shithole of a state....