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Comm2A Files Against Northborough (again) - Morin v. Lyver

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The First Circuit told Alfred Morin he couldn't challenge his license prohibition because he didn't apply for the 'right' combination of licenses. Well, now he can. He got the FID, the PTP was denied, and the NPD Chief gets sued again - Morin v. Lyver.

The page needs to be updated, all it mentions is "07/18/2018 -- Complaint".


Just got out of the hearing. Now we wait. The last time around the decision took 33 days.

That would put us around Friday, October 4th to hear back?
What is the next step in this case?

Tomorrow.
 
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How is he a PP?
If the POTENTIAL sentence was more than one year in jail, regardless of what he actually served, he is prohibited under federal law from possessing firearms. Ask legendary UDT/SEAL Commander Richard Marcinko. He got 21 months federal and served 15. This after a heroic 30 plus years of Navy service as an officer. No sitting POTUS had the guts to pardon him. If this could happen to a decorated SPECOPS warrior like him, what do the rest of us peons have to look forward to?
 

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If the POTENTIAL sentence was more than one year in jail, regardless of what he actually served, he is prohibited under federal law from possessing firearms.

Dr. Morin is not disqualified under federal law. He's disqualified under state law. This suit challenges the state law that disqualifies him.

MGL Chapter 140 said:
A prohibited person shall be a person who:
.
.
(ii) has, in any other state or federal jurisdiction, been convicted or adjudicated a youthful offender or delinquent child for the commission of ... (D) a violation of any law regulating the use, possession, ownership, transfer, purchase, sale, lease, rental, receipt or transportation of weapons or ammunition for which a term of imprisonment may be imposed
 
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If the POTENTIAL sentence was more than one year in jail, regardless of what he actually served, he is prohibited under federal law from possessing firearms. Ask legendary UDT/SEAL Commander Richard Marcinko. He got 21 months federal and served 15. This after a heroic 30 plus years of Navy service as an officer. No sitting POTUS had the guts to pardon him. If this could happen to a decorated SPECOPS warrior like him, what do the rest of us peons have to look forward to?
Incorrect.

It must be:
1. Classified as a felony by the state in which it occurred or by the feds for a federal offense. [it may be that anything > 1 year at the federal level is a felony, not sure there]
or
2. Be punished by a potential sentence in excess of 2 years (corrected)

or be a crime of actual or threatened domestic violence or, for the state of MA, involve firearms or ammo and be punishable by jail or prison time.

see 18 USC 922(g) for detials

While common, the definition of ">1year:==felony" is not universal.
 
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swatgig

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How could he not know about DC's oppresive gun laws?
Part of the argument was that the Commonwealth submitted a 90 page report prepared by the Government Accountability Office titled "States’ Laws and Requirements for Concealed Carry Permits Vary across the Nation" ( link here https://www.gao.gov/assets/600/592552.pdf ) . Obviously the Plaintiff did not the resources available to commission such study before he drove to D.C.
 
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42!

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Is there a lawyer out there that could help me understand the ramifications of a win in this case? Beyond the plaintiff getting his PTP.
I can see it changing whether a non-violent felony conviction is used to prevent issue of an LTC, but wouldn't the CoP just go with suitability instead?
 
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The issue is his MA statutory ineligibility based on the DC gun conviction.

When Comm2A had the first go-around, the case was dismissed because the AGs counsel argued that Morin did not apply for the minimal license to exercise his Heller rights of a handgun in the home - specifically a PTP + FID. Anyone who knows MgL knows and FID does not currently cover handguns, but the AG said it did and the court accepted it under the doctrine of "if the AG says so, it must be true'.

So, go back a few spaces on the board. Have Morin attempt to get a PP+FID and, after that, have him attempt a purchase from a licensed dealer. We had to prove he could not get a PTP and incidentally discovered that the state has no record of a Ptp ever having been issued. Once we could prove this,, the case became ressurrectable.

It is not clear the chief would revoke for the conviction if issuance is allowed and, even if he did, a judicial determination that non-violent felonies are not DQs would be progress.

Actually, there are non-violent felonies that are not DQs federally but are in MA. Anti-trust and restraint of trade violations.
 
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42!

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@Rob Boudrie Thanks for the review, I was aware of all the reasoning behind the action what I was looking for was the implications of a win beyond the individual getting his PTP.

This part does touch on this:
Actually, there are non-violent felonies that are not DQs federally but are in MA. Anti-trust and restraint of trade violations.

I was just hoping to hear that a win would have more impact on a larger number of people, or a fundamental change in the law, given the significant efforts of Comm2a. And while it's nice to see some wins by Comm2a, they appear to have little impact beyond an individual plaintiff or a slap to an individual PD. I was hoping to hear that this was not the case.

Given Comm2a's role is litigation, not legislation as GOAL's is, and thus they have to work within the law, not propose new laws, I would have expected them, when looking for small issues, to look for broader results. For example, address the additional requirements many departments add to the process, address the PD's routine of creating difficulty and delays that violate the actual law, and of course (my personal favorite) clearly defining suitability and having the courts actually use that definition. And do these is a way that will affect the entire state and not just one PD or plaintiff.

I supose a win in this would help those that fall into the small class of felony convictions that are OK federally, but disqualify in MA, and that person wants a gun.
BUT, I would think putting an end to all the extra requirements (BTW this would end Boston's live fire requirement) and the delays beyond the deadline in the law, would have a much greater impact. In fact it would affect EVERY current and future license holder in MA.

And since these abuses are common place, Comm2a doesn't need to wait for some super squeaky clean plaintiff who has been denied. They can pick from literally thousands that were subjected to these abuses, and it's not even relevant whether they were eventually approved or denied.
 
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This case is not about felonies. I should have made that clear earlier.

What Morin is about is the MA lifetime ban on someone convicted of a non-violent misdemeanor involving a firearms or ammunition for which a prison term may be imposed.

Morin's situation is he was convicted (pled out, I think) of a gun misdemeanor in DC that has a theoretical prison possibility. Comm2A is arguing it is a violation of his rights to impose a lifetime MA ban under these circumstances.

Unfortunately, this has no bearing on the MA misdafelony situation but is widely applicable to persons with non-MA minor gun cases. The "prison term may be imposed" is misleading as to the severity of the underlying crime as there are offenses where this possibility is on the books for an offense but only very rarely if ever imposed.

An excellent example is discharge of a firearm within 500ft of an occupied dwelling without consent of the persons occupying said dwellings. The penalty is up to a $100 fine or up too 3 months in stir. Since it involves firearms, and has possible jail/prison time, it is a MA lifetime DQ. This is particularly disturbing given the recent MA SJC (or SMC) decision that this is a per-se offense not requiring any intent for conviction as the penalty is so minor. The court made no mention of, and apparently did not consider, lifetime MA deprivation of a civil right as part of the penalty - it was apparently ignored because it did not fit the agenda of the decision they wanted to issue.

As to the other issues - one sure route to failure in a gun rights case is to make it two broad, as one is just giving the court many hooks on which to hang an adverse decision. Some of the issues of which you speak are being litigated.

The Boston range test faces an additional litigation obstacle - stare decisis. This was already unfavorably decided in MacNutt vs. Police Commissioner of Boston, although that case did succeed in eliminating the charge for that test.
 
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42!

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@Rob Boudrie
I appreciate your response, although I still wonder about the level of impact of a win, I guess it comes down to a question of the number of people that have been affected by the disqualifying offence as compared to the number affected by the unlawful additional requirements (every gun owner and potential gun owner in MA).

As for the MacNutt case, perhaps that should be revisited. The ruling was based on the position that the LO could determine suitability based on the handling of the firearm in the test. So this is a suitability case. And the ruling made specific reference to this and the standard of the time "considerable latitude". The case emphasized handling of the firearm over accuracy (although I understand that is also a factor in the test). But the definition of suitability has changed (although ignored by the lower courts). So the issue can be readdressed in this light. Now they would need to prove that there is a risk to public safety without the test, that is not otherwise addressed. Obviously this position wouldn't apply to anyone getting a target license, since the only shooting they would be doing is at a range. And the existing training requirement addresses basic safe handling. So it would come down to accuracy, which wasn't a factor in the original case, and can be argued that having a new applicant shoot with an unfamiliar, and now uncommon, firearm does nothing to insure this.


As this drifts off topic, I'll close with this;
A limited highly defined argument, such as PD A's added requirement X is easy to argue against BECAUSE it is so limited, or they can simply rule that PD A has to stop doing X. Either way the ruling ONLY affects X and only at PD A, who is likely to just switch to requiring Y.

On the other hand, an argument that ALL extra requirements, with 100s of departments listed and many more than that examples ranging from references, to interviews months out, to letters from others, would require them to defend ever example. I think it's obvious that it is far easier to argue against a single specific item that against 100s of points. Try it sometime, it is far easier to find a hole in a small specific position, than to do the same with a 100 points all at once.

And what is the argument against a statewide case on the common practice of delaying the processing of a license beyond WHAT IS REQUIRED BY LAW, the state itself will provide the evidence that it is the local PDs causing it. They track when they are submitted and every back and forth step in the process. Individuals don't challenge this because it makes them a target for unsuitability, but a case with 100s of plaintiffs makes that less of a risk, and of course it could be said they need to remain anonymous due to firearms privacy and potential retribution.
 
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We are aware of the changing standard and refusal of the courts to accept it, and are always on the lookout for good cases. One of the problems is plaintiff selection. It's hard to get the court to not factor in the "likeability" of the plaintiff in such cases, particularly with the de-facto policy of viewing LTC appeals as a waste of time. The problem with many potential plaintiffs is they have "unprovable in a court of law but believable dirt" - like a CWOF disposition or an expired 209A.

For example, consider the case of the feds refusal to accept FLRB relief. The plaintiff for such a case must:
- Must have an non-violent discharged offense
- Must have taken the MA gun course, and obtained an LTC
- Attempt to buy a gun at a dealer
- Get denied; appeal the FLRB; and get denied by the feds
- And the tricky part: Must have never possessed or touched guns or ammo since the disqualifying offense, so using someone who has been a gun owner for years and finds himself denied when trying to buy another gun is "right out". A responsible attorney would conclude that such a plaintiff has legal exposure and should not pull on Superman's cape or mess around with Jim.

Plus, a case can drag on for years so we need spare plaintiffs. Filing with multiple plaintiffs allows the case to continue if one has to drop out.

> Now they would need to prove that there is a risk to public safety without the test, that is not otherwise addressed.
Tough when the courts refuse to use the new standard and still rely on Shelburne v. Moyer.
 

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A perfect (IMNSHO) way to attack the Boston Moon Island test in court is to have an ADA person fail due to their disability but not create a safety hazard.
 
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