Comm2A files against the AG on LCIs, Draper v Coakley

[Double Tap]

What is the general argument that need to be made in court?
The mechanical aspect of the LCI or the AG's authority to make that determination?
Not knowing all the legal finer points , I would think the first would be easy enough to prove, if your allowed to make the point.
In a perfect world I couldn't see "Because we said so" as much of a defense of their position.
But I understand this is Ma. so..

------

This issue is not simply "is the regulation reasonable", but rather some more detailed questions:

1. Is the regulation and enforcement thereof a violation of the 2A?

2. Is the AG the final arbiter as to the meaning of the regulations?

3. Is the AG required to explain the rational behind a decision regarding her regulations, and is the decision subject to challenge based on refuting said rationale?

4. Is the AG required to offer an a-priori determination if particular behavior is in conformance with, or violation of, her regulations, particularly when said regulations are ambiguous in their wording?

So far, the AG's position has been No, Yes, No and No.

 

[Knuckle Dragger]

There have been some interesting and thoughtful comments posted here in the last few days.

Litigation, particularly civil rights litigation involving the Second Amendment, is never without risk. We try to bring smart cases that should win and if lost, will not create bad precedents. That's the general guiding principle. We would have brought this case long ago, but it took that long to develop a theory that we thought had a reasonable chance of being successful. If we do lose I think it unlikely that the AG's office will go double down and start looking for more non-compliant guns. This has always been about Glocks specifically and it is to the AG's advantage to keep things ambiguous and the dealers guessing.

If the panel can get over the idea that we're talking about guns here, we should win. The problem to date is that we brought a case about 'X' and the AG has been successful in getting the lower court to rule on a case about 'Y'. If we do win in the First Circuit you can still expect the case to drag on as it would likely be remanded back to the District Court for reconsideration. We're just going to have to wait and see. The panel we pulled is not likely to be sympathetic to our arguments and will only reluctantly get past the 'gun' aspect of this case. The panel is made up of two Obama appointees (one of whom has already ruled dis-favorably on a 2A case) and a retired Supreme Court justice.

Glock is not eligible to be a party in this case because there would not be able to establish Article III standing. The challenged regulation does not apply to manufacturers.

Comm2A lacks anything close to resembling a marketing genius. When appropriate we try to capitalize on good cases. The AG's regulations are near and dear to most Massachusetts gun owners, so we would have been remiss in not working very hard to undermine them. There are things we do that I wish more people paid attention to and supported like Celona v. Scott and Morin v. Leahy. These aren't very sexy cases, but they're very, very important.

 

[Whutmeworry]

Not to derail this thread but I just read through the Celona v. Scott case. Is this case resolved? It looks according to the "Defendant's Opposition to MSJ" like the CoP was planning on giving in and issuing Ms Celona her LTC after all.

 

[jtnf]

Not to derail this thread but I just read through the Celona v. Scott case. Is this case resolved? It looks according to the "Defendant's Opposition to MSJ" like the CoP was planning on giving in and issuing Ms Celona her LTC after all.

Render the plaintiff moot and petition to close the case, rather than suffer a defeat?

 

[Gooman24]

I'm glad we have Comm2A looking out for our 2A interests and appreciate the amount of work the volunteers do. That said, I agree, this is a high risk case. In the appeal brief AG stated there are other firearms that are "unmerchantable" due to LCI's that don't meet the so far undefined regulation. If AG wins the case, then expect to see a number of other pistols with side extractor LCI's banned.
If AG loses then she can simply adopt CA's version of LCI regs which are very clear and specific and we can expect to see a number of other pistols banned. Glock should have filed this case with Comm2A as Amicus.
We are in the 1st Circuit, not exactly the most conservative circuit and probably not trailblazers in protecting 2A rights. I believe oral arguments are scheduled for this week and a decision by the end of summer.

Good luck to the Comm2A team, I know a lot of work has gone into the case to get it this far.

I am not aware of any semi auto guns that are "banned" in MA. Comm 2A thankfully knows the regulation involved better than you do.

Sent from my SM-N920V using Tapatalk

 

[hv55maxx]

I'm glad we have Comm2A looking out for our 2A interests and appreciate the amount of work the volunteers do. That said, I agree, this is a high risk case. In the appeal brief AG stated there are other firearms that are "unmerchantable" due to LCI's that don't meet the so far undefined regulation. If AG wins the case, then expect to see a number of other pistols with side extractor LCI's banned.
If AG loses then she can simply adopt CA's version of LCI regs which are very clear and specific and we can expect to see a number of other pistols banned. Glock should have filed this case with Comm2A as Amicus.
We are in the 1st Circuit, not exactly the most conservative circuit and probably not trailblazers in protecting 2A rights. I believe oral arguments are scheduled for this week and a decision by the end of summer.

Good luck to the Comm2A team, I know a lot of work has gone into the case to get it this far.

Hi Marsha!!!!

 

[TayNinh_66]

I am not aware of any semi auto guns that are "banned" in MA. Comm 2A thankfully knows the regulation involved better than you do.

You're correct. Glock Gen3/4's are not Banned in Boston but dealers are prohibited from selling them. Forgive my imprecise language.

 

[Len-2A Training]

You're correct. Glock Gen3/4's are not Banned in Boston but dealers are prohibited from selling them. Forgive my imprecise language.

"Words mater!"

Repeat the wrong words often enough and many believe it to be true. That's the problem with being imprecise here.

 

[free]

You're correct. Glock Gen3/4's are not Banned in Boston but dealers are prohibited from selling them. Forgive my imprecise language.

Wrong language. Not imprecise.

 

[Knuckle Dragger]

Not to derail this thread but I just read through the Celona v. Scott case. Is this case resolved? It looks according to the "Defendant's Opposition to MSJ" like the CoP was planning on giving in and issuing Ms Celona her LTC after all.

Check over here. That should answer your question. Voluntary cessation of the offending behavior does not moot the case. The plaintiff is still entitled to declaratory and injunctive relief.

 

[szaino]

There have been some interesting and thoughtful comments posted here in the last few days.

Litigation, particularly civil rights litigation involving the Second Amendment, is never without risk. We try to bring smart cases that should win and if lost, will not create bad precedents. That's the general guiding principle. We would have brought this case long ago, but it took that long to develop a theory that we thought had a reasonable chance of being successful. If we do lose I think it unlikely that the AG's office will go double down and start looking for more non-compliant guns. This has always been about Glocks specifically and it is to the AG's advantage to keep things ambiguous and the dealers guessing.

If the panel can get over the idea that we're talking about guns here, we should win. The problem to date is that we brought a case about 'X' and the AG has been successful in getting the lower court to rule on a case about 'Y'. If we do win in the First Circuit you can still expect the case to drag on as it would likely be remanded back to the District Court for reconsideration. We're just going to have to wait and see. The panel we pulled is not likely to be sympathetic to our arguments and will only reluctantly get past the 'gun' aspect of this case. The panel is made up of two Obama appointees (one of whom has already ruled dis-favorably on a 2A case) and a retired Supreme Court justice.

Glock is not eligible to be a party in this case because there would not be able to establish Article III standing. The challenged regulation does not apply to manufacturers.

Comm2A lacks anything close to resembling a marketing genius. When appropriate we try to capitalize on good cases. The AG's regulations are near and dear to most Massachusetts gun owners, so we would have been remiss in not working very hard to undermine them. There are things we do that I wish more people paid attention to and supported like Celona v. Scott and Morin v. Leahy. These aren't very sexy cases, but they're very, very important.

Going to court does take on a totally different dynamic. Not sure if this can play into your legal strategy but...

When is a transfer not a transfer? You need only look at the cleverly worded AG regs.

The AG regs define a transfer as follows, "Transfer: shall mean sell, rent, or lease. ..." . So it actually doesn't cover a true transfer which would be the case when a Mass resident buys a handgun from an out of state party and has it shipped to the Mass FFL, or when two Mass residents transact a handgun sale and choose to use an FFL to do the transfer. In these situations the seller and buyer of the handgun are not the FFL, The bill of sale reflects the true seller and buyer. The FFL requirements to enter this in their logs etc is only to comply with federal regulations and the dealer never takes legal title to the goods.

 

[NFD9]

Going to court does take on a totally different dynamic. Not sure if this can play into your legal strategy but...

When is a transfer not a transfer? You need only look at the cleverly worded AG regs.

The AG regs define a transfer as follows, "Transfer: shall mean sell, rent, or lease. ..." . So it actually doesn't cover a true transfer which would be the case when a Mass resident buys a handgun from an out of state party and has it shipped to the Mass FFL, or when two Mass residents transact a handgun sale and choose to use an FFL to do the transfer. In these situations the seller and buyer of the handgun are not the FFL, The bill of sale reflects the true seller and buyer. The FFL requirements to enter this in their logs etc is only to comply with federal regulations and the dealer never takes legal title to the goods.

Interesting...

 

[Darksideblues42]

Going to court does take on a totally different dynamic. Not sure if this can play into your legal strategy but...

When is a transfer not a transfer? You need only look at the cleverly worded AG regs.

The AG regs define a transfer as follows, "Transfer: shall mean sell, rent, or lease. ..." . So it actually doesn't cover a true transfer which would be the case when a Mass resident buys a handgun from an out of state party and has it shipped to the Mass FFL, or when two Mass residents transact a handgun sale and choose to use an FFL to do the transfer. In these situations the seller and buyer of the handgun are not the FFL, The bill of sale reflects the true seller and buyer. The FFL requirements to enter this in their logs etc is only to comply with federal regulations and the dealer never takes legal title to the goods.

I am pretty sure that the AG will simply re-write standard commercial terminology, rules, and law to fit her narrative that any transfer of ownership at a dealer equates to a transfer under the law, despite the precise wording seeming to preclude that interpretation.


If you have any doubts, please see mail order / online ammo/component/accessory sales, which are defacto banned by the AG despite a total lack of the authority to do so.

 

[szaino]

I am pretty sure that the AG will simply re-write standard commercial terminology, rules, and law to fit her narrative that any transfer of ownership at a dealer equates to a transfer under the law, despite the precise wording seeming to preclude that interpretation.


If you have any doubts, please see mail order / online ammo/component/accessory sales, which are defacto banned by the AG despite a total lack of the authority to do so.

These rules and regs can't just be "rewritten" by the AG. They are very specific for a reason and I assume it has to do with interstate trade rules.

Mass law requires a license to sell ammo "within Mass". This also makes the interstate trade a murky issue that the AG can capitalize on. For instance, it is perfectly legal for a Mass Resident to drive out of state say to NH and buy ammo and bring it into Mass. Of no legal difference would be if the Mass resident called the same NH store on the phone (or ordered online) and ordered ammo (fob shipping point) to be shipped to Mass. Another example no different than the previous would be to, go to a NH store buy ammo and (for whatever reason, say too large to put in your car) have the ammo shipped to your Mass address.

The problem is you are not going to get an objective ruling from a Mass Judge regarding the rights of his/her employer.

 

[Rob Boudrie]

Check over here. That should answer your question. Voluntary cessation of the offending behavior does not moot the case. The plaintiff is still entitled to declaratory and injunctive relief.

Theoretically true, however, when Boston modified their policy "US passports are not proof of citizenship" in response to our suit, the court bought the argument that it mooted the case and rejected our request for a judgement.

 

[Rob Boudrie]

The AG regs define a transfer as follows, "Transfer: shall mean sell, rent, or lease. ..." . So it actually doesn't cover a true transfer which would be the case when a Mass resident buys a handgun from an out of state party and has it shipped to the Mass FFL, or when two Mass residents transact a handgun sale and choose to use an FFL to do the transfer.

The trick is establishing standing, and getting the AG to bring a case we can defend.

If you can find an FFL who will do transfers of Glocks on this basis, I expect many on NES will take him/her up on the service. If the AG decides to find that FFL $5000 per Glock, the dealer can then choose to either sign the consent decree to stop the practice, or fight it in court - with the potential$5k per gun fine looming over his/her head. While Comm2A could probably provide some support, I doubt that we would have the treasury to indemnify the dealer for the $5K/gun fine if it lost.

 

[Noreaster]

Going to court does take on a totally different dynamic. Not sure if this can play into your legal strategy but...

When is a transfer not a transfer? You need only look at the cleverly worded AG regs.

The AG regs define a transfer as follows, "Transfer: shall mean sell, rent, or lease. ..." . So it actually doesn't cover a true transfer which would be the case when a Mass resident buys a handgun from an out of state party and has it shipped to the Mass FFL, or when two Mass residents transact a handgun sale and choose to use an FFL to do the transfer. In these situations the seller and buyer of the handgun are not the FFL, The bill of sale reflects the true seller and buyer. The FFL requirements to enter this in their logs etc is only to comply with federal regulations and the dealer never takes legal title to the goods.

Fantastic angle. Assuming that is the ONLY definition in the regulations and there is no other verbage to include an FFL acting as a transfer agent as a definition of a transfer. I see the big problem would be getting a FFL to go along with this theory. Heck this would undermine sales for every FFL in MA. They already have to compete with no sales tax on Out of state purchases, now this would make many models of hand guns ONLY purchase-able from out of state. Yeah they can make money on the transfers, but none of them seem to enjoy doing them. Hell there are some that act like the $40 inflated charge is not worth their 10 minutes. Moreover once a legal precedence is set, you know someone will bully through a bill to amend the definition, to save the kids of course.
To be honest, this is way to clean of an oversight and should have been detected years go. If its an actual oversight, kudos of detecting it!

 

[Noreaster]

The trick is establishing standing, and getting the AG to bring a case we can defend.

If you can find an FFL who will do transfers of Glocks on this basis, I expect many on NES will take him/her up on the service. If the AG decides to find that FFL $5000 per Glock, the dealer can then choose to either sign the consent decree to stop the practice, or fight it in court - with the potential$5k per gun fine looming over his/her head. While Comm2A could probably provide some support, I doubt that we would have the treasury to indemnify the dealer for the $5K/gun fine if it lost.

Yeah - i was thinking in those terms as well, you beat me to it. However if an FFL were to help out here, they could transfer a single firearm so to limit loss to 5K; (and i think the community would help with recovering that 5k). However - would an ffl want an infraction on their record?

 

[szaino]

The trick is establishing standing, and getting the AG to bring a case we can defend.

If you can find an FFL who will do transfers of Glocks on this basis, I expect many on NES will take him/her up on the service. If the AG decides to find that FFL $5000 per Glock, the dealer can then choose to either sign the consent decree to stop the practice, or fight it in court - with the potential$5k per gun fine looming over his/her head. While Comm2A could probably provide some support, I doubt that we would have the treasury to indemnify the dealer for the $5K/gun fine if it lost.

Why has the AG never gone after the Glock FFL's in the past? The AG has access to the FA10 database so it isn't that hard to figure out.

I know you are well informed on this, but I still don't understand why Glock wouldn't have legal standing.

 

[Len-2A Training]

These rules and regs can't just be "rewritten" by the AG. They are very specific for a reason and I assume it has to do with interstate trade rules.

Mass law requires a license to sell ammo "within Mass". This also makes the interstate trade a murky issue that the AG can capitalize on. For instance, it is perfectly legal for a Mass Resident to drive out of state say to NH and buy ammo and bring it into Mass. Of no legal difference would be if the Mass resident called the same NH store on the phone (or ordered online) and ordered ammo (fob shipping point) to be shipped to Mass. Another example no different than the previous would be to, go to a NH store buy ammo and (for whatever reason, say too large to put in your car) have the ammo shipped to your Mass address.

The problem is you are not going to get an objective ruling from a Mass Judge regarding the rights of his/her employer.

Not legally! UCC defines the rules for interstate transactions and the AG position does NOT comply. The AG doesn't care nor do the marsupial judges in this state!

Yeah - i was thinking in those terms as well, you beat me to it. However if an FFL were to help out here, they could transfer a single firearm so to limit loss to 5K; (and i think the community would help with recovering that 5k). However - would an ffl want an infraction on their record?

The AG does not go after the "one offs", they go after those that do lots of transactions that they object to . . . thus the risk is huge to the dealer.

Why has the AG never gone after the Glock FFL's in the past? The AG has access to the FA10 database so it isn't that hard to figure out.

I know you are well informed on this, but I still don't understand why Glock wouldn't have legal standing.

Do some searching or talk with Carl at Four Seasons. The AG did exactly that and although all of Carl's sales were AG-exempt LE sales, it still cost him huge in legal bills. That is why he is so conservative in running his business ever since then. BTW, I seem to think there were 8-15 dealers back then that the AG went after, all based on FA-10s filed by said dealers.

 

[drgrant]

Why has the AG never gone after the Glock FFL's in the past? The AG has access to the FA10 database so it isn't that hard to figure out.

No, the AG's office does NOT have unfettered access to this database. EOPS has gotten into huge fights with the AGs office over this in the past.

-Mike

 

[Rob Boudrie]

Yeah - i was thinking in those terms as well, you beat me to it. However if an FFL were to help out here, they could transfer a single firearm so to limit loss to 5K; (and i think the community would help with recovering that 5k). However - would an ffl want an infraction on their record?

Yes, but the trick is getting the AG to bring an action based on that one violation to establish standing.

 

[Len-2A Training]

No, the AG's office does NOT have unfettered access to this database. EOPS has gotten into huge fights with the AGs office over this in the past.

-Mike

Not exactly, the AG was given FA-10s with buyer info redacted back years ago. That is what led them to attempt to fine those 8-15 (I no longer remember the exact number) dealers mega-bucks. It was up to the dealers to refute the allegations by producing evidence that the Glock sales were to LEOs and exempt from AG Regs.

 

[peterthefish]

Yes, but the trick is getting the AG to bring an action based on that one violation to establish standing.

Probably only need to actually sell one, by heavily advertise that you sell them so as to get the AGs attention.

Heck, advertise them for sale for $5500 a pop, pointing out that $5K is to pay the AGs fine.

 

[Rob Boudrie]

Probably only need to actually sell one, by heavily advertise that you sell them so as to get the AGs attention.

Heck, advertise them for sale for $5500 a pop, pointing out that $5K is to pay the AGs fine.

And just how to you get the AG to bring an action based on advertising something for sale?

The entire issue is standing.

 

[peterthefish]

And just how to you get the AG to bring an action based on advertising something for sale?

The entire issue is standing.

Actually sell one. Or a couple. But perhaps create the perception you are selling enough to get the AGs attention through advertising.

 

[Knuckle Dragger]

Going to court does take on a totally different dynamic. Not sure if this can play into your legal strategy but...

When is a transfer not a transfer? You need only look at the cleverly worded AG regs.

The AG regs define a transfer as follows, "Transfer: shall mean sell, rent, or lease. ..." . So it actually doesn't cover a true transfer which would be the case when a Mass resident buys a handgun from an out of state party and has it shipped to the Mass FFL, or when two Mass residents transact a handgun sale and choose to use an FFL to do the transfer. In these situations the seller and buyer of the handgun are not the FFL, The bill of sale reflects the true seller and buyer. The FFL requirements to enter this in their logs etc is only to comply with federal regulations and the dealer never takes legal title to the goods.

That's an interesting observation. Most of us know that any reasonably resourceful person can legally get around this and other dealer focused prohibitions. Your keen observation is not relevant to this case as the dealer plaintiffs want to SELL Glocks, not just facilitate the 'import' of firearms already owned by someone. In order to try and exploit this angle, we'd need dealers willing to risk being sanctioned by the AG and we'd need the AG to actually take the bait.

Why has the AG never gone after the Glock FFL's in the past? The AG has access to the FA10 database so it isn't that hard to figure out.

I know you are well informed on this, but I still don't understand why Glock wouldn't have legal standing.

I'm not sure that the AG does have unfettered access to MIRCS transfer data. And if they do, there may be a 4th of 5th amendment problem with using that data to prosecute someone. Remember, the AG and EOPSS or separate and independent constitutional offices in the Commonwealth. They don't necessarily share the same agendas and don't always play well together.

Remember, in Wesson v. Fowlder, the AG all but conceded the case outright but EOPSS refused to go along. This resulted in a second lawsuit that the AG refused to defend and which cost the taxpayers of Hingham $12,000.

Glock has no Article III standing to bring an action such as this because the AG is not attempting to regulate Glock's conduct.

 

[pastera]

I think this is right, I don't see the point of this case, there is no win. The AG will do what they want and just re-write the rules more in their favor if Comm2A wins. I've never had an issue buying glocks or anything else, why stir the pot? In the end, the game is fixed in this state.

The issue is not the LCI in itself. The issue is that the definition for an 'effective' LCI is a secret, subject to secret revision, held only by the AG.

 

[szaino]

That's an interesting observation. Most of us know that any reasonably resourceful person can legally get around this and other dealer focused prohibitions. Your keen observation is not relevant to this case as the dealer plaintiffs want to SELL Glocks, not just facilitate the 'import' of firearms already owned by someone. In order to try and exploit this angle, we'd need dealers willing to risk being sanctioned by the AG and we'd need the AG to actually take the bait.

For this angle why would you need dealers willing to take a risk? The action would be brought by an individual who bought (an otherwise eops legal gun, like a Glock) out of state and contacted X number of Mass FFL's, all of which would say that the AG regs prevent them from doing the transfer. You could have the dealers and/or the individual send a letter to the AG's office requesting there input on this specific issue, and assuming they do anything less than say it is OK, you could commence an action based upon the AG's constraint of interstate trade for transactions outside of the regs.

 

[Len-2A Training]

I'm not sure that the AG does have unfettered access to MIRCS transfer data. And if they do, there may be a 4th of 5th amendment problem with using that data to prosecute someone. Remember, the AG and EOPSS or separate and independent constitutional offices in the Commonwealth. They don't necessarily share the same agendas and don't always play well together.

The AG does not have unfettered access to MIRCS data. The director of FRB (at that time, unsure when so it was either Jason Guida or Bill Pickett back then) gave limited access to MIRCS data on Glock transfers by certain MA Dealers. NO info on who bought them was shared with the AG, only info on the MA Dealer and gun was given to the AG.