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Constitutional challenge to FID denial succeeds
Gun rights lawyers heartened by nod to 3rd Circuit rationale
By: Kris Olson April 16, 2020
![The judge said he found it ‘difficult if not impossible to see how a 1998 misdemeanor conviction bears any rational relationship to [the applicant’s] suitability to possess a firearm, a right guaranteed to him by the Constitution.’](/xen/proxy.php?image=http%3A%2F%2Fmasslawyersweekly.com%2Ffiles%2F2020%2F04%2FDepositphotos_168328098_xl-2015.jpg&hash=1af0551428791737b1245f3a9a54d3a0 "The judge said he found it ‘difficult if not impossible to see how a 1998 misdemeanor conviction bears any rational relationship to [the applicant’s] suitability to possess a firearm, a right guaranteed to him by the Constitution.’")
The judge said he found it ‘difficult if not impossible to see how a 1998 misdemeanor conviction bears any rational relationship to [the applicant’s] suitability to possess a firearm, a right guaranteed to him by the Constitution.’
In what may be a first-of-its-kind ruling in Massachusetts, a District Court judge decided recently that the federal statute that triggered a police chief’s refusal to renew an applicant’s firearms identification card was unconstitutional, either on its face or as applied to the applicant.
The applicant had a decades-old OUI conviction on his record but would not have been disqualified for a firearms license under G.L.c. 140, §128B(1), as the conviction had occurred more than five years prior to his application.
Federal law, however, contains no such cut-off date and “thus no possibility of an assessment as whether the prohibition in 18 U.S.C. §922(g)(1) is predicated upon any rational basis for denying [the applicant] a firearms license,” Westfield District Court First Justice William J. O’Grady wrote in his decision.
O’Grady said he found it “difficult if not impossible to see how a 1998 misdemeanor conviction bears any rational relationship to [the applicant’s] suitability to possess a firearm, a right guaranteed to him by the Constitution.”
The judge noted the dearth of case law on the constitutionality of 18 U.S.C. §922(g)(1), but said he found persuasive the reasoning set forth in the 3rd U.S. Circuit Court of Appeals’ 2016 decision in Binderup v. Attorney Gen.
“That Court found that the federal statute was unconstitutional because it does not distinguish between serious crimes and crimes of violence from other minor crimes that do not bear any relation to whether or not an individual should forfeit the constitutional right to possess a firearm,” he wrote.
O’Grady also distinguished the case before him from another 3rd Circuit decision earlier this year, Holloway v. Attorney Gen. United States, in which the defendant in Pennsylvania faced a potential sentence of up to five years’ imprisonment due to aggravating factors associated with his crime.
Road less traveled
The applicant’s attorney, Thomas A. Kenefick III of Springfield, said the constitutional challenge he ultimately mounted was one of two routes he evaluated to overturn the denial of his client’s application for an FID card.
Lawyer for applicant
The other, which is more frequently used by attorneys specializing in such cases, would have been to revisit the disposition of his client’s 1998 criminal case. If he had gone that route, Kenefick would have argued that the conviction should be vacated because the colloquy that preceded his guilty plea had failed to give him notice of this particular collateral consequence of his decision.
But O’Grady’s ruling vindicated Kenefick’s decision that the constitutional challenge would be a more expedient path to relief.
Boston attorney Joseph B. Simons said O’Grady’s decision “gives hope to people who are otherwise good, law-abiding citizens who are simply prohibited from [gun ownership] due to decades-old, non-violent crimes.”
Simons noted that there are many people like the applicant in Dusseault, who may have one blemish on their record from years ago. Simons said his approach has typically been to go the route Kenefick rejected: making a motion for a new trial or to withdraw a guilty plea with a goal of undoing the underlying conviction. But in some cases that has been impossible because records have been lost or destroyed, he said.
In light of Dusseault, Simons said challenging the federal statute as unconstitutional is another alternative he will present to clients.
Where there is a tension between federal and state law as to whether a person should be prohibited from possessing firearms, as-applied constitutional challenges to the federal statute “may be gaining momentum,” said Wakefield attorney Neil S. Tassel.
Such momentum seemed to have stalled back in June 2017, when the U.S. Supreme Court denied cert in Binderup, with only Justices Ruth Bader Ginsburg and Sonia Sotomayor voting in favor of hearing the case.
But in 2019, a federal judge in the Eastern District of Pennsylvania extended the Binderup rationale to the case of Miller v. Barr. The applicant in Miller had pleaded guilty to possessing and using altered documents in 1998 after being pulled over because the tinting of his vehicle’s windows was too dark.
Tassel said that this is the first time he had seen a Massachusetts judge apply Binderup, calling it an “exciting possibility” for potential gun owners who have never gone before the state’s Firearm Licensing Review Board to have their rights restored.
In the long run, Tassel said the best option may be for Congress to carve out certain offenses, such as first-offense OUIs and certain white-collar crimes, from the convictions that make one a “prohibited person” under 18 U.S.C. §922.
Dusseault v. City of Westfield Police Chief, Lawyers Weekly No. 16-001-20 (4 pages)
Given his experience in Chardin, George said he has “serious doubts” that the Massachusetts appeals courts will uphold O’Grady’s reasoning in Dusseault, if asked to do so.
Longtime cardholder
Alan R. Dusseault, now 65, first obtained his FID card — which allows for the purchase, possession and transportation of non-large-capacity rifles, shotguns and ammunition — as a teenager. Initially, such cards did not need to be renewed, but when that aspect of the state’s firearms licensing law changed, Dusseault allowed his card to lapse.
In 2013, he applied for and was granted a new FID card, which was good for six years. As its expiration date approached in 2019, he applied for a new card.
Despite the fact that there had been no change in Dusseault’s criminal record between 2013 and 2019, Westfield Police Chief Lawrence P. Valliere reluctantly denied the renewal request, believing his hands were tied due to a prohibition contained in 18 U.S.C. 922(g)(1).
In 1998, Dusseault had pleaded guilty to a second-offense OUI charge and had been given a suspended sentence of two years in a house of correction.
That conviction had not been a problem when Dusseault first obtained his FID card in 2013. But the following year, the Bureau of Alcohol, Tobacco and Firearms began enforcing 18 U.S.C. 922(g)(1), which disqualifies from firearm possession anyone who has been convicted of a misdemeanor punishable by imprisonment of more than two years.
Dusseault and Valliere had each separately gone to court over Dusseault’s FID card application, and the cases were consolidated for a hearing before O’Grady.
Dusseault and Valliere agreed on the relevant facts and requested O’Grady rule without first conducting an evidentiary hearing, which the judge agreed to do.
Echoes of prior controversy
Saugus attorney Jason A. Guida said the applicant’s situation in Dusseault is similar and related to an issue that generated news coverage in 2018 involving the unofficial decommissioning of the state’s Firearm Licensing Review Board, which Guida formerly served as general counsel....(.Edit for space needed_
After initially refusing to reinstate the licenses, Gov. Charlie Baker’s administration eventually relented to a degree, announcing it would yield to judges’ orders on an individual basis.
Wrentham gun rights lawyer Keith G. Langer noted that the board has not acted to remove a disability preventing an applicant from obtaining a firearms license in more than a year, in an apparent nod to the state’s official position that the applicants are still “federally prohibited” from owning firearms.
Gun rights lawyers heartened by nod to 3rd Circuit rationale
By: Kris Olson April 16, 2020
The judge said he found it ‘difficult if not impossible to see how a 1998 misdemeanor conviction bears any rational relationship to [the applicant’s] suitability to possess a firearm, a right guaranteed to him by the Constitution.’
In what may be a first-of-its-kind ruling in Massachusetts, a District Court judge decided recently that the federal statute that triggered a police chief’s refusal to renew an applicant’s firearms identification card was unconstitutional, either on its face or as applied to the applicant.
The applicant had a decades-old OUI conviction on his record but would not have been disqualified for a firearms license under G.L.c. 140, §128B(1), as the conviction had occurred more than five years prior to his application.
Federal law, however, contains no such cut-off date and “thus no possibility of an assessment as whether the prohibition in 18 U.S.C. §922(g)(1) is predicated upon any rational basis for denying [the applicant] a firearms license,” Westfield District Court First Justice William J. O’Grady wrote in his decision.
O’Grady said he found it “difficult if not impossible to see how a 1998 misdemeanor conviction bears any rational relationship to [the applicant’s] suitability to possess a firearm, a right guaranteed to him by the Constitution.”
The judge noted the dearth of case law on the constitutionality of 18 U.S.C. §922(g)(1), but said he found persuasive the reasoning set forth in the 3rd U.S. Circuit Court of Appeals’ 2016 decision in Binderup v. Attorney Gen.
“That Court found that the federal statute was unconstitutional because it does not distinguish between serious crimes and crimes of violence from other minor crimes that do not bear any relation to whether or not an individual should forfeit the constitutional right to possess a firearm,” he wrote.
O’Grady also distinguished the case before him from another 3rd Circuit decision earlier this year, Holloway v. Attorney Gen. United States, in which the defendant in Pennsylvania faced a potential sentence of up to five years’ imprisonment due to aggravating factors associated with his crime.
Road less traveled
The applicant’s attorney, Thomas A. Kenefick III of Springfield, said the constitutional challenge he ultimately mounted was one of two routes he evaluated to overturn the denial of his client’s application for an FID card.
Lawyer for applicant
The other, which is more frequently used by attorneys specializing in such cases, would have been to revisit the disposition of his client’s 1998 criminal case. If he had gone that route, Kenefick would have argued that the conviction should be vacated because the colloquy that preceded his guilty plea had failed to give him notice of this particular collateral consequence of his decision.
But O’Grady’s ruling vindicated Kenefick’s decision that the constitutional challenge would be a more expedient path to relief.
Boston attorney Joseph B. Simons said O’Grady’s decision “gives hope to people who are otherwise good, law-abiding citizens who are simply prohibited from [gun ownership] due to decades-old, non-violent crimes.”
Simons noted that there are many people like the applicant in Dusseault, who may have one blemish on their record from years ago. Simons said his approach has typically been to go the route Kenefick rejected: making a motion for a new trial or to withdraw a guilty plea with a goal of undoing the underlying conviction. But in some cases that has been impossible because records have been lost or destroyed, he said.
In light of Dusseault, Simons said challenging the federal statute as unconstitutional is another alternative he will present to clients.
Where there is a tension between federal and state law as to whether a person should be prohibited from possessing firearms, as-applied constitutional challenges to the federal statute “may be gaining momentum,” said Wakefield attorney Neil S. Tassel.
Such momentum seemed to have stalled back in June 2017, when the U.S. Supreme Court denied cert in Binderup, with only Justices Ruth Bader Ginsburg and Sonia Sotomayor voting in favor of hearing the case.
But in 2019, a federal judge in the Eastern District of Pennsylvania extended the Binderup rationale to the case of Miller v. Barr. The applicant in Miller had pleaded guilty to possessing and using altered documents in 1998 after being pulled over because the tinting of his vehicle’s windows was too dark.
Tassel said that this is the first time he had seen a Massachusetts judge apply Binderup, calling it an “exciting possibility” for potential gun owners who have never gone before the state’s Firearm Licensing Review Board to have their rights restored.
In the long run, Tassel said the best option may be for Congress to carve out certain offenses, such as first-offense OUIs and certain white-collar crimes, from the convictions that make one a “prohibited person” under 18 U.S.C. §922.
Dusseault v. City of Westfield Police Chief, Lawyers Weekly No. 16-001-20 (4 pages)
Given his experience in Chardin, George said he has “serious doubts” that the Massachusetts appeals courts will uphold O’Grady’s reasoning in Dusseault, if asked to do so.
Longtime cardholder
Alan R. Dusseault, now 65, first obtained his FID card — which allows for the purchase, possession and transportation of non-large-capacity rifles, shotguns and ammunition — as a teenager. Initially, such cards did not need to be renewed, but when that aspect of the state’s firearms licensing law changed, Dusseault allowed his card to lapse.
In 2013, he applied for and was granted a new FID card, which was good for six years. As its expiration date approached in 2019, he applied for a new card.
Despite the fact that there had been no change in Dusseault’s criminal record between 2013 and 2019, Westfield Police Chief Lawrence P. Valliere reluctantly denied the renewal request, believing his hands were tied due to a prohibition contained in 18 U.S.C. 922(g)(1).
In 1998, Dusseault had pleaded guilty to a second-offense OUI charge and had been given a suspended sentence of two years in a house of correction.
That conviction had not been a problem when Dusseault first obtained his FID card in 2013. But the following year, the Bureau of Alcohol, Tobacco and Firearms began enforcing 18 U.S.C. 922(g)(1), which disqualifies from firearm possession anyone who has been convicted of a misdemeanor punishable by imprisonment of more than two years.
Dusseault and Valliere had each separately gone to court over Dusseault’s FID card application, and the cases were consolidated for a hearing before O’Grady.
Dusseault and Valliere agreed on the relevant facts and requested O’Grady rule without first conducting an evidentiary hearing, which the judge agreed to do.
Echoes of prior controversy
Saugus attorney Jason A. Guida said the applicant’s situation in Dusseault is similar and related to an issue that generated news coverage in 2018 involving the unofficial decommissioning of the state’s Firearm Licensing Review Board, which Guida formerly served as general counsel....(.Edit for space needed_
After initially refusing to reinstate the licenses, Gov. Charlie Baker’s administration eventually relented to a degree, announcing it would yield to judges’ orders on an individual basis.
Wrentham gun rights lawyer Keith G. Langer noted that the board has not acted to remove a disability preventing an applicant from obtaining a firearms license in more than a year, in an apparent nod to the state’s official position that the applicants are still “federally prohibited” from owning firearms.
