Gould v O'Leary - Comm2A Carry Case v. Boston / Brookline

IANAL... wondering why, when the power of the chiefs to have discretion is supposedly founded on their intimate knowledge of the limited miscreants in each little fiefdom (the ability to put limitations on those few individuals with issues only the locals know which may not on paper be a disqualification, the few)...why is there no mention of the widespread blanket application of these restrictions on the many...especially to those new residents applying for which the locale gendarme could have essentially no such familiarity? ( get that the widespread application is at the core of this, wondering why the premise of the few is not mentioned)

Every time the mere notion of removing this discretion is even whispered there is a great hue and cry about how only the local PD can possibly know the details of the 0.5% of the population that they are charged with screening out.

I'm assuming it has to do with the focus of the individual citations being leveraged to make the argument...again, just curious.
 
Seems like they made that claim by saying in the rest of the state, the restrictions are rare, and in these two places the unrestricted licenses are rare with all of the percentages.

Sent from my SM-G955U using Tapatalk
 
Questions:

1. Would a positive outcome have any effect outside of Boston and Brookline.
2. Would a positive outcome remove the use of restrictions, or would it only require that Boston/Brookline use them more in-line with other Cities? (wouldn't this mean that individual applicants would have to challenge a restriction in court)
3. Wouldn't Boston and Brookline be able to just deny all those they would have restricted as unsuitable?
 
42! said:
Wouldn't Boston and Brookline be able to just deny all those they would have restricted as unsuitable?
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The “suitable person” requirement became a requirement that an applicant not be “unsuitable” in 2014's changes to the MGL. If a city/town started blanket denying licenses Comm2A and the SAF would file another case along with the lines of what's going on in D.C. It would also FLY IN THE FACE OF HELLER and potentially lead to another epic bench slap by the USSC ordering the commonwealth to play nice.
 
Waher said:
The “suitable person” requirement became a requirement that an applicant not be “unsuitable” in 2014's changes to the MGL. If a city/town started blanket denying licenses Comm2A and the SAF would file another case along with the lines of what's going on in D.C. It would also FLY IN THE FACE OF HELLER and potentially lead to another epic bench slap by the USSC ordering the commonwealth to play nice.
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The change in 2014 was meaningless, the way it's used and the way the courts enforce it didn't change. But that's OT.

So they could use suitability but that would basically set themselves up for another suit....I think you might want to be ready for this. I wouldn't trust them to just follow a court's ruling.

I was more curious about #1 and #2
 
Next these here will likely be Boston and Brookline filing and opposition to which we'll have an opportunity to reply. They may also file a motion to dismiss or some combination of the above. The Commonwealth might also file something as they've intervened.

The nature of any 'positive' outcome cannot be predicted other than to say that it will be appealed.
 
mbullism said:
IANAL... wondering why, when the power of the chiefs to have discretion is supposedly founded on their intimate knowledge of the limited miscreants in each little fiefdom (the ability to put limitations on those few individuals with issues only the locals know which may not on paper be a disqualification, the few)...why is there no mention of the widespread blanket application of these restrictions on the many...especially to those new residents applying for which the locale gendarme could have essentially no such familiarity? ( get that the widespread application is at the core of this, wondering why the premise of the few is not mentioned)

Every time the mere notion of removing this discretion is even whispered there is a great hue and cry about how only the local PD can possibly know the details of the 0.5% of the population that they are charged with screening out.

I'm assuming it has to do with the focus of the individual citations being leveraged to make the argument...again, just curious.
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Police hold vast control in this state.

A friend of my daughter is working at the local PD as an intern as she studies whatever to eventually becomes the shortest female detective in history. LOL

Anyhow, she mentioned that this particular town uses retired police for much of the detail work.

We've come to that day. It was ASSUMED that if we took the detail work away from cops and gave it to flag-men like the other 49 states, it would cause financial burden on officers, ergo bumping salaries and saving the consumer zero dollars.

Nope. I guess the rank-and-file make too much money protecting and serving so this is a benefit for retired cops to make $50-75/hr for standing around.

Go try and get the state to change THAT law. :) "We have the power. You don't understand it. We do, so we NEED to keep the power. Just go away or we'll have you protected and served."
 
Knuckle Dragger said:
Next these here will likely be Boston and Brookline filing and opposition to which we'll have an opportunity to reply. They may also file a motion to dismiss or some combination of the above. The Commonwealth might also file something as they've intervened.

The nature of any 'positive' outcome cannot be predicted other than to say that it will be appealed.
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Court cases are like a ping-pong game . . . each side lobs the ball at the other side and it goes on back and forth for damn near forever. Count on another 2-4 years before final resolution comes about.
 
Now that I've had some time to curl up with this motion, here's my non-lawyerly but hopefully still intelligent opinion of it.

This case is an almost-sure loser in district court. The plaintiffs' MSJ explicitly concedes that they're asking the court to reverse its own precedent from Batty v. Albertelli ("While Plaintiffs disagree with various aspects of these conclusions [from the Batty v. Albertelli ruling], we concede that, if accepted and applied again here, they ought to be dispositive of the present case"). Why should the court consider doing this? Solely because of one new piece of advisory precedent, Wrenn v. DC, which didn't exist yet when they ruled on Batty. The argument is that Wrenn should carry more weight than the conflicting precedents from the 2nd, 3rd, 4th, and 9th circuits because the wording of the Massachusetts statute at issue is slightly closer to the struck-down DC statute than it is to the upheld statutes from New York, New Jersey, Maryland, and California. I think the judge is going to find this argument extraordinarily tenuous even if the DCCA hasn't already flipped itself en banc by the time he gets around to ruling.

Nonetheless, I still think this is a fantastic case with good chances on appeal. In contrast to previous attempts such as Hightower, it has a squeaky-clean set of plaintiffs asserting an ironclad set of facts which will make it hard(*) for the 1CA to avoid reaching the merits. But don't hold your breath for a district court victory.

(*) A few months ago on Twitter, I made the error of overstating this by saying "no way they're weaseling out of getting to the merits". This led to none other than Alan Gura dropping out of a ceiling tile to wag his finger at me: "They can weasel out of whatever they want to weasel out of. Nothing is weasel proof. You can only make the complaint weasel resistant." Ouch.
 
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dfranke said:
make it hard(*) for the 1CA to avoid reaching the merits. But don't hold your breath for a district court victory.

(*) A few months ago on Twitter, I made the error of overstating this by saying "no way they're weaseling out of getting to the merits". This led to none other than Alan Gura dropping out of a ceiling tile to wag his finger at me: "They can weasel out of whatever they want to weasel out of. Nothing is weasel proof. You can only make the complaint weasel resistant." Ouch.
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I saw that and he is right. When CA1 will literally lie about what the law says (they say we can possess handguns on an FID...) then they can weasel anything they want.
 
terraformer said:
I saw that and he is right. When CA1 will literally lie about what the law says (they say we can possess handguns on an FID...) then they can weasel anything they want.
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I agree with you that Morin v. Leahy was wrongly decided on this issue. But I disagree that CA1 weaseled, and they certainly didn't lie. Morin's attorneys just plain got out-debated.

The law is clear that you can possess a handgun on an FID+PtP. Now, the two of us both know that PtPs are a farce, and that in practice LTCs are the only way to go, but that's a matter of fact, not law. If Morin had successfully gotten an FID but never made any effort to get a PtP, then CA1 would have been right to disqualify him on standing.

But the factual questions around PtPs were never ripe, because Morin never took the earlier step of applying for an FID, and the CA1 disqualified his standing on that basis. Here I think they erred, but only because the state explicitly stipulated that his application would have been statutorily denied, and because "the law does not require a futile act". But Morin's attorneys never raised this argument, even in response to pointed questioning from the CA1 panel! This was a terrible mistake IMO, one which had me screaming at my monitor while I was listening to oral arguments.

Another case that's relevant here is GeorgiaCarry.org v. Toomer, in the District Court for the Northern District of Georgia and Atlanta. It was a challenge to Georgia's lack of availability of firearm licenses to non-residents of the state. The plaintiff never applied for a license and thereby lost on standing. In this case the "futile act" argument was brought, and failed, but there the plaintiffs didn't have the gift of a stipulated denial like Morin did. The court accepted the state's argument that "actually filing an application in this instance would not have been a futile act as such a filing would have given Judge Toomer the opportunity to actually review an application… to determine if such applicants would be eligible for the requested GFL. We cannot know with certainty what actions would have been taken as no such application was ever filed". In Morin, this counterargument would have been estopped on account of the state's stipulation.
 
dfranke said:
In Morin, this counterargument would have been estopped on account of the state's stipulation.
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Oh, and this was never "stipulated to" until CA1 oral argument and I will point out that it was yet another lie the AAG told. Morin is eligible for an FID. Though I have to admit, when she lies, or is just plain incompetent, she sounds like she has a clue. She got a judge to bite that Class B's were still available, until she was proven wrong. There were more than a few of those instances in that case.
 
Weasel proof. [rofl] What a great exchange.

I once had a weasel-proof governmental organization. We were an anarcho-syndicalist commune. We take it in turns to be a sort of executive officer for the week but all the decisions of that officer have to be ratified at a special bi-weekly meeting by a simple majority in the case of purely internal affairs but by a two thirds majority in the case of...

Then some dolt with a wet sword came along and it was all over. I saw the violence inherent in the system.
 
terraformer said:
Oh really, please point to that clear law. And you can't point to the SJC decision, which isn't law, it's dicta.
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The plain language of c. 140 §129B, paragraph 6, suggests that an FID (by itself at least), does not confer the right to possess a handgun. But there is also no statute which takes away that right from FID holders.

The statute which ordinarily criminalizes possession of a handgun, unless any of several criteria is met, is c. 269 §10(a). One exempting criterion is having a valid LTC. Another criterion is "having complied with the provisions of sections one hundred and twenty-nine C and one hundred and thirty-one G of chapter one hundred and forty". Redundantly there's another statute c. 269 §10(h)1 which provides "Whoever owns, possesses or transfers a firearm, rifle, shotgun or ammunition without complying with the provisions of section 129C of chapter 140 shall be punished…". 131G pertains to non-residents visiting the commonwealth with their firearm and isn't relevant to this discussion. 129C contains a multitude of provisions, but the only one governing mere possession of a non-large-capacity handgun is this one (emphasis added):

No person, other than a licensed dealer or one who has been issued a license to carry a pistol or revolver or an exempt person as hereinafter described, shall own or possess any firearm, rifle, shotgun or ammunition unless he has been issued a firearm identification card by the licensing authority pursuant to the provisions of section one hundred and twenty-nine B.
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Followed by lots of exceptions to the FID requirement.

I agree with you that the language asserting the legality of possessing a handgun with an FID under the two SJC cases cited by CA1 in Morin, namely Powell and Gouse, is dicta, because it pertains to hypothetical situations: neither Powell nor Gouse had an FID. However, I think Commonwealth v. Cornelius is ratio decidendi, where the SJC answered in the affirmative a certified question as to "Whether satisfaction of the firearm identification card exception set out in G. L. c. 140, § 129C(j), by itself, satisfies the firearm possession exemption set out in G. L. c. 269, § 10(a)(4)". The defendant didn't have an FID in that case either, but the SJC found that Cornelius would nonetheless would be protected under exception (j) if the commonwealth couldn't disprove his claim that he had only recently moved to Massachusetts at the time of his arrest. It obviously follows, a fortiori, that if satisfying one of the exceptions to the c. 140 §129C FID requirement is a defense under c. 269, § 10(a)(4), so is satisfying the FID requirement itself. I reiterate that the SJC's findings here seem perfectly consistent with a plain reading of the statute.

c. 140 §131A provides for issuance of permits to purchase, and transfer of a handgun to someone who has both an FID and PtP is consistent with the requirements of c. 140 §129C and every other statute I can find.

terraformer said:
Oh, and this was never "stipulated to" until CA1 oral argument and I will point out that it was yet another lie the AAG told. Morin is eligible for an FID. Though I have to admit, when she lies, or is just plain incompetent, she sounds like she has a clue. She got a judge to bite that Class B's were still available, until she was proven wrong. There were more than a few of those instances in that case.
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I'm not going to defend this or any other shady behavior by the AAG, but you don't get to pin that on the court. I'm not sure whether you're correct that he's eligible for an FID. Under c. 140 §129B (1)(ii)(D) he "has, in any other state or federal jurisdiction, been convicted… of… 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". I know that five years have elapsed since then, but I don't know whether his "right or ability to possess a rifle or shotgun has been fully restored in the jurisdiction wherein the conviction or adjudication was entered". If it has, then AAG's stipulated denial was even more of gift than I thought: it should have turned a losing case into a winning one if Morin's attorneys had seized on it.

Morin should never have brought this appeal to CA1. After losing in district court, he should have (and still should):

1. Applied for an FID and gotten the outcome of his application on the record.
2. Regardless of the outcome, attempted to apply for a PtP. If given nothing but blank looks conveying "WTF is a PtP?", or told that an FID is a prerequisite for a PtP, gotten that on record.
3. If the PtP was issued, attempted to purchase a non-large-capacity handgun.
4. Re-filed his lawsuit in district court if he was unsuccessful in getting through step 3.

Circling back to Powell and Gouse being dicta: no, it's not fantastic that CA1 relied on these rather than examining the statutory language directly, but for the reasons I outlined above, doing so shouldn't have changed their conclusion. But CA1's conclusions in Morin as to whether an FID alone allows possession of a handgun are themselves dicta, because the only relevant matter is whether having both an FID and PtP allows both purchase and possession. No sane judge is going to find that there is any constitutionally relevant difference between "it is illegal for Morin to possess a handgun" and "it is illegal for Morin to purchase or obtain a handgun, but if only he could then his continued possession of it would be legal". For the proposition that FID+PtP does allow purchase and possession, 1CA relies on a direct reading of the statutes. They also cite dicta from another case, Commonwealth v. Seay, in support of their analysis, but that's a perfectly appropriate way to use dicta. And although Seay is from 1978, all the statutes it cites still say what it says they say. So despite the dubious citations to Powell and Gouse, I think denying en banc rehearing of Morin was appropriate. (n.b., this denial doesn't seem to be posted yet on comm2a.org. I had to find it on PACER.)
 
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Dennis in MA said:
Weasel proof. [rofl] What a great exchange.

I once had a weasel-proof governmental organization. We were an anarcho-syndicalist commune…
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I thought for certain the rest of this comment was going to be about the deep foundation and 10-gague steel wire that reliably kept weasels out of your communal chicken coop.
 
dfranke said:
The plain language of c. 140 §129B, paragraph 6, suggests that an FID (by itself at least), does not confer the right to possess a handgun. But there is also no statute which takes away that right from FID holders.

The statute which ordinarily criminalizes possession of a handgun, unless any of several criteria is met, is c. 269 §10(a). One exempting criterion is having a valid LTC. Another criterion is "having complied with the provisions of sections one hundred and twenty-nine C and one hundred and thirty-one G of chapter one hundred and forty". Redundantly there's another statute c. 269 §10(h)1 which provides "Whoever owns, possesses or transfers a firearm, rifle, shotgun or ammunition without complying with the provisions of section 129C of chapter 140 shall be punished…". 131G pertains to non-residents visiting the commonwealth with their firearm and isn't relevant to this discussion. 129C contains a multitude of provisions, but the only one governing mere possession of a non-large-capacity handgun is this one (emphasis added):



Followed by lots of exceptions to the FID requirement.

I agree with you that the language asserting the legality of possessing a handgun with an FID under the two SJC cases cited by CA1 in Morin, namely Powell and Gouse, is dicta, because it pertains to hypothetical situations: neither Powell nor Gouse had an FID. However, I think Commonwealth v. Cornelius is ratio decidendi, where the SJC answered in the affirmative a certified question as to "Whether satisfaction of the firearm identification card exception set out in G. L. c. 140, § 129C(j), by itself, satisfies the firearm possession exemption set out in G. L. c. 269, § 10(a)(4)". The defendant didn't have an FID in that case either, but the SJC found that Cornelius would nonetheless would be protected under exception (j) if the commonwealth couldn't disprove his claim that he had only recently moved to Massachusetts at the time of his arrest. It obviously follows, a fortiori, that if satisfying one of the exceptions to the c. 140 §129C FID requirement is a defense under c. 269, § 10(a)(4), so is satisfying the FID requirement itself. I reiterate that the SJC's findings here seem perfectly consistent with a plain reading of the statute.

c. 140 §131A provides for issuance of permits to purchase, and transfer of a handgun to someone who has both an FID and PtP is consistent with the requirements of c. 140 §129C and every other statute I can find.



I'm not going to defend this or any other shady behavior by the AAG, but you don't get to pin that on the court. I'm not sure whether you're correct that he's eligible for an FID. Under c. 140 §129B (1)(ii)(D) he "has, in any other state or federal jurisdiction, been convicted… of… 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". I know that five years have elapsed since then, but I don't know whether his "right or ability to possess a rifle or shotgun has been fully restored in the jurisdiction wherein the conviction or adjudication was entered". If it has, then AAG's stipulated denial was even more of gift than I thought: it should have turned a losing case into a winning one if Morin's attorneys had seized on it.

Morin should never have brought this appeal to CA1. After losing in district court, he should have (and still should):

1. Applied for an FID and gotten the outcome of his application on the record.
2. Regardless of the outcome, attempted to apply for a PtP. If given nothing but blank looks conveying "WTF is a PtP?", or told that an FID is a prerequisite for a PtP, gotten that on record.
3. If the PtP was issued, attempted to purchase a non-large-capacity handgun.
4. Re-filed his lawsuit in district court if he was unsuccessful in getting through step 3.

Circling back to Powell and Gouse being dicta: no, it's not fantastic that CA1 relied on these rather than examining the statutory language directly, but for the reasons I outlined above, doing so shouldn't have changed their conclusion. But CA1's conclusions in Morin as to whether an FID alone allows possession of a handgun are themselves dicta, because the only relevant matter is whether having both an FID and PtP allows both purchase and possession. No sane judge is going to find that there is any constitutionally relevant difference between "it is illegal for Morin to possess a handgun" and "it is illegal for Morin to purchase or obtain a handgun, but if only he could then his continued possession of it would be legal". For the proposition that FID+PtP does allow purchase and possession, 1CA relies on a direct reading of the statutes. They also cite dicta from another case, Commonwealth v. Seay, in support of their analysis, but that's a perfectly appropriate way to use dicta. And although Seay is from 1978, all the statutes it cites still say what it says they say. So despite the dubious citations to Powell and Gouse, I think denying en banc rehearing of Morin was appropriate. (n.b., this denial doesn't seem to be posted yet on comm2a.org. I had to find it on PACER.)
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Corneilius was an appeals court case. Not the SJC. As for the PTP, the FID allows possession of a handgun at a gun club with a class A LTC plus the PTP is used by aliens to buy long guns under the Alien FID card. Your "Followed by lots of exceptions to the FID requirement." waived a magic wand over all of the exemptions that fail to exempt possession of a handgun in the home for one in possession of an FID card. So, no exemption, no possession. Combined with your assertion, false BTW, that there is no blanket prohibition of possession of a handgun, the entire law is predicated on this blanket exception and §10(a) and §10(h) combined create this blanket prohibition. So no exception in §129C and no LTC means no possession of a handgun.

As for Morin's "right or ability to possess a rifle or shotgun has been fully restored in the jurisdiction wherein the conviction or adjudication was entered", since he never lost his right to possess a handgun in DC, as he never had a right to possess a handgun in DC at the time (this was the absolute ban struck down by Heller), Morin is eligible for the FID card. So he never had the right that he never lost, so even if you apply US v. Logan to the state, it's in applicable as he never had the right at the time, but has it now.
 
terraformer said:
Corneilius was an appeals court case. Not the SJC.
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My bad.

terraformer said:
Your "Followed by lots of exceptions to the FID requirement." waived a magic wand over all of the exemptions that fail to exempt possession of a handgun in the home for one in possession of an FID card. So, no exemption, no possession. Combined with your assertion, false BTW, that there is no blanket prohibition of possession of a handgun, the entire law is predicated on this blanket exception and §10(a) and §10(h) combined create this blanket prohibition. So no exception in §129C and no LTC means no possession of a handgun.
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I haven't hand-waved anything at all here. None of the lettered exceptions generally pertain to possession of a handgun in the home. They don't need to, because the FID card "exception" isn't an exception; it's a limiting clause of the general rule stated in the first paragraph, which I previously quoted: "No person, other than a licensed dealer or one who has been issued a license to carry a pistol or revolver or an exempt person as hereinafter described, shall own or possess any firearm, rifle, shotgun or ammunition unless he has been issued a firearm identification card by the licensing authority pursuant to the provisions of section one hundred and twenty-nine B". So, if you've been issued an FID, you're not violating c. 140 §129C by possessing a handgun. No violation of §129C means no violation of c. 269, § 10(a) or 10(h), and nothing besides 10(a) and 10(h) generally prohibit possession of a handgun in the home.
 
Comm2A said:
Discover is now closed. Today we filed our Motion for Summary Judgement. Enjoy
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Does the gun for a restricted LTC holder need to be locked up or can they carry in their home/property? There is a reason why I ask. NO it's not about me.

- - - Updated - - -

Waher said:
[popcorn]I don't even know what's going on with all this fancy law talk but it seems exciting.
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Right !!! It would be easier if you just said it ![rofl]
 
dfranke said:
My bad.



I haven't hand-waved anything at all here. None of the lettered exceptions generally pertain to possession of a handgun in the home. They don't need to, because the FID card "exception" isn't an exception; it's a limiting clause of the general rule stated in the first paragraph, which I previously quoted: "No person, other than a licensed dealer or one who has been issued a license to carry a pistol or revolver or an exempt person as hereinafter described, shall own or possess any firearm, rifle, shotgun or ammunition unless he has been issued a firearm identification card by the licensing authority pursuant to the provisions of section one hundred and twenty-nine B". So, if you've been issued an FID, you're not violating c. 140 §129C by possessing a handgun. No violation of §129C means no violation of c. 269, § 10(a) or 10(h), and nothing besides 10(a) and 10(h) generally prohibit possession of a handgun in the home.
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Ugh... And quoting §129C, which is the application of §129B, gets us back to the immensely unambiguous language in §129B(6)... And what's worse is that EOPSS and every single town in the state follows my interpretation and the court refused to ask the AAG what their interpretation of the law was (remember, this interpretation sprung from the ******* of a judge) and conveniently ****ed the plaintiff.

I am done going round and round on this. The FID DOES NOT allow possession of a handgun when the law one can be charged with requires adherence to §129C which is the exception list to the ABSOLUTE PROHIBITION in §129B and §129B expressly prohibits possession except at a gun club. So the opening paragraph to 129C is accurate when an FID card holder is on the grounds of a §131 licensed gun club. PERIOD.
 
On Friday oppositions and cross-motions for summary judgement were filed by the three defendants - Boston, Brookline, and the Commonwealth. Defendants argue that the First Circuit should continue to fall in line with the 2nd, 3rd, 4th, and 9th Circuits despite the recent decision to the contrary by the DC Circuit and 7th Circuit precedent upholding right-to-carry.

Links to all relevant filings can be found at Weng v. Evans.

The First Circuit is the only federal circuit without a clear right-to-carry precedent, making this case suddenly much more important.
 
It is almost as if we want the first circuit to rule against us so that we have a strong case to go to the SCOTUS. Feels wrong to hope we lose...
 

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