SAF/Gura - Hightower v. Boston Concealed Carry

krucam · Dec 30, 2010

And yet another one. Unsurfaced at Calguns...

This case is a case brought up by the Commenwealth (MA) 2A group. http://comm2a.org/
The Hightower case in particular is outlined here: http://comm2a.org/index.php?option=...ht-to-carry-discretionary-licensing&Itemid=38

Hightower v. Boston (MA)
Hightower v. City of Boston is the first case brought in federal court that directly challenges a police chief's arbitrary authority to deny someone a license to possess a handgun and the fundamental individual right to keep and bear arms.

Until August of 2008 the plaintiff, Stacey Hightower, was a veteran police officer for the City of Boston. Following her resignation from the Boston Police Department her License to Carry was revoked and her personally owned handgun was confiscated by the Boston Police. Ms. Hightower has never been charged with or convicted of any crime, and is not disqualified under any statue from possessing firearms. Yet, the Boston Police revoked her LTC and confiscated her personal firearm without any hearing or other form of due process. This action alleges that the Police Commissioner of Boston and the State of Massachusetts is preventing Ms. Hightower from exercising the fundamental individual right to keep and bear arms by requiring her to maintain a license that is issued at the discretion of the defendants.

In addition to Comm2A, this case is supported by the Second Amendment Foundation, Inc. Chester Darling and Alan Gura are the plaintiff's attorneys.

Please consider helping plaintiffs like Stacey Hightower by donating to Comm2A.org.

The case Hightower v. Boston was stayed pending McDonald. Docket is here: http://ia700303.us.archive.org/23/items/gov.uscourts.mad.118935/gov.uscourts.mad.118935.docket.html

Today, the case was officially "un-stayed". SAF and Gura are also involved!

Bring it on...

Oreo · Dec 30, 2010

This one seems like an easy win. I mean, they confiscated her personal firearm as if she doesn't even have the right to own it in her home? That's square in the cross-hairs of Heller / McDonald.

Walter · Dec 30, 2010

Wait, am I understanding this correctly...you need a license to legally own a firearm, but being issued that license is under the discretion of the state?

If that's the case then how ****ing ridiculous :mad54:

MDFF2008 · Dec 31, 2010

Walter said:
Wait, am I understanding this correctly...you need a license to legally own a firearm, but being issued that license is under the discretion of the state?

If that's the case then how ****ing ridiculous

MA is a permit to purchase state. The permits to purchase are shall issue, but the permits to carry are not.

Western MA isn't that hard to get a permit but Boston is near impossible.

MA requires a permit to carry mace.

jjbduke2004 · Dec 31, 2010

Actually MA is a three tier system with Class A & B licenses + FOID. A Class B (no carry, no large cap mags) is mostly shall-issue. The problem with Class A is it's discretionary. Each town has its own rules. More conservative towns hand out Class As like candy.

If you ask the chief for a Class A and he decides to give you a Class B instead, there's no appeal.

krucam · Dec 31, 2010

According to the Defendants, Ms. Hightower as a Police Officer didn't answer a question on the Class-A renewal application truthfully.

Here is her final application and subsequent revocation from 2008: http://www.archive.org/download/gov.uscourts.mad.118935/gov.uscourts.mad.118935.12.2.pdf

From the Defendants response to Pltf Complaint: http://www.archive.org/download/gov.uscourts.mad.118935/gov.uscourts.mad.118935.16.0.pdf

33. The Defendants admit that Commissioner Davis sent Plaintiff a revocation of her license to carry. Further answering, the Defendants state that the renewal application submitted by the Plaintiff in July 2008 was designed for law enforcement personnel applicants, and required the applicant to report whether charges were pending against the applicant at the time of the renewal. The Plaintiff completed the form, but failed to report that she was awaiting a hearing on disciplinary charges at that time. See Exhibit A, Renewal Application. Upon learning that the document had not been completed truthfully, the Commissioner revoked the Plaintiff’s license. See Exhibit B, Notice of Revocation.

Massachusetts being as it is, may have a leg to stand on regarding her Class-A (LTC), but as far as the confiscation goes, nope...

It will be interesting to see how this turns out.

Al Norris · Dec 31, 2010

Mark, I caught the "disciplinary hearing." But what bothers me, is when Hightower was supposedly notified. That information is presumably in filings 12.1 or 12.3...

What is not said, is if the hearing was of a criminal nature such that answering "No" to the question (Are There Any Complaints Or Charges Pending Against You?) would in fact be a false statement.

I tend to think that whatever the hearing was about, it was not criminal in nature, as Alan Gura is very selective about his clients. Going under this assumption (yes, I know about assuming), the BPD is trying to paint Ms. Hightower as a potential criminal or is grasping at straws. Or both?

krucam · Dec 31, 2010

Al Norris said:
Mark, I caught the "disciplinary hearing." But what bothers me, is when Hightower was supposedly notified. That information is presumably in filings 12.1 or 12.3...

What is not said, is if the hearing was of a criminal nature such that answering "No" to the question (Are There Any Complaints Or Charges Pending Against You?) would in fact be a false statement.

I tend to think that whatever the hearing was about, it was not criminal in nature, as Alan Gura is very selective about his clients. Going under this assumption (yes, I know about assuming), the BPD is trying to paint Ms. Hightower as a potential criminal or is grasping at straws. Or both?

Without knowing what the disciplinary hearings were about, who knows what BPD's motives are...I tend to believe they're not pure. It is ironic that her tenure ended shortly after this app revocation, and I agree that a disciplinary hearing "scheduled" is not a criminal conviction.

There's more to this, I'm sure...

Take care and Happy New Years to you.

yellowfin · Dec 31, 2010

Also a disciplinary hearing can be "scheduled" at any time and just purely on paper as an internal matter, pretty much when and why they say it is. They could have had that penciled in just to say they did then there actually have been no hearing to have taken place: easy to say, impossible to prove either way. It seems to me like saying a dead person said something that only one person heard.

Comm2A · Dec 31, 2010

Hello MD,

Thanks for taking notice of our activities. We have several other actions planned for the New Year, and yes, we're starting way behind everyone else.

We are expecting good things from this case. Each of our 351 police chiefs still treats the issuance of an LTC - which is required to even possess and handgun (or large capacity rifle or shotgun) - as discretionary. Yes, we need the police chief's permission to have a handgun in the house.

Practices vary widely within the state and most chiefs do treat and unrestricted LTC as a 'shall' issue license and Boston is far from the worst town in MA.

Oreo said:
This one seems like an easy win. I mean, they confiscated her personal firearm as if she doesn't even have the right to own it in her home? That's square in the cross-hairs of Heller / McDonald.

The smart money say's you're right.

Walter said:
Wait, am I understanding this correctly...you need a license to legally own a firearm, but being issued that license is under the discretion of the state?

If that's the case then how ****ing ridiculous

You are entirely correct on all counts.

gprimr1 said:
MA is a permit to purchase state. The permits to purchase are shall issue, but the permits to carry are not.
Western MA isn't that hard to get a permit but Boston is near impossible.
MA requires a permit to carry mace.

The law provides for permit to purchase, but they aren't issued or used. You need an LTC (issued at the discretion of the CLEO) to purchase a handgun.

jjbduke2004 said:
If you ask the chief for a Class A and he decides to give you a Class B instead, there's no appeal.

Pretty much, yes. Although it's not common.

Patrick · Dec 31, 2010

Comm2A said:
Hello MD,

Thanks for taking notice of our activities. We have several other actions planned for the New Year, and yes, we're starting way behind everyone else.

...

Thanks for coming over here and sharing with us. Pease stick around. Right now we have a lot of cross-efforts with CalGuns and we'd love MA to join up. The word "Troika" comes to mind.

Please take a look at the Most recent Chester thread in our Nation 2A forums. I think you will like what you see. It's not a death blow, but it is helpful.

Someday we all need to get together and have a drink. We'll make the guys in California pay the tab, because their laws are the model ones adopted by both MD and MA.

jpk1md · Dec 31, 2010

Patrick said:
We'll make the guys in California pay the tab, because their laws are the model ones adopted by both MD and MA.

I wouldn't blame Kali for all the nuttiness....Mass has spontaneously generated no shortage of their own.....the one that immediately comes to mind is the Felony charge for every round of ammo you are in possession of without an LTC/FID.

Not to mention the continuation of their AWB, Ban on "Hi Cap" magazines and their persistent ignorance of the 86 FOPA.....I did everything possible to keep my route through Mass as short as possible while "Escaping" Cuba on the Chesapeake......I even drove around NJ entirely to avoid potential issue.

Patrick · Dec 31, 2010

Wow. Was not aware. Thanks.

Moving from CA to MD, I felt that I was entering a pro-2A haven in comparative terms. We don't have it nearly as bad as some others. Once we clear that pesky shall-issue problem from the books, we'll be mostly good.

Oreo · Dec 31, 2010

Not to get OT, but I'd say we need shall issue, as well as FTF transfers. Then we'll be mostly good.

jpk1md · Dec 31, 2010

Oreo said:
Not to get OT, but I'd say we need shall issue, as well as FTF transfers. Then we'll be mostly good.

Personally I'd consider a good start as the repeal of '34 and '68 GCA and we shouldn't settle for anything less.

press1280 · Dec 31, 2010

It would be nice if we knew what the "disciplinary" hearing was about. Was she doing something illegal/sketchy, or was it simply she showed up late for work repeatedly(maybe she just wasn't a good cop)?
Also this:37. Denied. Further answering, if the Plaintiff truthfully completes a civilian License to Carry form, and no other disqualification applies, her right to carry a firearm will be restored. What's this about? Reminds me of the questionaires on CCW forms-why ask if you've been convicted of a felony if they'll find out anyways?

yellowfin · Jan 1, 2011

press1280 said:
It would be nice if we knew what the "disciplinary" hearing was about. Was she doing something illegal/sketchy, or was it simply she showed up late for work repeatedly(maybe she just wasn't a good cop)?

Could be anything or nothing at all. Personality clashes, parked in the wrong spot, let out a four letter word after spilling coffee...

Also this:37. Denied. Further answering, if the Plaintiff truthfully completes a civilian License to Carry form, and no other disqualification applies, her right to carry a firearm will be restored. What's this about? Reminds me of the questionaires on CCW forms-why ask if you've been convicted of a felony if they'll find out anyways?

Plausible deniability. They say that knowing 100% they have no intention to issue it, but they know they can say they might because 0.001% chance of getting it is greater than 0.000%

krucam · Jan 30, 2011

While we wait for the MSJ tomorrow on this, a push back of the Hearing in April was announced Friday.

Schedule WAS:

Summary Judgment Motion by 1/31/11.
Opposition and Cross Motion by 2/28/11.
Reply and Opposition by 3/14/11.
Summary Judgment Hearing/Pretrial Conference set for 4/7/2011. NOW 4/18/2011

01/28/2011 ELECTRONIC NOTICE OF RESCHEDULING. Summary Judgment Hearing/Pretrial Conference RESCHEDULED from 4/7/2011 to 4/18/2011 at 3:00 PM in Courtroom 19 before Judge Patti B. Saris. (Alba, Robert) (Entered: 01/28/2011)

Hopefully the MSJ will be available for viewing tomorrow...

krucam · Jan 31, 2011

MSJ was filed today, Item 28 on the Docket

Item 29, Memorandum in Support of Motion to Dismiss is attached and will be available on the docket shortly. Alan Gura has jumped aboard on this one along with SAF & Commonwealth 2A.

The argument is being refined as we watch, as it should. All the usual suspects including Chester are being formed to pull out the non-explicit right to carry from Heller & McDonald. They continue the argument that is now becoming defacto IMHO, of using prior 1A analysis as the model for 2A analysis.

As to Prior Restraint, new is a reference to Heller (another example of our expanding argument)

Heller provides a useful example of these prior restraint principles applied in the Second Amendment context. Heller challenged, inter alia, the application of the District of Columbia’s requirement that handgun registrants obtain a discretionary (but never issued) permit to carry a gun inside the home. The Supreme Court held that the city had no discretion to refuse issuance of the permit: “Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.” Heller, 128 S. Ct. at 2822. The city repealed its home carry permit requirement.

We've had the Supreme Court's dicta since Heller...wow. Take the "home" to the "sensitive places" and what lies between argument along with these developing/developed arguments and, well, the future's so bright....

A nice read...

As to Boston PD's treatment of Ms Hightower, well that's another story...the MSJ does a good job of addressing it.

SkunkWerX · Feb 2, 2011

This looks like a slam dunk. Very interesting.
It's like a "Shall Issue case" for simple in home possession of a firearm, presumably for self defense?

We talk about Keep and Bear. In MA you can only "keep" at the discretion of the State!?! Total BS.

SAF/Gura - Hightower v. Boston Concealed Carry

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