SAF/Gura - Hightower v. Boston Concealed Carry

[Patrick]

OK, this is what I get for assuming this brief was going to be like the others. Note this interesting new claim (at least for Gura):

A. Hightower Enjoys A Liberty Interest In Keeping and Carrying Arms, and a Property Interest in Her License to Do So.

As described above, Hightower has a protected liberty interest in her Second Amendment right to keep and bear arms. Although McDonald’s five Justice majority reached this conclusion in different ways, under either the Due Process Clause or Privileges or Immunities Clause, a majority nonetheless confirmed that “the Second Amendment right is fully applicable to the States.” McDonald at 3026. Where “a fourteenth amendment liberty interest is implicated . . . the state therefore must adhere to rigorous procedural safeguards.” Valdivieso Ortiz v. Burgos, 807 F.2d 6, 8 (1st Cir. 1986); see also Kuck v. Danaher, 600 F.3d 159, 165 (2d Cir. 2010) (same).

“Property interests that are protected by the Due Process Clause of the Fourteenth Amendment are not created by that amendment” but are instead “defined by ‘existing rules or understandings that stem from an independent source such as state law.’” Spinelli v. City of New York, 579 F.3d 160, 168-69 (2d Cir. 2009) (protected property interest in a firearms dealer license) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 573 (1972)).​

To establish a property interest in a government-conferred benefit such as a license, a plaintiff must simply demonstrate “a legitimate claim of entitlement” to such interest that is grounded in established law. Roth, 408 U.S. at 577. The requirements of procedural due process prohibit “the deprivation of such an interest, once conferred, without appropriate procedural safeguards.” Arnett v. Kennedy, 416 U.S. 134, 167 (1974) (Powell, J., concurring in part).

Having been conferred to her under M.G.L. c. 140, § 131, Hightower has a property interest in her Class A license barring Defendants from revoking it without meeting the requirements of due process.

This says: Your license is your property. That implies that revoking it is akin to confiscation of any other property and as such must include all manner of Due Process and 5th Amendment concerns. Maybe this seems natural to some (and it should), but it is a new angle all the same. If the permit belongs to you, the state cannot arbitrarily take it from you. A government cannot remove it (as they might a driver's license for a number of infractions). That would be theft unless they take you to court first. This potentially blocks off a whole slew of state options that would administratively rescind your license at their whims. Just as they cannot pass law saying they can take your Plasma TV without a trial, they cannot take your carry permit.

Think that one over for a minute.

It's a big upgrade in arguments right now. I expected this later down the road, once we'd won the right to the permit in the first place. Maybe this was an argument from another lawyer or maybe they just felt it was the right case.

Either way, it is an interesting twist.

 

[Oreo]

Nice. I get it, I think. They could have been waiting to pull it out as you suggest or maybe someone not too long ago had a momentary stroke of genius and decided to give it a go. Either way I like where their heads are at.

 

[krucam]

OK, this is what I get for assuming this brief was going to be like the others. Note this interesting new claim (at least for Gura):



This says: Your license is your property. That implies that revoking it is akin to confiscation of any other property and as such must include all manner of Due Process and 5th Amendment concerns. Maybe this seems natural to some (and it should), but it is a new angle all the same. If the permit belongs to you, the state cannot arbitrarily take it from you. A government cannot remove it (as they might a driver's license for a number of infractions). That would be theft unless they take you to court first. This potentially blocks off a whole slew of state options that would administratively rescind your license at their whims. Just as they cannot pass law saying they can take your Plasma TV without a trial, they cannot take your carry permit.

Think that one over for a minute.

It's a big upgrade in arguments right now. I expected this later down the road, once we'd won the right to the permit in the first place. Maybe this was an argument from another lawyer or maybe they just felt it was the right case.

Either way, it is an interesting twist.

Just playing Devil's advocate, but IIRC there is one permit for LEO's, 1 (Class A) for the serfs. The one they revoked was the LEO one. Maybe it was a difference in the applications, not the permits themselves....I'll have to read a little more.

 

[Gray Peterson]

Just playing Devil's advocate, but IIRC there is one permit for LEO's, 1 (Class A) for the serfs. The one they revoked was the LEO one. Maybe it was a difference in the applications, not the permits themselves....I'll have to read a little more.

There's no special licenses for LEO's in Massachusetts. They are issued Class A LTC's just like everyone else, except they are treated differently.

 

[Kharn]

OK, this is what I get for assuming this brief was going to be like the others. Note this interesting new claim (at least for Gura):



This says: Your license is your property. That implies that revoking it is akin to confiscation of any other property and as such must include all manner of Due Process and 5th Amendment concerns. Maybe this seems natural to some (and it should), but it is a new angle all the same. If the permit belongs to you, the state cannot arbitrarily take it from you. A government cannot remove it (as they might a driver's license for a number of infractions). That would be theft unless they take you to court first. This potentially blocks off a whole slew of state options that would administratively rescind your license at their whims. Just as they cannot pass law saying they can take your Plasma TV without a trial, they cannot take your carry permit.

Think that one over for a minute.

It's a big upgrade in arguments right now. I expected this later down the road, once we'd won the right to the permit in the first place. Maybe this was an argument from another lawyer or maybe they just felt it was the right case.

Either way, it is an interesting twist.

Without a LTC A you cannot possess high-capacity handguns in MA, so she would have been forced to sell them. I'd say the argument has legs.

 

[Patrick]

The legal jurisprudence says that any license required to exercise a right (among oter things) can be 'owned' by the person because the right belongs to the person. Therefore, any license to exercise the right is representative of the right...which belong to you...you see where this goes.

Gura highlights some of this in his brief and I need to go back and re-read those cases.

I think the reason they bring this up now is simply because she had a permit and then they yanked it without Due Process. Rather than contrive a case somewhere in the future, this one is right here, right now.

As a side note, the Boston PD say that if Hightower would simply refile her application they will give her a permit. So this fight is purely principle.

 

[yellowfin]

It reiterates the need to slaughter Slaughterhouse.

 

[hvymax]

The legal jurisprudence says that any license required to exercise a right (among oter things) can be 'owned' by the person because the right belongs to the person. Therefore, any license to exercise the right is representative of the right...which belong to you...you see where this goes.

Gura highlights some of this in his brief and I need to go back and re-read those cases.

I think the reason they bring this up now is simply because she had a permit and then they yanked it without Due Process. Rather than contrive a case somewhere in the future, this one is right here, right now.

As a side note, the Boston PD say that if Hightower would simply refile her application they will give her a permit. So this fight is purely principle.

Of course they will now that they are having their as$es handed to them. Until the SCOTUS rules that the Constitution means what it says in every way then we will be throwing pebbles at the unconstitutional mountain while our once great society slowly dies.

 

[Al Norris]

There were some developments this last month.

02/11/2011 32 Assented to MOTION to Intervene by Commonwealth of Massachusetts.(Salinger, Kenneth) (Entered: 02/11/2011)

02/11/2011 33 NOTICE of Appearance by Kenneth W. Salinger on behalf of Commonwealth of Massachusetts (Salinger, Kenneth) (Entered: 02/11/2011)

02/11/2011 34 Assented to MOTION for Extension of Time to April 22 to File Summary Judgment Oppositions and Cross-Motion , and to Reschedule Hearing to Late June, by City of Boston, Commonwealth of Massachusetts, Edward Davis.(Salinger, Kenneth) (Entered: 02/11/2011)

02/14/2011 Judge Patti B. Saris: ELECTRONIC ORDER entered granting 34 Motion to Extend Filing Deadlines and Reschedule the Hearing on Cross-Motion for Summary Judgment. "The Summary Judgment Motion Hearing is rescheduled to June 21, 2011 at 2:00 PM." (Patch, Christine) (Entered: 02/14/2011)

02/14/2011 Judge Patti B. Saris: ELECTRONIC ORDER entered granting 32 Motion to Intervene (Patch, Christine) (Entered: 02/14/2011)

02/28/2011 ELECTRONIC NOTICE of Reassignment. Judge Denise J. Casper added. Judge Patti B. Saris no longer assigned to case. (Abaid, Kimberly) (Entered: 02/28/2011)

The first file attached is the MA AG coming in as intervenor. The second file is the new briefing schedule (this was the second assented change in briefing, due to the AG coming in as intervenor/defendant). Also note, this case has a new judge.

S.J. Opposition and Cross-Motion April 22, 2011
Plaintiff’s Reply March 21, 2011 May 6, 2011
Defendants’ Reply April 4, 2011 May 20, 2011
Hearing April 18, 2011 Between June 15 and June 30, 2011

Mark, you will want to change the "On Deck" dates to reflect this.

 

[yellowfin]

Do we think this is an improvement?

 

[krucam]

Do we think this is an improvement?

It is certainly an "elevation", hard to say whether its an improvement....I don't think it makes any difference who the defendant is represented by, whether the city of Boston or the Commonwealth of Massachusetts, particularly in a case like this.

We've seen ineptitude at municipal and state levels. SAF isn't worried, I'm sure.

 

[yellowfin]

I would imagine not, since if the state people were competent they wouldn't be part of one of the worst governments in the country.

 

[krucam]

I would imagine not, since if the state people were competent they wouldn't be part of one of the worst governments in the country.

Look at the bang up job MD's Atty General is doing in Woollard for inspiration...

 

[yellowfin]

Well, he has been successful at stalling the case which is about the most effective thing anyone on the wrong side of the issue can really do. It exploits the precariousness of our Supreme Court composition--it seems impossible to think that he isn't hoping that one of the Heller/McDonald 5 die off and are replaced by either the current White House occupant or a similarly anti gun slimeball in the future if the next election goes the wrong way.

 

[Al Norris]

I would think that beyond professional courtesy (due to the AG coming onboard), if SAF/Gura were at all worried, that they wouldn't have assented to the first change in briefing.

 

[Patrick]

We're good, guys.

Remember that not a single case directly challenging good cause has been ruled upon anywhere in the USA post-McDonald. The closest you can get is Peruta in California, and that ruled there is a right to defense outside the home. Then it laughed at us and said "Unloaded Open Carry" fits the bill just fine because someone could presumably load the gun if required.

I still call that a win. It was a step.

These cases are all going to pop later this year. First one, then another. Who knows...I might be proven wrong and this could be a shorter fight than we expected. Maybe these District Courts will find for us. Or maybe they pull a Peruta and find for the right but then also find a way to diminish it into meaningless words.

The difference is that the people fighting the SAF cases are better than the original Peruta folks. They know what they are doing and have experience winning. We are going to lose a few, but I do believe the end game is ours.

 

[MDFF2008]

That is a great argument. I've often wondered how in some places you can just get a letter saying your license is revoked without any due process.

 

[Patrick]

That is a great argument. I've often wondered how in some places you can just get a letter saying your license is revoked without any due process.

Administrative action. Hightower, if won, is another strong line in the sand. It would establish ownership rights over your permit and henceforth require the government to go to court to take it - on an individual basis. No more blanket regulations eliminating your rights. They would need to prove you did something to merit the loss of your rights.

 

[krucam]

Defendants filed their MSJ (35) and Memorandum in Support of Summary Judgment (36) yesterday, one day earlier than required I believe...I'd have to check my notes, which I won't...

Item 35 contains this from State:

Hightower’s claim that these Massachusetts laws violate a right to carry firearms in public that is purportedly protected by the Second Amendment to the United States Constitution, and her closely-related claim that the City has deprived Hightower of that right and therefore also violated substantive due process, are not ripe and thus should be dismissed without prejudice. The Second Amendment does not create or protect any right to carry a concealed weapon in public, or to possess or carry a large capacity firearm. The Class A license revoked from Hightower allowed her to carry a concealed large capacity firearm, and Hightower has never sought nor been denied a Class B license that would allow her to keep a regular capacity firearm in her home and to carry it openly in public.

1) They keep bring up "large capacity" weapons. This is new buzz post-Tuscon I believe, but an interesting change in approach.
2) The last sentence (highlighted), does MA allow Loaded Open Carry with a Class B license??

The meat of their argument is in their Memorandum, Item 36.

It starts off with the whole "Second Amendment jurisprudence started with Heller" line of reasoning, saying neither Heller or McDonald protected Carry outside the home. Weak...

They then go into her challenge not being ripe. They bring up the "suitable person" "sufficiently responsible" and "irresponsible person" standards in denying her Class-A. It gets muddied quickly.

I'd really like to know what happened when she was still with Boston PD....in Gura we trust, right?

 

[Inigoes]

1) They keep bring up "large capacity" weapons. This is new buzz post-Tuscon I believe, but an interesting change in approach.

What's a regular capacity firearm?