SAF/Gura - Hightower v. Boston Concealed Carry

[Patrick]

What's a regular capacity firearm?

MA Law:

Pistol: 10 or fewer rounds
Shotgun or rifle: 5 or fewer rounds

 

[Inigoes]

MA Law:

Pistol: 10 or fewer rounds
Shotgun or rifle: 5 or fewer rounds

That's not regular, that's limited magazine capacity...

 

[jrosenberger]

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??

"Large capacity weapon" and "large capacity feeding device" have been defined terms in MA law since 1998.

“Large capacity feeding device”, (i) a fixed or detachable magazine, box, drum, feed strip or similar device capable of accepting, or that can be readily converted to accept, more than ten rounds of ammunition or more than five shotgun shells; or (ii) a large capacity ammunition feeding device as defined in the federal Public Safety and Recreational Firearms Use Protection Act, 18 U.S.C. section 921(a)(31) as appearing in such section on September 13, 1994. The term “large capacity feeding device” shall not include an attached tubular device designed to accept, and capable of operating only with,.22 caliber ammunition.

“Large capacity weapon”, any firearm, rifle or shotgun: (i) that is semiautomatic with a fixed large capacity feeding device; (ii) that is semiautomatic and capable of accepting, or readily modifiable to accept, any detachable large capacity feeding device; (iii) that employs a rotating cylinder capable of accepting more than ten rounds of ammunition in a rifle or firearm and more than five shotgun shells in the case of a shotgun or firearm; or (iv) that is an assault weapon. The term “large capacity weapon” shall be a secondary designation and shall apply to a weapon in addition to its primary designation as a firearm, rifle or shotgun and shall not include: (i) any weapon that was manufactured in or prior to the year 1899; (ii) any weapon that operates by manual bolt, pump, lever or slide action; (iii) any weapon that is a single-shot weapon; (iv) any weapon that has been modified so as to render it permanently inoperable or otherwise rendered permanently unable to be designated a large capacity weapon; or (v) any weapon that is an antique or relic, theatrical prop or other weapon that is not capable of firing a projectile and which is not intended for use as a functional weapon and cannot be readily modified through a combination of available parts into an operable large capacity weapon.

Quick recap of MA licensing tiers:
Restricted-FID : allows possession of chemical sprays
FID: adds possession of non-large capacity rifles and shotguns and ammunition
LTC-B: adds possession of large capacity rifles and shotguns and non-large capacity firearms (firearm means handgun in MA law)
LTC-A restricted: adds possession of large capacity firearms
LTC-A no restrictions: adds concealed carry.

There's no law in MA that bans open carry. However, no one does it because licenses LTC-B and above are subject to the issuing authority (police chief in town of residence or town of business ownership, or the colonel of the state police for non residents) discretion based on 'suitability'. The prevailing wisdom is that open carrying and getting police attention for it is very likely to get your LTC revoked for being 'unsuitable'.

 

[jrosenberger]

MA Law:

Pistol: 10 or fewer rounds
Shotgun or rifle: 5 or fewer rounds

It's not quite that simple. If the gun is on the large capacity weapons roster, it's large capacity even if you don't have any large capacity magazines for it. The rule for getting on said roster is to have originally shipped from the factory with a large capacity feeding device. The roster is little updated, but the prevailing wisdom is that guns like the M&P, for which no MA legal (pre-1994 ban) large capacity feeding devices exist, are still large capacity.

 

[Patrick]

Overall, this is now the second defendant to use a lack of prohibition on loaded open carry as a means to create an escape hatch. Maybe Gansler started a trend, even if technically they guise probably started with Peruta in San Diego.

The problem in all these cases is Equal Protection and Due Process. You cannot create a special class of permits for some people but not others. Neither Maryland not Massachusetts restrict concealed arms exclusively to law enforcement officers: in both cases, some non-security/non-LEO super citizens are "more equal" than the others. Nothing in this response seriously addresses that issue.

Mass also concedes that there is some individual discretion used by licensing officials in the decision to grant and/or limit a permit. This is damning if public RKBA is recognized as a right.

The two-step is used here, though inarticulately. The argument against public RKBA is almost glossed over.

Much effort is placed into defining a "suitable person". Much of what they describe is accepted and uncontested (felons, violent persons, habitual drunkards, etc.) - and therefore a waste of space.


The Case Against Hightower

The government does go to some effort to paint Hightower as an unsuitable person - someone who lied about "pending charges" when she made her Class A application. I did a lot of digging on this and read several documents.

In essence, Plaintiff Hightower was an officer in the Boston PD and got upset when an old couple merged in front of her personal vehicle one day. While wearing a Red Sox Jersey, she jumped out of her car and started banging on the windows, demanding ID and eventually using another on-duty officer's book to charge the couple with failure to blah, blah, blah. In short, she power-tripped.

When the couple complained, her statement failed to match theirs or that of the on-duty officer. She was given a 1 day suspension, which she refused to accept in lieu of a hearing. She lost the hearing after the hearing official noted she was less than truthful and that her statements and demeanor were less than candid. She later took the suspension and requested an IAD review, but finished before that hearing was scheduled.

When she applied for her Class A (still as a BPD Officer) she said no charges were pending against her. The city says otherwise, because the IAD hearing had not yet been scheduled or canceled. In their eyes, she left the job while still under scrutiny.

As far as this case goes, I don't think it is a central component to the constitutional questions. No crime was committed by Hightower, though she apparently violated several PD rules.

But in terms of procedural merit, the permit application might not be viewed as truthful in view of the facts at the time she made it. That means the permit gets denied. In her view, no charges were pending because she took her suspension and was done with it. But technically the PD was still looking at scheduling a hearing - at her request - to review the complaint and her suspension. These are the things courts decide.

I think this Plaintiff is ugly, but hopefully she won't get in the way of the constitutional issues.


Another Country Heard From (More Open Carry Nonsense)

Again, we have a defendant basically daring the people to open carry, knowing full well we will all pay a heavy price for doing so. They walk right up to the edge of "RKBA is a right", and then back off.

Having a court buy their defense would be perfect for them: they get to claim we can carry loaded arms for defense, knowing full well that they can charge us with anything but carrying arms (Disorderly Conduct, etc.) and that we can do nothing about it because carrying of arms is still not a right. If it were a right, their attempts to restrain it (DC, whatever else they concoct) would fail.

This is what they want.

Judicial Standards of Review

They claim intermediate and rational basis at varying points here. Let's give credit for honesty when it comes to actually saying "rational basis" instead of parroting something silly from Brady like the "reasonable regulation test". Of course, they apply the rational basis test only by saying that RKBA is not core to the Second Amendment. This is not a unique argument (though unique in its honesty on how they really see the right), but it does demonstrate the all-or-nothing approach they have been forced into.

When we win fundamental protection for public RKBA, all of these "less than strict" tests and defenses are going to fail instantly. You just cannot claim a restriction based on rational basis analysis will also pass strict scrutiny. No legislature has done the work to survive a true strict analysis, and I honestly doubt they could. A few defendants have at least made a stab at saying their rules would survive strict - but these are only placeholders made by smart attorneys who want to leave something to argue on appeal in the event the right is defined to include full RKBA with strict protections.

On a side note, this is one of the few defendants who point out the contradictory nature of Heller and McDonald. On the one hand, there are "presumptively lawful" prohibitions that survive the Second Amendment, and on the other the amendment is "fundamental" to our law.

They do not comport with each other. Fundamental calls for strict review - basically all prohibitions are presumptively unlawful until proven otherwise. How can you claim entire categories of restrictions to be presumptively lawful in the face of a fundamental right?

There are only two real answers: the court intended to provide fundamental protections to arms in the home, and nothing else. The other option is that Scalia inarticulately (or more accurately, "inexactly") described those conditions that fall outside the purview of the core of the Second Amendment. This includes felons and manner of carry, among others.

There is a danger for a defendant to point out the question: it begs for an answer from the Supreme Court. In such cases, an appeals court could certify a question to SCOTUS basically saying, "The defendants said you were not clear on this issue and we agree. Could you answer it for us?"

At this point in the game, getting an appeals court to punt the case up the chain is exactly what we want.

 

[jrosenberger]

The other problem with the open carry claim is that the LTC-B required to do so is issued under the *exact same rules* as the unrestricted LTC-A required for concealed carry.

The procedural issues they raise seem problematic to me for this specific case. The court could attempt to dodge the constitutional issues entirely. I'm looking forward to seeing what Gura says about this in his response brief, due in 2 weeks.

 

[Patrick]

I'd have to go back through more of the existing record to see how this court responded to the question she answered on the application, but the city argues mainly 2A issues here while trying to color the plaintiff as a bad character.

They didn't stop at the procedural issue, so either they were playing it safe or recognizing that the "charges" against Hightower could reasonably be considered complete when she finally accepted her suspension and took her day off. I'm betting there are plenty of cases to back that up within the BPD and elsewhere: that once you are adjudicated and punished - and the punishment completed - you are no longer "facing charges" related to that act.

 

[krucam]

Plaintiff response (SAF/Gura) Opposition to C-MSJ was filed today: http://www.archive.org/download/gov.uscourts.mad.118935/gov.uscourts.mad.118935.45.0.pdf

He argues against the OVERBREADTH of Massachusetts. We then delve into the exciting discussion of the “plainly legitimate sweep” standard is more permissive than the “no set of circumstances” standard.

Sorry, it's dry...they bring up the Equal Protection and Due Process arguments well towards the end. He puts simply the complex

Otherwise, the process afforded handgun carry licensees borders on the farcical. As noted above, since Defendants presume that individuals are not entitled to a permit, and the individual carries the burden of proof in any administrative appeal, the individual effectively has the burden of disproving the negative proposition that they are not entitled to a permit.

 

[krucam]

SAF/Gura filed last week the following....deep breath....

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS
CITY OF BOSTON AND EDWARD DAVIS’S MOTION FOR SUMMARY JUDGMENT
AND IN REPLY TO OPPOSITION TO PLAINTIFF’S SUMMARY JUDGMENT MOTION

http://ia600303.us.archive.org/23/items/gov.uscourts.mad.118935/gov.uscourts.mad.118935.48.0.pdf

He starts right off on calling out BPD saying they denied her permit because "charges were pending". Gura went through all of the attachments, and came up with the following:

That is not to say the paperwork dispute is irrelevant—Hightower would still maintain in another forum, as she does here, that the notation on her service record indicating she resigned with charges pending is false. Notably, not one of Defendants’ Exhibits A through U reflects any communication to Hightower that “charges” are “pending” against her.
But the dispute is irrelevant to any issue in this case, which essentially concerns whether there exists any valid public safety reason to deny this honorably discharged military veteran, with a long record of service as a police officer, her constitutional right to bear arms for self defense.
There is not.

Hightower’s ability to obtain a permit that actually permits carrying would depend upon Harrington’s subjective balancing of “her needs and the interests of the Boston police department,” id., ¶ 19, rather than on any objective standards. Whether this sort of licensing scheme is constitutional is the relevant question.

He's bringing up the obviously internal "pissing contest" that existed before Hightower's separation. BPD left too many smoking guns I'm thinking and they're now getting called out.

The one argument that Defendants do not offer is that Hightower is somehow dangerous or cannot be trusted to carry a handgun.

Sweet, simple, to the point.

Fun read I thought. The building of this jurisprudence that has been stressed in these circles is bearing fruit. Gura addresses the 'Standing' argument against Ms Hightower with two of his recent cases, Dearth & Woollard.

 

[krucam]

Don't know how I missed this piss-poor response. On May 20th MA responded to the MSJ with a whopper of a 6-page response as Doc #50. Pffft....
http://www.archive.org/download/gov.uscourts.mad.118935/gov.uscourts.mad.118935.50.0.pdf

Not ripe, as Ms Hightower isn't asking for a permit. Really?

They're doing some major word-smithing of Plaintiffs Doc #48. They're not violating any Equal Protection claims either...

Pffft...

 

[krucam]

Motion Hearing was held on 6/21/2011 in Hightower:

06/21/2011 ELECTRONIC Clerk's Notes for proceedings held before Judge Denise J. Casper: Motion Hearing held on 6/21/2011 re
39[RECAP] Cross MOTION for Summary Judgment And Opposition to Plaintiff's Motion for Summary Judgment filed by City of Boston, Edward Davis,
35[RECAP] Cross MOTION for Summary Judgment filed by Commonwealth of Massachusetts,
28 MOTION for Summary Judgment filed by Stacey Hightower.

Arguments. Court takes under advisement
28 Motion for Summary Judgment; takes under advisement
35[RECAP] Motion for Summary Judgment; takes under advisement
39[RECAP] Motion for Summary Judgment;

(Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Alan Gura and Chester Darling for the plaintiff. Lisa Skehill Maki anc Kenneth Salinger for the defendants.) (Hourihan, Lisa) (Entered: 06/22/2011)

We should see something soon....1, 2, 4 weeks plus/minus roughly....

 

[jrosenberger]

No way to read which way this will go at the District court, but Judge Casper at least seemed to fully understand the issue and ask the right questions.

 

[krucam]

Moving on up...

Just in, SAF/Hightower's MSJ was DENIED, Defendant MSJ was GRANTED.

09/29/2011 53 Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - For the reasons discussed above, Hightowers motion for summary judgment is DENIED,and the Defendants motions for summary judgment are GRANTED.So ordered.(Hourihan, Lisa) (Entered: 09/29/2011)

09/29/2011 54 Judge Denise J. Casper: ORDER entered. JUDGMENT (Hourihan, Lisa) (Entered: 09/29/2011)

09/29/2011 Civil Case Terminated. (Hourihan, Lisa) (Entered: 09/29/2011)

53 is the Opinion and is Here

Since SAF/Gura took over this case late (Comm2A was supporting initially), I've zero doubt this is going to be Appealed to CA1. I had to look it up, MA falls under the 1st Circuit, so it won't be joining Kachalsky in the 2nd, which is a good thing.
http://www.uscourts.gov/court_locator.aspx

Cooking supper (pizza), haven't had a chance to read yet...I'll be back.

 

[Patrick]

It hits all the high points:

- Second Amendment claim not ripe because plaintiff has no Second Amendment right to carry a firearm on her person outside the home.

- Public Safety/Substantial Interest

- 2A Two-Step (the right does not exist so we can apply rational basis dressed up as something else to dispose of the claim)

- In the Home

- Concealed Weapons are categorically allowed to be banned under Heller

- If the Supreme Court means to protect public carry, they will need to do it themselves because I won't have any role in extending this right.

Blah, blah, blah.

Give the judge credit for writing what she would have done had the Second Amendment been ripe in her eyes. This is good fodder for appeal. She could have just ignored it all and put off most of the two-step for another day.

 

[yellowfin]

Do we know if the 1st Circuit is better for gun rights than the 2nd? I guess they can't be all that great since they've let MA get away with everything previously, but have they shown any sign of improvement?

 

[press1280]

Do we know if the 1st Circuit is better for gun rights than the 2nd? I guess they can't be all that great since they've let MA get away with everything previously, but have they shown any sign of improvement?

As far as sheer numbers, the court has slightly higher Republican nominees than Democrats, but there are 4 that were nominated by Bush 41. One of those includes David Souter,a Heller dissenter, who frequently sits by designation. I don't know if the 1st circuit has any relevant caselaw on the matter.
Again, I don't think it matters much because the question will probably be answered by SCOTUS shortly.
It is interesting that Boston has over 2,000 unrestricted LTC A's. While still may-issue, it seems it's still much easier to get one there than NJ, NYC, or SF.

 

[jrosenberger]

Boston PD has 2056 sworn officers, according to wikipedia. That's where a bunch of the unrestricted LTCs come from.

 

[jrosenberger]

The ruling does at least hint at the fact that the rights one is allowed to exercise under a restricted class A (everything but concealed carry) are constitutionally protected under Heller/McDonald. With the carry cases heading for SCOTUS there's not much point to it, but a challenge to discretion for restricted-As might well be successful at the district level. Also, I wonder if the criminal bar will take notice of this.

BTW, it was announced on our local forum that an appeal is officially in progress.

 

[ezliving]

Gura will appeal: http://www.boston.com/news/local/ma...ex_boston_police_officers_bid_for_gun_permit/

 

[Al Norris]

Did anyone notice that this opinion will not be published?

That's at least a small win for us. An unpublished opinion carries much less weight than one that is published.