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Richmond v. Peraino

United States District Court, D. Massachusetts

September 11, 2015

STEVEN RICHMOND and COMMONWEALTH SECOND AMENDMENT, INC., Plaintiffs,
v.
MICHAEL PERAINO, Chief of the Hingham Department of Police, Defendant

         Decided September 9, 2015.

         For Steven Richmond, Commonwealth Second Amendment , Inc., Plaintiffs: Jeffrey T. Scrimo, LEAD ATTORNEY, Lynch Scrimo, Lenox, MA.

         For Michael Peraino, Chief of the Town of Hingham Department of Police, Defendant: Kerry T. Ryan, LEAD ATTORNEY, Morrissey, Wilson & Zafiropoulos, LLP, Braintree, MA.

Page 416

          ORDER ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFFS' MOTION FOR INJUNCTIVE RELIEF

         Leo T. Sorokin, United States District Judge.

         Plaintiffs Steven Richmond and Commonwealth Second Amendment, Inc. bring this action alleging that the Massachusetts statutes governing the permitting of handguns as applied to Richmond violate his Second Amendment right to keep and bear arms.[1] The Plaintiffs seek declaratory and injunctive relief requiring Defendant Michael Peraino, the Chief of the Hingham Police Department, to issue a License to Carry (" LTC" ) or a Permit to Purchase (" PTP" ), allowing Richmond to possess a handgun in his home and to transport a handgun to a firing range. The Plaintiffs have filed a motion for a preliminary injunction enjoining Peraino from enforcing the allegedly unconstitutional portions of the licensing law against Richmond and preventing Peraino from relying on Richmond's

Page 417

forty-year-old conviction for simple possession of marijuana as a basis to deny him an LTC or PTP. Peraino, for his part, has opposed the entry of a preliminary injunction and moved to dismiss the Complaint.

         Because the parties do not dispute the operative facts, the Court informed the parties of its intent to treat the resolution of the motion for a preliminary injunction as a resolution of the action on the merits. Doc. No. 18. The Court invited the parties to raise any objections they had to proceeding in such a manner or to describe any discovery they believed would be necessary to resolve this case. Id. No party raised any objection to the Court's proposed course of action.

         Accordingly, for the reasons that follow, the Motion to Dismiss is ALLOWED as to Commonwealth Second Amendment and DENIED as to Richmond. The Motion for Injunctive Relief is ALLOWED, and the Court enters a final order of injunctive relief resolving this case.

         I. BACKGROUND

         The Complaint alleges that Richmond, in 1975, was convicted in Florida for simple possession of less than an ounce of marijuana, a misdemeanor for which Richmond paid a $252 fine and served no jail time. Doc. No. 1 ¶ 21. Richmond has not been convicted of a felony or any other criminal offense considered disqualifying for the purposes of obtaining an LTC. Id. ¶ 22. Today, Richmond seeks to purchase a handgun for self-defense in his home. Id. ¶ 27.

         Richmond currently holds a Firearm Identification (" FID" ) card, which allows him to possess a rifle or shotgun in his home, but not a handgun. Id. ¶ ¶ 24, 26. Richmond's LTC, which would allow him to possess a handgun in his home, was revoked by Peraino in 2014.[2] Id. ¶ 24. The revocation was based on a statutory exclusion that prohibits any person who " has, in any other state or federal jurisdiction, been convicted [of] . . . a violation of any law regulating the use, possession or sale of a controlled substance." Mass. Gen. Laws ch. 140, § 131(d)(ii); Doc. No. 1 ¶ 24. A PTP, which would allow Richmond to purchase a handgun, is subject to the same exclusion as an LTC. Mass. Gen. Laws ch. 140, § 131A. Thus, Richmond's 1975 conviction for possession of marijuana makes him statutorily ineligible to receive an LTC or PTP.

         Peraino does not dispute these facts as alleged in the Complaint for the purposes ...


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