United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Denise J. Casper United States District Judge
Plaintiff Sara Wilson Celona (“Celona”) brings claims pursuant to 42 U.S.C. §§ 1981 and 1983 against Defendant David J. Scott (“Chief Scott”), in his official capacity as the Pepperell Chief of Police, for violations of the Second and Fourteenth Amendments. D. 1. The dispute stems from the Pepperell Police Department (“Pepperell Police”) denying Celona’s application for a license to carry a firearm (“LTC”) pursuant to Mass. Gen. L. c. 140, § 131, D. 1 ¶¶ 12-14, Ex. A (denial of LTC), which, upon reapplication, was granted, Tr. at 21 (Feb. 25, 2016 motion hearing). Celona alleges violations of her Second Amendment rights for failure to issue a LTC (Count I) and for failing to accept certified court documents in support of her LTC application (Count IV). Celona also alleges violations of her due process rights for failure to disclose evidence that served as the basis for the denial of her LTC application (Count II) and for shifting the burden of proof to Celona to demonstrate that she was qualified for a LTC (Count III).
Celona requests an injunction requiring Chief Scott to issue her a LTC, D. 1 at 9, ¶ 1, a declaratory judgment that Chief Scott’s denial of Celona’s LTC application was a violation of her Second and Fourteenth Amendment rights, id. ¶ 2, a declaratory judgment requiring licensing authorities to obtain certified court documents to prove a disqualification for a LTC, id. ¶ 3, a permanent injunction restraining Chief Scott from denying a LTC license based on a disqualification without certified court documents, id. ¶ 4, and reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, id. ¶ 5. Celona does not seek monetary damages. Tr. at 34-35; see D. 1 at 9.
Celona has moved for summary judgment. D. 19. For the reasons stated below, the Court does not have subject matter jurisdiction and DENIES the motion on that basis.
II. Standard of Review
The Court grants summary judgment where there is no genuine dispute on any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.” García-González v. Puig-Morales, 761 F.3d 81, 87 (1st Cir. 2014) (internal quotation marks and citation omitted). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Rosciti v. Ins. Co. of Pennsylvania, 659 F.3d 92, 96 (1st Cir. 2011). Once that burden is met, the non-moving party may not rest on the allegations or denials in his pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but “must, with respect to each issue on which [he] would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in [his] favor.” Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). The Court “view[s] the record in the light most favorable” to the non-moving party, “drawing reasonable inferences” in the non-moving party’s favor. Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).
III. Factual Background
The following facts are derived from the record and are undisputed unless otherwise noted.
On March 25, 2014, Celona submitted a LTC application with the Pepperell Police indicating that she had never been convicted in any state or federal jurisdiction for a violation of any law regulating the use, possession or sale of controlled substances as defined in Mass. Gen. L. c. 94C, § 1. D. 19-2 at 2 (application for LTC). On March 31, 2014, the Pepperell Police denied Celona’s application because of her 1994 conviction for possession of marijuana in Vermont. D. 19-1 ¶ 4 (Celona’s statement of material facts); D. 1, Ex. A (LTC denial). Celona appealed the denial to the Ayer District Court. D. 1-4 at 2 (Ayer District Court decision).
At the appeal hearing held on December 30, 2014, Celona, appearing pro se, D. 1-2 at 2 (Ayer District Court transcript), presented to the court and Chief Scott, a letter from the Vermont Superior Court, Windsor Criminal Division, id. at 5-7. The letter, dated March 26, 2014, states that “there are no records or cases for Ms. Wilson/Celona in the VT Superior Court, Windsor Criminal Division, ” D. 1-3. Celona indicated that, prior to the hearing, she spoke with Chief Scott over the phone regarding the denial of her application and read the letter to him. D. 1-2 at 8. During that phone conversation, Chief Scott indicated that the marijuana possession charge came up on Celona’s Interstate Identification Index report (“Triple I” report), but he refused to provide her any portion of the report. Id. at 8-9. The court noted that the Triple I report cannot be given out. Id. at 9. Based on the court’s questioning, Chief Scott stated that the Triple I report included an arrest case number for Celona’s possession of marijuana charge and listed the Drug Enforcement Agency (“DEA”) in Burlington, Vermont as the relevant agency address. Id. at 10; D. 19-3 (Celona’s Triple I report). The Triple I report does not appear to have been introduced as an exhibit before the court. D. 1-4 at 2. Celona stated, in response to a question by the court, that she had not checked with the DEA regarding the charge. D. 1-2 at 10.
As to the Vermont charge, Celona explained that she was arrested when her boyfriend in California mailed marijuana to her roommate and that she pleaded to attempted possession of marijuana. Id. at 13. In response to the court’s questioning, Celona stated that she indicated on her LTC application that she had never been convicted of a violation relating to a regulated substance because she believed the conviction was expunged. Id. at 13-14. Chief Scott explained that, in his experience, many LTC applicants believed their charges were expunged in other states, but those charges still appeared on a Triple I report. Id. at 14. Chief Scott further explained that such an out-of-state charge, even if expunged, statutorily disqualified Celona from an LTC. Id. Celona, an avid hunter who also shoots competitively, id. at 11, asked if she could apply for a Firearms Identification (“FID”) card, id. at 15-16. Chief Scott indicated she could submit a separate application while the appeal of her LTC was pending. Id. The court advised Celona to do so, to which she agreed. Id. at 17. At the conclusion of the hearing, the court noted that Celona’s charge appeared to be a disqualifying event to obtain a LTC, but took the matter under advisement. Id. at 16.
By Memorandum and Order dated January 5, 2015, the Ayer District Court affirmed the denial of Celona’s LTC application. D. 1-4. The court recognized that pursuant to Mass. Gen. L. c. 140, § 131, a district court may direct that a LTC be issued if “there was no reasonable ground for denying . . . such license and that the petitioner is not prohibited by law from possessing same.” Id. at 3; see Mass. Gen. L. c. 140, § 131(f). The court explained that Mass. Gen. L. c. 140, § 131(d)(i)(E) disqualifies a person who has violated any law regulating the possession of a controlled substance from being issued a LTC and that, based on the record before the court, Celona had a 1994 criminal violation in Vermont involving marijuana possession. Id. The court noted that Celona does not dispute involvement with the charge, but believes it was dealt with in such a manner that there would be no record. Id. The court ultimately concluded that, based on the unknown disposition of the marijuana charge, Chief Scott had a reasonable basis to conclude that Celona was disqualified from obtaining a LTC. Id. Celona did not appeal the Ayer District Court’s decision.
In late October 2015, the Massachusetts Executive Office for Public Safety and Security (“EOPS”) issued guidance in response to recent decisions from this Court regarding LTC applications (the “EOPS Guidance”). D. 23-1; see D. 21 at 4; D. 22 ¶ 2. The EOPS Guidance recognized that possession of less than one ounce of marijuana is no longer a disqualifier in Massachusetts for firearms licensing purposes, D. 23-1 at 2, and stated that an out-of-state conviction for simple possession of marijuana only, with no reliable indication that the quantity involved was more than an ounce, does not disqualify a LTC applicant, id. at 3. Thereafter, on December 27, 2015, Chief Scott allowed Celona to renew her LTC application, D. 23-2, and waived the application fee, Tr. at 21. Chief Scott asserted that, based upon the EOPS Guidance, Celona’s renewed application will be reviewed “without regard to any allegation of the possession of marijuana in the State of Vermont which had ...