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Powell v. Holmes

United States District Court, D. Massachusetts

February 1, 2018

MYKEL POWELL, Plaintiff,
v.
SGT. BRIAN HOLMES, in his individual and his official capacity as a Sergeant of the Stoughton Police Department, and JAMES O'CONNOR, in his individual and his official capacity as a Detective of the Stoughton Police Department, Defendants.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS

          F. Dennis Saylor, IV United States District Judge

         This is a dispute over the disposal by police officers of confiscated firearms. Plaintiff Mykel Powell alleges that defendants Brian Holmes and James O'Connor, both Stoughton police officers, deprived him of the use and value of his firearms without due process of law.

         According to the complaint, Powell had a firearms license and owned several weapons. When he was indicted on criminal charges, the Stoughton police suspended his license and required him to surrender the weapons. After the charges were dropped, Powell asked for the weapons back. Instead, the police refused, and eventually destroyed the confiscated weapons. Powell essentially contends that the loss of the use and value of his property, for which he received no compensation, violated his due-process rights under the Constitution.

         Defendants have moved to dismiss on the ground that the complaint fails to state a claim upon which relief can be granted. For the reasons set forth below, that motion will be denied.

         I. Background

         A. Factual Background

         The following facts are set forth as alleged in the complaint.

         Mykel Powell was at the relevant time a resident of Stoughton, Massachusetts. As of 2015, he had a Class A license that permitted him to carry firearms. (Compl. ¶ 9).

         Brian Holmes is a sergeant in the Stoughton Police Department. (Id. ¶ 2). Among other things, Holmes handles applications for firearm permits. (Id. ¶ 10). James O'Connor is a detective in the Stoughton Police Department. (Id. ¶ 3).

         On November 29, 2015, the Stoughton Police Department suspended Powell's firearms license pending the resolution of criminal charges against him. (Id. ¶ 9). According to the complaint, Sgt. Holmes came to Powell's house and took possession of:

a. a Bushmaster AR15 [rifle] (serial no. HFN6346),
b. an S&W SD9 [pistol] (serial no. BFI643914),
c. 6 pre-ban [sic] ¶ 30 round magazines,
d. 1 magazine for the S&W SD9, [and]
e. the bag for the rifle.

(Id. ¶¶ 11-12). The complaint alleges that the fair market value of the property taken was at least $1, 532.24. (Id. ¶ 13).

         The complaint alleges that Powell was not provided a receipt. (Id. ¶ 14). Instead, he “was told to call Sgt. Holmes once he is clear from his criminal charges.” (Id. ¶ 15). It further alleges that Powell was not given notice in writing of the licensing authority's ability to transfer the firearms a year after they were surrendered under Mass. Gen. Laws ch. 140, § 129D. (Id. ¶ 16); see Mass. Gen. Laws ch. 140, § 129D (“The licensing authority shall at the time of delivery or surrender inform the person in writing of the authority's ability, within 1 year after delivery or surrender, to transfer the firearms, rifles, shotguns and machine guns and ammunition to any licensed dealer or other person legally permitted to purchase or take possession.”).

         On August 3, 2016, approximately eight months later, the criminal charges against Powell were dismissed. (Id. ¶ 17). On August 5, 2016, Powell “left a telephone message for Sgt. Holmes informing him that the criminal case against him was dismissed.” (Id. ¶ 18). He alleges that he tried several additional times to reach Sgt. Holmes by telephone. (Id. ¶ 19). He finally spoke to him on September 29, 2016. (Id. ¶ 19). According to the complaint, Sgt. Holmes refused to return the confiscated property and told Powell that he “needed a change in his lifestyle.” (Id. ¶ 20).

         At some point thereafter, Powell moved to Rhode Island. (Id. ¶ 21). Following the move, Sgt. Holmes allegedly informed Powell that he would return the firearms once he was lawfully able to possess firearms in Rhode Island. (Id. ¶ 22). Powell passed Rhode Island's “blue card” test on October 24, 2016, which allowed him to lawfully purchase or possess handguns in that state.

         Powell alleges that he attempted to contact Sgt. Holmes again, but “was advised to contact” Det. O'Connor. (Id. ΒΆ 24). On November 14, 2016, Det. O'Connor informed Powell that his property ...


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