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Comm2A files against PD who denied a license based on expunged record

proving expungement.....circular mass-logic at it's best.
props and thanks.
 
Here is the new write up.

In 1994, while living in Vermont, Sara Wilson Celona received a package at her residence addressed to her roommate. Unbeknownst to Ms. Celona, law enforcement had previously identified the package as containing marijuana while it was in transit. Ms. Celona was charged criminally by authorities in Vermont with possession of marijuana. Ms. Celona plead guilty to attempted possession of the marijuana in the package, and the State of Vermont later expunged her record.

Twenty years later, now living in Massachusetts and having been previously been issued a License to Carry Firearms necessary to purchase and possess handguns under state law, Ms. Celona applied for a renewal of her license with the Town of Pepperell. Chief David Scott of the Pepperell Police Department denied Ms. Celona’s license renewal application after locating information in an interstate database relating to the expunged incident in Vermont. In his response, Chief Scott claimed the previous Vermont matter made Ms. Celona statutorily ineligible to receive her License to Carry, citing Mass. Gen. Law ch. 140, §131(i)(e) which restricts those convicted of controlled substance violations as defined by Massachusetts law from obtaining a License to Carry.

Ms. Celona appealed her license denial in state court. Despite the fact the Town of Pepperell provided no evidence showing a previous conviction of any crime, the fact Chief Scott testified the Vermont matter was the only reason for the denial, and the fact Ms. Celona provided a certificate from the State of Vermont clearly proving her expungement, the Court rejected Ms. Celona’s appeal. After informing Ms. Celona she was not entitled to even see the database information upon which Chief Scott relied, the Court cited her mere “involvement” with marijuana as a sufficient reason for Chief Scott to deny her under the controlled substance provision cited above.

As a result, Ms. Celona has brought suit in Federal Court against Chief Scott in his official capacity as Police Chief for the Town of Pepperell, alleging Chief Scott’s denial of her license renewal was violation of her individual right to possess a handgun in the home for self-defense, as secured by the Second Amendment. Additionally, Ms. Celona also alleges her rights to Due Process, as secured by the Fourteenth Amendment, were violated due to both Chief Scott’s refusal disclose the records he relied upon to deny her license and the court’s placement of the burden of proof on Ms. Celona.

In addition to vindicating the Second Amendment rights of those who have been denied licenses on the basis of past expunged and sealed convictions, the case seeks to change the unfair nature in which licensing appeals are conducted in the Commonwealth. As it currently stands, Massachusetts residents who wish to challenge a firearms license denial walk into court with the deck stacked heavily against them. In no other proceeding is the burden on the citizen and NOT the government prove a party is ineligible to exercise his or her Constitutionally-guaranteed rights—all while the citizen is simultaneously handcuffed in that task by not being permitted discovery, preventing them from so much as getting a glance at the evidence being offered against them by the government which is attempting to take those rights away.

Commonwealth Second Amendment is backing this case, recognizing the enormous potential impact on procedures commonly applied by Massachusetts state courts in firearms licensing appeals cases, as well as the impact on citizens with past sealed or expunged criminal records. Mrs. Celona is represented by Worcester, Massachusetts attorney J. Steven Foley.
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I
Can this more generally be used as a challenge to suitability such that only prohibited persons can be denied?
 
The real significance of this case is that it's the first time, that I'm aware of, where someone is challenging the requirement that they bear the burden of proving that they're entitle to exercise a fundamental right. It is not really a suitability case as the police chief thinks that Celona is a prohibited person and is requiring her to produce to the contrary - evidence that doesn't exist. The chief is essentially denying her a fundamental right based upon secret evidence (a triple I report) that she cannot review or challenge.

This is a huge WTF issue.
 
I see. Kafka/Catch-22 bullshit.

Good luck!

Knuckle Dragger said:
The real significance of this case is that it's the first time, that I'm aware of, where someone is challenging the requirement that they bear the burden of proving that they're entitle to exercise a fundamental right. It is not really a suitability case as the police chief thinks that Celona is a prohibited person and is requiring her to produce to the contrary - evidence that doesn't exist. The chief is essentially denying her a fundamental right based upon secret evidence (a triple I report) that she cannot review or challenge.

This is a huge WTF issue.
Click to expand...
 
terraformer said:
Expunged means expunged. Period.
Click to expand...

Legally, yes, but apparently there must have been some trash in this system somewhere. Of course in any "normal" state you show the expungement decree or whatever it is from the court and that should appease the chief but not with numskulls in MA. My guess is you guys probably tried the soft method with these people and they just cranked up the "it is what we said it is!!! hurr! durr!" rhetoric.

-Mike
 
lancecolonel said:
i'm lost...did she disclose on the app that she had an expunged record? i thought nothing ever went away as far as what a police bg check could find?
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That would depend on the state. In other states no. But in Mass most definitely yes. Unfortunately there is so much detritus in the system that things will pop up. In a normal state with an expungement she could answer no to the question and be perfectly legal. In Mass, I'm not so sure. I hope Comm 2A prevails but I would have to tell you that for many years now I have worked on the premise that there is no such thing as a sealed record...not an expunged one regardless of what a judge, your attorney or a DA may have told you.

The important thing to realize is that record keeping in the CJ system is not monolithic not standardized, nor consistent nor uniform. If you believe in states rights, how could you have it any other way? Just because a record is expunged doesn't mean that it is reported throughout the system and the system keeps adding old records into the digitized data base. As a rule of thumb always assume that lurking somewhere is a copy of your expunged record in the bottom drawer of an ancient clerks desk or an old filing cabinet just waiting to see the light of day and be data entered into the system.

Frequently arrests without dispositions are added. Another problem is having the same name and DOB as an offender. That can be cleared up with fingerprints, but it can lead to lots of confusion.
 
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Do you think you guys at Comm2A could darken up your font a little so my eyes don't bug out trying to read the almost invisible words on your web page? It would really help out us old guys....... [wink]

Oh, and please, keep up the great work!
 
Whenever something like this happens I have to wonder what the Mayors/Town Selectmen and residents think when they realize the stance of their Chief is going to cause them a court battle. It can't be cheap for these towns to fight a case in federal court. Especially a smaller town like Pepperell.
 
Rockrivr1 said:
Whenever something like this happens I have to wonder what the Mayors/Town Selectmen and residents think when they realize the stance of their Chief is going to cause them a court battle. It can't be cheap for these towns to fight a case in federal court. Especially a smaller town like Pepperell.
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The residents really should be calling out the town government on this crap, buts its Mass, no one gives a shit until its in their lap.
 
Squire said:
I
Can this more generally be used as a challenge to suitability such that only prohibited persons can be denied?
Click to expand...

Unlikely. This case doesn't speak to suitability at all. The licensing authority isn't claiming she's unsuitable, they're claiming that she's statutorily denied due to the previous drug conviction even though that conviction was expunged.
 
rivet_42 said:
Unlikely. This case doesn't speak to suitability at all. The licensing authority isn't claiming she's unsuitable, they're claiming that she's statutorily denied due to the previous drug conviction even though that conviction was expunged.
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Yes and no. The key here is burden shifting and making people prove they are qualified for the license. That part implicates suitability here.
 
is there any way a judge can logically uphold the denial? in otherwords, wouldn't that be calling into question the process of expungement in general?

of course this is Mass, where a judge can argue in favor of a 4 sided triangle, but overall isn't there a pretty large legal precedence for expungement prior to this case?
 
The MGLs are very vague/broad as to "discretion" of LOs, under the theory that they know the bad apples in their town, and can act to protect the public from someone that is bad, but has somehow managed to cheat the judicial system.

That's why some towns are Red and Black. Because everyone is bad.
 
Motion for Summary Judgement was filed yesterday. We'll post a link once it's available on RECAP. But for now enjoy this preview:

SUMMARY OF ARGUMENT
Defendant actions failed to afford Celona the basic aspects of due process required by the Constitution. Scott based the denial on an obviously inaccurate record, and gave Celona no mechanism with which to dispute the allegation. Scott effectively shifted the burden to Celona and pushed upon her the impossible task of proving that she had never been convicted of a disqualifying crime.

This lack of due process cascaded into a violation of Celona’s fundamental Second Amendment Right to keep a handgun, as handgun possession is illegal in Massachusetts without a valid License to Carry Firearms.
Click to expand...
 
I like the direct tying of the LTC to the fundamental 2A right - it makes clear that denying the LTC is denying the right.
 

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