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

[noxin]

Here's the MSJ Memo. Short, to the point and worth the read:

http://ia600309.us.archive.org/8/items/gov.uscourts.mad.170157/gov.uscourts.mad.170157.20.0.pdf

Restricted site that requires pay access?

 

[Matt_SERE]

Here's the MSJ Memo. Short, to the point and worth the read:





http://ia600309.us.archive.org/8/items/gov.uscourts.mad.170157/gov.uscourts.mad.170157.20.0.pdf

Restricted site that requires pay access?

Clear cookies and try again. Not a pay site.

 

[Chet0729]

Restricted site that requires pay access?

I had no issue accessing it

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Good Job ATTY Foley and Comm2a

 

[soam]

Short, sweet, and to the point.

I can't believe that a record that stated "CONVICTION STATUS UNKNOWN" was used to deny an LTC. How could anyone think that was indicative of a conviction?

 

[Artie]

a case pending for twenty years stretches the bounds of reality

Good Job

 

[W.E.C]

Nice, hope sec.vi passes.

 

[Knuckle Dragger]

Short, sweet, and to the point.

I can't believe that a record that stated "CONVICTION STATUS UNKNOWN" was used to deny an LTC. How could anyone think that was indicative of a conviction?

It's the uncertainty. Remember, in Massachusetts you don't have a right to the license and the applicant bears the burden of proving that they're not disqualified. In this case the licensing authority was requiring that the applicant prove that she wasn't convicted(!). I'll just point out that the plaintiff here did file an appeal in Ayer district court and the judge ruled that she had been convicted.

 

[swatgig]

This scene has been running through my head all day:

Judge Chamberlain Haller: Mr. Gambini?

Vinny Gambini: Yes, sir?

Judge Chamberlain Haller: That is a lucid, intelligent, well thought-out objection.

Vinny Gambini: Thank you, Your Honor.

Judge Chamberlain Haller: [firm tone] Overruled.

 

[Coyote33]

So now what? Any updates? Not knowing how this stuff works, what happens next? A flow chart of potential paths would be great, but even just a verbal "if this, then that; if that, then this" type of thing would do.

 

[TayNinh_66]

MA court definition: An expungement order is a court order to remove and destroy records so that no trace of the information remains. “When a record is expunged, all traces of it vanish, and no indication is left behind that information has been removed. In contrast, when records are sealed . . . they do not disappear; they continue to exist but become unavailable to the public.” Commonwealth v. Boe, 456 Mass. 337, 338 (2010)

Foley is claiming a due process violation deprived her of a right. Maybe. If she plead guilty, then it was entered into the database. Ten years later she moves for expungement which was apparently allowed. Also apparently the court did not update the database properly. The Police Chief relied upon it to determine she was statutorily disqualified. She did ultimately receive a copy of her NCIC record.

So why wouldn't the plaintiff go back to VT and file a Motion to force the court to properly update the NCIC database, and then reapply for MA LTC? (NCIC: the subject of the requested record shall request the appropriate arresting agency, court, or correctional agency to initiate action necessary to correct any stated inaccuracy in subject's record or provide the information needed to make the record complete.)

Doesn't she have to exhaust all other remedies before going to Fed Court?

 

[drgrant]

MA court definition: An expungement order is a court order to remove and destroy records so that no trace of the information remains. “When a record is expunged, all traces of it vanish, and no indication is left behind that information has been removed. In contrast, when records are sealed . . . they do not disappear; they continue to exist but become unavailable to the public.” Commonwealth v. Boe, 456 Mass. 337, 338 (2010)

Foley is claiming a due process violation deprived her of a right. Maybe. If she plead guilty, then it was entered into the database. Ten years later she moves for expungement which was apparently allowed. Also apparently the court did not update the database properly. The Police Chief relied upon it to determine she was statutorily disqualified. She did ultimately receive a copy of her NCIC record.

So why wouldn't the plaintiff go back to VT and file a Motion to force the court to properly update the NCIC database, and then reapply for MA LTC? (NCIC: the subject of the requested record shall request the appropriate arresting agency, court, or correctional agency to initiate action necessary to correct any stated inaccuracy in subject's record or provide the information needed to make the record complete.)

Doesn't she have to exhaust all other remedies before going to Fed Court?

You're assuming that they found something in NCIC, etc. Because the CLEO refused to disclose his source, the source could be anything. That is pretty ****y...

"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."

"If it smells like shit, it probably is. "

This also shows that even if it doesn't exist in NCIC, if there are "*ANY* traces of her being involved with weed (including her own self incrimination on question 10 or whatever it is) he doesn't care, and that's enough to warrant a denial."

-Mike

 

[Coyote33]

All of this is out the window with these so called no fly lists, that nobody sees or knows how you get on or off of them.

 

[TayNinh_66]

Mike,
Foley states in his brief "Through discovery, the Defendant provided Celona with a copy of the NCIC report onwhich he based his denial. This record of this twenty year old charge clearly states: COURTDISPOSITION PENDING and CONVICTION STATUS UNKNOWN."

Moral of the story is if you have been arrested and charges were dropped, or were convicted of any misdemeanor, wait 10 years and file a motion to expunge. Then follow up and make sure records are in fact expunged.

 

[drgrant]

Mike,
Foley states in his brief "Through discovery, the Defendant provided Celona with a copy of the NCIC report onwhich he based his denial. This record of this twenty year old charge clearly states: COURTDISPOSITION PENDING and CONVICTION STATUS UNKNOWN."

Moral of the story is if you have been arrested and charges were dropped, or were convicted of any misdemeanor, wait 10 years and file a motion to expunge. Then follow up and make sure records are in fact expunged.

Yeah, but this ignores the fact that the chief didn't tell her that up front, and she had to take them to court to even get that information. This is deliberately obstructionist.

Also, the letter of the court seems to indicate that the charges don't exist from their POV. So how would you, in that case, force an update to NCIC?

-Mike

 

[Coyote33]

... the letter of the court seems to indicate that the charges don't exist from their POV. So how would you, in that case, force an update to NCIC?

The court writes to the NCIC record-keepers that they have erroneous records, and please correct them.

 

[Knuckle Dragger]

Shockingly, Pepperell has filed an opposition to Celona's MSJ.

Cliff Notes:
1) We didn't violate her due process rights because we have discretion and a Massachusetts court decided that the applicant didn't prove she wasn't disqualified from being issued a license.
2) We acted in good faith and will give her a license now that the Commonwealth has said we can stop violating her rights.
3) This never happened.

 

[soam]

So basically we "win" in the sense that Celona gets her LTC, but the case will probably wind up being dismissed and thus no favorable precedent gets set and Comm2A can't recover attorney fees.

Yaaaay, justice.

 

[71montess]

Unless the f'ed judge decides the Defendant violated her rights with prejudice.

 

[Knuckle Dragger]

So basically we "win" in the sense that Celona gets her LTC, but the case will probably wind up being dismissed and thus no favorable precedent gets set and Comm2A can't recover attorney fees.

Yaaaay, justice.

There are a couple of exceptions to mootness, one is the Voluntary Cessation of Unlawful Conduct. Of course, the defendant here is not admitting to unlawful conduct, but they are agreeing to stop doing it.

I expect the judge will try to rule in their favor even though we're entitled to a ruling and fee recovery. This is the Hightower judge after all and she's already denied an assented to motion to delay pleadings so that the parties could conduct settlement talks. This tells me the judge didn't want the parties to settle and wants the opportunity to issue her own ruling on the case.

 

[soam]

There are a couple of exceptions to mootness, one is the Voluntary Cessation of Unlawful Conduct. Of course, the defendant here is not admitting to unlawful conduct, but they are agreeing to stop doing it.

I expect the judge will try to rule in their favor even though we're entitled to a ruling and fee recovery. This is the Hightower judge after all and she's already denied an assented to motion to delay pleadings so that the parties could conduct settlement talks. This tells me the judge didn't want the parties to settle and wants the opportunity to issue her own ruling on the case.

My guess is the judge will rule that Chief Scott was acting lawfully, and the only reason he ceased his "lawful" conduct is that the state told him it was no longer lawful. Which means it was lawful when he did it, but isn't lawful now when he's ceasing to do it, so even though he's ceasing conduct which is unlawful, he's doing it because the state told him so, so it's not voluntary.

I hurt my own brain writing that.

 

[Knuckle Dragger]

My guess is the judge will rule that Chief Scott was acting lawfully, and the only reason he ceased his "lawful" conduct is that the state told him it was no longer lawful. Which means it was lawful when he did it, but isn't lawful now when he's ceasing to do it, so even though he's ceasing conduct which is unlawful, he's doing it because the state told him so, so it's not voluntary.

I hurt my own brain writing that.

My brain hurts reading it. You'd be a good legal writer.

 

[Knuckle Dragger]

Oral arguments were held yesterday afternoon.

Basically, we argued that the plaintiff's Second Amendment and due process rights were violated when she was denied a license for two years and because she was not able to see and counter the information that was used to deny her a license.

The Pepperell chief argued that because EOPSS changed their policy and the plaintiff and since received her license (at no charge), the case was moot and should be dismissed.

The judge wanted to know what kind of relief were were seeking. We conceded that monetary damages were not appropriate, but that we were seeking declaratory and injunction relief.

Attorney Foley performed very, very well. Now we wait.

 

[71montess]

Donated ! Good work guys and gals !

 

[11_fingers]

Oral arguments were held yesterday afternoon.

Basically, we argued that the plaintiff's Second Amendment and due process rights were violated when she was denied a license for two years and because she was not able to see and counter the information that was used to deny her a license.

The Pepperell chief argued that because EOPSS changed their policy and the plaintiff and since received her license (at no charge), the case was moot and should be dismissed.

The judge wanted to know what kind of relief were were seeking. We conceded that monetary damages were not appropriate, but that we were seeking declaratory and injunction relief.

Attorney Foley performed very, very well. Now we wait.

Fingers, toes crossed that logic may prevail. I love the yes we were idiots but since we stopped being idiots it's all good defense.

 

[Lank]

Oral arguments were held yesterday afternoon.

Basically, we argued that the plaintiff's Second Amendment and due process rights were violated when she was denied a license for two years and because she was not able to see and counter the information that was used to deny her a license.

The Pepperell chief argued that because EOPSS changed their policy and the plaintiff and since received her license (at no charge), the case was moot and should be dismissed.

The judge wanted to know what kind of relief were were seeking. We conceded that monetary damages were not appropriate, but that we were seeking declaratory and injunction relief.

Attorney Foley performed very, very well. Now we wait.

This sounds promising- but what policy did EOPSS change? Did I miss something?

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This sounds promising- but what policy did EOPSS change? Did I miss something?

Will they now share (I think it is called) discovery?