Hightower Decision Released

Hightower's only argument as to why these postdeprivation procedures are inadequate is that the standard of review places the burden of proof on the individual challenging the revocation. Hightower failed to develop the argument or cite to any pertinent authority in her opening brief, so this claim is waived. See United States v. Berk, 652 F.3d 132, 137 n.5 (1st Cir. 2011) (issues not developed in the opening brief are waived), cert. denied, 132 S. Ct. 1650 (2012).

We also reject the notion that the arbitrary and capricious standard of review, in conjunction with an evidentiary hearing where the aggrieved individual may introduce evidence to demonstrate that the licensing decision was erroneous, renders the postdeprivation judicial process inadequate.
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While I will take the Court's word for it that the first argument was undeveloped, it is incomprehensible that the current standard of review in a PJR is Constitutional (meaning (a) the burden is on the the aggrieved individual; and (b) it's an arbitrary and capricious standard). Such standard may have been acceptable when it was only a privilege to own firearms in the Commonwealth, but in the wake of McDonald, such a standard cannot be upheld to protect one's fundamental right to own a firearm.
 
pastera said:
Pg 17


Does this interpretation of Class B allowing open carry have any legal weight?

I had posted to this thread earlier but it looks like the post vanished
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Knuckle Dragger said:
That's a fascinating question. The court read chap 140 sec 131 very literally: It seems to be an either / or situation and one could easily come to the conclusion that a LTC/B allows for the carrying of a concealed unloaded non-large capacity handgun or the carrying of a loaded handgun carried in other than a concealed manner. See footnote 5:
You can draw your own conclusions, but you're on your own.
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pastera said:
The decision is very clear on its interpretation that a Class B License allows for the carry of a loaded firearm in an unconcealed manner for self protection. The unknown is does this decision create case law that would be binding?

BTW: I am not about to volunteer to be the test case.
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Kicker96FS said:
Once again I will tell you about a friend who had to sue his CoP to get his LTC, he got LTC-B and open carried a S&W 38 stubby all over Boston. Sure, cops would hassle him, call their C.O., and would let him go with his gun, still on his hip, loaded. Does that help?
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TomH said:
It's never been illegal, the sheep just think it is.
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Does anyone remember in "the old days", when in MA one HAD to carry openly (with part of the handle exposed, for example)? I remember this distinctly, because my father had to do just this. Eventually, he got a pistol permit (personal protection in those days), which allowed concealed carry.

Open carry is not illegal, period.
 
SClaflin said:
While I will take the Court's word for it that the first argument was undeveloped, it is incomprehensible that the current standard of review in a PJR is Constitutional (meaning (a) the burden is on the the aggrieved individual; and (b) it's an arbitrary and capricious standard). Such standard may have been acceptable when it was only a privilege to own firearms in the Commonwealth, but in the wake of McDonald, such a standard cannot be upheld to protect one's fundamental right to own a firearm.
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It's actually even inconsistent with Rehlander where CA1 specifically called out in limine, interrogatories, etc as elements of due process needed to remove someone's rights from them and anything less was considered inadequate. But apparently hearsay and allegations are still OK to remove someone's rights after all.
 
Rob Boudrie said:
.... not being discussed by Comm2A on a public forum [hmmm]
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Exactly. We need everyone to just sit tight. There are a lot of moving parts here and we will announce what we can when we can. And please don't think we aren't busy working on this right now. Emails have been flying around and phones ringing since the day it came out and the last email was 10 minutes ago. We are working on this diligently.
 
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terraformer said:
Exactly. We need everyone to just sit tight. There are a lot of moving parts here and we will announce what we can when we can. And please don't think we aren't busy working on this right now. Emails have been flying around and phones ringing since the day it came out and the last email was 10 minutes ago. We are working on this diligently.
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Comm2A is far more advanced than the current WH administration when it comes to OpSec.
 
TayNinh_66 said:
Hard to claim she was denied due process when she did not take advantage of local appeal process, and prior opinions have made it very clear that she had ample opportunity to apply for either FID or LTC A/B as a civilian but chose not to. BPD strongly suggested that had she done so, she probably would have been approved. Hightower's lack of candor when she applied for LTC as a cop doomed that application. I'm not sure what the goal was, to attack "suitability" or "may issue" language, but Hightower never seemed like a great test case in my opinion. Would have been a simple and quick process for her to apply as a civilian. Denial at that point might have turned this into a good test case. Hope they are a little more selective for the next test case.
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Her due process rights were violated when they pulled her permit without (wait for it) due process. And applying for an LTC in Boston as a civilian is hardly a "simple and quick process," nor is is it likely that a regular civilian would get an unrestricted LTC-A.

It's easy to be a Monday morning quarterback.
 
terraformer said:
Exactly. We need everyone to just sit tight. There are a lot of moving parts here and we will announce what we can when we can. And please don't think we aren't busy working on this right now. Emails have been flying around and phones ringing since the day it came out and the last email was 10 minutes ago. We are working on this diligently.
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This is why I give 50 bucks every month.
 
Two types of cases make bad law: bad facts and/or unsympathetic plaintiffs. This case strikes me as so-so on both.
 
Win some, lose some. The legal system is imperfect. No single case will ever be the end of it. As always, we all benefit tremendously from the efforts of Comm2A. Any donation to them is money very well spent.
 
terraformer said:
On only two points. The panel went full retard on just about everything they could so any future filing dealing with the entire CA1 decision will be an exercise in writing economy...
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Yes, clearly you will need to use fewer and smaller words that cannot even form sentences if twisted and re-arranged. [sad2]

Looking forward to the next thing, first circuit really left a steaming pile here.
 
SClaflin said:
But she could unlock the box and load the gun in less than thirty seconds I bet. Isn't that plenty of time to defend herself against an assailant?

/sarcasm.
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I thought about that for about ten seconds once and I realized that even musket's stored without charge are quicker to load than a handgun in a locked box unloaded. [laugh]
 
terraformer said:
I thought about that for about ten seconds once and I realized that even musket's stored without charge are quicker to load than a handgun in a locked box unloaded. [laugh]
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I've never done the research, but I would bet that most muskets were "stored" loaded even back then.
 
En banc, filed just in time! Here's hoping!

For those who may not know, this is a request to have the entire CA1 re-hear the case, and is a good tactical and strategic move.
 
Love it! Cases like this that bring out the abuse of our "officials" will bring about rulings that will make GOAL meeting with Patric unnecessary!
They are literately and figuratively shooing themselves in the foot! Keep going 2A !
 
I love comm2a.


"Send it" like chinalfr from my can attached to a string from another can in the lair of the dark lord kramdar.
 
newenglandjeff said:
I think this could have been much worse. It almost seems like the Court chose to side step the issue, rather than give a concrete ruling.
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I agree. The court's refusal to determine the appropriate level of scrutiny that warrants application to 2A "outside the home" backs this up.

we should not engage in answering the question of how Heller applies to possession of firearms outside of the home, including as to "what sliding scales of scrutiny might apply." Id. at 475. As he said, the whole matter is a "vast terra incognita that courts should enter only upon necessity and only then by small degree." (Hightower at 26).
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Also, fine piece of work, Comm2A.
 

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